Maharashtra has witnessed two custody deaths in Mumbai and Ahmadnagar recently. The National Crime Record Bureau reported that the state has had a total of 333 custodial deaths from 1991 to 2003, and yet no police officer has been convicted for any of the deaths till date. Maharashtra has the dubious distinction of topping the states recording highest number of deaths in police and judicial custodies.
It requires no evidence to prove that all the victims of these deaths were from socially and economically marginalised sections of society. The social nature of the phenomenon of victimising the socially vulnerable has been recognised time and again by the apex court and the Law Commission reports.
There is evidence to suggest that the voices against the trend are feeble over a period, signalling that this is high time for the society to accept it as a matter of fact. We need to ask what exactly is at stake and in operation in this phenomenon called custodial deaths.
There are hundreds of rules laid down by the law on how to treat persons in lawful custody. The National Human Rights Commission has come up with guidelines on how to administer custodial justice. The apex court has pointed finger at the servile attitude of the police towards political representatives and their consequences to the rights of the citizens. The human rights movements have been relentless in exposing the social nature of custodial violence.
All of this means nothing to the government and is indicated by the increasing number of deaths. The governments are clearly not interested in making the criminal justice system accountable to the lives lost and restore faith in the rule of law. All the debates around prior sanction of permission for prosecution of officers under Section 197 of the CrPC, protection of officers from vexatious litigations and magisterial enquiries only indicate that suffering of the underprivileged is surplus in nature and defending police machinery as fundamental to the culture of governance.
The constitutional framers dreamed of a social change for a just social order which is completely different from the old order. There was a huge consensus among them that Indian social order was completely unjust and unequal and hence, to be rejected completely. In their view, the mandate of the new political dispensation post-colonial was to translate the idea of formal equality in public life into a reality. It entails shedding the faith in hierarchical social reality of caste, class and gender.
The objective of new governance was to facilitate the deep social change and bring a social order in which there will not be wide differences in social status and economic resources. The legacy and mandate of freedom struggle against inequality and discrimination had forced the governments to bring social legislations to accommodate democratic desire of social equality.
The Protection of Civil Rights Act and Prevention of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Acts are broadly part of this mandate. The challenge before the government is to facilitate positive change in social statuses of citizens.
Discrimination in public life
The initiation against discrimination in public life also came up from the civil society’s desire for democratisation of social relations. The civil society groups identified various forms of inequalities and agitated against them. They demanded the state to facilitate the social change through law and governance. That does not mean there is total consensus within society on the value of the law that accommodates change.
A large majority of people in civil society and government always remain unconvinced of its political potential as the debate for change terminates itself after legislation.
Formation of a fair legal order is a continuous political process. Most of the sections of criminal procedure code and Indian penal code are principles that resulted after huge social and political churning across the societies. The criminal justice system is expected to be the custodian of legal rational order. It has a duty to respect, strengthen and improvise a legal and rational frame of thinking in practice.
The implementers may have differences of opinion on the social validity of law. We often come across such people in the government. If citizens differ with the law, the consequences are deadly. But if minions of government differ and their opinions creep into practice, the purpose of law gets defeated. Here, the state, instead of becoming facilitator of change, emerges as preventer of change.
Democracy as an idea is pluralistic in nature. If peaceful transformation of dominant social relations into egalitarian ones is the mandate of democracy, then every institution of governance has to contribute distinctly towards that end. If criminal justice system treats both star accused and poor accused equally, then it may be seen as contributing to realise social equality.
But Amartya Sen doubts whether institutions built in the name of democracy can ever counter the power relations. The uneven distribution of resources among the people is bound to create further frictions in social relations but the question is whether the criminal justice system is going to augment it or work as buffer against the trend.
The political class in India should shape policing as an instrument to achieve ideals of social equality. It should understand that reinforcing social status quo through criminal justice system is against political democracy. The conviction that democracy is all about changing undemocratic social relations into ideals of social equality will be more effective in blunting the powers of the police rather than the limitations built within the law.
(The writer is Assistant Professor, Nodal Centre of Excellence for Human Rights Education, TISS, Mumbai)