Quis custodiet ipsos custodes and the Rule of Law

The images of the murder of George Floyd, a 46-year-old black man, by the police, and the consequent release of pent-up emotions of minority groups and supporters of human rights across the United States were still fresh in our minds when P Jeyaraj and his son Bennix were murdered by the police in Tamil Nadu.

However, there were no public protests in India of the scale seen in the United States. Perhaps because of Covid restrictions, or perhaps because we have become so desensitised to everyday stories of police brutality that it has become a part of our daily fabric of life. The story of the Bhagalpur blindings never reached its logical conclusion — the guilty were never fully punished, and the victims receive a paltry compensation of Rs 500 per month.

Every time an example of exceptionally brutal behaviour by the police comes to light, there is transient outrage, pundits emerge and explain things, words like “overburdened force”, “understaffed police”, “vacant posts”, “political interference”, “need for a new torture law” etc. are used, and slowly the news is forgotten till the next episode.

Sometimes there have even been attempts to achieve reforms in the police — sometimes by the apathetic government itself, sometimes by the ivory towered courts, and sometimes by citizens. So, we have had the National Police Commission set up by the government in 1977-81, which submitted eight reports, the judgments of the Supreme Court in the D K Basu case and the Vineet Narain case, the report of the Ribeiro Committee in 1988 and 1999, the Padmanabhaiah Committee report of 2000, the Malimath Committee report of 2002, the judgment of the Supreme Court in the Prakash Singh case in 2006, the draft Police Bill drafted with Soli Sorabjee as the guiding force, and the latest offering by Common Cause & Lokniti and so on.

On paper, we have achieved a lot. On paper, our intentions are of the highest order. On paper, we respect our people. And on paper, we are not scared to admit that our police forces need reform.

It is in the context of the everyday commonplace brutality by the police, which we have become so accustomed to, that the lines of the Roman poet Juvenal forming the title of this article become relevant, even though the poet used them in a satire regarding marital infidelity. In today’s world, with the police turning into murderers, who indeed will guard us from the guardians?

Who will protect the delivery men out to deliver essential supplies from an over-enthusiastic police who beat them for violating Covid lockdown guidelines? Who will protect Sadaf Jafar, taken into custody by the police in Lucknow for participating in an anti-Citizenship Amendment Act protest and beaten in Ha­zratganj police station till she bled and the humiliation and beating of her friend who came looking for her? The examples are endless as would be evident from the recently released figure by the NGO, National Ca­mpaign Against Torture, that showed 1,723 cases of custodial death in 2019, and out of the 125 documented death cases, more than 94 per cent were probably because of torture.

What recourse then does one have? Our entire system of jurisprudence is based on the principle of Rule of Law. Evidently our police force appears to be under the impression that they are the Law, and therefore they Rule!

But Rule of Law means, in simple terms, a system where everyone is subject to the protection, and wrath, of the laws. In India for example, the beautifully drafted Indian Penal Code of 1860 contains a provision to ensure that a policeman who inflicts torture to elicit a confession is sentenced to a term of seven-year imprisonment. Instead of ensuring that the law that already exists is followed, there is talk that the need of the hour is a law to curb custodial torture. Sadistic torture, just for the fun of it, and not intending to elicit a confession, would be covered under the clauses relating to grievous hurt. There is no need to enact a new law. The implementation of existing laws would be more than sufficient to punish the guilty, and deter future wrongdoers. As always, the problem lies not in the absence of laws, but in the absence of the will to implement the law.

In order to achieve a just, humane and mindful society, the need of the hour is not a new law, or immediate implementation of sweeping reforms, which in any case would never be implemented, as we have seen from past experience. The immediate need is to start small with baby steps — let’s teach people, and especially the police force, about the true concept of the Rule of Law.

In their report, Common Cause and Lo­kniti find that during the period 2012-16, only 6.4 per cent of the police force had received any in-service training. This perhaps could be the starting point of any police reform — ensuring annual/biennial training, focusing on human rights and humane behaviour. A second step that should be taken is compulsory psychological counselling, along with this component of in-service training, as an exercise that may prevent excesses by individual personnel.

And what happened to the policemen who were responsible for the Bhagalpur blindings? It appears that of the 20 or so policemen, who were suspended in 1980, two eventually were sentenced to minor jail time. According to a news report, one of the 20 eventually became a Member of Parliament!

The authors are advocates practising in Delhi