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When Savior Becomes The Abuser

Karan S. Thukral
9 July 2021 4:40 AM GMT
When Savior Becomes The Abuser
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"If I find the constitution being misused, I shall be the first to burn it." By saying this, the father of Indian constitution Baba saheb Dr. Bhim Rao Ambedkar assured each and every citizen of India that their fundamental rights, guaranteed by the constitution embodied in Part III, will not be violated and misused by any one in any manner. India, being the largest democracy, has a...

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"If I find the constitution being misused, I shall be the first to burn it."

By saying this, the father of Indian constitution Baba saheb Dr. Bhim Rao Ambedkar assured each and every citizen of India that their fundamental rights, guaranteed by the constitution embodied in Part III, will not be violated and misused by any one in any manner. India, being the largest democracy, has a document called the Indian constitution, which ties the government to one end and its citizens to the other end and is protected by the body called judiciary. Indian constitution is considered to be the best constitution of the world and a beautifully drafted rule book which bounds every citizen to follow the rules laid down in it. However, one of the most important rights under Article 21 of the Indian constitution, "Right to life and liberty", seems to be in danger and is being violated by none other than the law enforcement agencies itself, such as police.

As children we were being taught that the police is duty bound to maintain law and order in the country and are considered to be the protector of the citizens but the recent proliferation of custodial deaths points the campus in the direction where police is being the violators of law in many instances. This shows a complete different side of police one could never have imagined in their wildest dreams. Many cases have been registered against the police personnel for human right violations across the country during 2018 involving encounter killings, Custodial deaths, illegal detention, torture, causing hurt etc. But the irony is, that no convention could have been secured at the end of 2018. So now the question that remains unanswered is-why no action has been taken against the police officers responsible for the deaths or tortures suffered by the victims? Are their lives not protected under Article 21?

The answer to the last question is a giant yes, every single life is precious and falls under Article 21. As the name itself suggests the meaning, custodial death means death of a person in the custody of the police. Custody can be classified under two categories, police custody and judicial custody. Violence and torture by the police in lockup which leads to death of a person in jail is termed as custodial death. Death in the police custody raises many eyebrows. However, the police in most of the cases try to shape and claim such incidents of custodial death as suicide. This is the reason why many cases of these custodial deaths remain hidden under the cloak of corruption and are not brought to the notice of public at large.

The National Human Rights Commission (NHRC) of India recorded a total of 1,723 cases of custodial deaths across the country from January to December 2019. These include 93.2% deaths in judicial custody and 6.7% deaths in police custody which also means an average of five deaths daily. Data suggests that the primary reason of custodial deaths is torture inflicted by the police officers. A very famous saying that "With great power comes greater responsibility" goes on to indicate that no doubt police has power to make an arrest and detain a person on receiving information regarding the commission of any offence, but torturing a person to the extent that results in death is clearly an inhumane behavior and also accounts to violation of human rights. It seems as if some officers have forgone their humanity, let alone responsibility.

What is more shocking is the methods of torture used by the police. Methods used by police to torture the detainees involves kicking with boots, beating with sticks, pulling hair etc. Apart from these, there are other ways to perpetrate torture such as hammering iron nails on the body, applying roller on legs and burning, stretching legs apart in opposite side, pouring petrol and applying chili powder in private parts, kicking in abdomen of pregnant women, forcing to perform oral sex, beating after stripping are just a few examples that are horrific but routine acts of cruelty.

A critical question that comes in the mind when you start discussing this topic is why, why a human behaves this way with another human? What is the reason behind this inhumane behavior and torture of the police? There are many reasons why arrested persons are being tortured in custody. According to the report by NCAT several cases involve using torture as a medium to extract confession from the person. Another reason being extraction of money/bribe from the detainees or their relatives. Over the past few years we have seen cases of Police brutality which have sent shockwaves across the country and the globe.

A terrible incident that happened this year in July aroused the public concern about the custodial deaths and treatment of detainees in police custody. Tamil Nadu's Tuticorin district has witnessed death of a 58 year old man and his 31 year old son in the custody of the police at a time when the whole nation was dealing with the pandemic and consequently many states of India were in lockdown. Both were taken into custody for violating covid-19 curfew hours. They died four days later, raising serious questions on the conduct of the police and demands for the justice. The fact that two men walked alive into a police station came outside as dead bodies, raises some serious suspicions. There was no single witness, CCTV footage or any other evidence found which could tell what happened inside the police station. By the time the high court took the suo moto cognizance of the deaths and Kovilpatti judicial magistrate visited the station for inquest, at least 10 days had been gone by. Meanwhile the police station was under the full control of police.

Indian Annual Report on Torture 2019 from National Commission Against Torture (NCAT) shows that out of total police custody deaths, 74.4% persons died during police custody due to alleged torture, foul play, while 19.2% persons died under suspicious circumstances in which police claimed 12.8% persons committed suicide, 5.6% died due to illness, 1 died of injuries received after he slipped in the bathroom and reason for the death of 5 persons was unknown.

Another important fact in the line is that 60% victims of police custody death belonged to the poor and marginalized communities thereby depicting their ratio pertaining to this state of society being subjected to Police's violence. They have been victimized because of their socio-economic status and the records indicate that the police emphasizes on destroying the incriminating evidence of torture. The worst part is many states do not order required inquiries in custodial deaths and in-fact try to conceal the cases. We live in a world which not only turns a blind eye to these cruelties but condones it whether through indifference or legislation.

Latest unfortunate instances, not only in India but across the world indicate that this problem is not prevalent in our nation only. Not only in India but also in other parts of the world, brutality of the police can be clearly seen from a far distance point. Recent case of custodial death in America broke the protest not just within the USA but also all around the world resulting in the trend "All lives matter" over the social media. A 46 year old African American man was killed in Minneapolis, Minnesota, while being arrested for allegedly using a counterfeit bill. He was taken into the custody on the complaint of a store employee. After arrest he seemed to be cooperative with the police, continuously apologizing, however officers didn't leave him and kneeled on his neck while he was pinned to the floor. Mr. Floyd said more than 20 times that he could not breathe as he was restrained by the officers. Many protests broke out in the streets of America and other 40 nations.

Custodial death is considered to be the cruelest form of human right violation. It is forbidden by the Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC), and the United Nations. But police keeps on defying them. Maintaining the balance between need of law enforcement and protection from oppression and injustice at the hands of law enforcement agencies is a need of the hour. 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 (Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260).

Hon'ble Supreme Court has time again interpreted that certain rights such as right to free and speedy trial, right to free legal aid, right against inhumane treatment by the police, right against handcuffing, etc. are integral part of Article 21. Supreme Court in D.K Basu v State of West Bengal, (1997) 1 SCC 416 also laid down the guidelines that are to be followed at the time of making an arrest. But the leniency in handling these custodial treatment cases is the main reason why police officers do not think twice before treating a human like an animal or sometimes even worse.

The question that arises here is that what can be done to prevent such atrocities? Many times suggestions have been put forth before the hon'ble Supreme Court that prevention of torture act, a separate legislation to deal with inhumane treatment in custody by the police should be brought up. The Prevention of Torture Bill introduced by the Minister for Home Affairs makes torture a punishable offence. This bill gives a clear definition of torture and prescribes conditions under which torture is punishable.

This bill seeks to provide punishment for the torture done by the government officials or with their consent and defines torture as grievous hurt, or danger to life, limb and health. Under this bill complaint of torture should be made within six months and requires the sanction of appropriate government, before filling a complaint in the Court. These aforementioned provisions give a clear picture how this bill can be of a great use and can be a useful weapon, in order to deal properly with the bad and inhumane treatment of police towards the person in the custody, if passed. According to the 23rd Report of the Law Commission- this prevention of torture bill, 2010 will ensure that in case a person in police custody sustains injuries it shall be presumed that those injuries have been inflicted by the police and the burden of proof shall lie upon the authority concerned. Basically according to this report if anything happens to a person in police custody, police shall be held liable.

But why do we need a special law relating to torture? Don't we have existing laws to govern custodial torture and death and hold the police liable? The Bill states that grievous hurt or danger to life, limb or health has to be inflicted intentionally but intention is not mentioned under Indian Penal Code, 1860. Under IPC no requirement of proving intention is mentioned. The inadequacy of existing national laws including IPC is the reason why the government of India passed the Prevention of Torture Bill 2010, in the Lok Sabha. However the said bill lapsed before finding its position as a legislation in India. This bill yet again, met the same fate in the year 2017. Even though the complaints made in such cases are dealt by the same police department, however complete efforts are put in to check its veracity. Yet, due to lack of evidence or institutional bias included, there still remains a certain level of doubt in the minds of people about the effectiveness of such investigations. Thus, the object of such departments remain unachieved. It is high time for the government to pitch in and bring about reforms and adequate laws to deal with cases involving custodial violence and equal treatment of prisoners. 



About the Author: 

Karan S. Thukral is a good strategist and has excellent reputation in NRI Laws, specifically matter relating to Inter-Country laws and regulations. He has worked amongst international clients and legal peers for many years. He is excellent in dispute resolution on all litigations and international matters. He is renowned for his expertise in constitutional law matters as well which include writ petitions against the government and various other statutory departments. Karan S. Thukral is also considered a dominant presence for matters related to international laws, inheritance disputes and inter-country family law matters.

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