CRIMINAL JUSTICE SYSTEM IN INDIA : AN INITIATIVE STEP TOWARDS EXIGENCY
SUB THEME :
OFFICERS OF THE LA LAW W IN
INDIA : PROTECTING OR
TRAUMATISING THE CITIZENS
A RESEARCH PAPER ON CUSTODIAL TORTURE AND CUSTODIAL DEATHS
AUTHORED BY AMY RUBY PAUL
Email id – AMY RUBY PAUL –
[email protected]
THE FOLLOWING DOCUMENT IS A RESEARCH PAPER ON THE TOPIC OF CUSTODIAL TORTURE AND CUSTODIAL CUSTODI AL DEATHS DEATHS IN INDIA
RESEARCH METHODOLOGY 1.The method of Research Design adopted:a dopted:-
There were different Research designs used at different phases of the project. project. At the initial stage exploratory research was used in an attempt to lay the groundwork that will lead to future research. Secondly, after the groundwork got laid Descriptive Research was used as the majority of the information needed was collected, the missing parts of the research were filled and the final draft got evolved.
Method of Data Collection:-
The data collected for the Research has been through Secondary sources. Authenticated Sources:Sources like reports and papers released by government agencies, court reports etc., were used to gather information. Unauthenticated Sources:Sources like Newspapers, magazines, periodicals, reports from the internet, etc. were used to gather the required information.
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 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 without hard labour, for a period not ex exceeding ceeding 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 can custodial torture and deaths in India be curbed ?
WHAT IS CUSTODIAL TORTURE AND CUSTODIAL DEATH HOW CAN THEY BE DEFINED AND REDEFINED ACCORDING TO THE PRESENT SCENARIO IN INDIA? Acco Ac cord rdin ing g to Camb Cambri ridg dgee dict dictio iona nary ry,, cu cust stod odial ial in Amer Americ ican an Engl English ish re refer ferss to ha havi ving ng the responsibility of responsibility of protecting protecting, caring for, caring for, or maintaining something maintaining something or someone. The very
same same Camb ambrid ridge dict dictio iona nary ry def efin ines es tort tortur uree as the act of act of injuring injuring some someon onee or maki making ng someone suffer in an effort to effort to force force that person that person to do or sa say y what what you you want want to be done done or sa said id.. Therefore the very existence of the word “custodial torture” is paradoxical. paradoxical. When taking in custody referss to having the responsibility refer responsibility of protecting protecting,, caring for or maintaining maintaining someone, someone,
to fathom
meaning of the word “custodial torture” is not an easy task to accomplish as “torture” has the meaning m eaning which is almost opposite to each other.
The word custodial torture includes any injury or harm, be it physical or mental, inflicted upon an individu individual al who is in police custody ; but moreover moreover it is naked violation violation of human 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 Meh Mehbo boob ob Batch atchaa and and Ors rs.. vs. vs. Stat Statee re rep. p. by Sup updt dt.. of Pol olic icee (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 oc occu curs rs du duri ring ng in inve vest stig igat atio ion, n, in inte terr rrog ogati ation on or ot othe herw rwis ise. e. If th thee fu func ncti tion onar arie iess of th thee Gove Go vern rnme ment nt be beco come me law-b law-brea reake kers, rs, it is bo boun und d to br breed eed co cont ntem empt pt fo forr la law w an and d woul would d 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 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 c learly understand the opinion of the judiciary on custodial violence, custodial torture and custodial death. The way custodial violence becomes a shame to our country country ; violates violates the rights rights of citizens ; violates violates a nation’s nation’s responsibility responsibility ; becomes 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 Mehboob Batcha and Ors. vs. State rep. by Supdt. of Police (MANU/SC/0260/2011 (MANU/SC/0260/2011 : 2011 (7) SCC 45) 1
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.
D.K. Basu vs. State of West Bengal (18.12.1996 - SC) D.K. Basu vs. State of West Bengal (18.12.1996 - SC)
2
3
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 government which promised him to send him back home if he committed the mentioned crime. Another Another case was of a person named Sanjiv
Chawla, which proved that unless India 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 policy / method of selection of govt. employees 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. Cri Criteri teriaa for the select selection ion of polic policee officers officers in India 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 qualify in a PSC the syllabus to be covered covered is quantitative aptitude, general English, 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 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.
2. Resour Resources ces available available to police police official officialss / police police force 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. 3. Rat Ratio io of of police police to citi citizen zenss in Ind India ia
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 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 simhasanathil iruppathu shunakano shunakano atho shwanano ?" 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 the CM's ego highly affected and hurt hurt by this statement. It is
beleived popularly that later on the CM wanted Rajan to " pay pay the price " for publicaly making such a statement against him and he instructed the police 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 not have the authority about the genuinity genuinity of the facts. But if true, this clearly depicts depicts the effect of political and superior official's pressure on the officers in the police force.
METHODS TO CURB INCIDENCE OF CUST CUSTODIAL ODIAL TORTURE AND DEATHS IN INDIA .
1. inclu including ding fields fields like ethics, ethics, psychology psychology,, criminology criminology,, philosophy philosophy etc can make make a positive impact on the selection of police officials, which would in turn make 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. Increas Increasing ing the the mandatory mandatory number number of police police for every 100 100 citizens citizens 3. Provi Providing ding access access to police police officials officials to modern modern methodo methodologies logies and and scientific scientific ways which would help in investigation of cases like narco analysis, brain mapping etc. 4. makin making g legislation legislationss and implement implementing ing both both the existing existing and and new legisla legislations tions 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.
Implementin menting g methods methods in selection selection of police police official officialss which would would enable enable 5. Imple assessment of the character of the person, which would enhance the police force in overall. 6. Givin Giving g more attention attention , value value and considera consideration tion to opinion opinions, s, recommendat recommendations, ions, 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 by police officials, clearly depict the 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.
******
