Context

The recent spate of custodial deaths in Tamil Nadu has yet again highlighted the methods used by the police during interrogation.

Custodial deaths in India

• It is not uncommon knowledge that the police, when they grow increasingly frustrated with the trajectory of their interrogation, sometimes resort to torture and violence which could lead to the death of the suspect.
• Custodial deaths are common despite enormous time and money being spent on training police personnel to embrace scientific methods of investigation.
• This is because police personnel are humans from different backgrounds and with different perspectives.

Use of technology by law enforcement agencies

• There is no doubt that technology can help avert police custodial deaths. For example, body cameras could hold officers liable.
• Deception detection tests (DDTs), which deploy technologies such as polygraph, narco-analysis and brain mapping, could be valuable in learning information that is known only to a criminal regarding a crime.
• Among the DDTs, the Brain Fingerprinting System (BFS) is an innovative technology that several police forces contemplate adding to their investigative tools.
• The technique helps investigative agencies uncover clues in complicated cases.
• With informed consent, however, any information or material discovered during the BFS tests can be part of the evidence.
• Police departments are increasingly using robots for surveillance and bomb detection.
• Many departments now want robotic interrogators for interrogating suspects.
• Use of robots: Police departments are increasingly using robots for surveillance and bomb detection.
• Use of robots for interrogation: Many departments now want robotic interrogators for interrogating suspects.
• Many experts today believe that robots can meet or exceed the capabilities of the human interrogator, partially because humans are inclined to respond to robots in ways that they do to humans.
• Robots equipped with AI and sensor technology can build a rapport with the suspects, utilise persuasive techniques like flattery, shame and coercion, and strategically use body language.
• Use of AI/ML: Artificial Intelligence (AI) and Machine Learning (ML) are emerging as tool of interrogations. AI can detect human emotions and predict behaviour.
• Therefore, these are also options.
• ML can in real-time alert superiors when police are meting out inhumane treatment to suspects.

Issues with the use of technologies

• Informed consent: In 2010, the Supreme Court, in Selvi v. State of Karnataka, rendered the BFS evidence inadmissible.
• The court observed that the state could not perform narco analysis, polygraph, and brain-mapping tests on any individual without their consent.
• High cost of technology: As the BFS is high-end technology, it is expensive and unavailable in several States.
• There is a lot of concern about AI or robot interrogations, both legally and ethically.
• Risk of bias: There exists the risk of bias, the peril of automated interrogation tactics, the threat of ML algorithms targeting individuals and communities, and the hazard of its misuse for surveillance.

Way forward

• Multi-pronged strategy: What we need is the formulation of a multi-pronged strategy by the decision-makers encompassing legal enactments, technology, accountability, training and community relations.
• Onus of proof on police: The Law Commission of India’s proposition in 2003 to change the Evidence Act to place the onus of proof on the police for not having tortured suspects is important in this regard.
• Strict implementation of D.K. Basu case guidelines: Besides, stringent action must be taken against personnel who breach the commandments issued by the apex court in D.K. Basu v. State of West Bengal (1997).
• Law against custodial torture: The draft bill on the Prevention of Torture, 2017, which has not seen the day, needs to be revived.

Conclusion

While the technology available to the police and law-enforcement agencies is constantly improving, it is a restricted tool that can’t eradicate custodial deaths. While it might provide comfort and transparency, it can never address the underlying issues that lead to these situations.

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Back2Basics:  Supreme Court judgement in DK Basu case

• The DK Basu judgment since 1987 is crucial in dealing with issue of custodial deaths.
• The judgement has origin from a letter complaint in 1986, which was converted into PIL.
• 4 crucial and comprehensive judgments — in 1996, twice in 2001 and in 2015 — lay down over 20 commandments, forming the complete structure of this judgement.

Details of judgment:

First 11 commandments in 1996, focused on vital processual safeguards:

• All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or respectable member of the locality.
• The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organisation and arrestee must be made known of DK Basu judgement.
• All such compliances must be recorded in the police register, arrestee must get periodical medical examination, inspection memo must be signed by arrestee also and all such information must be centralised in a central police control room.
• Breach to be culpable with severe departmental action and additionally contempt also, and this would all be in addition to, not substitution of, any existing remedy.
• All of the above preventive and punitive measures could go with, and were not alternatives to, full civil monetary damage claims for constitutional tort.

8 other intermediate orders till 2015:

• Precise detailed compliance reports of above orders to be submitted by all states and UT and any delayed responses to be  looked into by special sub-committees appointed by state human rights body.
• Also where no SHRC existed, the chief justice of the high courts to monitor it administratively.
• It emphasised that existing powers for magisterial inquiries under the CrPC were lackadaisical and must be completed in four months, unless sessions court judges recorded reasons for extension.
• It also directed SHRCs to be set up expeditiously in each part of India.

The third and last phase of judgment ended in 2015:

• Stern directions were given to set up SHRCs and also fill up large vacancies in existing bodies.
• The power of setting up human rights courts under Section 30 of the NHRC Act was directed to be operationalised.
• All prisons had to have CCTVs within one year.
• Non-official visitors would do surprise checks on prisons and police stations.
• Prosecutions and departmental action to be made unhesitatingly mandated.

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