Who Will Police the Police?

By Aparna Singh

The above question posed by the late Justice V R Krishna Iyer in the year 1980, unfortunately, still remains unanswered. The recent incident of the egregious killings of Jayaraj and his son Bennix inside a police station in Thoothukudi, Tamil Nadu, has once again led to a public clamour against the excesses routinely practised by the police. The deceased were arrested for keeping their mobile shop open in violation of the lockdown restrictions and later remanded to judicial custody. The two were brutally assaulted by the police in the custody which resulted in their death. Sadly, this episode of custodial violence is not an aberration from the normal police practice. According to Justice A.P. Shah, the culture of torture is endemic to the Indian policing system. This gruesome reality is highlighted by the  Amnesty International Report which recorded 894 deaths in judicial custody and 74 deaths in police custody between the months of January and August (2017) in India. Another report documented a total of 1,723 cases of custodial deaths (police and judicial) in India from January to December (2019). It is estimated that in India, on an average,  five people die every day in custody. These figures are reflective of the apathetic attitude of democratic institutions towards the issue of custodial torture in India.

The recent case of custodial violence has brought serious maladies suffered by the Indian criminal justice system to the fore. In this piece, I shall discuss the lapses committed by the police and the magistrate in Jayaraj-Bennix case. Further, I shall explain the legislative and judicial measures adopted to enforce accountability in cases of custodial deaths. In the end, I shall critically analyse the current legal position that perpetuates a culture of immunity thereby shielding the wanton exercise of power by the police officers.

Grave irregularities by the Police and the Magistrate

This case is symptomatic of a larger malaise underlying the cruel methods of enforcement of lockdown rules by the police. Normally, Section 188 of the Indian Penal Code [“IPC”] which is a non-cognizable and bailable offence carrying an imprisonment of only one month is invoked in case of disobedience of a lockdown rule. However, in this case, in addition to Section 188, the police registered the FIR under Sections 353 and 506 of the IPC which are cognizable and non bailable offences. This shows a senseless tendency on part of the police to harass the deceased by adding cognizable and non-bailable offences in the FIR. This conduct flies in the face of the guidelines laid down in Arnesh Kumar case wherein the Supreme Court noted that an arrest should not be made merely because the police officers have power unless there is justification for the exercise of that power. Further, the manner in which the arrest was effected is in complete disregard for the 11 principles enunciated by the Supreme Court in the landmark case of D.K. Basu v. State of West Bengal.

This case also reeks of perverse exercise of power by the magistrate who remanded the deceased to judicial custody in a mechanical manner. The Constitution has attached significance to the role of magistrate by requiring the accused to be produced before him within 24 hours of the arrest. [Article 22(2)]. Section 167 of the Code of Criminal Procedure, 1973 [“CrPc”] states that where investigation cannot be completed within 24 hours of the arrest, the accused cannot be further detained by the police unless the magistrate authorizes his detention in police or judicial custody. In Manubhai Ratilal Patel v. State of Gujrat, the Supreme Court stated that “the act of directing remand of an accused is fundamentally a judicial function. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.” In Jayaraj-Bennix case, the order of remand by the magistrate for a minor offence involving violation of a lockdown norm is unwarranted, considering that the Supreme Court has suggested the States to decongest jails in wake of COVID-19 by granting interim bail to undertrial prisoners accused of minor offences. Further, the magistrate remanded the deceased despite the presence of serious injuries on their body. Thus, the magistrate is complicit in the custodial killings by failing to perform his constitutional role of keeping a check on the excesses committed by the police. Regrettably, this casual approach of the magistrates while granting remand is not an exception, rather a norm in practice.

Measures undertaken to enforce accountability

The Supreme Court has been a crusader for police reforms and prison justice. It has intervened in cases of custodial violence and issued guidelines to curb the arbitrary power of police to arrest. In Joginder Kumar and D.K Basu, the Court passed a slew of directives which received legislative backing through the Criminal Procedure (Amendment) Act, 2008. However, in practice, these guidelines and provisions have served as only parchment barriers to the police violence.

Section 176(1A), CrPc provides a mechanism for holding an independent inquiry by a Judicial Magistrate where a person dies or disappears while in judicial or police custody. This provision intends to create accountability for police excesses through compulsory inquiry by an impartial judicial officer. However, reports suggest that this provision is observed more in its breach than in its compliance. In Jayaraj-Bennix case, it is not surprising to note that the judicial inquiry envisaged under Section 176(1A) was not conducted until the Madras High Court took suo moto cognizance of the matter and ordered such inquiry.

In past, the National Human Rights Commission [“NHRC”] has done a laudable job in ordering interim compensation to the victims of custodial violence. It has instructed the States to send an intimation about any custodial death within 24 hours of its occurrence. It has also issued guidelines for conducting judicial inquiry into these deaths. However, these instructions have not been complied with owing to the advisory nature of NHRC.

Thus, these piecemeal actions in the form of Supreme Court directives or legislative amendments are ineffective in dealing with the menace of custodial violence.

Perpetuating a culture of immunity

Although IPC penalizes violence by the police officer that causes hurt to the sufferer for the purpose of extracting confession [Section 330 and 331], however, these provisions have hardly led to any conviction of the delinquent officers. This harsh reality is captured by the National Crime Bureau Report which states that out of 100 custodial violence cases in 2017, there are zero convictions. Criminal statutes are inadequate in ensuring convictions in cases of custodial violence. The Supreme Court has repeatedly noted the need to amend the Indian Evidence Act, 1872 by providing for presumption against police officers, where the injury is proved to have been suffered while the victim was in the police custody. The Law Commission’s 113nd Report and 152^nd Report also made similar recommendation. In Dalbir Singh v. State of UP, the Supreme Court remarked that strict adherence to the establishment of guilt beyond reasonable doubt in custodial violence cases adds unreasonable burden on the prosecution since there is no direct evidence implicating the offending police officers. It called upon the Courts to adopt a realistic and sensitive approach while dealing with these cases.

Another factor that has led to burgeoning cases of custodial violence is the requirement of sanction of the Government for the prosecution of police officers. Section 197 of the CrPc bars any Court from taking cognizance of any offence alleged to have been committed by a public servant while ‘acting or purporting to act in the discharge of his official duty’ except with a previous sanction of the Government. This provision grants de facto immunity to the excesses committed by the police. While it can be argued that police violence is not part of official duty, the stance of the Supreme Court has been ambiguous due to which unscrupulous police officers easily exploit this privilege from prosecution. The Court has given wide interpretation to the phrase ‘purporting to act’ to include even activities done under the ‘colour of office’. In Sankaran Moitra v. Sadhna Das, the Supreme Court stated that ‘Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted’. However, in Devinder Singh v. State of Punjab, it was held that beating a person is not part of official duty and thus no sanction was required. Noting this anomaly in the approach of the Supreme Court, the Law Commission’s 152^nd Report acknowledged the need to insert an explanation to Section 197 clarifying that any offence committed by a public servant against the body of a person in his custody shall not be part of his official duty. These recommendations and judicial directives seem to have fallen on deaf ears since no action has been taken even after decades.

The present laws are ill-equipped to curb police torture and the absence of a standalone legislation against torture impinges upon Article 21 that guarantees protection against torture. In 2017, the Law Commission in its 273^rd Report, recommended the government to ratify United Nations Convention Against Torture by enacting a domestic legislation against torture. In 2019, the Supreme Court in Ashwini  Kumar v. Union of India, rejected a petition which sought a direction to the Government to implement a comprehensive legislation against torture on the ground that it is a policy matter. The Court took an evasive approach and turned back on its consistent efforts to assist in law making in case there exists a void in law.

Conclusion

In India, police violence has also gained cultural legitimacy through depiction of ‘dabangg’ police officers in movies who routinely indulge in torture and are hailed for their heroism. The tragic deaths of father-son duo must serve as a clarion call for bringing a change in popular opinion about the role of police. The Indian Police were organized on the basis the Police Act of 1861, a colonial era legislation. In 2006, the Supreme Court, in a far-reaching judgement recognized the need to replace this archaic statute with a modern legislation based on democratic principle of rule of law. Most States still remain in contempt of this decision. It is high time that the issue of police reform be taken seriously by the legislature. Coming at the heels of sensational killing of George Floyd in Minneapolis, U.S, the deaths of Jayaraj and Bennicks are a grim reminder that the menace of police violence is universal and concerted efforts are required to fight this battle against torture.

[ The author graduated from National Law University, Jodhpur in 2020.]