By Ajay Kumar
Delhi Police Commissioner BS Bassi has emphatically asserted while speaking on the issue of the five students of JNU that the police want to arrest, and that "police are looking for them, they should join the investigation. If they are innocent, they should produce evidence of their innocence."
As commonsense and patronising as this may sound , it has an essential and fundamental flaw — the law of our land is fundamentally postulated on the principle that any accused is presumed innocent until and unless proven guilty by the prosecution beyond reasonable doubt. In layman's terms, this would mean that the police and the prosecution (both of which are parts of the executive arm of the state) have the onus to prove absolutely the guilt of any accused; so the accused do not have to prove their innocence. Such statements, coming from the commissioner while the investigation in the Delhi police's own words is "ongoing" is something that is a cause for concern for almost every ordinary citizen.
The law requires that the state establish the guilt of the accused. In fact, the police cannot pronounce a person innocent or guilty. Only a competent court can. Even then, a court cannot pronounce someone innocent, at the most it can pronounce a person as "not guilty".
The rule exists, because it is impossible to prove a negation, a statement in the negative cannot be proved but only an assertive statement can be proved or disproved, which is why the law makes the negation the default state more commonly referred to as "innocent until proven guilty"
The students that the Delhi police were searching for went into hiding right after the incident but turned up on campus last night and were courting arrest. The police chief has asked them to surrender because he cannot arrest them on the JNU campus and the vice-chancellor has denied permission to the police to enter campus. The students want security assurances from the police, saying they went into hiding fearing mob justice and vendetta.
This has resulted in a stand off, but the important question people need to ask is, why are people afraid of being taken into police custody? Is this fear, a genuine fear?
During the period of 2007-2012, 11,820 people died in the custody of the Indian police establishment as per the National Human Rights Commission. In fact, an Indian media outlet has quoted lawyers claiming that they beat up Mr.Kanhaiya Kumar while he was in police custody and forced him to say "Bharat Mata ki Jai" before they would let him go.
There has been no statement from the Delhi Police denying this accusation. One would think an accusation like this would be cause for concern and necessitate an immediate and complete denial, rather than press conferences on some activities of a few young people on a university campus.
We are well aware that there is a lackadaisical approach by the police insofar as it concerns people in their custody. If memory serves us right, we will remember that it was this same police establishment that couldn't prevent Mr.Ram Singh (accused in the December 2012 Delhi gangrape case) from hanging himself in his jail cell. As a result Ram Singh was never actually pronounced guilty of his crime, the prosecution against him was simply abated doing no justice to the victim or the state.
Common citizens in India are afraid to approach the police even when they are victims of crime as that is the image of the police that has been created as a result of their past and continuing conduct. Statements such as Mr.Bassi's that call on people to prove their innocence to the police, only goes further to destroy what little public confidence is left in the institution.
Further, the police should avoid using terms like "innocent" and "guilty" while by their own admission an investigation is on going. If the clips are still being sent for "verification" as per the police's statement, is there enough basis to warrant an arrest at all? Can't the police use the provisions under the Code of Criminal Procedure and summon them to take down their statement? Have the police managed to establish that their presence on campus is a continuing threat to law and order?
Once the JNU investigation is over, there is a need to have a inquiry into the way the police have handled the matter. This is something of grave concern to any citizen. The police should not be seen to be taking sides in a matter. It must toe the line of the law in the manner in which they conduct their investigation. They need to explain why their first reaction is to effect an arrest even before a statement has been recorded or the clips have been verified. They need to explain why they aren't initiating process against JNU professors and teachers who have admitted to helping the students go underground and avoid arrest. They need to explain why they were unable to prevent the ruckus that went on in the Patiala House Courts. Is there a police review trying to see how there was a failure in doing their jobs in protecting the accused and preventing a ruckus?
Further, the police need to avoid trying the matter in the court of public opinion before the matter even reaches court. Press conferences with statements like the one Mr.Bassi gave cause the public to lose confidence in our police forces. Right now, the Delhi Police is no longer looking like a police establishment, but a propaganda wing of the Ministry of Home Affairs.