Custodial Death & Torture a Human Rights abuse: Indian and International perspective, Latest Laws

Latest Laws
24 July 2020

By By : Vidisha Singh

Abstract

“Custodial torture is universally held as one of the cruelest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.”[1]

INTRODUCTION

The advent of Custodial death and torture has peaked in its crisis, as reported by the National Campaign Against Torture, which states that 1,731 persons died in custody in the year 2019 alone, estimating 5 deaths every day of the year. These constituted 1,606 deaths in judicial custody and 117 deaths in police custody in total.[2]

The problem of death and torture in custody, already in much prevalence in most states dated back several years has been recently grievously highlighted in the case of P.Jayaraj and J.Benix, both inhabitants of Santhankulam in Tuticorin, in the state of Tamil Nadu, the father – son duo were arrested and held in custody under the accusation of keeping their shop open during the imposed mandatory curfew hours. They were later both seen with marks indicating heinous   torture and sexual assault, and soon succumbed to their injuries in a local government hospital. The news of the manner of their subsequent death has shook the nation and left its citizens aghast and generally distrustful of the uniform made to serve and protect them.

The flagrant abuse of law and authority by the police is not a curious subject as police are normally expected to use violence to counter crimes, there is an egregious presumption of police officers bound to use counter violence to incapacitate criminals so to prevent them from further harming innocent citizens, this presumption has led to a festering decay of the code of conduct among officers leading many to commit terrible breaches of such authority to assert their dominance over the public.

This show of ‘quick justice’ as demonstrated by the police, a civil force of state vested with authority and responsibility to commit order in society by the people themselves, ruins the pillars made to support social order and justice in our society. This gives an undue impression of courts and lawyers as mere accessories and gives the power of penalizing and imparting justice to unauthorized vigilantes.

In the ongoing trend of custodial violence being used to extract information or confessions there have been several number of torture methods the police would use, freely on men, women, and children alike breaking several laws and non-observance of fundamental human rights. This paper intends to analyze the role of such methods used by police personnel notwithstanding the necessary police reforms already in place or needed.

An important articulation of the subject matter has been seen in a judgement in which the Supreme Court observed,

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society.” [DK Basu v. State of Bengal (1991) 1 SCC 416]

Objectives

• To examine the history of police brutality, death under custody;
• To inquire into which sections of society are vulnerable to illegal detention and abuse;
• To identify violation of human rights in police custody using relevant statistics;
• To explore foul play, legal loopholes and impunity enjoyed by the police in such cases.

Research methodology

The research for this paper has been conducted through secondary sources of information such as newspaper articles, books, reports etc.

Earlier reports of custodial death and torture in India

In pre–independence India, Under the Regulation of 1816 police officers were authorized under all revenue functionaries and routinely involved with revenue collectors for extortion of         revenue and delay in payment of taxes. The testimonies and evidence of torture were so many               and so serious that it was discussed in the British House of Commons as well, thus, establishing the Torture Commission of 1855. The commission found conclusively that “personal violence practiced by the native revenue and police officials generally prevails throughout the     Presidency, both in the collection of revenue and in police cases.” They also held that the law and order administration in the province was in a bad shape. The remedies they suggested included a “moral agency” (European) at appropriate levels, separation of the judiciary from the executive and, more importantly, that of the police from the revenue. The commission went on to suggest major reforms in the organisation of the police as an independent agency.[3] These reforms were the first of its kind on the subject.

The Law Commission Report of 1985 cited the case of State of U.P v. Ram Sagar Yadav [AIR 1985 S.C. 416] wherein a farmer, falsely accused of cattle trespass by his neighbor over a dispute, was allegedly threatened for bribes by the concerned police officer, who then, at first, relented but then reported this incident to the police station which as a response appointed another officer to inquire into the farmers allegation against the officer. The police officer in charge of the enquiry arrested the farmer and tortured him severely, within 6 hours of the registering of the initial case the farmer then succumbed to his injuries and died. This matter was then taken up to the Apex court which then acknowledged the advent of custodial death and torture as well as the indemnity enjoyed by police officials, saying,

 “Police officers alone and none else can give evidence regarding the circumstances in which a person in their custody comes to receive injuries. Bound by the ties of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth”.

According to a previous Amnesty Report of 1992, approximately 415 people died in the custody of police and security forces due to torture between 1^st January 1985 to 1^st November 1991. In all these 415 cases, the detainees including women and children, were beaten and tortured till they died. The report also states that laws pertaining to this phenomenon are commonly flouted, specifically section 176 of the Code of Criminal procedure which makes an investigation by a magistrate obligatory in all cases of deaths in police custody. Thus, in all 415 cases of custodial death between 1985 to 1991, only 42 magisterial enquiries and 20 judicial enquiries were conducted. [4]

The Nation Crime Records Bureau has recorded 591 cases of death in police/judicial custody between 2010 and 2015, with the reasons of death commonly cited as suicide, death during hospitalization or natural death/illness. Between 2016 and 2018 reports by NCRB 265 deaths were recorded with 0 convictions by the state.[5]

The Law Commission Report of 1985 strictly citing the Apex Court’s verdict in the case of State of Up v. Ram Sagar Yadav [AIR 1985 S.C. 416], suggested changes to the Indian Evidence Act, 1872 pertaining to section 114 of the act. As said in the report on the dire need of reform,

“The general principles deductible from the sections of the evidence act, 1872, is that it is for the prosecution to prove the essential elements of the offence charged and if those essential elements are proved, it is for the accused to prove that the case falls within the general or special exceptions to the criminal liability recognized by the criminal law. In certain special situations, this position does undergo modifications. For e.g., where a particular fact is within the special knowledge of a person it is for him to prove it. As the law stands at present however, there is no special provision as to the burden of proof where the injuries were received by a person in police custody.”[6]

In the working paper provided by the commission in response to this social concern, a broad outline of a provision which has still yet not been inserted in the Evidence Act of 1872, as section 114B was put forth stating,

“Section 114B (1) In a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that that person in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.”

The government itself had acknowledged in Rajya Sabha that 46 persons had already died in police custody due to torture within 3 months, i.e., January – March 1993 in Delhi alone[7]. This situation gives a glaring effect on the situation in tribal and minority communities far from the capital.

Torture: Definition and Practices

Torture (from Latin tortus: to twist, to torment) is the act of deliberately inflicting severe physical or psychological suffering on someone by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim.[8] The purpose of torture is not just severe trauma but a deliberate and systematic dismantling of a person’s identity and humanity through physical or psychological pain and suffering.[9]

Usage of torture by law enforcement personnel for aiding in solving cases are a routine practice which come under other titles such as “questioning”, “sustained interrogations”, “extra judicial executions” etc. however these practices by the police exhibit various tendencies of going overboard with such third-degree techniques. NCAT recorded that torture methods used by the police also included hammering iron nails in the body (victims: Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (victim: Rizwan Asad Pandit of Jammu & Kashmir), ‘falanga’ wherein the soles of the feet are beaten (victim: Rajkumar of Kerala), stretching legs apart in opposite side (victim: Rajkumar of Kerala), hitting in private parts (victims: Brijpal Maurya and Lina Narjinari of Haryana), stabbing with screwdriver (victim: Pradeep Tomar of Uttar Pradesh), electric shock (victims: Yadav Lal Prasad of Punjab; Monu of Uttar Pradesh), etc.

Causes assumed for using torture for law enforcement

This information was provided by police officers in an interview on the condition of anonymity and answers are limited to their perspective:

1. Inadequate strength of police forces compared to increase in rate of crime. Their task is overwhelming which goes far beyond the duties of enforcing law and controlling crimes. They hardly find adequate time for proper investigation and detection of crime so the adoption of third-degree techniques become inevitable.
2. Hardened and professional criminals understand the language of violence only. Third degree methods are the only way to acquire any information from them.
3. There is no harm in using violence (apathy) against criminals like dacoits, terrorists and arsonists as they do the same to others in society.
4. Apathy with respect to their rights due to the nature of their crimes and their backgrounds.
5. The legal procedure is very complicated and always in favor of criminals. The police has to work under heavy legal odds. They have to establish the crime in the court beyond doubt. This leads to solving of the case “by any means”.
6. Presence of virtually no facility for scientific investigation and detection of crimes in most police stations. Also leaving no choice but to use third degree methods.
7. People want the police to prevent and control crime but are unwilling to cooperate. They seldom give witness against the criminals. So the police has to elicit information about the crime from the criminal concerned which is seldom voluntary.
8. People expect the police to give corporal punishments to the criminals as an act of “teaching them a lesson”. [10]

Apart from these, other influential causes are colonial era use of violence, the media in exaggerating crimes sparking public demand and political pressure of the mistreatment and encounters of criminals and apathy of the executive branches towards such cases.

Most vulnerable sections to custodial torture and death:

The most vulnerable groups in society are the poor and marginalized. Unfortunately, this applies to the majority of the cases of the death and torture in police custody as well.

The NCAT report states this as a fact, saying SC’s (Scheduled Castes) and ST’s (Scheduled Tribes) face caste/ethnic based violence by the police/security forces as well as by the upper caste/general category people, that majority of the victims of police torture belonged to the poor and marginalised sections of the society who are often the soft targets because of their socio-economic status. The NCRB has registered 42,793 cases of crimes against SCs in 2018 over 43,203 cases in 2017, however several cases against SC’s and ST’s go unreported as well.

NCAT documented 13 cases of death of Dalit and tribal people in police custody during 2019. These included eight tribals and five Dalits. Out of the deaths of 125 persons in 124 cases of deaths in police custody documented by NCAT in 2019, 75 persons or 60% belonged to the poor and marginalised communities. These included 13 victims from Dalit and tribal communities, 15 victims belonged to Muslim minority community, 37 victims were picked up for petty crimes which indicate their economic status, three were farmers, one was laborer, one was a refugee, two were security guards, one was a rag-picker and two worked as drivers.

These communities are usually provided no adequate aid either, owing to their weak financial status and illiteracy or ignorance of pursuing legal remedies. Thus, it’s safe to assume that though painted necessary for crimes in big cities, the resulting echo of these malpractices severely impact the safety and dignity of the vulnerable as well.

Women and children in custody:

The treatment of women and children in custody is no less concerning, women in police custody always have the threat of rape and sexual assault along with other forms of physical torture, not only from police officials but also male inmates, and even more so if they are of lower caste or economically disadvantaged. For example, from 3^rd to 7^th July 2019, a 35-year-old Dalit woman was allegedly illegally detained, subjected to torture and was raped in police custody by nine police personnel at Sardarshahar police station in Churu district, Rajasthan. Beside custodial rape, the victim was also allegedly subjected to torture including plucking of her nails. [11]

In response to this the Criminal Law Act, 2013 of the IPC provides a ground for punishment in case of rape/molestation by a police officer wherein whoever,

1. Being a police officer, commits rape-

1. Within the limits of a police station to which the police officer is appointed; or
2. In the premises of any station house; or
3. On a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

2. Being a public servant, commits rape on a woman in such public servants custody or in the custody of a public servant subordinate to such public servant;

m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall imprisonment of the persons natural life, and shall also be liable to fine.[12]

Even with such provisions in place, women in these vulnerable conditions are usually forced to live with the trauma and continue on with their lives as they see no hope or way in pursuing legal action against the men in uniform. These conditions further aggravate the despair of sexual violence against women in the country even more so when the perpetrators are those in uniform and under oath. Unfortunately, they are no such remedies for the cases which go unreported.

Children are also next in line to be victims of grave torture in custody especially due to the lack of implementation of the Juvenile Justice (Care and Protection of children) Act, 2000. This usually results in several juveniles being illegally detained and tortured. The NCRB in its annual report of 2018 also reported 3,164 cases of simple and grievous hurt against children by the police on 3,467 minors. This is a shocking fact considering children who have not yet been developed to the capacity of adults still have had to experience such a traumatic and life changing thing by the very ones who should do the most to protect them in lieu of the future of our nation.

Lack of intervention by legislature and Impunity of the police:

There exist several regulations and code of conducts to demand accountability and proper use of authority by the police, however, that can only be called naïve considering a great long culture in the police authorities to use and ignore those laws which are convenient to them or their case with no one to question them.

Under the Criminal Law (Amendment) Act, 2018,

1. When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

1. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
2. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.[13]

This means that no police officer or public servant can be arrested for any criminal activity he/she be accused of doing while they are assumed to be acting out their duty, without a sanction of the central or state government.

Similarly, in the NCRB report of 2018, while there were 70 deaths recorded in police custody across the country, none however were convicted.

This can also be attributed to the lack of judicial and magisterial enquiries against the deaths portrayed by the dismal statistics by the NCRB report while the total cases od death were 70 in 2018, only 27 judicial enquiries were conducted. While in 2019, only 5 out of 11 cases were magisterial inquiries conducted.

There are several cases of custodial death wherein the corpses of the victims are incinerated before families were allowed to see the corpse, and the police tamper or dispose of all remaining evidence before any substantial case or FIR can be filed against them or their subordinates. It is an evil that’s been rotting the system for several years and has only seem to have gotten worse.

Observations, suggestions and solutions:

1. Ratification of the ‘UN convention against torture’. This convention was signed by India in 1997 but never ratified. No official law has been passed by the legislation on Anti – torture or police reforms concerning custodial deaths despite the frequency of such acts for so long as well as several suggestions and concerns shown by the NHRC and the Apex court. The sustained apathy of the legislature can be interpreted as a quite observance to such practices, thus making it harder for any likelihood of ratification happening in the future either.
2. The various suggestions made by the Apex court in judgements like DK Basu v. State of Bengal [14]must be enforced and any default by reluctance or ignorance of any police station or public authority should be strictly penalized. Some mainly include:

• All police officers should wear their name tags clearly indicating their name and designation.
• Police must enter the complete details of police officers conducting investigation in a register.
• The arrested person has the right that his/her relative/friend is informed about the arrest.
• The police must contact and inform the relative/friend of the time and place of arrest, and the exact location where the arrested person is detained.

3. Implementation of section 114B [15]mentioned in the law commission report 1985 which raises the notion of holding the officers accountable or with criminal culpability if anyone is found tortured or dead in their custody.
4. Though torture is completely normalized in custody for extracting confessions, legally, suspects have the right to withhold any self-incriminatory information or evidence that can be used against them. This is under the presumption of innocent until proven guilty.

In India, Article 20(3) dictates:

1. No person accused of any offence shall be compelled to be a witness against himself. The privilege against self-incrimination is a fundamental canon of criminal law jurisprudence. The characteristics of these provisions are,

1. That the accused is presumed to be innocent,
2. That it is for the prosecution to establish his guilt,
3. That the accused need not make any statement against himself.

Nandini Satpathey v. P.L Dani [16] also holds that these rights extends to witness and accused alike, and that they must be formally accused in the present and not the future. This applies to every stage in which furnishing of such information and collection takes place. However, implementation of this law has been lackluster in the justice system, as it is subject to constant violations by police and law enforcement authorities. This is owed to the police’s impunity and apathy towards both the judicial system and moral obligations towards rights of the detainees or criminals, and necessary changes must be implemented.

5. Public awareness of protections such as Article 39 – A of the constitution which providing free legal aid to the poor or disadvantaged sections of society so the provision of justice can be extended to all citizen despite economic or educational hindrances.

Proper implementation of the D.K Basu judgement as well as greater public awareness of certain rights and provision of citizens and detainees will compel the police to pursue other far more productive methods than third degree methods. Similarly, another recommendation can be the presence of a lawyer during the interrogation by the police with the interest of protecting the accused’s rights.

6. Immediate amendment and reform of the “Police act of 1861” which contains several provisions that enable violation of rights by the hands of police officers. This act born in the era of pre independence was made only to hold the lives of our countrymen on a leash, it contains several loopholes wherein the police get away with lesser consequences compared to the gravity of the crimes they have enabled over and over.

The fact that this act exists to this day is a gross indignation of our people’s rights and must be amended promptly.

7. Also, the recommendations in the 117^th law commission report by the 16^th law commission recommends appropriate amendments in the Code of Criminal Procedure which makes police officers responsible of assuring the safety of the accused in custody and making them aware of their rights while they remain in custody[17].
8. The last suggestion is the need for the codification of the rights of the arrested persons as mentioned in The Malimath committee report.[18]

Conclusion:

Police are the safeguards in society which keep its morals and foundations intact and functioning as we go towards progress and development. They are an indisputable necessity to maintain order in society, but when such outfits of justice themselves cannot keep themselves away from violating the public’s fundamental rights, the authority given to promote such justice is annulled.

The very idea of custody is protection or guardianship even when applying it to arrests and incarcerations. The law is a continuous and omnipresent process and system which is permanent, yet always changes according to the needs and progress of society. As such, law enforcement authorities should be held accountable to their crimes and further training and sensitization must be provided on the basis of science and sound morals so to promote legal principles amongst our officers and the public.