By Avinash Pandey
The Supreme Court’s scrapping of Section 66 A of the Information Technology Act for being “unconstitutional in entirety” is indeed a great moment in the life of the democracy. The Act did, in fact, invade citizenry’s right of free speech “arbitrarily, excessively and disproportionately”. However, is this really a moment to celebrate in the life of a republic whose criminal justice system is rotten to the core? Will it really lead to any exercise of freedoms guaranteed by the Constitution, in a land where ordinary citizens fear the police more than the criminals?
Writing a discordant note in times of celebration for something “hard won” by the civil society is not an easy task. Putting things in perspective in the middle of euphoric celebrations can come across as a dirty task. But not all seemingly dirty tasks are dirty indeed, especially at a time when the country has been pushed into a Swachh Bharat (Clean India) Mission by its prime minister.
There is a joke doing on the rounds on the same Internet, which have been freed again by the recent ruling of the Court. The joke goes something like this-
Police gets information on a neighbourhood cyber cafe indulging in storing and distributing pornographic material and promptly raids it. On returning to the police station, they get to know that it is the CPUs that store information and not the monitors they have confiscated. They know that confiscating the CPUs would not be of any use as the owners must have deleted the criminalising evidence immediately after the raid. They return nonetheless, recover drugs and book the cafe owners under the provisions of the Narcotics Act.
The joke, unfortunately, is no joke; the system is one. And it is a cruel one at that. It can recover drugs from places where they never existed. This system actually stores everything, from drugs to assault rifles in police stations, to plant and implicate whomsoever it wants to, “recovering” the planted material as incriminating evidence.
Take, for example, the case of Liaquat Shah, an alleged terrorist on a suicide mission, arrested by the Delhi Police from Haji Arafat Guest House near Jama Masjid with assault rifles and explosives. Later investigations by the National Investigation Agency, the nation’s central counter terrorism law enforcement agency, empowered to deal with terror related cases across India without the permission of states, absolved Liaquat Shah of all terror charges. The Agency is now investigating officers of the Delhi Police and their informer for attempting to fabricate Shah in a false case. Shah’s case is not exceptional or extreme. Such fabrications are amongst the routine methods employed by police across Indian states.
These policing methods are not reserved for terror suspects or those with criminal records/tendencies. Law enforcers use them against all poor, marginalized, and vulnerable sections of society, with “democratic” abandon. Consider the dramatic withdrawal, in 2009, on the advice of Union Home Ministry, of over 1-lakh cases that had been slapped on adivasis by the Jharkhand government. The cases included “crimes” like stealing fruits from forest, cutting wood, grazing cattle, hunting, and entering reserved forests without permission, which have added to the harassment of adivasis for years. The withdrawal, to wean adivasis away from Left Wing Extremism, did come as a major relief to the victims of the system. It is just that neither did the law enforcers bother to explain why the cases were slapped on them in the very first place, nor did the Judiciary divulge why these minor cases dragged on for years.
Slapping cases on innocent citizens comes easy to the law enforcers. But, how do they fare when it comes to helping victims of crime? The answer: worse. Police stations, the first point of contact between a citizen and the grievance redress mechanism of the justice system, are often the citizenry’s last resort. There is good reason for the dread. Leave poor and vulnerable sections aside, which are mauled by this point of first contact with the system, even the upwardly mobile middle class find them sickening, threatening, and incorrigibly corrupt. To be fair to the police, the reasons behind the rot are not only of their own making. One of the most underpaid, undertrained, and overburdened within the criminal justice system, the police are almost as much victims as those who are haplessly forced to approach them.
How can they solve crime without training in scientific investigation methods? By rounding up “suspects” and extracting confessions by torture is the answer. Do they get it right despite the use of the abhorrent practice? We are back to the joke we began with. They do get one thing right for themselves though – the capacity of inflicting violence on people gives them an unenviable capacity of extorting money from suspects and their families. They often do this with great “democratic” abandon too; they often extort all parties involved.
What about the Judiciary, then, especially the lower judiciary? One doesn’t need to add too much to what the higher judiciary has said already. V. N. Khare, former Chief Justice of India (CJI), was unequivocal in saying that corruption is rampant in the lower judiciary and agreed to the fact that bribes for bail were endemic. Justice P. Sathasivam, another former CJI, concurred with him. Add to this the fact that the higher judiciary is not alien to corruption itself and the fact of the enormous backlog of cases and the recipe for disaster is complete. One of the immediate results is seen in cases involving grant of bail to the accused; the role of the magistracy has shifted from the principle of shielding the accused from undue arrest to earning money out of granting and declining bail. It is not hard to see that such a judiciary can only fail the people.
It is time to return to the joke again. What if the cyber café owners were accused, not of possessing and promoting pornography but, of letting their café be used for “hate speech” – a euphemism for criticizing the government, as seldom do those really indulging in hate speech get charged, leave alone arrested. What if the police arrested the owners using one of the perennial tricks: the Narcotics Act, Arms Act, and so on? How long will it take the owners to get relief? This is where the real rot lies.
It is in this context that the current scrapping of Section 66 A is welcome, in principle, but will not change much on the ground. It would be cathartic at best; it will let some citizens criticize the system for failing them on the Internet, and allow the same citizens to miss the elephant in the room when they are offline: the rot that surrounds their closest police station.
# # #
About the author: Mr. Pandey, alias Samar is Programme Coordinator, Right to Food Programme, AHRC. He can be contacted at avinash.pandey@ahrc.asia.
