30 Jun Méndez’s antitorture vision is still distant for India (GS-2, The Hindu, Polity and Law)
Context:- Torture is the police excess physically, psychologically and emotionally. Juan E. Méndez recounts his fears while being tortured for “intelligence” by security forces of the military in 1970s Argentina. He was , former UN Special Rapporteur on Torture.
Facts about Custodial Torture in India:-
- According to The National Crime Records Bureau (NCRB) dataw which says, In between 2001 and 2018, a total of 1,727 persons have died in police custody including those in judicial remand and those who have been arrested but not yet produced before the court.
- 75% of the people who died in police custody because of tortured.
- More than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018 along with apart from custodial deaths. Top of that only 344 policemen were convicted in those cases.
Types of custodial torture in India:-
- Physical:- Physical torture on the victim includes beating, 3rd degree etc.
- Physiological:- It includes mental torture where person is unable to understand the things happening with him. For instance, depriving a person of food. It also includes threat and humiliation of the victim
- Sexual:- It is employed through rape/sodomy, Generally women are the victum of this abuse though it is not restricted to women only. It is directed towards the social and psychological harassment of the victims.
- Article 20: Right to protection against the conviction of offenses.
- Article 21: Right to life and liberty.
- Article 22: Right to protection against arrest and detention in certain circumstances:
- Being informed of the grounds of arrest.
- To be defended by a legal practitioner of his choice.
- Production in the nearest magistrate within 24 hours of the arrest.
- Indian evidence act, 1872: Under section 25 which mentions that a confession to a police officer cannot be proved as against a person accused of any offense.
- Code of criminal procedure, 1973 (amendment in 2008): Under the section 46 and 49 of the code protect those under custody, from torture, who are not accused of an offense punishable with death or life imprisonment.
- Indian police act, 1861: Under the section 7 and 29 of the Act provide for dismissal, penalty, or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.
- Indian penal code: Under the section 330, 331, and 348 were enacted to curb the tendency of policemen to resort to torture to extract confessions.
Judicial Pronouncements regarding custodial violence:-
- K. Basu v. State of West Bengal, 1987:- The Apex court observed that using torture is impermissible and offensive to Article 21.
- Munshi Singh Gautam and others vs the State of Madhya Pradesh:– The Supreme Court said that the dehumanizing torture, assault in alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.
- Rama Murthy v. State of Karnataka (1996):- Under this case SC while upholding fundamental rights of prisoners identified ‘Torture and ill-treatment’ in prisons as an area that needs reform.
- Nilabati Behera v. State of Orissa:- Supreme court ensured that the state could no longer escape liability in public law and had to be compelled to pay compensation.
Impact of Custodial deaths on society:-
- These deaths are against Human rights which deprives humans from right to life.
- Against rule of law as we say no one can be above the law but custodial death violates it.
- It leads to tyranny of State authorities there by loss of social capital.
- It leads to erosion of Democratic culture thereby weakening of democracy
- Disproportionately impacts the poor & vulnerable who don’t have access to tools of justice
- Increases burden on Judiciary for providing guidelines on police procedures
Reasons Behind Custodial Violence:-
- Absence of Strong Legislation: India does not have an anti-torture legislation which indirectly prmotes cutodial violence, while action against culpable officials remains illusory.
- The Indian state either denies the existence of torture in the country or defends its resistance to enact a law by claiming there are sufficient provisions in the domestic legal framework to prohibit and penalise torture which may be partially true.
- Institutional Challenges: The entire prison system is an inherently opaque system that creates a lack of transparency.
- Prison access is not provided without prior permission such as depositing “Rs. 1 lakh in the name of the superintendent of the concerned jail” before entry, this creates an indirect hindrance in access.
- Excessive scrutiny is done of all recorded or documented material in the prison.
- Lack of Prison Reforms and prisons continue to be affected by poor conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons.
- Excessive Force:- The use of excessive force including torture and 3rd degree to target marginalised communities and control people participating in movements or propagating ideologies which the state perceives as opposed to its stature.
- Lack of following the International Standard:- Although India has signed the United Nations Convention against Torture in 1997 its ratification still remains.
- State of prisons in India:-
- Indian prisons lack the facilities in medical, sanitation, security, and food in the prison.
- Lack of Manpower:- Ratio between crime rate and manpower is disproportionate which makes the enforcement of laws difficult.
- Non-ratification of UN Convention against torture:
- This United Nations convention against torture in 1997 was signed but not ratifed by India.
- Politicization of police: The Police Act, 1861 which governs the Indian police system has no explicit provisions on the superintendence and general control and directions of police. This leaves the executive with a lot of power to control the law enforcement authorities as per vested interests.
- Lack of police accountability:- The Prakash Singh guidelines of 2006 had recommended the constitution of an independent complaints authority to inquire into police misconduct. However, this has not been implemented by many states.
- Poor witness protection regime:- Investigations related to custodial killings often run into delays due to a lack of witnesses.
- The lack of strength in the institutional system to protect the witnesses result in the intimidation of the families of witnesses and thus, they turn hostile.
Why Custodial deaths still persist or Why police reforms are lagging behind?
- Long time to implement SC guidelines:- Prakash Singh is implemented by Tamil Nadu after 11 years which shows several States remain in contempt of the Supreme Court’s judgment
- Lack of Political will:- Continued institutional apathy from bureaucracy & political masters towards the issue of police reform has prevented reform in policing.
- Lack of Investigating officers and those who are there have little scope to develop specialisation in investigative work.
- Popular support to extrajudicial killing:- Popular films, political and public support to illegal police killings as in the Hyderabad ‘Disha’ case.
- There are legal provisions have the effect of indirectly.accommodating the use of torture in investigative practice in india.
- Three out of four personnel say that it is justified for the police to be violent towards “criminals”.
- National Human Rights Commission recorded that custodial violence and torture is so rampant in this country that it has become almost routine.
- Inadequate Powers of Judiciary:- The judiciary’s approach of simply passing directions and guidelines, has proven to be a failure. For judgements to transform into reality there is a need for money and a power of immediate implementation.
- The gap between the highest court and the lowly police officer in India: Despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police
- Culture of impunity: Madras High Court reportedly saw the Thoothukudi incident as the result of a “few bad apples” ruining a system’s reputation which leads to continuance of culture of impunity, which is further consolidated when accused policemen left free.
- Overworked magistrate: Struggling with an ever-exploding docket and in a rush to get done with the “remand case”, magistrate don’t treat an arrested person with the care and the consideration which leads to persistence of police brutality
- There would need to be a fundamental shift in police thinking.
- We can undertake the following measures to address the issue:
- Dk Basu guidelines: Implementing the 11-point guidelines mentioned in the DK Basu case by the Supreme Court.
- Implementation of Law Commission of India Reportso that accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
- Implementing Prison reforms: Prison reforms are required for ensuring humane conditions and security for the people in custody.
- CCTV cameras should be installed in police stations and in interrogation rooms so that it deter police man from violence.
- India should ratify the UN Convention Against Torture to curb custodial voilence.
- Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty. Reorientation must provide from present practices.
- Reforms in Prison:- Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed.