Recently, the Chief Justice of India, NV Ramana, remarked at an event that the “threat to human rights and bodily integrity is highest in police stations”. The death of Altaf in police custody in Uttar Pradesh accurately encapsulates the torture culture prevalent in India and shows that the CJI’s statement was not mere hyperbole.
According to official data provided by the National Human Rights Commission (NHRC), 1,723 persons have died in judicial or police custody in a year alone. Despite such shocking statistics, state response to instances of custodial torture – as seen from the Altaf case – has been to order departmental or magisterial inquiries and suspend the police officers concerned. Even the public’s response has fallen short of actually calling these instances for what they are – instances of state-sanctioned murder.
'Mere Proof' Not Enough to Hold Officers Accountable
The focus of writings around custodial torture has been to argue for the implementation of CCTVs and more stringent inquiries. However, the problem that needs addressing is not one of “proof” or diligence in investigating these crimes. Because what happens if the CBI does get proof of the crime or the judicial inquiry is able to point towards police complicity? What happens then? A lot of readers will be shocked to learn that ‘mere proof’ is not enough to hold police officials accountable.
In this article, I argue that Section 197 in the Criminal Procedure Code, 1973, creates a de-facto immunity for police officials. This not only helps them evade accountability but also empowers them in their criminality. I would take the example of the ongoing judicial proceedings in the infamous Ryan School Murder case to illustrate my argument.
Broad Scope of Section 197
Section 197 mandates that the State or Central Government provide their consent prior to the initiation of any criminal prosecution against a government servant to prevent malicious prosecution against public servants.
The ambit of Section 197, as explained by the Supreme Court in Shreekantiah Ramayya, is significantly broad. For an act to be covered by Section 197, it must be reasonably connected to the discharge of official duty.
While there is some grey area regarding the scope of this section, instances of custodial violence would be covered by this section. It is only in cases where an individual was illegally detained in police custody that the protection under Section 197 would be breached.
De-Facto Immunity from Prosecution
The social standing and power of police officials and the inaccessibility of the judicial machinery in India means that common citizens are, in the first place, deterred from registering complaints in cases of police brutality. Even in a few instances where a clear criminal case is made out, the patronage nexus of the government and police ensures that the sanction is either denied or requests for sanction are ignored to help police officers evade accountability. The judicial proceedings in the Ryan School murder case are a testament to how the government is able to shield police officials even in the face of intense media, public and judicial scrutiny.
In 2017, a child was found murdered in his school. In the ‘investigation’ that followed, the police arrested a bus conductor who ‘confessed’ to the crime. However, a subsequent investigation by the Central Bureau of Investigation (CBI) revealed that the bus conductor was tortured in police custody and was forced to give the confession. The bus conductor was discharged by the Court in February 2018.
After more than two years, in September 2020, the CBI requested sanction for initiating prosecution against the policemen responsible for falsely implicating the innocent bus conductor.
Exemplifying the nefarious tactics employed by the State government to protect the police, neither acceptance nor rejection of sanction was communicated as late as early February this year.
It was only after the Magistrate in the case in a strongly worded order on 2 February 2021 reprimanded the State government that it responded. The Court noted that by refusing to either accept or deny the sanction request, the State was ducking its statutory duty and described the situation as ‘pathetic’.
Shockingly, at the end of the month, the State government finally communicated its decision of rejecting the sanction for prosecution. This decision has been challenged by way of a writ petition before the Punjab and Haryana High Court. At the time of writing this article, no hearing that substantially discusses the merits of the governmental action has been conducted. The fact that after more than three years of the bus conductor being discharged by the Court, trial against the accused police officers is yet to begin demonstrates the de-facto immunity enjoyed by police officials by virtue of Section 197.
Section 197 Needs a Relook
Such de-facto immunity defeats the operation of Article 21 of the Indian Constitution, which guarantees protection against custodial torture by allowing police officials to commit excesses with the knowledge that they are likely to escape criminal prosecution even in the most high-profile cases.
The existence of Section 197 makes India fall short of its international commitments to deter police brutality under Article 5 of the Universal Declaration of Human Rights (UDHR) and Article 7 of the International Covenant on Civil and Political Rights (ICCPR). As long as Section 197 is in operation, all well-meaning guidelines of the NHRC and the Supreme Court hardly make a dent in the deeply embedded culture of custodial torture in India.
(Dhananjay Dhonchak is a student research fellow at We, the Humans and a law student at NALSAR, Hyderabad. This is an Opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)