Custodial Torture and Custodial Deaths in India
  • 9 October , 2019
  • Uncategorized

CUSTODIAL TORTURE AND CUSTODIAL DEATHS

INTRODUCTION

Nearly all men can stand adversity, but if you want to test a man’s character, give him power.

  • Abraham Lincoln.

Law enforcement officers in India, more commonly known as the Police, are vested with a lot of powers. Along with the powers bestowed upon them they have certain duties as well, the most significant ones being protection of people and property.

During the release of “India Annual Report on Torture 2018” it was stated that during 2018, a total of 1,966 custodial deaths were reported to NHRC.

So, whilst the primary duty of police being protection of people and property, are custodial torture and custodial deaths not evident violation of both the duty of the police and the elemental right of citizens?

Even though section 23 of Police Act 1861 states that a police officer is authorised to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists ; section 29 of the same act states that every police officer who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a magistrate, to a penalty not exceeding three months’ pay, or to imprisonment,with or without hard labour, for a period not exceeding three months, or both.

But is it actually enough?

In our research we shall seek to find solutions / answers for the following problems / questions :

  • What is custodial torture and custodial death? How can they be defined and redefined according to the present scenario in India? What are the causes behind custodial torture and custodial deaths in India?
  • Is the number of custodial deaths and custodial torture increasing ? if so, what is the reason accelerating it?
  • How cancustodial torture and deaths in India be curbed ?

WHAT IS CUSTODIAL TORTURE AND CUSTODIAL DEATHHOW CAN THEY BE DEFINED AND REDEFINED ACCORDING TO THE PRESENT SCENARIO IN INDIA?

According to Cambridge dictionary, custodial in American English refers to having the responsibility of protectingcaring for, or maintaining something or someone. The very same Cambridge dictionary defines torture as the act of injuring someone or making someone suffer in an effort to forcethat person to do or say what you want to be done or said. Therefore the very existence of the word  “custodial torture” is paradoxical. When taking in custody refers to having the responsibility of protecting, caring for or maintaining someone,  to fathom meaning of the word “custodial torture” is not an easy task to accomplish as “torture” has the meaning which is almost opposite to each other.

The word custodial torture includes any injury or harm, be it physical or mental, inflicted upon an individual who is in police custody ; but moreover it is  naked violation of human rights or violation of a citizen’s rights or violation of a nation’s responsibility towards its citizens or even violation of any man’s moral responsibility or duty towards any fellow being or all of the above or even more than what are mentioned before.

Now as we have dealt with the meaning of custodial torture, we shall move on to custodial death.

In Mehboob Batcha and Ors. vs. State rep. by Supdt. of Police (MANU/SC/0260/2011 : 2011 (7) SCC 45), the Hon’ble supreme court , “Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence” [1]

From the above statement, we can clearly understand the opinion of the judiciary on custodial violence, custodial torture and custodial death. The way custodial violence becomes a shame to our country ; violates the rights of citizens ; violates a nation’s responsibility ; becomes a reason for people to loose trust in the ones who are supposed to protect them.

In another case, D.K. Basu vs. State of West Bengal (18.12.1996 – SC) , the court re- emphasised the impact of custodial violence as it is a crime committed by the ones who are supposed to prevent it and protect people from being victims to crime. The supreme court “Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by the persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society.

These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.”[2]

In the same case, the court has tried to give a definition to custodial torture “Torture” has not been defined in the Constitution or in other penal laws. ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture today has become synonymous with the darker side of the human civilisation.Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself -Adriana P. Bartow”[3]

So to conclude with, custodial violence is

  • The misuse of power by police officials
  • Violation of rights of a person both as a human and as a citizen of India.
  • an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering.
  • A crime committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless.
  • one of the worst crimes in a civilized society governed by the rule of law.
  • And a lot more.

ARE THE NUMBER OF CUSTODIAL DEATHS AND CUSTODIAL TORTURE INCREASING IN INDIA ?

As per a report submitted by the Asian centre for human rights in the year 2018 on June 26th of the same year the number of custodial deaths were found to be 1674 in total which included 1530 deaths in judicial custody and the remaining 144 deaths were found in the custody of the police. The time period for these deaths happened to be between 1st April 2017 to 28th February 2018. Based on this report it was estimated that there could have been at least 5 deaths per day in a custody during that period of time.

Custodial deaths are of three types when examined in detail they are as follows death in a police custody, death in judicial custody and death in defence or paramilitary forces custody. Now where all these allegations on these deaths can be questioned is the government because police and also the order of public are governed by the state government.

One such place in India where these deaths can be majorly focused is Uttar Pradesh. As per the reports submitted from the time period between January to August of the year 2017 there were 204 custodial deaths. And in the month of February, the following year this number was found to be doubled. The final custodial death reports of other states were found to have 374 in Uttar Pradesh, 137 in Maharashtra, 128 in Punjab, 113 in Madhya Pradesh, 109 in Bihar, 89 in Rajasthan, 61 in Gujarat, 48 in Haryana, 47 in Delhi, 8 in Himachal Pradesh, 4 in Jammu and Kashmir and finally 2 in Chandigarh. This is the count of custodial deaths in the northern part of the country. Whereas the count in the North eastern part of the country were found to be 4 in Meghalaya, 3 in Mizoram, 2 in Manipur and 2 in Nagaland. The least number of custodial deaths does not matter as howsoever least number it is, it has to be noted that these killings were extra judicial.

An another thing to focus is unless the united nations set up a convention against all these tortures there can never be an end to all this custodial deaths. Already the cases of Kim Davy was lost in 1995. This case was mainly of blowing up a place called Purulia in the state of West Bengal by a person named Kim Davy who when captured mentioned that to be a political conspiracy led by the Indian national government which promised him to send him back home if he committed the mentioned crime. Another case was of a person named Sanjiv Chawla, which  proved that unless India ratifies the UNCAT there can never be good treatment in either jails or any custody.   The Asian Centre for human rights also stated that India cannot be expected unless the government focuses on sub judice matters considering this torture like the European countries. Moreover it is the police officials that are violating the human rights of prisoners which are gradually resulting in custodial deaths even after the verdicts of supreme court got passed in the cases like Sunil Batra v Delhi administration and Rama murty vs state of Karnataka.

So from what we could analyse from the already available data, the incidence of custodial violence in India has been increasing, and this trend probably would continue if adequate preventive measures and new legislations to prevent custodial violence are not adopted and implemented satisfactorily.

WHAT ARE THE REASONS ACCELERATING INCIDENCE OF CUSTODIAL DEATHS AND CUSTODIAL TORTURE IN INDIA?

  • through the ideas and opinions discussed below we do not wish/try to defame/ blame/ ashame the govt. / any govt. Officials. We are also not going contrary to any existing provision of law / any law / any policy / method of selection of govt. employees / any law that exists in India. We only seek to bring out our suggestions and ideas which we feel would solve, atleast to a small extent, the existing scenario regarding custodial violence in India.

Coming to reasons for why custodial deaths happen, we feel the following has major role / impact on occurence of custodial violence in India :

  1. Criteria for the selection of police officers in India the criteria which determines the qualification of a police officer in India is basic thing, the recruitment for a police officer be it a constable or sub inspector or a be it any higher officer.

As we explore the basics to get into the police force in India, to qualify in a PSC  the syllabus to be covered is quantitative aptitude, general English,  logical reasoning, general knowledge and finally a regional language test for that particular area a person is applying.

So one basic question that can be arisen is “Are these qualifications enough to judge a person’s character / knowledge and logic to find the real criminal who commited a crime from the list of suspects, which can be quite long at times, but most importantly can these qualifications find out if the person would not misuse the power that is entrusted to him ?

In our opinion, including fields like ethics, psychology, criminology, philosophy etc can make a positive impact on the selection of police officials, which would in turn make the police force more broad minded, ethical and prosocial.

We beleive that this can reduce the incidence of custodial violence to if not large, atleast to some extent.

  1. Resources available to police officials / police force in India.

Resources that the police have are mostly nothing but the lathi and their service gun. Their access to certain facilities or scientific methods like brain mapping, narcoanalysis, hypnosis, etc. are not provided.

Since they do not have access to better / methods, they end up adopting  unethical ways like custodial torture, custodial violence, harassing the accused, etc in order to make him/her make a confession which they desire.

This also happens out of working under pressure of their superior authorities, political authorities, etc.

  1. Ratio of police to citizens in India Government has made it mandatory to maintain a ratio regarding the police and the population in the country which stated that there must be one police officer for every 547 people in the country. But the sufficiency of this ratio can be questioned to a great extent considering the steadily increasing crime rate in our country.
  • An incident took place in  Kerala where a student named Rajan who gave a speech in his college during the visit of the then CM of kerala, K. Karunakaran, to his college in which he said  “kanaka simhasanathiliruppathushunakanoathoshwanano ?” which means ” is the one sitting in the golden throne, a dog or a wise man ” .  From opinions of other students and people who were present in the event, it could be easily understood that the CM’s ego  highly affected and hurt by this statement. It is beleived popularly that later on the CM wanted Rajan to ” pay the price ” for publicaly making such a statement against him and he instructed the police to do something to Rajan which the CM desired.

Later Rajan was accused for an involvement in naxal association and the allegations showed no proofs but he was arrested during a period of emergency on march 1st 1976 by the police of Kerala and the police rolled a log on his body which resulted in his death and then his body was disposed by the police. His body is still not found and therefore his death in custody can still not be proved.

The police officials who acted in this case would probably have no grudge against Rajan but would’ve acted upon political and superior pressure. The above case is only discussed based on popular belief and no proof. Therefore we do not have the authority  about the genuinity of the facts.

but if true, this clearly depicts the effect of political and superior official’s pressure on the officers in the police force.

METHODS TO CURB INCIDENCE OF CUSTODIAL TORTURE AND DEATHS IN INDIA .

  1. Including fields like ethics, psychology, criminology, philosophy etc can make a positive impact on the selection of police officials, which would in turn make the police force more broad minded, ethical and prosocial. this can reduce the incidence of custodial violence to if not large, atleast to some extent.
  2. Increasing the mandatory number of police for every 100 citizens
  3. Providing access to police officials to modern methodologies and scientific ways which would help in investigation of cases like narco analysis, brain mapping etc.
  4. making legislations and implementing both the existing and new legislations which would help in reducing and eventually eradicating the pressure of politicians and higher officials on police officers which would enable them to work more efficiently and reduce the need for use of custodial violence / custodial torture.
  5. Implementing methods in selection of police officials which would enable assessment of the character of the person, which would enhance the police force in overall.
  6. Giving more attention , value and consideration to opinions, recommendations, suggestions, reports etc that are given by organisations like the NHRC.

CONCLUSION

The purpose of the power that is bestowed upon the police officials in India is protection of life and property of the citizens.  Keeping this in mind the misuse of power by police officials, clearly depict the character of the officials,  readiness to take up risk and responsibility and their willingness to take efforts to implement justice.
So, with the same quote with which we began our paper,  ” Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” the reason and the prime cause of custodial violence can be inferred.

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