Tamil Nadu custodial deaths case: Police impunity must end

Our Lives Matter: India must wake up to the dangers of the police becoming law unto themselves

In late June, a 60-year-old man, P Jayaraj, and his son Emmanuel Bennix (31) died in custody after being tortured and assaulted for two days by police officers of Sathankulam police station in Thootukudi district, Tamil Nadu. Police officers, and others, reportedly beat and assaulted them, including forcible anal penetration with batons. They were arrested on June 19. Their crime: Jayaraj had kept his mobile phone shop open slightly beyond lockdown closing hours; and his son had later sought to defend and protect his father from police abuse. The killings symbolise the horrifying extent of police atrocities against persons in custody.

At first, the police denied any wrongdoing, busied itself only with perfunctory suspensions, and dragged its feet on registering an FIR. The dogged intervention of the Madurai bench of the Madras High Court from June 23 has upturned seemingly limitless impunity into accountability. By July 2, policemen were booked for murder, wrongful confinement and tampering with evidence. To date, five policemen have been arrested and investigations have begun.

It is a relief that the rule of law has prevailed at this moment. However, that should not detract from the pervasive impunity that police forces enjoy, which enabled the killings and continues to cast its shadow on the case. The circumstances that allowed them to wilfully violate the legal and human rights of the two citizens are pervasive in the criminal justice system across the country.

The very basis of Jayaraj and Bennix’s arrest and detention by the police was to be strongly challenged. With it, the recourse to punitive action by the police as routine, virtually automatic, across India, that goes unquestioned. It is important to recall a central axiom laid down by the Supreme Court in Joginder Kumar vs State of UP And Others: “the existence of the power to arrest is one thing, the justification for the exercise of it is quite another”.

Even if the police claim that Jayaraj refused to shut his shop and put up resistance are to be believed, arresting him was not required. A mode of policing predicated on non-punitive action and skilled in effective communication and persuasion would have desisted from the punitive action of arrest -- particularly against an elderly, unarmed man. As for Bennix, he was reportedly not even on the scene and yet he, too, was implicated for the same offences as his father. If the police could not restrain themselves from punitive action in a simple matter of a shop being open a little late past lockdown time, is there any hope of restraint from them in more challenging scenarios?

In the din of torture and extra-legal practices, the rigour of mandatory legal practice to justify arrest itself is rendered non-existent. We have no idea if the police gave written reasons for the arrests as they were legally bound to. We can discern from the available reporting that the Sathankulam Judicial Magistrate did not ask for reasons, or any supporting materials like the FIR or case diary, to make his own determination, in writing, that the arrest was legal and further detention justified, as he was mandated to.

The magistrate’s vigilance would have been the strongest chance of saving the lives of Jayaraj and Bennix, especially as the police stripped them of their right to a lawyer. One glance towards the unfortunate men would have alerted him to their precarious health and injuries. He would have realised they had been denied legal representation and the medical examination neglected severe bodily harm. There is indeed a strong reason to endorse the call by a retired High Court judge for the magistrate’s dismissal. Magistrates across the country must be woken up to the import of their role as the first check on the police.

This case typifies the normalisation of torture in police custody in India. The inhuman acts perpetrated on Jayaraj and Bennix mimic those thought to be reserved for so-called terrorists or anti-nationals. The “types of accused” tortured by the police is not static. The National Human Rights Commission’s 2016-17 Annual Report says it plainly, “Custodial violence and torture is so rampant in this country that it has become almost routine”. In the hours that the father and son were in Sathankulam police station, nothing resembling policing was occurring, only pure depravity. This has loud echoes across the supra-security contexts of Kashmir, Manipur, Chhattisgarh to Hindi heartland states like Uttar Pradesh and Bihar. It is the systemic perpetration of torture that binds the tight knot of impunity.

It will take sustained efforts by the media, civil liberties groups, victim families and the courts to bring the uniformed perpetrators to book, as in the present case. Our policing system does not regulate itself to root out torture.

There is no doubt that the perpetrators among the district police have grown emboldened, knowing that their excesses in the past have gone unpunished -- the cascade of torture victims that have come to light following the custodial deaths, all hurt by the same officers of Sathankulam police station, reveal as much. Once police impunity sets in, it resists accountability at every turn. No less than the Kovilpatti judicial magistrate, who conducted the mandatory inquiry into the deaths with the full backing of the High Court, was subject to insult, intimidation and obstruction by the Sathankulam police, in the presence of silent senior officers, including the district police chief. His swift response in reporting the obstruction in an email to the High Court, however, at least initiated a case of criminal contempt against the police officers present.

What took place in Sathankulam police station are among the gravest crimes, enabled by a culture of impunity. This calls into question the legitimacy of the police leadership itself. The Madurai bench of the Madras High Court has set a strong precedent of resolute action and monitoring. Immediate next steps must hold senior officers, starting with the district SP, responsible for the torture under their watch. For now, only a court-monitored investigation has a chance of sustaining against police impunity.

(The writer is Programme Head, Police Reforms, Commonwealth Human Rights Initiative, New Delhi)