India: Detention of Mr. Khurram Parvez exposes country's criminal justice process

Asia Human Rights
October 20, 2016
Reproduced with Permission
Asian Human Rights Commission

Mr. Khurram Parvez is a human rights defender from the Indian state of Jammu and Kashmir. On 14 September 2016 when Khurram turned up at the New Delhi international airport to travel to Geneva, the authorities prevented him from boarding the plane and exiting the country. The grounds were that the Intelligence Bureau of India ordered that Khurram be prevented from leaving the country. Later, on September 16, local police arrested Khurram in Srinagar. Since then, despite a release order from the court, Khurram remains in custody.

Preventing Khurram from leaving the country, his subsequent arrest, and the handling of his case that has followed, highlights how easily Executive authority is misused in India. It also shows how the Judiciary is complicit in this misuse. A closer look at this case and the institutional games that are at play is revelatory. It shows how utterly meaningless are the statement of the UN and international community that seek to pressure the Indian state to follow procedure and release Khurram from this prolonged detention.

The Intelligence Bureau is an executive arm of the Indian State. It is not constituted under a statute, which means its actions need not have even a thin veneer of legality. In other words, it is an Executive agency that spends tax money, and its actions need not follow any established procedures under law.

When this position was questioned in Court, the Indian Judiciary dismissed the petition. The Court accepted the argument of the government that such 'blanket impunity' is necessary for national security. Claims by the government that this agency is under Parliament scrutiny are false. There is no independent oversight over the Intelligence Bureau (IB).

The IB operates under the directions from the Ministry of Home Affairs. The absence of a legal framework means that an officer working for this agency could flatly deny all orders, and no actions can be taken against the officer. The IB can detain, disappear, execute persons and violate any of the constitutional guarantees, at will, without there being any tangible and practical means with which the agency's actions can be made accountable.

As a result, the operational history of this agency is riddled with just such excesses. Many who have worked closely with the IB have spoken against the Bureau's impunity, including Mr. Brajesh Mishra, former Principal Secretary to the Prime Minister and National Security Adviser. There are judges in India scared of the agency. The argument that the Indian Judiciary is independent is manifestly false.

Further to the absolute impunity of the Intelligence Bureau, Khurram's case highlights the casualness with which other Executive organs of the Indian State operate. When challenged in court, the local police justified Khurram's arrest by producing an order of the local Executive Magistrate, an executive officer working for the state administration, who ordered Khurram's detention and his judicial custody. The Order, without providing Khurram the opportunity to show cause, directed his arrest. The officer, when questioned by the court, admitted that he did not offer Khurram an opportunity to speak to the officer.

When all of this was brought to the attention of the court during a bail hearing, the judge merely reprimanded the Executive Magistrate for not following the procedure and ordered Khurram's release from custody. However, instead of releasing Khurram, the police merely changed his place of detention and later informed the court that his custody is required in relation to another crime, about which the police have not so far informed the court. The judge, instead of taking the officers to task for mockery of procedure and ensuring compliance of his order, extended Khurram's remand and allowed time for the police to return to the court with details of the new charges. Due to this mockery by the police and the complicity of the Judiciary, 33 days after arrest, Khurram still remains in custody.

The global human rights community, including the UN, has responded to Khurram's arrest by urging the Indian authorities to follow law and procedure, demanding Khurram's immediate release. But what these entities fail to acknowledge is that the manner in which Khurram is arrested and the manner in which the State and the court are handling his case is the procedure that is followed in India regarding any arrest. Thousands have been arrested and detained like this across India. Khurram happens to be a human rights defender respected internationally for his work against impunity and militarisation in Jammu and Kashmir, a fact that makes Khurram's release further difficult.

The role of the Judiciary in criminal proceedings is to scrutinise the authority of State agencies and restrict State power that curtails the freedom of individuals. The foundational legal principle of bail is vested in the authority of a judge to be the ultimate arbiter of executive authority, particularly concerning freedoms, and to limit the state's power to arrest a free person. What is witnessed in Khurram's case and in thousands of other cases across India is how the Indian Judiciary fails to enforce principles of the rule of law, undermines its own mandate, and is complicit in State excesses.

In jurisdictions, where the rule of law is better protected and the judiciary is free and mature, the state exercises exceptional caution before detaining a person. A person is not arrested before the state has adequate evidence to substantiate in court that the person in detention has a criminal involvement in the crime under investigation. Even then custody is allowed only if it is argued and proven that the person upon release would tamper with the evidence, or if it is proven that the person is a threat to fair and due process of law.

In India however, arrest precedes investigation, and judges consider the State's power to arrest without having enough proof of a crime against the detainee as absolute. In bail hearings, where a person is arrested and accused of a crime that he has not committed, the detainee therefore is unfairly burdened with the job of prima facie establishing that he is not connected with a crime that is alleged against him.

Khurram is a victim of multiple factors. First, the Indian government is extremely sensitive to what Indians speak in international forums about human rights abuses committed by State agencies in the country. The odds against Khurram on this ground are, unfortunately, heavily stacked against his favour; the government believes if Khurram addresses meetings at the UN, he would invariably speak about human rights abuses committed against civilians in Jammu and Kashmir. And, the idea is to protect India's human rights image.

However, those who advise the government on actions like preventing a human rights activist from attending a meeting in Geneva do not know that India's human rights standard is not perceived 'high' anywhere. India fares better only in comparison to its neighbours in the region, where most other states have worse human rights records. India's 'good human rights records' is a mirage that the government portrays as true in international forums.

The second and the most important factor that weighs in against persons like Khurram is the country's unfair criminal justice process, of which policing plays an important role. India does not have a policing policy. The perception that Indian police is built along the same principles that underpin the London Metropolitan Police is a lie. The British did not introduce such a system to any of its colonies. What was introduced is the Irish Constabulary Model, setup to circumscribe all freedoms and crush protests. Policing priorities in India are built around this model that India inherited. Knowing this difference, and, more importantly, the opposing principles behind the two policing models is key to understanding India's criminal justice process.

Policing in India is built on the foundations of suppression and control by fear. This model is incompatible with the principles of the rule of law. The civil society in India - including the media, the Judiciary, and the police - are unware about this, because no one has bothered to study the Indian police at that level. Therefore, arbitrary arrest, abuse of authority, torture, and every other violation of the rule of law guarantees by the Indian police is not an aberration that can be fixed; it is the very design of this institution. Atrocious acts committed by the Indian police thus cannot be corrected unless the policing principle upon which the institution is built is redesigned.

The terrifying nature of the criminal justice process is exposed daily in India. For instance, a right to information petition filed in the Indian state of Uttar Pradesh exposed that every 26 hours a person dies in custody in that state. That is about 6 custodial deaths each week. This implies around 300 persons die in custody every year in the state. Indeed, not in all instances would there be foul play. However, note that 2,062 prisoners died in a period of 74 months from January 2010 to February 2016, and out of these more than 50% were under-trials. A death in custody is an event that the State has to account for, regardless.

This information on under-trial custodial deaths made news for two days this week in select print and electronic media. Now the matter is considered having lost its news value. Shockingly, for the Indian and international civil society this was not an issue on which to jump into action mode. The Indian Judiciary, which champions suo moto action, did not bother. No questions were raised in Parliament. It appeared to be no body's cause other than the RTI petitioner, despite the admission by the State that more than 1,000 persons have died in custody whilst waiting for their criminal proceedings to be concluded.

Khurram will have to endure considerable time in prison to prove he is innocent of the serious accusations, if any, levelled against him. The average time that Indian courts take to complete a trial is a decade or more. Until this period is over, Khurram could technically be prevented from even leaving the jurisdiction of the police station where the crime is registered. In Khurram's case, he is fortunate to have a team of lawyers appearing on his behalf. Thousands of other detainees in India are left to rot, and many die in custody. In fact, those who are unable to find means to secure bail occupy more than 60% of India's detention facilities. Unsurprisingly, all of them are poor.

Khurram's case highlights how utterly unjust is India's criminal justice process. Khurram happens to represent the plight of a section of India's most unfortunate people, who have their life crushed daily under the might of State Executive power and impunity, with the Judiciary nowhere to be seen as a check. Judicial complicity has resulted in this predicament.

Without working against this aspect of institional guiding principles, rot, and complicity in injustice, urging the Indian State to "follow law and procedure" and recalling India's international and domestic commitment to protection of human rights, can only be viewed as expressions of pious wishes; they are as hollow as India's commitment to human rights, and another ritual act in a tragicomedy.

Preventing such incidents from recurring, i.e. creating institutional conditions for upholding justice, something that all Indians would benefit from it, requires commitment to work towards redesigning the current cruel circus also known as India's criminal justice process.