COMMENTARY

Creeping Decay in Institutions of Democracy

K G Kannabiran The Shah Commission findings, the exposure of the police by the Bhargava Commission set up to investigate encounter deaths in Andhra Pradesh, the Mukhtadar Commission of Enquiry set up to enquire into the Rameeza Bi rape, the Bhagalpur blindings, and many other investigations expose the rot that has set into the administrative structure. The courts' intervention does not and cannot improve matters, for the inter-institutional system has irretrievabtv broken down.
Everything has been said already; but as no one listens, we must always begin again. Andre Ciide That the police in India has lamentably failed in accomplishing the ends for which it was established is a notorious fact, that it is all but useless for the prevention, and sadly inefficient for the detection of crime, is generally admitted Unable to check crime it is with rare exceptions, unscrupulous as to its modes of wielding the authority with which it is armed for the functions it fails to fulfil and has very general character for corruption and oppression. (September 24, 1856, a despatch of the Court of Directors]. T H E S E observations have a contemporary ring. After more than 130 years, while the executive and legislature failed to inculcate the norms set out in the Constitution as part of administrative culture, the court when such matters were brought before it was more public order oriented than either warranted or was good for preserving and promoting a healthy democratic set up. Thus began the slow decay. The persistence of the same system despite an avowedly democratic Constitution and value system, is to my mind, an indication of something wrong in the functioning of the institutions which came to existence to supervise the workings of the police administration. It also means that after independence the Constitution played a secondary role in the day-to-day administration of the country. It is because of this total indifference to the document which embodies the aspirations and objectives of our struggle for independence, that we have failed to restructure institutions in terms of the Constitution. This decay did not go unnoticed. In 1962 justice A N M u l l a of Allahabad High Court while allowing a criminal appeal directed the issue of notice to the station officer Shahabad M o h d Nairn as to why a complaint should not be instituted against him by the court under section 195 1718 of the Indian Penal Code. M o h d Nairn threw himself at the mercy of the court and pleaded forgiveness. The learned judges' observations arc worth reproducing: I issued the notice I want to clean the public administration as far as possible but an individual's efforts cannot go very far If I had felt that with my lone efforts I could clean this Augean stable, which is the police force, I would not have hesitated to wage this war single-handed. I am on the verge of retirement and taking such steps for two months or three months more would not make any difference to the Constitution and the character of the police force- . somehow the police force in general barring a few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following law and this can be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what they believe. If this belief is not rooted out of their minds, there is hardly any chance of improvement. . . I say it with all sense of responsibility that there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian police force. If the police force must be manned by officers like Mohd Nairn then it is better that we tear up our Constitution, forget all about democracy and the rights of citizens and change the meaning of law and other terms not only in our penal enactments but also in our dictionaries.. . Where every fish barring perhaps a few, stinks, it is idle to pick out one or two and say that it stinks, I therefore, discharge the notice issued against Sri Mohd Nairn. These words were uttered in sheer disgust by a judge who was to lay down his office shortly thereafter. For the deletion of these offensive remarks the matter was carried to the Supreme Court. Justice M u l l a according to the Supreme Court lacked a judicial approach. The Supreme Court was of the view that " i n his zeal and solicitude for the reform of the police force, the learned judge allowed himself

to make these very unfortunate remarks, which defeated the very purpose he had in mind". While deleting the remarks the Supreme Court felt, " I t is difficult to avoid the reflection that unless an example is made of such officers by taking the most stringent action against them, no i m provement in the police force is possible!' If the Supreme Court, in this case, had viewed it from the perspective of the Constitution its conclusions would have been entirely different. In Gandhiji's India .where we were taught that the means is as important as the ends the Supreme Court was holding that illegality in investigation d i d not in any manner vitiate the t r i a l . The procedure prescribed by law that has to be followed before forfeiture of life or liberty is ordered, does not take into account, the procedure followed during the stage of investigation. In Malkani ( A I R 1973 SC 157) and Pooranmal ( A I R 1974 SC 3480), the Supreme Court reiterated that illegality in procuring evidence by the prosecution against the accused does not vitiate the trial. The court drew support and i n spiration for the proposition from the observations of Sir Lawrence Jenkins in Barendra Kumar Ghosh (Anusheelan Samithi). Responding to C R Dass' contention that searches and seizures effected were in utter disregard of the provisions of the Code of Criminal Procedure, Jenkins, quoting Jeemuthavahana, held that facts discovered by illegal searches would still be admissible against the accused despite the illegality. The elaborate procedure prescribed for investigation and trial is to see that fiction does not parade as fact in courts. While "a hundred texts may not alter a fact", failure to follow the procedure prescribed may result in production of perjured evidence, and much more so in the case of political trials. As a nation we proceeded on the assumption that as the Indian Evidence Act is modelled on the rules which prevailed in English law there was nothing wrong in following the principles laid down by British courts and followed by British Indian courts without examining the whole question in terms of the constitutional value system. This laxity on procedure led to the arbitrariness in administration and the inefficiency that followed. We have been blindly following decisions rendered p r i o r to i n dependence and in cases where political leaders of the independence struggle were tried. While the attainment of independence spelt a fresh beginning, we really continued the o l d structure despite a new Constitution which came into force on January 26, 1950. We failed to evolve a August IS, 1992

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new system of jurisprudence and the c o n ' tinuation of British Indian traditions was responsible for the characteristically very colonial response of the Supreme Court to the emergency and the maintenance of Internal Security Act by the Supreme Court in A D M Jabalpur (1976 SC 1207). We have accepted and followed the p r i n ciples laid down by Sir Lawrence Jenkins in Barendra Kumar Ghosh. We are not concerned w i t h how the evidence was acquired provided that such evidence is relevant and admissible. Such an approach at once releases the establishment from the principle of disciplinary jurisdiction i m plied in judicial review. Courts are places where the government and its officials are called upon to publicly account for their conduct on the proceedings initiated by citizens. The procedural regimen prescribed for regulating governmental action is meant to prevent arbitrary actions by the government, its agencies, and men, and very often a procedural safeguard is the bulwark of a citizen as a person. The court in Pooranmal ( A I R 1964 SC 348) reviewed the case law on this issue where a reference was made to Olmstead vs United States. In this very decision the minority view (that of justice Brandcis), which is more in tune w i t h our constitutional scheme, ought to have been accepted by the court: Our government is the potent, the omnipresent teacher. For good or for ill it teaches the whole people by its example... If the government becomes the law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Anarchy did invade the entire administiative structure as disclosed by the emergency in June 1975. This anarchy has now transformed itself to anomie. No norms govern any institution in this country and yet all the institutions are busy trying to impose norms on the peoplean exercise which w i l l never work. The Shah Commission findings, the exposure of the police in the proceedings before the Bhargaya Commission set up to investigate encounter deaths in AP, the Mukhtadar Commission of Enquiry set up to enquire into the rape of Rameeza B i , the Bhagalpur Windings, the Bihar undertrial prisoners, etc, exposed the rot that has set into the administrative structure. The courts' intervention did not and could not improve matters, for by then the interinstitutional discipline which is so very necessary to run a constitutional system, had irretrievably broken down. Premchand paniwala proved how wrong the court was in following Sir Lawrence Jenkins' dicta. He was a stock witness for the prosecution 1959-78 and in about 3,000 cases. This stock witness was threatened w i t h externment proceedings under the Delhi Police A f t , 1978, When Economic and Political Weekly

this externment order was carried to the Supreme Court the weird tales of how the police secured evidence in prosecution came to light. He was a witness to every possible offence on earth and was invariably witness to search and seizures including arms, liquor, opium, etc Premchand Paniwala at once demolished the logic of the Supreme Court ruling that illegality in procuring evidence is irrelevant if otherwise the evidence is relevant and admissible. Justice Iyer, in the course of his judgment, was compelled to rely on justice Brandeis' opinion in Olmstead's case referred to earlier. Courts always felt that the government and its men should not be dealt with harshly and they should be treated as one would treat slow learners. But then, in working out the constitutional scheme, pious homilies have no therapeutic value. They merely tend to make the executive more and more arbitrary. None of these gentle admonitions have had any effect. The abuse of law has continued at every level. While in areas other than liberty, the harm or injury may not be direct and physical, in the case of liberty of citizens, lawless attitude of the governmental agents subjects persons to physical pain, indignity and humiliation and so needs urgent attention.
DEATHS IN CUSTODY

As p o l i t i c a l turbulence increases, forfeiture of life and liberty is likely to be more arbitrary and ruthless. Cases of torture in custody, deaths and rape continue unabated. These have been brought to public notice by various civil liberties and human rights organisations. In some cases people have spontaneously reacted to custodial violence which is sympathetically reported in the press. Largely as a result of enlightened public opinion, a case or two have managed to wrest a decision from the Supreme Court after nearly two decades of waiting. One such case is that of Ram Sagar Yadav ( A I R 1985 SC 416). Where one Brijlal who went to lodge a complaint against a police constable for demanding a bribe was himself taken into custody by the Hussain Jung Folioe Station and subjected to violence resulting in death. The incident took place in August 1969. The criminal appeal was disposed of on May 13, 1974. The appeal to the Supreme Court was in the year 1975 and it was disposed of on January 22, 1985. In spite of the evidence in the Shah Commission reports, the human rights organisation reports, and the regular reports in the newspapers on custodial violence and rape neither the Law C o m mission nor the government thought it fit to provide statutory measures to punish erring policemen. It was the judgment of

the Supreme Court in 1985 which goaded the Law Commission into action and suggested the introduction of Section I I 4 - B in the Evidence Act. The Law Commission made no reference to the H u m a n Rights Covenant nor UN Declaration against Torture which our country ratified by filing a unilateral declaration against Torture in 1979. Nor did it suggest a comprehensive code to contain the homicidal habits of the police force. If an unnatural death takes place a first information report is registered and investigation commenced and the suspect is taken into custody and if he survives custody he is produced before a magistrate and is remanded to judicial custody. But if a suspect is taken into custody, and due to violence employed by the police while in custody, he dies practically nothing is done excepting to secure a tailored postmortem report and under Section 176 Cr PC an executive magistrate, w h o is generally under the thumb of the police, conducts an enquiry and the report gathers dust and the whole incident is forgotten. If custodial death is taken note of by the public a judicial commission is appointed. The beneficiary is usually a retired judicial officer. He conducts an enquiry and submits a report. These reports (the executive magistrate or the cotnmission of enquirys) have no value. If these dead bodies have any political use some noise is made in the assembly or the parliament. These deaths are never perceived as crimes; nor. are they seen as human rights and constitutional violations. In 1980 A r u n Shourie had investigated into 45 deaths in police custody in seven states. He found "the patterns are so uniform from one death to another, from one state to another, that generalisations are possible". The victims were invariably poor. Several of them were hauled in on no charges at all In the case of persons who were formally arrested, in an overwhelmingly large number of cases they

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were all accused of petty offences, seven out of the 45 cases investigated by him the bodies were so badly mauled that it was not possible to hide the crime committed. The explanation for these deaths were, 'snake bite', heart failure on the way to the hospital, suddenly took i l l , etc Some were said to have died for mysterious reasons, all the rest committed suicide. The accounts of suicide given then have not varied even now; by hanging inside the lock-up by using a 'lungi' or a belt, j u m ping out of a building or in front of a bus; or some such ludicrous unbelievable account. The AP Civil Liberties Committee has been maintaining a record of all custodial deaths and has been wherever possible participating in the enquiries (see Tables A and B), |n 31 cases judicial enquiry has been ordered. The result of the judicial enquiry is of no consequence. What should be shocking is where murders are committed by the members of the police force they are being enquired into by Executive Magistrates under Section 176 or by a Commission of Enquiry which puts this class of public servants above law. This unconstitutional practice is by repetition legitimised by the state. The Commission of Enquiry Act is not intended to be a substitute for criminal prosecution. The political government is obviously afraid of subjecting the police to the ordinary legal processes because they may refuse to carry out illegal orders. Work to rule by the police force might mean enforcement of the constitutional guarantees and that may threaten the longevity of the political government. We have enough provisions in the Code of Criminal Procedure to reduce human rights violations considerably, provided strict compliance is insisted upon. They are: (a) the person arrested shall not be subjected to more restraint than is necessary to prevent escape (Section 49), (b) that the person arrested shall be informed of the grounds of arrest furnishing him full particulars of the offence for which he is arrested (Section 50), (c) the person arrested and subjected to search shall be given a receipt showing the articles found in his person (Section 51), (d) when weapons have been seized they should be deposited in the court before whom the accused is produced (Section 52), (e) the person accused has a right to have his body examined medically at request to establish whether any other person while in custody inflicted wounds on his person (Section 54), (f) the person arrested without warrant shall be produced before a magistrate w i t h i n 24 hours (Article 22 (1) and Sections 56 and 57), 1720

(g) the officers in charge of the police stations shall report to the district magistrate or if he so directs to the Subdivisional Magistrate the cases of all persons arrested with or without a warrant, within the limits of their respective stations whether such persons are admitted to bail or otherwise (Section 58) to this a proviso should be added laying down that where no such report is made to the district magistrate it would amount to wrongful confinement. The following measures may further help to set up an institutional structure of redressal against human rights violations. (a) it is no part of a policeman's duty to maim or k i l l and so no sanction would be necessary to prosecute him. The immunity extended to public servants will not extend to commission of crimes set out in the Penal Code. The legislature may, to set the matter at rest, introduce a provision to the effect that where the accusation is offences against the human body, no sanction to prosecute would be necessary and they will not be necessary and they will not be regarded as acts performed in the purported exercise of their duties. (b) the procedure of enquiries by executive magistrates should be done away with. Enquiries under Section 176 should be entrusted to the chief judicial magistrate in the district and chief metropolitan magistrates in the cities. This would put an end to lot of human rights violations. These may delegate their functions to the first class judicial magistrates. Suitable amendments may be introduced to enable these magistrates to treat the proceedings under Section 176 as committal proceedings where there is material which prima facie informs him that a death or disappearance has been caused while in custody. (c) principle of constructive liability may be introduced so that superior officer may not j o i n to fabricate a case of suicide or help in screening the offenders. (d) introducing rules under 309 so that persons accused of offences are automatically suspended pending trial. It is also necessary to introduce rules holding higher officers constructively liable for human rights violations with punishments ranging from withholding of increments and promotions to suspension and termin a t i o n s from service. We are of the view that public servants who violate constitutional guarantees have no right to continue in the post nor such public servant should be allowed to hold any post. When Amnesty International brought out its report, on Torture, Rape and Death in Police Custody the government was angry not at the police establishments at the state and the centre, but at Amnesty.

The reasons for this anger are not clear. The report is based on investigative reports of journalists, human rights and civil liberties organisations and reports of various commissions of enquiry set up by state governments. Amnesty's report cannot be labelled as foreign interference. Here no question of sovereignty is involved. Sovereignty cannot be used as veil to cover up human rights violations particularly when India is a signatory to the UN Human Rights Covenant. Nobody can take exception to the recommendation made. The methods suggested for strengthening safeguards against torture, the suggestion that police and security forces be trained to uphold human rights; the suggestion to set up an ombudsman to study pattern of torture and custodial death and recommend ways and means of preventing these crimes and the appeal to strengthen India's commitment to human rights deserve our attention. By implementing the recommendations we will only be ensuring respect to the constitutional guarantees and disciplining the police administration. No government which perpetrates human rights violations despite it being a signatory to UN Human Rights Covenant is immune from criticism for such violations. Pointing out deficiencies in the human right area cannot be called interference. Even if an interference it is in public interest and in the interest of the constitutional scheme. Human rights groups operating all over the world have come to stay Amnesty is foremost among them. The sooner this fact is recognised the better. We are prepared to surrender our sovereignty to the US which is acting as if it owns India. We put up w i t h antinational and anti-people conditionalities imposed by I M F and the World Bank. The government never felt slighted. When Amnesty points out the human rights violations we are quick to react and that without adequate reason. H u m a n Rights organisations at the international level have come into existence as part of human rights movement because human rights committee as constituted is largely an i n effective body where member states' claim to sovereignty override the human rights covenant itself. Sovereignty is that of the people and of the fundamental document imposing limitations on governmental action and human rights bodies have an obligation to wage ceaseless struggle against these violations. If we realise that the escalation of violence in the country is mostly because of gross human rights violation by the state which has alienated vast sections of people, that would be the first step we would be taking towards restoration of democratic processes and thereby normalcy. August 15 1992

Economic and Political Weekly