Who will guard the guards?

CHENNAI: Few weeks back, the Madras High Court asked a tongue-in-cheek question to the police department: Why are toilets in your stations slippery only for the accused and not for the inspectors?

Most of the suspects, after being arrested and placed in custody with the police, come out heavily bandaged over parts of their body. The official statement is that they ‘slipped and fell’ in the bathroom at the station. The stories are many, but takers are few.

It’s the fifth anniversary of the Sathankulam custodial torture and death of the father-son duo. And, when the trial is yet to conclude, we now hear another story of Ajith Kumar, a temporary staff of the local temple, tortured and killed by Tiruppuvanam cops (Sivaganga). Reason? He was suspected of stealing jewellery from a devotee.

Trigger-happy cops

Why do uniformed cops misbehave with suspects and attempt to extract confessions through third-degree methods? Is our criminal justice system so bad that only tortures and encounters alone can establish justice? The irony is that the provisions of the procedural code, renamed as Bharatiya Nagarik Suraksha Sanhita, literally means ‘Protection Code for the citizens of Bharath’.

The administration of the ruling party in Tamil Nadu has been commendable so far. However, police custodial torture and deaths continue to be a serious problem. Any encounter killing, which is another form of custodial deaths by the police, is oft followed by an official statement that the police were forced to use their gun because the accused attempted to either fire at them or used a sickle to harm the police.

With that statement, everything falls quiet. At times, it also brings laurels to trigger-happy cops in the form of incentives and bravery awards.

Few years ago in Hyderabad, a young veterinarian was raped and killed, which led to huge public outcry. A policeman, also known as an encounter specialist, immediately swung into action and killed four youngsters and called it an ‘encounter death’. Denizens hailed the cops as heroes. They were garlanded and taken on an open procession on streets with sweets being distributed to the crowd.

Some well-meaning activists moved the Supreme Court seeking an inquiry into the encounter death within 24 hours of the crime. The court appointed Justice Sirpurkar, a retired judge, to hold an inquiry and submit a report.

Within 6 months, the Sirpurkar Committee report held that those youngsters were innocent of the crime they were accused of, and that it was a clear case of murder by the police. The result: the encounter cops are behind bars.

People’s need for instant gratification often goes against the rule of law.

In fact, former Chief Justice NV Ramana told the court that unlike readymade dosas and instant coffees, it’s inconceivable that the criminal justice system can come out with readymade solutions.

Rule of law requires a painstaking investigation followed by a trial with all opportunities and punishment doled out only by a judicial authority. Indictment of a suspect charged with heinous crimes may be tortuous and dilatory, but it’s legitimacy is, nevertheless, time-tested and the only way of a penal jurisprudence.

Constitutional right on paper only

To prevent the normalisation of police encounters and other custodial tortures and deaths, there is a constitutional guarantee that gives rights to the pre-trial accused.

Enshrined in Article 22 are 3 major requirements:

(a) informing the accused of the grounds of arrest

(b) production before the nearest before the nearest Magistrate within 24 hours, and

(c) the accused has a right to have his lawyer present

Elaborating further guidelines into these essential requirements, DK Basu case (1996) laid down 11 commandments, which is nearly a charter of rights of the pre-trial accused. Essential among them is that the remand magistrate, before whom the accused is produced within 24 hours, will have to examine the accused and record his statement on whether he was ill-treated by the police, and if necessary, order an immediate medical treatment.

These commandments are applicable to all states, but they continue to remain only on paper, as we saw in the Sathankulam case. Jayaraj and Bennix, the two businessmen of that town, were tortured by the cops. When produced before a remand magistrate, but not actually shown to the magistrate, he made a mechanical remand. The duo was dead by then, but they were taken into judicial custody in a prison that was 100 km away.

It was only when the prison staff refused to admit the dead bodies, the incident was revealed and shocked the conscience of Tamil people. Thus, the first guard to protect the constitutional right – remand magistrate – failed in his duty. So far, no action has been taken against him.

Though the case was handed over to the CBI and a charge sheet was filed within a reasonable time, the trial process is yet to complete. In fact, the High Court that’s supposed to monitor the trial did not allow the same judicial officer to continue the trial and complete it before he/she transferred out on account of routine transfer.

In any event, five years is a long time and people cannot wait to see justice rendered and the accused properly punished. This elicits frustration and disappointment in the criminal justice system, which leads to denizens, often, hailing instant solutions. Case in point: encounter deaths.

During the 1970s, Cho Ramasamy, who was the head of the Peoples Union for Civil Liberties (PUCL) in Tamil Nadu, said in an interview: “Without third degree methods, cops can never bring out the truth. The peacock will not shed its feather for mere asking of it.” This statement had shocked many and he was asked to resign from PUCL, which he obliged.

But the debate never ended. Similar is the oft-repeated stories of different encounters. The last but not the least being the death of Ajith Kumar of Tiruppuvanam.

NHRC guidelines

After the killings of Maoists by the Andhra police, many civil rights organisations took the matter to the National Human Rights Commission. The NHRC gave certain guidelines in cases of encounter death by the police. One of them was that if an encounter took place, the police had to prove, in a court of law, that there was clear and present danger of the accused attempting to cause them grievous harm. Else, the policemen would be tried for murder.

Despite such directives, no State government in the country volunteered to have a standard protocol for trying cops in encounter cases.

It’s laudable, indeed, that Chief Minister MK Stalin ordered the immediate arrest of the 5 policemen for murder, which may be the first of its kind in the country. It’s a welcome step to literally implementing the NHRC guidelines.

In any event, sensitisation workshops of police officers, which routinely take place, are not sufficient. Such an exercise should start from the lowest guard to the five-starred top cop. What’s more important is the formation of groups from civil society to monitor each police station continuously.

If the fence starts eating into the crops, then what is the use of a fence? The issue is well laid out by a Latin maxim – Quis custodiet ipsos custodes? (Who will guard the guards themselves?).

( The writer is a former judge of Madras High Court)