Firstly, I’d like to address this that I’m too conscious of writing this article, since even my principles and opinions have diametrically changed while researching on this topic, and writing this. And only because of that, I hope to not deter asking questions that are too harsh for our conditioned minds, and stand to plead for humanity and law above any criminal record.

THE CASE:

Jayaraj (59) and his son Fenix Emmanuel (31) ran a mobile shop in Tuticorin. On June 18, around 8:15 p.m. Jayaraj was pulled up by the Sathankulam police officials who were on patrol. They upbraided him for exceeding the curfew by 15 minutes. On Friday, June 19, Jayaraj was taken in by the police and soon after his son Fenix was arrested too when he went to inquire about his father’s arrest.

The two of them were booked under Section 188 (disobedience to order duly promulgated by public servant), Section 353 (use of force to deter public servant from duty), Section 269 (negligent act likely to spread infection of disease dangerous to life), and Section 506(2) (Punishment for criminal intimidation) of the Indian Penal Code.

In custody, they were allegedly tortured. They were later released and taken to a hospital where a doctor declared them fit despite eyewitnesses reporting that they were beaten up and were still bleeding then.
The Sathankulam police then approached magistrate B Saravanan for the remand of Jayaraj and Fenix. The magistrate allegedly gave the remand order without physically seeing the father-son duo, which is required to ascertain if detainees are injured.

On Monday, June 22, Fenix developed internal haemorrhage and died in the Kovilpatti Government Hospital on Monday evening around 9 pm.
The following morning, tuesday, June 23, Jayaraj developed a chest pain and was ruished to the same hospital where he died at 8 am.

Allegedly and as witnessed by several eyewitnesses, Jayaraj and Fenix were assaulted, thrashed and beaten up continuously while they’re in jail. Fenix was sexually assaulted when the accused constable inserted an iron baton in his anus triggering uncontrollable bleeding, his chest hair were ripped out. Jayaraj was beaten and was kicked on the chest violently to cause internal and external bleeding.

Fenix’s lawyer and friend, Advocate S Manimaram, an eyewitness to the brutality said, “We were standing right outside and were looking at them through a glass gate. They were beaten. In the morning, the blood was all over where they were sitting.
He added, “I gave them four clothes to change. We had laid down a blanket in the seat of the car when we went to pick them up, Fenix had lost a lot of flesh on his back. He was a well-built man. The spot where Fenix sat was covered with blood, the place where Jayaraj was sitting was also all blood. The blankets are still with us. They were beaten to death.”

WHAT FOLLOWED:

Ever since the news of the deaths first broke, the district of Tuticorin has seen widespread turmoil and huge protests have broken out in several parts of Tamil Nadu. Across the state several trader union bodies, political outfits, activists, have staged protests against the death of the duo. Protests and demonstrations have been ongoing since.

Famous Tamil radio jockey RJ Suchitra’s viral video on the brutalities endured by the father-son duo has now led to a movement nationally and internationally condemning the brutality of the Police. #JusticeForJayarajAndFenix is trending on every social media platform.

Many have been drawing parallels with the BLM movement in USA, and have been demanding murder charges against the accused police officers and those who are involved.

The Madurai bench of Madras high court took suo motu cognizance of the matter and on June 24, a bench consisting of Justices P.M. Prakash and B. Pugalendhi ordered the Superintendent of Police, Thoothukudi, to inquire into the incident and submit a status report.

POLICE SAYS:

There have been multiple discrepancies in the shocking case, beginning from the FIR which was filed against the father son-duo. While the case says that the FIR was filed by SI P. Raghuganesh at 9:15 pm based on information from Head Constable Murugan who was on patrol duty at 9:15 pm at Kamaraj Salai. The FIR was filed more than an hour after the two were hauled up by the police. The report was signed by 10 pm.

The government doctor, Dr. Venkatesh’s reports confirmed that P. Jayaraj (58) and his son J. Benicks (31) had suffered multiple injuries, allegedly due to police torture at the Sattankluam police station in Thoothukudi district on the night of June 19.

Huge protests take place all across Tamil Nadu.
Picture Via Indian Express

As demand for action against those involved in the alleged custodial death rose, four policemen (two SIs and two constables) in the Sathankulam police station were suspended and the inspector in-charge had been transferred. However, public outcry has deemed the punishment insufficient.

HOW GRAVE IS THE CUSTODIAL DEATH RATE IN INDIA:

On October 13, 2019, Pradeep Tomar, a security guard, rushed with his 10-year-old son to Pilkhua police station in Hapur district in Uttar Pradesh. He had been summoned for interrogation in connection with a murder case. The son later said that his father was brutally tortured by the policemen in front of him for hours. When Tomar’s condition deteriorated he was rushed to hospital, where he died. 

In 2018, a Delhi court sentenced five U.P. policemen to 10 years of rigorous imprisonment for torturing a man to death in custody in 2006. The five policeman had abducted the victim on suspicion of his involvement in a car robbery and tortured him in custody. Later, he died.

50-year-old Satya Prakash Shukla died in police custody after being tortured, his family alleged, The Tribune reported on October 30, 2019. Shukla was accused of  looting a bank employee in Peeparpur area of Sultanpur.

As many as 100 people were reported to have died in police custody in 2017, according to National Crime Records Bureau (NCRB) data. Of these, 58 people were not on remand–they had been arrested and not yet produced before a court–while 42 were on police or judicial remand. No policemen were convicted.

Via THE PRINT

This number went upto 125 in 2019 when a total of 1,731 people died in custody in India during 2019. This works out to almost five such deaths daily, according to a report by a rights group. 1,606 of the deaths happened in judicial custody and 125 in police custody.

Suicide was the most reported reason for custodial deaths in 2017, followed by ‘death due to illness/death in hospitals during treatment’. In 2019, of the 125 cases in police custody, 93 persons died due to alleged torture or foul play, while 24 died under suspicious circumstances in which the police cited suicide.
“To a certain extent, suicide deaths in custody are true,” Yashovardhan Azad, former chief information commissioner and Indian Police Service official told IndiaSpend in 2019, citing the example of the Nirbhaya case, where he said “Ram Singh (the main accused) was in jail and not even in police custody when he committed suicide. It could be because of shame or other reasons.” 

“One hundred custodial deaths in one year, in my view, point to serious cause for concern. It indicates that conditions in custody are not conducive to keeping people safe and alive,” Devika Prasad, programme head, police reforms at the Commonwealth Human Rights Initiative, a non-profit.
She added, “Police must be made to answer for someone turning up dead while in their custody.”

Police have repeatedly blamed lack of infrastructure, lack of amenities for their resort to torture and violence towards prisoners.
In 2019, Inside Haryana Prisons, was commissioned by the Haryana State Legal Services (HSLS) in compliance with a 2013 order passed by the apex court in ‘Re: Inhuman Conditions in 1382 Prisons’ and was prepared by the Commonwealth Human Rights Initiative (CHRI) after interviewing 475 prisoners across 19 prisons in the state. The report said that out of these 475 prisoners, 227 said they had been subjected to inhuman treatment and torture.
India, incidentally, is a signatory to the United Nations convention against torture.

DOES INDIAN POLICE ENJOY “TOO MUCH” POWER?

India was elected to the United Nations Human Rights Council (UNHRC) for a three-year term, starting from January 1, 2019, its fourth since the UNHRC was formed in 2006 to hold governments to account on their human rights record. As an inter-governmental body within the United Nations system, the UNHRC is made up of 47 States responsible for the promotion and protection of human rights around the globe. 
But, in the last few years, the cases of custodial torture, inhuman treatment, and exploitation of power by police have only increased.

Police Encounters:

Article 21 of the constitution states: “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law“.
This means that a person who is accused must be informed about the charges against them, the State is required to put them on trial according to the Criminal Procedure Code, and is needed to be given an opportunity to defend themselves. If then found guilty, must be convicted and if the Court orders, be deprived of his right to life.
Fake encounters take away the power of the judiciary to sentence death to the accused, without even a trial.

The Hyderabad ‘encounter’ killing, 2019 by the police of the four alleged rapists of the veterinary doctor raised questions about the exploitation of power by the police and if there is any truth to the encounters by the Indian Police. These were widely practised by the Maharashtra police to deal with the Mumbai underworld, by the Punjab police against Sikhs demanding Khalistan, and since 2017, after Yogi Adityanath became the chief minister, by the UP Police. Howsoever menacing the criminal is, fake encounters are only “cold blooded murders”.

NHRC to probe HYDERABAD encounter

When the Police takes the power in their own hand to sentence the criminals, the whole Judiciary system breaks, the power is then awarded to Police for catching the criminal/accused, and the purpose of the police that is to prevent crimes is completely sidelined. Then, with time, the potency of the Police misusing that power becomes more, hence the system fails.

TORTURE:

Torture of the criminals, behind locked jailrooms is very common, and completely bizarre.
In 2006, the Indian Supreme Court ruled that each state should set up a police complaints authority where any citizen can lodge a complaint against police officers for any misdemeanor. However, this has not been done in most states.

The Central Bureau of Investigation (CBI) also uses torture as a method of investigation. In September 2016, B.K. Bansal, Director General of Corporate Affairs, and his son Yogesh committed suicide. In their suicide note, the two men listed the names of officers who had tortured their family in connection with a case of disproportionate assets. 

Via SCROLL.IN

Since policemen responsible for custodial deaths rarely get punished, they feel emboldened to continue using torture as the tool to get to the truth. In 2015, for instance, the police registered cases against fellow police officers in only 33 of the 97 custodial deaths.

Talking about reforms and measures to prevent custodial deaths, Devika Prasad, programme head, police reforms at the Commonwealth Human Rights Initiative, a non-profit said, “Prevention requires a genuine and visible commitment to zero tolerance to custodial violence of any kind by police leadership. And it also requires the guarantee of prosecution of police for torture and custodial death, to send the surest signals that there is no room for inhumane actions and practices in the guise of policing. This is not the case at present.”

LAWS LIKE UAPA, NSA:

In draconian laws such as UAPA, TADA, POTA there is no chargesheet, no substantial evidence required, hence leeway of torture also maximizes.
In laws, that are already infamous because they enable State to even arrest activists, critics, intellectuals, the situation becomes more fearsome.

In recent times, laws like these have only been used to target innocents, and voices of dissent. UAPA, NSA, PSA have been heavily used to silence the critics, and to establish a situation of fear in states like Kashmir and Assam. The many human rights organizations have been condemning the laws which are only identical to the unconstitutional laws like POTA, TADA of the past. The recent Ammendement to UAPA, which empowers the State to also charge individuals under the act furthers increases the degree of torture.

Anand Teltumbde and Gautam Nalakha charged under UAPA.

The most recent example of this is the use of the National Safety Act (NSA) to arbitrarily arrest 160 Muslim men in Uttar Pradesh, in the one year that Yogi Adityanath has been its chief minister. In August, the Unlawful Activities (Prevention) Act (UAPA) was used to arrest five human rights activists, by accusing them of being “Naxals” operating against the state. In April, 2 journalists from Kashmir have been charged under UAPA.

Torture is also emotional, when one innocent is faced with a trial of a crime he did not do, the torture is not only physical, but emotional, sociological and in most cases, also financial. In 2018, the conviction rate under UAPA was 27% while 93% of the cases remained pending in the court. Similarly, since 2016, only 7 sedition cases saw conviction.

IMMEDIATE COURSE OF ACTION:

Immediate course of action falls upon us, citizens, more than the government. We, the citizens need to question the authorities more, try to amend what is broken, try to democratize the system more by asking, questioning, demanding for fair trial, fair answers, more accountability, lesser exploitation of power.

In the current scenario when we cannot conduct protests due to pandemic, for Jayaraj and Fenix, we must use the power of technology to reach out to millions of our countrymen, and also urge the authorities to take action.
One person’s deprivation of justice is a whole country being denied justice.

In the long run, we must stop clapping when the police thrashes protesters, thieves, we must stop making thrashing a criminal a “heroic act”. And as controversial as it may sound, we must need to make protecting the accused a “heroic act”, enabling them to have a fair trial a “heroic act”. In this world, when authorities take advantage of our general dissociation, we must become heroes for each other.

References:

THE WIRE

INDIA TODAY

THE HINDU

INDIASPEND

Vinayak Sharma The Indian Opinion

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