|
Much about the moral
fiber of a society can be learned from the way it deals with crime. It is not
enough to treat criminals with as much compassion as we can, especially when
this liberal spirit is carried to the excess of interfering with crime
prevention as the courts have done.
The measure of a
societys stability depends upon the stalwartness, autonomy, and integrity of the
police hierarchy. Ironically the law- enforcement mechanism has become the worst
perpetrator of crime. The problem of custodial violence has, needless to
mention, assumed dire proportions. The police force has thus gained notoriety as
the single largest violator of human rights.2
Custodial violence and
torture in particular have largely undermined the credibility of the police as a
law enforcement agency. Torture is all-pervasive in the police hierarchy
primarily because the police feel themselves to be immune from any form of
accountability.
The Indian Scenario: Shifting Sands?
The police machinery continue to employ regressional methods in the form of
beating, denial of food, water, sleep, electric shock treatment, etc. The
victims suffer mutilation or paralysis and are physically as well as mentally
maimed. The plight of the lot is, - a slow and painful death.
Police and Police Custody
If law represents the collective conscience of society, the policemen, its
principle law enforcement agent ought to be the staunchest protagonist, defender
and keeper of that conscience. The police came into existence in society as the
repository of the security and penal functions of the state. The term Police
derived from its Latin counterpart, Politia literally
stands for the condition of a Polis or a State. It further connotes a system of
administration or regulation, although in modern times, the usage is confined to
indicate an organized body of civil officers in a place, whose particular duties
are threefold (a) preservation of good order, (b) the prevention and detection
of crime (c) law- enforcement.3
The term Police poses
definitional problems elsewhere but not in India. Police indicates That force
empowered or operates under the Police Act of 1861 or under any enactment by the
Indian Legislature. The duties of policemen in India have been defined in
Sections 22,23,25,30,30A and 31of the Police Act, 1861.
Violations of Prisoners
rights assume dire proportions in custody. The trauma is equally resonant
whether in Police or Judicial Custody. The Supreme Court in Nareshs4 case
observed Clearly then, it is immaterial whether or not the custodial crime
occurs within the premises of a police station or chowki. What matters is the
control of police over the victims. Police custody thus means the placement of
the victim with the police during any action.
The Dynamism of the Apex Court
Perusing landmark judgments in custodial jurisprudence as in Sunil Batra5,
Francis Coralie Mulin6, Rudal Shah,7
the entire journey has been painstakingly etched to the extent that the Supreme
Court in Saheli vs. Commissioner of Police8, held,
The State is vicariously liable for tortuous acts by its servants in course of
employment and the doctrine of sovereign immunity is inapplicable in cases of
public wrong. In the concerned case, compensation to the tune of Rs. 75000 was
awarded to the mother of a nine year old who died in police custody.
In
Nilabati Behera vs. State of Orrisa9, the Court opined, It is axiomatic
that convicts, prisoners or under-trials are not denuded of their fundamental
rights under Article 21 and it is only such restrictions, as are permitted by
law which can be imposed on the enjoyment of fundamental rights by such persons.
The Apex Courts
activism though laudatory, has not helped effectuate much change. The scourges
of custodial deaths continue unabated. The police forces have, instead of
preserving the law and order situation, created a law and order situation.
Torture
Resorting to brutality and third-degree methods are a fairly commonplace
occurrence. No violation of any one of the Human Rights has been the subject of
so many Conventions and Declarations as Torture. The matter subsumes utmost
importance, as one of the primary causatives for the occurrence of custodial
deaths is the infliction of mindless torture.
Statistical averments
reflect that while prisoners are susceptible to torture and negligence while in
judicial custody, i.e. on conviction, the incidences of the same are even higher
while in police custody, i.e.for completion of investigation, interrogation and
the like. Under-trial prisoners (UTPs) thus are a despised, neglected lot, often
dying painful deaths. The above distinction between Police and Judicial custody
merits careful consideration
The impediment is to
grapple with the time- lag between de-facto and de-jure arrest .i.e Police and
Judicial custody.
A perusal of
D.K Basu vs. State of West Bengal,10 serves to
amplify that the guidelines envisaged in the aforesaid case can be effectuated
only as after de-jure or formal arrest.
In
Joginder Kumar11, the Court ruled, No arrest can be
made because it is lawful to do so. No arrest should be made without a
reasonable satisfaction reached after some investigation as to the genuiness and
bona- fides of a competent and a reasonable belief both as to the persons
complicity and even so as to the need to effect arrest.
The Committee of
Ministers of the Council of Europe echoing the above observations, noted,
Custody pending trial should be ordered only if there is a reasonable suspicion
that the accused has committed the alleged offence, and that he is likely to
abscond, interfere with the course of justice or even commit a serious offence.
The above observations
are congruous to the prevention of abuse of authority. The police must act in
conformity with the abovementioned observations; ensure that procedural
irregularities, such as refusal or failure to register a F.I.R or arbitrary
arrests, do not resurge.
In
D.K Basu12, the Supreme Court held, Custodial
torture is a naked violation of human dignity and degradation, which destroys to
a very large extent, the individual personality. It is a calculated assault on
human dignity and whenever human dignity is wounded, civilization takes a step
backward. In all custodial crimes, what is of real concern is not only the
infliction of body pain but the mental agony which a person undergoes within the
police station. Whether it is physical assault or rape in police custody, the
extent of trauma a person experiences is beyond the purview of law.
Torture from a Human Rights Perspective
Torture is an aggravated form of cruel, inhuman and degrading treatment. The
most authoritative definition of torture in international human rights law is
encapsulated in Article 1 of the United Nations Convention Against Torture of
1984.13
The important components of the definition are: -14 There is necessarily
involved an element of purposive ness
Pain and suffering must be severe It may be either physical or mental The act
must be intentional It must involve direct or indirect participation of public
officials.
The element of mental
suffering entered into the international standard for the first time with this
definition. It must thus be noted that torture essentially contains a purposive
element. Prohibition of Torture -A Non- Derogable Right
Article 4 of the International Covenant on Civil and Political Rights15 is
interpreted to mean, There may be no derogation from certain of its provisions
including Article 7, which prohibits Torture and Cruel, Inhuman or Degrading
Treatment or Punishment.
Building upon the
provision, Article 2(2) of the United Nations Convention against Torture
stipulates16 No exceptional circumstances whatsoever whether a state of war or a
threat of war, internal political stability or other public emergency may be
invoked as a justification for torture and other cruel, inhuman or degrading
treatment or punishment.
Torture assumes the
most grueling form, Ex: Application of electricity to elicit information or
force a confession. It, is thus, reiterated that the element of purposive ness
becomes all- pervasive. It is pertinent to note that Article1 (1) of the
Convention Against Torture clearly stipulates that, torture does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions.
The Convention Against Torture And Other Cruel, Inhuman, Degrading Treatment
Or Punishment, 1984
The international community accorded its commitment to mitigation of torture and
other forms of cruel, inhuman and degrading treatment and punishment by adopting
the Declaration17 in 1975, which attained legal sanction by way of the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984.
The Convention merits
close consideration, predominantly because India is not amongst the 123
countries ratifying the Convention. The lackadaisical approach of the Indian
Government warrants a drastic change.
Salient Features of the Convention18
The novelty of the Convention is that it provides for a Rapporteur on Torture
endowed with substantial expertise. The Rapporteur acts in individual cases and
reports to the Commission on the Action Initiated with regard to instances of
torture.
A Committee against
Torture consisting of 10 experts of high moral standing and recognized
competence in the field of human rights has been entrusted to receive reports
from State Parties concerning effect given to their undertakings under the
Convention. The Convention further provides that the State Parties will outlaw
torture in their national legislation.
There are
specifications for the Torturer to be prosecuted in the territory of any State
Party, wherever found. The Convention to reiterate the above specifies that
persons alleged to have committed torture may be tried in any state party or be
extradited for trial in any State Party where they have committed crimes.
Further, no order from
a superior, except under exceptional circumstances may be invoked as a
justification for torture and other cruel, inhuman or degrading treatment or
punishment.
The provision for an
international enquiry, if there is reliable information indicating that torture
is systematically perpetrated in the territory of a State Party, heightens
accountability and implementation.
Non-ratification of the
Convention has whittled down Indias commitments towards the Constitutional
mandate and observance of human rights at the global arena. Further, the
presence of a Rapporteur to ensure greater transparency and accountability has
been underestimated.
Concluding Observations
The laws are in place in the form of Constitutional safeguards, vide Articles
20(3), 21,22(1). The Evidence Act renders, inadmissible a confession made before
a Police officer. The Criminal Procedure Code lays down the requisites
pertaining to Arrest, Search and Seizure. The Indian Police Act of 1861, under
which the entire police organization derives its legitimacy, prohibits
unwarranted personal violence by police officers.
The police do function
under various legal impediments and the impact can be felt at the subordinate
levels, where confessions are to be extracted. Section 23 of the Police Act for
instance, clearly stipulates that a police officer requires promptly to obey and
execute all orders and warrants lawfully issued to him by any competent
authority. This
allows the influx of political considerations, which mar the effectiveness of
the police forces.
Policing The Police
The National Human Rights Commission has undertaken a laudatory role by
providing for immediate interim relief to the next of kin of the deceased under
Section 18(3) of the Protection Of Human Rights Act, 1993. The Commission has
propelled to the forefront the cause of prisoners rights ravaged by public
servants and in turn built up a favorable climate for the observance of human
rights in the country.
The buzzword is
Policing the Police. The policing has to be done by the higher-ups in the
police- hierarchy. Alternatively, a Vigilance Commissioner other Ombudsman
should be instructed to blow the whistle whenever police delinquency or
criminality is brought to its notice. There, thus, arises a need for an
organization to guard the guards. Democracy is stable only if the police are
conscientised, trained and treated as state functionaries to maintain peace by
legal means.19
Endnotes and References
*****************************XXXXXXXXXXXXXX***********************************
End Notes:
1. Abhishek M. Singhvi, State Accounatbilty For Torture and Custodial Crimes, in
K.P Saxsena Human Rights and The Constitution- Vision and Reality, Gyan
Publishing House, Delhi, 2003 at p.106
2 Chaman Lal,
Protection of Right to Life and Personal Liberty (Article 21) and Law
Enforcement, in K.P Saxsena Human Rights and The Constitution- Vision and
Reality, Gyan Publishing House, Delhi, 2003 at p.130.
3 B.N Malik, Police
Through the Ages, in The Indian Police Journal- Centenary Issue, 1861-1961 at
p.7
4 SCJ 131 ARI 1990
5 (1980) 3 SCC 488
6 AIR 1981 SC 746
7 (1983) 4 SCC 141
8 AIR 1990 SC 573
9 (1993) 2 SCC 746
10 (1997) 1 SCC 417
11 (1994) 4 SCC 260
12 Supra Footnote 10
13 The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment entered into force on 26th June 1987.
14 Andrew Mc Entee, Law and Torture, in Duncan Forest A Glimpse of Hell -
Reports on Torture Worldwide, Amnesty International, United Kingdom, Cassell,
1996 at p. 3
15
hrweb.org/legal/cpr.html
16
unhchr.ch/html/menu3/b/h_cat39.htm
17 U.N General Assembly Resolution No. 3542 (XXX) of 9th Dec, 1975
18 Dr H.M Syed, Rights Of Prisoners, in Human Rights: The New Era, Kilaso Books,
2003, p. 215
19 Justice V.R Krishna Iyer, The Police, Human Rights: Off The Bench, Universal
Publishing Co. Pvt Ltd, 2004,p.195
----------------------------------------------------------***********************************----------------------------------------------------------
The author can be reached at :
spiti@legalserviceindia.com
|
