Why inquiries in Kashmir fail to lift public confidence?


The Supreme Court has time and again given paramount importance to common man’s trust.

The authorities have recently ordered a magisterial inquiry under Section 176 of CrPC into the suspicious death of the Sopore youth Irfan Ahmad Dar who was in police custody before his body, according to police, was found in a stone quarry.

An inquiry under Section 176 CrPC is held into custodial deaths or suicides by women within seven years of marriage or where the death of any woman raises reasonable suspicion about any person being behind the offence. An inquiry under this Section can be held by an executive or judicial magistrate.

However, a special provision in the form of Section 176 (1)(A) was added to Section 176 CrPC in 2005, by way of amendment, which exclusively deals with custodial deaths or custodial rapes or disappearances. The inquiry under Section 176(1)(A) mandates probe by a judicial or metropolitan magistrate having local jurisdiction over the area where the offence is committed.

The Sopore inquiry started off on the wrong foot in utter disregard to the special law dealing with custodial deaths and to the legislative intent – mandating judicial inquiry into custodial deaths. While the much out-dated executive investigation is underway, two cops from whose hands Irfan allegedly “escaped” have been suspended though the suspension of the cops only cements the police’s “escape-theory” and is not connected with the inquiry.

Therefore, the reasons for Irfan’s death still stands contested between the police and the family and the probe doesn’t excite hopes of the family, given the chequered history of probes in Kashmir.

Hundreds of probes have been ordered only to end up becoming food for bookworms. In Kashmir, probes suffer for want of just-conclusions and do not enthrall public confidence. The J&K Coalition of Civil Societies put out a shocking figure of ‘zero prosecution’ in about 108 probes ordered from 2008 to 2019.

In the cases of custodial deaths, victims rarely get justice and police versions ultimately prevail, as in such cases only police officials know the exact circumstances of the death but they prefer shielding their colleagues as has been observed by the Apex court in State of MP vs. Shyamsunder Trivedi, in the following words, “…rarely in cases of police torture or custodial deaths, direct ocular evidence of the complicity of the police personnel would be available...Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues.”

The deceased Sopore youth is named in two FIRs according to police statement: first under Section 18 of the Unlawful Activities (Prevention) Act and after his alleged escape, FIR under Section 224 of IPC was registered. The magisterial inquiry on the other hand has a limited mandate of ascertaining ‘how the death was caused and cannot go into ‘who caused the death.’ Therefore, the very comission of registering FIR against any person who could be behind his death brings to fore the approach of the police.

In a recent, Rhea Chakraborty vs. State of Bihar & Ors, the Supreme Court said, “...the inquiry conducted under Section 174 CrPC by the Mumbai police is limited for a definite purpose but is not an investigation of a crime under Section 157 of the CrPC.” This means, police or other investigation agencies have a mandate to carry out investigation to find out who caused the death.

At a place, where there is huge distrust between people and government, shielding custodial violence behind formality proceedings defeats the ends of justice and escalates public distrust, which isn’t healthy for any country that believes in rule of law.

In such circumstances continuing with executive probes, that have been found inadequate long back, shows lack of seriousness on the part of the government to pursue these cases on their merits. In its 152nd report, the Law Commission had said that executive magistrates undertake these investigations as formalities. Law Commission had further suggested that custodial violence should be curbed with a heavy hand to set deterrence for others, but families of victims in Kashmir still await justice.

Only in January this year, acting on a petition by a human rights activist, the Apex Court sought a response from the Centre and states for the implementation of Section 176 (1) (A) of the CrPC.

Government forces in Kashmir are time and again called out for violence against civilians. Army has recently admitted the excesses committed under Armed Forces Special Powers Act (AFSPA) during Shopian (fake?) encounter, in which three Rajouri youth were killed.

The time consumed by formality-probes although momentarily saves the government facing criticism over a given situation but in the long run it promotes much-abhorred extrajudicial violence against poor civilians and deepens the roots of Police Raj.

Therefore, it is imperative that inquiries are not resorted to for face-saving and to escape the gravity of the moment. Inquiries must be unbiased and independent to the point of common man’s satisfaction.

The Supreme Court has time and again given paramount importance to common man’s trust. In the recent Rhea Chakraborty case, the court held, “...When integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate. When truth meets sunshine, justice will not prevail on the living alone but afterlife’s fitful fever, now the departed will also sleep well... To ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution... the CBI is directed to investigate the new case as well.”

The CrPC amendment was brought not to be flouted but to curb the growing incidents of custodial violence against defenceless inmates. Relentless deliberations from legal luminaries, civil societies and activists had prodded the government to amend CrPC and bring special provision for custodial deaths. Keeping 176(1)(A) dormant and continuing with the executive inquiries into custodial deaths only defeats the mandate of law and encourages perpetrators.

— The author is a lawyer and tweets at @Aasifwani8