No Blank Cheque For Custodial Torture Or Custodial Death

Let me begin by first and foremost penning that the most unfortunate death of a father Jayaraj and son Benicks allegedly due to severe custodial torture in a police station near Thoothukudi at Kovilpatti sub jail in Tuticorin in Tamil Nadu has raised serious questions on the conduct of the police and has shocked the entire nation! They were arrested for a seemingly trivial reason of violating lockdown norms in Sattankulam town in Tamil Nadu. It must be mentioned here that at the Kovilpatti sub jail when a medical check-up was done on the father and son, it came to light that there were serious injuries.

What is most shameful and most hurting to note is that when the check up of the son and the father revealed serious injuries and the duo were in an extremely bad condition, they were sent to jail instead of hospital! How can this be justified under any circumstances? As a corollary what followed next ostensibly was that their condition further deteriorated and it was then that they were sent very late to Kovilpatti general hospital where son Bennicks died on June 22 and his father Jayaraj died on June 23! There can be no blank cheque ever for custodial torture and custodial deaths

To be sure, it is most heartening to see that in the backdrop of the most horrifying custodial torture and death of a father and son as mentioned above, a writ petition has been filed as PIL just recently in the Supreme Court titled People’s Charioteer Organization & Another Vs Union Of  India & Others seeking elaborate guidelines from the top court to ensure prevention of custodial torture. This petition has been filed by People’s Charioteer Organization (PCO) through its Secretary, Legal Cell, Mr Devesh Saxena, Advocate who lamented that, “We failed to eliminate the colonial attitude of our police”. This is mainly because they are rarely ever held accountable and rarely punished most strictly! This petition has been drawn by another advocate – Shashwat Anand.

To start with, it has been very rightly pointed out at the very outset in this petition that, “The murderous police assault, unending beatings and brutal torture which caused the death of two innocent traders, a father and a son, Jayaraj, aged 62 years and Bennix, aged 32 years, at Sathankulam Police Station, near Thoothukudi in Tamil Nadu, has brought the issue of custodial deaths to the limelight and it is an acute demonstration of a broken criminal justice system and failure to effectively uphold legal protection against police abuse. Accusations have been made against the police officers involved in two F.I.Rs filed on 24.06.2020, and thereafter news coverage regarding the incident gained traction. Due to huge outcry, 4 policemen, two sub inspectors and two constables working at the Sathankulam Police Station were suspended, and the Inspector In-charge was transferred.”

Furthermore, it has been also rightly pointed out that, “This incident, inter alia, has traumatized all those who respect the rule of law and personal liberty in the country and it underlines afresh the urgent need for institutional correctives within the policing system in this country and the acute need for India to enact a strong law to prohibit and prosecute cases of torture and custodial deaths, in fulfillment of its legal obligations, both national and international, to guarantee protection to right to life.”

It is quite baffling to see that till now there is no strong law that strongly prohibits custodial torture and custodial deaths and prescribes strongest punishment for those men in uniform who dare to indulge in custodial torture and custodial deaths under any circumstances! But certainly this does not mean that no law can ever be made now also just because in the past no attempt has been made in this direction! All that is needed is strong will to act in this direction and nothing else!

Bluntly put: Let me now ask few troubling questions which keep tormenting my mind. Why should custodial torture and custodial death not be prohibited, prosecuted and punished most severely? Why is there no zero tolerance for custodial torture and custodial deaths? Why instead do we see that there is zero conviction rate for custodial deaths and considerable delay in proceedings as we see in the annual report of 2017-18 of NHRC which received 148 intimations of death in police custody and 1636 intimations concerning deaths in judicial custody? Why should men in uniform not be held strictly accountable and strictly punished?

Also, it must be asked: When no law can ever under any circumstances sanction custodial torture then why are police given a blank cheque for custodial torture? Why are they not promptly arrested, held accountable and punished most severely so that no one can ever take law for granted? Why a criminal act perpetrated by a men in uniform not be sent behind bars and why those in uniform perpetrating custodial deaths be not sent to the gallows? Why men in uniform forget that uniform does not give them the unfettered right to indulge in mercilessly beating someone, then further torturing them and then not allowing them to be sent to hospital in time which ultimately ensures that they die while in custody?

It would be instructive for the police themselves to read some landmark judgments delivered by Supreme Court pertaining to this key issue. To start with, while explaining about the reason behind the poor rate of conviction, it is pointed out in State of M.P. v. Shyamsunder Trivedi 1995 4 SCC 262 that, “…rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstance in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues.”

Going ahead, why can’t the detailed guidelines that were laid down by the Supreme Court in Joginder Singh v. State of U.P. (1994) 4 SCC 260 and also in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 be implemented in totality? We cannot be oblivious to what Justice AS Anand had famously stated in DK Basu’s case that, “Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward – flag of humanity must on each such occasion fly half-mast.”

Interestingly enough, it is quite laudable that it is further very rightly and very commendably stated in this very DK Basu’s case that, “Custodial death is one of the worst crimes in a civilized society governed by Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic “No”.”

It is quite unfortunate to see that till 2005 when amendments were carried out there were no provisions to deal with death, disappearance and rape in police custody. What is more unfortunate is that even after Section 176(1A) of the Code of Criminal Procedure which was inserted after the amendment of 2005, we see that the compliance  with this mandatory provision which stipulates that “in such cases, the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed shall hold an inquiry in addition to the inquiry or investigation held by the police”, is rare and a long standing issue which is yet to be addressed, as a result of which this provision has become redundant in nature. All these loopholes must be plugged right now!

Also, it is a no-brainer that the landmark directions issued by the Supreme Court on police reforms in Prakash Singh v. Union of India 2006 8 SCC 1 must be implemented in totality. The governments should implement the police reforms by separating the investigating wing from the law and order branch. It also directed to establish a complaints authority to look into the human rights violations including custodial deaths and abuse of authority by the police.

Furthermore, in Prakash Kadam v. Ramprasad Vishwanath Gupta 2011 6 SCC 189, the Hon’ble Supreme Court has observed that, “Policemen are persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.”

What’s more, the Apex Court then laments in Re Inhuman Conditions in 1382 Prisons v. State of Assam AIR 2016 SC 993 that, “There are several such cases – documented and undocumented – all over the country but in spite of repeated decisions delivered by this Court and perhaps every High Court there seems to be no let-up in custodial deaths. This is not a sad but a tragic state of affairs indicating the apparent disdain of the State to the life and liberty of individuals, particularly those in custody. The time to remedy the situation is long past, and yet, there seems to be no will and therefore no solution in sight.”

Why can’t police be freed from political interference and political control? Why can’t police recruitment be made more strict and why can’t their service conditions be made further more strict? Why can’t the Supreme Court directives on police reforms in Prakash Singh case of 2006 be strictly implemented?

Why can’t police be made to follow the instructions given in the landmark DK Basu’s case while arresting a person? Like, for instance: All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or respectable member of the locality. The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organization and arrestee must be made known of each DK Basu right, all such compliances must be recorded in the police register, he must get periodical medical examination, inspection memo must be signed by arrestee also and all such information must be centralized in a central police control room.  Why can’t the archaic and colonial “The Police Act, 1861” be amended to meet the present circumstances? Why can’t the landmark recommendations of the Law Commission of India in its 152nd and 273rd report be implemented?

No doubt, the 152nd report submitted in 1994 had rightly recommended insertion of a new provision – Section 154A in Cr PC to enable any person to approach a judicial authority on the failure of police to register FIR! Similarly, the 273rd report of Law Commission of India on implementation of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or punishment through legislation strongly recommended that those policemen who indulge in torture can be punished with imprisonment which may extend to life. Here I personally feel that custodial killing must be punished with death as they cannot be justified under any circumstances! Or at least, death penalty also must be included for custodial killings apart from life term so that a strong and stern message goes out that custodial killings won’t be tolerated by a civilized society like India any longer!

On a more serious note: Why can’t the police training be overhauled completely so that they are taught to be more humane, more responsive and more compassionate while dealing with people and human rights? Why can’t the landmark recommendations of the Malimath Committee on Reforms in Criminal Justice System be implemented? Why can’t the governments both at the Centre and in the States show more drive and determination to push through the necessary reforms as recommended by so many Committees and even Law Commission of India which have been just gathering dust till now?

In conclusion, only a strong political will is needed to do the same! There is nothing that cannot be done provided there is adequate political will! Custodial torture undermines the rule of law and erodes the people’s faith in the system.

In addition, it many times makes a common man pick up guns to avenge with what he/she feels has been done wrongly! To restore people’s faith many remedial steps have to be taken! They cannot be left in abeyance any longer now! The earlier the police reforms are carried into effect, the better it shall be for not just people but also for the police themselves!

Sanjeev Sirohi

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