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Custodial Violence : “No man shall be a judge in his own case”

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Custodial Death
File Pic: 10 Dec 2015, Seminar on Human rights and Police reform at Government Law College Mumbai, attended by Policemen, Justice Suresh, Justice Bannurmath(SHRC), Professors and Students.

Murali Karnam

In a case of custodial death of a young man in Vanrai police station, a Mumbai court sentenced four policemen for imprisonment of 7 years on February 3, 2016. This is one of 7,280 cases of complaints of various gravity against police in Maharashtra in 2013. The digital proof of victim being in custody, the evidence of co-accused in custody, impeccable recording of 56 injuries by doctors and an impartial deposition of executive magistrate went against police. The accused could not explain the causes of injuries. Yet, the lack of “direct witness” for torture diluted the murder into a case of lesser gravity.

The judgement reveals that police made every attempt to hide facts of the death: they feigned ignorance about the victim’s arrest when his family approached them; they changed victim’s name in hospital records. The ransacking of police station by victim’s relatives forced the government to act quickly. The court did not grant compensation. Instead it asked the Legal Services Authority to determine it.

To defend their case, both prosecution and defence invoked different judgements of the Supreme Court. There cannot be direct witnesses to torture in police custody and the court should be sensitive to the specific circumstances the citizens are subjected to, the prosecution argued. Rallying the Apex Court’s pronouncements, the defence argued that the police as accused are no different from ordinary citizens.

The standards of prosecution, hence, should be nothing but principle of proving beyond reasonable doubt. This is but a rare case of conviction, otherwise there is a need to examine the approach of the government towards custodial crimes in relation to crimes by citizens. The data of National Crime Records Bureau (NCRB), collected and compiled by police themselves, provide an excellent scope to understand it.

The NCRB classifies lawlessness of police into three categories: ‘complaints’, ‘human rights violations’ and ‘custodial crimes’. The impression it creates is that they are unrelated to one another and custodial crimes are not human rights violations. This taxonomy does not hide the reality. Citizens made these complaints to police authorities against policemen.

Though, around 50,000 complaints are reported every year, they are neither defined nor elaborated in terms of victims, gravity and loss. One wonders when offences of citizens are explained elaborately, why not offences of police? But the report elaborates number of ways the police are exonerated of allegations.

Illegal detention, torture, atrocities on SC/ST, indignity to women, fake encounters, extortion and disappearance of persons are considered ‘human rights violations’ but they are ‘excesses’ by police. Police found 62 of 108 cases of these violations false. Ninety-three deaths in custody were reported, but only 9 of them were due to physical assault by police and rest were cases of suicides, natural causes and illness, the NCRB explains.

These attempts of underplaying the actions of police are exposed by the facts that 416 policemen were dismissed and 4,637 were punished with serious disciplinary action. Of course, these are attempts to rescue them from prosecution.

Police excesses

In 2014, India recorded 47,774 ‘complaints’ against police, but only 3.7% of them ended in conviction. This conviction rate is in contrast to 45% of convictions, where citizens are accused. What explains this yawning gap in the applicability of rule of law to police and citizens? If citizen violates law, it is a crime; but if police violates law, it is termed as ‘excess’.

The narrative of NCRB is sympathetic to victims when citizens are accused, whereas it is sympathetic to the accused, in cases when police are accused. It reflects only the perceptions and filters in circulation to protect the administrators of rule of law.

The first level of filter is investigation of crimes of police by themselves and shutting the cases. In 2014, as many as 42% of cases were termed ‘false’ and closed. The gravity of this cover up is clear when we realise only 5.8% of cases against citizens are sealed as false.

Departmental enquiry is next stage of shielding in which one quarter of total cases are covered up. While disciplinary actions were initiated against around 30,000 personnel, majority of them were let off with minor punishments. The gravest of punishments, dismissal, was imposed on 416.

The police are made to pay with their employment but poor citizens with their lives. Do citizens have this tilted way of escaping from law? The magisterial and judicial enquiries then come in order. In its wisdom, Parliament thought that custodial violence should be inquired into by judicial officers rather the executive magistrates with whom, the police work closely.

The amended section 176(1) A of Code of Criminal Procedure mandates judicial enquiry into every custodial violence. Except Tamil Nadu, all the states have ignored it. While 93 citizens died in custody, judicial enquiries were ordered in only 14 instances.

In case the enquiry blames the police, the protection of section 197 of CrPC comes on the scene. What is meant for protection of officers from vexatious litigation is invoked to shield the violators. Cases where prosecution is initiated, half of them are rescinded by the governments.

When victims are influential, their relatives surmount these legal snags and drag the police to court. If the victims are successful in getting the offenders in uniform convicted, the governments get them out of prison as early as possible.

Maharashtra government’s attempt to release the killers of Lakhan Bhaiya in fake encounter is case in point. Such is the organised clout of police on political executive. This is a legally organised process of self-certification and exoneration by the state. This negates the fundamental principle of natural justice, ‘Nemo Judex in Re Sue’: “no man shall be a judge in his own case”.

The impunity of police is not a result of unwillingness of state to act but of a conscious design. Until these designed perceptions and administrative shields are not dismantled, police cannot be held accountable by state.

(Murali Karnam is a faculty at School of law at the Tata Institute of Social Sciences, Mumbai)

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