Custodial Torture : A naked violation of Human Rights

Custodial Torture or Torture is a pain so intense that there is no way to heal the scars and not only the man's psyche or the heart but it also scars the conscience of the nation.

Introduction

The term Custodial Torture or Torture has not been defined in the Constitution or in any other penal laws in force.

It is an action or practice of inflicting severe pain or suffering on someone as a punishment or in order to force them to do or sat something.

The term Torture can also be understood as an instrument to impose the will of the strong over the weak by suffering.

Custodial Torture in India ranges from various types of assault to death by the police personnel.

As per the National Crime Records Bureau (NCRB) from 2006 till 2016 there were about 1022 deaths reported in police custody and surprisingly only five percent policemen were convicted.

But in 2019 alone as per a report published in The Hindu, there were about 1730 deaths police custody, which roughly comes to about five deaths per day.

For the sake of clarity, the figures mentioned above are reported and are of those which actually lead to death, there might have been countless cases of custodial torture which went unreported, whatsoever the reason be.

There is no way in India to have a proper database of the cases that go unreported.

Yet and as for another interesting figure, about 74.4% of cases in police custody are attributed to either torture or foul play.

Now we all are during the Pandemic of COVID-19 and all of us have been very appreciative of the Indian Police as they have been a frontline COVID-19 warrior.

So it wouldn't be fair and just to pain the entire police force with one single brush.

But the issue of the breach of police powers specifically Custodial Torture is definitely an important concern in India.

As per the rule of law, no one shall be deprived of his or her personal liberty except with the authority of law and all persons shall be equal before the law.

It means that even the Government and its agents have to act according to and within the limits of the law.

Instances of torture and using third-degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.

The Hon'ble Supreme Court has time and again clearly held that “Even the convicts, prisoners and undertrials have right under Article 21 and only such restrictions can be imposed as permitted by Law”

While Article 21 says no person is to be deprived of his life or personal liberty, the exception being except according to the procedure established by law the majority of people are denied of their rights and the executors of law time and again have taken the law in their own hands and used it as per their own convenience.

This results in harsh punishments for people who haven’t even been convicted by the court of law.

The Constitution safeguards the Fundamental Rights of a prisoner excepting those which cannot possibly be enjoyed owing to the fact of incarceration.

Therefore, there is a need to strike a balance between the individual Human Rights and societal interests in combating crime by using a realistic approach.

Constitutional Scheme

From a judicial perspective, as stated above the right to life and personal liberty contained in Article 21 of the Indian Constitution encompasses all basic conditions for a life with dignity and liberty.

Such an approach allows it to come down heavily on the system of administration of criminal justice; custodial justice in particular, and law enforcement.

The right to life guaranteed by Article 21 of the Constitution of India is not merely a fundamental right but is the basic human right from which all other human rights stem.

It is basic in the sense that the enjoyment of the right to life is a necessary condition for the enjoyment of all other human rights guaranteed and provided by the Indian Constitution.

In fact, in the case of A.D.M. Jabalpur vs Shivakant Shukla, Hon'ble Justice H. R. Khanna observed that the "sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values that mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence."

What shook the nation in the near past?

The custodial deaths of the father-son duo, namely Jayaraj and Bennix at a Police Station in the Tuticorin district of Tamil Nadu have raised quite a few eyebrows on the conduct of the police.

The reason the father-son duo were apprehended was due to their shop was open 15 minutes more than the stipulated time in the curfew.

This unfortunate incident has resulted in the debate on the use of third-degree methods to obtain confessions and statements from an accused.

Torture by Police

Convention against Torture explicitly states that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture"

It is a right from which the Government is not permitted to derogate, even in situations of emergency. 44th amendment of the Indian Constitution declares Article 20 and 21 as non-derogable right even in emergency situations.

Arrest and Detention

The Hon'ble Supreme Court in the case of Dilip K. Basu vs. the State of West Bengal & Others has initiated the development of "Custodial Jurisprudence" and the Court outlined the following requirements which shall be followed in all cases of arrest or detention as preventive measures:

The Police officer carrying out the arrest and handling of the accused shall

1. Bear accurate, visible, and clear identification and name tags with their designation.

2. The particulars of all such police personnel who handle interrogation of the accused must be recorded in a register.

3. Prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the accused or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the accused and shall contain the time and date of arrest.

4. An accused person being arrested and being held in a police station or a lockup shall be entitled to have one friend or relative or any other person known to him or having an interest in his welfare being informed.

5. The time, place of arrest and venue of custody of an accused must be notified

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the accused and the name and particulars of the police officials in whose custody the accused is being held.

7. The accused on his/her request shall be medically examined at the time of the arrest and injuries if any shall be duly recorded.

8. The "Inspection Memo" must be prepared in this regard which shall be signed by both, the accused and the police officer effecting the arrest.

9. The accused should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory.

10. The Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

11. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

12. The accused may be permitted to meet his lawyer during the investigation.

13. A police control room should be provided to all district and State Headquarters, where information regarding the arrest and place of custody of the arrestee shall be communicated by the officer causing the arrest.

14. Within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous board.
    

There is a great responsibility on the police or the prison authorities to ensure that the citizen in their custody is not deprived of his right to life.

The duty of care on the part of the State is strict and admits of no exceptions.

Interrogation

There are certain provisions in the Criminal Procedure Code (Cr. P.c.)which confer the power to examine the accused person(s) and witness(es).

However, while carrying out such a job it is of paramount importance to follow all other provisions of the code as well as the Constitution to ensure human dignity and personal liberty of the person under examination.

While examining an accused/witness for the purposes of fact-finding the following legal provisions should be paid heed to:

1. Section 54 of the Cr. P.c. confers upon an arrested person the right to have himself medically examined.

2. A confession made to a police officer is not admissible in evidence under Section 25 and 26 of the Indian Evidence Act.

3. Section 24 of the Indian Evidence Act provides for the confession obtained by threat, inducement, or promise when irrelevant in criminal proceedings.

4. Section 162 of Cr.P .C., also provides that no statement of a witness recorded by a police officer can be used for any purpose other than that of contradicting his statement before the Court.

5. An additional safeguard is that under Section 164 of the Cr.P.c., it is for the Magistrate to ensure that a confession or statement being made by an accused person is voluntary.

6. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself.

7. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.

8. Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate.

The fate of The Prevention of Torture Bill, 2010

If the Prevention of Torture Bill, 2010 had indeed become law, it would have provided for punishment for torture committed by public servants.

Section 4 of the Bill provided for 10 years of punishment for the act of Torture as defined in Section 3.

The victim had to make a complaint within six months from the date on which the offence is alleged to have been committed.

However, the Bill was passed by the Loksabha but did not sail past the Rajyasabha.

The Law Commission headed by Justice B.S Chauhan gave some recommendations for the implementation of the Torture Convention by way of a new bill namely "The Prevention of Torture Bill, 2017".

Perhaps the first step in that direction would be a timely introduction of the Prevention of Torture Bill, 2017 so that India can conform, finally, to its international commitment to eradicating torture from the policing system.

Conclusion

Over the years, it has become clear that Courts are heavily relying on the Constitution, Bill of rights, and even the international norms to protect and enforce the rule of law.

They are equally using their powers and new strategies and tools to restrict parliamentary and executive autonomy, so that it conforms to constitutional norms, particularly relating to fundamental human rights.

Such an approach is warranted for establishment of astute constitutionalism and rights conscious and accountable executive.

I hope this article provided you valuable information and some insights into this aspect.