The deaths of Jayaraj and Bennix at Santhankulam in Tuticorin, Tamil Nadu due to torture in police custody has once again brought into light the ugly side of the methods used by the India's police authorities. Custodial violence and torture are so rampant in India that it has almost become routine. It represents the worst form of excesses by public servants entrusted with the duty of law enforcement.[1] The latest incident of Jayaraj and Bennix is just one drop in the enormous sea of cases of custodial torture and death.
A HISTORY OF VIOLENCE:
Indian police have always been infamous for using "3rd degree" methods with prisoners and undertrials during investigation. Human Rights activists have been actively raising their voices against such cruel practices and about the urgent need for reform, but the ground reality hasn't changed much over time.
Some of the glaring, examples include the custodial death of Maulvi Mujahid, the accused in the Lucknow court blasts who died in police custody while he was being transported back to jail after his appearance in court.[2] Or the incident of a Maulana Asad Raza, a Muslim Cleric in Muzaffarnagar who along with almost 100 of his students was stripped naked and beaten on private parts after violence erupted in the city during a protest demonstration against the CAA and NRC.[3] Or the death of the father of the Unnao rape case victim in police custody. [4] These incidents made it to the headlines while the majority of the cases are not even reported so there is no public outrage for such incidents. In most cases, FIRs are not registered against the culprits and hence they often go unpunished. But this does not mean that custodial torture does not happen.
Women have been subjected to sexual violence while in police custody which included being beaten up on the private parts or even the belly of pregnant women. [5] Student activists and those politically opposing the ruling government are the latest victims of such crimes. For instance, the case of Khalid Saifi, an activist who was arrested by the Delhi Police on charges of conspiracy of Delhi Riots of February 2020 and was subjected to torture while in custody causing fracture in both legs due to cruel beating by police personnel. [6]
Custodial torture is not only limited to its physical torture, it includes mental trauma. There have been widely reported incidents of police hurling abuses defamatory remarks based on caste and religion to the person in custody. [7] Such mental trauma has a deep impact and sometimes it takes a lifetime for the victim to recover from it.
National Campaign Against Torture (NCAT) in its annual report released on 26th of June 2020 states that 1,731 persons died in custody in the year 2019 which is almost 5 deaths each day. Out of these, 125 people died in police custody while the rest in Judicial custody. According to the said report Uttar Pradesh tops in the number of reported deaths due to torture by police. The Report goes on to state –
"Out of the 125 deaths, 93 persons (74.4%) died during police custody due to alleged torture/foul play while 24 persons (19.2%) died under suspicious circumstances in which police claimed they committed suicide (16 persons), illness (7 persons) and injuries (1 person) while the reasons for the custodial death of five (4%) persons were unknown." [8]
Asian Centre of Human Rights alleged that in India, a total of around 7468 people died/ were killed in prison or in police custody between 2002 and 2007. This amounts to 4 deaths per day. [9]
It is pertinent to note that the majority of the victims of such torture belong to the marginalized and poor strata of society who often are unable to afford justice and hence in most cases the culprits often go unpunished. Further aggravating the situation, in almost all such cases the culprits are the very policemen responsible for reporting these incidents, due to which cases are always underreported. Only when any such case makes it to national media, the politicians and government come into action, and complaints are lodged. The immediate action if any taken by the government is restricted to suspension from duty for a limited period and when the situation cools down everything is thrown down the memory lane and no strict action is ever taken.
PROVISIONS IN EXISTING LAW AND STEPS TAKEN BY INDIAN JUDICIARY TO PROVIDE RELIEF TO VICTIM:
Perhaps the most well-articulated position of law can be spotted in the case of DK Basu v. State of Bengal where the Supreme Court observed that
"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." [10]
The main task after any such act of custodial torture or death is the registration of an FIR and the initiation of an independent investigation into the crime. Sec 154 of Cr. PC requires compulsory registration of FIR and the same has been held by the Supreme Court in the Lalita Kumari judgment[11]. Hence, the police is obliged under law to register FIR as the information recorded discloses commission of a cognizable offence.
Section 197 of Code of Criminal Procedure, 1973 provides for sanction of central/state governments for prosecuting public servants for offences committed by them in the course of their duty. This provision is routinely used to claim protection from trial.
While dealing with the use of Sec. 197 CrPC, in the recent case of Devinder Singh v. State of Punjab[13] the Supreme Court has observed that "Protection of 'sanction' to Govt. servants cannot be camouflaged to commit crime…..The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence".
Further, Section 176(1)(A) CrPC provides for separate Judicial investigation in case of death, disappearance, or rape in police custody. The Section states that in case of death, disappearance or rape in police custody, the Judicial or Metropolitan magistrate under whose jurisdiction such offence is committed is mandated to hold an inquiry into the offence apart from the investigation conducted by police. And Section 176(5) provides that any such enquiry shall be held within 24 hours of the death of the person. If after investigation it is found that any police officer has committed any such crime then he can be tried as a normal citizen under the existing provisions of the Indian Penal Code.
Apart from penal provisions, where the policemen are tried and punished like normal persons another remedy available is compensation to victims. Since custodial death and torture is inflicted by the police, which is an organ of the state, and it deprives the victim their right guaranteed under Article 21 of Indian Constitution, the Supreme Court has held in various cases for payment of compensation to the family of the victim.
For instance, in Saheli v. commissioner of Police Delhi, [14], the court awarded compensation to the mother of a nine-year-old, who died in police custody. In Nilabati Behra v. State of Orissa[15], the Supreme Court awarded compensation to Nilabati, for the death of her son in police custody. In the same case it was also held that the Supreme Court has a wide range of powers under Article 32 and it covers the power to award compensation.
In Sube Singh v. State of Haryana[16] the Supreme court, while considering a writ petition under Article 32, where the petitioner alleged illegal detention, custodial torture and harassment to family members, expanded the principles laid down in the Nilabati case by observing that compensation as a remedy in case of custodial torture or death is available only if the proof of such an act is "established or is incontrovertible" and not in the case where such violation of Article 21 is "doubtful or not established". This was done to guard the police against frivolous and motivated complaints.
These cases point to a growing need for reforms in the police system. The Hon'ble Supreme Court in the case of Prakash Singh v. Union of India[17] gave certain directions to the central government to initiate the long pending police reforms. One of the main directions given by the court, in this case, was for the establishment of Police Complaints Authority at the state as well as District level to investigate the allegations of misconduct of police personal. But most of the states are yet to implement the directions.
India is a signatory to United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (UNCAT) which was adopted by the UN General Assembly in 1984 but has failed to ratify the same through the process of legislation. The Prevention of Torture Bill 2010 providing for punishment for the act of torture committed by public servants was passed by Lok Sabha on 06.05.2010 but was referred to Select Committee of Rajya Sabha and was lapsed with the dissolution of 15th Lok Sabha. The bill would have been a positive step in enacting a strong law against such crimes of tortures and implementing the objectives of UNCAT.
A petition was filed by former Law Minister Dr. Ashwani Kumar before the Supreme Court wherein he sought directions for the Parliament to enact a law on Custodial Torture and Deaths based on the UNCAT. The central government in its reply had said that draft legislation was under active consideration. The Court rejected the petition while observing that
"When the matter is already pending consideration and is being examined for the purpose of legislation, it would not be appropriate for this Court to enforce its opinion, be it in the form of a direction or even a request, for it would clearly undermine and conflict with the role assigned to the judiciary under the Constitution."
The court also noted that the rejection of petition would in no way affect the jurisdiction of the courts to deal with the individual cases of Custodial Torture and pass appropriate orders in accordance with law. [18]
THE CURRENT SITUATION AND THE ROAD AHEAD.
The problem of custodial torture and deaths is ever-increasing in India. Even with provisions such as 176(1)(A) and 176(5) in place for a mandatory enquiry in case of custodial deaths, they are seldom used. One of the main reasons why victims or their families struggle even for initiating an independent enquiry or for registration of FIR is the feeling of 'brotherhood' among the police department. They hesitate or refuse and sometimes even pressurize the victim against making such a move. This is like a situation of a judge judging himself for his crimes. The chances of getting justice in such a situation are very bleak. Even the state government tries to suppress such cases and deal with them in a hush-hush manner because such incidents pose a serious question about the law and order situation in the state.
As such crimes are committed within the police stations and by the police officers, collecting evidence is one of the most difficult tasks in such cases. There also have been instances of Police officers destroying any evidence like in the case of Jairaj and Bennix, the judicial magistrate probing the incident. In his note to the high Court observed that the lathis which were used to beat both the victim were wiped later and also the police officer hesitated to produce the said lathis and also the daily register of the Police Station [19] Certain amendments in Evidence Act are also necessary to lighten the burden of proof on the victim as the principle of proof beyond reasonable doubt cannot be applied when such crimes are committed with no witnesses.
It must also be remembered that India still lacks any dedicated any anti-torture law, which is the need of present times. The existing provisions of the law are not comprehensive in dealing with the current situation of cases of custodial torture. Section 176 (1) CrPC only provides for compulsory investigation only in the cases of death or disappearance and rape but doesn't mention brutal physical torture, mental torture, etc.
The Law Commission of India in its 273rd report recommended for the implementation for a new anti-torture law namely "The Prevention of Torture Bill, 2017" to implement the anti-torture convention of UN but the said bill has still not been brought into parliament and any such act seems to be unlikely in the near future. [20]
In today's time, the institution of police has become so riddled with controversy that a normal citizen thinks twice before speaking against such atrocities for fear of inviting harassment upon himself or his family Also, due to high pendency of cases in courts, it takes years to conclude the trial of such cases due to high burden of already pending cases in courts and meanwhile the accused is released on bail. Courts should also try such cases of custodial torture and deaths in a fast track manner to punish the guilty in a short period and set an example that no one is above law.
The majority of the states have even failed to implement the guidelines issued by the Supreme Court in Prakash Singh case to set up Police Complaints Authority to keep in check the abuse of power by the police officer.
It can be concluded that even though there are certain provisions which already exist in our laws for an independent enquiry in cases of custodial deaths but they are not enough to contain this evil. Until an independent watchdog institution is established to keep in check the abuse of power of the police, strict anti-torture laws are implemented successfully and a sense of professionalism instead of a sense of superiority prevails in the general minds of policemen, the problem of custodial torture doesn't seem to getaway. As long as people are forced to go to the police to lodge complaints about the misbehaviour about the police itself, such incidents will remain unreported and justice will still be a rosy dream for the victims.
Views are personal.
(The authors are students of LL.B at Campus Law Centre, Faculty of Law, University of Delhi,They can be contacted at jasiraftab@outlook.com and khannausheen1998@gmail.com)
Refrences
[1] National Human rights Commission India, 'Annual Report, 2017-2018'
< https://nhrc.nic.in/sites/default/files/NHRC_AR_EN_2017-2018.pdf>
[3]<https://www.telegraphindia.com/india/uttar-pradesh-police-accused-of-stripping-cleric/cid/1731127>
[4] < https://thewire.in/law/unnao-rape-case-sengar-father >
[7] < https://www.ndtv.com/india-news/police-sub-inspector-gets-4-years-in-jail-for-assaulting-abusing-dalit-man-1842884 >,<https://www.deccanherald.com/national/north-and-central/activists-in-uttar-pradesh-police-custody-faced-communal-casteist-slurs-794875.html >
[9] < https://www.tribuneindia.com/2008/20080628/nation.htm#3 >
[10] (1991) 1 SCC 416
[11] (2014) 2 SCC 1
[12] (2008) 8 SCC 131
[13] (2016) 12 SCC 87
[14] (1990) 1 SCC 442
[15] (1993) 2 SCC 746
[16] (2006) 3 SCC 178
[17] (2006) 8 SCC 1
[18] < https://main.sci.gov.in/supremecourt/2018/34505/34505_2018_14_1501_16639_Judgement_05-Sep-2019.pdf >