Lesson from Nithari – system needs to be changed

[Originally written in January, 2007]

There are inherent weaknesses in the system that need to be addressed immediately if incidents like Nithari-killings are to be prevented in future. This is the lesson that is writ large in the Nithari killings. Here, I am not referring to the police reforms prescribed by the Supreme Court recently. I am referring to some deeper failures in the policing system as well as in the criminal justice system.

The origin of the Nithari killings lies at the “missing” children. Children become “missing” in the beginning. The police fails to take cognizance of such incidents. Such children then become the target of subsequent offences, such as sexual offences, murder, or may even be those relating to organ-sale racket.

So, at the root of the problem is the question of “missing” children and failure of the police machinery to take its cognizance and the lack of follow-up action.

The first issue is about “missing” children. How can a child become “missing”? The possible reasons could broadly be classified into following three categories-

The second issue is how the law deals with the question of a “missing” child. There is a serious lacuna in the system here which, though unintentional and worthy of explanation on the principles of legal jurisprudence, leads to practical difficulties. The first category of the reasons mentioned above are covered in the definitions of various offences listed (mainly) in the Indian Penal Code; these are cognizable offences and therefore the police action starts immediately. However, in the second and the third categories of reasons mentioned above, the penal law is silent as for obvious reasons no offence could be made out in such cases unless somebody is instigating such behaviour. And, it is important to note that there is no other law which deals with such situations. Hence, such cases are left to be handled under the administrative instructions detailed in various police manuals which are usually confidential documents and are not in the public domain. It leads to problems as such administrative instructions, framed decades ago, are not effective in the modern era with crime scenario becoming much more complex and complicated due to various reasons. The end-result is that there is hardly any serious or systematic investigation in such cases.

The third issue (inter-connected with the second issue) is: what happens when the incident of “missing” child is reported to the police. It is here that the failure in the system becomes more prominent. In some incidents reported to the police, kidnapping or abduction is clear, e.g., recent NOIDA kidnapping incident of three-year old Anant, the son of the Adobe executive Naresh Gupta. So, the police will register FIR straightaway in such a case and will start investigating the case. But, in majority of cases, the report lodged speaks of the “missing” child but it is not known to the complainant himself as to what is the cause of the child becoming “missing”, i.e., whether the child has been kidnapped, or he has genuinely become missing or he has intentionally left his home. It is in these large number of cases that the system failures play havoc. In these cases, the police does not register FIR, but records the incident in either the General Diary (or Station Diary) or the Missing Persons Register (or some like name) or in both. And, in most of such cases, that’s the end of it! Means, either no further investigation / enquiry or a perfunctory / nominal enquiry. The incident is then lost in the records and is usually not taken to the logical end.

The most crucial question that needs to be looked at freshly is – when an incident of a “missing” child is reported to the police, how do you make out at that instance as to what could be the reason for the child becoming “missing”? In many of such incidents reported to the police, the complainants are not aware of the exact reason behind the child becoming “missing”. They are also not aware about the legal complexities as to how to report the matter to the police so as to make the police conduct a proper investigation into the matter. They may not be aware of the fact that unless the report is presented with such facts that it could be recorded in the form of FIR, the police would not even be conducting a detailed investigation or enquiry. Thus, in many such matters, the complainants would simply report the matter of the “missing” child mentioning that they are not aware of the reasons of the child becoming “missing”. In many such matters, the police record the statement themselves but to a similar effect. All this helps to record the incident merely in the General Diary / Station Diary and/or the Missing Persons Register, instead of registering a regular FIR. In the case of FIR being registered into an incident, a regular full-fledged investigation follows wherein one can hope for at least some serious effort to solve the case and trace the missing child. But, in the case of a mere General Diary entry or an entry in the Missing Persons Register, there is hardly a detailed follow-up enquiry or investigation.

In the Nithari killings, what is more shocking (may be, in the hindsight) is the fact that police officials at the police station level and at the district level failed to see a pattern of several children becoming missing from a small area, as it was not the case of one or two solitary instances. It also makes a mockery of the claims of Government and the senior police officials of using Information Technology tools in the policing work.

It has to be understood that the exact reasons for a child becoming “missing” can be found only through a proper investigation or enquiry. More than that, it is also necessary to trace a missing child and to prevent any further offence against the missing child. It is in this context that there is a need to make changes to the existing system so that a proper investigation or enquiry is conducted in every complaint of a missing person.

At this juncture, it is pertinent to mention that there is a system of regular inspections and frequent surprise visits of/to police stations by the superior police officers. Moreover, the officer-in-charge of a police station is supposed to regularly peruse the General Diary and other registers such as the Missing Persons Register. However, with changing priorities in the police organisations, such systems exist more on paper than in practice. In any case, instead of depending upon a system of regular inspections and surprise visits to the police stations, there is a need to make changes in the basic system itself, i.e., at the reporting stage and the enquiry / investigation stage. The need for such basic changes in the system becomes more prominent when we consider the fact that with increasing attention being paid by the police agencies to the law & order and matters such as VIP security, even the regular crime-investigation often takes a back-seat, what to speak of non-FIR matters such as enquiries in the missing persons’ complaints.

It is also important to mention that while individuals responsible for not taking proper cognizance of the incidents need to be penalised, we have to realise that the message from the Nithari killings is more about a system failure than the individual failures. Therefore, instead of wasting too much time in blame game, there is an urgent need to revamp the system where it is needed the most. And, it is here that the Governments at the Centre and State levels, as well as the senior leaders of the police organisations, have to play a vital role.

I am submitting the following few suggestions for making changes in the system dealing with the missing persons:

Let’s hope that the matter relating to Nithari killings is used for making some basic changes in the policing system and the criminal justice system so as to improve it for the common good of the society.