The Judge, the Jury and the Executioner

22 May, 2018 witnessed one of the most explicit displays of police brutality in recent Indian history. The day is mournfully remembered as the one where innocent lives were lost, protesting against the proposed expansion of the copper smelting plant run by Sterlite Copper, a subsidiary of Sterlite Industries, owned by Vedanta Limited in Thoothukudi. As thousands of protestors gathered to join the struggle against environmental pollution, what started out as lathi charges and tear gas explosions, took the form of brutal firing. The riot that ensued claimed the lives of 13 people, 12 of whom had bullet wounds in their heads and chest, clearly violating departmental regulations which mandates that all shots are to be fired below the waist. In staunch defence of his police force, Tamil Nadu Chief Minister Edappadi K Palaniswami pinned the blame on ‘anti-social’ elements, whilst justifying the carnage of unarmed protestors as a ‘natural’ reaction, and not a pre-planned effort to quell protests. Even if we were to accept the notion that the ‘anti-social’ elements triggered the police to use firearms, the fact that the Chief Minister justifies killings is a cause for concern. Ofcourse, he failed to even acknowledge reports suggesting that the killing of protestors was intentional.

The struggle against state-corporate agencies in Thoothukudi had been ongoing for several years. A 2008 study conducted by the Department of Community Medicine, Tirunelveli Medical College, discovered that people living in a 5km radius of the plant were increasingly susceptible to a number of serious medical conditions, including respiratory and menstrual disorders. Tamil Nadu Pollution Control Board also noticed a substantial increase in Sulphur-di-oxide (SO2) levels in the vicinity of the plant, raising serious environmental concerns. Despite this, appeals and requests made by the people living in neighbouring villages had been routinely ignored for nearly two decades. Six days following the massacre, the copper smelting plant was shut down by the Tamil Nadu Environment and Forests Department. However, the perpetrators responsible for the horrors inflicted upon the people of Thoothukudi were neither found, nor prosecuted. India’s long history of failing to hold the police accountable for blatant violation of human rights continued. State sponsored monetary compensation is usually the only ‘justice’ meted out to the victim's kin in such situations.

One would imagine that issues that consistently resurface every single year would be treated as a ‘systemic’ issue and not an isolated incident. However, failure to enact reforms to ensure progression of the police department tells a different story altogether. But even if we agree that reforming the police is the solution, what do we even mean by such a reformation?

The reform undertaken by the Obama administration did not come to George Floyd’s rescue when the Minneapolis cop kneeled on his neck for over eight minutes, until the life from him was sucked out. In 2015, Minneapolis had implemented training programs for their police department to reduce abuses, understand implicit biases, and crisis interventions. And while it might be true that these programs might have contributed to improve relations between the police and their communities, it remains inevitable that individual actions, motivated by racial prejudice cannot be controlled by the administration. Marginalised communities are always more likely to be negatively impacted by policing. After all, the police come under the purview of the state. Democratic institutions are inherently majoritarian, and they function to preserve the interests of the majority. Democracy institutionalises a utilitarian society, where the protection of those in power comes at the price of subjugating the marginalised.

The supposedly fair legal system is only fair if you assume every aspect of the legal system to operate in an unbiased manner. Procedural justice assumes that the individual parts of the justice system work for the benefit of the citizen. It assumes that the presence of the police is ‘beneficial’ to every individual in a community. It does not question the intentions or the framework of an inherently discriminatory system. The judicial framework does not question a system that was built to protect the interests of those who were instrumental in constructing society as we know it today. Are we right in assuming that a system built on the backs of an enslaved minority could treat all individuals equally? I will let you be the judge of that.

The solution that is usually floated around is on the lines of defunding the police. One has to remember that even this is a very privileged argument, which is likely to be applicable only in the developed countries of the world. A 2016 report by Human Rights Watch tries to explain the continued prevalence of custodial torture as a means of investigation in India. The report suggested that a lack of training and failure in the extensive usage of forensics pushes lower-level officials to use third-degree means to extract confessions. And while this is in no way a justification for the barbaric acts of violence unleashed by the police on common people of the country, it does indicate that defunding the police infrastructure can prove to be counterproductive. One also cannot refute that mismanagement of funds can be a vital contributor to the situation we find ourselves in. Corruption at all levels of the administration is also likely to prove detrimental to the same. Police are not trained in the usage of forensics to solve cases, and most forensic laboratories remain vastly understaffed. The Indians state’s inability to invest in scientific programs and infrastructure is merely a reflection of the Indian union’s general attitude towards science. This is not to suggest that there is no requirement for police reform. But there is only so much improvement that can be made in an inherently prejudiced system.

The recent custodial torture faced by Jeyaraj and Benicks in Sathankulam, Thoothukudi district of Tamil Nadu has seen a rare instance of uproar in the media. The story was so appalling that people took to social media to demand justice for the father and son, both of whom allegedly sustained critical injuries in police custody, that ultimately led to their unfortunate demise a few days after their arrest. Jeyaraj and Benicks were arrested by Sathankulam police on June 19, claiming that they ‘violated’ lockdown regulations, by failing to adhere to ‘business hours’. A story reported by Chennai-based news portal, The Federal talked to several sources, who claimed that a fitness certificate was forged to reveal that the duo was fit, while in reality, they were not. Other sources also claimed that both, Jeyaraj and Benicks were issued threats on their life, and fearing for his life, Benicks failed to mention the custodial torture in front of the Judicial Magistrate. The story also revealed that sexual torture was inflicted upon the victims, sustaining severe injuries to the gluteal region, accompanied with constant bleeding. As of now, a total of six men, including four police officers, SI Raghuganesh, SI Balakrishnan, Inspector Srithar and Head Constable Murugan have been arrested. A testimony by female Head Constable, Revathy has also been recorded, which could prove to be critical moving forward. Aside from this, the Tamil Nadu government did what governments do best in such situations, announcing a monetary compensation worth Rs.10 lakhs. (Sigh).

Custodial torture is definitely not a new phenomenon in India. The Indian Penal code has several provisions which forbid custodial violence, but the enforcement of such provisions is dreadful. The National Human Rights Commission (NHRC) has issued several guidelines to police officials on how to respond to a custodial death. Such occurrences are to be immediately reported to the NHRC, and a magistrate is instructed to inquire into the matter. Aside from this, a First Information Report (FIR) is to be filed immediately against the alleged perpetrators and this is to be investigated by an agency, mutually exclusive from the one implicated. The presence of such provisions is effectively redundant, due to a lack of accountability and bureaucratic transparency.

If you have closely monitored the Black Lives Matter (BLM) movement, you would have heard the term ‘Qualified Immunity’ thrown around quite often. Qualified Immunity essentially prevents governmental officials from being held personally liable for constitutional violations, unless the action is in clear violation of ‘established statutory or constitutional rights’. India does not have a comprehensive immunity act, but Section 197 of the Code of Criminal Procedure provides immunity from prosecution of all public officials, unless the government approves the prosecution. This provision ensures that a large number of ‘law-enforcers’ culpable of human rights violations walk away scot-free.

India: Annual Report of Torture 2018 registered 1996 custodial deaths, 147 of which occurred in police custody. While human rights activists claim that these figures do not reflect the reality of custodial torture in the country, The National Crime Records Bureau (NCRB) registered a meagre 89 cases of human rights violations against police officials, and this resulted in a grand total of ZERO convictions. Of the 5479 total number of cases registered against police officers in the same year, only 40 of them were convicted. NHRC data claims that a total of 70 people died in police custody (on remand), and a further 46 people (not on remand) in 2018, differing from the numbers registered by the NHRC for the same year. The reasoning for the discrepancies is not clear, but one thing that remains certain is that the data on custodial torture registered by governmental organisations is an extreme underrepresentation of the state of affairs in the country. The data on custodial crimes for the years 2019 and 2020 are currently unavailable on the NCRB website.

India: Annual report on torture 2018

Despite all of its flaws, blaming the police alone for systemic violence against people is misguided. The police do not act independently. They are a part of a much larger system, which expects the police to function in a certain manner. The system does not include bureaucrats and government officials alone. Common people are integral in ensuring the smooth functioning of this system.

In November 2019, the gang rape and murder of a veterinary doctor in Shamshabad, near Hyderabad was met with massive outrage and protests. Politicians, celebrities and common people of the country demanded that the accused be brought to justice. While it is true that the police were under extraordinary pressure to bring the rapists to justice, the events that followed can either be viewed as a failure of due process, or a celebration of justice.

In the process of re-enacting the incident of the crime, the Cyberabad police claimed that two of the men grabbed a gun from one of the policemen, obligating the police to shoot all four of them dead. The ‘encounter’, which is simply a euphemism for extra-judicial killings was met with enormous praise for the police department. Television media, as well as social media celebrated the killings as ‘justice’. Most people who questioned the legitimacy of the story weaved by the Cyberabad Police were labeled ‘rapist apologists’ on social media.

Amnesty International India said that the killings raised “deeply disturbing questions about the state of justice in India.”

In one of the rare voices of the day, Kalpana Kannabiran, Council for Social Development, Hyderabad said, “Trigger happy policemen with an utter disregard for the law are not the answer we seek. The ends of justice are not served by wanton killing and retributive bloodlust. The course of justice is not determined by the grief and grieving of victims’ families. Justice lies in supporting them in their moment of grief and pain and insisting on due process that brings suspects and accused to trial through a robust, stringent and competent criminal investigation.”

Ironically enough, the people who celebrated the ‘encounter’ in the Hyderabad gang rape case, are the same people outraged at the deaths of Jeyaraj and Benicks today. The circumstances are different. The contexts, entirely different, but the similarities in both scenarios cannot be overlooked. Both of these scenarios exemplify the failure of the Indian ‘justice system’. The roles and responsibilities of police officials are not that of the Judge, Jury and the Executioner, and the fact that common people expect the police to fulfill the role of the judiciary is dangerous and threatens the ‘democratic’ framework of the country.

The police structure in India is simply reflective of the kind of country we are. It is true that there are issues with what we talk about, but the larger issues are the ones we refuse to talk about. The stigma around caste and the fact that we refuse to even acknowledge it is one of many issues that cannot be tackled by dealing with the actions of police as an organisation independent from the rest of society. Take the Jeyaraj and Benicks story mentioned above. Most of the news portals that reported the story failed to look at the story from a caste angle. However, news portal The Lede reported that both Sub Inspectors (SI) Raghuganesh and Balakrishnan have allegedly been involved in several instances of casteist violence. The story claims that - “As per a letter signed by three Panchayat Presidents in the area as well as trade union leaders, SI Raghuganesh is said to have instigated the Konar youth of these villages to destroy homes of people belonging to the other castes.” The story quotes several instances from the last year which involves an explicit display of casteist violence. But the number of times this angle has been explored in mainstream reporting of the incident is expectedly low.

India: Annual Report on Torture notes that ‘Dalits and indigenous peoples remain extremely vulnerable to torture and during 2018, many died in police custody after being arrested in cases related to alleged theft or robbery.’

And while it is true that caste and race have both been integral contributors in the subjugation, marginalisation and exploitation of millions of people around the world, the invisibility of caste makes it so much easier to deny its existence. The provisions that the law provides to the citizens of the country remain inaccessible to so much of the country due to caste-economic reasons, further accentuating the futility of police reform. Police reform is necessary, but we would be kidding ourselves if we think that reformation alone will be enough. Police brutality is only a symptom of a major larger disease plaguing this country. The fact that we continue to treat just the symptoms of the disease, and refuse to even acknowledge the presence of a much larger societal ailment is simply a representation of the kind of society that we are. The system is not broken. It is merely fulfilling what it set out to accomplish.

(Authored by Harish Sridharan)