In the same week when the world marked International Day to honour victims of Torture (26th June), a father-son duo succumbed to death in a prison cell of Thoothukudi district of Tamil Nadu for keeping their shop open amidst the Covid-19 curfew hours. The murderous police assault, constant beating and unending brutal torture by the police officials is an acute demonstration of the shattered criminal justice system which urges India to enact a stringent law to prohibit and prosecute torture and custodial deaths happening within the four walls of detention Police violence and custodial deaths continue to be rampant in the country, they act as an impediment to justice and fair trial. India is among one the few countries yet to ratify the UN Convention against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishment (“UNCAT”), 1987. This article analyses the existing provisions against custodial violence in India. It also provides a detailed account of the judicial decisions and their effect on curbing the same across the nation.
A Dearth of Legislative Provisions to Address Custodial Violence
The National Crime Records Bureau’s (NCRB) latest report (2018) recorded 70 deaths in the police custody of which 12 deaths were from Tamil Nadu, the second-highest after Gujarat, with 14 deaths. The failure to uphold the right to life of a person in custody represents lack of commitment to the idea of avoidance of physical abuse and torture regardless of holding the view that the show against torment relates to the Indian ethos of the democratic system and that of the rule of law and individual liberty. It has been held in a catena of decisions that an individual in custody cannot be denied his fundamental rights, and its infringement grants the legal right to an individual to move the Supreme Court (SC) under Art. 32 of the Constitution of India. On multiple occasions, Art. 21 of the Indian Constitution has been comprehended in the Indian Judiciary as a right to be free from torture, recognized first in the case of T.V. Vatheeswaran v State of Tamil Nadu (SC)in 1983 stating that “the walls of prison cannot keep fundamental rights out.”
If we consider statutory safeguards of custodial violence in India, custodial torture is not expressly prohibited by law. Sec. 24 and Sec. 25 of the Indian Evidence Act, 1872 provide that “a confession under police custody cannot be proved as against a person accused of any offence and it must be shown that confession was made voluntarily other than an inducement, threat or promise.”Indeed, various provisions in the Indian Penal Code, 1860 (Sec. 330, 331, 342 and 348) have been designed to “deter” a cop from resorting to third-degree methods during interrogation causing ‘torture’, but none of the provisions has expressly denied the police officers from practicing it.
Analysing Evolution of the Right Through Judicial Decisions
Tracing back to the reputed rulings by the judiciary in the context of reprehensible custodial deaths, the Supreme Court of India in D.K. Basu v. the State of Bengal held that “Custodial violence, including torture and death in lockups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law”. Striking this idea, the Supreme Court observed using torture in police custody is impermissible and offensive to Article 21 of the Constitution. The court, in this case, set out certain fundamental requirements to be followed in all instances of capture or detainment as a measure to forestall custodial brutality till legitimate arrangements are made on that. Remarkably, this was the first case that went further and applied the principle that ‘rights without remedies are illusionary and futile.’ Even though the D.K. Basu judgment has comprehensively covered the vital procedural safeguards, the operational spirit is not yet fulfilling as India still has abysmal rates of initiation of proceedings against the accused police officers. In addition to this, the actual convictions are still virtually non-existent.
In another notable judgment of Raghubir Singh vs, State of Haryana, violence and physical abuse were employed by the police to extract information that resulted in the death of a person suspected of theft. The court passed severe remarks stating that the “vulnerability of human rights assumes a traumatic, torturous poignancy. The violence is perpetrated by the policy arm of the state whose function is to protect the citizen and not to commit gruesome offences against them”. Certainly, after the Santhakulam Custodial Death Case (Tamil Nadu custodial deaths), the Tamil Nadu police officers and political activists are of the view that D.K. Basu judgment has only been applied in police custody and not in judicial custody. It is criticized that D.K. Basu is an all-encompassing loophole and ignorance of the procedure and distortion of the law.
In a series of cases, the Indian Judiciary has questioned the inescapable utilization of torture in custody, something that the parliament has refused to act upon. Although the Indian legislation in the past has tried to pass the Prevention of Torture Bill in 2010 and 2017 in order to give effect to the provision of the convention, it lapsed with the dissolution of 15th and 16thLok Sabha respectively. Little more than a theoretical structure is required to implement the operational spirit of D.K. Basu as it has become the need of the hour.
As in the landmark case of Kharak Singh v. State of Uttar Pradesh, the Supreme court concisely interpreted the scope of the term life used under Article 21 as something more than mere animal existence. The prisoners do not cease to be human beings even in imprisonment, and imprisonment does not spell farewell to their fundamental rights. Along with ensuring their fundamental and other essential rights, they should be given a better rehabilitative environment to improve them in making a better person throughout the prison term.
The administrations of the state and centre need to assume a greater liability to not only give them the foundation, labour and accommodating conditions but also give the information of rights to prisoners at the ideal time, to keep them away from conceivable, potential and unreasonable maltreatment by police officers inside the jails. Lately, the Santhakulam Custodial deaths case remains only one of the thousand instances which go noticed while a thousand others simply stay neglected. In addition to these measures, the bill ought to be handled soon in the central legislation to convert it into law. This will give effect to the UN Convention on Torture in order to uphold the prisoners’ rights in India. There is an urgent need to address and reform the Indian policing system keeping in mind the apex court’s observation that if the custodians of law themselves indulge in committing crimes, then no member of the society is safe and secure.
Title Image Source: Mronline
The article has been authored by Dhananjay Bhati who is a 4th-year law student at Unitedworld School of Law, Karnavati University. He has a vast interest in Constitutional and Human Rights law.