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03 March, 2009

Structural breakdown of Indian justice system must be addressed, says ALRC

The Asian Legal Resources Centre, Hong Kong, in a statement says:

The reports that appeared yesterday in the Indian media quoting 'informed sources' that the Tamil Nadu state police has decided not to produce detainees in courts exposes the extent to which the justice institutions have broken down in India. According to the provisions of the Criminal Procedure Code, 1973 it is the statutory duty of the state police to assist the courts in the country for its day-to-day functioning. It is also mandatory for the police to produce the detainees remanded to judicial custody before the courts, as and when required by the courts. Any decision by the police, express or implied, against this official duty must not go unpunished.

The decision of the Tamil Nadu state police is a wilful dereliction of official responsibility, negation of judicial supremacy and the very function of the police in maintaining law and order. The Asian Legal Resource Centre (ALRC) and its sister concern the Asian Human Rights Commission (AHRC) have been continuously reporting instances suggesting the systematic breakdown of rule of law in India, particularly concerning the police. The decision by the state police of Tamil Nadu to disregard the provisions of law, substantiates ALRC's position that there are apparent and deep-rooted problems affecting the rule of law in India.

Lawyers engaged in professional misconduct, judges failing to perform duties and police officers committing crimes, assaulting persons and destroying property have become the defining characters of the justice dispensation system in the country. The structural breakdown is apparent. Yet, instead of gearing up to repair the ruptures, it appears that the government is forcing the people to get used to the reality.

The approval by the Government of India for recruiting, training and deploying Salwa Judum, in Chhattisgarh state, in the excuse of countering Naxalite activities in that state is an example. Salwa Judum is nothing but an armed mercenary group operating with impunity in Chhattisgarh. The Chhattisgarh state administration finds it convenient to arm a faction of organised civilians to fight anti-state movements like the Naxalites. By promoting Salwa Judum, the state is trying to absolve from its responsibility of maintaining law and order in its territory.

The Government of India, instead of preventing the Chhattisgarh state administration from continuing with the deployment of Salwa Judum, insisted yet another state administration, the Manipur state government, to resort to similar tactics in 2008. The same practice was implemented years ago in the state of Jammu and Kashmir during the time of rightwing BJP led government in India. Neither in Jammu and Kashmir, nor in Chhattisgarh or in Manipur, has the situation improved since then.

In the past two years, there has been an alarming increase in the number of extra-judicial executions reported from India. In the Indian context, such murders are referred to as 'encounter killings'. As of now, there is no legal framework in the country by which an impartial enquiry and investigation is possible in a case of encounter killing. The practice is, a superior officer and later the court, accepts a report sent in by the police involved in the murder and no further action is initiated. The murder is often rewarded by the administration, so much so, there are more than three dozen 'encounter specialists' serving as police officers in various parts of the country.

Impunity for the police to murder and the lack of punishment trivialises the practice of custodial torture in the country. The practice of torture is widespread and is accepted as an essential requirement for law enforcement.

On June 15 this year, the Speaker of the Kerala State Legislative Assembly, Mr. K. Radhakrishnan, declared at the annual conference of police officers of the state, that the use of third-degree methods by the state police cannot be condemned. The Speaker during his keynote address argued that it is ridiculous to insist that the police officers in India respect human rights. According to him, it is difficult to do policing and respect human rights at the same time. He made it clear that when the police investigate a crime, it is natural and often required for the investigating officer to use torture to prove the case. Among those listening to these remarks were the Director of the State Police Training College and the Director General of Police.

Breach of law by the law enforcement agencies in the country meets no bounds. Corruption, nepotism and the disregard to the law flourish within state agencies, particularly in the police. The society quivers under the writ of fear when the law enforcement agents commit crimes with impunity. In spite of repeated and legitimate requests from national and international human rights groups and the thematic mandates holders of the UN like the Special Rapporteur on the question of torture, the Government of India has failed to criminalise the practice of torture or to ratify the Convention against Torture.

In fact, the government has failed in implementing the directives of its own Supreme Court. The directives of the Supreme Court in the Prakash Singh case are yet to be implemented in the country. The implementation of the Court's directives is important for improving the state of policing in India, since half of the issues concerning the police, including the practice of torture and participation in crimes by the police officers, are carried out at the behest of corrupt politicians in the country. Having a law against torture while the ultimate writ above the police entrusted with a corrupt politician will not improve policing in India.

It is in this context that the protest called in by the Tamil Nadu state police becomes relevant in exposing and addressing the situation of rule of law in India. The very fact that the police can intentionally negate the supremacy of law shows the vacuum of authority in the country. The incident illuminates the impunity that the police have enjoyed so far that they have now dared to openly challenge judicial supremacy.

Instead of actively engaging in the situation, the Tamil Nadu state government has allowed the police to continue with their follies. The police action on February 19 inside the compound of Madras High Court that injured police officers, lawyers, judges, court staff and ordinary persons is not of such triviality that it could be resolved by a fast declared by the state Chief Minister. The police-lawyer confrontation and the subsequent sequels of non-cooperation between three important limbs of the justice dispensation system of the country is not an issue that can be camouflaged with political gimmicks and ignored.

The February 19 incident is the clarion call for intervention by a system which is left to break down and disintegrate. The subsequent protest orchestrated by the state police refusing cooperation to the functioning of the judiciary is a failure of the constitutional machinery that require a legitimate intervention by the Government under Article 356 of the Indian Constitution. The failure of the Government of India to take affirmative actions to correct and revitalize its criminal justice system poses legitimate challenges to India's democracy and the country's position in the UN Human Rights Council.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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