Custodial deaths of P Jayaraj and Fenix: Police reforms possible only when privileged class acknowledges their role in promoting broken system
A transparent police force that functions within the law will ensure broader social prosperity.
As criminal law practitioners will affirm, there is nothing that's good about someone being taken into police custody. It's often a harrowing experience for the lawyer who couldn't prevent it. This is perhaps because of how close we are to the actual reality of India's police force. At times, it becomes obvious that sending a person into police custody is the same as sending someone to a torture chamber. Those days in police remand, before an application for bail can be made, are counted and those who can afford to do so, try to have their lawyers plead to close the remand for each day it subsists.
There is an unspoken acceptance of a principle in the way criminal law is administered. Torture is legal. We just change the words and call it "custodial interrogation". India has a lot of laws in place, which on paper, would make us a world-class jurisdiction when it concerns police matters. There are requirements for warrants before searches and arrests. There is also the safeguard of the right to silence. The presumption of innocence. These broad concepts are not alien to the law of India — in fact, they are well-established.
Except, we legally allow them to be ignored. Let's take the example of a search warrant. The pure purpose of a search warrant is to prevent you from being searched by the police without a just cause. Tomorrow, if an officer, without a warrant, barged into your home and took documents, those documents would still be admissible in court. There is absolutely zero incentive for the police to follow procedure, because they are excused from the real consequences of it. So, you have a police force that knows quite well that it can blindly disregard the law and go around doing what it basically likes.
This system though, is kept in place for very cogent social reasons. The Indian society is not one that often thinks in terms of rights. When we hear of a crime, we want an arrest; it doesn't matter who they arrest, we just want one. There was visible celebration over the Telengana encounter of four rape accused in 2019, even as many raised questions on whether the encounter was a fake one. There are frequent calls from major sections of the public to go harsh on criminals. Even recently, when Bollywood actor Sushant Singh Rajput committed suicide, some people demanded that arrests be made. We often think of criminal law as akin to a school teacher managing a classroom. No questions, no trial, straight to the cane.
Such social beliefs lead to cases such as the custodial deaths in Tuticorin. The first question we ought to be asking is, why were the accused remanded to police custody in the first place? Why does the police need custodial interrogation for people accused of violating the lockdown? Were the policemen so unsure of their own version of the events (given they were the witnesses) that they needed the accused to confirm it before they could secure the conviction? If an accused has a right to silence (i.e. a right against self-incrimination), doesn't that mean that the accused is not required to answer any questions? You'd be surprised to learn that the law thinks otherwise and "custodial interrogation" of the accused is a well-accepted legally defined means of interrogation.
Except, practitioners know, it's often the code word for torture. The belief is that this is the only way one can get someone who doesn't want to talk to speak. You use threats and intimidate them (physically and mentally) till they "break down" and give information. It's not as though the police allow you to even have a lawyer present all the way during the interrogation. So what's the point of a right against self-incrimination when, if you're the accused, you can be remanded to the custody of your accusers?
In the United States, if the police break the law when it concerns an investigation, not just that piece of evidence, but everything that flows from it is quashed. An accused has a right to refuse to answer any and all questions during interrogation. An accused must be informed of their rights and if they request a lawyer, the questioning must stop. If they say no further questions, the questioning must stop. Similar rules exist in the United Kingdom, and in most jurisdictions which take things like the right to privacy, due process and the right against self-incrimination seriously. Unfortunately, in India, we seem to think law enforcement is like an episode of CID.
When we talk about police reform, we need to first acknowledge how fundamentally broken India's police system is. It's not just broken in the way it's been administered, but also in terms of the perverse expectations people sometimes have from the police force. We expect that if a wrong is done to us, the police must help us take revenge on the criminal. Except, law enforcement is not about revenge and it's seldom about the actual criminal itself. We think it is the job of the police to maintain morals. However, it is often seen that the police is quite terrible at doing so. We think it is the job of the police to sort out community disputes. It isn't. That's why we have panchayats and municipal wards.
Apart from all the above expectations, we also expect the police to stop terrorism, carry out disaster relief, enforce lockdowns, manage traffic, and perform other such functions.
A transparent police force that functions within the law will ensure broader social prosperity. But such a police is also one that probably won't answer a "phone call from an old uncle" to sort out problems that shouldn't be dealt with by the police. Before we talk about police reform, let's first acknowledge whom the broken system of policing helps, and whom it hurts. It will perhaps tell you why we still don't have police reforms.
The last problem is that even if you do go after the police officials who cross the line, the officials will be probed by their own colleagues. If you sue the government for damages, our courts take years and then give paltry compensation. This means that the police are basically immune in India for the actions they carry out in uniform.
What happened to the two gentlemen in Tuticorin is quite frankly one of the worst incidents of police brutality that I have come across. It reminded me of one bit of advice I gave a client of mine before he went into the lock up — which was to make sure that he was in the visual range of the CCTVs. In a more civilised world, I wouldn't need to give that piece of advice. Luckily, nothing happened to my client.
The law does require a magistrate to ask the accused at the time of each remand whether he or she has any complaints against the police. However, in my experience, the answer is almost always "no" and when it's a yes, there's a general smirk all around. On one occasion when the response was in the affirmative, a colleague of mine crudely quipped, "Maybe he (the accused) wasn't hit earlier, but now he is absolutely certain to be hit."
This cannot be the way our criminal justice system works. Our Constitution demands much better.
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