Upholding the Law or Transgressing it: Analyzing the Role of Men in Khakhi in Custodial Torture
Abstract: The article aims to study the present scenario of Police Torture in India with the help of statistics and the steps taken by the government to curb it. It also analyses the judgements of Supreme Court on the regulation of Police and the need of democratic policing. Finally, it suggests some measures to bring reforms in the police administration and make it more transparent.
Keywords: Custodial Torture, Police Abuse, Misuse of Power, Human Rights
“India can only boast of rule of law when those charged with enforcing it are held accountable.” – Meenakshi Ganguly
The responsibility of the police force in a society is not only to uphold the law and maintain public order, but to serve the mankind and protect the innocent against deception. But what happens when the protector becomes the oppressor? The horrifying and gruesome reality of police brutality manifests itself too many times in India. We find that several cases of police torture have hit the headlines of newspapers and news channels, such as the case of torture of the father-son duo in Thoothukudi district of Tamil Nadu which sparked the debate of police brutality and custodial deaths and led to massive outrage on social media. Incidents like these not only challenge the integrity and ethics of the institution of Police but also the trust for law enforcement bodies instilled in the general populace. The question arises: Who will police the police?
A History of Police Torture
India: Annual Report on Torture 2019 by National Campaign Against Torture (NCAT) brings forward a worrying picture of custodial torture. According to the report, a total of 1,731 persons died in custody during 2019, i.e., an average of five deaths per day. Out of these, 125 deaths happen in police custody. A bigger concern is that the primary cause of death is torture or foul play (74.4%) with other reasons being suspicious circumstances such as suspected suicide, illness etc. According to the Crimes in India-2019 Report, the National Crime Records Bureau stated that a total of 83 cases of custodial deaths were reported but no police personnel was charge sheeted nor were any convictions made at the year’s end. The answer to this conundrum can be traced back to the case of Gauri Shankar Sharma v. State of UP, where the Supreme Court observed the difficulty in securing evidence against the policemen responsible for third degree treatment in cases of custodial deaths. This is because the police station records are not difficult to manipulate as the policemen themselves are in-charge of the same.
Position of India so far: A half-hearted interest to prevent torture
Justice Ismail Commission[i] submitted its report to the parliament in 1978 and extensively studied police brutality inside jails and found the ruthless treatment of prisoners began right from the moment they were brought in. The report recommended improvements in jail conditions but decades later, police brutality is still prevalent. Further in 2000, Padmanabhaia Commission studied the intricacies of Police administration and recognized the lack of transparency and accountability in the system, growing political influence and control on police and need of an independent statutory authority to redress the complaints of the victims of Police abuse.
In 2010, the Prevention of Torture Bill was introduced in the parliament but was sent to the select committee due to its weak provisions. The select committee draft was presented in the Rajya Sabha but it has been stuck there ever since. It is also a matter of concern that India has still not ratified the 1987 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The UNCAT encourages States to develop laws, policies, practices and mechanisms that conform to their own unique context and character to absolutely prohibit torture. Such inaction reflects the government’s unwillingness to commit to strict and accountable mechanisms against police brutality and its denial to accept torture as a specific crime. The Law Commission of India, in its 273rd report recommended that the government should ratify the UNCAT, but the customary practice is to first bring a domestic legislation before ratifying the treaty. To give expression to the UN Torture Convention, the Law Commission proposed Prevention of Torture Bill 2017 recommending amendments in certain provisions of the Criminal Procedure Code (CrPC) and the Indian Evidence Act and stringent punishment extending up to life imprisonment to curb instances of torture by government officials. It has provisions related to compensation of victims of such torture as well, where the Court decides such compensation taking into account the facts of the case. However, most states remained silent on punishing public servants for torture and only 4 states conveyed their acceptance of the draft bill.
During the 3rd Universal Periodic Review of the United Nations Human Rights Council, India merely mentioned the ongoing examination conducted by its Law Commission to bring changes in its domestic laws before ratification, with no mention of any anti-torture Bill. In the same review, Mukul Rohatgi claimed that “the concept of torture is completely alien to the Indian culture and has no place in the governance of the nation.” However, India has failed to take steps to fulfil the recommendations made by 17 countries in the previous UPR cycle. The report of Human Rights Watch asserting that torture is frequently used as a tool to gather information and coerce confessions makes a mockery of the statement made by the then Attorney General of India.
Taking a step further, the Supreme court in the landmark case of D. K. Basu v. State of West Bengal, provided guidelines to prevent custodial abuse. The rules mandate that the police must identify themselves clearly when making an arrest; not resort to third-degree methods on accused during investigation and interrogation; prepare a memo of arrest at the time of arrest and such memo shall be signed by at least one witness; inform the next kin about the arrest and place of detention. After being taken into custody, the arrested persons should be medically examined with the doctor listing any pre-existing injuries—any new injuries will point to abuse in police custody.
Another important check on police abuse is the requirement that every arrested person must be produced before a magistrate within 24 hours. However, more than two decades have passed but the Police often bypass these guidelines which have since been incorporated into the Code of Criminal Procedure, set out to curb custodial torture. A Sub-Inspector of Police in Uttar Pradesh went on to say that it is not practical to follow the guidelines set out in the case of D. K. Basu and are applicable only in an ideal society.
While extending the jail term of nine Maharashtra Policemen from three to seven years, Justice N. V. Ramana, in the case of Yashwant vs The State of Maharashtra begins his judgement with the famous quote ‘With great power comes great responsibility’, emphasizing the need to recognise the concept of 'democratic policing'. The quote simply means to not succumb to corrupt forces. The Supreme Court stressed on the fact that the administrators of criminal law not only have a duty towards the individual accused before them but towards the state and community at large as well and that such incidents involving police usually tend to erode the confidence of people in our criminal justice system.
On one hand, the state actors are not ready to accept the existence of torture and on the other hand, there is normalization of any kind of treatment of the citizens in order to gather information or obtain confessions in the society. The denial of torture and delaying the enactment of an anti-torture legislation is a serious miscarriage of justice to the victims of police abuse and encourage a ‘Rakshak-Bhakshak’ situation. Ratifying and committing to the UNCAT is definitely not the only solution to the problem of custodial torture but it will pave the way forward for a country which has witnessed frequent misconduct and misuse of power by its very law enforcement agency. The convention can prove to be a turning point for India to deter custodial torture.
The society has several stakeholders. The government, the judiciary and the law enforcement body are all part of it. Hence, they owe a duty to society and to the public in general. The government, a fundamental part of society, needs to ensure that the existing laws on arrest and detention and the guidelines prescribed by the Supreme Court in the DK Basu case are properly enforced. The government should also form an independent task force specifically for protection of families of victims of custodial killings from police under the aegis of human rights. This can help in monitoring and investigating such brutal incidents. Second, the judiciary shall look into the laws and policies which have become outdated and extensively review them in order to make them more relevant in the present situation. Cases of police torture shall be dealt by fast-track court for speedy justice. Thirdly and most importantly, there is an urgent need to replace fear with confidence in the Men in Khaki. This can be done by instilling and strengthening the concept of ‘equality’ in the officers and prevent such brutal acts emerging out of casteism, racism, religious discrimination and patriarchy. For this purpose, a proper human rights training should be encouraged by the state and central government at all levels before the appointment of the officer.
If we want to call ourselves the land of Gautam Buddha, we need to follow the principles established by him, one of which is the ‘Respect of life’. It is time for the world’s largest democracy to question its criminal justice system which has turned a deaf ear to injustice in a form of custodial torture. Guarantee of equality and justice must not remain only on paper, it should become a reality too.
[i] Jail Brutality: Ismail Commission's Indictment, 13 E.P.W., 676- 678 (1978).
This piece has been authored by Jesika Somani.
Jesika Somani is a 2nd year student at Institute of Law, Nirma University. She takes immense pride in her culture and heritage. Her interests majorly lie in Public International Law, Criminal Law and Dispute Resolution.