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INDIA’S FAILURE IN ENDING CUSTODIAL DEATHS: DISCUSSION IN LIGHT OF THE TRAGIC CASE OF JAYARAJ AND BENNICKS

Custodial death of suspects happens too often in India, and the numbers are startling. A report released by a consortium of NGOs against custodial torture stated that 1,731 people died in custody in India during 2019. This amounts to almost five custodial deaths daily. The courts and the National Human Rights Commission (NHRC) laid down comprehensive procedures and penalties against abuse at the hands of police, in response to this longstanding issue. It still remains a harsh reality that such torture to extract confessions has become a part of policing in India, and policemen who take part in such cruelty are rarely punished. They are simply transferred to another district or state, rather than having strict action taken against them.
The recent victims of such abuse were P. Jayaraj and J. Bennix, a father-son duo who died due to alleged custodial torture in Thoothukudi, Tamil Nadu. The two were taken into custody over some remarks about a police patrol team that insisted them to shut down the shops earlier than the lockdown rules. They were stripped, tortured, severely thrashed and had batons inserted into their rectums. Their clothes had to be changed repeatedly since they got drenched by the incessant bleeding. The two were presented before the magistrate, after which they succumbed to their injuries in judicial custody. This has led to a huge uproar in social media and other platforms with justice being demanded the two men. The Madurai Bench of the Madras HC gave permission to the state governments request to handing over the case to the Central Bureau of Investigation, and three policemen have been suspended so far. The Tamil Nadu Police has been criticised for its high handedness even on previous occasions.
Persistence of custodial torture and mistreatment
The Indian Police routinely violates provisions of domestic and international law that establish the due process for arrest and detention. In spite of the growing concern over custodial violence and deaths, the situation worsens with every passing year. In the cases where the torture leads to death, the police pass it off as natural death, illness or suicide. There are various causes that can be attributed to the increasing instance of custodial violence. A primary cause of torture is the lack of resources and training for using modern forensic methods of investigation. N. Ramachandran, a former DGP in an interview with Human Rights Watch stated that the Indian Police does not make use of forensics to the level that is required. Most forensic labs have a significant backlog of cases as they are often understaffed, which makes policemen resort to third-degree methods of extracting confessions.  Force is often used in cases where the policeman is pressurised by the senior officer to produce quick results. The positive reinforcement of third-degree methods producing quick results is a driving factor of custodial violence. The other side of the coin is that most people in custody testify falsely in order to escape the thrashing.
The policemen and state machinery use the immunity provided by Section 197 of the Code of Criminal Procedure (CrPC) to resist filing complaints against police personnel and to deny prosecutions. The courts in cases like P.P. Unnikrishnan v. Puttiyottil Alikutty have set reasonable limits to the impunity granted by the section, pointing out that illegal detention and assault in custody is not a part of official duties. However, state authorities often ignore these limits and use the S.197 to protect police officials. This lack of accountability is further strengthened by the lack of a victim and witness protection law. Family members often allege that the police used the scare of filing false charges against them to deter them off their pursuit of justice.  
 Safeguards Against Custodial Violence
The statutory and constitutional frameworks contain provisions that safeguard against unlawful arrest, detention and custodial abuse. Article 21 of the constitution protects the life and liberty of citizens and extends to illegal detention and abuse in custody. This was reiterated in the case of Smt. Nilabati Behera alias Lalit Behera v. State of Orissa and others[1]. In spite of having such provisions in place, the nation still witnessed the murder of a father-son duo. Moreover, the Indian Penal Code (IPC) consists of various provisions that prohibit custodial violence, like section 330 which states a punishment of up to seven years for voluntarily causing hurt to obtain a confession. This punishment can extend up to ten years if the hurt is grievous, however, charges are rarely brought against policemen for their unlawful actions.  
The D.K. Basu judgement of the apex court established guidelines that mandate procedures for police detention. It was also held that policemen who failed to adhere to these guidelines can be punished through departmental action and tried for contempt of court. Violating these guidelines is also punishable under the IPC as most of them are covered by the CrPC. An enquiry by the judicial magistrate is mandatory under the CrPC in cases of enforced disappearance, alleged rape or death in police custody. Although in 2010, the NHRC disseminated a notification to all that investigation by a judicial magistrate is necessary only in cases where there is suspected foul play, whereas other cases may be looked into by an executive magistrate. Furthermore, the NHRC pursues accountability in cases of custodial death by requiring the police to file a report with the commission within 24 hours of the death.
Six mandatory directives were issued to the central and state governments by the Supreme Court in a landmark decision Prakash Singh v. Union of India to initiate the needed police reforms. The verdict came as a result of the government’s failure to implement recommendations given by the National Police Commission. The recommendations included a wide range of measures to modernize the police, guidelines to reduce public harassment at the hands of the police, and limiting the use of third-degree methods of interrogation. However, in the absence of a specific law that regulates torture, none of these provisions has been effective in providing recourse against custodial violence.
Recommendations
Given the lack of effective legislation to regulate and penalise custodial abuse, the following suggestions may be considered in light of the Human Rights Watch report on India’s Custodial Abuse. It is recommended to:
  1. The Indian Parliament
The IPC needs to be revised penalizing acts of custodial torture and enforced disappearances. Section 197 CrPC needs to be reformed in line with the Supreme Court judgements. This criminal justice reform needs to be done containing the essence of the Malimath Committee Report, which opined that the current system was in favour of the accused and did not adequately focus on justice to the victims of crime. The report suggested a review of the CrPC and the IPC and stressed the rights of the victims of such crime. Moreover, it suggested the establishment of a State Security Commission to ensure investigations are free from any political pressures.
These reforms need to adhere to international standards as well, making it a precursor for India to ratify the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention Against Torture. Specific legislation on torture needs to be passed to ensure police personnel are punished dutifully, along with separate legislation on witness and victim protection to make sure justice is delivered to family members seeking an enquiry into the custodial handing of their relative.
  1. Home Ministries and Nationwide Police Systems
The Union and State Home Ministries need to make sure that the D.K Basu judgement and the CrPC are followed to the letter while arresting and detaining suspects. It should be emphasized that the officials follow due process while making arrests, and notify a relative of arrested individuals. Third-degree methods should be the last resort in an effort to extract confessions. Medical history of the suspects in custody needs to be taken into account, and they should be promptly produced before a magistrate within 24 hours. Rotating CCTV cameras should be installed in every room to maintain vigilance, with a senior officer being responsible for the regular functioning of the same. The accountability of personnel that are involved in custodial violence needs to be bolstered, backed by severe punishments than mere transfers and suspensions. The policemen should be trained to use non-coercive and modern techniques of questioning.
  1. National Human Rights Commission
The NHRC along with the State Human Rights Commissions should make sure the guidelines on custodial abuse are being implemented. It should further ensure section 176(1A) CrPC is duly followed and a judicial magistrate enquires into all custodial deaths. The commission needs to stop relying solely on police and magisterial reports and conduct more independent investigations into matters of human rights violations.  
Conclusion
Custodial torture has become customary practice in interrogations and it needs to be weeded out. Concrete initiatives need to be taken in order to curb this endemic that has been robbing thousands of their basic human dignity. Custodial abuse has been normalised through its demonstrations on television and cinema, internalising it in individuals like it’s a part of the due process. It should be presented as is, a blatant violation of human rights and abuse of power by policemen. It is necessary to mandate the use of force in certain situations, but no immunity should be offered to those who use it unlawfully. The deaths of Jayaraj, Bennicks and thousands of others should not be in vain. This uproar should be a wake-up call for the authorities, to ensure justice is provided to all victims of custodial abuse, and save others from suffering the same fate as the father-son duo. Strict actions are necessary to serve the purpose of law and to create deterrence which in turn can be a turning point in the prevention of such custodial violence in the future.

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REFERENCES

[1] Smt. Nilabati Behera alias Lalit Behera v. State of Orissa and others, (199) 3 AIR 1960, 1993 SCR (2) 581

ABOUT THE AUTHOR

 

Pranav Nayar, is a third-year law student at Rajiv Gandhi National University of Law, Punjab.

 

In Content Picture Credit: Newsclick

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