Updated: Aug 26, 2020
The recent spate of gruesome custodial deaths in the states of Tamil Nadu and Uttar Pradesh has triggered a public debate on legal safeguards against custodial torture in India. The National Human Rights Commission (“NHRC”), in the exercise of its power under the Protection of Human Rights Act, 1993, has sought a report from certain Indian states for custodial deaths during the nationwide lockdown imposed in the wake of the COVID-19 pandemic. The NHRC’s practice of disposing of cases by virtue of directions to the police authorities has also been problematic as it gives rise to the possibility of biased investigations. India’s tryst with custodial atrocities is a reflection of multiple stumbling blocks in the police administration. It calls for a thorough review of procedural criminal laws and judicial precedents. The gaps in implementation have to be identified and corrected to uphold due process. The prospect of ratifying the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment must also be explored immediately to stem the tide of custodial excesses.
National Statistics on Custodial Torture
According to the National Campaign Against Torture, members of the marginalised communities disproportionately bear the brunt of custodial torture. Recent surveys affirm attitudes of anti-minority bias in the police force. An application has been filed before the Supreme Court of India recently seeking the court’s intervention in curbing custodial violence. It cites the 2017-18 Annual Report of the NHRC wherein the Commission had been notified of 1,636 deaths in judicial custody and 148 deaths in police custody.
Yet, the NHRC could recommend prosecution only in 1.2% of the total number of cases. The low prosecution-rate can also be gathered from the 2018 Crime in India statistics published by the National Crime Record Bureau. It states that a charge-sheet has been filed in merely 5 out of the 70 instances of custodial deaths. Partisan investigations into custodial torture have detrimentally plagued the criminal justice system despite progressive judicial pronouncements.
Judicial Interventions: Emphasis on an Impartial Investigation
The Supreme Court has previously viewed custodial torture through the prism of policy reforms to curb excesses by functionaries. It has observed that normalising torture, assault and death in police custody raise serious apprehension about the credibility of the criminal justice system. Moreover, in the landmark case of Nilabati Behara v. State of Orissa, the court awarded compensation to family members of a custodial torture victim as it constitutes a violation of the right to life under Article 21 of the Constitution of India. It is thus evident that the Indian judiciary has taken an unequivocal stance against the menace of custodial torture to preserve the sanctity of the Constitution.
The emphasis has particularly been on formulating a procedural safety net that would minimise custodial excesses. In D.K. Basu v. State of West Bengal, the court insisted on greater transparency in recording of detentions and careful inspection of arrest memos by the magistrate. The apex court had also formulated a set of guidelines to ensure the independence of the investigation. It explicitly prohibited the bestowal of incentives such as out-of-promotions or gallantry awards to police officers in recognition of their capability to conduct false encounters. Rewarding of delinquency by the political executive cultivates a culture of impunity. It also provided a mechanism for the intervention of the NHRC in case there were serious concerns about the impartial investigation. The NHRC has directed District Magistrates and Superintendents of Police to promptly report incidents of custodial deaths within twenty-four hours to the Secretary-General of the Commission recently,
In Prakash Singh v. Union of India, the Supreme Court had advanced a proposal to set up a police complaints authority at the state level which would take cognizance of public complaints alleging serious misconduct by police personnel in custody, including acts of death, grievous hurt or rape. The object of the court was to minimise political interference and preserve the integrity of the investigation process. It envisaged the creation of a state security commission as an independent watchdog to evaluate the performance of the state police.
The glaring prevalence of custodial deaths, however, outlines a disconcerting trend. An independent assessment by the Commonwealth Human Rights Initiative reveals that states have failed to comply with the Supreme Court’s directives in the Prakash Singh judgement. A significant problem in implementation has been that the wall of separation envisaged between the political executive and the police investigations continue to be breached. Investigations are vitiated by biases as police actions are often directed to appease public sentiment and serve the constituency of the political executive. I
Recommendations of the Law Commission: Ratification of the Torture Convention
India’s international obligations stemming from Article 5 of the UDHR and Article 7 of the ICCPR. These identical provisions prohibit the infliction of torture or cruel, inhuman or degrading treatment. The prevention of torture has also been recognised as a pre-emptory norm of international law. The consistent reluctance of the government to ratify the United Nations Convention Against Torture can be been identified as a major hurdle in ensuring compliance to the guidelines formulated by courts. It has led to a significant accountability deficit and also offers scope for recent human rights violations.
The Law of Commission of India in its 273rd Report had recommended immediate ratification of its draft Prevention of Torture Bill, 2017. The Bill provided for stringent punishment to delinquent policemen and provided for compensation to victims. It also incorporated a protection mechanism to safeguard victims and witnesses. The Bill was envisaged as enabling legislation that would accompany the ratification of the Convention against Torture. Furthermore, the Law Commission in its113th Report had first suggested the insertion of Section 114B in the Indian Evidence Act to raise the presumption of custodial torture against the police in the event it is established that an injury or death was caused in police custody. The insertion of such a provision could add necessary leverage to the torture prohibition law. The 152nd Report of the Commission has been critical of ineffective investigations into custodial torture which were conducted as a matter of formality by executive magistrates. It led to an amendment to the Code of Criminal Procedure which inserted Section 176 (1A) for initiating a judicial enquiry in case of deaths, the disappearance of persons or rape in the custody of the police. Recently, the Supreme Court has issued a notice to the Centre and states to ensure implementation of the mandatory provision as most states continue to have a dismal record in discharging the obligation. A petition had also been filed before the court seeking directions for the urgent ratification of the Convention against Torture.
The Indian government demonstrated an ostensible commitment to ratify the Torture Convention in the third cycle of the Universal Periodic Review of Human Rights Obligations before the United Nations Human Rights Council recently. However, a prior bill, proposed in 2010 has also lapsed due to a demonstrable lack of political will. Piecemeal judicial interventions have failed to fill the void so far. Therefore, the time has come to legislate a holistic national torture prohibition law which can gradually dismantle the culture of impunity that has firmly been entrenched in India’s police system.
Besides stringent punishment, the law must devise an independent investigative authority in consonance to the mandate of the Torture Convention such that it is insulated from political pressure and is receptive to public complaints. It will ensure that the fairness of investigations is not compromised. The investigation has to be mandatorily completed within a fixed time-frame. A rehabilitation scheme for victims of torture or compensation for family members of victims must also be incorporated.
There is an urgent need for the NHRC to demonstrate greater activism and conduct independent investigations into custodial torture. A robust witness protection mechanism as conceived by the Supreme Court in Mahender Chawla v. Union of India must be institutionalised in due course. Lastly, the enactment of a torture prohibition law is not sufficient. It must be supplemented by sensitisation exercises to address the anti-minority prejudices prevalent in sections of the police force. Police training, therefore, needs to undergo a major transition. The rule of law cannot be allowed to yield to a majoritarian conception of instant justice.
Title Image Source: NewsClick
The article has been written by Rongeet Poddar and Shrutika Pandey.
Rongeet is a graduate from the West Bengal National University of Juridical Sciences at Kolkata, India. Shrutika has been engaged with Human Rights Defenders Alert at New Delhi as a Litigation Assistant.