Saturday, January 9, 2010

Police as Criminals

Police as criminals
Rajeev Dhavan

Police who turn criminal are not ordinary criminals. As soon as they move to the ‘dark side’ they build social and political impunities for themselves. Fellow policemen support them. Politicians of various complexions protect them. Rank and file policeman act as their thugs. Other thugs are at their beck and call. Real cases against them are ignored. Fake cases are registered by them to ensnare whom they want. Beyond the bent policeman lies the police ‘don’ who kills with impunity, appropriates at will and inflicts vengeance with ferocity.

The real problem with the Rathore case is that India does not have effective processes to deal with powerful policeman. Their tribe is increasing. Anti-terrorist campaigns are making terrorists in their own cause. The list is increasing: ADGP Sumedh Saini made members of Kumar family, disappear. The other brother, Ashish (a client and friend) has knocked on the highest and lowest courts for justice without success. After 9 years IG R.K. Sharma was sentenced for killing journalist Shivani Bhatnagar (another friend). In Rajasthan, DIG Tandon is accused of raping a tribal. Pradeep Sharma responsible for 107 encounter deaths is now held for fake encounter. Without activist-media campaigns (as in the Jessica Lal, Nitish Katara and Priyadarshini Mattoo cases) these are bound to fail. Such campaigns are not trial by media and should not be treated as contempt of court. A popular cry for justice is not populist justice.

Let us turn to the Rathore case. Ruchika loved tennis. Rathore was a big shot in the Lawn Tennis Association. Around August 1990 he ensnared, took a fancy towards Ruchika and molested her. Reported to Home Secretary Duggal, Rathore decided to wreak vengeance. On 17 August 1990 Rathore’s hoodlums made slogans against poor Ruchika and smashed the panes of her house. When the government decided to register an FIR in 1992 against Rathore, the next victim was Ashu (Ruchika’s brother). Arrested on false cases of car theft, in October 1993 he was detained, beaten made to sign confessional statements and taken to Ruchika to remind her of what would befall her family. Ruchika was expelled from school apparently at his instance. Unable to stand the humiliation, embarrassment and pain on 28 December 1993 Ruchika committed suicide. The post mortem was deliberately botched up. No real investigation took place. Within a month, in January 1994, charges against Rathore were dropped! After three recommendations for action between 1990 and 1992, no departmental action was taken against him. It took till 21 August 1999for Ruchika’s friend Aradhana to secure an order for a CBI inquiry from the Punjab and Haryana (P&H) High Court. CBI officer R.M. Singh is now willing to reveal how Rathore tried to pressurize the CBI. Two years later the CBI recommended Rathore’s removal. This was not done! He retired as DGP in 2002! The CBI charge sheeted him in December 1999 for outraging and insulting a women’s modesty. The charge of ‘abetment of suicide’ was quashed by the P&H High Court and Supreme Court! Effectively, he was found guilty of flirtation! In December 2009 – fined Rs.1000 and sentenced to six months rigorous imprisonment and allowed bail!
The law tries the crime not the criminal. Thus, Rathore is portrayed as having committed a number of individual smaller crimes with the real and full story missing. It is like looking at still photographs instead of a cinematographic depiction of evil. Between 1999-2000, Rathore was successfully charged only with flirtation. Was that all that Rathore did? Under public pressure, in 2009-2010 he was charged with filing false cases against Ruchika’s brother Ashu, fabricating a false post mortem for Ruchika and abetment of her suicide. Already rejected up to the Supreme Court in 2002, the abetment charge will be difficult to reopen. What is missing from the legal response is his alleged systematic harassment of Ruchika and her family, sending goondas to her home, securing her expulsion from school, targeting Ashu, interfering with police and CBI investigation, victimization – for almost 20 years with a smile on his face. On 8th January 2010 HC refused to grant bail. The smile has gone to gleam in jail unless the Supreme Court decides otherwise.

How does one get justice against pathologically vindictive police officers like Rathore and Saini who commit not one but several crimes? The answer lies in examining the process and not just the event. Indian public interest law has an answer. In December 2000, the P&H High Court itself took suo motu notice, of Rathore’s vengeance against Ruchika’s brother Ashu. On 5 July 2002 they asked District Judge, Patiala to examine the Ashu victimization. This would have x-rayed Rathore’s misdeeds. But on 6 May 2005, the Supreme Court through Justice Sabharwal made an egregious mistake and stopped the High Court proceeding. Justice Sabharwal, one of the finest judges the Supreme Court (whatever anyone else may think) simply lost the plot in this case. It was wrong to recommend a bit-by-bit justice against policeman who used the police and hoodlums to wreak a continuous stream of harassment and crimes against a family who dared oppose them. Examining the process would reveal the full story. This valuable opportunity into investigating a mass crime with its full discontents was lost.

In my view, even now no independent investigation can take place unless it is effectively monitored by the High Court or Supreme Court. Rathore has the protection of IAS and IPS officers; and of politicians and Chief Ministers. In the Hawala case (1998), the Supreme Court ensured the process of Hawala transactions was properly investigated. In the Noida case after several years of monitoring, the case against Neera Yadav proceeded to trial. Noida’s favoured allotments for 10 years were screened. This is what was begun by the High Court in 2002 for Rathore, but stopped after 3 years by the Supreme Court itself. One can only urge the Supreme Court to follow the Hawala–Noida example to supervise investigation into Rathore. Years ago, the Supreme Court would not have hesitated to do this. Today the judicial colossus, like Atlas, shrugs its shoulders.

The fulcrum around which this problem rotates is to work out a response to dealing with the police as criminals. India needs a good honest police. We know how brutal the police can be. Chhattisgarh police have gone berserk in punishing peaceful activists. But where the police turn gangster a new method of monitored investigation by courts is necessary and proper. It is fit for the Chief Justice of India to set up a process for Rathore’s unrepentant violation of due process and human rights.

Law Minister Moily’s faith in fast track courts as a complete answer in this case is exasperating. Fast track courts can only process what is fed to them. For the future specifically, in the long term substantive offences on police misbehaviour and independent investigation processes are necessary. In the Rathore case itself, his entire term of office from 1990 needs to be x-rayed for systematic abuses of power. This is equally true for his colleague, Saini. This will reveal far more than is known today. Rathore’s smile has gone. That is not enough. He needs to be exposed and punished according to law under the vigilant eye of the High Court or Supreme Court

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