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It is reported that the victim, a girl, was molested by K. K. Chowdhury, an assistant sub-inspector of police, at the Bathnaha railway station in Araria district on Saturday. The officer was reportedly under the influence of alcohol. According to the additional director general of police, Anil Sinha, the officer was arrested and placed on suspension. However, the superior officer denied that his subordinate had molested the girl and confirmed that Chowdhury was arrested for "causing nuisance" at the center.
Indecent behavior, molestation and rape by law enforcement officers are not rare in India. Victims, even if they are willing to speak out or lodge a complaint, cannot expect much from the police. It is extremely rare for the police to register even a proper case. This is evident from the above case. Local human rights groups working for flood victims allege that the police have refused to register a proper case based upon the child's complaint. Instead the police have registered a case for causing “public nuisance.”
These two crimes – causing public nuisance and rape – are too wide apart in their nature, punishment and the implications for the accused. A police officer sentenced for causing public nuisance can continue to serve, whereas a conviction of rape can cost him his job and a minimum jail term of seven years. In the above case, it appears that superior officers are trying to prevent Chowdhury from being convicted for a rape charge.
The statement of the superior officer denying the complaint made by the child within hours of the incident indicates nothing other than the intention of the police department to cover up the incident. How can the superior officer confirm whether the child was molested by the sub-inspector or not, even before an investigation into the case has begun? A superior officer who shields his subordinate officer from being prosecuted for a crime he has committed is equally responsible for abetting the crime.
On an average, at least four or five incidents of custodial rape are reported in the Indian media each month. It is extremely rare for a woman or girl to fabricate a case of rape or other forms of sexual harassment given the nature of the crime and the social taboos such crimes associate by default upon a victim in India. Even if one agreed that fifty percent of these cases are false, there should still be about 24 cases of sexual harassment or rape each year where the accused is a police officer.
In the absence of any credible data available in the public domain specifically detailing the latest statistics of custodial rape, the only dependable information is the outdated statistics available at the National Crime Records Bureau. According to the Bureau, there were only two convictions for custodial rape in 2004, seven in 2005 and surprisingly two again in 2006. This is out of the estimated total of 402 cases charge-sheeted for rape against law enforcement officers in these three years, which roughly amounts to a mere three percent conviction rate.
Such a low number of cases and an even lower number of convictions in cases involving law enforcement officers is not a surprise. It is only one of the results of the complete absence of an independent monitoring agency for law enforcement officers in India.
As of today, the only possible means for a citizen to lodge a complaint against a law enforcement officer is to approach the superior officer within the same department. If the superior officer accepts the complaint, there is no guarantee that the complaint will be followed by an independent investigation. In most cases, the accused police officer continues to serve during the period of investigation, which makes it possible for him to influence the investigation in his favor. The case of Bikari Paswan from the state of West Bengal is one such example.
The West Bengal state police allegedly murdered Paswan, a jute mill worker, in October 1993. A case filed against the police officer by Paswan's father, Lakhichand Paswan, dragged on for 10 years without even recording a proper complaint. By the time the court decided that the police officer must be charge-sheeted for murder, the only witness in the case, Paswan's father, had died. Meanwhile, the police officer was promoted and later retired from service. This case is still pending investigation and, in all possibility, the charge will be dropped due to lack of evidence.
These cases draw a despicable picture of the Indian police. Police, or any law enforcement agency in a country for that matter, must act as a primary agent for recording complaints. Once a complaint is recorded, it must be investigated and, if the investigation reveals a crime, the accused must be prosecuted. Without these basic guarantees, the police department cannot maintain law and order. Ironically, in India, the current state of policing is the first hindrance to maintaining law and order.
What is lacking in India is this minimum guarantee of a complaint-recording function. In a recent seminar on policing and rule of law conducted in India, participants were asked what would they do if they had a complaint revealing a crime and if the suspect is a police officer. Almost all of them responded by suggesting extrajudicial or procedural measures like approaching human rights NGOs, talking to a local politician and even approaching the United Nations. None of them, however, suggested filing a complaint at the nearest police station. When questioned why they would not complain to the police, the participants said that from their experience, it would be a waste of time. The participants were not ordinary laypeople but legal and paralegal professionals who knew the Indian legal system inside-out.
This is the most serious problem concerning law enforcement in India. The officers enjoy absolute impunity. Other than for cases involving high profile persons, or those promoted by political in-fights, law enforcement officers involved in most cases do not get punished. This means that the current system in India indirectly promotes crimes committed by law enforcement officers. No government so far has tried, in law or in practice, to bring this anomaly favoring criminal elements within the law enforcement agencies under control.
Until this impunity is eliminated, there is no hope for India to develop into a country where rule of law is guaranteed and protected. As of now, India is a country where the fence is encouraged to eat up the harvest.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
