Introduction – Custodial Torture

The Hon’ble Supreme Court of India (“SC”), in the benevolent judgment of D.K Basu v State of West Bengal (“D.K Basu case”), developed the concept of custodial jurisprudence (“CJ”) in India by reforming the criminal justice system, in the backdrop of swelling cases of brutality and violence committed by police personnel on people in lock-ups during the course of investigation. The era of the 90s witnessed catena of incidents wherein the police fraternity was found to glorify the practice of subjecting the captivated feeble, to the mighty power of uniform, within the four suffocating walls of the prison as a methodology to elicit information from them. To keep a foot down on the exhibition by men in khaki, of blatant disregard for the procedural norms of arrest and investigation and fundamental rights of persons, the SC in this pro-founding case, evolved ‘Right to Personal Liberty’ under Article 21of the Constitution to encompass ‘Right against Torture by State and its allies’ and laid down exhaustive mandatory guidelines of arrest and investigation to be followed by the police in dealing with detainees and prisoners. It is at the touchstone of these guidelines that the Court embarked upon the journey of not only revitalising the importance of Right to Life of prisoners but also illuminating the mandate of Rule of Law that Executive should not only derive its powers from law but also be subjected to its limitations.

Way down the hill since the D.K Basu case

It has been twenty-four years since the SC, by a plethora of cases, has expanded this jurisprudence by nurturing the rights of detainees and prisoners and filling the lacunae of investigating procedure. However, its progressive application is scarcely visible in the present when the headlines are dominated by the news of police transgressions. In 2014, Mumbai police was highly criticised for arresting four men on charge of theft, stripping and torturing them with belts and forcing them to have oral sex with each other in the lock-up. The detention and brutal torture of a security guard in front of his 10 year old son by the Uttar Pradesh Police in 2019 spread like wildfire. The merciless custodial death (“CD”) of father-son duo Jayaraj and Bennix, by the Tamil Nadu police for violating the guidelines of nation-wide lockdown issued by the Ministry to prevent the spread of Novel Corona Virus in India, yet again revolutionised the country against victimisation of prisoners. According to the National Campaign Against Torture’s report, “India: Annual Report on Torture 2019”, a total of 1731 CD were recorded in 2019 only with an average of five deaths per day. The National Crime Records Bureau (“NCRB”) in its Annual Report “Crime in India” of 2018 has also recorded a total of 70 deaths in police custody and from a bare reading of the report it is evident that none of the police officers are yet convicted.

Evaluation of the Stagnancy of Custodial Laws & the Answer to it

These increasing reports of atrocities committed by the police fraternity seriously question the credibility of the existing institution of CJ of India, making it inevitable to infer that despite multiple efforts of the Judiciary, there still exists a vacuum between the objective of the DK Basu case, and the ground realities and contemporary events. This has thereby raised a crucial question before us. Why is the Indian criminal justice system conducive for breeding of the menace of custodial violence?

The earliest attempt to address this question was made by the Law Commission of India (“LCI”) in its exhaustive 152nd Report of 1994, wherein it identified the loopholes that existed in investigation process, Prior to and Post the commission of Custodial Violence, and proposed amendments to cover them. While the majority of the issues Prior to such commission were addressed in the guidelines of DK Basu case, the issues Post such commission are as yet untouched. Alas Twenty-six years later in July 2020 this attempt was complimented by the application filed by Senior Advocate AM Singhvi, the amicus curia to the Court in the DK Basu case, in which he, prompted by rising custodial brutality, has prayed before the SC to revive the proceedings of this case to issue fresh guidelines in addition to those previously laid down by it.

These proposed guidelines are pertinent because they are directed towards the issues laid out, but unheard in the aforementioned Report, and provide a promising solution to eliminate the lacunae existing in CJ of India. The lapses enlisted by the LCI and the guidelines sought by the Advocate in their regard can be cumulatively categorised as follows:

Inadequate custodial framework

The failure to curb Custodial Violence is primarily owed to the factum that the custodial laws are inadequate and leniently adhered to by the Indian police sorority because the Union Government has as yet not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987 so as to incorporate the provisions of this convention into domestic Indian law. The Prevention of Torture Bill 2010 was introduced in the Parliament but it lapsed due to the dissolution of Lok Sabha. The latest Bill introduced is The Prevention of Torture Bill 2017 and efforts are being made by the SC to ensure that states actively participate in passing the Bill but the process is slow. Hence ratification of this Convention is the foremost course of action in strengthening the Indian criminal law.

Inefficient machinery of investigation

Under Section 176(1A) of CrPC, Judicial Magistrate (“JM”) has an obligation to conduct an inquiry into the cause of death of prisoners. But as per the NCRB’s Annual Reports “Crime in India” between 2005 to 2017, out of 1703 cases of CD, a judicial inquiry was initiated only in 270 cases. Hence, the District & the Sessions Judge of every district must be directed to specially appoint a JM to timely investigate the cases of CDs, in which ideally the preliminary inquiry must be done within a week, the investigation within two months, and the trial, if any, within a year. This investigation should be supervised by a permanent committee constituted in each state, headed by an esteemed member of Judiciary, one of civil society and one senior government IAS officer, so as to ensure that the procedure is carried out without intervention of policemen and police station in question.

Absence of direct evidence

It is difficult in cases of custodial torture (“CT”) to expect any direct ocular evidence regarding the atrocities of police personnel, to substantiate the charge of death in lockups as police officers are the only witnesses who can narrate the circumstances of the death of victims in custody and they refrain from giving evidence due to ties of brotherhood. Hence, it should be ensured that there are CCTV recordings in all police stations and prisons, dashboard camera in all police vehicles, and personnel Body-Worn Camera for police officials conducting any arrest/detention to gather all possible evidence of the case.

Single integrated machinery of police

In most cases, Custodial Violence is committed in the course of investigation of offences by those police officers whose main function is the maintenance of peace and order, because the cognitive faculties which are required to be applied for investigation of offences are not the same as those needed to deal with breach of peace. Directions in this regard were given by the SC in Prakash Singh & Ors v. Union of India & Ors to bifurcate law and order wing and the investigation wing of the police by creating a Chinese-Wall between the two. This guideline of the Court must be implemented, so that focus can be fixated upon investing energy and resources in developing an efficient investigating agency which will abide by judicial means.

Victims of Custodial Torture are from weaker section of society

Custodial Violence /Torture is primarily found to breed amongst the weaker and suppressed section of the society, they are ignorant of their rights and procedures of law and thereby are unable to protect their interests. State Government should therefore be directed to carry out such awareness drives in collaboration with NGOs to make the public at large aware of their rights, remedies and limitation of police powers under CrPC and judicial decisions, and such information should also be displayed on all possible public places, especially at police stations.

Abuse of Sanction under Section 197 of CrPC

Public servants can be tried for committing offences in discharge of their official duties only when a Sanction is granted by the superior authority under Section 197 of CrPC. Though this protection is not to be used to camouflage the commission of a crime, it is often misused by police officers committing Custodial Violence on the grounds that injuries inflicted on the person in the prison are a result of methodology used to interrogate him and ultimately the Sanction is either stalled or rejected, thus delaying the timely disposal of cases. Hence it should be directed that the law laid down by the SC in Vineet Narain v Union of India be modified and applied to cases of custodial torture to the effect that if the request to grant Sanction under Section 197 of CrPC for prosecution of delinquent police officers is not accepted within one month, then it shall be deemed to have been granted.

The matter is deferred by the SC until 7th October 2020 and at the perusal of the aforesaid correlation, it can be concluded that if the directions sought by the Advocate are passed by the Court, then they, along with the previously established guidelines, would simplify the investigation and adjudication process of cases of Custodial Violence.

Additional Contribution of the LCI.

While it is indisputable that the aforementioned directives enhance the CJ of India, but from a bare observation of backstories of cases of custodial torture it is apparent that the issue of inadequacy of custodial framework lies primarily at the grass-root level. In its 152nd Report, the LCI had observed that FIR under Section 154 of CrPC against Custodial Violence, by the kith and kin of the victim are generally not recorded by the police officers due to fellow-feeling, and because they are poor, they are not in the position to approach the higher officials or the High Court for redressal. Moreover, because the victims fear of retaliation by the superior officers, they are reluctant to disclose the details of police atrocities to the Magistrate, despite being physically examined by him under Section 167 of CrPC.  In this regard, the LCI had proposed two amendments.

Independent agency to record the FIR and investigate

A new section after Section 154 of CrPC should be inserted to enable the relatives of victims, on refusal by the police, to approach the Court of Session in a case of alleged CD and the Chief JM in a case of alleged Custodial Violence not resulting in death, to conduct a PI. If upon inquiry the authority is satisfied that action is called for, it shall direct the filling of a complaint before the competent Magistrate.

Right of accused to get himself examined

Section 54 of CrPC should be amended to make it mandatory for the Magistrate to enquire from the accused so as to whether any offence against his body is committed in custody by police officials, and intimate him that if it is so, then he has a right under law to get himself medically examined to afford evidence of such offence, all of which is to be done in the absence of any police officer. If the accused exercises this right, then he shall be examined by a registered medical practitioner, who shall make a medical report, the details of which shall also be specified in the Section.

The Indian Evidence (Amendment) Bill, 2016, passed on the recommendation of LCI’s 113th and 152nd Report, provides for the novel addition of Section 114B to the Indian Evidence Act, 1872 to strengthen the evidentiary aspect of adjudicating Custodial Violence. This provision envisages raising a presumption against the police officers when injury is proven to have been suffered by a person when he was in the police custody, but unfortunately is still pending before the Rajya Sabha.

Conclusion

In the words of former CJ of India, Dr A.S Anand, “torture is the very negation of human dignity and cuts at the roots of human rights”. What is essential to curb custodial torture is not only the tightening of the procedure of arrest of persons but also the process post the commission of CC and its adjudication. If these guidelines of arrest sought by the Senior Advocate, along with the recommendations of LCI and amendment proposed in the aforesaid Bill, are incorporated in the institution of CJ in India, they would certainly fill all the lacunae existing at all levels of arrest, investigation and adjudication of cases of custodial torture.


About the Author Sneha Palekar [2016-2021] is pursuing BA.LLB from ILS Law College, Pune affiliated to Savitribai Phule Pune University.


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