Police everywhere. Justice nowhere.

On June 19, the Tamil Nadu Police took two men, Jayraj and Fenix into custody in Thoothukudi, Tamil Nadu, as they had kept their mobile phone and accessories shop open during the lockdown to contain the spread of coronavirus. The two men were retained in custody for an interrogation – and a case was filed against them for not observing the curfew under lockdown. These men were brutally beaten, abused, and sexually assaulted (a video by Suchitra Ramadurai chronicles what they faced - trigger warning: graphic violence). Thrice during this torture, the men's clothes were sent home, and fresh clothes were demanded. A trial was arranged by the police with a magistrate, and the two men were taken into custody again. Two days later, the men were pronounced dead.  

The relatives of the two men have reported that the police had assaulted them when they were held in custody, and that Fenix had been sexually assaulted. Four police offers were suspended following the incident, under the order of the Chief Minister, and a cash relief was announced for the family of the victims. The Madurai bench of the Madras High Court has taken suo motu cognizance of the case, and has asked the police to file a report along with a video of the postmortem.

Custodial violence violates the Right to Life
Article 21 of The Constitution of India guarantees individuals the right to life and personal liberty, stating that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Through several years of expansive judicial activism, the scope of “life” has been understood as including a range of individual rights, among which the right against custodial violence has been deeply and firmly established under the law.

The landmark decision that established this rule was DK Basu v. State of West Bengal [(1997) 1 SCC 416], where the Supreme Court indicated that the use of torture in police custody is impermissible and is offensive to Article 21, and noted that the onus of explaining a custodial death lay on the police rather than on the family of the victim. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) of 1984, which India is a signatory to, outlaws any form of torture and calls for states to take effective measures to prevent torture in any territory under their jurisdiction.

Structural violence
The problem ailing this system goes deeper than just a case of using violent investigative approaches. It speaks to the deeper undercurrents of unabashed power, of hegemonic structures that enable the use of such power, and of socio-political apathy toward communities that are constantly targeted with such violence. Police brutality and violence represents “symptom of broader cultural problems within police departments that can be helpfully parsed through the lens of masculinities theories.” It is deeply related to how police officers “relate to the communities they patrol, especially the men in those communities.” 

In the case of custodial violence that Jayraj and Fenix faced, the role of power in the hands of the police and the class background of the two victims cannot be ignored. The unabashed use of power in the hands of the police, coupled with systemic apathy and structural violence fuelled by a culture of patriarchy is a dangerous trend that has neither been addressed nor been taken seriously enough to constantly and proactively prevent at the state level. A major contributor to systemic apathy toward police brutality is the continued operation of structurally violent, colonial legislative systems – which manifests in the form of systemic bias and the absence of independent procedures in trying police officers for their brutality.

This year alone, India has seen several cases of police brutality (see here and here). The number of custodial deaths between April 2017 and February 2018 was at an astounding number of 1674 (ACHR, 2018). While criminal complaints can be filed against officers for offence under the Indian Penal Code, independent investigation is not provided for. As many as 100 people died in custody in 2017, as recorded by the National Crime Records Bureau. For these deaths, not a single person had been convicted.

Is defunding the police an answer?
Following the case of George Floyd’s brutal murder by policemen in the United States, several voices rose to call for the police to be defunded, acknowledging that the structural violence and power placed in the hands of the police offered a fillip for brutal violence to be perpetrated in uniform. While there is definitely a lot of truth in the fact that structural violence is an overwhelming enabler of such violence, it is equally true that the original mindset to be violent pre-existed enough for it to become actionable in an environment that enables it. To address the challenge of police brutality, while defunding may work, it is more a measure that can only follow a shift in mindset. 

The police – and all those who are in the police – come from society, and is as patriarchal as society is patriarchal. A social and structurally formed institution, the police evinces the same patriarchal mindset that we see commonly in society – with the additional fillip of power. To deallocate funding without dismantling that mindset is to do nothing to change the problem: for those that no longer serve as the police will continue to pursue violent behaviors, arguably with great power if there isn’t an institution to stop them. This would then mean, in the words of Kevin Robinson, a sharp focus on reallocation of police funds – where the use of funds could be directed to programs that strive to create empathy and cultivate compassion in the police, rather than ways to fuel their power.