Custodial Violence

Leah: Welcome to the DAKSH podcast, I’m Leah. I work with DAKSH which is a Bangalore- based non-profit working on judicial reforms and access to justice. Our guest for this episode was Justice Chandru, a former Madras High Court judge who was wonderfully portrayed by Suriya in the Amazon Prime movie Jai Bhim. Justice Chandru has one of the most prolific rates of disposal of cases for any judge in the country. In this episode, we discussed custodial violence and the broader issue of access to justice for women in the background of the movie and his book ‘Listen to my case’. Custodial violence has become an accepted feature of our policing system. We read about it in the news constantly, and it is a standard trope in movies and shows about cops. The human impact of victims of these crimes has been captured in the film Jai Bhim, which is based on the real life story of Parvati, a woman belonging to the Irula tribe, who approaches the Madras High Court to find her missing husband after he is falsely arrested for theft. He was severely tortured by the local police for supposedly attempting to escape from prison. The film also highlights the obstacles faced by women accessing courts. The justice system, like most of the public institutions, is not designed to be gender responsive. The ‘Access to Justice’ survey 2016 conducted by DAKSH found that only 15% of litigants were women. Discrimination, stigma and a lack of awareness are just some of the barriers that women face. Justice Chandru’s book describes the stories of 20 women who approached the Madras High Court seeking enforcement of their rights and redressal of wrongs done to them. I begin by asking Justice Chandru about the circumstances of the real world crime that inspired the movie Jai Bhim and if in his opinion, there was any change in the attitude of the police now.

Justice Chandru: You must know the film Jai Bhim was based upon a true incident that took place in 1993. We had some, fortunately, some good judges. One of them was PS Mishra from Patna. After he has taken over Madras High Court, he brought a new orientation to the habeas corpus petitions and their complaints for judicial remand, and torture in lockup, etc, etc. But that time, the law was not very well developed, but then he was able to give compensation and also order special investigation in such complaints. And this case of Jai Bhim was not the first one. In fact, in 1990, we had a case of a police station rape followed by a murder of the husband of the woman and he appointed a SIT presented by then Superintendent of Police, Letika Saran. She rose to become the DGP of the Tamil Nadu police. And that report indicated the police and they were all trade later, A special prosecutor was appointed and all other policemen were convicted. But Justice Misra took the issue to a further when he said that it is not only the compensation, but we’ll also have rehabilitation for the woman so he directed the government to give employment in government service for that lady, and she is now employed, she’s married again. And I think that was the first ever case in Madras High Court, which took a new direction that a special investigation is a crime, and a compensating the victim, rehabilitating the victim and a pursuit, not just leave the case or leave it like that. The High Court was pursuing monitoring the case till the end. I think that gave inspiration to several other cases which followed later. I think in that sense, the Jai Bhim story also was a trend because it started with the habeas corpus filed by the tribal woman. But the habeas corpus did not go further because nobody knew what happened to him. And later, our own investigation, there are two other person, the nephews of deceased Rajakannu was also in the lockup. And with the pursuit of those two, we found them in Kerala, neighboring state in a very remote village, doing some menial work because they were threatened by the police that in case they come back, they will also face the same fate of the uncle. So they never came and they were hiding And then we brought them, we got their statement recorded. And when we produced the statement, the court was shocked. And the government denial all along was also exposed. But for the production of the two nephews as eyewitnesses, this case would have been a very difficult thing. And then after the habeas corpus and compensation, the trial took nearly several years because they were challenging the special prosecutor appointment by the government. And then the special prosecutor, his house was attacked, his library and the car was burned by the hooligans, with the complete tacit approval of the police. And then it led to the Madras High Court Bar striking work under, filing a petition for police protection for the prosecutor and only including those policemen who were convicted by the Sessions Court. Later, their appeal in the High Court was dismissed within three years. Again, it’s a feat because so many appeals are still pending and this case was over within an in-court reasonable time.

Leah: We know that the wheels of justice grind slowly. How do delays affect cases such as these you know, where there are matters of life and liberty at stake.

Justice Chandru: We have seen during my practice as a lawyer for 30 years, I would have come across at least 15 to 20 cases of lockup death, encounter death, and torture in lockup and going for compensation. And then usually it takes quite some time for getting relief. But when I became a judge, I decided that whenever such cases are listed before me, I would pursue the cases till the end within a short period. So none of the cases came before me, lasted more than three to four weeks. What we could assure such people coming from downtrodden community tribal Scheduled castes, that we could have a faster disposal, but we can never stop this kind of torture of the poor people in lockups. Fortunately, after the second use case, JBM case, the Supreme Court has issued a guideline in the form D.K. Basu v. West Bengal. There were 11 guidelines, which are known as 11 commandments. So whenever such cases came before me, while during the bench in the Madras High Court, I had taken action against the Magistrates, because first my query will be what was the remand report. If the remand report is not in conformity with Basu guideline, action will be initiated against a Magistrate. That’s very important that the judiciary, being the monitor or the protector of the constitutional right, cannot keep quiet at all levels. It doesn’t mean only a court is empowered to do all this. Even a magistrate can do this. And if you ask me 28 years ago, now, I don’t see any big change in terms of the attitude of the police. And some of these circulars remain only on a paper proposition.

Leah: Yeah, so coming back to the issue of custodial violence, you know, as a lawyer, the question that often occurs to me is see confessions to police officers are inadmissible in court  so why do the police continue to torture people in custody?

Justice Chandru: You must know how the criminal justice system works, what has been the proof, and then the best way of proof is to make them agree to the crime. And then to the misfortune of the police, even the British did not believe their own police, and they said section 24 of the Evidence Act, those statements given to the police will be taken as evidence. But then there is an exception that recovery is made pursuant to the conviction, is also admissible. So most of the crime, police make a recovery and for that purpose, they also torture some other witnesses. Secondly, the torture is also in a way not only to solve that particular crime, torture is also a state dominance over such communities. It is extending their suzerainty over the population itself, so that they’re able to rule better, put them under check. Therefore, this attitude of even for a small offense, you try to make maximum damage to them, to their willpower, which is something which goes on, it’s been handed down from generation to generation, this is all the police behaves. And even the police reports when they write, they write the caste of their person, they read the community or the person. Even today, the statements of the person recently in court, even the court in the record witness statement, one column says community of the person which is not required at all. But then this mindset has been set over the century by a colonial government which has been followed. And in some other court diaries, Police write some prefix for all these accused. For example, if you say Rajakannu, they may put KR which means Korwa that belongs to that community. We asked him how this has been written. We also complained to the court that no IQ should ever be described by any prefix before their name, and High Court also issued some direction, but nobody obeys that, they write only this. And most of these prefixes are relating to the tribal status, that particular tribe which they belong to. So who is the responsible, nomadic community, which has only one family in the village. You catch them, and then torture them to agree that this is a usual police tale. And some other police officers also try to justify these methods of extracting so-called confessions.

Leah: Yeah, this has kind of become an institutional culture in the police. But I think what’s interesting for us to analyze is, you know, how much of that resonates in society as well, you know. So there’s an organization called Common Cause, which releases a status of policing report. So the 2019 version of this report said that three out of four personnel justify being violent towards criminals, and four out of five justify physically assaulting suspects during investigations to extract confessions. Now, in the 2018 version of the same report, 50% of the citizen respondents, you know, people like regular people like us, they condoned police violence. So, you know, in your opinion, have we as a society also normalized custodial violence?

Justice Chandru: People want quick justice, that’s why you will find given the encounter, especially the super cops are being treated so well. Even there was a film by a Suriya earlier as a police officer, where he kills a person by encounter and there is a small dialog saying that this whole trial process costs so much to the government. A bullet costs only six rupees and therefore, government is also saved money and you must see the thunderous claps, that particular dialect will come when the scene is enacted. Now, what is, the real reason is, forget the educated population, the ordinary people feel that criminals should be punished, spot justice. Now, they do not understand that the punishment has to come from the court. Proper evidence should be there otherwise, innocent will be. What the demand is like the instant food. Now, they won’t have instant death also any case they will say that. Now this is not something ordinary people even two of the high court judges in Madras, wrote in their orders, that such punishment has to be given, like a demo of cutting their fingers if there is a case of forgery and castrate them in case of some sexual violence. All this comes in the light of the Supreme Court holding that it does not mean heinous crimes should be punished with barbarous punishment, because our punishment system is based upon a reformatory system where convicts are reformed and then brought into the mainstream. Now people advocate retributory theories. One such strong faith is the death penalty. The chairman of the Law Commission, AP Shah, prepared a report on the death penalty and sent it to the government. When the report went for discussion among the parliamentarians, majority parliamentarians opposed abolition of the death penalty. The recommendation was to abolish the death penalty, extreme cases except, but that was never accepted. Therefore, the so called representative or the people also represent the mind of the people that they believe in giving such punishment. I think we are going through a very difficult phase where the increasing jingoism of complicating the law, making the law harsher and then looking for punishment instantaneously, these are all deviating from the rule of law. I know two instances where the police officers openly justify beating the accused in the lockup because they say that’s the only way we can extract. It is not just the police. We had a few seal President for Tamil Nadu chapter in the early 70s. One Ramaswamy Cho Ramaswamy was also very famous person. He also said the same thing in a public meeting. Then we told him that he can’t be a president of PUCL and say all this, he said I’ll resign. This is my view. He was sticking to his view. But he resigned from PUCL, thanks to at least human rights are having a different face. But most of the people, why they want instant means, they do not want to wait for eternal justice. Number of years go by with court trials and appeals and further appeals, and therefore in a way for set towards Judiciary’s responses. And finally there is one more thing the attitude of the society. Now in this case, thankfully, everybody’s sympathizing with that girl because of her brilliant performance. I always ask people, if the real thing you need comes and knocks on your door, will you open the door and go for a glass of water? But in the reel and the real, there is still a gap that continues.

Leah: So, Justice Chandru, coming to your book, ‘Listen to My Case’, which is a really interesting account of women approaching the justice system, so the pattern I noticed is that, you know, after long drawn out legal battles on the women get compensation, but we rarely hear if the policemen are facing any action, you know, and police excesses, of course, get media attention, but how often are police personnel held accountable? And why do you think there is this kind of impunity for police excesses?

Justice Chandru: Though there is a law for malicious prosecution, nearly never put in practice. Under section 4 of the CSTPO Act, there is also a provision to punish the officers who are responsible for instigation or abatement. I don’t think any officer has been charged under section 4 despite an attempt to bring them in. And now there is a provision to give them the sanction for prosecution, still continues. Somehow, they think compensation is enough. He does not pursue therefore, in a way this Jai Bhim case is not stopped with compensation or rehabilitation, it goes pursues till their conviction. I think that could be done in an individual case. But largely, the officers were responsible for perpetrating such crime. They escape due to several factors. They continue to be protected by higher officers. Like in the case of Jai Bhim, the government completely supported the officers without knowing what is the real truth behind it, because the poor man’s words never count in our society, and they will always grind the poor got the rich and therefore, take any case was an exception, but not the real rule. And compensation is not the only solution. The book which you are referring to, there are only isolated cases, 15 cases which I dealt with, I picked up as a representative case. The compensation cases also came in a different form, we were trying to do some salvage operations to do some help to them. But what is most important is that the Bar do not have a human rights cell in each Bar, where the lawyers can volunteer to help such people as an organized Bar, unless they come out with such a program. Under the bar council rules, we have a provision for legal aid committees for the bar also. But I do not think that any Bar has got any such provisions. The net result is people are just made to go here and they’re run around from pillar to post to get even help that is lacking today. Therefore, when you have a monopoly of a bar, we should also authorize the human rights organization to take up such cases directly to the court without the help of the lawyers. I consider the help of the lawyer to be important. But when the lawyers do not come forward, and leave the people to the mercy of the others, I think they should also like the consumer forum, another forum, where the voluntary organization will be able to take up such issues directly to court, but the monopoly should be restricted here also. Thirdly, law students should also be trained to act like a co-between as an informer or as a contact person or as a link between the organized Bar and the poor people. Colleges have such committees, which go around and fan out to different areas and get contacts and put them into touch with such human rights lawyers. I think great service will be done.

Leah: Are there any experiences from after the release of the film that you would like to share with us?

Justice Chandru: In fact, at this stage, I want to share one experience which took place last week after the movie Jai Bhim affected. Some families, 1000 kilometers from Chennai, landed in my house last Sunday. They are coming from Andhra Pradesh, they can speak only Telugu and I can’t speak Telugu. And then with great difficulty informed that she had a domestic violence problem in her place. So I asked that lady that there are 1000 lawyers in that particular another poor area. Why would you travel this way and come here. And they didn’t have my address. They had only the photograph of the film lawyer. And they went and asked every auto driver and then somehow they landed. She said that I have no help at all. Then why did you come here? He said, we saw the film and we know this man can help us. You do not have such people to help in each area. This can’t come by any compulsory roster, but it’s come from within. The lawyers should form the groups to fight such societal injustice.

Leah: Yes, that story is really an indictment of the justice system. You know, that somebody had to travel that far to find help across state borders. That’s really an indictment of our justice system. So Justice Chandru, just one question, just going back to police procedure and how they work out, do you think the police also lack training in scientific methods of interrogation in Behavioral Science, in Psychology, because those are the tools that they’re supposed to use while questioning suspects?

Justice Chandru: In fact, last week one police officer asked me, he holds the rank of AAG. He asked me that if I know a pattern is stolen, then do think I can use any force to get the statement from him. Why do you say that such things should not be allowed? I told him that you can’t live in one century you will. There is a scientific advancement, there are technologies at birth. I said, if you think that technology is advanced in the crime direction, you should go for that kind of thing rather than the primitive method of the criminal tribe system. But the mindset continues to be the world mindset. Police officers have returned to me that this film is really an eye opener, it doesn’t mean only the film should tell them what is right and wrong. And this can’t be given a blank check, even during the pandemic period COVID-19, in lockdown there. So many scenes are seen. The police are beating two wheeler drivers. And some people who are very happy about that. I know that our praises came from the media watches, they think good thing, that’s all we can bring some kind of normalcy or some kind of sanity. Somewhere down the line, we also feel each one of us also feeling such a cruel treatment is necessary. Certain barbaric tendencies within us, within our own DNA also exhibit some kind of happiness, so long as you are not on the receiving it. I wouldn’t say that you make it as a part of a school curriculum, I should say that, like we have an innocence, you should also have a human rights training program on the schools, not as a curriculum business, because then everybody will only attend questions on choice, but this is something to be brought as a cultural moment to bring such standards should be raised. That unless that is done, these issues of third degree methods and torture and killing in lockups will continue.

Leah: Yes. So, this has been a fascinating discussion. So just we are running out of time. So I’ll just go to my last question, which is a big picture question. On the larger issue of gender and access to justice, which you’ve written about in your book, can you just describe for our listeners, you know, the kinds of barriers that women or trans people face when accessing justice?

Justice Chandru: Again, when we talk about the brutality of the police, is there any gender specific brutality also, I think there is plenty. In fact, in my judgeship, I had ordered an inquiry, where we found a transsexual was sexually abused and then finally were driven to commit suicide. And he committed suicide right in the front of a police station by pouring kerosene on him. That’s also mentioned. So it took a long time to unravel how he was driven to suicide. And then we also found that he was in the jail and the jail officials, they also made use of him. With great difficulty when he came out, the police were trying the same thing. I think the orientation, sexual orientation is again, an issue which requires a greater probe because not just the police, even ordinary person, their mindset, in fact one of our judges, Madras High Court judge, he wrote openly, before writing the judgment, he went for a counseling, because he has been made to believe so many things, as a student, as a lawyer as a judge. Now you want to debrief himself from the past notions, he wrote in the order that I’m going for counseling to get myself cleaned off, these prejudices. If high court judge can say this, it can apply to everybody also that what is our attitude towards gender, or orientations and gender, and it reflects in every action with the internet, not necessarily crime direction, even without committing crime, there is an assault, assault against shelter home, assault against a girl children, assault against women who live alone. Now, all these things happen without there being any criminal trial, the society itself acts like an assaulter. So one judge very casually remarked, that if women do not go out in the evenings to godforsaken places, then these things will not happen. So I asked him, suppose you lock your car in your garage, Does it mean the motor accidents will come down? So this is something this mindset is a gender mindset, which is there from birth itself. I think a larger moment is necessary to make them realize to have a correct perspective on these issues. In fact, so coming from the mouth of a high court judge, you can imagine what is the imagination of the ordinary people. But I think we are also born in a society where there is prejudice against several things. And this is one more prejudice that we continue to carry on. Though we also say that we are the most greatest democracy in the world. I would like to ask, What do you mean by democracy in such a sense?

Leah: This was my conversation with Justice Chandru and you’ve been listening to the DAKSH podcast. This episode was hosted by me, Leah Verghese. If you liked the show, don’t forget to follow or subscribe to us wherever you listen to your podcast so that you don’t miss an episode. We would love to hear from you, so do share your feedback either by dropping us a review or rating the podcast where podcasts apps allow you to. Talk about it on social media. We are using the hashtag dakshpodcast. It really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, share the episode with them. Especially thank you to our production team at ‘Made in India’, our production head and editor Joshua Thomas, mixing and mastering, Karthik Kulkarni and project supervisor, Sean Phantom. If you want to find out more about this topic, please have a look at the reading list in the episode description. And to get in touch, visit our website dakshindia.org that’s D-A-K-S–H india.org. Thank you for listening.