The recent judgement by the Rajasthan high court acquitting four men who had earlier been sentenced to death by a trial court for the 2008 Jaipur bomb blasts once again raises a very basic question about policing in India. This is not the first occasion when an Indian court, especially one of the constitutional courts, has completely disbelieved the prosecution version put forward by the investigative agencies. This will not be the last such occasion either.
What is missing from the conversation about such judgements is the issue of accountability of the investigators who were responsible for what has now been adjudicated to be an injustice. The issue is not about death penalty cases or about high-profile terrorism cases. It is also not about minorities. The basic issue is accountability of the individual.
The laws in India do criminalise acts of torture and acts which force wrongful implication of an accused. Apart from the general law under the Indian Penal Code, special laws like the Prevention of Money Laundering Act, which governs the procedure and conduct of investigations by the Enforcement Directorate, do penalise acts which amount to an abuse of their authority. Section 62 of the PMLA, for instance, penalises an act of vexatious search or seizure by an officer of the ED. A similar provision exists under the Narcotic Drugs and Psychotropic Substances Act as well. What is disturbing, however, is the lack of prosecutions under these sections.
This is not only a failure of the institutions which exercise power under such laws or under the general criminal law of the country. The failure is larger. As a society, including civil society, we have not developed a respect for systems and for the consequences of violating the integrity of such systems. Even in cases where civil society gets together to question systemic and institutional failures, there is rarely an attempt to actually bring home accountability to the persons responsible for such institutional failures.
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The number of cases involving encounters, extra judicial killings, custodial torture or just garden variety corruption when compared with the number of actual prosecutions reveals this shortcoming rather starkly. One need not advert to figures regarding such crimes and their reportage. Lack of accountability and a karmic sense of surrender to the vagaries of those who would exercise state power against citizens ensures that the focus is never on cleansing the system. The focus always seems to be on finding some way to bypass the system.
One example of this is the proliferation, which has now reached disturbing levels, of PILs to the top courts for enforcement of rights for which one should ideally approach the local police station, the local magistrate or even the local municipality for that matter. Seeking a shortcut through a high judicial intervention rather than ensuring accountability at the most basic levels of the institution has led to a situation where expectations from state actors including government officers are minimal. This results in a society which has become comfortable with the idea, and reality, of pervasive injustice.
Whenever there is a talk of reforms the conversation seems to be about the top of the bureaucratic structure. We are much more concerned with the extensions of the terms of ED and CBI directors and state DGPs than with the performance of sub-inspectors and Station House Officers. For the vast majority of the citizens of India, it is these levels of the administration that are the real government, not the administrative heads in the state capitals or in New Delhi. Apart from periodic pay commission reforms there is absolutely no conversation about the service conditions, training and expectations from state institutions. If state DGPs have a fixed non-extendable term, it has very little concern with policing as it happens on the ground.
Accountability is not only about punishing those who have committed illegalities, it is also about ensuring that those who do follow the rules and an ethical code of conduct are rewarded. It is from this conversation between reprobation that healthier institutions will emerge.
The Rajasthan high court judgment has sought to ensure accountability by ordering a probe into what it has found to be a malicious investigation. It remains to be seen whether it will be upheld by the Supreme Court. There is no incentive or desire within the system to act on its own and unless there is a clear political or judicial will to impose accountability, it will not happen.
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The fate of the Gujarat encounter cases, specifically the Sohrabuddin and Ishrat Jahan encounters where the officers who sought to impose accountability on their peers ended up getting hounded by the system, does not inspire any other officer to act for what is right. Until and unless there is a single minded effort by the judiciary and civil society to ensure accountability at the individual level, such judgments will ultimately prove to be meaningless.
We have to move from the polemical to the practical. Otherwise, all the best intentions of all the best men and women will remain meaningless.
Sarim Naved is a Delhi-based lawyer.
