Custodial Violence in India GS: 2 "EMPOWER IAS"

In news:

• The Supreme Court has asked for government’s response pertaining to implementation of Section 176(1A) of the CrPc, which calls for a mandatory judicial inquiry related to incidents of death, disappearance, rape etc in police and judicial custody.

 

Background:

• With the death of Taslim and Gufran(April, 2019) who died in police custody in Dumra, Sitamarhi district of Bihar, the issue presses for a redressal at the earliest.
• The National Human Rights Commission has recorded 24,043 custodial violence from the time Section 176(1A) has come into existence till date.
• It has been alleged that judicial inquiry has not been conducted in about 80% of the such recorded cases of custodial violence, as per the NCRB reports during this period.
• India is a signatory to UN convention against Torture, but it hasn’tt ratified it yet.
• In 2010, Prevention of Torture Bill was introduced in Parliament but it got it lapsed with the 15th Lok Sabha getting dissolved in 2014.
• Given the poor state of prison in India faces a tough challenge in extradition of criminals from various countries accused of offences such as economic offences,criminal conspiracy, sexual offences, etc.

 

Types of Custodial Violence: 

• There are different methods to bring or commit custodial violence which is applied to bring the desired results by the government agencies.

 

Physiological Violence:

• By communication techniques in which the victim is given wrong information and is tortured mentally.
•  By compulsion or coercion where the victim is compelled or coerced to perform activities or to witness actions that torture him mentally. Forcing the victim to violate social taboos or forcing to witness torture of other victims etc.
• By depriving the victim the basic needs like water, food, sleep and toilet facilities which results into disorientation and confusion.
•  Pharmacological techniques like use of various drugs to facilitate torture of the victim to mask the effect of torture and also as a means of torture.
•  Threats and humiliations which are directed towards persons in custody or their family members or friends.

 

Physical Violence:

• Causing disfiguration and exhaustion.
• Causing torture to such an extent that the victim feels fear of immediate death.
• Forcing the victims to sleep on damp floor.
• Making the children stay naked in extreme cold weather or under the sun in temperature for more than 30 degrees.
• Scratches and cuts are made on different parts of the body with sharp objects.
• Use of irritants like chili powder, table salts etc. are applied on delicate parts or on open wounds.
   

Sexual Violence:

• Sexual violence has great social and psychological impact in the minds of its victims. It may start with verbal sexual abuse and humiliation targeting victims’ dignity.
• It results into rape or sodomy. The violators or the perpetrators of this crime keep devising new means and methods according to their own mental aptitude and imagination to break the resistance of the subject quickly as well as to satiate his/her own urges.

 

 Custodial Violence in India:

• It is a major issue of human rights concern and one of the root obstacles to democracy and the development of human well being in contemporary societies. 
• The term includes all types of physical and mental torture inflicted upon a person in police custody.  It is a crime against humanity and a violation of human rights. 
• The practice of custodial violence in developing countries like India, is, however, more difficult and complex.  A large number of cases of police brutality take place not because of individual aberration, but because of systematic compulsions. 
• Statistics:  In its publication, Human Rights Watch Report has said that 97 people died in police custody and there was not a single known case in the past five years in which a police officer had been convicted for a custodial death. 

 

Need for a law to quite custodial cruelty:

• Custodial violence continues to be prevalent in India.
• The recent example of a bus conductor being forced to confess to murdering a schoolchild is a pointer to the use of torture as an investigative tool among policemen.
• So far, neither the Indian Penal Code nor the Code of Criminal Procedure Code specifically or comprehensively addresses custodial torture.
• Though India had signed the U.N. Convention Against Torture in 1997, it is yet to ratify it.
• Efforts to bring a standalone law against torture had lapsed.
• The National Human Rights Commission (NHRC) has been strongly urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law.
• The ratification by India will improve its image as a responsible & a liberal nation & will also improve cooperation in criminal matters.
• It would be in the national interest .
• It will help in protecting of human rights.

 

Issues involved in custodial tortures:

• Misuse: There have been multiple cases of custodial tortures, deaths enforced disappearances, intimidation of opponents and activists. The problem of torture is also faced by bonded labourers, trafficked women and
• Mental illness: In several cases torture has led to mental illness among captives where state should be held responsible for their condition.
• Ethics of torture: There arises a complex question of ethics of human right of an individual versus the security where its not easy to take a completely black or white position.

 

Protections Under Indian Laws:

Constitutional Provisions: 

• Article 20 of the constitution are directly relevant to the criminal process. 

• Article 20(1): Article 20(1) prohibits the retrospective operation of penal legislations.
• Article 20(2): Article 20(2) guards against double jeopardy for the same offense. 
• Article 20(3): Article 20(3) provides that no person accused of any offense shall be compelled to be a witness against himself. 

• Article 21: Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by law.

 

Supreme Court on protecting Custodial Violence:

• The Apex Court earlier declared that any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live.
• D.K. Basu v. State of West Bengal: Under this case, the Supreme court of India observed in this widely publicized death in police custody that using torture to impermissible and offensive to Article 21. 
• Munshi Singh Gautam and others vs the State of Madhya Pradesh: It ruled that The dehumanising torture, assault in alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.

 

Protection Under the Code Of Criminal Procedure, 1973: The code of criminal procedure, 1973 contains provisions intended to operate as a safeguard against custodial torture.

• Section 49: Section 49 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
• Section 57: Section 57 provides that no police officer shall detain in custody a person arrested without a warrant for a longer period.
• Section 41: It was amended in 2009 to include safeguards so that arrests and detentions for interrogation have reasonable grounds and also protection through legal representation is ensured.

 

Safeguards for Prisoners: 

• Protection from torture is a fundamental right enshrined under Article 21 (Right of Life) of the Indian constitution where rights such as Right to free legal aid, Right against inhuman treatment, Right against custodial harassment, Right of prisoner to have necessities of life have been mentioned.
• The right to a lawyer in custody is so crucial for life and liberty that it is enshrined as a fundamental right, but it remains one of the weakest links in the chain of criminal justice.
• Section 41 of CrPC was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation.
• Specifically, section 41D of CrPC provides that "When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."
• This right to "meet" an advocate during interrogation ensures that the arrested person is not overpowered by the law, nor isolated in those critical hours before seeing a magistrate, or when in remand. This provision simultaneously takes care of the distinct responsibilities that the police have to obtain evidence, and the advocate in giving their counsel.
• However, no police department in the country appears to have evolved the standard operating procedures to implement this safeguard with integrity. This means ensuring prerequisites, verification by relevant external agencies and consequences for violators of the law.

 

Steps Suggested : 

• India should ratify the UN Convention Against Torture as it will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment. It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.
• Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
• Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed.
• Closed-circuit television (CCTV) cameras should be installed in police stations including in the interrogation rooms, and surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measures against custodial torture which has also been suggested by Supreme Court In its landmark judgment in the DK Basu case in 2015.
• Law Commission of India in its 273rd report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.

 

Other Measures:

Reforms in Police System: 

• Adoption of an effective mechanism for police will enable the police supervisory structures to reduce torture.
• Police reforms to include ethical Policing.
• Improvisation in recruitment process, Training and sensitisation of Police forces.
• Overhauling of Criminal Justice System.

 

Prison Reforms

• Capacity building of Prisons to ensure humane conditions and securing dignity of inmates.
• Novel concepts like Open prison must be employed.
• Release of  undertrials.
• Fixing Accountability: Reporting of deaths to NHRC within 24 hours.

 

Way ahead:

• Enacting a law prohibiting torture is both a moral necessity and a pragmatic imperative; equally important is to repair our centuries-old system of prisons.
• To ensure that prison conditions are in tune with human rights norms, there is a need to render conditions within prisons less harsh and more humane where inmates are accommodated with due regard to their basic human needs and are handled with dignity.
• To break the silence surrounding torture and to reform India’s criminal justice system at large, there can be no further delay in taking such legislative measures.

 

Source) https://www.thehindu.com/news/national/plea-for-judicial-probe-in-custodial-death-cases/article30646740.ece