The death of P Jeyaraj (62) and his son J Bennix (32) due to alleged custodial torture in Sathankulam town near Thoothukudi in Tamil Nadu sparked national outrage on social media. The father-son duo was taken into police custody for violating Covid-19 curfew hours on the evening of June 19. They died four days later.
Within a fortnight of this incident, the news of the murder of eight policemen in a village near Kanpur shook the nation. The chief culprit, gangster Vikas Dubey, was ‘arrested’ in Ujjain, Madhya Pradesh on 9th July, after six days of hunting. As ominously predicted by many after he was arrested, Vikas Dubey was fired at on 10th July when he tried to flee after a police convoy taking him to Kanpur had overturned. As per the police, Dubey allegedly snatched the pistol from one of the four injured policemen and was injured in an ‘encounter’. Doctors declared him dead at the hospital.
Hardly a week had passed that a yet another gut-wrenching incident of a Dalit couple consuming pesticide and being assaulted by the police in Madhya Pradesh’s Guna district hit the headlines.
The inevitable consequences of unbridled power exercised by police and bureaucracy in a country ridden with caste, class and gender inequalities, perpetuated by institutional power structures, have come in the public gaze once again, more so, in the backdrop of the countrywide restrictions imposed on public movement due to COVID- 19.
Civil liberty consists in the abstract of a set of rights, including basic rights that are due equally to all human beings. These rights, often known as basic rights, fundamental rights, natural rights, or human rights are generally inviolable and cannot be infringed upon on grounds of religion, caste, sex, race, place of birth, etc. The principle underlying the Charter of the United Nations is that the recognition of these inalienable rights and guaranteeing them equally to all members of the human family is the foundation of freedom, justice, and peace in the world.
Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights provides that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), adopted by the United Nations General Assembly(UNGA) in 1984, defines torture as – “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed.” The convention places an obligation upon state parties to take all effective legislative, administrative, judicial, or other measures to prevent all acts of torture in any territory under its jurisdiction.
For several decades now, the Indian police have earned reasonable criticism from various human rights activists and organizations for their high- handedness and the use of third-degree torture tactics to get confessions out of the accused. Still, these issues find next to negligible representation in the prime time shows of mainstream media. The normalization of police brutality and extrajudicial killings in popular public perception, it seems, has reached a point where we tend to be oblivious of the excesses committed by the men in khaki.
Art, cinema, and literature can either serve as mirrors or windows for a community. Cinema, like elsewhere, has a major role in building the conscience of Indian society. The larger than life Bollywood actors playing the role of super cops- responsible not just for upholding the rule of law but also hunting down anti-social elements- have glorified the inbuilt violence used in pursuing these ‘quintessential’ objectives. The romanticism created around the notion of ‘tyag’ (sacrifice) of their own personal safety by these protagonists in pursuance of maintaining law and order not only justifies but also lends glamour to the violence which is exemplified by risky stunts performed using high- end technology. Movies ranging from Salman Khan’s Dabangg to Akshay Kumar’s Rowdy Rathore and Amitab Bacchan’s Zanjeer to Rani Mukerji’s Mardani – all have sincerely contributed in further blurring the thin line separating the executive and adjudication branches of the state. The public jubilation at the alleged extra-judicial killing of rape and murder suspects in Hyderabad last year did not come as a surprise in a country tired of long drawn judicial hearings. The sigh of relief heaved by several of our politicians and honorable legislators hailing the “encounter” and congratulating the ‘leadership’ for the ostensible reason that “at least one daughter, one sister got justice” reflected the stark reality of depleting public faith in the criminal justice system and institutions responsible for delivering justice.
The other aspect of this issue stems from the dominant political narrative running in the country. The portrait of strong leadership demands demagoguery and an equally cold-blooded imagery of police as its framework. Since ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’, quick disposal of cases, when they come under media scrutiny and have the potential to damage this image, becomes essential. The phenomena of criminalization of politics and the politicization of criminals have led to the establishment of a symbiotic relationship between the leaders and the local godfathers with state agencies playing an instrumental role in accruing mutual benefits. Not nipped in the bud, these mafias go on to become the messiahs for local caste-based groups. Thriving on money and muscular power and wielding the clout to provide stable vote banks, these Bahubalis are ‘kowtowed’ by leaders across the party lines. Though the extrajudicial killings- defined as the killing of a person by governmental authorities or individuals without the sanction of any judicial proceeding or legal process- may serve the ostensible purpose of quelling public outrage by delivering quick justice to the victim, the perpetrators themselves become the victim of the state as they are denied the right to free and fair trial. When high- profile gangsters like Vikas Dubey are apparently murdered for murder, many questions remain unanswered. Many secrets and an equal number of political and police connections serving as backbones for the culture of impunity get buried with the dead. When the due process of law is ignored, the risk of falsely implicating people to save the real masterminds also runs high.
Article 21 of the Indian Constitution provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The right to life is supreme and basic. While overruling the controversial emergency era verdict of 1976 by which citizens were denied the right to approach a court to challenge detentions during the proclamation, Justice D.Y. Chandrachud, in 2017, remarked that, “The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.” The Supreme Court has consistently held that custodial torture violates the right to life. The court, in Sunil Batra v. Delhi Administration, remarked that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.” Further, Section 54 of the Code of Criminal Procedure extends safeguard against any infliction of custodial torture and violence by providing for examination of the arrested person by a medical officer.
India’s commitment to preventing and abolishing torture as well as punishing its perpetrators is perceived as extremely weak in the international forum. Though India signed the UNCAT on October 14, 1997, it has not ratified it to this day. The National Crime Records Bureau (NCRB) reported that between 2000 and 2016, there were 1,022 deaths in police custody of which FIRs were filed only in 428 cases. Even out of this, charge sheets were filed only in 234 cases. A report titled “Torture Update India” placed before the Rajya Sabha on 14th March 2018 by the Union Ministry of Home Affairs revealed that 1, 674 custodial deaths took place between April 2017 and February 2018. This turns out to be an appalling figure of over five custodial deaths per day. The ostracization of those propagating ideologies which the state perceives as opposed to its stature has further given a free hand to the police officers who have internalized authoritarianism by believing in no longer justifiable hierarchy based on class and colonial privilege. The acquiescence to the display of machismo in popular culture is exacerbated by the caste, class and gender fault lines. More often than not those at the receiving end of this ruthlessness belong to the socio- economically backward sections of the society. The grim intersectionality of patriarchy, caste and class and the havoc that it can wreak on the women in brown cultures through institutionalized means of violence is best captured in the images of cops using their awfully dreaded batons to disperse crowd of women gathered to take rations from PDS shops.
The National Human Rights Commission (NHRC) has urged the government time and again to recognize torture as a separate crime and codify the punishment in a separate penal law. The National Commission to Review the Working of the Constitution (2002) set up by the Law Ministry also specifically recommended for ‘prohibition of torture and cruel, inhuman or degrading treatment or punishment’ as one of the additions to the fundamental rights chapter as Article 21(2). Giving credence to the need of the hour, Mr. Ninog Ering, Member of Parliament from Arunachal East, had introduced a private member’s bill in the winter session of the Lok Sabha in 2018 to provide for punishment for torture, other cruel, inhumane or degrading treatment inflicted by public servants or any person with the consent or acquiescence of any public servant. Given the little importance that a private member’s bill commands in Parliament, “The Prevention of Custodial Torture Bill, 2018” was never brought up for discussion in the Lok Sabha. This lackadaisical attitude towards a private member’s bill fails its purpose of drawing the government’s attention to what individual MPs view as issues and gaps in the existing legal framework. Hence, the requirement of a legislative intervention on pressing issues is often overlooked. The incidents of custodial torture and extrajudicial killings cause only momentary public uproar that is limited to an elite university club of social justice warriors on social media platforms. Once the incident fades away into time, everything is forgotten.
The promise of constitutional safeguards in face of this prolonged process of normalization and fetishization of police brutality is akin to English Philosopher Thomas Hobbes’ sense that an individual can have liberty even when living under despotism, as long as the despot does not forcibly prevent that individual from doing as he or she desires, despite the fact that the individual’s desire and judgments may have adapted to the conditions of despotism and even to direct threats by the despot. (Catriona McKinnon, 2012)
Civil liberty must harmonize with natural liberty. Legal rights must help to clarify basic natural rights by declaring their concrete meaning within a particular community. The government is required to enact and enforce laws that distribute such legal rights, so as better to preserve and secure basic rights.
Therefore, besides fixing loopholes in the criminal justice system and reforming the way policing is done in India, there is a dire need to bring about a change in public perception on police brutality. Ayushmann Khurana’s film titled Article 15 does serve as a window for the masses of this country to look beyond the glass- ceiling and realize that the essential role of the police is to serve the society faithfully and uphold the rule of law and secure all the citizens of India socio-economic and political justice and equality.
The article has been written by – Vijay K. Tyagi, an LL.M. (Constitutional Law) candidate at Indian Law Institute and Ex-LAMP Fellow who drafted the Prevention of Custodial Torture Bill, 2018 under the mentorship of Mr. Ninong Ering, (Lok Sabha MP, 2014-19) and Himanshu Khanna, a second-year student pursuing B. A. (Hons.) Political Science from Kirori Mal College, University of Delhi.
The views expressed by the authors are personal
Image Courtesy – Wikimedia Commons