The Covid-19 pandemic is altering India’s power structures, granting legal cover and impunity to police, as many judges disregard the law and constitution. A retired justice believes the murders of P Jayaraj and his son, J Bennix, should hold a mirror to the judiciary.
Chennai: The small town of "Sathankulam" (literally translated, satanic pond) in southern Tamil Nadu shot into prominence after local police on 22 June allegedly beat to death a father and son who violated lockdown restrictions and kept their electronic shop open beyond closing hours by a few minutes.
The police violence and subsequent judicial failure revealed in Sathankulam was not new, but it was made easier because of the ongoing Covid-19 pandemic, which has gradually altered state structures, granting more powers, legal cover and impunity to the police.
The events at Sathankulam began when after an altercation with police over keeping their electronic shop open after closing hours, P Jayaraj, 58, and J Bennix, 31, were taken to the local police station, severely beaten and tortured overnight, from all accounts.
When the duo was finally produced before the local judicial magistrate (who resides in a first-floor flat) , he ordered remand from his balcony, without even seeing the two "accused”, who were held at the gate outside in blood-soaked clothes.
The learned magistrate, who had just joined the judicial service, also wrote in his remand report that there were "no complaints" from the accused. It was made to appear that a medical certificate produced (or procured) from a local hospital certified that they were fit and had no medical complaints.
The father and son were ordered to judicial custody for 15 days and lodged in a sub-jail 94 km away, even though the district jail was located a few kilometers from the court. This remand was apparently given on a local police diktat.
Judicial Failure, Police Defiance And Public Protest
The magistrate did not stop to think that the offences alleged against Jayaraj and his son under the Indian Penal Code were mostly not serious: section 188, disobeying a public servant; section 269, negligent act likely to spread infection of disease; singing, reciting, section 294 (b), uttering obscene song or words in a public place; section 353, assaulting a public servant; and 506 (2), criminal intimidation.
They were local traders with no prior criminal background, and since a pandemic was raging, they could have been granted bail, as per several precedents laid down by the Supreme Court (here, here and here). In 1977, the late Justice V R Krishna Iyer said: “The basic rule may perhaps be tersely put as bail, not jail”.
The sub-jail in Kovilpatti noted the injuries to the remand prisoners. A few hours after their remand, the two prisoners complained of illness and they were admitted to a hospital, where both soon were declared dead.
In view of the death in custody, the Madras High Court (Madurai Bench) ordered, on a suo motu basis, a magisterial inquiry, thanks to a public outcry. A magisterial inquiry under section 176 (1A) of the Code of Criminal Procedure (CrPC) ended in a fiasco when the police, according to the magistrate, “adopted a threatening tone”. One constable even told the magistrate: "Unnaal onnum pudungamudiyaadu (you cannot do anything here).”
The Kovilpatti magistrate abandoned his inquiry and complained to the High Court, which ordered criminal contempt notices to the three policemen. It was only when the complaint report of the magistrate was disclosed that hell broke loose.
The state government transferred all the 24 police personnel from Sathankulam police station and Thoothukudi district’s superintendent of police and transferred the case to the Central Bureau of Investigation (CBI). However, since that could take time, and any delay would damage the case, the High Court entrusted the investigation to the Crime Branch Criminal Investigation Department (CB-CID).
The Constitution, The Pandemic And Changing Power Structures
It has now emerged that at least 12 others were reported tortured at the same police station. Gross abuses of guaranteed rights under the Constitution were reported, with gruesome pictures of wounded prisoners allegedly tortured by local police appearing in the media.
The question that now arises is whether the judiciary is capable of handling these human-rights violations in accordance with the law. The other question is, why did judicial officers fail to discharge their constitutional responsibilities which led to these gross human-rights violations?
I will explore how the situation brought about by the pandemic, and a lockdown now extending more than three months have altered conventional power structures.
The first issue is why the judicial magistrate of Sathankulam ignored the mandate given to him by Article 22(1) of the Constitution. To reiterate: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
The accused were brought before the Sathankulam magistrate with a request for remand. Why did he not see the prisoners to find out whether they had been tortured by the police after their arrest and why did he order a remand for custody in a mechanical fashion?
After providing a right to life and personal liberty under Article 21, the Constitution of India incorporated Article 22(1) as rights for pre-trial prisoners. In the US these are described as the Miranda Principles (from a landmark US Supreme Court case, Miranda vs Arizona, 1966) and are cherished, guaranteeing minimum safeguards for pre-trial accused.
Even when terrorists from Pakistan attacked Mumbai and the only one to survive, Mohammed Ajmal Amir Kasab, appealed against his death penalty, the grounds urged on his behalf were violations of rights under Article 22(1) of the Constitution. This right is available to any person and not confined to citizens of India alone.
A Dereliction of Constitutional Duty
In the Kasab case, the Supreme Court in 2012 held that Article 22(1) guaranteed that "no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice".
The court rejected the government's argument that this right is available only at the time of trial before a court and not earlier. The court said: "It is now rather late in the day to contend that Article 22(1) is merely an enabling provision and that the right to be defended by a legal practitioner comes into force only on the commencement of trial, as provided under Section 304 CrPC.”
Any magistrate violating this provision must face disciplinary action by the relevant High Court, the Supreme Court.
"We hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is provided to make him fully aware that it is his right to consult and be defended by a legal practitioner," said the Supreme Court.
The Court also had cautionary words for judicial officers: "We direct all magistrates and make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings..."
Knowing this law, why did the Sathankulam judicial magistrate fail in his duty and why did the High Court not call—as it has not to this day—for his explanation?
The answer to the question lies in the situation created by the pandemic and the rigorous conditions imposed by the lockdown, with courts closed and only urgent matters taken up through video hearings.
Initially, the state government resorted to provisions of the Epidemic Diseases Act, 1897, a colonial legislation. Given its antiquity, both Centre and state resorted to the Disaster Management Act, 2005, and also used ban orders under section 144 of the CrPC and allowed the police to take over public roads and market places.
These powers gave the police licence to beat citizens in public, overturn carts of vegetable vendors and seize vehicles. Those criticising the government have been arrested, the criminal justice system has faltered, and powers given to the police are mostly unregulated and not questioned. Undertrials have been kept in jails vulnerable to infection.
A High Court Judge Declares Emergency
It was during their period that S Kasi, charged with attempted theft and lodged in prison for over 73 days sought default bail, on the grounds that the police did not file a chargesheet within the mandatory period of 60 days.
Kasi’s matter came up before the Madras High Court (Madurai Bench), where the judge made unusual remarks in his order of 11 May 2020.
“Violators of law cannot take undue advantage of the extraordinary situation and enjoy the liberty while the entire nation is under lock down and crippled from carrying on their normal activities,” said the order.
The judgement went on to say: “The lockdown announced by the Government is akin to proclamation of emergency. Under Article 352 of the Constitution, in case of external aggression National Emergency can be proclaimed by the President. Presently we face aggression not by human agencies, but by micro-organs (sic).
“Likewise when the nation face threat (sic) to the credit or financial stability under Article 360 Financial emergency can be declared. If emergency is declared, under Article 358 the rights under Article 19 gets suspended. The right to live (sic) guaranteed under Article 21 is subject restriction. Presently, though the state is not passing through emergency duly proclaimed, whole nation (sic) has accepted the restrictions for well being of mankind.
“At this juncture, myopic reading of Section 167 of Cr.P.C conveniently ignoring the spirit behind the order by the Apex Court invoking its power under Article 142 of the constitution will amount to judicial indiscipline."
The Supreme Court lost no time and set aside the order within a month on 19 June 2020. The Supreme Court reminded the judge of the effect of the 44th amendment to the Constitution and how even during a declared emergency rights under Article 21 & 22 cannot be dispensed with.
“We, thus, are of the clear opinion that the learned Single Judge in the impugned judgment erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency,” said the Supreme Court.
“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law."
If this was the understanding of a learned judge of the High Court, we can imagine how a lower-level judicial officer may think and act during the time of a pandemic.
The new power structure that has emerged during the pandemic is that, as elected representatives are confined to their homes, judicial functions are dispensed through video hearings, often in violation of established law, and unrestricted power has passed to police and bureaucrats.
The Sathankulam episode should serve as an eye-opener to the judiciary. If it fails its watchdog or sentinel function, we will be deprived of our cherished fundamental rights guaranteed under the Constitution, putting all of India in danger of being submerged into the "Satanic Pond" of the new, altered power structure.
(K Chandru is a retired judge of the Madras High Court.)