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Custodial torture and reforms in Police Administration

A few days back we witnessed a massive movement in the USA and across the world regarding the killing of a black man, George Floyd by a police officer. Police brutality has been seen in almost every country and India is no exception to this and only a few days after Floyd's killing India witnessed a massive outrage over the custodial torture and death of a father-son duo by police officers at Sathankulam police station in thootukudi district, Tamil Nadu and what was more surprising is the alleged charge against them, that they kept their shop opened beyond the permitted time. In this case, the role of magistrate is also under scanner as this was a petty offense and the accused should have been granted bail.

This case would have gone under the scanner but an RJ posted the video regarding this incident and people started to show outrage and this outrage has again put the limelight on Police actions, this case is under investigation and accused officers have been arrested. People started voicing their opinions about police reforms, anti-torture law, and many other things that need to be changed in police administration.

India has a big way to go in this field, according to a report by the National crime bureau, between 2001-2018, there have been 1727 reported custodial deaths and out of these custodial deaths, only a mere 26 police personals have been convicted.

Between the same period, the National Human Rights Commission has recorded 2000 human rights violations against police out of which only 34 have reached the level of conviction. India has a mere 5% conviction rate in cases of custodial torture and death. Police brutality and atrocities are mainly towards underprivileged and poor people.

Here in this article, I will be writing about custodial torture, steps to be taken to reduce and stop this, and mainly about reforms required in police administration.

Custodial Torture: Definition and Indian Context

Torture in the normal dictionary means the action and practice of inflicting of severe pain on someone as a punishment or in order to force them to do or say something.

Custodial torture a form of torture that generally happens when a person alleged of any crime is under the custody of law enforcement officials. The Supreme Court has held that Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent human personality.

Custodial torture is a punishable offense under the existing laws but due to various reasons, the accused do not get convicted. Certain modification in the law is required and what's more important is the implementation of the existing and newly enacted laws in the right manner.

Enacting a law is not an important step; implementation of the law is an important step. India is a signatory of United Nations convention against torture and other cruel activities since 1997 but it has not ratified it as India does not have any comprehensive law on torture. Law commission in 2017 has proposed anti-torture law still the government has not taken any action in this regard.

Indian constitution has granted rights to every person and under fundamental rights enshrined under Article 21: Right to life, it includes the person who has been detained or convicted or arrested. Basic human rights cannot be taken away plus under Article 22, rights are laid down for people who are being arrested and detained.

Reasons and Steps to be taken to completely curb the custodial torture:

  1. Strict implementation of existing laws and guidelines

    Governments have again and again have said that existing laws are enough, even I am of the same view just a few exceptions:
    1. change in the evidence act, where the burden of proof still lies on the plaintiff, this needs to be reversed
    2. A Comprehensive law on torture. Barring these two changes, existing laws are more than enough if implemented in the right manner.
    At present times, existing laws include judgments of the Supreme Court laying down guidelines, Police Act, 1861, and sections of the Indian Penal Code and Code of Criminal Procedure.

    If the guidelines laid down by the Supreme Court, first in Joginder Kumar V. State of Uttar Pradesh (1994) 4 SCC and later on in D.K Bose V. State of West Bengal AIR 1997 SC 610 is followed in the manner in which it has been prescribed, there would be no need for new laws.

    Guidelines laid down in these cases include rules relating to detention, arrests, and rights of the person. It also includes CCTV in prisons and police stations, setting up State human rights commission which will look after the prisoners and under trails. Non-official visitors would do surprise checks on the prison. Monitoring and implementation of all this by an independent agency at each level under Court's Guidance is sufficient to stop the custodial torture.
     
  2. Role of media and People's mindset

    Media's role in many cases has been questioned by the people of the legal fraternity and even by the courts. Medic many times portrays an accused person as criminal even before the judgment of the court comes out. The media have to understand its responsibility. It affects the thinking of a person.
     
    Whenever we see a person being beaten by police, we ignore that and our perception regarding that beating is that the person being beaten should have done some wrong. Whenever a bail is rejected by the court, we think that he/she must be done wrong. This mindset needs to change. We don't need to ignore these things. These things only make police personals think that they are doing correct things. It's only in cases like the death of father-son due comes up in news then we show our anger asking questions.
     
    This will also help in keeping a check on police administration
     
  3. Pressure by the  Public, Senior officials, and Government

    A huge amount of unwarranted pressure is being created on police officers working at lower posts by the senior officers and government to solve a case and this unwarranted pressure makes officers use the way of torture to extract out the truth or confession. This pressure is one of the reasons of custodial torture. The Supreme Court in Prakash singh V. Union of India 2006 directed to state and central governments to ensure that no unwarranted pressure is created on police.
     
    Pressure by the public in the recent Hyderabad rape case led to the encounter of accused and people glorified that, this has to stop. Vengeance is not an option in a democratic country.
     
  4. Reforms in Police administration
    The Supreme Court in Prakash singh V. Union of India 2006 directed to state and central governments to try to address the problems in the present law and bring about necessary changes in the Police act, 1861.
    The National Police commission felt the need for reform and hence it went on to draft a model police act and submitted its draft in 1981 but no action has been taken in this regard.
    There is abundant power given to the police force, more responsible use of abundant power is required.
     

    Reforms required in the police department:

    1. The liability of senior officials for the acts done by his/her subordinate officers. This concept under the law of torts is known as Vicarious Liability. This will bring some accountability which at present is lacking in the present police administration.
       
    2. The police department should be creating different divisions and the posting, transfers and promotion should be done within that division only. No transfer or promotion should be done across the divisions.
       
      Such as : As of today a huge number of police personals does security work, they do not have the idea about how to solve a criminal case. So a separate division only for security posting should be created and these people's transfers should happen within the security division only. Similarly, certain divisions should be created and posting, transfer; promotion should be done in that particular division only
       
    3. Use of Mind and science: Police today work on torture and confession. Our country still lacks the application of forensic science in solving the crime. Today science and technology have developed so much still in the police department that not much attention is given towards using mind and science, this needs to change. Forensic science can help crack the case without any torture.

      Mind intelligence should be used in playing with the minds of the accused person, intelligence can be used to collect proof and evidence and science can validate those evidence.
       
    4. Creation of a system that deals with the mental health of a police personal. This would help them seek help, have a counseling session. That will be good for their mental health and their work efficiency will be maintained
       
  5. Political game in police administration

    Not all police personals look for custodial torture to extract out the truth and confession. Some of them do very good work and that is when frequent transfers of those officers let down the good work done by them.

    In my experience few officers who uphold the dignity and right of persons detained or arrested, who do actual police work face frequent transfers as they do not follow the normal torture procedure and do not bow down on pressure tactics from the governments.
     
    This bureaucratic policy needs to change. The attitudes of governments in this field really need to change.
     
  6. Investigation and Punishment in cases of Custodial torture

    In cases of custodial torture either suspension or termination is the formal mode of punishment. Hardly any independent inquiry is done.
    There has to be an independent inquiry in every case of custodial torture under the supervision of a magistrate. A greater degree of punishment should be awarded.
Along with existing laws and some of the reforms which I have suggested above, the problem of custodial torture will be solved. It is our moral responsibility to keep things in check and it also a fundamental right of a person who is being detained or arrested. Police officers should uphold fundamental rights. We are not a banana republic or a police state. Police are our protector and they should start acting like that. Existing laws are not used in the right manner.

People hailing encounters soul stop glorifying that, this makes police personal think that they are doing great, but this is not the right thing. The encounter in the Hyderabad rape case was not right. Police are not there to serve justice. To serve Justice, Judiciary is there I hope these changes and efforts of certain people pay dividends and the officers responsible for the death of the father-son duo will get convicted.

End Notes:
  1. Joginder Kumar V. State of Uttar Pradesh (1994) 4 SCC
  2. D.K Bose V. State of West Bengal AIR 1997 SC 610
  3. Prakash singh V. Union of India 2006

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