This article has been authored by Utkarsh Jha, a student at NLUJA Assam.
Custodial torture is a flagrant breach of human decency that damages a person's identity to a significant degree. It is a deliberate attack on human dignity and if human dignity is affected, humanity experiences a setback. It is not just the physical pain but the mental agony that the individual has to go through because of these brutalities. Whether it is a physical assault or rape in police custody, the extent of trauma an individual experiences is beyond the purview of the law.
However, as paradoxical as it may sound, it is a universal fact that police officers have been chastised and condemned for behaving in ways that are in clear contradiction to revered values. The biggest reason for this tragic situation is that the police can misuse the powers entrusted to them to carry out their legal and necessary duties, such as torturing people, destroying infrastructure, and oppressing and intimidating the poor. Nothing has tarnished the image of the police more than the brutality directed against individuals in police custody.
Custodial violence and abuse of power by police are not only peculiar to our country but are prevalent all around the globe. It has been a matter of great concern in the international community as it is not delineated to any region in particular. Despite the pious declaration of human rights in the Universal Declaration of Human Rights, 1948 which stated that no one shall be subjected to torture or degrading treatment or punishment, the crime continues unabated. Essential steps are being taken by various nations to eradicate such tortures. This article will discuss the issue of custodial torture and police brutality and suggest steps that can be taken to curb this menace.
Police Brutalities: Misuse of Power by the Police
In various cases, it has been observed that the police tend to agonize innocent people by implicating them on fake charges. The nefarious business of fabricating cases has far-reaching consequences for the country. The failure to locate, apprehend and punish the true perpetrators of terrorist offenses means that the perpetrators are safe and sound, ready to strike again. As a result, the framing of innocent people, especially in terror situations, puts national security in jeopardy. Pressure from the higher authorities is another aspect that contributes to custodial torture. When a heinous or brutal crime occurs, the senior officers are under constant pressure to arrest the perpetrators as soon as possible. The death of George Floyd in police custody in Minneapolis in May sparked worldwide outrage over police brutality, inequality, and discrimination.
But in India, one of the major issues is that no major grass-roots campaigns have taken place to combat the menace of police brutality. It has been observed that the Indian film and television industries have personified the police as some kind of super cops who can just thrash whoever they want wherever they want to eliminate the goons from society. However, this is not how the country or, for that matter, the police administration operates in reality.
The primary goal of the Indian Constitution has been to protect people's human dignity. Torture, on the other hand, violates and is an affront to the citizens' human rights recognized therein. Ill-treatment of inmates or criminals taints the whole concept of a democratic society and the absence of core laws governing police authority allows Khaki men to violate the rules, thus seizing absolute influence. It is the most heinous act that exists in any civilized society. Torture in police custody is an odious reality that the world now has to deal with. Even though the Universal Declaration of Human Rights, other international conventions, the Indian Constitution, and the judiciary have all denounced such heinous crimes, cases of such incidents have been frequently recorded in our community.
International Laws relating to Custodial Deaths
Custodial rape, torture, and police force abuse are not exclusive to this country. The international community has been concerned because the issue is universal and the threat is almost global. Custodial torture has been banned by many customary international laws, and has the highest status in the field of customary law, and supersedes all conventions and customary laws that include torture. On a global scale, custodial torture has long been criticized, and others have also openly advocated the use or abolition of the same.
After the atrocities of World War II, the UN general assembly drafted the Universal Declaration of Human Rights (UDHR) and inserted the provision for “Prohibiting the use of torture” under its ‘Article 5’. The article states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The inclusion of a ban on torture in this core human rights instrument opened the ways of entering this right in the extensive network of other international and human rights treaties.
Also, The UN General assembly adopted the Convention against Torture and Other Cruel, Inhuman or degrading treatment or Punishment (UNCAT) Convention in 1984 with the aim of making the struggle against the use of torture more effective in all countries. In total, 136 countries ratified the Convention. India had also signed the convention in 1977 and is amongst the few countries that have signed the convention but never ratified it.
There have been many cases of police torture internationally. Be it the case of George Floyd, Michael Brown or Eric Gardner in the US, who had been brutally executed while they were unarmed, or be it the hundreds of demonstrators, including at least 23 teenagers, who were shot and killed by the police during protests in Iran in November 2019. Witnesses in the Philippines have reported seeing police fire vulnerable people accused of consuming or trafficking drugs as they were pleading for help on the streets. Also, there have been instances of torture in Thailand and many other Middle-east countries where police brutality still remains in force.
The Ground Reality of Custodial Torture in India
Custodial death is perhaps one of the worst forms of crimes in a civilized society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution are required to be scrupulously protected. The problem cannot be whisked away. Any form of torture or cruel, inhuman, or degrading treatment would fall under the ambit of infringement of Article 21 of the Constitution, whether it occurs during investigation, interrogation, or otherwise. If government officials violate the law, it is bound to breed disdain for the law and promote lawlessness, and every man will have the propensity to become a law unto himself, contributing to anarchy. In the case of DK Basu v. State of West Bengal, it was observed that custodial deaths and any form of torture or cruel, inhuman or degrading treatment fall within the inhibition of Article 21 of the Constitution of India. This case thus established precedent by establishing rules for arresting a person; otherwise, further crimes would be committed in the name of justice. It safeguards all people by enforcing such legal processes that prohibit any violation of an individual's rights while in prison.
In the cases of Raghubir Singh v. State of Haryana and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr., the Hon’ble Supreme Court took note of these findings while condemning police custodial torture. It was also observed that "no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". Even after this pious announcement, the crime persists, despite the fact that every developed country expresses concern over this issue and works to eradicate it. It is only because of the devilish devices used by those in power who proclaim that they are the guardians of liberty and protectors of people's interests that it has reached disturbing heights in recent years all over the world. Despite this, they may not hesitate to condescend behind the curtain to unleash their men in uniform to settle personal scores, ostensibly unaware of what is going on while posing as peace-loving puritans and defenders of peoples' interests.
And, in the case of Gauri Shanker v State of Uttar Pradesh, three police officers were charged with crimes related to the death of Ram Dhiraj Tiwari while in police custody. The Supreme Court of India ruled that death in police custody must be taken seriously and it must be curbed harshly or else we will be moving in the direction of police raj. Detention, convictions, and individual rights are also covered by the precedents established in the aforementioned cases. This also involves installing CCTV in jails and police stations, as well as establishing a State Human Rights Committee to oversee prisoners and trials. Non-official observers are to be allowed to conduct surprise inspections of the jail.
Tackling the Menace of “Custodial Torture” and Probable Solutions
While the lack of key laws dealing with torture is a major flaw that India is currently experiencing, it would be dishonest to claim that judges or lawmakers completely disregard victims' rights. The Law Commission of India in its 273rd report focused on reforming the criminal justice system with regard to police atrocities and custodial torture. But there are certain concrete steps that should be taken and a system should be evolved so that this menace can be treated at the root level. The Central and state governments should devise a system that allows police to carry out their duties of combating crime in some manner while ensuring that the rights and freedoms of ordinary people are not violated. Furthermore, more frequent police training sessions can be held with a focus on educating officers about their legal and moral responsibilities to society. Any allegation of torture while in police detention should not be dismissed lightly rather, the court should pursue it aggressively to restore public confidence in our justice system.
While lawful detention empowers the police to detain suspects and place them in custody, it in no way authorizes these officials to circumvent the due process of justice by bringing the law into their own hands. Being a defendant should not negate a person's fundamental rights. The law establishes protocol and it is everyone's responsibility to follow it regardless of their position. Police officers should be mindful of the repercussions of violating the law, particularly in a nation like ours where the rule of law is preached. Today, India is in dire need of special laws which have a detailed description of torture, provisions for prosecution, justice for victims, and procedures for holding officials accountable, among other things. It is crucial that custodial violence is made a criminal offence under such legislation.