This article is written by Gaurav Kumar, from Surendranath law College (University of Calcutta). The arising incidents of custodial death under the shadow of state agencies have been discussed in the article.
Recently, the Tuticorin incident of custodial death has shaken the whole of humanity. The father P. Jairaj and his son Bennix, the duo had died in custody as they were arrested for violating the lockdown rules and tortured mercilessly in police custody. The brutal torture succumbed them to death. India has a very poor track record in terms of custodial death in the whole world. Speaking statistically, there were 1,731 custodial deaths in the year 2019 which stands for almost 5 people a day. This disturbing trend on custodial deaths shows that the law enforcement agencies have become the perpetrators and they are abusing their power.
The accountability of the police system has always been in question as to the way custodial deaths happens during torture. Another incident in the United States of America shook the whole world. A black man George Floyd was crunched on his neck by the policeman for up to nine minutes which led to his death. The incident happened in Minnesota state where the victim was alleged to have used a 20 dollar counterfeit note in a shop.
Most of the time, the foul play of brutal torture by the police agencies in the custody with the arrestee in the veil of obtaining the information as a part of their investigation leads the arrestee to death. This article deals with the increasing deaths in custody, the legislative silence and the perpetrator alike role played by the law enforcement agencies.
Police brutality : a disturbing scenario
Police brutality has become a common trend in India. A horrifying data of the National Human Rights Commission states that nearly 17,146 deaths were reported in the decade till March 2020. The large statistical data shows the brutality of the police and a violation of human rights in mass. The power politics of the State agencies always become the cause of death and justice becomes a nightmare for the deceased victim. The picture of a civilized society where the onus is perceived to be on the law enforcement agencies to maintain the law and order by eliminating the offenders gets reversed when the same agency adopts the role of the offender causing the death of the persons arrested in judicial custody.
Some of these torture incidents show the gruesome methods adopted by the police in the custody. In April 2019, one such incident was reported when Nabbir, a prisoner in Tihar jail complained that the superintendent of the jail forcefully burnt a symbol “om” on his back. In September 2019, the Durrang district in Assam witnessed another cruelty of police. The police arrested Minuwara Begum, a 28 years old pregnant lady in a kidnapping case and during torture, she was kicked in her belly so badly that she lost his child. The brutal behaviour of the police not only endangered her life but her child’s life was also lost due to miscarriage. A 30-year-old man in Bihar was reported to have been brutally tortured by the police in September 2019.
The Muslims and Dalits were most of the vulnerable communities in these torture incident. This discrimination of the police agencies against the Muslim and Dalit communities by providing a privilege of impunity under the shadow of the state shows the failure of the law enforcement agencies. Data collected from the annual reports of the National Human Rights Commission states in the period between 1995-1996 to 2017-2018 revealed that 71.58 percent of people who died in custodial death belonged to Dalits, minorities and minorities section of the society.
Plenty of deaths vis-a-vis handful convictions : a statistical analysis
Police brutality is a common practice by law agencies, as a procedure to extract the confessions from the suspects and many of the times it is used to manipulate the truth. The data provided by the National Crime Records Bureau states that in the year 2017, about 100 of the people died in police custody and there were zero convictions. A report by the National campaign on Torture, an NGO that works against torture in India shows how torture has been a favourite tool for the police to victimize the Dalits and the socially suppressed class in the shadow of investigation and extracting confessions. This report has also identified 15 trends of torture and impunity which show how torture has used as a tool to suppress the stifle voices, oppression and extortions. Moreover, it shows the high level of power politics played by the police and the jail authorities.
Further, the aforesaid report on convictions shows that between the period of 2005-18, for the accusation of 500 people’s custodial death, 281 cases were registered and 54 policemen were charge-sheeted but till today no reported convictions have been done. In the last 10-years, the majority percentage (69) of the custodial death is attributed to either illness or natural death (40 per cent) and alleged suicide (29 per cent). The police assault has been attributed to custodial death since 2014 in almost 6 per cent of the case. In many suicide cases, the family of the deceased have alleged to have foul play game by the police authorities.
Between 2008 and 2016, Andhra Pradesh stood first in several custodial deaths (59), Assam was second with 29 deaths and Uttar Pradesh stood third with 14 deaths. 34, 31 and 10 policemen were respectively charged in this case with a zero conviction. Tamilnadu, Tripura and Odisha stood first, second and third with one case in the first two states with one policeman charged and four cases with all of them charged in Odisha.
This fewer conviction among the plethora of custodial death cases shows how the police administration has the privilege to have impunity provided under the cover of the state.
Fragile state-citizen relationship and deteriorating human rights
Ramachandran, a former Director-General of Police Assam and Meghalaya stated that the custodial deaths are a combination of governance issues and the police administration. He further added that the custodial deaths in a literate state like Kerala are very low as the citizens are aware of their legal rights. However, this data is larger in the state where caste and religious-based clashes happen often in society. Mostly, the state uses arrest and torture as a common tool to stifle dissenting voices. While the CAA protests were held in New Delhi in January 2020, the police agencies had detained a pregnant university student of Jamia Millia Islamia “Safura Zargar” who was present in that protest. The fear was prevalent among the people about her safety in the police custody as she was pregnant. However, later she was released on bail on special grounds.
The State most of the time shows negligent behaviour towards the increasing case of police torture and the death happening in the custody due to ruthless behaviour of the State agencies. The major reason behind such a deteriorating relationship between the State and the citizens is the prejudice perceived by them treating the protestors and the accused as offenders.
The flaw rooted system in the culture of impunity, discrimination and corruption has most of the time attributed to the death of the prisoners in the police or judicial custody. Moreover, after the incident, the agencies transgress for their people by blowing away the whole judicial process and lastly letting the accused police person escape free. This tendency has not only violated human rights in masse but also deteriorated the faith of the citizens from the State and its agencies which are envisaged with the role of enforcing the law in the society.
Absence of specific legislation is blanket protection for the police agencies
Despite the fact that torture cases being in large number, the Government of India has not enacted any specific legislation against such barbaric action of the police causing custodial death. The procedural provision of Section 197 of CrPC provides that without any prior approval from the state government or the central government, no government official or member of the armed forces alleged to have committed a criminal offence while acting or purporting to act in the discharge of their official duty can be prosecuted. Further, Section 132 of the CrPC also provides that any government officials or the armed forces who are engaged in dispersing the crowd from prosecution while discharging their duties can’t be prosecuted without prior approval from the State or central government. Even if the charge sheet under some cases is submitted, later on, the prosecution weakens the cases or denies them at an earlier stage.
The National Commission of Police in its eighth report stated that the aforementioned impunity provisions provided under the Code of Criminal Procedure should be withdrawn so that the private complainant can freely complain against the police officials without taking any kind of prior approval from the State or central government. Moreover, these permissive provisions act as an obstacle in delivering justice to the victim. The Law Commission of India in its 273rd report also stated that the impunity provisions of Section 197, must be withdrawn. The 113th Law Commission of India report suggested a change in the Indian Evidence Act by inserting a new clause 114B which will provide the onus of not having tortured a person falls on the accused policemen and not the victim itself. The judicial bodies cannot move ahead without the sanctity of the executive and in the case where the act is itself associated with the executive, the State agency goes biased for protecting policemen.
Nonetheless, India is a signatory member of the UN’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in October 1997 but it has not ratified it till now. The Law Commission of India in the year 2017, submitted its draft on Prevention of Torture Bills, 2017 before the Ministry of Law and Justice for tabling it in the parliament but the parliament has not shown its interest in framing the anti-torture laws. The government’s silence over ratification of UNCAT and implementing the specific legal provision against the anti-torture laws have provided blanket protection to the police personals.
SC guidelines on police reforms
The Supreme Court of India in Prakash Singh vs. Union of India, 2006 laid down seven directives on the police reforms for the State and Central Government. These directives included-
- Constitution of the SSC (State Security Commission) in each state and union territory ensuring that each state and UT shall not exercise unwarranted pressure or influence on its police agency.
- Ensure all the State and UT appoint the Director-General of Police on a merit basis and minimum for 2 years.
- Ensure a fixed tenure of a minimum of 2 years for other police officers including the Superintendent of Police and Station Incharge.
- Separate the function of investigation and maintaining law and order.
- Set up Police Establishment Board, a fair and transparent body to decide promotion, demotion, transfer and other service-related matters of the police personnel below the rank of D.G.P.
- Establish a Police Complaint Authority, a transparent body to look into complaints against the police personals below the rank of Superintendent of Police having allegations of serious misconducts like grave hurt, custodial death, rape in police custody.
- A National Selection Commission needs to be set up for the appointment of Chiefs of all Central Police Organisation with a minimum tenure of 2 years.
The apex court ordered all the State and union territories to comply with the directives as provided. However, its compliance was found quite unsatisfactory.
How far have these guidelines have been implemented
The directives of the Supreme Court for Police reforms were important and all the State and union territories had to comply with all the directives. Commonwealth Human Rights Initiative, a human rights watchdog, said that after the passing of nearly a decade the guidelines of the apex court were not effectively implemented by the centre and state governments.
As far as the first guidelines, the constitution of S.S.C concerned only 27 states. Now on the guidelines of inclusion of the leader of opposition in the State Security Commission many of the states including Odisha, Tripura, Bihar, Assam, Chattisgarh, Gujarat, Punjab shortfall in compliance with these guidelines. Andhra Pradesh was the only state which was found to have to make the S.S.C guidelines binding.
On the second guideline of the appointment of the DGP twenty-three states were found to have non-compliance with the SC directives.
Concerning the fourth guideline of separating the investigation and law and order wing of the police, 12 states were found to have con-compliance with it.
In the formation of the Police Establishment Board, a fifth guideline, only Andhra Pradesh and Arunachal Pradesh were found to have complied with the said guidelines. In the sixth guideline of establishing the Police Complaint Authority, only 12 states were found to have complied with this directive.
The custodial death is a ruthless deed of the police personnel carried in the name of torture and investigation. The police agencies have the privileged impunity as there is the absence of anti-torture laws in India. However, India’s silence over ratifying the UNCAT convention is also a major obstacle in the implementation of any legal provision. After one and a half-decade, the apex court’s guidelines on police reforms have not been effectively implemented by the centre and state governments. The inefficiency of the State governance along with the impunity privilege enjoyed by the police agencies shows how power is misused against the poor and weaker section of the society. So, when the law enforcement agencies become perpetrators, justice for the unprivileged and weaker class of society becomes a daylight dream.
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