Recent custodial deaths show that despite the laws of arrest being stringent in India, there are few safeguards like abroad. An effective legal system, education and good pay could mitigate police violence
By Shaan Katari Libby
In a world reeling with illness and consequent economic hardships, recent reports of brutality at the hands of the police have been like a kick in the shin, causing us to collectively buckle. The brutal cases include George Floyd in the US, Sean Rigg in the UK and closer home, shopkeeper P Jayaraj and son J Bennicks who were tortured to death in Sathankulam police station in Tamil Nadu.
Economist James Robinson asks on the excellent BBC Podcast, “The Big Idea, Why Are Some Nations Rich”. He runs through various possible factors such as geography, resources, culture, even the after-effects of colonialism, and finds in the end that the big determinant is a legal framework that works. In other words, a reliable, effective, impartial, corruption-free legal system and government.
So what is it about the police framework that has engendered the kind of venom that it has, world over, and why and how has this happened? A simple test would be to ask: If someone stole from you or hurt you, would you feel confident going straight to the police or would you hesitate or try to put it behind you because going to the police would be the last resort. Does the police instil faith and trust or fear and distrust? For most of us today, sadly, it is the latter. This begs the question: How has the police come to this? They were created to protect citizens and guard against antisocial elements/criminals. The laws of arrest are fairly stringent in India. Under Section 41 of the Criminal Procedure Code, 1973 (CrPC), an arrest by a police officer can be made without warrant only in cognizable offences like murder, kidnapping and so on. In all other cases, arrests must be with a warrant in non-cognisable offences.
Article 21 of the Constitution provides: No person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure must be right, just and fair and not arbitrary, fanciful or oppressive. The arrest should be legal and justified. The detainee’s rights are still protected under the Fundamental Rights.
The right to be informed of the grounds of arrest exists under Section 50 of the CrPC and Article 22 of the Constitution. It is the duty of the police officer to inform the detainee and also state whether the offence is bailable or non-bailable. One does not have to wonder if the men in Thoothukudi got to make that final phone call. It is fairly obvious they received none of these rights.
Subclause (1) of Article 22 states: No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. These unfortunate souls got no such opportunity.
Subclause (2) of Article 22 says: “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
Article 22(3) and Article 22(4) provide certain exceptions for preventive detention—enemy aliens or those who have previously been arrested under preventive detention or similar law. These preventive detention laws have been called into question repeatedly but to no avail.
Rights guaranteed should not be ignored—and by suspending rights blatantly we are sending a clear chilling message that the citizen is entirely subordinate to the State. Something that has come to light as a result of the Tamil Nadu case is this notion of a band of random citizens making up a group, calling themselves “Friends of the Police”, and then proceeding to join in with the police’s sadistic torture. This is shocking, unethical and most importantly, illegal. Torture itself is not permitted under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which India is a signatory as of 1997. Torture is also banned by the Prevention of Torture Bill, 2017.
Unlike India, the UK, under the Police and Criminal Evidence Act, 1984, has numerous safeguards, including 24-hour time limits for detention save in specific circumstances where an extension is possible with the sanction of a magistrate. There are also various requirements like six-hourly checks on the prisoners, that they be permitted a phone call, access to legal help and so on.
How do we bring back faith in the system in India? The police may technically be under the Union government, but we need to somehow ensure that they are not their lackeys. How one does this is the question. Also, education is the key. At present, a police officer in India has no formal qualifications. Individuals wishing to join the police have no compulsion to study criminology. Framing an education model suited to policing should include courses on domestic crime, hate crimes, mob lynching, murders, honour killings, child abuse, road traffic offences, accidents involving medical trauma and so on.
In the US, there are police academies and worrying freelancers like Dave Grossman, a law enforcement trainer, teaching killology. In England, the police undergo courses in criminology, and in Germany, they have specific courses in police studies. We need to ensure that our police is properly trained. And in the age of online learning, there is no time like the present to make continuous education of the police force available and mandatory, just like sexual harassment law modules.
Apart from a massive revamp via re-education of the police, we could also bring back faith in a broken system by standing by the many brave and honest police men and women who try to follow the law. For instance, Constable Sunita Yadav who stopped Prakash Kanani, the son of minister of state for health, and two of his friends in Surat. The trio was reportedly driving recently during curfew hours. They were arrested under IPC Sections 188 (disobedience to order duly promulgated by public servant), 269 and 270 (negligent and malignant act likely to spread infection of disease dangerous to life). Audio clips of the ugly exchange of words between them and Yadav were released, with her being threatened. This was followed up with orders for her to be transferred. If we are really to believe in the rule of law, then we need to understand that rules and laws apply to all equally. Her transfer should be revoked. Similarly, the constables in the Thoothukudi murders who have been transferred should be brought back and charged if culpable. Nobody should be above the law.
Any encounter killing by the police should be severely dealt with, not lauded. These are terrible short-cuts, ending the lives of potentially innocent people. And even if they are guilty, the law guarantees them a fair trial. Short-circuiting the system is not the answer. Speeding up the judicial system certainly is.
Finally, we need our police force to be so well paid that they are not tempted to accept bribes from anybody. The police are not meant to be, nor should they be glorified bodyguards of the politicians of the day. We have no kings anymore, only democratically elected government servants. Politicians need to understand that the police is on a par with them, not beneath them. The hierarchical nature of the police force needs to be broken, giving opportunities for merit to shine and the corrupt to be thrown out. It is high time.
—The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. Research assistance by Tarun M
Lead picture: UNI