Police in India: Protectors against Injustice or Perpetrators of Injustice?

By dimple and shiny , 4th year B.A.LLB(h).

Introduction

J Jayaraj and Bennix Immanuel were subjected to brutal torture in police custody and later succumbed to death. This was not the first incident. The prisoners in India have been subjected to torture and violence for a long time. The apex court has issued several guidelines in the matter but to no effect. The Police officers inflicting such injuries are often either transferred or are left with warnings. India has been a signatory to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) 1987, ratification of which is nowhere on the anvil. India has witnessed an increasing number of custodial deaths in the past but lacks any specific law catering to the prevention of custodial torture and safeguarding the prisoners from any sort of violence while in Police Custody, ensuring that their basic Human Rights are protected.

Custodial Violence in India

The issue of custodial deaths in India is often the most ignored topic and thus the number of deaths has increased manifold in the past few decades. The brotherhood between the policemen results in the non-disclosure of crucial information and biased inquiries. Often, the cause of violence is the refusal to pay bribes to police officials. The Apex Court while deciding the case of State of U.P v. Ram Sagar Yadav opined that the law of evidence in India should be amended in such a manner so as to put the burden of proof on the Police officer accused of custodial violence. It is also important to note that at the point of time when the person is in police custody and is subjected to any kind of violence or atrocity, no one other than the police officer in charge can give evidence with regards to the facts and the circumstances that led to violence. This provides the accused police officer with an opportunity to conceal the facts to their benefit, to prevent any legal action against themselves. Furthermore, in the case of Smt. Nilabati Behera alias Lalit Behera v. State of Orissa and others, the Supreme Court of India proceeded to take the view that even convicts, prisoners and persons under trial have right to life under Article 21 and once an incumbent is taken into custody and there are injuries on his body, then State will have to explain, as to how he sustained the injuries, and compensation can be awarded under public law remedy. A total of as many as 1731 people died in custody in the year 2019, a staggering number that should attract the lawmakers. Police abuse reflects the failure of the government to implement the accountability mechanism and thus needs to be improved.

Defiance of Constitutional and Statutory provisions

Over the years, Indian Courts have recognized the rights of persons under trial and being arrested. In the case of T.V. Vatheeswaran v. State of Tamil Nadu, the Hon’ble Supreme Court held that the basic fundamental rights of a human being do not cease to exist when he is confined in the four walls of a prison and, therefore, must be respected at all times.

In spite of having constitutional and statutory provisions in place to secure the rights of persons being arrested, we saw a barbaric and brutal murder of the father-son duo in Tamil Nadu by the police officials, who seemed to pay no heed to the laws in force. The police officials not only violated the constitutional rights granted to them by the Constitution under Article 14, 19, 21 and 22 which are inalienable but also surpassed several statutory provisions including those of the Code of Criminal Procedure.  Over the years, the Apex Court has given a broad interpretation of the term ‘life’ to include the right to a speedy trial and the right against cruelty and excessive punishment among many others.

The Criminal Procedure Code, 1973 further safeguards the interests of the accused by empowering the magistrate under section 176 (1) of CrPC to hold an independent inquiry, finding the cause of the unnatural death of a person in custody. The insertion of section 176 (1A) has laid down special provisions to deal with cases of death, disappearance or rape in police custody, wherein such cases the magistrate shall have to hold an inquiry other than the inquiry or investigation by police. The section uses the word “shall” and, therefore, it makes it mandatory for the magistrate to hold an inquiry in such matters.  The Code also puts a check on the power of the Magistrate to order remand by providing in Section 167(2) proviso (b) that the magistrate cannot order the detention of the accused under police custody for a period of more than 24 hours unless the accused is produced before him in person for the first time, and subsequently, every time till he remains in the custody of the police. Rule 6 of the Tamil Nadu Criminal Rules of Practice further provides that a person cannot be detained under police custody without producing him in person before the magistrate, who has to duty to check for any physical injuries on the body of the accused.

Humans Rights have always been part of a discussion on a global level, there are several treaties and conventions in place that require states to abstain from acts of torture and inhumane activities on prisoners. Some of them include the Universal Declaration of Human Rights, The International Convention on Civil and Political Rights, ‘United Nations basic principles for the treatment of prisoners’ and ‘United Nations Convention against torture and other cruel, inhuman and degrading treatment or punishment’ (UNCAT).

The police officials responsible for the death of Jayaraj and Bennix breached the fundamental and statutory rights of the father-son duo. They were arrested without a warrant for a non-cognizable offence and instead of being taken to one of the nearby police stations, were taken to one that was 80 km away from the place of the offence. Furthermore, the Magistrate in charge of the Sattankulam district never examined the accused, who had sustained multiple injuries as a result of police violence and passed the remand order. There are several other cases of custodial violence in our country that go unreported and unaccounted for. It becomes all the more saddening when administrative authorities and political parties join hands with these police forces and support using all necessary means to extract confessions out of prisoners which goes against their rights.

In the celebrated case of D.K. Basu v. State of West Bengal, the Hon’ble Apex Court issued guidelines that were necessary to be followed by police personnel in case of making an arrest. These guidelines were necessary to ensure that the person being arrested is informed about his rights and also his family is made aware of his whereabouts. But the police authorities seldom overstep the powers granted to them under the law and are able to escape responsibility for their actions.

Time to bring systemic reforms

With an unfortunate incident in Tamil Nadu, the need to have strict laws with its proper implementation has again gained momentum. Even after 40 years of signing the UNCAT, India has failed to ratify it. The Government of India, in the year 2010, introduced Prevention of Torture Bill, 2010 which was passed by the lower house and was sent for to the Select Committee by the Rajya Sabha. The Committee suggested various amendments to the bill but before they could be incorporated the bill lapsed and the government also did not show any urgency to enact a revised torture bill. Later, the 273^rd Law Commission’s Report provided recommendations on the Prevention of Torture Bill. The commission recommended making provisions for punishment which included sentence for life to officials convicted for any kind of torture and inhumane treatment. However, the recommendations by the commission could not find its way to become a legislation. A new bill was also introduced in 2018 in the Lok Sabha and is still under discussion. With the rise in cases of custodial deaths, there is an urgent need to Police the Police and to make them accountable for their actions. It is pertinent that our legislators should bring about legislation to bring into force strict laws that would have a deterrence effect on the police and prevent any further unnecessary loss of lives. Poor implementation of existing provisions, unaccountability of Police officers and lack of proper investigation by the magistrate as empowered by law have all resulted in providing impunity. The seriousness of the issue goes beyond mere suspension or transfer of the concerned official. Strict actions are must so as to serve the purpose of law and to create deterrence which in turn can be a turning stone in the prevention of such custodial violence in the future.

Conclusion

The issue of custodial deaths which is often left undebated and unspoken has once again attracted attention. The need to make reforms and bring about legislative changes is the need of the hour. What happened with J Jayaraj and Bennix Immanuel, should not happen with any other individual. The legislators need to understand the seriousness of the issue and appropriate measures should be taken to prevent the loss of lives in such a tragic and inhumane way. The failure of existing legal provisions has not only let the injustice happen to those who were subjected to torture in custody but has also let those policemen roam free. Those involved in the process should be made more accountable and answerable for their actions. The magistrate has been provided with special legislative powers to conduct an inquiry into the matters relating to the unnatural death of individuals in custody and a mandatory inquiry under section 176 (1A). But, the power is rarely used. With over 300 custodial deaths between 2008-2016, the conviction rate still stands at zero. Strict actions are a must so as to serve the purpose of law and to create deterrence which in turn can be a turning stone in the prevention of such custodial violence in the future.