Four years ago, at the time of the historic anti CAA/NRC protests, a shocking video went viral. The video shows a group of five Muslim youth – Faizan, Farhan, Kauser, Rafique and Wasim – dragged, encircled, taunted and beaten up with lathis and kicked mercilessly by the police. The men were also forced to sing the national anthem to ostensibly prove their patriotism.
Subsequently, one of them, Faizan, died in custody. Four years after his death, Delhi high court’s Justice Bhambhani gave a searing order acknowledging the failure of the Special Investigative Unit of the Crime Branch to do a timely and impartial investigation. In its July 23 ruling, the court ordered that the case be handed over to the Central Bureau of Investigation (CBI).
Faizan’s case is ultimately a collective societal failure to express adequate outrage for justice even when a helpless fellow citizen is surrounded by police and subject to brutal violence captured on video, merely, for being a Muslim. It is a reflection of the continued failure of institutions in addressing police violence. Yet, the order is an urgent reminder of the potential power of the current jurisprudence to prevent police violence and torture in the early stages of custody.
Faizan was a 23-year-old young man who worked in a meat shop in Ghazipur Mandi. On February 24, 2020, he went out to look for his mother Kismatun who had not returned from an anti-CAA protest: a movement that was memorable for the leadership roles played by Muslim women. Faizan and his friends were arbitrarily targeted and beaten up by the police. Later, the police took them to GTB hospital where Faizan got some basic treatment, including some stitches in the ear and head, and was referred for some specialised treatment involving orthopaedics and neurosurgery.
By the time the family came to know that they were in the hospital, Faizan and others had already been taken to the Jyoti Nagar police station. When the family went to the police station, they were told to go away. Despite theIR constant efforts to get some answers, it was only at 11 pm the next day, February 25, that the family was called to take him home.
The court order noted: “The police handed-over her son in a severely injured condition, barefoot and stitches on his head and ear, in blood-soaked clothes and torn trousers.” His mother mentioned that “she was alarmed to find that her son was severely injured; his body was badly bruised; and his hands and feet were swollen so acutely that he could barely walk.” And it was in that condition, through laboured breaths, that Faizan was able to narrate his experience to the family. The next day, when a local doctor saw his critical situation, he was immediately taken to the Lok Nayak hospital where he died.
Over the years, the courts have tried to ensure oversight on the first 24 hours of the accused after arrest, especially in police custody, to check illegal detention and ensure the absence of torture, a routine occurrence often normalised. The lasting impact of the 1996 D.K. Basu case is seen in the arrest memo meant to ensure proper arrest with witnesses and a medical exam/MLC (Medico Legal Certificate) to protect the safety of a person in custody. Judicial magistrates have to oversee these constitutional safeguards which is the focus of our recent study. The irony and normalcy of getting a medical exam is visible in Faizan’s case where it is likely that the same police personnel who brutally beat him up may be the ones who ultimately took him to the hospital.
Recognising that the D.K. Basu guidelines did not ensure complete oversight inside the police station, the court, in Paramvir Singh Saini case (2020) even came up with a way to insist on the implementation of CCTVs in all parts of the police station. While there was much scepticism about the practicality of this move, the Delhi high court’s order in Faizan’s case reiterates its utility. It is thus no longer adequate to claim that the CCTVs weren’t working or suddenly malfunctioned.
The Supreme Court judgement requires the SHO to inform the non-functioning of the CCTVs to the District Level Oversight Committee (DLOC) and report all the arrests and interrogations to the DLOC during this period. At the very least, such a step puts enormous pressure on the police to explain the absence of CCTVs on a particular night.
The Delhi high court’s judgement goes beyond these pre-existing safeguards in recognising the crucial role of the police in protecting the physical safety of the accused. For instance, the court notes the difference in the injuries mentioned in the first MLC and the post mortem report. The “Post-mortem report.. recorded the cause of death as :’… cerebral injury associated with multiple blunt injuries over the body’; and that ‘all injuries are ante-mortem, 2-3 days in duration and caused by blunt force impact.’” It is likely that Faizan was beaten up once again in custody. Even if the video of the police beating Faizan didn’t exist and the police version of injuries due to “rioting and stone pelting” was true, the court does acknowledge that the police were still responsible for ensuring proper medical treatment. The order notes “Even assuming that there was no custodial violence, the very fact that the police kept Faizan at the police station when he was evidently in need of critical medical care itself smacks of criminal neglect of duty, if not something worse.”
Finally, the police wanted to hand over Faizan to his family before he died. Clearly, beating him and others, humiliating them, forcing them to sing and prove their loyalty – all on video in public – and later possibly beating Faizan up in the police station did not scare the police as much as the possibility of a dead body. As a police officer I interviewed once told me, “[The suspect’s] safety is in your custody. You don’t want him to die, so you take care of him…You are scared of death.”
As Faizan’s mother, the petitioner in the case, put it, “only when Faizan’s medical condition became precarious, did the police release him to his family, perhaps to avoid Faizan dying inside the police station.” She contends that just because Faizan died outside the police station premises does not absolve the police officers of his custodial killing. The court’s insistence of the role of the police in ensuring safety and transparency about what occurred that night is a crucial elaboration of what protection of right to life and safety in custody truly might mean. Protection against custodial violence refers both to the direct use of force against an accused as well as withholding critical medical attention.
One only wishes that the court order had also briefly mentioned the limits of the forensic tests that explicitly appear in the case: the use of polygraphs and newer kinds of “truth machines” such as layered voice analysis. These tests have been mentioned by the police as evidence of their proactive role in the investigation. However, these should not be considered advanced scientific tests, given their lack of reliability and validity, while displacing more effective ways of conducting investigations.
However, since the main Supreme Court judgement Selvi (2010) only mentioned the importance of consent of the accused and the inadmissibility of results of these truth machines as evidence, it is perhaps not surprising that even the otherwise powerful Delhi high court order does not address these flawed forensic tests. Only time will tell whether justice for Faizan’s custodial death will be realised in this case. Alongside, it raises the significance of crucial judicial oversight of the protections accorded to the accused the moment they step into police custody to ensure justice before the violence is even committed.
Jinee Lokaneeta is Professor of Political Science and International Relations at Drew University, New Jersey. She is the author of: The Truth Machines: Policing, Violence, and Scientific Interrogations in India (University of Michigan Press, Orient Blackswan, 2020).
