The Anatomy of Police Brutality in India

The Sathankulam case involving P. Jayaraj and his son Bennix became the trigger for a state-wide uproar over the dysfunctional state of policing and justice in India. In its wake, concrete demands have been put out by the public (social media activists, trade unions, shopkeepers, and the victims’ families) – most of whom call for the fair trial and arrest of the responsible policemen. The investigation has been handed over to the CBI, with 4 of the policemen arrested on murder charges. However, the particular case on its own is not the focus of this article, for many others cover the events in excruciating detail.[1]

Much of the outrage emphasises the sadistic nature of the crime committed by officers of the law, who tortured and brutalised the men for what was barely a crime – keeping their store open beyond curfew. But in no way is this an isolated incident. Callous and arbitrary punishment is actually the norm in India, a norm which has seemingly worsened during the pandemic. Less than a week after the Sathankulam deaths, an auto-driver lost his life following a similar pattern of indiscriminate torture. Kumaresan’s crime, in this case, was arguing with the police and saying that ‘both policemen and auto rickshaw drivers wear khaki’. His punishment? Massive internal damage was caused to his kidneys, lungs, and other organs. Kumaresan died in hospital on June 27th.[2]

On April 7th, cops in Bengaluru picked up Munipillapa, a 50-year-old daily wage worker, after an accusation of theft. His body was later found dumped in a well. While the police claim he had jumped into it himself, his wife was distraught and claimed it was the result of merciless torture.[3]

The police are not the only authority responsible for these deaths. A BJP MLA from UP, Kishore Gujjar, proudly declared a reward of Rs. 5,100 to cops who shot down lockdown violators. “Those, who violate the lockdown, are traitors...the cops should break their legs. If they do not follow the orders then the police should shoot them in their legs.” He went on to specify that Muslims gathering in mosques for prayers should be shot if necessary.[4] A month later Mohammad Rizwan, a teenager trying to buy biscuits, became the first fatality of police brutality in UP.[5] At least 13 other similar cases of deaths during the lockdown have been unearthed by the Commonwealth Human Rights Initiative.[6]

In the Sathankulam case, Justices P. N. Prakash and B. Pugalendhi of the Madras High Court stated, “A few bad apples here and there should not be a reason to condemn the entire force of around 1.25 lakh police personnel in the State, who were already in the forefront battling the COVID-19 pandemic.”[7]

The main argument I present is simple: Custodial torture in India is not simply the result of a “few bad apples”. It is the result of a systemic failure in India – one, there are patterns of illegal police detentions, abuse and torture; two, there is incentive for the police to do so; three, there is impunity for wrongdoing; four, there is a denial of the practice at the state and national level; five, such patterns of abuse and negligence is often used for political gain; and six, there is resistance to reform at the judicial, legislative and police level. This article is best understood as a compilation and meta-study of the vast research already conducted in the realm of police brutality and torture in India to prove the argument, while highlighting the social implications of the same.

Establishing a pattern

In March 2013, Delhi cops picked up 7 or 10 teenage boys who they claimed were suspects in a case of theft. Rather than taking them to the station in standard fashion, the boys were kept in an apartment complex in ‘Lal Quarters’ and interrogated, violently. Their mobile phones and belongings were confiscated, their parents were not informed, and they were not given food more than twice over the period of two days. The boys were subject to horrific and humiliating abuse – drunk men shouted slurs at them, stripped them, and beat them with sticks and boots. The internal injuries sustained were serious enough that 7 months later, one of the victims had still not recovered. Apparently, the two apartments in Lal Quarters were routinely used for such interrogations.

A video of the event was leaked to news stations that day, and the ruckus caused led to six policemen being suspended. The investigation that followed, however, did not seem fruitful. The People’s Union for Democratic Rights noted,

“The entire effort of the chief investigating officer from an early stage in the investigation appears to have been directed not at uncovering the truth, but explicitly giving the accused policemen a clean chit by ‘proving’ that the adolescents were not minors and the video clip was doctored.”[8]

The policemen were in fact surprised that such a routine event had even got such publicity and hostile response. The fact that it occurred with such blatant social and authoritative sanction in the nation’s capital paints a poor expectation for what we might find in other parts of India.

Most civil societies and whistle-blower groups studying torture agree on a few basic truisms: that torture is prevalent in India, in all regions, regardless of the party in power, is worst in areas of conflict, and commonly affects the poorest and the most vulnerable groups. The 1855 Madras Torture Commission received about 2,000 complaints of torture. In 2008, People’s Watch extrapolated data and suggested that about 1.8 million people are subject to torture by the police every year.[9] In 2019, the National Human Rights Commission (NHRC) reported 1,723 cases of custodial deaths.[10] In 2011, out of all the complaints of human rights abuse it received, 35% were against the police.[11] The National Campaign Against Torture (NCAT) found in its report that 60% of victims of custodial deaths were from Dalit or tribal communities, religious minorities, or were poor.[12]

The National Project on Preventing Torture in India’s 2008 report continues to be one of the most illuminating studies of the profound personal effects of custodial violence. Its Tribunals all across India invited 682 victims and families to share their testimonials. In some cases, victims did not turn up after settling with the police for sums of money. Of those who came forward, many shared distressing details of their ordeals, stating that their “life had been lost” and they didn’t know how to move on. The methods of torture used [trigger warning] included stripping, verbal and sexual abuse, ordering members of their family to watch their abuse, heavy beatings, hanging victims from hooks, forcing chilli powder into cuts, electric shocks and deprivation of food, water, privacy or sleep, to name some. Female victims were often mishandled, fondled, touched inappropriately and at times threatened with rape if they refused to stay silent – a threat that was nevertheless carried out. The injury caused was often deeper than merely physical: victims were constantly pressurised to admit to crimes they didn’t commit, often being called caste-specific slurs; they endured hearing the screams of other victims being tortured before their turn came; sounds of specific vehicles or certain officers stepping into the station filled them with dread, knowing that torture would soon begin; families were kept anxious about the victims’ conditions and whereabouts, with no details being given. Serial torture made victims and their families mentally weak, insecure, traumatised, depressed, disturbed or phobic. In one case, police dismissed the complaints brought by a minor girl who was raped, and she was instead put through severe interrogation. In another case, a rape victim was left unable to cope with court proceedings due to lack of treatment and support. Gender-specific abuse and calling women ‘prostitutes’ was apparently a common practice in police stations.

When such torture led to custodial deaths, the families were left with no breadwinners or economic support, were denied post-mortem reports or any enquiries, and were left unable to claim any compensation in courts. Almost all of the families that were present belonged to extremely poor and marginalised communities and survivors often had no idea why they were picked up by police. When some of these people attempted to pursue justice or sought intervention from State Human Rights Commissions, they were made to travel from all parts of the state for the hearings without compensation for their costs. The Tribunal also noted that when victims missed even a single hearing, their cases were dismissed.

Pre-trial detentions – a compounding problem

The question of torture in custody is inseparable from the question of prison conditions. Most people take it for granted that they will never be behind bars, and hence those who are placed there often seem like they deserve it. This privilege accorded to middle or upper-income Indians and the politician class practically erases the debate from the mainstream. A good illustration of this is the interchangeable usage of the terms ‘jail’ and ‘prison’, and therefore the interchangeable existence of the pre-trial detainees and the convicted. Indian lock-ups are notoriously overcrowded – the least crowded jail is 200% over capacity, while others like Sathyamangalam Sub-Jail is at 1250% over.[13] Being arrested is a double-penalty here – not only do you await trial and have your rights stripped, but you are treated by the police as though you are already guilty. Not only are prison conditions negligible, but torture is expected there.

“From the uniformity in their filthy and overcrowded conditions, and in the brutal, dehumanizing treatment meted out by the police to their occupants, it seems lock-ups are specially built to oppress detenues and make their stay a type of deterrent to crime.”[14]

Legally, the police are required to present any arrestee before a magistrate within 24 hours. This rule is little known to the public and easily flouted. However, when the arrestee is finally taken to ‘remand court’, they do not get the privilege of being represented by a public defender, which occurs only in trial. Considering that most of those arrested tend to be poor, the system fails them from the start. They get no opportunity to appeal or deny the claims of the police, who accompany them to the magistrate. The magistrates themselves make no attempt to determine whether remand is even necessary for the investigation of the crime committed, and the proceedings last less than two minutes.[15] It is treated as a mere formality rather than what is meant to be – a check on police excess.

Magistrates can also question whether detainees have been tortured, but in practice they do not do so, and even ignore clear signs of torture such as bruises, blood or the victim themselves admitting it. In the case of Jayaraj and Bennix, the magistrate they were presented before did not appear fazed by their poor condition and blood-soaked clothes. He merely waved from the first floor, remanding them.[16] Most custodial deaths, however, usually occur before the detainees are ever taken before a magistrate. From 2010 to 2015, 416 of 591 custodial deaths occurred this way.[17]

The National Crime Records Bureau reports that there were a total of 4,66,084 prisoners in India in 2018, of which 3,23,537 were pre-trial detainees – nearly 70%[18]. Muslims, Dalits and tribals are overrepresented in prisons[19]. Most are lodged in district jails that are crowded beyond capacity, where they remain for weeks or months. The backlogs of cases and delay of justice is not an unknown phenomenon, but one silent side effect has been the steadily rising representation of undertrials in prison statistics. It is only worsened by India’s poorly funded public defender system, a lack of courtrooms, and a dearth of investigators and prosecutors.

A significant majority (nearly 66%)[20] of such detainees have been found to be either illiterate or have studied up to class 10, which becomes a problem in several ways. On the one hand, the lack of literacy prevents them from being able to understand court proceedings, represent themselves fairly or even understand the charges that they were arrested under. Far too often, the police maliciously prosecute individuals under exaggerated or false claims.[21] On the other hand, their presence in jail coincides with (or is perhaps caused by) their poor socio-economic background, and imprisonment serves as a double-penalty by removing breadwinners from poor families, preventing education or work, and sometimes imposing exorbitant monetary and timely costs on them. In the worst cases, torture endemic to jails and prisons leads to their death, but most undertrials suffer without dying.

In the conversation of prisons, women face uniquely gendered problems. Much of the police harassment faced by women is of a sexual nature, and police rapes are among the most hushed up crimes. Rape in custody is particularly problematic to report – victims are often not believed, and if they are believed they get ostracised by their families and spouses, and if they aren’t shunned the police simply refuse to file their complaint, and when their cases are actually taken up, the victims face further harassment and pressure from the police to remain silent.

Soni Sori, an Adivasi teacher turned tribal rights activist, was imprisoned multiple times for her political involvement. She noted her experiences in women’s prisons, saying

“Women live in crammed prisons, with a shortage of food, clothes and even sanitary napkins. Women face sexual violence and harassment at the hands of the policemen in forests. Young girls aged 14 are impregnated as a consequence and spend their time in jail in denial and depression.”[22]

Imprisoned women are often raped under the pretext that they are criminals, and therefore ‘dishonourable’. In the rare occasions that such cases do come to light, policemen defend themselves by tainting the motives of the woman in court, calling her character ‘loose’, claiming she engaged in ‘dubious activities’ or sometimes pointing to her husband or son who was a criminal, and that therefore she is guilty by association.[23]

Some may accuse this presentation as being sympathetic towards the criminal class, but we cannot solve crime or bring adequate justice by compounding the plight of detainees who have not even been convicted in court. They are legally innocent and fully deserving of dignity.[24]

A look inside the lives of the police

“Why do the police torture?” is a question worth asking. It is an obvious question too, when considered in light of the fact that torture is a crime banned under international law, even in the case of warfare during which time there is a surge in nationalistic feeling, and the enemy is easily identifiable or clearly demarcated. It is easy to dismiss the problem by claiming, as the Madras High Court did, that “a few bad apples” do so, but this is not the truth for several reasons. As statistics show, it is prevalent across India and appears to be the norm. But more importantly, it is a crime that specifically and consistently worsens in every situation where the police are given undue power.

India is far too often championed as a country of great diversity with little thought being given to how this diversity is treated, especially when it results in conflict. Internal conflicts are not new; they have existed since, and in many cases because of, the aftermath of Indian independence. The solution in place, however, has not been democratic processes but repression through state violence.

Since 1958, the regions of the Northeast including Mizoram, Manipur, Tripura, Nagaland, Assam, Meghalaya and Arunachal Pradesh have come under the description of being “disturbed areas”. It is here that the Armed Forces (Special Powers) Act is in place[25]. A similar version of the Act was passed by Parliament in September 1990 for Jammu & Kashmir, titled the Armed Forces (Jammu and Kashmir) Special Powers Act. While these Acts do not come under the scope of examination of this article, they are useful in shedding light on how legal authorization creates a culture of abuse among servants of the state. They are notorious for granting to the armed forces the ability to use lethal force or even fire upon suspected civilians for the ‘maintenance of public order’[26]; the ability to search without warrant any property, and with as much force as necessary[27]; the ability to arrest without a warrant[28], or in the case of the J&K Public Safety Act (PSA), allowing detention without trial for up to two years; and extensive immunity to the forces, by stating explicitly that

“No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act” [29]

While the resulting absolute number of deaths as a result of this Act is hard to verify, the Supreme Court in 2016 acknowledged that impunity to the armed forces must end after petitioners claimed that 1,528 extra-judicial killings occurred in Manipur alone.[30] Srinagar-based Jammu and Kashmir Coalition of Civil Society reports that between 2008 and 2018 in J&K, 4,059 people were killed, and that 2018 was the deadliest year. Of this total, 1,081 were civilians, 1,890 militants, and 1,088 armed personnel.[31] Over 1,000 people were detained under the PSA between March 2016 and August 2017.[32] These numbers do not include the disappearances, torture, and custodial rapes that are known to be prevalent or the mental anguish and trauma caused.

Such liberties as given under AFSPA are not accorded to civil policemen under the law. Further, contrary to common conception, confessions given under duress by the police are not admissible in a court. Despite a lack of explicit criminalization of torture as an act, police abuse is protected against through readings of other provisions, listed below:

Constitutional provisions

1. Article 21 – Protects against deprivation of life and liberty

2. Article 14 – Equality before the law

3. Article 19 – Protections of freedom of speech (which includes the right to not speak, or confess)

4. Article 20(3) – Protects against being compelled to be a witness against oneself

5. Article 22(1) – Right to consult and be defended by legal practitioners

The above articles have been collectively interpreted by several Supreme Court judgements as broadly protecting against custodial torture and extorting confessions.[33]

Indian Penal Code

1. Sections 166 and 167 – Public servants causing injury or framing false documents or records with intent to cause injury is punishable

2. Section 220 – Maliciously keeping people in confinement or committing them to trial is punishable

3. Sections 330 and 331 – Punishes voluntarily causing ‘hurt’ to extort confessions

4. Sections 340 to 348 – Wrongfully restraining or confining a person is punishable; confinement or detention to extort confessions is also punishable

5. Section 376 (2) – Punishes rape by police officers

6. Sections 376B to 376D – Punishes wrongful sexual intercourse by public servants, superintendents of jails or hospital staff

7. Sections 503 and 506 – Punishes criminal intimidation by use of threats of force or injury

The Code of Criminal Procedure

1. Section 41 – Regarding when police officers may arrest without a warrant or order

2. Section 49 – Arrested persons shall not be subject to more restraint than is necessary

3. Section 50 – Arrested persons must be informed of grounds of arrest and bail

4. Section 54 – Allows for examination of arrested person by medical practitioner upon request

5. Section 57 – Arrested persons to not be detained longer than 24 hours

6. Section 163 – Police officers and authorities cannot bribe or threaten detainees

7. Section 164 – Confessions may be given to magistrates, voluntarily and with full knowledge of its use

Indian Evidence Act

1. Section 24 – Confessions caused by inducement or threats are not admissible in courts (they must be freely given)

2. Sections 25 and 26 – Confessions made to the police will not be used as proof, unless done so freely and in the presence of a magistrate

3. Section 27 – If a confession results in police recovering additional evidence or facts, it may be admissible

Indian Police Act

1. Section 29 – Police officers engaging in unwarranted violence against persons in custody may be convicted

It would be naïve to imply that actual practice reflects these laws. There exists, however regrettably so, a sizeable gap between the commitments of state laws and the norms of policing. To paint this gap as a result of poor character, however, is a partial truth that deflects away from the real problem.

A colonial hangover

The tree of ‘bad apples’ was planted nearly 200 years ago in India. While the conversation on origins of torture can extend deep into Indian and South Asian history, the most relevant part of it lies in the period of the British Raj.

In the initial stages of British expansion in India, there was an overt desire for militaristic subjugation of a large, native population using a small force. Precisely because of these needs, the inspiration for British policing came from the Irish Constabulary instead of the civilian London Metropolitan model.[34] There was a brutal crackdown on any and all forms of dissent or claims to self-government by Indians. Indeed, this was reflected in 1854, when the House of Commons received word of hundreds of complaints of torture committed by the East India Company, often to extract payment or revenue. There was public outcry in Britain, especially by the growing liberal politician class, claiming that there was a moral degradation to the Empire. An inquiry was demanded into the issue which resulted in the Government of Madras providing a Torture Commission Report in 1855. [35] Nearly 2,000 complaints of torture were lodged with the Commission, but the report itself was somewhat partial to the Company’s interests and claimed that torture rates were decreasing steadily.[36]

Much of the report attributed the prevalence of torture to the brutish sentiments of the ‘natives’, which was ‘abhorrent to European morality’, stating,

“the whole police is underpaid, notoriously corrupt, and without any of the moral restraint and self-respect which education ordinarily engenders; and that the character of the native when in power displays itself in the form of rapacity, cruelty, and tyranny, at least as much as its main features are subservience, timidity, and trickery, when the Hindoo is a mere private individual”.[37]

The Report concluded by suggesting that these practices may be quickly curbed by incorporating ‘European agency’, or more specifically, appointing European superintendents of police to administrate each district. The prevalence of torture thus became the fault of the native Indian servants, and not the British administration.

Following the Revolt of 1857, the British government of India was under pressure to reinstate control over the subcontinent. From examination of what followed, it is evident that the Madras Torture Report was the starting point in the creation of a new colonial police. Its suggestions were undertaken seriously, but selectively. The Police Act of 1861 was drafted in such a way as to ensure that all lines of command were controlled only by British administrators and officials, and accountability was to Imperial Britain and not the Indian population. Senior police officers were not recruited from the native population, but instead from an elite pool of non-Indians who were deployed to districts and regions that they had never entered before. This structure of recruitment continues today, in the form of the Indian Police Service (IPS). But much of the colonial attitude is reflected not explicitly in the Police Act, but instead in treatment and conditioning of the new police. The training of the lower ranks, which were drawn from local populations, was largely in service of their disciplinarian seniors. They were not given any authority or provisions for promotions. To prevent sympathizing with the population, the constables were restricted to living in police barracks and working in police stations, rather than working within the community.[38] To that effect, British sanctioned infrastructure reflected this – the hospitals and schools built were few, but the number of police buildings and barracks were “numerous and imposing”.[39]

The reformation process of instruments of law and order did not stop with the Police Act. The Indian Penal Code of 1860 came into force in 1862; the Indian Evidence Act came into operation in 1872; and the Code of Criminal Procedure in 1898. Not surprisingly, India, Pakistan and Bangladesh share criminal concepts even today – such as ‘bailable’ and ‘non-bailable’ offences being at the judges’ discretion, or the ‘cognizable’ and ‘non-cognizable’ offences which lay down which offences grant the power to arrest with or without a warrant.[40]

What is surprising, however, is the number of post-colonial South Asian nations that have not replaced the archaic Police Act of 1861, which if implemented as intended would not result in a model of policing best suited to newly democratic states. India still follows this Act, and so does Bangladesh. Maldives only created a distinct police force separate from colonial roots in 2004. Pakistan attempted reform, but it is largely ignored. It might be pointed out that policing was made a state subject in India[41], while the centre retains control over the Central Bureau of Investigation, the Union territories and the National Investigation Agency. However, this has not resulted in newer models of policing. Most states still use the1861 Act, and the states that did pass new legislation have models that are merely a facelift of the 1861 Act.[42]

When today’s policing is derived from a 200-year-old British sanctioned, imperialist Act, there are inevitable continuities between the system of 1861 and of 2020. For one, the structural composition is nearly identical – constabulary make up over 85% of the police but have the least power, and barely any incentive to be just. Second, the political freedom of policemen to voice out concerns continues to be restricted either legally (when it sanctions suspension) or socially (when termed ‘indiscipline’). For instance, the Police-Forces (Restriction of Rights) Act, 1966, restricts the freedom of speech and association of members of the police.[43] It is, in practice, a restatement of the Police (Incitement to Disaffection) Act passed by the colonial administration in 1922 in less controversial words. Third, all contemporary reports of police brutality point to a striking similarity with the colonial methods of torture used in custody. And finally, just as it was the fate of the 1855 Torture Commission’s report to be selectively applied and otherwise ignored, so too suffer all the reports and recommendations made by judicial and human rights authorities in India today.[44]

As the CHRI noted in 2005, democratic policing ought to reflect democratic values, structures and processes.[45] In 1902, Lord Curzon instituted the Police Commission, which had the following to say,

“The police force is far from efficient; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial co-operation of the people.”[46]

The statement is not far from the truth today. Most citizens do not confide in the police, or view it necessary to report crime to them. The uncertainty, fear and prospect of bureaucratic intimidation are enough reason for most to avoid ever stepping into a police station if they can help it.

Trickle Down Torture

The legacy of colonial India lives on in explicit and implicit ways within the structure of law enforcement. Seniority and ranking still follows the system from the 1860s, where all personnel are recruited at the state level except for the IPS, which is recruited and deployed nationally. The structure is as follows:

1. Indian Police Service Officers (DGP, IG)

2. Provincial Police Service Officer (Superintendent)

3. Sub-Inspector

4. Constable

The heads of police in each state are the Director Generals of Police (DGP), drawn from the IPS. The central agency for law enforcement is the Ministry of Home Affairs (MHA).

Many news outlets have called for an Indian counterpart to the BLM protests in America – after all, here too the police abuse and kill, and here too they target minorities. The similarity between the uproar and discourse over the issues of George Floyd and the Sathankulam murders is undercut by the fact both these incidents have very different root causes.

To begin with, the face of the police is the constabulary, who make up more than 85 or 90% of police personnel. They are paid around an average of 20,000 rupees a month, which corresponds to level 3 pay for government employees. The starting pay is usually much lesser, anywhere from 1,200 to 10,000 rupees. It is not surprising then that the type of employee this pay attracts is often under-educated or under-skilled, and with little ability to rise up the ranks or challenge authority. Verily, it reflects the British aim of a subservient law enforcement class.

However, the same 90% are responsible for a wide range of demanding tasks due to a lack of diversification and specialisation in the jobs of the constabulary. Not only do they deal with petty crime and skirmishes in cities, but also with criminal investigation, organised crime, cyber-crime and even terrorism. For this range of work, state spending on police is a meagre 3% (in many states, below 2%)[47].

Police are not merely widely tasked, but also severely understaffed. In 2017, there was a 30% vacancy in the strength of law enforcement, and the only regions that seemed to be at full strength were areas of insurgency and ‘disorder’ such as the North East.[48]

UN Data shows that Indian police are among the most understaffed in the world[49]:

As a consequence, most staff work long hours and through holidays to compensate – the average work day is about 14 hours.[50] Constables are rarely paid for this overtime as well, with 4 in 5 not receiving such compensation.[51]

The bulk of forensic work and gathering of evidence for on-going court cases also falls upon the constables. In reference to this, Amit Shah quoted that the police should –

“..stay ahead of crime and criminal-minded people. It should use forensic science to get irrefutable evidence against the suspect that would lead to conviction in court.”[52]

On a similar note, Vice President Venkaiah Naidu stated

“Smart policing is the way forward and it is essential to modernize the police forces by embracing technology and adopting innovative approaches. Police Forces must be trained in fields such as forensics, cyber crimes and online frauds.”[53]

These statements directly contradict the action taken up by the Centre to slash funding towards modernisation of police forces from 940 crores in 2019 to 785 crores in 2020, and a similar cut towards criminology and forensic science by almost 2 crores.[54] This is further compounded by the severe lack of attention towards training of policemen, which takes up just over 1% of the police budgets. Almost one in three civil police personnel never received training on forensic technology.[55] Most of the expenditure is instead towards the payment of salaries, and protection of government personnel.

These numbers manifest themselves as a depressing breakdown of the rule of law. This is best explained by Beatrice Jauregui in their book, ‘Provisional Authority: Police, Order and Security in India.’[56]

In Chakkar Rasta Thana in UP, the author sees the police detain a man. The constables write a report in the FIR stating he was picking pockets, instead of the actual crime he had committed of damaging fence material to steal scraps. When asked why they changed the crime, the cops explained that they lack resources to gather evidence materials (in this case, the damaged fencing and wires) and lug it to the magistrate. Constrained by the CrPC’s 24-hour rule, they quickly fabricate alternate evidence to book the detainee. They go on to explain that since pick pocketing and the actual crime are both considered theft under the IPC, they aren’t causing any harm. Extra-legality becomes a rational and even efficient choice in their eyes. The law becomes easily malleable by context – no amount of legal protections can compensate for this. Lacking a proper budget for forensic tools, computers, or even police cars, there is an active incentive to fabricate evidence or normalize torture as a way to quickly extract confessions.

Senior officers often facilitate this practice through negligence. Often, it is only the higher ranking officials in stations that have received any reasonably effective training, but their positions are usually vacant.[57] Rarely do senior officers accompany the constables on duty, opting instead for indoor work.[58] The authority gap between low-ranking, low-paid constables and inspectors or sub-inspectors creates a culture of expendability for the former – constables are asked to serve as domestic helpers and personal servants for higher officials by serving tea or coffee, tending their homes, buying groceries or cleaning, Jauregui writes. Their low status is reinforced by not only public perception, but by their own supervisors.

A similar expendability seems to be in place for the police in general, who are used not as law enforcers but as convenient workmen for the truly powerful politician class. A common sight in public and the media is ministry officials, public figures or ‘important’ men being accompanied by police vans. It appears to contradict the picture I’ve painted; there is always an abundance of police escorts, vans, guns and equipment, even though surveys by the MHA show that these are precisely the tools that most of the constables face a shortage of. Politicians appear to show callous disregard for policemen’s demanding work schedules by insisting on swathes of security, often as a show of power or status. In Jauregui’s article, the author records several instances where this occurs: newspaper headlines that show the then UP CM, Mayawati, with an “exorbitant security apparatus of ‘350 cops, 34 vehicles’ ”; or a VIP household that managed to get Z-level security protection given by around 40 personnel, just by making a backdoor arrangement with an associate of the CM.[59] Officers claimed that such persons often just steal a bunch of cops and vehicles for their personal use, whenever they wanted to. Official data reflects this as well. In 2018, there were 63,061 policemen allocated towards 21,300 Protected Persons (such as Ministers, MPs, MLAs, judges, bureaucrats, etc).[60] Keeping in mind the sweeping budget cuts in modernization grants and the measly 15 crores devoted to forensics, it is very telling that the Special Protection Group of the Prime Minister got 145 crores in outlay.[61]

It appears that the so-called servants of the public are effectively delegitimised and disempowered from being anything more than glorified butlers by overpowered VIPs.

When pieced together, a particularly distressing system is revealed. Cops are under-trained and overworked, so when citizens come to them with accusations of petty crime they resort to beating the culprit as a deterrent instead of lawfully detaining him. They are paid too little and lack public or official respect, and thus turn to corruption and bribery to supplement income. They lack resources and forensic support, so they torture ‘criminals’ to get a quick confession. The constables have little oversight and accountability, so they are free to fabricate evidence and cover up their tracks. They may lock you up ‘preventively’ or at the request of some influential MLA. They may arrest someone who looks ‘suspicious’ to prevent a future FIR. They are diverted to act as security for VIPs and neglect the detainees languishing in jail, waiting to be lugged to the magistrate.

Such an examination is not meant to acquit brutal cops of all wrong-doing, but expand the scope of the blame. To the educated public, it seems transparent that if a law is in place, the cops ought to follow it. But if you ask the policemen themselves, they say that they have no choice but to use extra-legal methods. Younger officers are taught from the first days of training that brutality is a part of the job. At best, the police can do little more than enforce their own version of ‘order’, and at worst they turn corrupt and indifferent. Even if much of the time they do follow the law, the many conflicting and contradictory demands that they must fulfil spill over into society in the form of illegal detentions, torture, abuse or extra-judicial killing. As Officer Singh put it,

“No one is born corrupt. It’s a tailor-made system: if you’re not corrupt, you won’t survive.”[62]

Police & Protest

In order to realise why political leaders rarely make police reform a part of their manifestos, it becomes necessary to realise their relationship with policing. Some theories of statehood define the nature of government authority as being a monopoly on coercion (or more exactly, on violence), and democratic processes as regulating this authority. However, such accountability is absent when we consider that much of the data provided so far has not been through government sources. The state that claims to function on behalf of its people cannot be seen admitting to abusing them, even though it usually does. In many cases, it is precisely when citizens protest and demand the state to respect their rights that India’s heavy hand lashes back.

Against the backdrop of rising neoliberal freedom, states along the DMIC (Delhi Mumbai Industrial Corridor) have often had the help of police in maintaining a region free of labour unrest, for the sake of an investor-friendly image. For instance, Haryana has a long history since the 1970s where the police –

“..would routinely round-up activists and suspected union sympathisers and either illegally detain them or beat them up. (..) Harassment of workers by police continues even today. Police often stop workers commuting in Gurgaon and ask where they are from. Workers from Bihar or UP are singled out and beaten up.”[63]

In 2005, Honda workers striking against the company were asked by the administration to gather at the lawns, where they were indiscriminately beaten by the police. They were then denied food, water and medical aid, while many were even arrested and thrown in jails instead of being hospitalized for their injuries. The incident went unaddressed by the state.[64] In January 2019, several central trade unions in India called for a two-day nation-wide strike. A rally of 2000-odd workers were led by the Daikin Air Conditioning Mazdoor Union and attempted to unfurl the union flag. What would otherwise be considered a constitutionally guaranteed right to expression was perceived differently by the police, who were supposedly called there by the Daikin management. The police resorted to a violent clash and assault on the peaceful strikers.[65] They then arrested several workers, filed FIRs on charges of murder, and this too went unaddressed by Mamata Banerjee’s state. In November 2019, Telangana State Road Transport Corporation (TSRTC) led a rally and day-long shut down in opposition to the state government’s aim of privatizing TSRTC. As the rally progressed towards the ‘tank bund’, hundreds of workers were tear-gassed and lathi-charged, and around 5,000 were taken into preventive custody.[66] It is in this context that we must place the fact that in the same year, India climbed 14 places to rank 63rd in the World Bank’s “Ease of Doing Business” report.

The police are the favoured choice of response to any movement demanding change in the status quo, not simply to workers’ rallies. In Kanyakumari, on May Day 1989, there was a march under the banner of “Protect Waters, Protect Life”, led by 100 women. Fishermen concerned about the nuclear power plant at Koodangulam polluting the waters became vocal about their concerns. As the march drew to a close, without any provocation from the marchers, the police opened fire on the crowd of 10,000 people.[67] As one protestor recalls, “When it reached Kanyakumari it was an anti-nuclear protest against Kudankulam. Police opened fire and injured seven, including a parish priest.”[68]

Or consider Vachathi (a village in southern Tamil Nadu) in 1992, which stopped forest officials from searching their homes and locality for a sandalwood smuggler. The officials returned the next day with 108 armed policemen, 155 forest department personnel and 6 revenue officials, who stormed the village, thrashed the men, looted their homes and gang raped 18 women. The case was taken up by courts, which found 269 of the accused guilty after 19 years in trial.[69]

In 1999, workers from the tea estates of Manjolai marched to demand higher wages, maternity leave for women, and better working conditions. R. R. Srinivasan’s documentary “Oru Nathiyin Maranam” (Death of a River) paints a picture of the scene – when police began firing and lathi-charging the workers, they fled into the nearby river. 6 died due to injury, and 11 drowned.[70]

In 2007, West Bengal police attempted to ‘recapture’ Nandigram, where a proposed plan to set up an SEZ for an Indonesian company was staved off by farmers and activists refusing government encroachment. The resulting clash left 14 farmers dead by police fire, and tens others ‘missing’ due to the involvement of CPI(M)’s henchmen.[71]

The anti-Sterlite protests in Thoothukudi, 2018, is the most popular recent example of policemen sheltering their violent responses to local rallies behind a veneer of authorized ‘crowd control’. It is the same excuse used in the anti-CAA protests in Delhi, and across the nation. This claim disregards the fact that even in such situations where the police are overwhelmed, there is federal protocol[72] – first tear-gas, then batons, then firing aimed at the feet.[73] In all the aforementioned incidents, this protocol was not followed. It is merely a thinly veiled excuse for protecting the interests of the state rather than rights of citizens. One IPS officer expressed that he was very sceptical of the reports of inquiry commissions, such as in the case of the Mumbai or Gujarat riots, for the tendency was to blame the police and absolve politicians while his experience was that the policemen serving under him acted on a non-partisan basis.[74]

An Unusual Silence

India’s history with protesting has always been a blood-stained affair. There are several pressure points in the country, and most of politics here campaigns on those issues. Precisely for this reason, the hands of politicians go deep into the response of the police on anything provocative – sometimes, it is politically useful to brutally crackdown on union rallies, but other times it is neglecting a riot that could turn an election. In yet other cases, the presumably benign biases of an under-trained police can sometimes fan the flames of riots.

Bombay, in December 1992 and January 1993, was the site of widespread protests by Muslim communities over the controversial destruction of the Babri Masjid. In the wake of the communal violence and riots that followed, the Government of Maharashtra appointed the Srikrishna Commission to inquire into it. The final report was strongly worded, condemning the BJP, Shiv Sena and the then ruling party of Maharashtra, Congress. A final tally of the casualties put the figure at 900, of which 575 were Muslims, 275 Hindus, and the rest unknown. Police firing was shown to be responsible for more than 350 of the deaths.

The most concerning takeaway of report was the spotlight thrown on the responses of policemen:

“The bias of policemen was seen in the active connivance of police constables with the rioting Hindu mobs on occasion, with their adopting the role of passive on-lookers and finally, in their lack of enthusiasm in registering offenses against Hindus even when the accused were clearly identified. Despite clear clues the miscreants were not pursued, arrested and interrogated particularly when the suspected accused happened to be Hindus with connections to Shiv Sena or were Shiv Sainiks.”[75]

They were either passive and negligent of the on-going riots, or actively encouraged or participated in them. In one case, where a victim targeted by Shiv Sainiks went to Inspector Vinayak Patil for help, he responded saying “If a Muslim dies, there will be one Muslim less.”

Muzaffarnagar, in UP, saw its worst communal clashes of the decade in 2013. Similar to the 1992 riots, members of political parties had their hand in fanning the flames – this time it was the BJP and the Samajwadi Party[76]. The police showed little desire to involve themselves in this violation of law and order. When a group of Jats returning from a communally inciting assembly were attacked by a Muslim mob, the police idly stood by, saying that they “..did not have orders to act”.[77] Pre-electoral tensions ran high, and the cops were seemingly told by more powerful men to stay their hand. Sub-Inspector R.S. Bhagaur admitted that higher-ups were able to get what they wanted from him, saying:

“..the fact that I'm sitting in this police station is because I have said yes to what they wanted, otherwise I would have been suspended, sent home. I'm getting old, my kids will be troubled, where will I get food from?”[78]

Still fresh in the memory of many Indians is the anti-CAA protests, which too saw a communal taint to it when a mosque in Shiv Vihar was set on fire. Northeast Delhi was rife with riots, killings, and destruction of property in Muslim- or Hindu- dominated lanes. However, on the issue of police response, both Hindus and Muslims agreed that cops remained silent and unresponsive to frantic calls by the public.[79] This distressing negligence was raised in the Supreme Court by Prashant Bushan, seeking implementation of reforms, but the matter was postponed until after the Sabarimala hearing[80]. As of writing the article, there has been no follow-up to this petition.

In all these cases, political interference may be inferred from the actions of cops, but more direct links are visible in their regular functioning as well. The efficiency of the police is often judged by a singular metric of crime rates, and a rise or fall in these rates is seen as a reflection on the party in power in that region. Human Rights Watch in 2009 interviewed several cops, who claimed that political leaders often pressured them to reduce crime – not by tackling it, but by registering fewer FIRs[81]. In some stations, there are even unofficial monthly quotas on the number of FIRs that may be registered.[82] Petty cases and civil disputes raised by lower income communities are usually the ones that get ignored in this process. For instance, despite having special laws to protect them from casteist violence, these are rarely enforced since the police simply don’t register the complaints that Dalits bring.[83]

Demands for under-reporting crime go hand-in-hand with demands for harsher crackdowns on crime. Taking Uttar Pradesh again, one of the most important states politically, Yogi Adityanath ran a campaign focused on crime reduction. The dismal state of law and order in UP only worsened after the election, and the BJP candidate doubled down on ‘encounters’ in an attempt to show strength – leaving 433 dead by police fire in 6 months, most of whom weren’t criminals.[84]

Clearly, the men and women serving in law enforcement are visibly accountable to whoever wins the election rather than the people. This is surprisingly a provision that may be legally protected, depending on how the law is read. Section 3 of the out-dated Police Act of 1861 provides that the “superintendence of the police” is to be exercised by the respective State Government. While there have been amendments to this section in the last decades, the concept of “superintendence” is not defined, allowing it to be loosely and broadly interpreted by those in power.[85] The sovereign abilities of the police to function independently are questionably weak.

Jauregui’s sociological lens of research reveals some disturbing informal practices that codify this power structure. When UP cops worked against these unofficial pressures, they said they were threatened physically or even faced attempted murder. If they politely refused, they may be faced with a transfer to an undesirable post. One officer tried to reason for this by saying,

“…were we to function properly, and enforce the law, this would lead to many of their [political leaders’] convictions in court and would take away their power. So they want to weaken the police, or at least to keep us weak enough so that they cannot be touched by the law. This is why our reputation is as bad as it is”[86]

In Tamil Nadu, there were similar sentiments among long-serving officers, lamenting that politicians brought in ‘favouritism’, lowered scrutiny by bulk recruiting constables, pressuring officers to cover up cases or register lesser FIRs.[87] Courts and government authorities are not unaware of this. In 2007, the Second Administrative Reforms Commission focused on the tendency of politicians to corrupt police personnel for their own interests and wrote that issuing such malicious or illegal directions to police ought to be made illegal. That hasn’t happened yet.

Whose Law and Whose order – Impunity for Illegality

The NCRB publishes annual reports on “Crime in India”. From 2005 to 2018, about 500 cases of deaths in custody resulted in 281 cases being registered and 51 police officers had a charge sheet filed against them. However, as of 2019, not a single conviction was achieved.[88] While one reason is the delay of justice common to all of India, another more relevant cause has been escaping the clutches of legal retribution in many ways, legal and illegal.

The first problem lies in the invisibility of the issue and its lack of accuntability. Victim recourse mechanisms are particularly weak in India (examined in the following chapters), and does not provide security or structural accountability to those who do decide to pursue justice. Often, the fear of retaliation, further arrest and added torture simply silences victims from ever coming forth with complaints. Even though the practice of torture is an open secret, the fact that most victims are from vulnerable communities and are under-educated proves to work in favour of the policemen. As Lokaneeta writes, quoting Michael Taussig, “the information about the act is shared yet repressed such that ‘it is generally known, but cannot be articulated.’”[89]

For instance, in 1989 Brahmadeo Singh Sharma, then an 84-year-old editor of Awaaz, a local Hindi daily in Bihar, was dragged from his house by police one evening. He was forced to stand several hours, and when local journalists came to enquire about his condition in the lock-up, their camera was smashed.[90]This was in response to an editorial that Sharma had written about the impunity granted to officers who had publicly stripped and beaten Malati Manjhiyan, a tribal teenage girl. In 2012, Krishna Mondal, a farmer, and his wife filed a complaint with the Superintendent regarding his torture by police officials. Immediately afterwards, Border Security Forces teamed up with local police to harass and intimidate him and witnesses of the event into withdrawing the complaint. They sent death threats, and pressured a doctor into giving false statements.[91] Migrant women in Delhi are often victims of police rape, but most often they disappear following such abuse due to fear and intimidation.[92] The NHRC and Asian Center for Human Rights Commission have dedicated efforts into notifying government authorities about such routine instances of harassment and obstruction of justice, but even their work cannot capture the full extent of fear among victims of torture.

Such investigations and checks on torture are meant to be done by custodial jurisprudence, or magistrates, but as we’ve seen this does not occur. This means that the bulk of legal protection comes from civil groups and watchdogs acting on behalf of the victims. The primary organisation tackling this is the National Human Rights Commission of India (NHRC), but even they are limited. NHRC staffs have reported that they receive many complaints from survivors of torture, but they do not work with them or gather this information since the focus is on granting compensation to families of those who died in custody.[93] Furthermore, the egregious crimes committed by armed forces, border security personnel and other paramilitary organisations do not even fall under the NHRC’s mandate[94], so they are unable to take such cases up.

Even when civil rights groups represent victims and encourage justice, this is limited to monetary compensation for their families only. India lacks any statutory right to compensation for such deaths to begin with, thus leaving it to be determined at the will of the judiciary or NHRC. [95] This process does not require a full criminal investigation either, due to insufficient standards of evidence in courts – which means the state or police need only establish harm to the victim. There is no prosecution required of the guilty party or admission of wrongdoing to secure this compensation. Such cases do not help deter the practice as there is no accountability established. This was the view reiterated by the Special Rapporteur of the UN to India, Christof Heyns, saying,

“The practice of paying compensation … while not pursuing criminal investigation and prosecution of the perpetrators in their cases further perpetuates impunity due to an absence of individual accountability. [Compensation] cannot replace the judicial process of bringing a perpetrator to justice.”[96]

The second issue arises with respect to legal protection for officers of the state. Section 197 of the Criminal Procedure Code lays out that public servants (including Judges, Magistrates and police officers) enjoy immunity from prosecution unless there is explicit permission from the concerned government. This provision is extended to the army as well under Section 45 of the same code. These protections are meant to safeguard public servants from malicious prosecution, but instead serve to deter victims from pursuing justice.

The third problem is with the manner of reporting torture in India. There are no officially published sources of information on the prevalence of torture or mistreatment by police and army officials, and this makes it difficult for the issue to be addressed at all. This is primarily due to the fact that the act of torture in and of itself has not been defined or explicitly illegalised in law; it is only protections guaranteed by Articles 20 and 21 and the non-admission of coerced confessions that do this task. The only way of measuring torture is according to the cases of custodial deaths that occur, which obviously exclude all forms of torture that do not lead to death.

The NHRC published that 1,966 such custodial deaths occurred in 2018, 147 of which were in police custody[97], while the NCRB reported that for the same year there were 70 such deaths in police custody, which is half the NHRC’s count. More alarmingly, NCRB doesn’t list torture or abuse a reason for death at all – only 3 cases were listed as being due to injuries from police assault. The rest of the cases are claimed to be due to ‘natural deaths’, illness, suicide, being killed during escape, or “other” reasons.[98] The first problem with this claim is that several detainees appear to be in good health prior to arrest. The second is that this categorisation of data implies that even when torture, abuse and sexual assault lead to degradation of mental and physical health resulting in death or suicide, it is not attributed to the policemen themselves.

The NCRB relies upon reports from the state governments, and then compiles and analyses this data. Studies, however, have found this method of compilation to be worrying. With respect to crimes in general, the low density of policemen allows easier concealment of murder, and high rates of corruption enable suppression of existing criminal records. Some studies also show that there may be incentives for the police to misreport or under-report any type of crime.[99] An added area of concern in 2019 became the explicit exclusion of demographic data on prisoners’ castes or religions, a category that was consistently revealed in NCRB’s annual reports on prison statistics prior to 2018.[100] Such data has been frequently used to showcase the over-representation of minorities in prisons, often juxtaposed with data that show a severe lack of SC/ST/OBC judges. This seems to no longer be possible, and whether this is a conscious decision made by the ruling government is unknown.

The fourth problem is probably of most concern. There appears to be a normalisation amongst police of covering up acts of torture, denying it, intimidating or harming witnesses of it, and goes as far as fabricating evidence to throw off complaints. This was best exposed in the report published by Human Rights Watch in 2016, “Bound by Brotherhood: India’s Failure to End Killings in Police Custody”. It used 17 case studies of custodial deaths and remarked upon the manner in which these crimes were covered up, and identified commonalities:

“In each of the 17 cases, the police did not follow proper arrest procedures—including documenting the arrest, notifying family members, conducting medical examinations, or producing the suspect before a magistrate within 24 hours—which made the suspect more vulnerable to abuse and may have contributed to a belief by police that any mistreatment could be covered up.”[101]

In many of the cases where victims are said to have died due to torture, the police create other explanations in their report, despite the victims’ families claiming that they were in good health before arrest. UNCAT’s Annual Report on Torture examines 40 such cases[102], in which the police reports claimed that prisoners died:

● Due to sudden breathing problems, body pain, or chest pain,

● Due to sudden unexplained unconsciousness in normal circumstances

● In their sleep

● Due to sudden deterioration of health or poor health,

● By suicide (often cited as being caused by pre-existing mental illnesses like depression),

● Due to pre-existing health problems like tuberculosis or hepatitis,

● Due to injuries sustained while fighting with other prisoners,

● Due to prior alcoholism,

● In bizarre circumstances (such as touching a live wire, or one case where the prisoner suddenly fell down while he was doing “Surya Namaskar”, a yoga position[103])

To back these claims, the police also report that they immediately took these prisoners to hospitals for treatment, where they died. However, witnesses allege that the bodies frequently had bruises, stitches and injuries inconsistent with the claims of the police. Furthermore, these claims contrast with other cases of deaths in judicial custody, where those who do complain of chest pain and existing health problems are often neglected, and die as a result of lack of medical attention or provision of medicines. Why the cops speedily admit certain prisoners to hospitals and neglect others is not explained by the data.

Very often, post-mortems are not conducted or autopsy reports not generated, but even when they are produced they fail to meet any standards of acceptability. Doctors who conduct these autopsies do not disseminate or follow any standardised protocols for investigating deaths in police custody, such as the Minnesota Protocol[104] or the Istanbul Protocol[105]. As a result, they are poorly trained in forensic methods and produce impartial reports.[106]

While NHRC calls upon magistrates to keep record of these reports, this task is frequently delegated to the police themselves. With constant oversight over doctors, it is no surprise then that the autopsy reports very often support the police’s telling of events despite contradictions.

The complicity of medical professionals adds a further layer of immunity. Anecdotal evidence suggests that the practice of pressurising doctors to produce false or negligent reports is common and difficult to expose. Human Rights Watch recorded an instance where Dr. Archaran refused to rule a death as due to tuberculosis when it was evidently because of torture, and the police applied great pressure on him to change his report. He only succeeded in resisting this as he was not employed by the police, as most forensic doctors are, and was backed up by the Resident Doctor’s Association.[107] This was an unusual case, they claimed, as most doctors simply go with police orders. A Bombay doctor interviewed by Amnesty International said,

“Normally the history of torture does not come out. Even if it does we haven't been taught to do anything. Torture is seen as official.”[108]

In some cases, the autopsies are not even conducted by a doctor, but cleaners working in the morgues.[109] To counter fabrication of evidence, the NHRC has taken to insisting upon video recordings of the bodies which are then to be cross-referenced with the reports, stating,

“The Commission is alive to the fact that the process of video-filming will involve extra cost but you would agree that human life is more valuable than the cost of video filming and such occasions should be very limited.”[110]

Not only are families of victims routinely denied access to post-mortem reports, but the tradition of cremating bodies in India is sometimes used to deny the families from witnessing the evidence of torture.[111] In the case of Jayaraj and Bennix, it is the post-mortem procedure that allowed the family to truly witness the brutal treatment the victims had gone through, and served to amplify the ease of proceedings in court and the subsequent charges of murder laid on the policemen.[112]

Often, even when deaths in custody are due to health complications or illnesses, studies have noted from the post-mortem reports that it is likely that torture aggravated the conditions and may have indirectly caused death. Cardiac arrests are more likely in stressful situations; strokes can be induced by head injuries and high blood pressure; even tumours can be aggravated by assault and injury. In other words, “The mere presence of a demonstrable pathology does not exclude the possibility of trauma.”[113]

The implications are clear. Any one of the above problems being addressed could lead to a surge in the number of policemen convicted for torture and rape – by empowering victims and their families to come forward, by enforcing proper documentation, by amending legal protections afforded to wrong-doers, by providing robust forensic training, by enforcing autopsy standards. Accountability has been prevented at all of these levels.

A Dirty Word

There have been regular reports on torture, police reform and abuse by a diverse range of civil and human rights outfits such as Human Rights Watch, People’s Union for Democratic Rights, National Campaign Against Torture, Amnesty International, Commonwealth Human Rights Initiative, and Jammu Kashmir Coalition of Civil Society, to name some. Apart from this, torture and neglect of prisoners has also been addressed by various judicial and national commissions:

1. by the National Police Commission (1980) in its Fourth Report;

2. by the National Commission to Review the Working of the Constitution (2002);

3. by the Law Commission of India in the

- 78th Report on Congestion of Undertrial Prisoners in Jails (1979)

- 113th Report on Injuries In Police Custody (1985),

- 152nd Report on Custodial Crimes (1994),

- 154th Report on ‘The Code of Criminal Procedure, 1973’ (1996)

- 177th Report on Law Relating to Arrest (2001),

- 185th Report on Review of the Indian Evidence Act, 1872 (2003),

- 262nd Report on The Death Penalty (2015),

- 268th Report on Amendments to Code of Criminal Procedure 1973: Provisions Relating to Bail (2017)

- 273rd Report on Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation (2017)

- 277th Report on Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (2018)

1. and by the National Human Rights Commission through its Guidelines on Custodial Deaths/Rapes.

This list is not exhaustive, and does not include the numerous Supreme Court judgements that have acknowledged torture or ruled upon its aspects.

Nevertheless, a puzzling paradox exists in the Indian state. Despite the consistent effort by human rights organizations and legal commissions enquiring into the matter, there is a concerted denial of the practice at the state level and even an avoidance of the word “torture”, often being referred to as “third degree methods”[114] instead. After decades of pressing on the matter, it is only recently that the Indian state has even agreed to the existence of torture in our jails and prisons.

India, like most other countries, shows a desire to maintain an appearance of democratization within the international community. To this end, the denial of torture can be quite direct. Infamously, the late Indian Prime Minister Rajiv Gandhi in 1988, said,

"We don't torture anybody. I can be very categorical about that. Wherever we have had complaints of torture we've had it checked and we've not found it to be true"[115]

The added fact that India lacks a definition of torture allows the statement to be technically true. But because of its obvious practical falsehood, Lokaneeta notes that this sort of denial is interpretive, using the law itself to deny the presence of an act[116]. This is done by claiming that the country has a strong legal system, a free press, and civil rights organizations that adequately address the issue. In fact, this is precisely what was said in several words by the Indian Delegation’s Leader, Mukul Rohtagi, at the UN in 2017:

“… the concept of torture is completely alien to our culture and it has no place in the governance of the nation… The Law Commission of India has been examining the changes required to domestic law.... In the meantime, acts of torture remain punishable under various provisions of the Indian Penal Code… India’s National Human Rights Commission has in place a robust monitoring mechanism for cases of extrajudicial executions.”[117]

Denial can be indirect as well. The UN Special Rapporteur on Torture had been requesting permission to visit the country since 1993, which was denied up until 2011. In comparison, the UN was given access to Pakistan in 1997, to Nepal in 2005, to China in 2005 and Sri Lanka in 2007. When the invitation was finally extended and the Rapporteur visited India, it was noted that

“… some civil society representatives whom [the Rapporteur] met during the visit reported afterwards that they faced intimidation from the authorities for having cooperated with him.”[118]

At other times, there is a complete deflection from the issue of torture or abuse. In the case of Vijay Mallya’s extradition, explicit concerns were raised by the UK courts regarding prison conditions in India, which was met with a particularly sour response from PM Modi, which was quoted by Susha Swaraj,

“I need to say that these are the same jails where you had kept Mahatma Gandhi, Pandit Nehru and India’s big leaders. So, it’s not right for your courts to raise questions about those jails,”[119]

What is striking, however, is that the very prison where Nehru and other congressmen were held has collapsed due to neglect and poor upkeep of the building.[120] Thus, the implication that these jails were built by the British does not absolve responsibility. It remains a stain on India’s image to know that the colonial jails are still playing the same role that they did pre-1947. However, knowing full well that torture is a public secret, the Centre and States choose to explain its prevalence differently. For instance, during the shooting of the opening scene of ‘Slumdog Millionaire’ which depicts a policeman torturing Jamal, a New York Times reporter discovered that

"the Indian authorities told Christian Colson [the producer] to take out the police commissioner from the scene. No police officer above the rank of inspector should be shown administering torture, they said."[121]

As Lokaneeta notes, it seems as though the Indian state is more concerned about ensuring that senior officers are not implicated in the act than it is about showing and normalising torture itself. By claiming that our judiciary and civil societies have already taken note of the question, there is room to prevent committing to any concrete action that can incriminate the state authorities or their complicity in torture. The tendency, rather, has been to place blame on the ‘bad apples’ within policing, often under-educated, under-paid and overworked.

Judicial and Legislative Reforms

As has been examined, much of the recourse for victims lies in the hands of the NHRC and higher courts, a task that has been made substantially more difficult in the absence of backing legislation. The Supreme Court often takes up the role of filling in gaps or “vacuums” in legislation, especially when these gaps pose threats to life or livelihood. Some progressive precedents can be found in the cases of Satpathy vs Dani (1978) [right against self-incrimination], Joginder Kumar (1994) [arrest guidelines], or Nilabati Behera (1993) [claim to compensation in the case of custodial death], to name a few. One universally recognised landmark case in the realm of police reform is in D.K. Basu Versus State of West Bengal[122], which upheld that custodial violence prevents rule of law. The judgement laid down more than twenty guidelines for police conduct in 1996, including wearing proper identification, installing CCTV cameras in lock ups and notifying family members of arrest. The SC has been particularly energetic in its pursuit of progress reports on the DK Basu guidelines from all 29 states. Despite this, most states still show reluctance to implement it.

However, with respect to torture on its own, the SC has been unable to criminalise the act. In the case of Tehseen S. Poonawalla v. Union of India and Others,[123] the Supreme Court looked at mob lynching as a pervasive problem that posed a unique threat to life, and considered it a Constitutional duty to set its own special law on the matter. The judgement was despite the fact that the IPC criminalises mob lynching already. This was not replicated for the item of torture raised by Dr. Ashwini Kumar in his petition to the SC[124] in 2016. The bench said that since there is a Bill pending in parliament, it could not step in fulfil the role of legislature. The bench also cited Sections 330 and 331 of the IPC and the DK Basu guidelines as being sufficient; but both these provisions have proven to be inadequate. Sections 330 and 331 of the IPC do not particularly criminalize torture but it penalizes only “hurt”, one of the elements of torture. The definition of what constitutes ‘hurt’ has also been left ambiguous – it excludes torture not resulting in injuries such as sleep or food deprivation, mental torment or trauma caused, forced humiliation such as stripping detainees, sexual offences, or the forced administration of drugs. DK Basu also does not criminalize torture; it only lays down guidelines to prevent it. As a result, failure to comply can only punish an officer or constable for contempt of court and not for the act of torture committed.

The best standard for progress is the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which India has signed but not ratified. According to Jinks[125], such treaties and codes in international law result in:

1. precise norms of conduct

2. clarification and acceptance of these norms

3. delegation of authority to supranational institutions to resolve interpretive disagreements and to enforce these interpretations of norms.

The 273rd Report of the Law Commission also touched on this, stating that there is an obligation of “‘erga omnes’ (owed to and by all States) to take action against those who torture” that arises out international norms.

In 1994, the NHRC recommended that India accept the Convention, but states opposed it on the grounds that it would be allowing ‘an international agency to interfere in the internal affairs of the country’. However, the Convention was eventually signed on October 14, 1997 after NHRC remarked that failing to sign it would be seen as condoning torture.[126] Ratification, however, is yet to occur, which is due to the absence of an enabling domestic legislation, in reference to Article 253 of the Constitution[127]. This legislation is currently in the form of the Prevention of Torture Bill, first introduced by Mr. P. Chidambaram, then Minister for Home Affairs, in 2010. Its passage was a hurried affair. The Bill was tabled in the Lok Sabha on 6th May after 9 pm in the night – the day before the House session ended. An e-mail by the CHRI noted that,

“Not a single member from the main opposition party – the BJP spoke on the Bill. Similarly, RJD, BSP, CPI, NCP, NC, Shiv Sena, did not say anything on the Bill.”[128]

Interestingly, though the debate on the Bill was short, the speakers openly acknowledged the casual prevalence of police abuse and its regrettable normalcy in the State. Shri A Sampath of the CPI-M even said,

“I am standing before you because I have been subjected to severe torture… Even the Leader of the Opposition, Mr. AK Gopalan, was subjected to severe torture several times by the police.”[129]

Others, such as Shashi Tharoor and Arjun Ram Meghwal decried that passing laws in the absence of social sanction may not be sufficient, and that the police and the public must be trained to outmode extra-legal methods. Following the Bill’s passage, human rights organizations raised objections to many of its provisions on the grounds that they were either not in line with the UNCAT provisions, or were insufficient in scope. The Rajya Sabha then instituted a Special Committee to report recommendations on the matter, but the revised Bill was not passed. A different version of the Bill was recommended again by the Law Commission, and is yet to be introduced in the House. It appears to be a regression from the more expansive wording used in the revised 2010 Bill – the 2017 Bill withdrew the references made to gender-based torture and humiliating treatment; it used terminology that may be exclusionary of some forms of torture that occur (such as in the use of words “severe or prolonged pain”, which can potentially be interpreted subjectively by courts), as well as laying down punishments that are less severe than the previous Bill[130].

A brief timeline of the Bill is as follows:

● Oct, 1997 – India signs UNCAT

● April, 2008 – India accepts recommendation of the UN to ratify the UNCAT

● April, 2010 – Prevention of Torture Bill Introduced by P. Chidambaram

● May, 2010 – Bill passed by Lok Sabha

● August, 2010 – Bill referred to Select Committee headed by Ashwini Kumar

● Dec, 2010 – Kumar Committee submits report, recommending compliance with UNCAT

● May, 2012 – India accepts recommendation of the UN to ratify the UNCAT; does not ratify

● May, 2014 – Bill lapses as the 15th Lok Sabha is dissolved

● Sep, 2017 – India accepts recommendations of UN to ratify the UNCAT; does not ratify

● Oct, 2017 – Law Commission of India’s 273rd Report released recommending ratification of UNCAT; India does not ratify

● Nov, 2017 – SC dismisses Ashwini Kumar’s petition asking the SC to direct states to implement the recommendations of the 273rd report

● Feb, 2018 – SC refers the PoT (2017) Bill to all States

● Feb, 2019 – Union of India affidavit claims that the bill is “under consideration”

The Lok Sabha has been sitting on the Bill for more than a decade now, a Bill which has been criticized for being inadequate and cursory, but a start nevertheless on the issue of legal recognition of torture. From the 1850s to 2020, the buck has been passed by subsequent governments, with none taking the baton of police reform substantially. It is thus a multi-partisan failure.

A Habit of Bad Compliance

‘Police reformation’ is not a new word for the States in India, and neither is ‘reluctance’. Since the 1990s, apart from the Law Commission’s Reports, the unofficial agenda item has been addressed by a range of diverse committees and persons in all levels of authority, and the major initiatives have been:

1. The State Police Commissions

2. The Gore Committee on Police Training

3. The National Police Commission

4. Police Reforms and the Supreme Court: Prakash Singh v. Union of India

5. Writ Petitions (Criminal) Nos. 340-43 of 1996

6. The Ribeiro Committee on Police Reforms

7. The Padmanabhaiah Committee on Police Reforms

8. The National Human Rights Commission

Most relevant among these is the case of Prakash Singh v. Union of India, in which 2 retired DGPs, Prakash Singh and N.K. Singh filed a PIL addressing the deficiencies in the police’s function. After 10 years in session, the Supreme Court laid out 7 directives aimed at progressive police reform

1. Constitute a State Security Commission to reduce political interference and evaluate police performance

2. Ensure that the DGP is appointed through a merit-based, transparent process with a minimum tenure of two years;

3. Ensure that other operational police officers (like SIs) also have a minimum tenure of two years;

4. Set up a Police Establishment Board, to decide all transfers, postings, promotions of police officers;

5. Set up a National Security Commission at the union level for selection and placement of Chiefs of the Central Police Organisations

6. Set up independent Police Complaints Authorities

7. Separate the investigation and law and order functions of the police

The progress on implementation of these reforms following the Prakash Singh case was tracked by a monitoring committee set up by the SC, headed by Justice K.T Thomas. States were required to regularly submit progress reports on their compliance with norms. However, the states have remained resistant to change and the implementation of the directives is at a dismal level of compliance. The CHRI notes that this non-compliance is puzzling, since at the time of issuance of the directives, none of the counsel, lawyers or the states themselves objected to the wording used by the court.[131]

Instead, several states filed affidavits afterwards raising objections to the requirements, by contesting the need for some of the reformative provisions[132] and raising simultaneous and sometimes contradictory claims: that political interference in police doesn’t occur, that a State Security Commission could undermine the state’s power (a particular concern for Andhra Pradesh[133]), that fixing tenures of senior officers would impact functioning, and that setting up Complaints Authorities would drain resources unnecessarily since police excesses are a rare phenomenon. Jammu and Kashmir is the only state on which information is next to unavailable, but have also requested to be exempt from following the guidelines due to the ‘security situation’ in the state. In its report submitted in 2010, the monitoring committee said that they had:

“..(N)o hesitation in concluding that practically no State has fully complied with those Directives so far, in letter and spirit, despite the lapse of almost four years since the date of the original judgment.”[134]

This situation has also been exacerbated by yet another interpretive complication. Nearly all states took advantage of the provision in the Supreme Court’s judgement, which quoted that these directives must be followed “till such time a new Model Police Act is prepared by the central government and/or the state government pass the requisite legislation”[135]. All states have since either passed new Acts or executive orders, something that they did not consider for the last 65 years. In fact, Odisha’s Police Bill was passed so quickly that it bypassed the presence of opposition party members, and the Bill was rejected for being undemocratic.[136] In all these cases, it was clearly only done so as to avoid implementing the directives[137] and the “states that have legislated pretend to obey the Court’s orders but in reality are subverting and diluting them so that they have little corrective value”.[138]

Notably, none of the new statutes that were quickly passed have mentioned that one of the functions of the State Security Commission (SSC) is to ensure that the state government does not exercise ‘illegitimate influence on the police’.[139] In many states, the Commissions are rather directly run by government officials or bureaucrats instead of being non-partisan and independent. The SSCs have had their mandates diluted, independence undermined and their powers limited to proposing recommendations rather than having binding powers as stated by the SC.[140] Their status has been reduced to that of a minor advisory body when the goal was to use the Commission as a means to oversee crucial and overdue police reformation.

In a similar fashion the Police Complaints Authorities have been kept alive on paper but also suffer from ailments that have crippled their efficacy. Affidavits filed objected to this requirement on the grounds that complaints are few, and having such an authority could undermine the police’s morale. Equivalent concern for the morale of constables has not been afforded – whether with respect to pay, training or modernisation of tools. In sharp contrast to these objections, though, NCRB shows that 5,479 complaints against police personnel were recorded in 2018 alone. Nearly half of the cases did not result in a charge-sheet, and no explanation was given as to the grounds on which the cases were dismissed. 58 further cases were dismissed by courts. Eventually, only 41 policemen were finally convicted, but almost none served time[141]. More troubling is the 89 cases of human rights violations filed against cops, which resulted in 0 convictions.

Despite this ground reality, PCAs are yet to be set up in several States, even 14 years on from the judgement. In States where they exist, the Authorities suffer from various the maladies of financial dependence, being subordinate to the States, lack of autonomy, limitation of scope and skeletal staffing.[142]

The Tamil Nadu Government has come under sudden scrutiny following the uproar over the Sathankulam murders, and many pointed out that had the State committed itself to holistic police reform as per the Supreme Court, the deaths could have been avoided. A PIL was filed in the Madras High Court in 2019, which pointed out that the Tamil Nadu Police (Reforms) Act of 2013 instituted Public Complaints Authority on paper, but was yet to be set up. The case is on-going, but the government has now installed a PCA in lieu of this.[143] The petitioner involved said that citizens had no idea that there was such a thing as a Complaints Authority in TN until the litigation began in court.[144] A CHRI report looked into compliance by TN officials, and found that the 2013 Bill and its on-ground implementation have been occurring but the provisions may have even strengthened political control over the police.[145] Jammu & Kashmir too attempted to pass a police reform Bill in 2013, which got tabled in assembly after civil societies booked several severe objections to it on the grounds that

a) It was made public and opened to suggestions on 14th February 2013, when the state was under curfew following the hanging of Afzal Guru, in the midst of blocked internet services and a widespread clampdown, due to which responses would have been minimal[146]

b) The provisions of the Draft Bill sought to “turn Jammu and Kashmir into a police state”, by allowing for wide powers, including collection of personal information on demand, increased surveillance of people and creation of zones and extensions of the police to collect information and take action.[147]

Other cases of non-compliance are less due to any malicious revisionism of police laws and more due to pure negligence. As of February this year, Andhra Pradesh and Telangana have still not constituted either the SSC or PCA in line with the court’s orders, and both states have been the subject of a suo motu contempt case in the High Court.[148] The Chief Justice outright remarked that it was nothing more than “delay tactics” and “gross negligence” from the Telangana State Government. The Maharashtra PCA has been non-functional ever since the government’s contract with it ended on January 1st, and no effort was made to renew it despite the backlog of cases. It was, however, always in limbo since the PCA office was perpetually severely under-staffed and led to many of the committee’s members quitting in frustration.[149]

It appears as if no state is ready to embrace reform or even consider it. Some speculate that this is likely due to the close nexus between politicians, their political goals and the role of the police in achieving these. Prakash Singh himself noted that, “Police reforms during the last eight years has been a story of defiance of the Supreme Court, enactment of laws which mock at the court’s directions and, at best, fraudulent compliance.”[150] When the MHA was asked whether the Centre will be calling upon states to show compliance with the SC, the response was that they cannot direct states in that manner because “the responsibility for implementation (…) falls within the domain of the State Governments”[151] It is evident, however, that the directives were doomed to be ineffective – the Supreme Court itself became exasperated with the utter indifference shown towards reform, stating:

“Not a single State government is willing to cooperate. What can we do?”[152]

These forums of justice have been left ignored, ineffective and inadequate to deal with the complaints and the pain of victims. One reporter, who attempted to help file such a complaint over the death of a Dalit couple’s son, discussed how even India’s model State of Kerala made a mockery out of the police system. The son had been subjected to brutal torture, fined, and told to return a week later. The next week, his lifeless body was found at his house and was ruled suicide. The reason for his abuse remains unknown. The boy, Vinayakan, was stopped by plainclothes policemen when they saw him on a motorbike, talking to a girl on the side of the road. When taken for ‘questioning’, they shamed him for his attire, his long hair, his earrings, and his friendship with the girl – which appeared to be a suspicious affair for some reason. The author herself faced a similar intolerance when,

“In court, my lack of dupatta was a subject of much concern for the male office clerk.”[153]

Basic freedoms to wear your own clothes, speak your own words, and buy your own goods are mundane only for the well-off. To the poorest, they become luxuries. It pays to remain wary of anything that could make you stand out to a roadside cop, because the inevitable lock-up could ultimately lead to their ruin or death. A State that refuses to act against this practice has made a policy out of propagating torture on its own citizens. There is no other way to view the matter.

[1] Kaveri, M. 2020. Justice for Jayaraj and Bennix: Timeline of two shocking custodial deaths in TN. The News Minute. https://www.thenewsminute.com/article/justice-jayaraj-fenix-bennix-timeline-two-shocking-custodial-deaths-tn-127424 [2] Ananth, M.K. 2020. Auto driver loses life to ‘police brutality’ in Tamil Nadu. Times of India. https://timesofindia.indiatimes.com/city/chennai/now-auto-driver-loses-life-to-police-brutality-in-tamil-nadu/articleshow/76670007.cms [3] Press Trust of India. 2020. Cops booked for custodial death in Bengaluru Rural. Deccan Chronicle. https://www.deccanchronicle.com/nation/current-affairs/120420/cops-booked-for-custodial-death-in-bengaluru-rural.html [4] Pandey, S. 2020. Uttar Pradesh BJP lawmaker asks police to shoot lockdown violators in their legs, declares reward for cops. Deccan Herald. https://www.deccanherald.com/national/national-politics/uttar-pradesh-bjp-lawmaker-asks-police-to-shoot-lockdown-violators-in-their-legs-declares-reward-for-cops-817959.html [5] Srivastava, P. 2020. ‘Beaten’ for stepping out for biscuits, UP teen dies. The Telegraph. https://www.telegraphindia.com/india/coronavirus-lockdown-beaten-for-stepping-out-for-biscuits-uttar-pradesh-teen-dies/cid/1766154 [6] Commonwealth Human Rights Initiative, 2020. Compilation of Deaths Following Alleged Police Excess During Covid-19 Lockdown. https://humanrightsinitiative.org/download/CHRI%20compilation%20of%20Deaths%20following%20Police%20Excesses%20during%20Covid%2019.pdf [7] Chander, B. 2020. HC asks State to continue police wellness programme for 5 years. The Hindu. https://www.thehindu.com/news/national/tamil-nadu/hc-asks-state-to-continue-police-wellness-programme-for-5-years/article31975214.ece [8] People’s Union For Democratic Rights, 2014. Crimes of Habit: A Report on Custodial Torture in Vijay Vihar Station. [9] National Project on Preventing Torture in India, 2008. Torture and Impunity in India. [10] NHRC. Human Rights Cases Satistics. https://nhrc.nic.in/complaints/human-right-case-statistics [11] NHRC, 2011. India releases its report for Second Universal Periodic Review of Human Rights in the Country. https://nhrc.nic.in/press-release/nhrc-india-releases-its-report-second-universal-periodic-review-human-rights-country [12] National Campaign Against Torture, 2020. India: Annual Report on Torture 2019. [13] Asian Centre for Human Rights, 2018. Torture: India's Self Made Hurdle to Extradition. http://www.uncat.org/wp-content/uploads/2019/05/Indiarefoulement.pdf [14] Anand G. 1987. Policing Lock-up Conditions. The Lawyers, Bombay, p. 7. [15] Neier, A., Rothman, D. & Human Rights Watch, 1991. Prison Conditions in India. https://www.hrw.org/sites/default/files/reports/INDIA914.pdf [16] Shukla, R. 2020. Custodial Torture: It Is the Criminal Justice System That Requires Investigation. The Wire. https://thewire.in/law/custodial-torture-it-is-the-criminal-justice-system-that-requires-investigation [17] Bajoria, J. & Human Rights Watch, 2016. “Bound by Brotherhood”: India’s Failure to End Killings in Police Custody. p. 50. [18] National Crime Records Bureau, 2018. Prison Statistics in India – 2018. Executive Summary. https://ncrb.gov.in/sites/default/files/Executive-Summary-2018.pdf [19] Thakur, A. & Nagarajan, R. 2020. In a minority, but a major presence in our prisons. Times of India. https://timesofindia.indiatimes.com/india/in-a-minority-but-a-major-presence-in-our-prisons/articleshow/73266299.cms [20] Bhandari, V. 2015. Pretrial Detention in India: an Examination of the Causes and Possible Solutions. Asian Journal of Criminology. 11. 83–110. https://doi.org/10.1007/s11417-015-9218-x [21] Asthana, N. C. 2020. Malicious Prosecution: A Deep Dive Into Abuse of Power by Police. 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[29] Section 6 of the Act [30] Extra Judicial Execution Victim Families vs Union Of India on 13 July, 2016. https://indiankanoon.org/doc/83144198/ [31] Assoc. of Parents of Disappeared Persons and Jammu Kashmir Coalition of Civil Society, 2018. Annual Human Rights Review 2018. https://jkccs.net/wp-content/uploads/2018/12/Annual-Report-2018.pdf [32] OHCHR, 2018. Report on the Situation of Human Rights in Kashmir. https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf [33] Law Commission of India, 1994. 152nd Report on Custodial Crimes. [34] Patil, Sanjay, 2008. Feudal Forces: Reform Delayed, Moving from Force to Service in South Asian Policing. Commonwealth Human Rights Initiative. http://www.humanrightsinitiative.org/publications/police/feudal_forces_reform_delayed_moving_from_force_to_service_in_south_ asian_policing.pdf [35] Bhuwania, A. 2008. Very wicked children: "Indian Torture" and the Madras Torture Commission Report of 1855. 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