Why it won’t be easy to end custodial violence in India

Governments in India have systematically sabotaged rights commissions from within; this continues to be at the root of the problem

The brazen deaths of a father and son in police custody in Tamil Nadu’s Thoothukudi district the deaths have received a lot of attention in the media. The widespread attention has also triggered a competitive politicisation of these deaths. However, the reality is that none of these developments are likely to prevent similar deaths in the future.

In order to understand why, we need to undertake a deeper exploration of this issue. It requires us to ask and answer this question: What kind of systems are created and institutionalised to protect life and liberty of citizens in India?

Read: Hope justice is served: Family of father-son duo 'killed' in custody

The State from the beginning was very clear about the kind of power it wants in order to govern. The makers of the Constitution did not accept the ‘due process of law’, which mandates ‘hear before condemning and judge after trial’. Article 21of the Constitution provides the ‘procedure established by law’, which in practice has been reduced to whatever procedure the powerful are comfortable with. The Supreme Court’s direction in Maneka Gandhi’s case (1978) that the procedure of law cannot be anything but reasonable, fair and just has not cut ice with governments. Citizens are not only consumers of law, but its masters. But this has been given the go-by in practice. Moreover, today those who fought against the arbitrary power of the state during the Emergency have become its masters.

Also Read | Tamil Nadu government for CBI probe into death of father, son after alleged police torture

NHRC’s struggles

With the worsening of the human rights situation everywhere, the international community understood that self-control of the State in a democracy is an oxymoron. Consequently the Paris Principles for human rights were formulated in 1991. The idea that the institutional regime for rights ought to be autonomous – legally, financially and functionally – gained credence. In response, the Indian government enacted the Protection of Human Rights Act, 1993, but ensured its foundations remain weak. It led to the formation of the National Human Rights Commission (NHRC), however without the constitutional mandate to act. Its directives remain only recommendatory but not mandatory against the state. In a sense, the next battle for rights was already lost. The creature cannot tame a creator with an arbitrary instinct. Governments in India have systematically sabotaged rights commissions from within.

Also read: Tamil Nadu youth dies from wounds inflicted during custody; cops booked

Yet the NHRC has persevered to prevent torture and arbitrary detention of citizens. The battle between an unruly police force violating life and liberty and the NHRC began in 1993. It sent a series of missives to the governments suggesting how to reduce the custodial crimes. “The custodial crimes are increasing, failure to report the incidents of deaths within 24 hours will be construed as attempts to suppress the facts,” it said in a letter to chief ministers in 1995. In response, governments narrowly interpreted the directives as police custody and refrained from reporting prison custodial deaths. Realising this, the Commission again issued directions to improve the conditions of custodies.

In 1995, NHRC started complaining that the police were drawing up postmortem reports casually and they were unhelpful to form a definite opinion about the cause of death. It viewed that a systematic attempt is being made to suppress the truth and the reports are merely the police version of incidents. “The local doctors are succumbing to police pressures resulting in distortion of facts. So please video-film the postmortem and send the cassettes along with the report. The extra-cost involved is justified as the life is more valuable,” the NHRC held.

The Commission still felt that the autopsy reports sent by the police were giving scope for doubt and manipulation. To plug the loopholes and make it more purposeful, the Commission modified and adopted the United Nations Model Autopsy Protocol. It further suggested the methods of assessing the exact time of death and development of rigor mortis. The Commission must have thought this would tighten its grip around the recalcitrant police personnel. But it has not really happened.

In 2000, the Commission examined the cases of custodial deaths for five years and found more defective methods in police reporting. The quality of the videography was poor. It directed that wounds on the dead body be numbered and scaled. It said a forensic photography expert should use a good quality digital camera with 10x optical zoom and minimum 10 mega pixels and take photos from 25 positions! The clothes of the dead body should be preserved. Before the autopsy the doctor should record his prima facie opinion.

The next step of NHRC reflects its deeper distrust of the Executive. On its recommendation, the Parliament amended the Code of Criminal Procedure (CrPC) and mandated judicial enquiry into every custodial death under section 176-1A. Have all these measures resulted in the punishment of unruly police personnel and reduced custodial deaths? Tamil Nadu recorded 21 deaths in 1995 and 82 deaths in 2018. For those two years, India recorded 338 and 1845 deaths respectively.

What does all this tell us? It speaks volumes about the ingenuity of governments to dodge accountability; it talks of the deep distrust the sentinel of rights has developed; it also is a testimony to its helplessness to protect human rights and the collusion of higher level police officers, doctors, magistrates, bureaucrats and ministers. Impunity breads more contempt for the laws and lives of citizens.

We require some courage to see through the happenings. In case of a popular incident of custodial violence, the politicians look for political dividends. The suo moto drama of the courts hides the acquittals of police personnel very often. Yearly, the governments keep on publishing the deaths as natural as if the custodies are spiritual resorts for ordinary citizens. Civil society is too busy to develop a critical attitude towards these unconscionable deaths.

Ordinary citizens repeatedly ask what the solution for deaths in custody are. Every time they agitate, governments pretend to create newer modes of accountability for the police but to no avail. The situation should surprise none as people with arbitrary power instincts have occupied the public positions everywhere. They believe that ethics of how to wield power are for losers. Meanwhile, the institutionalised anarchy of governments and the trampling of lives of ordinary citizens goes on.

(Dr Murali Karnam teaches at the NALSAR University of Law, Hyderabad)

Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.