Custodial violation of human rights by police: A legal analysis
“No one can truly know his nation until one has been inside the jail. A nation should not be judged by how it treats its highest citizen but its lowest ones” – Nelson Mandela
Custodial death is nothing but it is death of a person or individual when he is detained or he is under the custody of police officials. It is the most heinous crime in the civilized society. It is a flagrant violation of human rights and dignity. It strikes at the very roots of the rule of law.
There are the various incidents have brought into sharp focus the way Indian policemen torture and interrogate in their custody which leads to death of a person. The policemen is merely responsible of deaths and they are rarely get punished, they feel emboldened to continue using torture as a tool to getting the truth form the accused. So this violence by the police officials collectively reminded us that we need to keep police in check, and that we must not tolerate such abuse of police powers while lamenting the lack of “ rule of law ” in our society.
According to the National Office of Criminal Records. In recent years, the number of deaths among detainees has increased. They went from 92 in 2016 to 100 in 2017, an increase of 9%. We must be careful not to confuse our reaction in this case with some kind of commitment to the rule of law and due process. Our records of public and legal conversations about torture and accountability present a very different picture. In the past three years, the Indian National Human Rights Commission (NHRC) has received almost 5,300 complaints about deaths in custody (police and prison), and we can be sure that this is only a small fraction of the actual number of such deaths. . If it is difficult to report such deaths, then the legal process of investigation, prosecution and accountability will face further obstacles. This is clear from the following facts: although government data recorded that 1,727 people died in police custody between 2000 and 2018, almost 28 policemen were convicted. In a country where torture and murder in prison is an open secret, it is puzzling that we still have an internal law that allows the prosecution of torture considering the peculiarities of torture in prison. In this sense, we continue to fight against the inequality of our conventional criminal law. Official data also recognize that police torture is a reality, but the quality of this data is always doubtful. Over the years, compelling cases found in reports from non-governmental organizations and observers (including the Asian Center for Human Rights, Amnesty International, and the People's League for Democratic Rights) better illustrate the prevalence of police torture.
Endemic to Police culture
Recently, we have seen in the news that the gruesome deaths of P.jayaraj and j benicks. A father and son in a small town in thoothukudi. Jayaraj, 58 was arrested by the police on the violation of the lockdown norms, after they were taken into the custody, the two were viciously threshed to death.
Being found guilty of the offence of keeping a shop open during the lockdown would have ordinarily granted Jayaraj and Benicks a maximum of only three months of imprisonment and fine. The story, sadly, does not end with the police alone. Before the two men died the police sought their remand, which a judge sitting in the court complex mechanically seems to have granted, without ever seen to the two men or seeming to question the rationale of their remand. The series of event, starting with the cruel lockdown enforcement methods and concluding with the utterly gruesome and entirely avoidable deaths, is a sign that we are living with completely broken system of law enforcement where no accountability of the officials.
Not even in the Tamil Nadu, Pradeep Tomar a resident of Uttar Pradesh was called to the police station for questioning in connection with a murder case. He died hours later after the policemen allegedly assaulted him. He was accompanied by his son to the police station who claimed that Tomar was repeatedly kicked, punched, hit with planks of wood, and pierced with screwdriver.
Torture is a fact, an integral part of the police culture all over the country. Indeed, it would not be quite right to argue that this culture in India today is redolent of the brutality of the colonial hangover of the police forces that we are so keen to forget.
The data on torture show that it is not only an integral part of the India’s police culture; in some investigation such as terror cases it is treated as centerpiece. The fact is that the current laws facilitate that torture, such as through the admissibility of confessions as evidence under the terrorist and Disruptive Activities act and the prevention of terrorism act because under the terrorism activities the statement made by an accused during investigation amounts to confession , which continues refurbished as the Maharashtra control of Organized crime act.
What same have labelled as India’s “public secret” is tiptoed around in the international arena. The official position on state-sponsored or state-endorsed torture can be seen in a quote by India’s then attorney general. In his opening speech in Geneva Switzerland at the country’s universal periodic review at the united nation human rights council, the attorney general invoked Gandhi and Buddha, stating that “ India… believe in peace, non- violence and upholding the human dignity. As such, torture is completely alien to the country and it has no place in the governance of the nation”. This would be textbook example of hypocrisy, if ever.
Undoubtedly, the offending officers in the thoothukudi are being prosecuted and some compensation would also be paid to the victim’s family. But such piecemeal action is not we needed.
Role of judiciary
The brutal violence by state actors is a cruel reminder of just how little unshackling has happed in the ambit of policing to free this essential public sphere from the demons of its heritage and become an active participant in sustaining a democratic polity and not a colony. Policing is comes under the state subject under schedule 7 of the Indian constitution so the primary responsibility of prevention, detention, registration and investigation lies with the state government. Most of the states in India have their own separate legislature dealing with control of police. As we know, when the conversation sheers in this direction it becomes natural to look towards the judiciary it is the final hope and action, and it is unsurprising to know that the Madurai bench of madras high court has taken notice to the thoothkudi violence on its own.
The madras high court acted in the best traditions of the constitutional courts in india, which have often passed various guidelines or directions in order to tackle the problems of the police violence.so much so that the scholars have called the supreme court of India as the only institution working towards the police reforms. This claim largely comes from the top’s court interventions in the 1990s through cases such as Joginder kumar vs state of U.P (AIR 1994 SC 1349) and D.K Basu vs State of West Bengal (1997), where the Supreme Court laid down guidelines in order to secure two rights of any state action- A right to life and A right to know. Through the guidelines, the court sought to curb the power of the arrest as well as the accused must be aware of his ground of arrest and also convey this to his friends and family immediately in the event of being taken in custody. It took decade, in form of amendment as the code of criminal procedure (amendment) Act, 2008 to give statutory backing to the guidelines.
The supreme court went even further, and perhaps too far, in the case of Prakash Singh vs Union of India (2006 SSC 1), where further it push through new legislation for governing the police forces to be passes by states across India. A key component of new legislation was robust setup of policing accountability that contemplated a grievance redressal mechanism. That it took reportedly 11 years for the state of Tamil Nadu to actually implement the Prakash Singh case guidelines and several state remains in contempt of court of the Supreme Court judgement, give some insights into how seriously the issue of police reform ranks in the scheme of things of government.
Judicial concern with police violence is also witnessed in the different manner – judicial support for “Scientific” investigations. The support and fascination for techniques such as narco analysis ensuring video recording of the investigations, passing order for installing closed circuit television cameras inside the police stations, all comes from a place of grudging acceptance by the courts about how often police employ physicality to obtain evidence. Through technology, with the hope of reducing need of interacting the with body as a source of evidence, and to gradually delegitimize and dismantle a set of archaic practice reliant upon use of force as a means to extract the “truth”.
In the Case of Raghbir Singh vs state of Haryana (1980), the court held that “ the court is deeply disturbed by the diabolical recurrence of police brutality scare in the mind of the common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death “
These ideas were revisited in Shella Barse vs state of Maharashtra (1987), where the court condemned cruelty and torture as violation of article 21 of the Indian constitution state right to life and personal liberty. This interpretation of the article 21 is consisting the principles contained in the UNCAT. The UNCAT aims to prevent the torture against the accused and other cruel or unhuman acts by the police officials.
In fact India also had signed the united nation convention against torture (UNCAT) in 1997, it is yet to ratify it. In 2010, a weak prevention of the torture bill was passed by the Lok Sabha, and the Rajya Sabha later sent it to a select committee for review in alignment with the UNCAT. But the committee’s recommended law, submitted in 2012, never implement. Former union minister of law also sought the ratifying of a torture law via a Supreme Court petition. By 2017 the law commission has submitted its 273th report and an accompanying draft torture law but the supreme court dismissed the petition on the ground of that this is a policy decision matter it does not comes under the ambit of judiciary.
Constitutional courts have seemingly to change our reality of police brutality for well over two decades. Yet, we are still here with some recommendations, According to a data India recorded 5 custodial deaths in a day. As we know in several cases Supreme Court passes guidelines but it has been proven to be a failure. The Supreme Court laid down many measure to prevent torture and fix accountability but judgements rarely followed. Even legislature is suffering from the same fate.
There are the reasons behind why judiciary is commonly called as weakest branch. The gap between the highest court and the lowly police officer has to be filled up study shows that despite the fact that several criminal laws being stuck down as unconstitutional, they are continue to be enforced by the police officials in various parts of the country. Instead of passing only guidelines the courts must contend with the concrete cases that come their way and expose how hard it is for a common man to get justice in this country, either though compensation or prosecution.
Is there any need of anti-torture law?
Neither the home ministry nor the government is taken any step for a separate anti torture law. Is is evident that the all government enjoyed the status quo, where the police is used for the Self Preservation. So it is relevant to examine whether existing laws are sufficient or not for dealing with these kinds of incidents.
Torture does not defined in the Indian penal code but the definition of hurt and grievous hurt are defined followed by section 319 and 320 respectively but it is pertinent to mention the mental torture does not include in the hurt definition, Indian courts only physical torture, overbearing etc. in the domain of torture. Voluntarily causing hurt and grievous hurt to extort confessions are also provided in the Indian penal code. According to the section of Code of criminal procedure the judicial magistrate shall inquires into every custodial death.
A draft to the prevention of torture bill was presented for seeking the suggestions from various stakeholders. The bill was vague as well as very harsh for the police officials. It was inconsistent with the present provisions of the statute. It included prolonged pain as from of torture but torture was left undefined. The quantum of punishment was harsh. The bill was also contained the death penalty provision despite the fact that law commission report suggested the abolition of death penalty except in cases with are related to the terror activities. Though most of the countries are abolished death penalty and India enact fresh legislation with the death penalty which shows passive mindset towards the human life.
The legislation also denial the anticipatory bail to any person or police official who are indulged in the torture or custodial death. The bail can be refused in appropriate cases, but excluding an investigating officer, struggling every day to meet the challenges to the heinous crimes, form availing such an opportunity shall be no less than putting him on the pedestal of mistrust. Overall, the bill was vague and harsh in the nature.
Therefore, the root cause is first we have to implement the laws we have there as various reforms required in the IPC, Crpc and evidence. After reforming the existing laws then we should think about the separate legislature.
Why the issue persists?
The police has a key role in the administration of justice. One of the reasons behind this is that the police thinks that they can manipulate the evidence as the probe in their prerogative and with such manipulative evidence, they feel they can hide the truth.
There is lack of accountability in the police system which reflects failure of government to keep checks on the police officials. There are the various committees had been set up for police reforms but they are hardly implement because as we previously discuss policing is the state subject.
Close nexus between the political master and police which help corrupt politician to escape the trial.
There is a huge structural imbalance of power between the police officials and those person who are tortured. The social and economic vulnerability status of the most of the victims affect the chances of justice. In the most of the cases we have seen that FIR is not registered and even the FIR is filed and investigation takes place, since these enquires are carried out by the police officials after the custodial deaths, mostly the result is in the favor of the police.
The committee on the police training in 1971, and the later the national police commission 1977. There are the various problems facing by the police officials these are:
Archaic laws: these are various outdated laws in our country like in IPC,1860, IEA,1872, civil 1908, crpc 1973.
Politicization of police forces: these is very close nexus between the politician and the police forces.
Police misconduct: this occurs while performing the duties.
Rapid socio- economic, political and technological changes.
Poor training and equipment
Lack of tenure and stability
Overburdened and overworked police staff
Lack of promotion and monetary incentives
Lagging behind the cyber security
Poor police welfare– Specially with those who are in the lower rank.
So these are the flaws in the policing system to curb these problems we need excessive man power and adequate equipment.
STRUCTURAL FLAWS IN POLICING
The state and central government hardly allocate around 3% of their budgets for policing and the police forces have around 25% unfilled vacancies about (5.6 lakh vacancies) against the sanctioned strength of 22.8 lakh. These is a lack of adequate man power needed to reduce the overburden and overwork.
The United Nations recommended standard is 222 police per lakh of population and the global average is around 270 police per population but in india’s ratio of 138 police per one lakh of the population one of the lowest in the world.
Committees on police reforms
The objective of the police forces during the colonial era was to dominate the citizens or to create the fear to keep the native under control. There are the various committees have been setup for police reforms in India during 1960’s and 1970’s.
Role of protecting internal security in light of the new threats Prakash Singh case (2006)
The supreme court under article 142 radial of the police act,1861, remove the colonial hangover and gives seven binding directives.
Set up state security commission for political pressure.
Ensure that the DGP is appoint through merit and tenure two years minimum.
Even police officer also provide the tenure for two years.
Separate investigation wing setup for maintain law & order.
Set up police establish board to decide transfer and order headed by DGP.
Police complaint authority at the Centre and state level to enquire complaints.
Set up national security commission at the union level to prepare panel for selection and placement of chief’s.
The government of India appointed a national police commission (NPC) in 1977 under the chairmanship of Dharamvira (senior IAS) to transform the police they submitted eighth reports. After that gore committee also set up in 1971-1973 which was related to police training and suggest improvement.
In the year of 1998 a PIL filed before the Supreme Court to pushed the states to implement the reforms because the Dharamveer committee report almost all state ignored except the state of Karnataka.
JULIO REBEIRO COMMITTEE
The committee establish that it need to install the state committee in each state to supervise the history of the police and verify that the law of land is responsible.
The dissatisfaction of the District Police in the police district is established as a non-legal area to consider an excess of police, arbitrary arrest and detention, etc.
In all states, the Committee on the Police Installation is configured to monitor all the transfer, promotion, rewards and punishments.
The rules must be surrounded by governments that designate by transfer, term, punishment, promotion and compensation, and management of these rules. The departure of these standards and standards is verified by the notification of the State Security Commission.
The state DGP is created for the President of the UPSC, and is selected from the three names of the panels created by the Commission of the Director General of the State Director. Secretary and inculident state DGP.
This selection committee can consult with the Central Avenue Committee (CVC) before creating a panel. DGP has a fixed term of 6 years.
The Antigua Police Act in 1861 should need to replace new police activities, namely the model police law and the model of the 2006 police law.
First we have to implement the Prakash Singh case guidelines in the policing system.
A judicial enquiry should be conducted if the police officer found guilty in any custodial death or torture and maximum punishment as prescribed by law has to be imposed on the police officials.
Scientific techniques should be used for interrogate the techniques have to be used for reduce the custodial deaths.
The time to time training programme should be organized in order to re- educate the police forces and CCTV camera should be install in the prisons in order to monitor the prisoners as well as police senior officers.
The parliament shall bring an anti-torture law as soon as possible for fulfillment the international aspect also because as we know India is signatory of UN convention against torture but failure to ratify this convention.
Creation of a state police board in the chairmanship of state home minister, leader of opposition, chief secretary, home secretary and director general of police.
Accountability paramount shall be establish to hold accountable the police officers. Penalize the police in the nonregistration of FIR and illegal detention.
There shall be amendment in the evidence act which lies burden of proof on the police officer in the custodial death or tortured cases.
A seprate investigation wing should be set up in order to hold police accountable.