As you begin to read this article, we would like you to think of the reactions to the Hyderabad police killing Chennakesavulu, Mohammed Areef, Naveen and Shiva, in the ‘Disha’ case . That incident, from December 2019, must surely bring back memories of collective celebration at ‘justice’ having been executed swiftly. The showering of petals, the raucous calls for adopting such measures of instant justice, and our pride in such police officers must still be vivid in our memory.
Now contrast that to the reactions in response to the custodial killings, of Jayaraj and his son Benicks in Thoothukudi, Tamil Nadu. Celebrities, media platforms, politicians, Twitter and Facebook users, the general public, all aghast at the brutal violence inflicted on these two men. Everyone collectively reminding us that we need to keep our police in check, and that we must not tolerate such abuse of police powers while lamenting the lack of ‘rule of law’ in our society.
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The contrast in the response to these two incidents could not be starker. What lies at the heart of this contrast? Was it because the four men in Hyderabad were accused of raping, murdering and burning the body of the victim? It revolted us so much that we were willing to accept this version of instant (but illegal) justice and trust the police when they told us that it was indeed these four men who were responsible. Despite no court having looked into it, we were convinced that they ‘deserved’ to be killed in that manner for what we believed they had done, conveniently blurring the lines between our moral judgment and the limits we must place on police power.
A different reaction
But with Jayaraj and Benicks, we must ask what really shocks us? Is it just that they were brutally assaulted and violated in a manner that caused their death? Or is our shock inextricably connected to what they were accused of — that they were tortured in this manner for keeping their shop open for a few minutes after lockdown timings? What we will or will not accept from the police in terms of their abuse of powers seems to be intrinsically linked to our moral evaluation of what they tell us people in their custody are accused of. When they present to us sexual offenders, terrorists and anti-nationals, we find ourselves reposing great faith in the narratives they feed us, and are even eager for it to be true. It literally is a few steps away from mob justice. It is just that we let the police and the legal system do our dirty work. But thankfully for the family of Jayaraj and Benicks, we have judged differently and we are on their side this time. In different circumstances, our reactions would look, sound and feel very different.
We must be careful not to mistake our reactions in this case as some commitment to the rule of law and due process. The track record of our public and legal conversation on torture and fixing accountability for it present a very different picture. In the last three years, the National Human Rights Commission (NHRC), India has received nearly 5,300 complaints of custodial deaths (police and prison) and we can be sure that it is only a fraction of the actual number of such deaths. If reporting such deaths is difficult, the legal process to investigate, prosecute and fix accountability has even more hurdles. This is evident from the fact that while government data recorded 1,727 deaths in police custody between 2000 and 2018, only 26 police officials were convicted.
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In a country where custodial torture and killing is an open secret, it is baffling that we still do not have a domestic law that enables torture prosecution by accounting for the particularities of custodial torture. We continue to struggle with the inadequacies of our regular criminal law in this regard.
An issue glossed over
Despite a suggestion by the Law Commission of India that if a person dies in police custody the burden should be on the police to show that they are not responsible for it, the law still requires the prosecution to prove that the police caused the death. India’s political commitment to address torture is symbolised by its failure to ratify the UN Convention Against Torture, and thereby putting itself in the list of only 19 countries to have not adopted it. The Supreme Court of India has laid down many measures to prevent torture and fix accountability, but these judgments are rarely followed. Even legislative mandates suffer the same fate. Besides the usual police investigation into a custodial death, the law mandates an independent magisterial inquiry. It is perhaps a reflection of our institutional apathy that such inquiries have happened in only about 20% of custodial deaths. And to top it all, prosecution of police officials for custodial torture requires the sanction of the government.
The question about why torture is rampant has no straightforward answers. One of course is that the system incentivises torture by seeking convictions without modernising the police force. However, police violence is not limited to investigations and goes well beyond that. The use of torture is also often justified by police personnel as being required to teach ‘hardened criminals’ on behalf of society. But here in killing Jayaraj and Benicks, the police seem to have inflicted violence out of sheer expectation of impunity. It reflects a deeply worrying aspect of torture where police unleash violence because they know that the chances of being held accountable are slim.
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The worst thing we can do now is to think of the incidents at the Sattankulam police station in Tamil Nadu as being perpetrated by a few errant police personnel. There is an institutional and public culture that breeds, protects and even celebrates this kind of violence. At the heart of that culture is our proclivity to embrace mob justice in situations where we feel it is ‘deserved’. And in instances where we are forced to confront murders such as those of Benicks and Jayaraj, we must acknowledge that our celebration and tolerance of police brutality is just as much to blame as anything else. The blood of Benicks and Jayaraj are on all our hands.
Anup Surendranath and Neetika Vishwanath are with Project 39A at National Law University, Delhi