By Dr S. Saraswathi
The UN Secretary-General Antonio Guterres has expressed that every death in police custody with signs of torture should be investigated as a principle. The South Asia Director of Human Rights Watch has said that it is important for authorities in India to embark upon robust efforts “to ensure police reform, accountability, and putting an end to the culture of immunity”. The observations are not made in vacuum, but provoked by police action in crimes.
Two incidents in quick succession – one in Tamil Nadu in a place notorious for custodial violence and the other in Uttar Pradesh – involving police handling of accused person(s) in their custody have rocked the entire nation so severely that people even forgot the state of COVID-19 pandemic in the country for some time. The first related to the death of a father and son in police custody for interrogation and the other to encounter killing of an arrested person. The TN case is entrusted to an eight-member CBI team for investigation.
“Everything has been said already, but as no one listens, we must always begin again” – A quotation in the Malimath Committee Report on Reforms of Criminal Justice System 2003, taken from the French thinker Andreu Gide, is equally applicable to police reforms also. We have been at it for several years, but still have a long way to go.
Tamil Nadu case apparently arising from a minor offence of violation of lockdown rule on closing time of shops led to arrest of two shop owners – father and son — and shutting them in police lock-up. The allegation is about merciless torture of the traders in police custody to the extent of causing their death. The irony is that the incident happened close to the International Day in Support of Victims of Torture observed on June 26.
It certainly needs a probe into the details of the incident, the background of the incident, the behaviour of the victims, and the methods used by the police in dealing with persons in their custody for interrogation as the offence in this case is not grave by any stretch of imagination to require excessive use of police force. It is reported that a group of agitated inmates of the district prison attacked the police personnel who were arrested on charges of committing torture. The UP case is a clear case of police encounter said to be necessitated by murder of eight cops by the accused and his attempt to escape.
It is for the government and legal and judicial authorities to deal with the cases. They will do it with reference to existing laws and regulations and prescribed procedures. For the society, more important is the criminal law and procedure and the role, responsibility, and authority of the police including methods of investigation and treatment of the accused and witnesses. Ordinary citizens do not generally maintain close and friendly relations with police personnel and keep them at a distance, and are aware that police is a very powerful agency and plays a role in their orderly and peaceful normal life.
Union Home Minister Amit Shah has categorically asserted a few days back that the age of third degree torture is over. He had been saying that the Central government has “zero tolerance on custodial deaths, extra-judicial deaths, and police atrocities”. He has suggested amending the criminal justice system. The Law Commission has also stated that tolerance of police atrocities amounts to acceptance of systematic subversion and erosion of rule of law.
Third degree method is a term used to refer to police excesses in interrogating an accused. Specifically, it denotes use of coercion, threats, and often physical/mental torture to extract a confession or information from an accused.
A Member of Parliament has now pointed out to the Home Minister that during 2019, the National Human Rights Commission recorded 1,723 cases of death of persons in judicial and police custody across the country. Though there could be many reasons for death, the number, if accurate is a cause for concern and remedial action. NHRC has registered over 400 cases of alleged death in police custody and over 5,000 cases of death in judicial custody. The MP has also referred to an analysis by the National Convention Against Torture for the period 2005-2018 which revealed that of the 500 deaths in police custody, only 281 cases were registered and 54 policemen were charge-sheeted and no one has been convicted.
The UN Convention Against Torture was adopted by the UN General Assembly on 10 December 1984 and came into force in 1987. India became a signatory in 1997, but has not yet ratified the Convention by a comprehensive law. By June 2020, the Convention had 170 State parties. Prohibition of torture has long been established as a universal code or jus cogens that all countries have agreed to abide by. Anti-torture is now accepted as a principle of customary international law and an extraditable offence. The Committee Against Torture (CAT) is a body of human rights experts that monitors implementation of the Convention by State parties.
To ratify the convention, the Prevention of Torture Bill was introduced in the Lok Sabha in May 2010 and sent to Select Committee by Rajya Sabha, but it lapsed with the dissolution of the Lok Sabha. Its main provision was to make torture a punishable offence. It defined torture as “grievous hurt” or causing “danger to life, limb or health”. The Bill was again brought in the Lok Sabha in 2017 and 2018 as a Private Member’s Bill, but could not be passed due to dissolution of the Lok Sabha in 2019. Some MPs are now demanding promulgation of an ordinance to curb custodial violence and police brutality.
However, custodial violence is an age-old practice. As our ideas of human rights expand and penal actions get modified with reformist ideals, we become more sensitive to treatment of criminals and suspected offenders and demand humane treatment of even hardened criminals. We shudder at the very word “torture” which has become “synonymous with the darker side of the human civilization” as observed by the Supreme Court. Therefore, persons in police and judicial custody for interrogation in connection with a crime deserve certain rights in accordance with the basic principle that unless and until the guilt is proved, a person is deemed to be not guilty.
There are several provisions already written into the IPC, (Sections 330, 331, 348), Indian Evidence Act (Sections 25 and 26), Criminal Procedure Code (Sections 76), and the Police Act (Section 29) to curb police violence.
Under NHRC Guidelines of 1993, every incidence of custodial death or rape must be reported to the Commission by the concerned State within 24 hours, and should be followed by post-mortem report, a video report, and a magisterial enquiry.
Ultimately, the question seems to centre on civilized treatment of persons in police custody. Will it work in a climate of day-by-day increase in crimes, newer and sophisticated forms of crimes, and criminalization corroding every activity? In any case, rule of law and adherence to limits of power must pervade police reforms.
The author is Former Director, ICSSR, New Delhi
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