The Article is written by Mohamed Sultan Maricar from Crescent School of Law, B S Abdur Rahman Crescent Institute of Science & Technology, Chennai.
Violence by police occurs on and off the streets in various forms like lathi charge, provocative firing, beating, shaming the public, fake encounters, custodial torture, all this is also known as Custodial Violence. Custodial death or a fake encounter is cold-blooded murder. Custodial Violence is considered as one of the worst kind of crimes in a civilized society which is governed by the Rule of Law and poses a serious threat to an orderly civilised society. Torture in custody curbs the primary rights of the citizens and is an injustice to human dignity. A recent case of custodial death from Tamil Nadu represents how the police misuse its power. Indeed, it depicts that the present criminal justice system is lacking behind.
Anti- Torture Measures
The global view of the anti-torture law was started with the creation of “The Torture Declaration” by the General Assembly of the United Nation which aims to protect people from being tortured or other cruel, inhuman or degrading treatment. The Torture Declaration was followed by “The Torture Convention” which breathes itself into Article 5 of the UDHR and Article 7 of the International Covenant on Civil and Political Rights that provides no one shall be made to torture or cruel, inhuman, degrading treatment or punishment.
In India, The Prevention of Torture Bill, 2010, was an initial step, introduced in the Lok Sabha on 26th April 2010 by then Home Minister P. Chidambaram and was passed on 06th May 2010. Later on, the Bill lapsed in Rajya Sabha. Section 4 of the Bill provided 10 years of punishment for the act of torture. The complaint shall be made by the victim within 6 months from the date on which the offence is committed. If the Prevention of Torture Bill, 2010 had become law, it would have made the punishment for torture committed by public servants and it would have reduced the rate of custodial violence.
Reports on Custodial Violence
- The III Report of the National Police Commission noted that nearly 60 % of arrests in India were just unnecessary or unjustified.
- As per, National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were sentenced for custodial violence while 1,727 such deaths were recorded in India.
- The Times of India Report shows, with the help of data accessed from the NCRB, that as many as 180 custodial deaths took place in Gujarat between 2001 and 2016. But none of the police personnel were punished for any of these deaths during this time.
- The countrywide counts are worse as it shows that only 26 policemen have been sentenced for 1,557 custodial deaths.
- Around 1,731 people died in custody in India during 2019. Among them, 1606 of the deaths were in judicial custody and 125 in police custody stated in The Hindu newspaper report.
- 74.4 % of deaths in police custody were because of torture or foul play and 19.2% were the reason for foul play.
- Apart from custodial deaths, more than 2,000 human rights cases were also registered against the policemen between 2000 and 2018. Nevertheless, only 344 policemen were convicted in those cases.
- Whereas 1,782 cases of fake encounters were made between 2000 and 2017 in India.
- In comparison to it, 385 policemen were charged, 120 cases were dismissed by courts after charge sheets were filed and just 8 policemen were convicted during the period 1997 to 2016.
- 7 policemen from Uttar Pradesh who were accused of torturing to death were released by a trial court at Hapur on the ground of the statement, denying the involvement of Police, made by family members of the deceased.
- The encounter killings of four suspects in the rape and murder of a young veterinarian near Hyderabad was openly welcomed by the politicians where the accused persons were not even proven guilty.
Need For Judicial Intervention
The following Guidelines were made by the Supreme Court in the cases of Joginder Singh and D.K.Basu
- The memo of arrest must be signed by at least one witness who can be either a member of the family or a respectable person in the locality.
- The arrested person must be informed about his right to have a close family member to be informed of his arrest, the right to meet his lawyer during interrogation, though not throughout the investigation.
- The Constitutional obligation – Article 22(2) – to produce the arrested person before a magistrate within 24 hours without any delay.
- A warning was also issued to the police that the failure to follow these guidelines would result in being punished for contempt of court.
- Many of the Amendments were inserted in the Code of Criminal Procedure, 1973 by inserting Sections 41A to 41D, 50, 54A, 55A, and 60A with the objective that the process of arrest would be more open and the arrested persons will have additional safeguards.
Reasons For Low Convention
Most of the custodial deaths were because of custodial violence, which resulted in suicide and death in hospitals during treatment.
Death occurring in the form of custodial detention is known as custodial death. It should also include deaths resulting from police officers attempting to catch a criminal escaping from police custody.
During Arrest, Traumatic asphyxia may occur if the offender resists arrest and several policemen fall upon him to overpower him. It may lead to injury which may ultimately lead to death (The hog-tying, choke, carotid sleeper hold). The emotional upset may result in an acute cardiac crisis in the presence of severe pre-existing disease. Apart from that, few physical cases of abuse don’t have an apparent mark of its occurrence. Some methods of physical abuse may not leave any apparent marks of violence, such as hair pulling, slapping at the face. In many custody or restraint related deaths, psychological processes have a prominent role in death which is not identifiable at autopsy.
The current trend of booking the constable or transferring the concerned sub-inspector or suspending him temporarily is an eye-wash to the public. Even, magisterial inquiry in the face of no evidence or tampered evidence does not impact. Sections 132 and 197 of the Code of Criminal Procedure prohibit the prosecution of public officials without the prior sanction of the state has made the Indian police to exceed their power.
In Prakash Kadam v. Ramprasad Vishwanath Gupta (2011), the Supreme Court observed that Policemen are persons who are supposed to uphold the law. If the crimes are committed by ordinary citizens, ordinary punishment can be given, but if the same offence is done by the police official, much harder punishment should be granted on them because they do an act contrary to their duties.
In case of Prakash Singh (2006), the Court issued six major guidelines regarding the implementation of the police reforms based on the recommendations of the NPC and directed the Central and State Governments to implement them. However, the guidelines neglected police accountability to the public on the issue of human rights violations and other rights.
Measure To Reduce Custodial Violence
- Vicarious liability must be introduced in which the senior officials who are in charge of the police station and the district, must be vicariously liable, for the deaths in custody which are in mala-fide intention or due to excessive power of the police. Assigning responsibility to the higher officials will ensure that they would stop following their political bosses blindly or take necessary measures to curb down the custodial violence.
- Presently, as per Section 41 D of Code of Criminal Procedure, the accused has the right to meet his advocate during investigation but not throughout the investigation. This must be changed and an advocate must be made mandatory to be with the accused in the whole investigation which will protect the rights of the accused, as most of the accused are not aware of the laws. All places of the police station must have cameras which in turn should be reviewed and monitored by the central control room in each district. Moreover, any kind of physical torture must be viewed seriously.
- Independent and qualified persons must be allowed access to places of detention for inspection without any restrictions.
- CCTV cameras must be installed in all police stations including the interrogation rooms.
- Surprise review by Non-Official Visitors must also be made mandatory which would be a preventive action against custodial torture.
Behavior Of The Police Officials
- The problem is also linked with the behavioral attitude of police officials. They require proper training of huge crowd controlling and dealing with human rights divisions. The States must also send them for psychological counseling regularly.
- Their working hours need to be reduced so that they could also spend time with their families and friends and live their personal life. The police are under work for long hours in difficult circumstances. It affects their thinking and working efficiency adversely.
- If someone is found guilty of any offence, it is the duty of the court to look into the matter and punish the offender as per the law. The police cannot take the law in their hands. The police officer must conduct a criminal investigation in a justified way with the help of scientific tools. The police should not treat offenders like personal enemies.
Although, India has signed the United Nations Convention against Torture in 1997, its ratification is still not processed. The signing only shows the country’s intention to meet the obligations set out in the treaty. The ratification entails bringing in-laws and mechanisms to fulfill the commitments. The Government should take some measures to eradicate the exploitation of the accused.
- 180 Custodial deaths in Gujarat in 16 years, no one punished. http://timesofindia.indiatimes.com/articleshow/69881991.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
- Custodial deaths-revisiting debate on anti-torture law – https://livelaw.in/columns/custodial-deaths-revisiting-debate-on-anti-torture-law-159054
- Police brutality a case for urgent intervention by the constitutional courts https://livelaw.in/columns/police-brutality-a-case-for-urgent-intervention-by-the-constitutional-courts-159136#_ftn1
- D. K. Basu v State of West Bengal (1997) 1 SCC 41.
- Prakash Kadam v. Ramprasad Vishwanath Gupta 2011
- Prakash Singh case (2006).
- Sanjay Bhatt case : In 16 years, Gujarat Saw 180 Custodial Deaths https://thewire.in/rights/sanjiv-bhatt-ips-officer-gujarat-custodial-death.
- Can we really police our police?https://livelaw.in/columns/can-we-really-police-our-police-15918
- D.K. Basu,Ashok K. Johri vs State Of West Bengal