Torture behind the Bars - Custodial Violence and Selective Silence

Custodial torture and the selective silence is the largest organized gang of criminals in the country.
Justice A.N Mulla

A Quote by Justice A.N Mulla that is being reiterated all over the world, was given nearly half a century ago. The article elucidates to the readers how the powers that were attributed to the public servants of our country to serve the nation are being exploited and are deemed as a license to take away the life of the offender on their whims and fancies without ensuring the culprit’s fair trial in the Court of Law. It stresses the need for the reformation of existing laws and formulation of the novel ones to ensure that the alleged offenders do not become the victims of Police Custodial Torture and Brutality and the pure soul of justice is not blemished by the inhuman behavior of the police personnel.

The objective of the study is to highlight the augmenting trends of custodial torture and fake encounters in recent decades. The study aims to formulate reasons and statistics of custodial torture and what can be done to pacify such custodial torture. The objective is to highlight statues and acts present to curb such atrocity. The gross injustice has had a fatal effect on society and the rights of the person are so deeply exploited. The study also tends to show the number of deaths and cases of violence according to the data presented.

The significance of the study is to adumbrate that even the authorized personnel or people who look-after the state are violating and dissuading from the fundamental rights. The custodian of justice, the policeman, and the state authorities are fundamental for the smooth functioning of the nation. Nonetheless, the same people violate the rights. The study will feature the cases of violence in the recent past, reasons for the injustice, and the policies formulated to curb it.

Introduction

Our Constitution and various codified laws provide impunity to the public servants in performing their relevant tasks. Similarly, policemen have been given all the rights to save their own person and inflict injuries on the offender if the situation demands. Some of them include-:

Section 46(2) of the Code of Criminal Procedure empowers the policemen to use all the force necessary in order to apprehend the perpetrator who’s escaping the arrest.
Exception 3 of Section 300 of the Indian Penal Code does not make the Police officer liable for murder if it was necessary to save his own person or for the arrest of the offender.
Section 96 and 100 of the Indian Penal Code confers the right of Private defense to the Police officers, However, for availing this right it must pass the test that has been incorporated in section 99 of IPC.
Section 197 of the Code of Criminal Procedure, explicitly mentions that no public servant would be punished or prosecuted if the offense was committed by them in furtherance of their duty.

But when these rights are misused by the Police force it turns into brutality and the killings are not the encounters but the cold-blooded murders. It is equally a gruesome crime on the part of the policeman to take the life of a person deliberately by acting himself as an adjudicator without the proper trial in the Courtroom and the same has been mentioned in Article 6(1) of the International Covenant on Civil and Political Rights.

Statistical Overview

According to the NCRB Data, deaths in custody between 2001 and 2018 were almost about 1,727, but only 810 cases of violence were duly recorded whereas 58 were such cases that were never presented in the court of law. The National Campaign against Torture report stated that out of 125 deaths, 93 were due to police atrocity.

Year	Deaths under Custody
2011-2012	108
2012-2013	118
2013-2014	93
2014-2015	97
2015-2016	92
2016-2017	145

How can the killing of a prisoner, who is unarmed and in the custody of the Police force, be justified? There are ample questions that raise the concern of the general public about the atrocities that are being cast by the police in the name of their duty. However, by the extra-judicial killings of terrorists and some dreaded criminals, police authority may gain some confidence of the public, as they get swayed by emotions, but no matter how unscrupulous the criminal is, he has to be brought within the ambit of justice through the procedure established by law and not otherwise. It was categorically mentioned by the honorable Supreme Court of India in the prominent Maneka Gandhi Case that it is imperative to govern everything according to the procedure established by law which cannot be anything but reasonable.

Criminal Jurisprudence in India upholds the notion of innocent until proven guilty, which is also entailed in Article 14(2) of the International Covenant on Civil and Political Rights, for the obvious reasons as the punishment that is awarded to the criminal is very fatal, therefore a proper investigation is required before executing or punishing the offender. The essence of Criminal Law is Mens Rea i.e., guilty mind, one cannot be punished under the criminal law until he has the guilty mind or wrong intention.

Similarly, if we look at the cases of Fake Encounters and Custodial Deaths, we can find the vestiges of mens rea, therefore both are equally criminal offenses leaving no distinction between them and other criminal offenses. A few decades back an act named, Protection of Human Rights, 1993 was passed, and subsequently, Nation Human Rights Commission was established to prevent the arbitrary barbarity of the policemen on the criminals and to protect their basic rights.

What seems to be the problem?

Police encounters and custodial death has been a threat to the justice system. The personnel who are granted prerogatives by the state ironically squander it. Custodial deaths and fake encounters have been a major issue though haven’t been given adequate attention nor been addressed. Even after the Supreme court guidelines, there was a significant rise in custodial death. Various crimes like Rape, Illegal Detention, or harassment are being conducted on the prisoners in the custody. Right of a person in custody guidelines have been formulated still there is much jeopardy. Police are slaughtering justice and not following the due course of law. The statistical study shows a rampant and clear picture of the custodial violence in the country and how it can be curbed is the most perturbing problem.

Literature Review

According to Hon’ble Justice Krishna Iyer, who is an avid proponent of human rights stated in one of his judgments – Who will police the Police? Custodial violence and the subsequent deaths have jeopardized the basic human rights laws to such an extent that it has become a blot on our justice system.

An eminent writer of the Deccanherald, Murali Kannan mentions in his blog the atrocity of police has taken a toll on society. Hidden in the garb of legal immunity, they misuse the prerogative provided to them. The recent case of death of father and son in Tamil Nadu in police custody has incited people against the wrongdoings that have been prevalent in the society. The question which is raised here is how the unscrupulous police manhandle the person in custody in derogation of their fundamental rights. The custodian of people has itself become the perpetrator. He also stated that though many statutes and conventions are passed to prevent custodial violence yet it is done so clandestinely that even the courts become biased.

In another article based on the same line, author Joshua N. Aston in his book ‘Torture behind the bars’ throws light on the accountability of the police force and how can reforms be brought to curb the brazen act of custodial violence. Can the crime committed by police be dealt with in the same way as any civilian because no entity has the right to derogate the fundamental right of any person as enshrined in Article 21 of the Indian Constitution. He further enumerates that the custodial torture or the ill-act by the police is considered to be moral and as a form of reformative justice, though the exploitation of the persons is generally condoned.

Questions that need to be asked

Why even after stringent laws, custodial violence and fake encounters are mushrooming?
Can the fundamental right of the prisoners be abridged by the police personnel?
Why in the present context where the adage’ All lives matter’ is used, is the inhuman brutality of custodial violence justified?

Conclusion

Custodial violence is the savagery that is undertaken in legal guardianship where a person or the detainee is tormented unjustly. It includes death, custodial torture, or brutality. This is certainly nothing new. The law officers had been using it on detainees, hoodlums, and transgressors for ages, yet in this period it is a cause of worry.

In India, a report on custodial violence uncovers that 1606 deaths occurred in police custody. The fundamental reason for such is that the powers which are given to the cops to do in their real capacities are abused to torment individuals, devastate lives and persecute the weak. Custodial death is predominant in India. It is one of the most awful wrongdoings for the public in the light of the fact that it is not done by a criminal rather the protector himself. That face that rapes. Beating, hitting in private parts is more disheartening. The most pertinent question is why the police force lacks basic human respect.

An incessant increase in the number of custodial death has raised the question of police brutality and police accountability and the offense seems nothing but State-sponsored terrorism. It sounds quite a hypocrite when the whole world is talking that there should be no racial discrimination and ALL LIVES MATTER but at the same time fail to raise their voices unanimously against the vicious treatment that is being given by the Police to the prisoners who are incarcerated and bereft of any kind support.

Our legal system has been divided into three parts, namely – Legislative, Executive, and Judiciary so that every authority can independently perform their relevant task with full honesty and sincerity without encroaching into the role of the other authorities. If the Policemen are going to kill the offenders without ensuring their fair trial then what is the role of the Judiciary in our country?

Remarks

It is high time we realize that staged encounters or any kind of police brutality, be it Palghar lynching, indiscriminate use of lathis on people during the lockdown, or custodial death is not an alternative for a trial. Our laws have been codified and each public servant has been designated with a specific role to which he should adhere to.

Similarly, exoneration of the accused because of the lack of evidence or witnesses cannot be accepted as an excuse for the cruelty by police. The callous attitude of the Police personnel regarding the laws made to prevent any kind of vicious activity on their part has to be dealt with sternly and steely actions should to taken to prevent the cruelness against the meek offenders who have been conferred with the right to legal aid.

Compromising the liberty or taking away the life of an individual is not the function that the police personnel is authorized to do unless in some special circumstances. By deliberately exceeding their authority and acting as a judge they are desecrating the sacred Constitution of India and encroaching the portfolio that is assigned to the judiciary. At this juncture, it is difficult to comprehend that in the stifle between Rule of law and police brutality, it is who’s winning? It is a blot on society and the protectors have become the gruesome perpetrators in society.

Editor’s Note
The author of this article provides insights into the prevailing problem of custodial violence using various statistical data. He then goes on to explain the objectives and the significance of rising trends of custodial violence in the country. The author raises some important questions pertaining to the increase in police brutality despite there being various checks and balances to deter the same. The author concludes with his closing remarks inferring that the due process of law should never be undermined.

Submitted by Amal Tripathi, 3rd Year Student pursuing B.A.LL.B (Hons.) from Rajiv Gandhi National University of Law, Patiala.