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The unfortunate case of 59-year-old Jayaraj and his son Fenix is the most recent proof that there is still a gaping chasm between what has been mandated and what is being practised.
‘Power tends to corrupt; absolute power corrupts absolutely.’
– Lord Acton
This apt aphorism comes to mind as an unending stream of articles on police brutality reach us from around the world. Although several Indian statutes outline the responsibilities and powers of a police officer, many in the force run their jurisdictions like a personal fiefdom where their authority remains unfettered by the laws of the land.
Police impropriety towards citizens has in the past ranged from petty corruption and inefficacy to torture, custodial deaths and rapes. Such instances, along with the ever-increasing politicisation of the force, has cemented the public’s distrust in the police as an institution.
Police brutality, a prominent concept in India today, violates multiple civil and human rights by abusing and tormenting a person. From 2000-2016, as per National Crime Record Bureau (NCRB) statistics, there were 1,022 reported deaths of individuals in police custody but only 428 FIRs were filed, of which a paltry 5% of the policemen were finally convicted. Police brutality has been normalized to the extent that is a part of our mainstream entertainment and has often been glorified in recent times – but this representation could not be farther from the truth.
Custodial deaths and violence have become so commonplace that we as a populace have largely become numb to such instances, unless they are particularly heinous. We were still reeling from the atrocities meted out by the police to the students of Jamia Milia Islamia and Aligarh Muslim University during the anti-Citizenship Amendment Act protests in December 2019, when a few days ago we learned about the alleged custodial deaths of a father-son duo in Tuticorin, Tamil Nadu wherein the Madras High Court took suo motu cognisance of the matter
The case of Joginder Kumar v. State of UP is one of the most notorious examples highlighting the improper use of arresting power by the police without cogent reason. In that case, the police illegally detained a young lawyer for over five days under the pretext of making some inquiries. The Apex Court ruled that no one can be arrested on the basis of a mere allegation as mandated by the constitutional rights of a person, unless reasonable satisfaction is reached after proper investigation.
In the current Tuticorin case, it is doubtful that any such reasonable satisfaction was reached before arresting and detaining Jayaraj and his son, Fenix.
In the ignomious case of Tukaram and Another v. State of Maharashtra, also known as the Mathura Rape Case, two police officers on duty raped an underaged girl within the premises of the police station, while her family waited outside. The custodial rape case sparked off huge debates about the repulsive acts of policemen. This case reflects the abusive behaviour of policemen towards women.
Another glaring example of custodial violence leading to death of an innocent individual is Saheli v. Commissioner of Police, Delhi. Here, the Supreme Court awarded compensation of Rs. 75,000 to the mother of the deceased.
Meanwhile, in the Tuticorin case, the Tamil Nadu state government assured a government job as per eligibility to the deceased’s family member. While the opposing party, DMK, declared Rs. 25 lakh worth of financial aid for the deceased’s family.
Eventually, the Supreme Court in DK Basu v. State of West Bengal laid down several guidelines for the police while making an arrest and at the time of detention, after several instances of police violence and misuse of power came to light. The guidelines include the attestation by at least one witness for the memo of arrest, countersigned by the arrestee; and the medical examination of the arrestee every 48 hours, etc.
These guidelines were laid down to protect the rights of an arrestee as well as to curb unauthorised arrests or detentions by police officers. Unlawful arrests and wrongful imprisonment are in contravention of the Code of Criminal Procedure, 1973 and they breach the fundamental rights guaranteed by the Constitution of India as well. Arrests should be made to secure the orchestration of law, but the safeguarding of human rights – be it of an innocent or an accused – is paramount.
However, the unfortunate case of 59-year-old Jayaraj and his son Fenix is the most recent proof that there is still a gaping chasm between what has been mandated and what is being practised. The two ran a mobile handset shop in Tuticorin, which was open 15 minutes beyond the curfew on June 18, during the COVID-induced lockdown. The next day, the police took Jayaraj into custody, and Fenix too was arrested upon arrival when he went searching for his father. The duo was booked under Sections 188 (disobedience to order duly promulgated by public servant), 353 (use of force to deter public servant from duty) 269 (negligent act likely to spread infection of disease dangerous to life), and 506(2) (Punishment for criminal intimidation) of the Indian Penal Code, 1860.
This was a clear misuse of the police’s arresting power, as within 15 minutes, the shop was shut down. Yet, the two were arrested the next day and inculpated on what appears to be an exaggerated count of charges. Additionally, there are multiple discrepancies in the FIR lodged against the two, including the question about physical injuries on their bodies and the FIR being lodged more than an hour later. The timings contradict the claims made by some eyewitnesses.
Eyewitnesses claim that the two were beaten repeatedly for hours in police custody, and multiple changes of clothes were brought in to change out of their blood-soaked clothes. Moreover, other witnesses suggested that the two were sodomised while in custody as they were bleeding profusely from their rectums. The police force denied these claims in its FIR, declaring that the two had internal injuries only, as they rolled on the ground and resisted arrest.
Yet it is claimed that the Magistrate, B Saravanan gave the remand order without seeing the detainees in person, which is crucial as per Rule 6 of the Criminal Rules of Practice, 2019. The combination of the police’s apparent penchant for sadism as well as the laissez-faire attitude of the Magistrate turned fatal for the two, as they succumbed to their injuries late Monday night and early Tuesday morning.
Swift and strong action needs to be taken against the officers involved in this episode as was done in the case of George Floyd in the USA. We must also question the role of the Magistrate, since it was his duty to check for injuries on the accused or interrogate about the internal injuries claimed by the police in the FIR as per Rule 6. It seems difficult to imagine that the police as well as the Magistrate were simply unaware of such procedural technicalities. Ignorantia juris non excusat deems that the ignorance is no excuse, but the police cannot exonerate themselves of their fundamental professional obligations on grounds of ignorance and they remain answerable for their actions, which were nothing short of inhuman. The punishment for the two deceased simply did not match the crime. Those who wronged them need to be held accountable.
Furthermore, there have been frequent incidents of bribing police officials so as to delay the investigation, or scare off witnesses, or other ways of doctoring police investigations. These illustrations show that the Indian police system has enough bad apples in the force to taint even the seemingly smaller subset of dedicated officers who diligently service the citizens of India.
It is vital that relevant committees are established to look into each issue individually and in conjunction. Multiple layers of induction need to be created so as to filter out all corrupted individuals from reaching positions of power by reconfiguring the police training programs to include sensitivity training as well as anger management, so as to handle such situations humanely, and employing a series of effective incentives and deterrents. The triggers of these barbaric acts by the police need to be analysed and scrutinised properly so that proper measures can be taken to nip such tendencies in the bud.
The Judiciary needs to pay a little more attention towards such gruesome and grave misuse of authority and analyse every grievance and bring the wrongdoer to justice. Strong and unambiguous directives need to be given to police forces that unwarranted use of force and power will only land them in trouble.
Many investigations have already been botched due the aforementioned reasons where justice has either not been served at all or is yet to be served, after years of waiting.
Aspiring policemen must be encouraged and at the same time be respected by devising helpful incentives and awards for their sincere performance. If it can be demonstrated that policemen are indeed a force that can be reckoned with, then there may be some hope for improvements in the future of this integral sect of crime prevention.
The author is a recent graduate from 3-year LLB program of Jindal Global Law School.