A total of 1713 people died in custody in the year 2019, this would essentially boil down to 5 deaths per day. The number of policemen prosecuted for these custodial deaths are almost negligible.
In one of my earlier blogs I mentioned the need to instill the police with Constitutional Values but after the incident surrounding the custodial death of Jayaraj and Fenix, I am pushed to thinking as to why these men in uniform have the audacity to persecute those very people they swore to protect? The answer once again lies in the misguided sense of superiority and impunity which the Code of Criminal Procedure has provided them.
Shortly after the George Floyd incident shook the conscience of the world as a whole, the Indian Police officers have gone a step further in the case of Jayaraj and Fenix. Today, the torture and brutality are so intrinsic to state of policing in India that they have started seeping into the public perception as the new normal.
Jayaraj and Fenix were two common citizens of India, who made a mistake of opening their shops post permitted hours and the cost of this mistake was their life. Their families are still trying to comprehend as to how is the cost of their life is proportional to the alleged illegal act they had committed. After more than 7 decades of the constitution coming into being, the life and liberty guaranteed to these two citizens was taken away by the men acting in the colours of law but in the absence of procedure established by law. The death of these two men at the hands of these policeman is not an isolated incident but the indication of a widespread pattern of how the constitutional rights and freedoms are disregarded by those very people charged with enforcing them.
In the year 2019, India witnessed more than 1700 custodial deaths, which equals to 5 deaths per day. More than 1700 times, unarmed and helpless citizens who are entitled to the Constitutional Protection of life and liberty, were mercilessly murdered by men in uniform. On an average of 5 times per day our Constitutional Values were extra-judicially killed by those charged with protecting the peace and security of the public at large.
The Constitution of India is a sacred document which represents freedoms from more than 200 years of whims, brutality and injustice. The Constituent Assembly carefully drafted this sacred document with a view of a just and equitable society where people no longer are afraid of lawlessness as the way of life. However, these constitutional values are in no way reflected in the extra-judicial killings, custodial torture and denial of humane treatment.
Justice AN Mulla speaking for Allahabad High Court in State vs. Md. Nairn (1962) 2 CrLJ 125 said that “I say this with all sense of responsibility: there is not a single lawless group in the country whose record of crime comes anywhere near that of the single organised unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law”
The roots of these unconstitutional acts by the police can be found the Code of Criminal Procedure itself. The impunity given to public officers from prosecution and the requirement of sanctions has instilled them with misguided confidence of being above the constitutional rights of the Citizens whom they swore to protect. The requirement of sanctions has essentially led them to believe that they are sovereign citizens and are not liable for their wrongdoings.
The Constitution has envisioned equality before law and equal protection of law as the law of the land, in light of the same how can we then treat a set of criminals indifferently when they have both committed the same crime. A criminal act committed in the uniform of law is a criminal act nonetheless and thus should be subjected to equality before law. The impunity that Section 197 of the Criminal Procedure Code, 1973 provides is bad in law and creates a case of Departmental Bias which is against the spirit of Article 14. The same impunity has served as a Mens Rea for police action which shocks the conscience of the society. The same impunity has given the murders of Jayaraj and Fenix, the audacity to take away their Constitutional Right to Life and Liberty without adhering to any procedure established by law and all the while believing that they are immune from the scales of justice.
The special treatment that is afforded to the public servants in the Cr.P.C. is in effect the declaration of the executive that there is no accountability of criminal acts committed in the colors of law. The requirement of a prosecution sanction is a classic case of departmental bias and leads to grave injustice.
The National Police Commission established in the year 1977 suggested for the removal of police officials from the impunity against any prosecution brought against them relating to the performance of official duties under section 197 of Code of Criminal Procedure. However, this recommendation fell on deaf ears.
The argument essentially is that the same rule of law and general defences which apply to normal citizens when protecting their lives in the case of an imminent threat would apply to policemen also, so why is there a special protection afforded to them by means of Section 197 ? Why should a requirement of prosecution sanction exist when the criminal justice system already envisions situations relating to private defence ?
The accountability of police officials and restoring public trust in the executive machinery is of paramount importance to ensure that the Constitutional Values are adhered to and respected. Every public servant is first and foremost answerable to the Constitution and the people of India. Any man in the colors of law and acting on his own whims is violating the Right to Life and Personal Liberty which the Constitution guaranteed to every person residing in India.
The families of Jayaraj and Fenix can have some sort of satisfaction in the fact that those guilty of the brutal atrocities committed on them will be punished, but as concerned citizens of India, is it not our duty to ask question about more than 1500 custodial deaths that occur in India every year? Those guilty of atrocities on Jayaraj and Fenix will be brought to justice because of the large scale public outcry in their case but the questions of injustice and brutality will still be unanswered for more than 1500 families who could not gather the public sentiment. The problem is much larger than that of just one case, it is one of a systematic approach towards the violation of Procedure Established by Law and other Constitutional Values.
Supremacy of the Constitution is not only a part of Basic Structure but also an undeniable fact and the obvious repercussions of the same are that Fundamental Rights are sacrosanct but for Procedure Established by Law. The Hon’ble Supreme Court has been the protector of fundamental rights and torchbearer of justice ever since its inception. Today, once again, the rights of the citizens again seek refuge under the protection of the Judiciary.