“Why are you making my innocent child stand in the rain even after his death?”. This line from  the Memories of a Father by T.V. Eachara Warrier points to the agony and deprivation caused by  arbitrary state action not only on the rights of an individual but also on their family and the larger  society. This is especially true when the right in question is the Right to Life guaranteed by Article  21 of the Constitution. Warrier was the father of P. Rajan, an engineering student in the Regional  Engineering College, Calicut. Rajan was falsely accused of being one of the Naxalites behind the  attack on a Police Station and arrested from the front yard of his college and was taken to one of  the Emergency era police camps in Kakkayam on the 1st of March 1976.  

Civic Chandran another detainee in the police camp later stated that Rajan was subjected  to the “Uruttal” or Rolling method of Interrogation where a wooden log would be rolled on a  person’s thighs weighted down by the policemen. Rajan succumbed to his injuries caused due to  the torture inflicted on him and his body was not to be found (Venugopal 2015). The official  narrative in this case initially stated that Rajan was never arrested. On a Habeas Corpus writ filed  by Warrier, the High Court found sufficient evidence to hold the State and the police officers in  charge guilty on April 1977. 

But the question we must be asking ourself is was justice ultimately done? Was such  extreme action by the state warranted? It is not an unknown fact that the National Emergency was  under operation, thus the security of the State from an alleged Naxalite definitely warrants action.  But does it warrant arbitrary action. At the time the attack on the police station was carried out,  the accused was participating in a college youth festival with multiple witnesses as his alibi. Does  the state not have the responsibility to verify whom they arrest, should they not be given a chance  to prove their innocence? Or does a state of emergency entail that the police officers with their  unlimited emergency powers become the Judge, the Jury and the Executioner.

If Rajan as the police assumed was indeed a Naxalite does his Right to Life still go out the  window. Since the fundamental rights were suspended at the time due to the National Emergency,  which was before the 44th Amendment of the Constitution that may be the case. But as argued by  Justice H. R. Khanna in the infamous A.D.M Jabalpur case1, Article 21 is not the sole repository  of the Right to Life, it is granted to the citizen by ordinary penal laws of the country like the IPC  and the CrPC . Justice Khanna opines that the right to life and personal liberty is not a creation of  the Constitution, this is consistent with the Universal Declaration of Human Rights as this is a life  available to a person by virtue of being human.  

Thus, in any country following the rule of law, the right to life can only be deprived in  accordance with substantive and procedural law(Burra 2012). In a country where the Capital  Punishment is given by the Supreme Court only in the ‘rarest of the rare’ cases, is death a  proportionate punishment for an act of vandalism or any crime for that matter? And are the police  equipped to be the judge of that even in a situation of National Emergency? Was this lapse caused  because of Emergency Excesses? 

The fact remains that the story of custodial torture and death does not begin or end with  Rajan. In 2017-18, the number of deaths in Police custody in India as reported to the NHRC is  144. This is not isolated to any state but spreads across the spectrum. It has been used as a means  to stifle protests and dissent and has been used against people form marginalized sections of the  society. This can be seen in the case of the anti-GAIL protestors in Kerala, anti-Sterlite protestors  in Tamil Nadu, or members of the Dalit community protesting the Bhima Koregaon violence (Kaur  2018). It is seen that the state often turns a blind eye towards custodial and torture as there has  been no effort to record custodial death or of complaints related to custodial torture(Kaur 2018).  

The Supreme Court has opined that ‘dehumanizing torture assault and death in custody  which have assumed alarming proportions raise serious questions about the credibility of the rule  of law and administration of the criminal justice system’2. Over the years in various cases the apex  court as well as the NHRC has set up guidelines and expressed anguish against the practice of  

1 Additional District Magistrate, Jabalpur v. Shivakant Shukla ( 1976 2 SCC 521) 

2 Munshi Singh Gautam and others v. the State of Madhya Pradesh (deceased) (2005 9 SCC 631)

custodial torture especially in the more celebrated cases such as the D.K. Bose v. State of West  Bengal case(Kaur 2018). While this acknowledges the existence of custodial torture and death, the  state has done nothing to prevent this or set up a punishment framework against the same.  

Another gross violation of the right to life committed by the police is that of encounter  killings. The practice has been rampant in the state of Andhra Pradesh since 1968, especially  against alleged Naxalites. Over 3000 alleged Naxalites and 1000 civilians were killed in  encounters over a period of 38 years. But eye witness accounts and other testimonials indicate that  over 90% of these encounter killings are staged (Venugopal 1997). Such encounters were often  directed at political activists, students from college which were considered the ‘hotbeds of  extremism’ and journalists. Most often victims of encounters were classified as ‘unidentified’  individuals in incident reports, which were filed after much delay(Venugopal 1997). 

Fact finding exercises led by civil society groups such as the Andhra Pradesh Civil  Liberties Committee (APCLC) showed that the kin of those executed in encounter killings often  had evidence of torture on their bodies. It was seen that the victims would be arrested from a  particular place on a particular day and days later they would be killed in an encounter under  different circumstances. This pattern holds true even in the 2019 Hyderabad Encounter Killing of  4 men accused of raping a veterinary doctor (Venkataramakrishnan 2019). Here the accused were  taken to the crime scene for investigation after being under police custody and allegedly attacked  the officials who had to shoot them in self-defense.  

As seen earlier, the state can deprive a person of his right to life only in accordance with  the law. The only exception to this is in the case of self-defense which cannot be subject to judicial  scrutiny before it is executed (Burra 2012). Because of this loophole the self-defense argument has  been used time and again to justify encounter killings. ‘Encounter’ is even used to validate the  otherwise custodial death. These instances are projected as the merit of the officers responsible,  relatives have often received mutilated bodies of those killed in ‘Encounters’(Kaur 2018). The  Impunity and free reign given to officers in the matter of encounter killing over decades has led to  a situation where encounter is used not only in issues of ‘National Security’ such as curbing alleged  Naxalite, Maoist or terrorist activity. The nexus between local interest groups and the police have 

led to ‘encounter’ of those opposed to them including farmers, artists and even the physically  disabled who are then labelled as dacoits, ISI operatives etc.(Venugopal 1997).  

The lack of consequences and even rewards awaiting officers engaged in encounter killings  such as absence of prosecution, fast-tracked promotions and gallantry award has encouraged  custodial violence and encounter killings. Justice A.S. Anand and Justice Kuldeep Singh in the  D.K. Basu, Ashok K. Johri v. State of West Bengal case3 opines that State terrorism is not the way  to combat terrorism but it only legitimizes it. The bench recalls the recommendation by the 113th 

Law Commission that the onus of proof in cases of custodial death should fall upon the police  officer. The court then goes on to propose 11 requirements which have to be fulfilled in case of  arrest or detention which can be employed until legislation is done to this effect(Noorani 1997). The police has largely ignored these guidelines and the state has not created a legislative  framework to give effect to the same. 

Over the years the government has set up various committees to look into reforms in police  functioning and the criminal justice system. These commissions have largely addressed the  structural and administrative issues in the police system but the issues of misuse of power,  complaints against the police and rights of the accused have also been touched upon. The National  Police Commission of 1977 in its first report has stated that most complaints against can be  inquired into and resolved by the superiors in the police hierarchy. But complaints involving issues  such as alleged rape of a woman, grievous injury or death in police custody and incidents of police  firing must be subject to a judicial inquiry by an Additional Sessions Judge nominated by the State  Government and the High Court. The report of inquiry and action taken on the same should be  mandatorily published by the state government and a Police Complaint Board should be set up to  oversee the independent functioning of the inquiry and implementation of the report (Human  Rights Initiative). 

The report of the National Police Commission and most other commissions set up on the  subject have largely been ignored. One of the later commissions chaired by Justice V.S. Malimath  on the reforms to the Criminal Justice System delves into the matter of the rights of the accused.  

3 D.K. Basu, Ashok K. Johri v. State of West Bengal 1996, W.P (CRL) 592 of 1987.

The report provides a framework regarding obligations of the police officer after arrest. While it  is largely in line with the guidelines provided in the D.K. Basu case, the report provides exemption  with respect to features like the right of the accused to inform a friend or relative about the arrest  and informing the accused of said right in cases related to organized crime and terrorism (Ministry  of Home Affairs 2003). While this feature is crucial to the investigation of matters related to such  cases of a serious nature, there is a high probability of the officials misusing such exemptions. 

The NHRC has also enlisted certain guidelines to be followed in the event of Encounter  killing. This includes timely registering of the death, filing a First Information Report to the effect  of considering the death a culpable homicide, investigation by an independent agency like the state  CID, magisterial inquiry in case of death caused during police action, preventing out of turn  promotions and submission of a report on death due to police action on a six monthly basis to the  NHRC (Singh 2014). Even though such directions have been issued they have rarely been adhered  to. Even ordinary legal proceedings such as Section 174 of the CrPC dealing with preparation of  inquest reports in case of unnatural deaths are not strictly adhered to in states like Manipur where  the reports are prepared in the morgue than the crime site which hampers with the investigation.  Section 176(1) indicated that in case of death in police custody, an inquiry should be conducted  by a Judicial Magistrate, but this is often done by an Executive Magistrate, who due to lack of  knowledge in legal matters may not be able to effectively address the situation(Singh 2014). 

Extrajudicial Killings can be defined as ‘the killing of persons by government authorities  without the sanction of any judicial proceedings and due legal process’(Singh 2014). According  to said definition both custodial deaths and encounters can be termed as Extrajudicial killings. The  NHRC had directed the chief secretaries of all states and union territories that events of custodial  death and encounter killings, which are extra judicial in nature has to be reported to the general  secretary of the commission within 24 hours (Singh). This has also not been followed in the case  of most states. Thus it can be seen that even when judicial agencies such as the NHRC and the  Supreme Court set guidelines and framework for what has to be done in the case of extrajudicial  killings, the executive and legislative have largely been apathetic. 

India had signed the UN Convention against torture in 1997 but it has still not been  ratified(Noorani 2005). Though the setting up of the NHRC was a step in the right direction, the  directives and guidelines promulgated by the commission are not adhered to. Even the judgements  by the Supreme Court has largely been adhoc and on a case to case basis. Hence it is time for the  legislative to step up and create an overarching framework which penalizes the excesses committed  by the state agencies themselves. This would involve revamping the entire police system, which  is outdated as it is legal basis is the 1861 Indian Police Act, which was used by the British to  control and suppress the native population. This has also been recommended by the Review  Committee of the Recommendations of the National Police Commission and other Commissions  and Committees on Police Reforms, 2005 (MHA 2005).  

But instead of revamping such draconian laws, what is currently being done is bills such  as the Bihar Special Armed Police Bill, 2021 which permits the arrest of a person against whom  there is reasonable suspicion of committing an offence. This act is said to be a replica of the Armed  Forces Special Powers Act(Constitution of India.net 2021). While this provision makes better  sense in the case of armed forces, even where it is not justifies, such powers in the hands of state  agencies with a lack of an enforceable framework on custodial violence and encounter killings is  extremely dangerous.  

There are increasing cases of threat to national security in terms of cross-border and  ingrown terrorism, Maoist attacks etc. While this necessitates providing additional powers to our  police and armed forces, the need for a penal system to prevent unnecessary human rights violation  by exploiting the system is paramount. One of the important agendas in this revamp should be a  framework to penalize extrajudicial executions because otherwise India would be a country ruled  by men and not according to the rule of law. Developing such a framework with the oversight of  the judiciary as well as the NHRC, in order to preserve human rights will ensure that the right of  life of the marginalized are not compromised while ensuring the security of the nation at large.  

While I started my analysis with the case of Rajan, who was denied due process in the  ‘Emergency’ era, today under legislations such as Unlawful Activities Prevention Act (UAPA)  and AFSPA, the police and security agencies are given free rein in the name of National Security. 

Answering a question posed in the Rajya Sabha the Minister of State for Home Affairs stated that  5922 people were arrested under the UAPA in between 2016 and 2019 of which 132 were  acquitted(The Print 2021). But it was found that several of the arrested are acquitted 8-12 years  after arrest without access to bail provisions(Kadam 2020) which in itself is a violation of the right  to life. People are often arrested in vague grounds which include ‘in the interest of national  security’. Thus it is important to define ‘National Security’ and well as the framework of protection  of the right to life so that we do not end up with more Rajans.

References 

Venugopal, P. 2015. ‘Remembering Rajan, the Innocent Victim of Brutal Emergency Excesses’,  (https://thewire.in/politics/remembering-rajan-the-innocent-victim-of-brutal-emergency excesses) (posted on 27 June 2015) (accessed on 25 May 2021). 

Burra, Srinivas. 2012. ‘Chhattisgarh Killings: What if they were/were not Maoist?’, Economic and  Political Weekly 47(33): 15-17. 

Kaur, Baljeet. 2018. ‘India’s Silent Acceptance of Torture Has Made It a ‘Public Secret’’,  Economic and Political Weekly 53(36). 

Venugopal, N. 1997. ‘Fake Encounters: Story from Andhra Pradesh’, Economic and Political  Weekly 42(41): 4106-4111. 

Venkataramakrishnan, Rohan. 2019. ‘Hyderabad encounter killing may seem like justice, but  here’s why no good can come of it’, (https://scroll.in/article/945987/hyderabad-encounter killing-may-seem-like-justice-but-heres-why-no-good-can-come-of-it) (posted on 6  December 2019) (accessed on 25 May 2021). 

Noorani, A.G. 1997. ‘Custodial Torture’, Economic and Political Weekly 32(38): 2374. Noorani, A.G. 2005. ‘Access to Prison and Custodial Torture’, Economic and Political Weekly 40(42): 4497-4498. 

Human Rights Initiative. ‘The National Police Commission (NPC) Some Selected  Recommendations of the National Police Commission’,  (https://humanrightsinitiative.org/old/publications/police/npc_recommendations.pdf)  (accessed on 25 May 2021). 

Ministry of Home Affairs(MHA), Government of India. 2003. ‘Committee on Reforms of  Criminal Justice System: Report Volume 1’  (https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf) ( accessed on 25  May 2021). 

Singh, Oinam Jitendra. 2014. ‘Impunity, Fake Encounters and Human Rights in Manipur’, World  Affairs: The Journal of International Issues 18(4): 140-151

Constitution of India.net. 2021. Editorial: ‘AFSPA in new clothes’  (https://www.constitutionofindia.net/blogs/desk_brief__afspa_in_new_clothes_) (posted on  14 April 2021) (accessed on 25 May 2021). 

Ministry of Home Affairs(MHA), Government of India. 2005. ‘Review Committee on the  Recommendations of the National Police Commission and other Commissions and Committes  on Police Reforms  (https://www.mha.gov.in/sites/default/files/Musaharicommittee_08042019.pdf) (posted on 8  April 2019) (accessed on 25 May 2021). 

The Print. 2021. ‘Over 5,000 people arrested under UAPA between 2016-2019, govt tells Rajya  Sabha’ (https://theprint.in/india/over-5000-people-arrested-under-uapa-between-2016-2019- govt-tells-rajya-sabha/602461/) (posted on 10 February 2021) (accessed on 4 June 2021). 

Kadam, Sanchita. 2020. ‘What does it take to secure bail under UAPA?’ (https://cjp.org.in/what does-it-take-to-secure-bail-under-uapa/) (posted on 6 October 2020) (accessed on 4 June  2021).

Disclaimer

The views expressed in this article are the author's own.


Lekshmi J H

An Engineer turned Public Policy Enthusiast who is currently doing her Master's in Public Policy from National Law School of India University, Bengaluru. I am interested specifically in Sustainable Development, Human Rights, and Institutional frameworks in India. I aspire to join the Civil Services.

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