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Custodial Torture - can you trust the police?

Injustice anywhere is threat to justice everywhere - Martin Luther King

In our daily lives we sometimes totally ignore many important topics but slowly or gradually this ignorance becomes acceptance and everything looks very normal. After the death of George Floyd in the USA and the custodial death of Jayaraj and Fenix at a police station in Tamil Nadu rose a lot of concern and also a new debate have been started with regard to the 3rd degree torture done by the police. The death of George Floyd in the USA resulted in heavy protests due to which Congress has decided to pass a Police Reform Bill and along with this it is discussed to maintain a National Database'' which will register all police misconducts.

In India as well, a certain Anti-torture Bill was discussed in 2010 which has been discussed in the Parliament many a times but has not been passed yet. Globally it was discussed for the first time by the United Nations on UN Convention against Torture in 1975. Since India being the member of the United Nations, if the UN passes any law, and for that to apply in India as well, the Parliament has to pass a law regarding the same. So, a bill was presented in the Lok Sabha to make the UN Convention against Torture, 1975, a law. A bill was presented in 2010 in the Lok Sabha to make the UN Convention against Torture a law, naming it as Prevention of Torture Bill, 2010.

Under Prevention of Torture Bill, 2010, if any public servant commits torture on any person who is his custody, then that public servant will be punished under the bill. The objective of the bill is to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or compliance of any public servant. The bill defines torture as an act by a public servant or by a person who is subordinate to a public servant, causing grievous hurt or danger to life, limb or health, be it mental or physical.

Further the bill proposes punishment of minimum 3 years which may be extended up to 10 years and fine, for torture inflicted for purpose of extorting confession, or for punishing or on the ground of religion, race, place of birth, residence, language, caste or community or any other ground. This bill is still pending in the Parliament and is yet to be passed.

Custodial Torture

The word 'torture' can be described as infliction of physical or mental pain, hurt or discomfort by one or more person to force another person to yield information, to get confession or any other reason.

Custodial torture is a naked violation of human dignity. It has become a common phenomenon and a routine practice of interrogation or questioning by the police these days. These include the use of 3rd degree methods to get confession, custodial deaths, sexual harassment and custodial rape, fake encounters, etc. Human Rights activists have been raising voice against all such practices since a long time, but nothing has changed yet.

Some of the examples of custodial torture talks about the death of Maulvi Mujahid the accused of the Lucknow court blasts, who died under the custody of the police when he was being transported back to jail after his appearance in court. The incident of Maulana Asad Raza, also talks about the custodial torture of the police officials, a Muslim Cleric in Muzaffarnagar who along with almost 100 of his students was stripped naked and beaten on private parts by the police after the eruption of violence in the city during a protest against the CAA and NRC and there are many more incidents.

Data Of Custodial Deaths

The number of custodial deaths increased as in 2019 according to the Crime in India report by the National Crime Records Bureau (NCRB), 70 people died in police custody in the year 2018 and 85 died in police custody in the year 2019.

The National Human Rights Commission (NHRC) has alleged that at least 117 deaths in police custody were reported to them.

According to the annual reports released by the National Campaign Against Torture (NCAT) on 26th June 2020, 1,731 persons died in custody in the year 2019 which is almost 5 deaths each day. Out of these, 125 people died in police custody while the rest died in Judicial custody. According to the report Uttar Pradesh tops in the number of reported deaths due to torture by police. The NCAT's report states that: Out of the 125 deaths, 93 persons (74.4%) died during police custody due to alleged torture or foul play while 24 persons (19.2%) died under suspicious circumstances in which police claimed they committed suicide (16 persons), illness (7 persons) and injuries (1 person) while the reasons for the custodial death of five (4%) persons were unknown.[1]

The Asian Centre for Human Rights (ACHR) has alleged that 7,468 persons, an average of 1,494 persons per year or around 4 persons per day have died or being killed in prison or in police custody by the police.[2] The major point of contention being that the victims of such torture majorly belongs to the poor strata of the society who cannot afford justice and hence, the culprit often goes unpunished.

All of these reports show that deaths that occur in police custody are a result of torture or foul play and many committed suicides or died of illness or accidents as allegedly claimed by the police personnel.

Punishment And Training Of The Police

The NCRB data shows that even after registration of so many cases against the police personnel for violation of human rights which includes custodial deaths or killings and illegal arrest or detention, not a single police officer was convicted of the crime which was reported against him.

The reports also show that more than 10% police personnel never received any sort of human rights training. Even the officers who received the training in human rights, many said that it was only at the time of joining the police force which is clearly not enough.

The findings also showed that the police in India suffer from illegitimate political interference, inadequacies, which lead to such behavior.

Police Reforms
  • Gore Committee on police training:
    The committee recommended adding a greater sensitivity and understanding of human behavior and human rights in police training.

  • National Police Commission, (1977-81):
    The committee recommended insulating or protecting the police from illegitimate bureaucratic and political interference and biases.

  • Padmanabhaiah Committee, 2000:
    This committee recommended providing greater training in soft skills such as communication and counselling the constables and the police force in general as they need to deal with the public and society on a daily basis.

The Hon'ble Supreme Court directed in Prakash Singh v. Union of India, 2006 the government to constitute:
  • State Security Commission: in every state to ensure that the state governments do not exercise unjustified or unwarranted influence or pressure on the police personnel and to evaluate the performance of the police.
     
  • Police Establishment Board: to decide the transfers, promotions, postings and other matters related to service for the officers ranked below Deputy Superintendent of Police (DSP).
     
  • Police Complaints Authority: at both state and district levels to inquire into complaints of serious misconduct and abuse of power by the police officers.

Provisions Related To Custodial Torture With Case Laws

  • In Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, it was held that the police is obliged under law to register FIR as soon as the commission of cognizable offence such as, custodial torture or death, comes to their knowledge. Sec 154 of Code of Criminal Procedure, 1973 involves compulsory registration of FIR.
     
  • Section 197 of Code of Criminal Procedure, 1973 provides for prior authorization and endorsement of central or state governments for taking actions against public servants for offences committed by them in the course of their duty. While dealing with the use of Section 197, in the case of Devinder Singh v. State of Punjab, (2016) 12 SCC 87, the Hon'ble Supreme Court has observed that Protection of 'sanction' to Govt. servants cannot be camouflaged to commit crime. The offence must be directly and reasonably connected with social duty to require sanction or authorization. It is no part of social duty to commit offence.
     
  • In Nilabati Behra v. State of Orissa, (1993) 2 SCC 746, the Hon'ble Apex Court awarded monetary compensation to Nilabati, after the death of her son in police custody. In this case the Supreme Court also held that it has a wide range of powers under Article 32 of the constitution and it also has the power to award compensation.
     
  • In Sube Singh and Anr. v. State of Haryana and Ors., (2001) 7 SCC 545, the division bench held that even after conviction, if the parties have settled the dispute amicably and have decided to live in peace and harmony, the court, in exercise of its powers under Section 482 of CrPC can compound the offence.
     
  • In Joginder Kumar Vs. State of U.P, (1994) 4 SCC, the apex court held that ''the arrest should not be merely on suspicion about the person's complicity in the crime and the police officer must be satisfied about necessity and justification of such arrest on the basis of some investigation and the reasons for arrest must be recorded by the police officer in his diary and the arrest should normally be avoided except in cases of heinous crime.''
     
  • United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (UNCAT), which was adopted by the UN General Assembly in 1984 but was failed to ratify the same through the process of legislation.
     
  • The Prevention of Torture Bill 2010, providing for punishment for the act of torture committed by public officials. It was passed by Lok Sabha on 6 May, 2010 but was referred to Rajya Sabha and was then lapsed. The bill still remains pending in the Parliament. The bill would have been a positive step in enacting a strong law against such practices of tortures and implementing the objectives of UNCAT
     
  • Sections 7 and 29 of the Indian Police Act provides for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or are unfit to perform their duties.
     
  • Sections 330, 331, 342 and 348 of the Indian Penal Code have been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing torture.[3]
     
  • A confession to a police officer cannot be proved as against a person accused of any offence under Section 25 of the Indian Evidence Act, 1872 and confession caused by threats from a person in authority, in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as provided under Section 24 of the Act.

Custodial Rape Against Women

The Indian Penal Code, 1860 defines 'custodial rape' under Section 376(2) (a), (b) and, (c). Custodial Rape is rape committed by a public servant on a woman in his custody or in custody of a subordinate public servant. The Mathura rape case is a horrendous incident of custodial rape in India. The case that made the government to wake up from its long slumber. It reflected the patriarchal biases of the entire legal system. The incident of Mathura Rape Case opened the eyes of everyone and created awareness of women's legal rights issue, oppression, and patriarchal mindsets in the society.

In the late 1970s and early 1980s, the issues of custodial rape came into light when a chain of events of women being raped in the in the custody of police came into picture. The concept of custodial rape not only includes security forces but also hospitals, mental institutions, shelter homes and juvenile homes. The punishment for custodial rape is rigorous punishment of at least 10 years and fine or both.

Landmark Judgements On Custodial Rape:

TukaRam v. State of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810, the famous Mathura Rape Case that has been one of the landmark cases of custodial torture talks about a girl named Mathura and also the injustice delivered to the girl.

Mathura, the victim lived with her brother and was employed as a domestic worker with a woman named Nushi. Mathura and Ashok (Nushi's nephew) had sexual relations and they wanted to marry each other. This they came to knowledge of Mathura's brother and he lodged a police complaint to the local police claiming that Mathura was being kidnapped by Ashok and his family members. The officials started their investigation and brought Ashok and his family to the police station. Later Mathura was raped by two policemen.

The case came for hearing in the court and it was stated that since Mathura was habituated to sexual intercourse therefore her consent was voluntary and these circumstances only proved sexual intercourse and not rape. The medical examinations stated that her hymen revealed old ruptures but there was no bodily injury found in the examinations.

Later the High Court found the accused guilty and sentenced him but the Apex Court reversed the decision of the High Court and acquitted that police constable Ganpat and Tukaram stating that no penetration was found and also showed no marks of bodily injuries which showed that Mathura did not resist and consented to the officials.

In Maya Tyagi, Meerut v. Ito, Baraut, the victim was travelling in a car with her husband Ishwar Tyagi and two of her husband's friends when their car broke down near Baghpat police station. Then Maya's husband along with his two friends left to get the tyre repaired. After they left, a police officer in plain clothes came in and molested Maya. When Maya's husband saw this, he slapped the police official.

Then the police officer returned with 10 policemen. Then they shot Ishwar Tyagi and his two friends who accompanied Maya Tyagi and died there. Maya was then dragged out of the car, stripped naked and paraded her through the marketplace. When she resisted, they attacked her by inserting the police stick into her. Later, the officers had taken her to the police station and subjected her to brutal torture and false accusations were charged on her, which stated that she was a dacoit's mistress and was covering up for their killings.

Later during the inquiry, the policemen tried to justify their actions by calling her a woman of 'easy virtue' as her marriage to Ishwar Tyagi was her second marriage.

On the allegations put on Maya Tyagi, her husband and two of his friends the Court held that all those allegations were false as they were not dacoits and were falsely framed by the police officials. It was found that all the torturous incidents told by Maya Tyagi upon her by the police officials as true. However, since there was no penetration, the police officials were acquitted.

These cases brought out many changes in the custodial rape laws in India which are:

  • The concept of custodial rape was added.
  • The burden of proof shifted upon the accused and has to prove the women's consent.
  • A rigorous punishment of 10 years or life imprisonment or fine or both was prescribed.
  • Failure to assist rape case victims by government officials came under the purview of punishable offence. Under section 166A of IPC, punishment of up to 2 years imprisonment is prescribed for a public servant disobeying the law.
  • Even after having all such provisions in place, women in these vulnerable conditions are usually forced to live with the trauma or suffering and continue with their lives as they see no hope in pursuing any legal action or help against the men in uniform who take oath to protect them and the society. The sad reality is that more than half of such cases go unreported.
     
Suggestions And Solutions
The ratification or confirmation of the UN Convention against torture. This convention was never ratified. No official law relating to custodial deaths and police torture has yet been passed by the legislation. Even after several suggestions and concerns shown by the NHRC and the Hon'ble Supreme Court, nothing has been done with regard to Anti- torture or police reforms.

The implementation of Section 144B of the Indian Evidence Act, as mentioned in the Law Commission Report, 1985 which states the accountability of police officer if any person is found dead or tortured in his/ her custody.

General public awareness of the right to free legal aid to the poor and underprivileged as stated under Article 39 of the constitution.

The need for the codification of the rights of the alleged accused and the arrested persons as mentioned in The Malimath Committee report.[4]

The need for appropriate amendments in the Code of Criminal Procedure which makes police officers responsible of assuring the safety of the person accused in custody and making them aware of their rights while they remain in custody, as recommended by the 16th Law Commission.

Passing of the Prevention of Torture Bill, 2010 as a law in the Parliament.

The burden of proof which lies on the plaintiff need to be reversed.

The proper enactment and follow up of the guidelines laid down by the Hon'ble Supreme Court in Joginder Kumar v. State of U.P, (1994) 4 SCC and D.K Basu v. State of West Bengal, AIR 1997 SC 610[5], which includes installment of CCTV in prisons and police stations, rules relating to arrest and detentions and rights of the person accused.

Conclusion
The word custody means protective care or guardianship. It is expected that being in custody, a human being will be protected from any violence or any torture. But what's happening around us is somewhat different.

With regard to the same, the court should change their approach towards the officials, etc. by seeing whether that officer is a habitual offender. There must exist stringent rules and laws regarding custodial torture and it must be made a crime. This could be achieved by making certain specific custodial laws. Also, the police officers must follow the pre-existing laws regarding arrest and detention. And those who fail to comply must be held punishable.

There is a need now for the Central Government to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The various existing laws are more than enough but the implementation of the said laws is yet in question. If only the laws were more stringent, the practice we are seeing today would not have been persisted.

References:
  1. https://nhrc.nic.in/sites/default/_les/NHRC_AR_EN_2017-2018.pdf
  2. https://www.tribuneindia.com/2008/20080628/nation.htm#3
  3. State of Madhya Pradesh v. Shyamsunder Trivedi, (1995) 4 SCC 262
  4. https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf
  5. https://indiankanoon.org/doc/501198/

Award Winning Article Is Written By:
  1. Simranjeet Kaur I am pursuing LL.B from Amity Law School, Noida. I am currently in 2nd year. I want to go into litigation after getting my degree. I am interested in Criminal Litigation as well as Intellectual Property Rights like Copyright, Trademark and Patents, etc. and

  2. Shivangi Paliwal  I'm pursuing my LL.B From Amity Law School, Noida (2nd Year). I joined this institution in 2019 to enhance my knowledge of law and make way through it. I further want to pursue Judiciary and help in bridging the gap in the society.

    Awarded certificate of Excellence
    Authentication No: JA32634326941-20-0121

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