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HomeOpinionDon't just question police for custodial killings of Jayaraj-Bennix. Courts also responsible

Don’t just question police for custodial killings of Jayaraj-Bennix. Courts also responsible

Jayaraj and Bennix would be alive today had the magistrate applied his mind and not acted mechanically while accepting the Tamil Nadu Police’s plea for remand.

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The brazen killing of Jayaraj and Bennix in Tamil Nadu Police’s custody has rightfully caused a public outcry against those in uniform. But the police force is not the only one. There is a lot that the Indian judiciary also has to answer in this case.

It is not enough to say that the police go scot-free in cases of custodial torture and death, even though data illustrates it.

In 2017, at least 100 persons, many of them possibly innocent, died in police custody. Not one police officer has been convicted so far for the deaths. Between 2008 and 2016, there were more than 300 deaths due to torture in police custody. Again, zero conviction. Not only that, between 2001 and 2018, a total of 1,727 people died in police custody. But only 26 officers have been convicted so far, most of whom are out on bail.

According to official figures tabled in Parliament by the Union Ministry of Home Affairs (MHA), 427 people died in police custody while 5,049 died in judicial custody between 2016 and 2018.

In its recent report on custodial deaths in India, the National Campaign Against Torture said that the country had witnessed 1,731custodial deaths in 2019 – or about five deaths daily.

In the end, all these deaths end up as statistics.

But police officers are just one part of the problem. P. Jayaraj and his son J. Bennix would be alive today had the magistrate applied his mind and not acted mechanically while accepting the Tamil Nadu Police’s plea for remand.

Very few magistrates, and even members of the higher judiciary, adhere to the principle laid out by the Supreme Court. They often accept the police version as Gospel truth.

Also read: Madras HC takes cognisance of custodial deaths of father-son, directs police to file report

A history of abuse and injustice

Human Rights activist and advocate Jaswant Singh Khalra went missing in 1995 after he was picked up by the Punjab Police in the presence of some eyewitnesses. Khalra, who had filed a PIL in the Supreme Court alleging secret cremation of “hundreds of Sikhs (the police) had killed extrajudicially between 1990 and 1995”, is yet to be traced. Presumed dead, the Supreme Court of India, ordered a compensation of Rs 10 lakh to the activist’s wife almost 20 years later.

In the case of mysterious disappearance and subsequent death of government civil engineer Balwant Singh Multani, it took the Punjab Police nearly three decades to register an FIR against senior officers, including former DGP Sumdesh Singh Saini. Multani, son of a former Punjab cadre IAS officer, was picked up for his alleged involvement in an attack on Saini when the latter was the SSP of Chandigarh. Within hours of the FIR being registered, Saini was granted bail.

In April 2014, 25-year-old Agnelo Valdaris and three others were picked up by the Maharashtra Police in Mumbai for alleged theft. Badly beaten, stripped and forced to have sex with each other, Valdaris finally succumbed to his injuries after three days. It took more than six years and the intervention of the Bombay High Court for the police to even register an FIR against the accused cops for murder and destruction of evidence. Trial in the case is yet to see any progress.

In West Bengal, 35-year-old Kazi Nasiruddin, a functionary of the Trinamool Congress, died allegedly due to custodial torture after he was arrested in January 2013. His wife had to petition the Calcutta High Court for a fair investigation into his death.

These are just a few cases where the police allegedly tortured and killed an accused in custody. But rarely was an officer punished.

Also read: Stop cheering police brutality. Citizens like Jayaraj and Bennix pay the price

What courts can do

In the case of Jayaraj and Bennix, the magistrate, it is clear, acted in contravention of the law as settled by the Supreme Court in Manubhai Ratilal Patel versus State of Gujarat, where the court ruled that while deciding the issue of remand, the magistrate is discharging a judicial function.

“The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary… It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner,” the bench had ruled.

But it rarely gets implemented. It is time for the Supreme Court to settle this issue of such lapses by subordinate courts and fix responsibility.

A Constitution bench of the Supreme Court must also revisit its landmark judgment in the D.K. Basu case and rewrite the “custody jurisprudence”.

If and when it does, it must also issue a direction to the central government to consider and take steps to implement, possibly through an amendment to the Indian Evidence Act, the recommendation of the 10th Law Commission of India to put the onus of any injury or death of an accused in police custody on the officer concerned.

Since most of those at the receiving end of torture in custody belong to financially or socially weaker sections of the society, it is time for the central government to move Parliament to pass a Prevention of Torture Bill.

Let us not forget that it took the Delhi Police two decades to get cricket bookie Sanjiv Chawla extradited from the UK. The reason: Chawla was able to successfully argue in the London courts that torture was so prevalent in Indian jails and in police custody that he feared for his life.

Unless urgent affirmative action is taken, brutal killings like Jayaraj and Bennix’s in police custody will keep happening.

Already, there are indications that the Tamil Nadu police, safe in its assumption that its illegal actions won’t lead to any substantial reaction from the judiciary, is trying to intimidate and arm-twist the court-appointed magistrate into submission.

The policemen may not be entirely wrong in their assumption. After all, India has a very poor track record of dealing with cases of deaths in custody.

The author is a senior journalist. Views are personal.

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