The Lieutenant Governor of Delhi, V.K. Saxena, has passed a notification on August 13 saying that police officers no longer need to go to courts to testify in cases – they can do so from police stations itself. All police stations are then 'designated places' from where police personnel can record their testimonies via video conferencing.

This decision has created an uproar – a PIL has been filed against it in the Delhi high court and bar associations in Delhi have spoken out strongly on the matter.

The Supreme Court Advocates-on-Record Association, for instance, said that the notification creates a perception of "institutional imbalance, whereby the machinery of investigation is permitted to intrude upon and influence the solemn process of judicial proof". The Supreme Court Bar Association has said that “The measure not only undermines the sanctity of the judicial process but also compromises it.” The Delhi High Court Bar Association has said that it violates the basic tenets of justice and the principle of a fair trial.

In the name of not "inconveniencing" police personnel, is the LG willing to let judicial processes be compromised?

A recent article in The New Indian Express explains where this idea may have come from. It states, “In a recent review meeting, [Union home minister Amit] Shah had directed for setting up of an adequate number of video conferencing facilities to ensure smooth functioning and proper coordination between police and the courts.” The report does not ask why the LG’s notification precedes the setting up of these “facilities”.

Forgive my French, but jab camera hai hi nahin to gawaahi kaise hogi (if there's no camera, how will there be testimony)?

But putting the cow before cart is not the biggest problem here.

The police prosecutes 99% of criminal cases, the other 1% being private complaints in offences such as defamation. Criminal justice process starts with a FIR, a chargesheet has most of the evidence and witnesses. Too many cases in India have police personnel as sole the witnesses. A policeman says 'I saw this happen', becomes witness, and the conviction is delivered on his testimony alone.

Testimony in court – in case it wasn't self-evident – happens in court. There is a judge. The conduct of the witness is visible to everyone. This ensures that no one is able to prompt or nudge the witness to give one answer or another. The witness doesn’t get to say, 'Sorry my lords, there was a brief power/internet cut (during which I consulted my colleagues on what answers to give).' The accused’s lawyer gets to confront the witness with documents – please read what you have written here, whose signature is this. Cross examination inherently requires that no one is able to hold a teleprompter or written answers in front of a witness.

There is also the question of dignity. If the State is going to arrest people, threaten their liberty and have the spectre and stigma of conviction and punishment hanging over them, it must be willing to make its representative move their limbs and come to court. If not, then we may as well have the accused also testify from home, the judge also work from home.

These kinds of measures also, and we can argue over the degree, lower the barriers against malicious prosecution. If cops can frame people and remotely participate in “justice”, there is one less reason for them to think twice before acting with perverse motives.

Article-14 has a report about how a young Muslim boy, a Ganesha devotee, was lynched by his Hindu friends. The murdered boy’s father is quoted in the story:

“When we named one person that Suleman’s mother and sister saw that day, the police said we needed to bring evidence that he was involved,” said Khan. “How can the family of the victims be expected to gather evidence about the accused? ...The police should have, at least, investigated whether that person was there or not, instead of dismissing our statement.”

Policing in India

This notification is even more scary for everyone who is familiar with the way policing works in India.

In Mumbai, about three months ago, my former domestic worker came to see me, badly bruised. Her eye was swollen, she could not sit down because of wounds, she was walking with a limp. Her partner was beating her up everyday and had threatened to murder her. I tried to persuade her, for days, to go to the police with me. She kept telling me this is a bad idea, and I don’t understand.

Since I have the privilege of forgetting against memory, against my own experience, I kept arguing that the police exist to help. She finally agreed. At a police station in Mumbai, a head constable asked her, in front of me, questions about her sexual history, how many times she had slept with her current partner. How exactly did he hit her, where did he touch her. I exploded in anger and came to blows with this cop, who threatened to beat the hell out of me. Other cops intervened. We were sent to an inspector’s cabin. His tone was very different. He spoke softly. He asked the exact same questions. I felt dizzy. Nothing came out of this visit. My domestic worker didn’t need to say “I told you so” – it was written on her face.

In Delhi, I once called 100 when I saw a woman being molested inside a driving auto, she was screaming. The police spent 20 minutes asking me for directions. This happened on the main road in front of South Extension 2.

In Noida, my tenant told me she was being stalked by a man every single day. He followed her home from work, sang songs, cat-called. I… dialled 100. The police asked us if the stalker was still there and if we could see him. We said no. They said since we didn’t have him there, there was nothing they could do about it.

Saving time

Which brings me to the question, exactly what is the police in India busy with?

Standing by during riots? Stopping people from voting? Showering petals on kanwars? Kicking Muslims offering namaz? Beating up wrestlers? Being violent with students in a library in Jamia? Beating SSC aspirants?

I know the difference blurs more often than not, but all this can be done by BJP workers, it doesn’t have do be done by the police, with the bill being footed by the State. Instead of passing prima-facie unconstitutional notifications and making life good for them, the Union home minister and the LG ought to release the police from BJP duty so that they can do their actual job.

Dushyant Arora is a lawyer and research consultant.

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