28 August 2020
BY SASHIKALA VP
With a PIL now filed in the Supreme Court, the ease with which police personnel get away with custodial killing and torture is sought to be addressed. If the force respected rule of law, judicial intervention would not be necessary
Baljeet, a 28-year-old from Haryana’s Bhiwani district, was arrested under the IPC Sections dealing with rape (376), criminal conspiracy (120b) and criminal intimidation (506) on May 30 of this year. He did not face judicial justice, however, dying the same day in police custody in Jhajjar district after being produced before the court.
Police say he died in an accident, his family believe he was tortured to death. The case is now with the National Human Rights Commission (NHRC).
Last year, 125 persons died in police custody across the country, according to National Campaign Against Torture (NCAT), a rights groups’ annual report. Out of the 125 deaths, 93 persons (74.4%) died in police custody due to alleged torture/foul play while 24 persons (19.2%) died under suspicious circumstances in which police claimed they committed suicide, other reasons were sudden illness, while death of five (4%) were unknown.
Suhas Chakma, coordinator at NCAT, says the abuse of power by the police is systematic in the country, happening on a regular basis, with impunity. “Police tend to behave and treat people the same way as in the British period and nothing has changed. It doesn’t make a difference which state it is and who is ruling over the state, the police behave the same way.”
The state which tops the number of deaths in police custody happens to be Uttar Pradesh with 14 cases, followed by Tamil Nadu and Punjab with 11 cases each. The capital city saw seven cases reach the NHRC last year.
There is now some hope for this matter to be taken more seriously. The Supreme Court has agreed to consider a PIL for laying down guidelines to ensure an effective framework to prevent custodial torture, deaths and rapes.
A bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian referred the plea by NGO People’s Charioteer Organisation and advocate Devesh Saxena for consideration before a bench headed by Justice UU Lalit. And while the NHRC recorded a total of 1,723 cases of death of persons in judicial custody (1,606) and police custody (117) across the country from January to December 2019, what has focused people’s attention on custodial violence is one specific case of brutality – allegedly meted out at the hands of the police in Tamil Nadu’s Tuticorin.
It saw a father, P Jeyaraj (58) and his son, J Beniks (31) die two days after their arrest – leading to an outcry. The duo were arrested on June 19 allegedly for keeping their store open beyond the curfew limits, imposed as part of the lockdown during this pandemic. What happened later was a case of torture which included brutal sexual assault. Protests rang out in the state and social media was aghast. Chakma says, however, that the brutality in this case was not something unprecedented, but takes place on an almost regular basis. What was different was that the father-son duo were members of a community with no criminal past.
“Most of the people who are killed in police custody are killed within 24 hours of being taken into custody, before being produced before the magistrate or during a police remand ordered by the court. What makes it (this case) different is that the media highlighted it, and secondly there’s no motive you can impute. If a person from Kashmir, or the north-east or any of the Naxal areas, (is tortured) one will say okay, they were insurgents, police may say they have provoked us. If this case would have taken place in Manipur during the height insurgency or Jammu and Kashmir, nobody would have looked at it.”
But the repetitive violent behaviour of the police personnel, no matter from which state, Chakma says, can be blamed squarely on the fact that these officials cannot be prosecuted without the government’s approval.
In his view, the most important change required is with the prosecution law, which under Section 197 in the Code of Criminal Procedure, 1973 allows the prosecution of an official only with the sanction of the government. “If you cannot change the law for prosecution you cannot change a thing…NCRB data shows that not a single officer since 2005 has been prosecuted. So where is the fear of the law? The law enforcement officials don’t fear the law, they at best fear their bosses.”
In fact, the Supreme Court had in fact addressed this issue in June this year while hearing a case. The bench of Justices R Banumathi and Indira Banerjee had said, “Sanction of the government to prosecute a police officer, for any action related to the discharge of official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings”.
And while officials enjoy impunity, what is also troubling, Chakma points out, is the fact that in the case of Tuticorin, it was the Madras High Court that ordered a judicial enquiry. The IPC Section 176(1A) is a special provision to deal with cases of death, disappearance or rape in police custody. The provision says 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. This was not done until the higher court ordered so.
There would be hundreds, if not thousands more who have been tortured in police custody but whose plight has not been reported. The NCAT points out that unlike in custodial deaths, in which the District Magistrates and Superintendents of Police of every districts are required to report every death in custody within 24 hours of its occurrence to the NHRC, the authorities are not required to report cases of torture not resulting in death.
“The practice of torturing the suspects in police custody to punish them or gather information or extract confessions continue to be rampant”, the report says, going on to give information on the alleged cases and even forms of torture, which ranges from slapping, kicking with boots, beating with sticks, pulling hair to hammering iron nails in the body, beating after stripping, urinating in mouth, amongst others.
One of the recent cases of custodial rape comes from New Delhi railway station where a 16-year-old girl went to catch a train home to Ranchi. The girl, who had been working as a domestic help, reached out to two Government Railway Police (GRP) constables who instead of helping her return home, allegedly raped her. In the case of rape in custody, the NCRB data of 2018 reports a total of 60 cases.
Assistant Professor at NALSAR University of Law Dr. Murali Karnam believes that while it’s necessary to frame guidelines, there are enough laws in place “but people look the other way” and what hinders justice is the lack of an agency to investigate custodial violence.
Karnam tells us there is unaccountability, and complete lack of obedience of the rule of law, in effect making the whole exercise of adding more guidelines a futile exercise. “I think the government knows people are taking matters into their own hands. So, the government removes them (the errant police personnel) from the job. But this means, they are not really made accountable as per the law. How do you create conviction for the rule of law in anybody? Everything can be on paper and people can file reports but nothing will happen, so what do you? The culture for conviction of the rule of law will take a lot of time.”
So, while there are already laws and guidelines in place which should protect people from the police taking the law into their own hands, the solution may be to have accountability through a watchful eye. Mohit Kumar Gupta, a lawyer in the Delhi High Court says that installation of CCTVs is imperative at all police stations, covering all the entry and exit routes. Lockups and interrogation rooms should have CCTVs installed with constant monitoring, and data records maintained with a central office for the entire state or union territory.
CCTV’s, Gupta says, would monitor the goings-on inside lock-ups and also keep an eye on when the person was brought into custody, a detail which is tampered with frequently he says, giving the police an extra few hours over the 24 hours sanctioned to them before producing the accused before a magistrate.
He also points to a model like America’s where there are body cameras on police personnel. They are also to be equipped with GPS tracking with data being recorded, saved and preserved for a period of 60-90 days corresponding to the period prescribed for filing of chargesheet in the court of law.
These are just a few ideas for ensuring police come inside the landscape of the law, instead of breaking the laws with impunity.
(Cover: Unlike in places like Kashmir (in pic) where militancy can be used as an excuse for custodial violence, in the case of Tuticorin the police had none, rights activist Suhas Chakma says // REPRESENTATIVE IMAGE: Getty )