By: Piyush* |
The dastardly act committed in Thodukuddi, Tamil Nadu needs extensive scrutiny so as to succinctly understand the ramification of the act. [i] The manifold angularity of this incident should not be reduced to this particular tragedy. Instead, variegated facets should be probed comprehensively in order to ascertain the culpability of megalomaniac perpetrators masquerading as police. The blot on the police department is indeed indelible and will never vanish. Perhaps, the state can avert this danger if they resolve to punish even the slightest act of sabotage intended to help a few criminals masquerading as the police. What is needed now is not only an affirmative action against those errant police officials but the resolve of state to discourage any gesture of support to them. The state should endeavour to deal with those perpetrators with as much objectivity as possible. This is only possible when there is no prejudice and preconception entailed by any vested interest groups.
Happenings of That Day
The father-son duo, namely P. Jayaraj and J. Benicks were arrested by the police officials on the pretext of violating the rules of lockdown by opening the shop more than the permissible time. It is alleged that they had an altercation with the police officials which led to their arrest and torture thereafter. It seems expedient to discuss how he was subjected to barbarism in the prison. It is believed that they both were taken to the police station, were beaten by lathis and batons and thrashed on the grounds. They were profusely bleeding and finally succumbed to their injuries[ii]. The incident was so gruesome that it shocks one’s conscience to write the detailed occurrence of the event. This needs to be considered in contrast to what would have happened if the due process of law was followed. The maximum punishment that could be awarded for breaching the rules of lockdown could have been three months of imprisonment[iii]. With the maximum stretch of one’s imagination, one will fail to fathom the anomaly it encompasses. Therefore, it insinuates the existence of ulterior motive. It is believed that the deceased had sympathetically approached other shopkeepers and asked them to coalesce with each other to extend the timing of the lockdown. The police officials got the whiff of his plan and they took this as a challenge to their authority.
Rhetoric Always Leads To An Unobtrusive Tyranny
The said incident should be examined in contrast with the Hyderabad encounter. The solidarity extended to the police by the people of this nation paved a new way and narrative for them. However, they mistook this appreciation as a validation of their sovereign authority.
It certainly seems that the complacency of Hyderabad encounter resulted in the gruesome murder of Tamil Nadu. This is the right time to reflect and abstain ourselves from conferring any arbitrary powers to the police personnel. It is the responsibility of the Governmental authorities to keep a balanced check on their powers in order to defuse any future excesses. After all, our ancestors had shed blood for this due process of law. Thus, any aberration from this principle is an anathema to the Indian democracy.
Res Ipsa Loquitur
In the last three years, the National Human Rights Commission (NHRC) has received nearly 5,300 complaints of custodial deaths. It should not be forgotten that it is only a fraction of the actual number of such deaths. The famous quote, “the proof of the pudding is in eating” seems apt in this case. In the cases of custodial torture, the colossal number exhibits this scenario. Nonetheless, the data related to custodial deaths are mainly available with most of the NGOs as they frequently conduct surveys on these issues[iv].
Therefore, it could be fathomed that if the very reporting has to pass through so many hurdles, then what will happen in the investigation, prosecution and successful conviction. India’s record in a conviction for custodial torture is very abysmal. Between 2016 and 2018 only 26 police officials were convicted[v]. Above all, the real conduct of police officials is manifested on ground zero. Almost every person in their life is privy of some excesses and exercise of arbitrary power by them.
The Approach of The Court
The Hon’ble Supreme Court has a glorious history of dealing with the atrocities committed by the police personnel. It has laid down a manifold of precedent and has reprimanded them on various occasions.
Notwithstanding the fact, that the Hon’ble Court has taken cognizance of this diabolical act even before India signed the UNCAT (United Nations Convention Against Torture). In Raghubirsingh v. State of Haryana 1980[vi], the Court stated that “We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scarce in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death[vii].” These sentiments were revisited in Francis Coralie Mullin v. Union Territory of Delhi (1981)[viii] and Sheela Barse v. State of Maharashtra (1987)[ix], where the Court condemned cruelty and torture as violative of Article 21[x].
The most famous judgment of the Supreme Court, which has meandered the way the police functions now, is DK Basu v. State of West Bengal[xi]. However, it has failed to provide the threshold required for revolutionary reforms in the system. The aforesaid judgment framed a set of non-exhaustive comprehensive guidelines, detailing the right of arrested persons particularly endeavoring to curtail the pervasive conduct of police officials. Two conspicuous facets of these guidelines were the right to know and the right to life. The Hon’ble Court has sought to curb the power of arrest and ensure that the arrested person is made aware of all critical information regarding his arrest.
However, one should not forget that it took a decade and an amendment to give statutory backing to these judicial guidelines. The most significant judgment to this effect was Prakash Singh v. Union of India[xii], where it proposed new legislation for governing the police forces, which is to be passed by each state across India. The Hon’ble Court directed each state to set up a grievance redress mechanism. It is envisioned that it will bring more accountability to the police department. Unfortunately, it took reportedly 11 years to the state of Tamil Nadu to actually implement the Prakash Singh’s judgement in spirit[xiii]. Moreover, some other states are yet to implement it.
Therefore, considering this slew of judgement, it seems gratifying as to how the Hon’ble Court has been vigilant all these years. However, when there was an opportunity to make a concrete decision, it failed us. India signed the UNCAT (United Nations Convention Against Torture) in 1997. However, it is yet to ratify it. Furthermore, in 2010, The Prevention of Torture Bill, 2010[xiv] was passed by the Lok Sabha and was later sent to the Rajya Sabha, which then was referred to the Select Committee. Nevertheless, the Committee submitted its report but no action was taken. In 2017, the Law Commission submitted its 273rd amendment and an accompanying draft torture law. Based on this development, a petition was filed in the Supreme Court, seeking the enactment of the torture law through the court. To one’s dismay, the petition was dismissed on grounds that the government cannot be compelled to make law by mandamus since the treaty ratification was a political decision and that it was a policy matter[xv]. Thereafter, several petitions were filed but they bore the same fate.
History is replete with examples, as to how the Honourable Court has come to the rescue of society in multifarious matters. Whether in using convention on the elimination of all forms of discrimination against women to reform the law ground workplaces sexual harassment; or customary international law in environment case; or the right to privacy[xvi]. Thus, the Court should not avoid this issue now and should strive to take affirmative action by setting a robust precedent.
Subsequently, it is apparent and conspicuous now that there is reluctance across the political spectrum to consider this issue. The lackadaisical approach of successive government exhibits their hypocrisy. It is evident now that all Government enjoys the status quo, where the police are used as a tool for self-preservation. Any disequilibrium is not politically desirable.
Accountability Is The Need of The Hour
The modus operandi of some police officials is highly despicable and deplorable. It is disconcerting to see how brutally and callously, two innocent lives have been taken. Therefore, it seems exigent to establish accountability on the part of the police department.
First and foremost, is the need for a scientific investigation. The time has come for the Judiciary to start embracing scientific investigation such as narco-analysis, ensuring video recording of the investigators. Subsequently, passing orders for installing closed-circuit television cameras inside the police station, etc. All this measure should be employed in order to delegitimize and dismantle the archaic practices reliant upon the use of force as a means to extract the truth[xvii].
Secondly, it should be mandatory for all the police officials to install cameras in their car and secret cameras in their uniform. It will help to achieve two nexuses. That is, complete and comprehensive surveillance and succour in tackling down corruption.
Lastly, as suggested by the Law Commission of India[xviii], that if a person dies in police custody, then the burden should be on the police to show that they are not responsible for it. Currently, the law requires the prosecution to prove that the police caused the death. Therefore, shifting the burden of proof will make a huge difference in the long run[xix].
Time For A Tectonic Shift
The time has come when the society should conscientiously take some actions to fix this menace of atrocity. At a global level, there is a surging outrage against the unwarranted actions by the state police. For instance, there was a wave of resentment in Minnesota, America after the killing of George Floyd, a 46-year old Black American man, that led to nationwide outrageous protest.
Nani Palkhiwala had once said that in order to awaken the system we have to assault on the senses, though the context was different at that time. It seems perfect to borrow this expression for today’s grim reality. Indeed, we have to assault on the senses of this inept supine system to make some indispensable reforms. The reigning police department and curtailing their arbitrary power is the need of the hour. One yearns that this tragedy should be a corollary for the Parliament to ratify the convention and bring law to that effect.
At last yet importantly, with the growing prevalence of accountability across the globe, the state cannot have any arbitrary power vested in their hands, which they could use unilaterally at the behest of politicians or orthodox society. Atrocity and persecution have become a new norm in the society, almost every other day we hear new savagery unleashed on some innocent people[xx]. With the emergence of growing resistance against this tyranny, the time has come when a strong voice has to be raised against them. However, two axiomatic facts need to be addressed in this scenario. Firstly, that it shouldn’t be seen from the perspective of political conspiracy and secondly, that though these tragedies were unleashed systematically, irrespective of the party in power, there was always a state of impunity among the police personnel. Therefore, this needs to be stopped and the department should be held accountable for their horrendous act.
After all, any democracy functions at its best when all the branches are working scrupulously.
***
* The author is a student at New Law College, Bharati Vidyapeeth, Pune.
[i] Editor Team, UN comments on Thoothukudi custodial deaths, says every death needs to be investigated, THE INDIAN EXPRESS, July 12, 2020. [ii] Arun Janardhanan, Explained: How Tamil Nadu Police’s brutal act of revenge claimed lives of a father and son, THE INDIAN EXPRESS, July 4, 2020. [iii] Indian Penal Code 1860, Section 188 [iv] Ajit Prakash Shah, India’s torture culture needs to end now, THE HINDU, July 3, 2020 [v] Anup Surendranath & Neetika Vishwanath, Police violence and how some lives do not matter, THE HINDU, July 4, 2020 [vi] Raghbir Singh v. State Of Haryana,1980 AIR 1087, 1980 SCR (3) 277 [vii] Raghbir Singh v. State Of Haryana,1980 AIR 1087, 1980 SCR (3) 277 [viii] Francis Coralie Mullin v. Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516 [ix] Sheela Barse v. State of Maharashtra, JT 1988 (3) 15 [x] Ajit Prakash Shah, India’s torture culture needs to end now, THE HINDU, July 3, 2020 [xi] D.K Basu V. State of West Bengal, (1997) 1 S.C.C. 416 [xii] Prakash Singh v. Union of India, (2006) 8 S.C.C. 1 [xiii] Prakash Singh v. Union of India, (2006) 8.S.C.C. 1 [xiv] PRS legislative Research, The Prevention of Torture Bill, 2010, July 29,2010 [xv] Ajit Prakash Shah, India’s torture culture needs to end now, THE HINDU, July 3, 2020 [xvi] Id. 8 [xvii] Abhinav Sekhri , Police reform and the crucial judicial actor, THE HINDU, 2nd July [xviii] Saba, 273rd Law Commission Report on Implementation of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation, SCC Online Blog, November 3, 2017 [xix] Anup Surendranath & Neetika Vishwanath, Police violence and how some lives do not matter, THE HINDU, July 4, 2020 [xx] Milind Ghatwai, A night at a police station, August 18, 2019
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