India's answer to custodial killings: Cash and not justice

“From his affidavit it appears that he has already made up his mind and has given a clean chit to the police officers,” the Bombay High Court found in October 2009 in response to an affidavit from the assistant commissioner of police of Maharashtra’s Criminal Investigation Department. Investigating the death of 22-year-old Altaf Shaikh in police custody, the assistant commissioner had absolved his colleagues and asked the court to dismiss the petition filed by Shaikh’s mother seeking further investigations into her son’s death. The court ultimately ruled that state authorities had colluded to find reports “manufactured to help the police officers.”

Shaikh died within hours of his arrest on September 11, 2009, while detained at the Ghatkopar police station in Mumbai. The police said that he died from consuming “medicines of intoxication,” implying an overdose of recreational drugs, but Shaikh’s mother, Mehrunisa, blames police torture.

An examination of the court orders, legal and medical records into Shaikh’s death, as part of an investigation by Human Rights Watch into 17 deaths in police custody between 2009 and 2015, throws a spotlight on the central reasons for continued lack of accountability – that police investigators choose to protect their colleagues through weak or biased investigations and resist filing First Information Reports against police.

Visible injuries

According to Mehrunisa Shaikh, four policemen from the Ghatkopar area came to her house before dawn on September 11 in civilian clothes, wearing no identification tags, and asked for her son Altaf. She said she recognised them as policemen because they had come earlier to arrest him.

According to Mehrunisa, the police officials dragged her son outside the house and beat him, then dragged him to a nearby autorickshaw and left. They told Mehrunisa to come to the police station at 11 am. However, at 10:30 am, two police officials came to her house while she was at work and asked her daughter to send her to Rajawadi hospital, saying Shaikh had been injured and was admitted there.

Mehrunisa said when she reached the hospital, she was told her son was dead. She saw his body: he was only wearing a shirt and underwear, and several injuries were visible. She said the police put pressure on her and her family members to quickly take and bury the body. The police claimed Shaikh was drunk when they arrested him and they let him sleep it off at the police station. When he didn’t wake up later that morning, they took him to the hospital, where he was declared dead on arrival.

The autopsy showed several external injuries.

Biased investigation

The Ghatkopar police took several steps to cover-up wrongdoing in Shaikh’s case. Under the guidelines of the National Human Rights Commission, which plays an important oversight role in investigations of custodial deaths, the police are expected to register a FIR and the death should be investigated by a police station or agency other than the one implicated. But this is flouted more times than not. In 2015, police registered cases against fellow police officers in only 33 of the 97 custodial deaths according to government data.

Instead of filing an FIR in Shaikh’s case, senior police officials made comments to the media claiming that Shaikh was a drug addict and possibly died of a drug overdose. Afraid that police’s comments indicated that they might not investigate her son’s death, Mehrunisa Shaikh filed a petition in the Bombay High Court seeking an independent investigation by the Central Bureau of Investigation.

Indian law requires a judicial magistrate to conduct an inquiry into every custodial death but this was not followed in Shaikh’s case either. The police told the court that an inquiry was being conducted by an executive magistrate. The court found that it was the same authority who conducted the inquest and that had said there were no external injuries on Shaikh’s body, later contradicted by autopsy reports which found eight external injuries and scalp contusions. The Bombay High Court, in its ruling on the case, said the inquest was “false” and ordered a fresh investigation by the CBI saying “we can neither trust the Magistrate nor can we trust the [police] for investigation”.

NHRC’s failure to recommend prosecution

Every case of custodial death is supposed to be reported to the National Human Rights Commission within 24 hours and the police are also required to report the findings of the magistrate’s inquiry to the NHRC along with the postmortem report. This is an important protection, but court decisions and media accounts show that these steps are frequently ignored. According to government data, a judicial inquiry was conducted in only 31 of the 97 custodial deaths reported in 2015. In 26 cases, there was no autopsy.

A major weakness of the NHRC has been its unwillingness to recommend prosecution of police officers, restricting itself to ordering interim relief or compensation for victims. Also, as an NHRC official told Human Rights Watch, its investigation department rarely conducts independent investigations, relying instead on reviews of documents sent by the police or administrative authorities.

Between April 2012 and June 2015, of the 432 cases of deaths in police custody reported to the NHRC, the commission recommended monetary relief totaling about Rs 2.3 crore, but recommended disciplinary action in only three cases and prosecution in none.

In reply to a letter filed under India’s Right to Information Act as part of Human Rights Watch’s investigation, the NHRC said that it had closed Shaikh’s case because it was informed by the state government that his mother had sought compensation in an ongoing case in the Bombay High Court. The NHRC provided no information on whether it had examined the allegations of police torture.

Challenges in holding police culpable

The CBI submitted its report into Shaikh’s death in September 2010, finding that Shaikh was illegally detained and beaten which resulted in several injuries. The CBI also found that the police officials disregarded laws of arrest; they did not prepare an arrest memo or make any entry in the station diary regarding Shaikh’s detention.

However, the CBI only filed charges of criminal conspiracy, voluntarily causing hurt, and wrongful confinement against three policemen, ruling out murder saying that doctors at the New Delhi-based All India Institute of Medical Sciences had concluded that cause of death “could be respiratory failure due to combined additive effect of toxicity of Alprazolam and ethyl alcohol and lung pneumonia.”

This conclusion overlooked opinions from several doctors from Maharashtra, including experts in forensic science who testified to the CBI that internal bleeding caused by the head injuries could have caused Shaikh’s death. Noting these contrary opinions from doctors, an additional chief metropolitan magistrate accepted the protest petition by Mehrunisa Shaikh in September 2014, requesting that charges of murder and voluntarily causing hurt to extort a confession be added against the accused police officials. The magistrate sent the case to the Human Rights Court in Mumbai. The trial has not yet begun.

As in Shaikh’s case, it often takes the intervention of the courts to order proper investigations into alleged deaths in police custody. As the Supreme Court noted in 2004 in Munshi Singh Gautam v. State of Madhya Pradesh, “Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.”

This is the second in a three-part series looking at torture and deaths in police custody and the urgent need for police reform in India. Read the first part here.

Jayshree Bajoria is the author of the Human Rights Watch report, “Bound by Brotherhood”: India’s Failure to End Killings in Police Custody, published on December 19, 2016.