India: The Kinship of Impunity

A Supreme Court decision of 26 September 2012 was reported in the newspapers in a manner that suggested wishful thinking. Headlines are necessarily abbreviated, and those in this instance said that the SC had sent a message to "the police" about branding people on the basis of religion. The message, in fact, was specifically to the Gujarat Police: "District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse and abuse and [must] ensure that no innocent person has the feeling of sufferance only because ’My name is Khan, but I am not a terrorist.’â€

It could be argued that the message should have been sent out explicitly to all the police forces in the country, because there is probably no part of India in which Muslims are not automatically and unthinkingly treated as terrorists. The SC bench may well have decided not to make general its specific injunction because that could have invited the accusation that it had over-stepped its bounds.

It is, however, impossible for anyone connected with the application of the laws to be unaware of the noise that has recently been made about the targeting of Muslims in India in matters related to terrorism. Report after report from citizens’ groups has spoken of the indefensible and arguably motivated phenomenon, and there have been public meetings about it in many cities across the land. It is high on the agendas of those concerned with civil rights.

The SC was dealing with appeals related to a January 2002 judgment of a Designated Court in Gujarat in TADA cases from 1994, 1995 and 1996. The matter hinged on whether or not the necessary permission had been obtained from specified officials before the accused were charged under TADA.

The SC did not accept the prosecution’s contention that A.K. Suroliya, the Deputy Commissioner of Police, Crime Branch, had given the necessary permission. Among other things, it found the tale of lost documents too tall to swallow. However, it did not speak of penalising any of the persons involved in dishing out falsehoods to cover up the illegality of their action.

The realist will ask, of course, what good that would have done. We know that nearly all the enquiries into religious violence – I hold the expression "communal riot" to be a lie – starting with that into the Jabalpur violence of 1961, have pinned down responsibility and have spoken of officials’ dereliction of duty or worse. No punishment worth the name followed.

Recent judgments of many courts in cases related to terrorism which have exonerated the innocent individuals who were arrested and then incarcerated and tortured for long periods, in the process destroying their lives and those of their families, have also censured members of the police force and have recommended departmental action against them. Here too, no action other than the white-wash kind was taken.

Indeed, the report on the Special Cell of the Delhi Police released recently by the Jamia Teachers’ Solidarity Association gives examples of the absurdity of police functionaries actually being promoted and rewarded despite having had strictures passed against them by courts of law.

Do our country’s police forces function in circumstances of impunity? Are there means and mechanisms by which it can be ensured that the “upholders of the law†do not themselves go against the law in their actions? Or are the law-men to be always a law unto themselves?

Certainly there are rules within the police bureaucracy. The repeated recommendations by courts of departmental action call for these rules to be applied. However, there seems to be in the police bureaucracy – as in other bureaucracies which, coexisting with one another and also ranged against one another, go to make up the government – what might be called a culture of impunity or a kinship of impunity.

Every policeman, from constable to Inspector General or Commissioner, belongs to the same “family†: and while an unruly youngster may have his wrist slapped, he will not be expelled from the collectivity or have serious action taken against him. Every policeman is, after all, dependent on every other policeman. If one is harmed, all are harmed.

The courts are held to be supreme in matters to do with the law. But they are no more than another bureaucracy – the babudom of justice – and they cannot realistically be expected to apply to the police the laws which they apply to ordinary people. Thus the recommendation of departmental action, despite it being common knowledge that that is little more than a matter of going through the motions, appearing to impose discipline while merely covering up errors and crimes and warding off disgrace.

I see no reason why the courts must limit themselves to making recommendations. When they have taken independent action in many other circumstances, why should they be essentially
toothless when the police are involved?