Custodial

TAMIL NADU CUSTODIAL DEATHS: Who Will Guard the Guards Themselves?

by Sanket Khandelwal and Shivanshu Tripathi

Introduction

In his literary piece, “Digital Fortress”, Dan Brown bases the plot around the working of an organization, the NSA, which snoops upon the citizens’ private communication data in pursuance of keeping terrorists and similar treacherous activities at bay. The plot brings to fore the frail gate between democracy and anarchy by building upon the idea of Quiscustodietipsos custodes (“Who will guard the guards themselves?”). This Latin phrase finds relevance in the events that transpired on 22nd June 2020 in Thoothukudi district of Tamil Nadu, where a man and his son, who kept their shops open during COVID-19 curfew hours, died in custody after being tortured at the hands of the police. The reports that followed, divulged extremely graphic details of the torture meted out on the duo. The brutality of the incident has re-ignited public debates surrounding the sustained domineering approach of the police, against those in custody, over the years, and the inadequacy of prevalent safeguards against custodial violence. This piece shall analyze the intrinsic shortcomings of these safeguards, the shoddy implementation of the same, and finally, pitch for the need for standalone legislation on custodial violence.

The Inefficiency of Prevalent Safeguards

Reports of custodial violence aren’t a rarity in India. And, surprisingly, there isn’t a dearth of provisions safeguarding the lives of those in custody either. These safeguards are even supplemented by punitive measures as well as civil monetary damage claims and can very well be termed comprehensive. The Supreme Court rolled out its first set of directives for the protection of rights of prisoners in the 1979 case of Sunil Batra v. Delhi Administration. It maintained that international protocols relating to prisoners’ rights must be strictly abided by to respect the sanctity of basic human rights of the prisoners. However, the Indian Judiciary’s first major tryst with custodial violence was the1987 case of D.K Basu v. State of West Bengal. The Apex Court, in its judgment, laid down 11 commandments, a figure which subsequently inflated to 20 by 2015 through various judgments, relating to arrests as well as rights of those in custody. The DK Basu judgments provide the fundamental jurisprudential framework against custodial violence, mostly focusing on procedural safeguards.

Supplementing the DK Basu case, there are a plethora of other judgments and provisions that deal with the issue of custodial violence. Schedule 1 of Criminal Procedure Code (CrPC) lists custodial death as a cognizable offence, which makes the registration of FIR mandatory under Section 154 of CrPC, as decided by the Supreme Court in Lalita Kumari vs Govt. of U.P.&Ors. Similarly, in the case of Smt. Nilabati Behera v State of Orissa and Ors., the Hon’ble Supreme Court laid down the procedure for providing compensation to the family members of those dying in custody and also did away with “sovereign immunity” as a defence since the proceedings involve the question of violation of a fundamental right.

Even the legislature proactively amended the CrPC in 2005 relying on the Supreme Court’s contention of the presence of “brotherhood-ties” within police which allegedly impeded investigation in custodial violence cases (State Of Madhya Pradesh v Shyamsunder Trivedi and Ors.). It inserted Section 176(1A) and 176(5) which mandate a parallel magisterial inquiry, alongside the investigation conducted by the police, in cases of death in police custody, and examination of the dead body within 24 hours by the nearest Civil Surgeon.

Despite such abundance in legislations and judicial orders relating to custodial violence, the statistics present an unpleasant image. According to the National Human Rights Commission (NHRC), as many as 1,723 deaths took place in judicial and police custody in 2019 alone. Notably, the deaths in police custody primarily resulted from torture. Another study by National Campaign Against Torture (NCAT), documenting 125 deaths in custody, showed as many as 93 deaths resulting from alleged torture by the police, while 24 deaths happening under “suspicious circumstances”.

One would principally attribute the shoddy implementation of laws as the reason behind such high numbers. But, as will be discussed subsequently, the prevalent safeguards themselves come across as intrinsically inefficient and, thus, fall short by a long way of satisfactorily dealing with the problem.

Indian Government’s Utter Disregard over the Years

Despite constant badgering at the international level, India has largely been indifferent to this grave human rights issue. Back in 2010, during US President Barack Obama’s visit to India, the lower house of the country’s parliament passed the “Prevention of Torture Bill”, as a way of feigning eagerness in ratifying the 1987 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), an International Convention which is yet to be ratified by 5 signatories, one being India. But since then, neither has the Bill come up for deliberation nor has India taken any step to come even remotely close to ratifying UNCAT. India is also a signatory to Universal Declaration of Human Rights (UDHR) which casts an even stronger obligation to protect everyone against inhumane treatment or torture in any form (Article 5) and also provides, anyone charged with a penal offence, the right to be presumed innocent (Article 11). These provisions are meant to do away with any possibility of hostile conduct towards those in custody. But all these international protocols fail to manifest into operative measures as India continues to employ 19th-century legislation, the Police Act, 1861, to regulate the police. This act stands largely antithetical to the UNGA adopted Code of Conduct for Law Enforcement Officials of 1979, Article 5 of which strictly prohibits law enforcement officials from inflicting, instigating or tolerating torture/inhumane treatment in any form.

The Problem with Existing Jurisprudence and the Need for Overt Legislation

Much like most other law enforcement problems in the country, the issue of hostile treatment in custody also has colonial origins. Over time, this tendency has slowly seeped into Indian society’s fabric, resulting in acceptance of hostile treatment as a customary norm, not only by the police but also by the general population. This internalization is one of the primary reasons that judicial safeguards fail to bring about desired results. The various guidelines put out by the Supreme court are rarely adhered to by the police force, due to insufficient training to wield their power responsibly, and the same is hardly ever challenged by the victims who consider such treatment to be normal.

One organ of the state that has seldom been held accountable for the prevalence of custodial violence in the country is the Judiciary. The Supreme Court has always been lauded for developing a comprehensive jurisprudence on custodial violence over the years which has provided the victims with highly innovative remedies to ensure accountability of the police force. The problem though lies in the considerably higher focus of this jurisprudence on Custodial “deaths” than over Custodial “torture”. That is not to say that there’s a complete absence of recognition of Custodial torture by the courts, but a greater focus over Custodial deaths has had the unfortunate effect of undermining of cases which involved “just” Custodial torture. For instance, the Supreme Court’s direction to report cases to the NHRC within 24 hours of their occurrence is limited to Custodial deaths. Even the granting of compensation is primarily undertaken in cases involving death in custody. These measures have resulted in fewer cases of Custodial torture being reported and even fewer victims of the same being compensated. Although the courts believed that addressing Custodial deaths would help in curbing Custodial torture entirely, the same never externalized giving desired results.

The structural problems with the prevalent judicial and legislative safeguards, as well as the lack of sensitization/training among the law enforcement agencies have brought about a culture of violence in custody, something which can be addressed effectively only by way of overt legislation. The call for such legislation has been made in the past as well, with two such drafts being prepared in the preceding decade itself, The Prevention of Torture Bill, 2010, and an amended draft of the same in 2017. But, unfortunately, these drafts were never properly deliberated upon in the parliament, courtesy of the absence of any push from the country’s various non-governmental human rights groups. The Tamil Nadu case has finally brought the issue of custodial violence into mainstream public discourse, resulting in widespread demand for such legislation to be taken up. Full-fledged and comprehensive legislation relating to custodial torture, if brought in, could provide for all the short-comings of existing safeguards. The existence of a complete legal framework to curb custodial torture at every level would obligate law enforcement agencies to conform with every provision/directive and would also provide definite punitive measures in case of violation of any. In addition to this, it would also help in providing a much more comprehensive definition to “custodial violence”.This would increase the ambit of the safeguards and consequently the legislation would come to help of victims subjected to any level of torture in custody, not exclusively limited to those dying out of it.

Having said that, full-length legislation won’t necessarily bring about an overnight change. The mindset of the presently serving police force is molded in accordance to the age-old practices that had been adopted by the generations preceding it and is firmly in place, but such legislation would act as a push towards modernization of techniques used by the law enforcement officials when dealing with prisoners. This might even pave the way for the development of better forensic capabilities across the country, something that would push the use of torture against prisoners completely out of the picture.

Conclusion

The menace of custodial torture continues to plague Indian prisons, and it’s high time the government gives in to the international persuasion and takes its first step towards ratification of UNCAT by adopting standalone anti-torture legislation. The government can subsequently build upon the positive efforts and try to bring in an over-arching change in the procedures employed by the law enforcers to extract confessions from those held in custody. Thus, overt legislation would act as a starting point for a complete overhaul of custodial treatment, as well as the outlook of the police force.

Even the Police force needs to undergo an urgent systemic change. The Police Act, 1860, which is being used to regulate the Police up until this day, was put in place by the colonial powers to serve their purpose by crushing any form of dissent or any movement for self-governance. Today, such a draconian piece of legislation would not find a place in any liberal jurisdiction all over the world. The act, thus, needs to be amended in accordance with international protocols/standards as well as India’s own democratic principles.

The amicus curiae in the DK Basu case, Senior Adv. Dr Abhishek Manu Singhvi has even filed a plea in the Supreme Court to revisit the case’s proceedings for fresh directions. Newer positive developments can be expected out of this plea, but unless and until the government itself pushes in for reform, newer guidelines would have no effect whatsoever. It needs to be noted that Law Commission, in its 152nd report (1994), had addressed issues pertaining to delay in filing of FIRs and conduction of parallel magisterial inquiry, but the government acted upon these recommendations only after a decade. During the preceding 10-year period, the recommendations were never deliberated upon and were left to being merely a scholarly work. If the government continues this trend of turning a blind eye to Law Commissions’ and NHRC’s recommendations and does nothing in pursuance of ratification of UNCAT, the guards would carry on with their exploits unguarded and, consequently, these grave human rights violations would continue unabated.

Views are personal.

Image credits: IndiaSpend

ABOUT THE AUTHOR

Sanket Khandelwal and Shivanshu Tripathi are currently pursuing law from Dr Ram Manohar Lohiya National Law University, Lucknow and National Law University, Odisha respectively.

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