Education

Custodial Deaths unveil the hapless state of rule of law in India

The nation is reeling from the brutal killings of P.Jayaraj and his son J.Bennix of Tamil Nadu. The father-son duo was taken into custody by the police after being alleged to have kept their shop open 15 minutes post-state government-imposed curfew. They were taken into custody on 19th June and were declared dead 4 days later. Their deaths were followed by public outrage, protests, and Tamil Nadu Trader’s Association shutting down to highlight Police highhandedness. The case brought forward the ugly truth of the power dynamic between authorities and citizens raised questions, and have shaken the faith in the police and justice system. With “Black Lives Matter” being a global movement against not only racism but also police brutality; it is time to assess whether India is wilfully turning away from accountability in cases of police brutality and custodial deaths. The tragic deaths of P.Jayaraj and J.Bennix have compelled citizens to question the system which refuses to hold public officials accountable for their criminal wrongdoings and seek the legal provisions and constitutional rights they trample upon in doing so.

STATISTICS POINTING TO BLATANT LACK OF ACCOUNTABILITY

The data under mentioned represents the sad ratio of the recorded cases and the convicted police personnel. Custody deaths have been on the rise with the percentage increasing from 92% in 2016 to 100% in 2017. The National Human Rights Commission in 2019 noted 1723 cases of deaths in custody. Similarly, a very small per cent only 4.3% of the 70 deaths in India were responsible for the physical injuries caused during the custody by the police. The rest of the deaths were attributed to be because of suicide or other reasons.

India was one of the signatories at the United Nations’ Convention Against Torture in 1997, but still, India has not ratified the convention. The Law Commission in its 273rd report has put forward an anti-torture law, “The Prevention of Torture Bill, 2017 but the bill was not passed and lapsed because it was absurd, harsh, and not reformative.

THE JUSTIFICATION FOR TORTURE PRACTICES

Duration is one of the prime reasons accounted for by Police Officials. The accused is to be presented in front of the Magistrate within 24 hours under CrPC. The time constraints make it imperative for the police officials to conduct a thorough interrogation before the suspect may be granted bail. The use of force in such cases acts as a way to form pressure and exert dominance on the suspect to conduct a fair interrogation and extract information.

The second reason is attributed to the distrust of their profession. The police do not have anything of evidentiary value like in the case of the western countries where the statements of the accused are verified and signed by him.

Another reason has also emerged as a recovery. Confessions acquired under torture are inadmissible in court; yet, Section 27 of the Indian Evidence Act, 1872 allows any material that leads to discovery along with that part of the confession to be admissible in court. This places the responsibility of extracting such a confession on the shoulders of the Police Department.

LEGALITY SURROUNDING THE MATTER

Torture is not defined in the Indian Penal Code. In their recent statement, the National Commission Against Torture stated that “the Indian Penal Code (IPC) does not adequately criminalize the offences of torture and other cruel, inhuman or degrading treatment or punishment when these constitutional and legal safeguards are violated by the public servants.” Home Minister Amit Shah in a statement said that the era of third-degree torture was over and the Police should use forensic science to investigate cases. However, the Ministry of Home Affairs, unfortunately, hasn’t included torture in its first and second consultations in the questionnaire for Substantive Criminal Law. This is unfortunate considering the possibility of not only false cases but also human rights violations.

India follows the ‘Rule of Law’ yet the police on behalf of the State continue to commit heinous crimes like rape, physical and mental injuries, custodial death, etc. The crimes committed by the State during custody/trials infringe on the fundamental rights, the basic rights guaranteed by the State itself. Article 21 of the Indian Constitution bestows that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” The right to counsel is treated as a fundamental right in Article 22(1). Here, the right to life doesn’t only amount to existence but qualitative existence. Justice P.N. Bhagwati recognizes Human Rights as eternal rights, they are inherited in humans. These rights are guaranteed to every human irrespective of him being a normal innocent citizen or a prisoner. Similarly, Article 22 “Protection against arrest and detention in certain cases.” Enough laws are governing the citizens; still cases of custodial violence, death is coming into the picture.

D.K. Basu v. State of West Bengal highlights how mere punishing the offender will not be just, rewarding compensation to the aggrieved family is very necessary for public law as well. The reason being the fundamental rights of the citizens have been infringed because the State failed to protect it. The family may lose its bread owner in the police custody. The same has happened in the case of P.Jayaraj and his son J.Bennix. In Munshi Singh Gautam v. State of Madhya Pradesh, the Supreme Court stated that “The dehumanizing torture, assault, and death in custody which has assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system…”

REFORMS TO CURB THE PRACTICE OF CUSTODIAL TORTURE         

“The State should own responsibility for injuries caused by its agents on citizens… while dealing with the plea of sovereign immunity, the courts will bear in mind that it is the citizens who are entitled to fundamental rights, and not the agents of the State,” the Law Commission recommended the Centre.

The Apex Court of India gave an important judgment on custodial deaths in 2006 which stated that every State should have a Police Complaints Authority. This would increase the trust of citizens’ in case they are wronged at the hands of the agents of the law. However, to date, only a few states have implemented the same.

In most cases, when there is massive public outrage or the intensity of the brutality perpetrated by the men in Khaki is extreme, the Policemen at fault are at most suspended for a short period or transferred and in most cases, are given a paid leave. In order to change and reform the system, accountability at grass root level should be enforced. Being a government agent should grant impunity to them as it would only lead to misuse of power. Those in power should be tried for their unconstitutional behaviour just like any other citizen.

Along with the given suggestions, a third party official belonging to either the Human Rights Commission or Police Complaint Authority should be mandated to conduct regular surveillance inspections to assert that the police force is under surveillance too. A monthly report from various jurisdictions submitted to State Authorities will also help in maintaining a stringent third-party written record.

The guidelines need to be laid down for the speedy, timely, efficient, effective investigation of complaints and torture and what relief can the victim avail, if in any case he is left alive, which is again a rare scenario.

CONCLUSION

Police brutality shakes the confidence of the citizens entrusted in the State and go against the very principles of Natural Justice. The state having resolved to protect the citizens fails in such cases to adhere to the same. Custodial deaths take away from the very essence of security and trust law is implemented to maintain. The first and foremost work of the State is to dispense justice. The horrifying cases of Custodial deaths unveil the underlying faulty systems and archaic malpractices that continue to exist in law enforcement systems. The lack of initiative and action against this wrongful practice clearly exhibits; the menace of Custodial torture isn’t going to be a thing of the past any time soon.

This article is authored by Ishita Sharma and Amita Namdeo, 2nd-year Students from Dharmashastra National Law University, Jabalpur

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