Tuesday, September 12, 2017

On Police Interrogation in India

Many months ago, I found this question on Quora:

"Why does the Indian system remand arrestees (sic) to 'police custody' vs 'judicial custody'?"

It is an important question.  In most developed countries, coercive interrogation is illegal.  That is not just because it usually involves torture, but also because it is a fundamental right to remain silent when confronted by police.

In India, torture by police is almost never prosecuted, nor is there a real right to remain silent.  Courts do not take suo-moto cognizance of a report of police atrocity, for reasons best known to the courts.  And India has steadfastly refused to ratify the international treaty outlawing torture.

When people talk about the inhumanity of police in India, we must understand that the inhumanity is a result of specific, systemic reasons and structures.  There are laws and provisions in place, and there are laws and provisions which are conspicuous by their absence, that make it almost impossible to hold the police accountable.

For a common citizen, this is the expected behavior of police:

1. They will not entertain your complaint unless it involves rape or murder or kidnapping.
2. If a complaint is registered, they thereby have license to harass the accused (who is not yet a proven criminal) and to arrest and torture him/her.
3. They will not, in any manner, move forward with investigation and collecting evidence unless pressured by a higher-ranking officer.
4. If there is media spotlight on a case, the police will act quickly but in a slipshod manner and the accused would eventually be acquitted by the courts.
5. The police has vastly different standards in its handling of high-profile celebrities and the unwashed masses.  The high-profile will not be arrested till ordered by the court.  The police will go to their residence to ask questions instead of detaining them.  If due to media pressure, the high-profile arrest is made, the police will respectfully allow the accused all manners of facilities, comforts and interaction with the outside world.

This flagrantly unjust behavior of the police, and the system which enables it, is the fundamental reason why Indian citizens are afraid of it, want to avoid interacting with it, and feel that law is not their protector but their enemy.  And therefore, they do not respect and follow the law.  In their eyes, the law is equivalent to the enforcement of the law.  If the enforcement is unfair and selective and unjust, then the law is a tool of injustice, not justice.

Here is my published answer to the question:

This is an interesting question and the other responses fail to answer the crux of your question.

In India, the right to remain silent is not constitutionally granted.

In fact, an individual can be punished for refusing to answer questions, and that is the legal basis of police intimidation in India.

The law in question is section 179 of IPC:

“Refusing to answer public servant authorised to question.—Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

But what about right against self-incrimination, you may ask? This is where India is messed up. It recognizes the right against self-incrimination in principle (section 20(3) of the constitution) but in practice has never come to the defense of the accused to remain silent.

For example, observe what this judge states when an accused rebelled against the need of police custody (from “No absolute right to remain silent”)

“Justice S. Nagamuthu held that the right of the accused to maintain silence was restricted to questions which might expose him to a criminal charge or penalty or forfeiture. The accused are bound to answer all other questions related to the case and refusal to do so would amount to an offence under Section 179 of the Indian Penal Code.”

Hence, the answer to your question is that Indian institutions are OK with coercive interrogation and torture, despite any claim to the contrary. There is a colonial-era law (sec 179 of IPC) which provides a legal basis for police coercing an individual to answer questions, and everybody in judiciary and police knows this.

You might also want to ask how does police in India, without a subpoena or warrant, have free and unrestricted access to mobile call records and cellphone locations which they use in almost every investigation these days? Isn’t that a flagrant violation of privacy?

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