The Many Criminal Injustices of India's Police and Investigating Agencies

Investigators are never held accountable for their criminal misdeeds and go on plying their trade with no fear of punishment.

For the first time in its history, the Central Bureau of Investigation (CBI), India’s premier investigation agency, is probing two of its former directors, Ranjit Sinha and A.P. Singh. India’s police leaders – the members of the Indian Police Service (IPS) who head, superintend and supervise the country’s criminal investigation architecture at the federal and state levels –  need to ask themselves whether the cases of two former CBI directors constitute the tip of the proverbial iceberg or are exceptions in an otherwise professionally-run, stain-free establishment.

On January 23, 2017, noting that a “prima facie case has definitely been made out for investigation into the abuse of authority” by Sinha, the Supreme Court ordered a CBI probe against him in connection with the coal block allocation scam case. Sinha retired as CBI director in November 2014, less than a fortnight after he was, in a first, formally removed from the 2G probe by the apex court over his alleged meetings with some of the accused.

Then on February 20, 2017, the agency named Singh, who retired in December 2012, as an accused along with controversial meat exporter Moin Akhtar Qureshi in a case registered to probe alleged corruption. Qureshi, who is also under investigation by the income tax (IT) department and the Enforcement Directorate, is accused of operating as a middleman for several public servants, including Singh.

As CBI director, Singh was instrumental in the arrest of former telecom minister A. Raja, Suresh Kalmadi, and several top corporate executives and elite public servants in the 2G spectrum scam and the Commonwealth Games scam. However, upon his retirement, an income tax evasion probe against Qureshi revealed his links with Singh. Way back in October 2014, the government had apprised the Supreme Court of communications between Singh and Qureshi. “Singh was in regular touch with Qureshi and there were BBM [Blackberry messenger] exchanges between them on a daily basis and that too in code language. Many of the messages clearly revealed plans to save the accused in many cases,” attorney general Mukul Rohtagi had said.

Past cases

If this is what has been happening in the CBI, a central agency answerable to the Union government at the national capital, then what is the state of affairs in the investigating agencies operating in the state and district capitals where officers are definitely more vulnerable to the bureaucrat-politician-corporate-money nexus and organised crime syndicates? Let’s look at some examples.

In the 1987 Hashimpura massacre case involving personnel of the Provincial Armed Constabulary (PAC) who picked up Muslim men from the Hashimpura locality in Uttar Pradesh in the aftermath of communal disturbances and shot 42 of them dead, the state Criminal Investigation Department took over the probe within two days of the killing but took nine years to file the chargesheet. One of the two original FIRs was destroyed. The investigating officers did not take the weapons of the policemen into custody. The weapons used to kill the victims were returned to the PAC and continued to be used. The Delhi court observed: “The rifles have been produced in unsealed conditions during trial. Further so many fires have been allegedly made but not even a single empty cartridge has been recovered or proved on record.” “The accused person cannot be convicted,” the court said, “on the basis of scanty, unreliable and faulty investigation which has gaps and holes.” The trial court acquitted the 16 policemen accused in the case.

On December 22 last year, a Delhi court acquitted Irshad Ali and Mourif Qamar after they had spent 11 years in jail on fabricated terror charges. In 2008, the CBI had concluded that Ali and Qamar were in fact informers for the Special Cell and Intelligence Bureau and had been framed by its officials. Litigation led by the Delhi police saw the CBI report contested in the Supreme Court. In the end, the CBI report, which recommended the prosecution of officials allegedly responsible for framing Ali and Qamar, was filed in a Delhi court along with the Delhi police charges. The judge kept aside the CBI’s report, but acquitted both men.

In the 2005 Delhi blasts case, while acquitting Muhammad Rafiq Shah and Mohammad Hussain Fazili, the Delhi court said in its judgment that several leads in the investigation were not “properly verified” before reaching a conclusion about the involvement of the accused. It said that the prosecution had “miserably” failed to prove that Shah was involved in the crimes. The judgment suggested that the police had suppressed evidence and made false statements. Shah and Fazili spent 11 years in jail for a terror attack they had no link with because the investigating officers of the Delhi police laid charges against them on the basis of evidence that the court suggested was either manufactured or non-existent.

This judgment is among many that raise doubts about the integrity of police investigations, whether in terror cases or other crimes. From Malegaon to the 2006 Mumbai train bombings, the evidence shows that the rule of law has been sabotaged by shabby investigations. Shah and Fazili joined Mohammad Nisarudin (Gulbarga, Karnataka), Liaquat Ali Shah (Lolab, Kashmir), Irshad Ali and Mourif Qamar (Delhi), and are part of on an ever-growing list of Muslim youth branded terrorists on questionable evidence who are forced to grow old before their time in a lonely struggle for justice. And the Delhi police are not the only culprit.

A flawed system

India’s criminal investigation architecture, including the police in all states and the CBI, is headed and supervised by members of the IPS. All leadership postings for the Crime Branch, Anti-Terror Squad, Special Cell and the like are made by the political executive of the day. Political considerations have a strong bearing over postings and transfers.

IPS officers, as career bureaucrats, work under three masters – the political executive, departmental heads and the judiciary. Every time there is a change of government, most of the investigating officers tend to get co-opted or transferred. The frequent about-turns made by investigating agencies in numerous high-profile cases show how fiction writing has become a part of criminal investigations. The investigating officers tend to behave professionally only when the cases they are handling are directly monitored by some courts. The court-monitored cases leave much less scope for them to indulge in cherry picking of evidence and charges.

In the case of the CBI, the accountability structure is different. For example, during the period when Sinha was the CBI chief, several IPS officers against whom internal enquiries had established acts of misconduct were repatriated to their parent state cadres without being made to face criminal proceedings. This is an example of how IPS officers working in the CBI on deputation are given preferential treatment over personnel from the CBI cadre. The parliamentary standing committee that looked into the working of the CBI before which Sinha, the then CBI chief, appeared, said, “The committee strongly feels that a delinquent official should be meted out disciplinary action, irrespective of whether he is a deputationist or cadre personnel. The argument that punitive action is taken against cadre personnel, while a deputationist is merely repatriated to his parent department, in itself, is indicative that unequal working conditions prevail in the organisation for the departmental personnel vis-a-vis the deputationists.”

In New Delhi and in state capitals, something as objective and scientific as criminal investigations can be fine-tuned by investigators to meet the political and economic requirements of their seniors in the IPS and, by extension, their political masters. The elite among the IPS often behave as lackeys for political masters of their choice. With the right political and bureaucratic connections, the accused can choose the charges of their liking. In the process, the real culprits go free and the victims live with the stigma of imprisonment. The investigators are never held accountable for their criminal misdeeds. There is no system in place to punish the erring police officers and their supervisory bosses for their acts of commission and omission, incompetence, wilful negligence, suppression and fabrication of evidence. How Delhi police officials fabricated a terror case (according to the National Investigating Agency) against Liaquat Ali Shah of Lolab and Irshad Ali and Mourif Qamar of Delhi (according to the CBI) went unpunished is a case in point.

No accountability

While there are many honest law enforcement officials in India, there are also powerful, politically-connected careerist police officers who indulge in wilful misconduct while investigating criminal cases. These erring officers and their supervisors in the IPS adversely impact the credibility of the criminal justice system. They can literally destroy the lives of innocent persons who are wrongfully accused and even convicted of crimes they had nothing to do with. From investigating officers who do not testify truthfully, to police officers who manufacture, destroy and suppress evidence, and even law enforcement officials who have improperly influenced witness identifications and suspect confessions, there have been many instances where police misconduct has resulted in wrongful convictions.

When the Terrorist and Disruptive (Prevention) Act (TADA) was in operation between 1985 and 1995, maximum arrests in the country were effected in Gujarat, a state where there was not even a single case of terrorism during that period. This is an indication of how arbitrary the police can be in matters related to arrests and application of sections of law.

The illegal practice of the police picking up innocent people and keeping them in jail for years before the courts finally acquit them, has serious consequences. More than 66% of India’s prisoners are undertrials, which is over twice the global average of 32%. When vulnerable scapegoats are framed in terrorist cases, it not only helps the real terrorists get away with their crimes but leaves them free to strike again. It stokes resentment in affected families and communities. The victims and their families and communities live with the stigma of imprisonment and its socio-economic impact on their livelihoods. Their families, generation after generation, continue to wait for adequate compensation, rehabilitation, truth and closure. There is no system in India to compensate individuals found to have been wrongful imprisoned.

Professional criminals and their syndicates, exonerated and unpunished, boast about their ability to hoodwink the criminal justice system. For them, it is their victory over the rule of law. This misplaced swagger against the rule of law is a serious threat to the idea of India as a democratic republic.

What is the contribution of the erring police officers and their investigating agencies to the perversion of India’s criminal justice system? Between 1953 and 2013, the quality of investigation and prosecution has gone down. Convictions in murder cases fell from 51% to 36.5%. Convictions in kidnapping cases fell from 48% to 21.3%. Robbery convictions fell during this period from 47% to 29%. In 2013, only 26.5% of alleged rapists were brought to book.

What is the relative contribution of the police led by the IPS to this mess? This is a question that should trouble the members of the elite service. Passing the buck to the judiciary and the political executive won’t help their reputation and credibility. Thanks to social media, Sinha and Singh are here to stay in public memory for a long time. A painfully long time.

Basant Rath is in the Indian Police Service and works in Jammu and Kashmir. The views expressed are personal.