WATCH AND LEARN: CAN BODY WORN CAMERAS ENSURE

PROCEDURAL COMPLIANCE BY POLICE IN INDIA; LESSONS TO LEARN

INTRODUCTION
Over the course of last several decades, law enforcement agencies have used a
multitude of technological advancements to optimize effectiveness of their
performance and duties and their outcomes, notably during periods of scarce
resources and heightened public skepticism of law enforcement operations. With the
aim of incorporating such technological tools to improve the overall efficiency of
policing and increasing the trust of the community in the police personnel, the
utilization of Body Worn Cameras (“BWCs”) is increasingly advocated. This is done
primarily with the aim of fostering accountability for the actions taken by the police
officers during their duty. As such the main aim of this article is to evaluate how these
BWCs could be used in law enforcement action and whether they can be used to
ensure procedural compliance in investigation process and suggest some
considerations which should be kept in mind for any such policy.

POTENTIAL AREAS WHERE BWCS CAN BE USED

BWCs are recording equipment that police personnel wear. From the officer's
perspective view, these cameras record activities, events, and encounters with people
of the community. Only recently the Government of India introduced draft
notification for equiping traffic police personnel with BWCs and Dash Board
Cameras and very few states like U.P. have started equiping their police personnel
with BWCs. In such a situation, where the central and several state governments are
considering using this newly popularized technology, while their large scale use is
still not being done, it would be prudent to analyze whether they could be potentially
beneficial for improving Indian Criminal Justice System. In this process, we can use
experiences accumulated by countries that have previously implemented them on an
extensive basis, such as the United States.
The reason behind much emphasis on BWCs is based on deterrence and self-
awareness theories which imply that people change their behavioral patterns once
they realize they are under surveillance. This is because there is large body of
evidence indicates that people comply with societal standards and adjust their
behaviour when they are cautious that they are being monitored, and flowing from
this, same would apply not only to police officers but like wise to community
members with whom they engage.
According to International Association of Chiefs of Police Report, 2019, and many
other reports and studies in countries like U.S. and Australia which have implemented
policies for equipping their police force with BWCs, there are various areas within the
law enforcement mechanism where BWCs can be used such as allowing for additional
record keeping of police-community interactions, arrests, and consequential incidents;
officer and suspect contact; evidence for investigation and prosecuting purposes; and
providing further data for police personnel training. BWCs can be a way of ensuring
that proper procedure is followed while carrying out all these functions.
If we talk about procedure that is adhered to when arresting someone in India., there
have been plethora of cases which have stressed upon its strict compliance in order to
respect his dignity, which can be understood through landmark cases like Shri D.K.
Basu, Ashok K. Johri v. State of West Bengal, State of U.P, 1996, which even
provided for proper guidelines to be followed for the same. Effective implementation
of policies making use of BWCs could potentially be effective tools to ensure
procedural compliance by the police officers in arrest and detention related processes
or even normal police-citizen interaction as they would help in setting up a system of
accountability of the actions taken by Police officers. This can be particularly useful
in curtailing incidents of police brutality, excessive use of force, unlawful arrests,
among others. Similarly in other investigative processes, especially searches and
seizures also, BWCs could help in ensuring procedural compliance for instance, they
can be useful.

POTENTIAL OF USE OF BODY CAMERAS IN SEARCHES CARRIED OUT IN

INVESTIGATION PROCESS
There has been much debate around non-compliance of proper procedure by police
officers laid down in The Criminal Procedure Code, 1973 (“The Code”) and what
type of effect it should have on the trial. This includes the procedure concerning
search and seizure, for instance, under Section 100 of The Code, which stipulates
broad principles of search as well as procedural measures to preserve the privacy of
inhabitants of enclosed spaces. Section 100(4) of The Code stipulates the search to be
witnessed by at least two independent witnesses. This is often, however, not followed
properly and the search is carried out without any witnesses due to various reasons.
This ultimately raises questions on the admissibility of evidences obtained through
such search and seizures but courts have repeatedly held that such noncompliance
would not vitiate the prosecution trial and only when it adversely affects the other
party would it vitiate it
In light of such a position it can easily be wondered whether a mandatory use of
BWCs when carrying out Searches under The Code or any other Specific legislation
would help in understanding the gravity or impact of any procedural compliance that
is not done or how the search itself is not completed. With the awareness that all such
activities will be recorded and would possibly be scrutinized, if any objection is raised
against them, police behaviour can be expected to improve resulting into increased
adherence with procedural legislation along with any specific legislation under which
the search is being conducted, for instance, those carried out under the Narcotic Drugs
and Psychotropic Substances Act, 1985. This would even help to ensure that no
illegality is committed by the officers themselves while carrying out the search of the
concerned premises.
One proposed way through which this can be achieved is by developing a
presumption to be applied in circumstances where a search or seizure is important,
such as a search that ends with confiscation of evidence from defendant's premises,
which is subsequently utilized to prosecute him. For instance, in a criminal case
where the legality of the search and seizure is being challenged due to submission of
evidence that the state purports to have admitted against the defendant in trial, the
dearth of a recording of the relevant search and seizure would pave way to a
presumption that the defendant's account of what transpired must be acknowledged.
This way, say, even if no witnesses are available and a search is nevertheless
undertaken, it would not result into miscarriage of justice.

CONSIDERATIONS WHICH HAVE TO BE KEPT IN MIND BEFORE THEY

CAN BE IMPLEMENTED
Despite all these potential uses and benefits of using BWCs, they come with their own
set of considerations and problems which should come as warning signs before
implementing any such large scale policy mandating their use.
Firstly the most obvious one, that is, the large scale cost of implementing any such
policy that requires their use. Implementing BWCs within organizations can be costly
for the organization and is an ongoing investment.
Secondly, as stated by U.S. Department of Justice, before initiating any programme
associated with use and implementation of BWCs, an organization should create a
comprehensive plan and consult with a diverse range of criminal justice stakeholders
including community members. For addressing the six most prevalent BWC policy
areas which are video capturing, watching, use, release, storage, and audits/controls,
these personnel should devise working groups to help build suitable codified policies
and procedures . It would also require comprehensive communication and education
programme directed as various stakeholders like victims, community, media, law
enforcement agencies regarding the intention behind their use and situations they are
to be used in. Indian police personnel particularly would be required to get
accustomed to using such technology which is not its strong suit yet.
Thirdly, there is also concern about how the footage from BWCs might be stored and
used. For example to what extent can a person access a video recorded by a BWC and
till when an agency can keep a video recording, so quite evidently any such data
storage, disclosure and retention related decision would have huge impact on how the
policy turns out.
Fourthly, BWCs raise many previously unconsidered privacy issues. Whereas
motionless surveillance cameras typically encompass only public areas, BWCs would
enable officers to capture inside private premises and film sensitive situations that
may occur while performing their duties.
Fifthly, to what extent consent would would play a role in such a situation. For
instance whether the police officers would be required to inform the person that they
are being recorded and if so to what extent in what situations and to what extent.

CONCLUSION
BWCs if used carefully, can help bolster the policing profession. These cameras can
help promote governmental accountability and openness, as well as be effective tools
for raising officer professionalism, strengthening officer training, safeguarding
evidence, and documenting public encounters. Legislators must consider the
implications of BWCs on police-community relations, privacy, trust, and legitimacy,
as well as concerns relating to procedural justice as they raise practical and policy
reservations, both of which authorities must carefully consider.