Custodial Torture

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12 months ago

Custodial Torture

The word ‘custody’ means apprehending someone for protective care. The principal behind arresting the suspect of a crime is to save other people in the society.

Police Custody means, when on the receipt of an information/ complaint/ report by police about a crime, an officer of police arrests the suspect involved in the crime reported, police has the physical custody of the accused. When Police takes a person into custody, the accused is lodged in police station lockup and he/she has to be produced before a Magistrate within 24 hours of the arrest. The magistrate court will either extend the police custody or put him/her into judicial custody. Now this police custody can extend only for first 15 days from arrest, thereafter the accused is sent to judicial custody under the magistrate and then in prison (jail). Under police custody, the police can interrogate the accused, ask questions and even bring witnesses before them but the police cannot interrogate the accused when under judicial custody without taking prior court’s permission.

Overall India has always been a peace loving country but if we look back into history, it has been a violent society. Kautilya’s Arthashastra had a whole chapter titled ‘trial and torture’ to elicit confession describing various ways to torture people and get confessions. Sadly there are cases of police brutality even today. According to the National Human Rights Commission (NHRC) in 2018-19, there were 1,797 deaths in police custody, so around 1800 deaths in a year that means 5 deaths per day. To rephrase, according to NHRC, the law enforcing agencies of our country allegedly murder 5 people every day in a democratic country with an established rule of law out of which only 5% of them are convicted.

Sunil Batra vs. Delhi Administration 1980 AIR 1579, 1980 SCR (2) 557

Sunil Batra was a convict under death sentence lodged at Tihar Central Jail in Delhi. He wrote a letter to a judge of the Supreme Court complaining of a brutal assault by a Head Warden on another prisoner, Prem Chand. This letter was treated as Public Interest Litigation under Article 32 of the Constitution by the Supreme Court. In the letter he mentioned crime of torture practiced upon Prem Chand allegedly as a means to extract money from the victim through his visiting relatives. Prem Chand was kept in a punishment cell similar to the type of insulated confinement condemned in Sunil’s case (AIR 1978 SC 1675). Prem Chand sustained serious and anal injurious because a rod was driven into that sore aperture to inflict inhuman torture. He was removed to the jail hospital and later to the Irwin hospital, but even after discharge he was not taken due care of by the jail authorities.

In regard to this case, a historic step was taken when the then Chief Justice of India, Justice H.N. Beg and Justice Krishna Iyer, themselves visited the prisons and prepared a memo of guidelines on how prisoners should be treated in jail.

Why did the police torture start in the first place?

The police officers claim that they are extremely overworked and have to work in poor infrastructure. In some rural areas a single police station has the jurisdiction of 20 to 30 villages under it, and the chowki is hardly a two-room building making it difficult for the officer to interrogate the suspect in privacy.

Some reports say 80% of police in the country is constabulary i.e. the constables. These are hardly 10th or 12th pass, mostly coming from rural areas or poor socio economic backgrounds and do not have access to higher education. As a substitute to their lack of education, they are not highly trained and sensitized. When they come across the cases of women rape, women rights, transgender people, they have very conservative views.

In the famous Mathura Rape Case – Tukaram & Ors. Vs. State of Maharashtra AIR 1979 SC 185, a girl goes to report to the police station and gets raped in the bathroom by a police man. Due to this case the parliament took a historical step and criminalized ‘Rape by police’ specifically giving us Sec 376 (2) (b) of the IPC. Unfortunately such cases still occur.

National Police Commission Report (NPCR) by Government of India said that the victims & complainants in some cases, force the police to use methods of torture on the accused persons and if they don’t do it they make false allegation of bribery, by filing an application in the court alleging the Investigating Officer of joining hands with the accused.

A possible reason could be the belief that people once arrested or put in jail are bad people and they are asking for whatever is coming their way. Police custody, arrest and investigation, all these procedures are to find the truth, the facts and to deliver justice. None of it is to torture people.

But it is also a part of the mindset to ‘make the process the punishment’. So when the police apprehends someone, they punish the person while they can because of their twisted idea of justice. They believe that the accused shouldn’t be treated nicely because of his deeds (Unproven). This is clearly the police assuming the role of judiciary which is not the very idea of our constitution.

Power to arrest is one thing but the need to arrest is different. A few months ago a father – son duo (Jayraj and Bennex) violated lockdown rules to open the shutter of their shop, the police not only beat them, arrested and brutally tortured them. Although the investigation is still on, what we must think is ‘what information did the police wanted to scoop out from them? ’, ‘what investigation was to be done to find facts? ‘Was there a need of arrest? ‘Think about it.

In D.K.Basu V. State of West Bengal AIR 1997 SC 610, the court gave guidelines that:

It is the right of every person detained or questioned by Police to know the grounds for detention or questioning;
The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention;
Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters.
Policemen must wear visible and legible identification when arresting a
Person and when carrying out interrogation. Names and Particulars of police
personnel handling interrogation must be recorded in the register;

While an accused is in Police custody, his lawyer should be permitted to visit him;

But the harsh reality is that police misuse their powers. They make postdated arrests on record and claim that the injuries on the body of the accused were inflicted before arrest wherein they’re actually beaten up during interrogation of their hidden arrest.

A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person should be recorded in the Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo should be provided to the person arrested;
Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention;

Police officers can easily slip their hands off such procedures due to excessive powers given to them. They are much in unity and often hesitate or refuse to file an FIR against their colleagues or other police men. Somewhere police torture people because they can, because they have the power to.

Smt. Nilabati Behera vs. State of Orissa & Ors. AIR 1993 SC 1960, is yet another case of custodial death where the deceased was taken into police custody and the next day his body was found on the railway tracks with multiple injuries. Many such cases are reported for a while they are investigated and gradually the case files are closed due to no progress.

A sad fact also is that citizens support violence by police.

In Khatri and Others vs. State of Bihar & Others AIR 1981 SC 928, popularly known as Bhagalpur Blinding case, the Bihar police would apprehend criminals and would blind them by pouring acid and using screw drivers for which they received widespread applauses from the public. They called it ‘Twarit Nyay’ (meaning immediate justice).

A similar incident took place a few months ago wherein the accused of Hyderabad rape case were shot dead (encountered). In both these instances the public were feeling happy to get swift justice and therefore they showed widespread support. This support adds to the sense of impurity in the police. When the institution and public supports them they feel that they cannot be taken

down. Only a bunch of influential judges, lawyers and activists are bothered about changing this aspect.

“Justice delayed is justice denied”. A major reason behind this public support is that public wants speedy justice. People are losing faith in the judiciary. However that’s a different topic altogether.

Another reason behind police torture is over – reliance on confessions as a method to establish someone’s guilt. Violence will surely make a person confess a crime which he/she is not guilty of. And over time, that became a very convenient manner. Now our law makers were conscious of this, so when the Indian Evidence Act was drafted, it had Sections 24 to 27 which forbade people to use torture or violence to extort confessions. According to which, confessions made to a police person or while in police custody are not admissible in a court of law or proved against him, they are considered irrelevant.

Not only local citizens but even judges are not spared from police brutality. In Delhi Judicial Service Association v/s State of Gujarat & Ors. AIR 1991 SC 2176, S.R. Sharma, Inspector of Police, arrested, assaulted and handcuffed N.L. Patel, Chief Judicial Magistrate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in the same condition to the Hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat. Inspector S.R. Sharma got the Chief Judicial Magistrate photographed in handcuffs with rope tied around his body along with the constables which were published in the newspapers all over the country. This horrendous incident took place in the town of Nadiad, District Kheda in the State of Gujarat, through which the police undermined the dignity of courts and independence of judiciary. Judicial Officers, Judges and Magistrates all over the country were in a state of shock, insecurity and humiliation. It appeared that instead of Rule of Law there was Police Raj in Gujarat.

Apart from reported cases there are numerous cases that go unreported. The National Crime Reports Bureau (NCRB) under the Ministry of Home Affairs is the only official source of crime data in India. It reports the crimes state wise and offence wise. It follows a principle rule wherein if any offence is covered under a single criminal case and there are two sections attached to it, they will count only the most heinous of offences. So one cannot even imagine from the official statistics what the real number must be.

Stanford Prison Experiment 1971

Under the principal investigator Philip G. Zimbardo, a social psychology study was conducted as an experiment at Stanford University, funded by the U.S. Office of Naval Research, in August 1971. The experiment was intended to measure the effect of role-playing, labeling, and social expectations on behavior over a period of two weeks. College students became prisoners or guards in a simulated prison environment. After receiving a response to their advertisement about a “psychological study of prison life,” the experimenters selected 24 applicants who were judged to be physically and mentally healthy. The paid subjects received $15 a day and were divided randomly into equal numbers of guards and prisoners. Guards were ordered not to physically abuse prisoners and were issued mirrored sunglasses that prevented any eye contact. Prisoners were “arrested” by actual police and handed over to the experimenters in a mock prison in the basement of a campus building. Prisoners were then subjected to indignities that were intended to simulate the environment of a real life prison. Each prisoner was made to wear a “dress” as a uniform and to carry a chain padlocked around one ankle. All the participants were observed and videotaped by the experimenters

On only the second day the prisoners staged a rebellion. Guards then worked out a system of rewards and punishments to manage the prisoners. Within the first four days, three prisoners had become so traumatized that they were released. Over the course of the experiment, some of the guards became cruel and tyrannical, while a number of the prisoners became depressed and disoriented. Zimbardo admitted that during the experiment he had sometimes felt more like a prison superintendent than a research psychologist. He claimed that the experiment’s “social forces and environmental contingencies” had led the guards to behave badly. Mistreatment of prisoners escalated so alarmingly that Zimbardo terminated the experiment after only six days. The British experimenters called the Stanford experiment “a study of what happens when a powerful authority figure (Zimbardo) imposes tyranny.” If this happens when persons (usually local citizens) are predisposed to authoritarianism, then we can imagine what happens to a person who is supported and empowered by the system and public both.

The Supreme Court and various other courts of the country have taken historic steps in this regard and also passed landmark judgments and guidelines. Some of them are mentioned below:

In Mehmood Nayyar Azam v. State of Chhattisgarh AIR 2012 SC 2573, the court concluded that ‘torture’ and ‘injury’ are not just physical but mental and psychological also.

In Khatri and Others vs. State of Bihar & Others AIR 1981 SC 928, popularly known as Bhagalpur Blinding case, it was alleged that the police had blinded certain prisoners depriving them of their right to life and liberty. This was the first case where the question of granting monetary compensation was considered by the Supreme Court.

Followed by which, in another case of Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the court granted monetary compensation of rupees thirty-five thousand to the petitioner against the lawless act of the Bihar Government which kept him in illegal detention for over fourteen years after acquittal.

In Sebastian M. Hongray v. Union of India (1984) 3 SCC 82, due to failure of the Government to produce two persons in the court, who were to be taken into custody by the military had met unnatural death. The Court, in the circumstances, keeping in view the torture, the agony and mental oppression undergone by the wives of the persons directed to be produced, instead of imposing fine on the Government for civil contempt of the Court, issued that the Government must pay rupees one lakh to each one of the aforesaid two women.

The Supreme Court in Peoples’ Union for Democratic Rights v. State of Bihar (1987) 1 SCC 265, laid down the working principle for the payment of compensation to the victims of ruthless and unwarranted police firing. In this case, about twenty one persons including children died and many more were injured due to the unwarranted firing of the police. The Court further added that any just claim for compensation that may be advanced by the relations of the victims who had died or by the injured persons themselves, for every case of death, compensation of rupees twenty thousand and for every injured person compensation of rupees five thousand shall be paid.

However in this case it was suggested that if life and liberty is to have some meaning, then for rehabilitating persons, who are often victims of police atrocities, some larger amount should be paid as compensation. This happened because the working principle was not appropriate. Where the life of the person was lost, his defendants were to be paid only the meagre sum of rupees twenty thousand. The Supreme Court, while evolving the working principles of granting compensation, had also failed to differentiate between the major and minor injury to the limb or body of the person concerned. It appeared that the Court’s evolved the working principle of awarding compensation with the primary object of rehabilitating the victims or their defendants. But it might happen that the person might not die yet due to the police atrocities he might lose his eyes, limb and might become unable to earn his livelihood. The suggested amount of rupees five thousand to such a person was considered to be insufficient to “rehabilitate” him.

In State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373, as the under trial prisoner was handcuffed and, taken through the streets in a procession by the police during investigation the Court held that Article 21 was violated. However, the Court further held that the police officer responsible for the act, acted only as an official and cannot be made personally liable. The Court directed that compensation of Rs.10,000 be paid by the State and authorities may, if consider necessary, hold an enquiry against the police officer and then decide whether any further action is to be taken against him or not.

From all the above mentioned cases, it is submitted that when the complainant is entitled to a compensation for violation of human rights or for physical or mental harassment, then an award of exemplary costs/damages can serve a useful purpose in vindicating the strength of law and promoting and protecting human rights. However, when the Court directs payments of damages/compensation against the State, the ultimate sufferer is the taxpayer, because it is the taxpayer’s money which is paid for the wrong of public official. Therefore, it is suggested that the State should pay the complainant from the public fund but recover the same from those who are responsible for such unpardonable behavior, or the police guards or the local public figures. When such incidents will hurt their pockets, such crimes will definitely be taken seriously and reduced.

Regarding International Law Obligations

Before the World War II, international law majorly dealt with relations between one country and another. After witnessing the World War II, it led to the United Nations formation and developing of International Humanitarian Law. In 1948, after the horrifying scenes of the World War II, the General Assembly sought to include ‘torture’ in the Universal Declaration of Human Rights (Article 5).

The office of the United Nations Human Rights Commissioner says that India has signed 18 Human Rights Conventions out of which it has ratified only 8. For e.g. the Convention of Rights of Persons with Disabilities gave us the Rights of Persons with Disabilities Act of 2016; the Convention of Rights of Child gave us the Juvenile Justice Act of 1974; The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) gave us the Domestic Violence Act of 2005, etc. Many of our domestic legislations and landmark judgments have been guided by International Conventions. For example in the case Vishakha & Ors. Vs. State of Rajasthan & Ors. AIR 1997 SC 3011. The Supreme Court interpreted International Law Conventions and Treaties because India did not have a precise domestic law on sexual harassment.

Among these conventions is the United Nations Convention against Torture (UNCAT), a convention against torture adopted in 1987 that aims to prevent torture and other cruel, inhuman or degrading treatments. India signed the UNCAT in 1997, till 2020 it is yet to be ratified. India is one of the only five countries in the world which has not ratified UNCAT. The other countries being Brunei Darussalam, Comoros and Palau.

When a country ratifies UNCAT it requires to prevent torture by criminalizing acts of torture, enacting domestic legislation, to not allow exceptional circumstantial higher orders to permit torture in proper cases. Basically it forces the country to not torture any of its citizens in any circumstances.

Recommendations by the Law Commission of India

In the 113th Report (1985), the Law Commission recommended the amendment to the Indian Evidence Act, 1872, by inserting section 114B 32 providing that in case of custodial injuries, if there is evidence, the court may presume that injury was caused by the police having the custody of that person during that period.
In the 152nd Report (1994,) the main recommendation of the Commission included amendment of IPC by inserting new provision for punishing the violation of section 160, CrPC. It also recommended amendment of CrPC by adding the provision section 41(1A) for recording the reasons for arrest and to add section 50A to inform the relatives.
In the 177th Report(2001) titled “Law Relating to Arrest”, it was suggested that amendments should be brought in CrPC by inserting section 55A according to which, “It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.”
The 185th Report of the Law Commission (2003) recommended review of the Indian Evidence Act, 1872.
The 268th Report (2017) again suggested amendments to CrPC 1973 (Provisions Relating to Bail), insertion of section 41(1A) and amendment to 41B, Cr. PC requiring the police officer to intimate the rights of the person arrested, for bail and liberalizing the process of bail.

Thus, it may be seen that over the period of time, various Commissions and legal luminaries, in their reports have consistently recommended to have adequate provisions in our statutes to protect the rights of individuals to life and liberty as enshrined in our Constitution.

Looking at the current scenario, its high time that India ratifies UNCAT, appreciate these recommendations and does all the needful to abolish these crimes completely.

References:-

Cases:

Sunil Batra vs. Delhi Administration 1980 AIR 1579, 1980 SCR (2) 557, 1980 SC 1675

Tukaram & Ors. Vs. State of Maharashtra AIR 1979 SC 185

D. K. Basu V. State of West Bengal AIR 1997 SC 610

Smt. Nilabati Behera vs. State of Orissa & Ors. AIR 1993 SC 1960

Khatri and Others vs. State of Bihar & Others AIR 1981 SC 928

Delhi Judicial Service Association v/s State of Gujarat & Ors. AIR 1991 SC 2176

Mehmood Nayyar Azam v. State of Chhattisgarh AIR 2012 SC 2573

Rudul Sah v. State of Bihar, (1983) 4 SCC 141

Sebastian M. Hongray v. Union of India (1984) 3 SCC 82

Peoples’ Union for Democratic Rights v. State of Bihar (1987) 1 SCC 265