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