By: Aiswarya YK* |
While the whole world was voicing their support towards the alleged death of George Floyd due to police brutality, in the USA, the recent case of the alleged death of two men from Sathankulam, Thoothukudi, namely Jeyaraj and Bennix, due to custodial violence, has drawn attention towards police brutality among the public. Given the constant failure of accountability mechanism of custodial violence and police brutality in India, this paper seeks to study and analyze the various accountability mechanisms enshrined in the legal framework of India. The Indian legal framework guarantees both constitutional and statutory safeguards against custodial violence. The article looks at the two broad mechanisms (internal and external) holding the authorities accountable in case of custodial violence. There is a significant difference between police custody and judicial custody. During the custody, there are several duties cast upon the officers which are barely followed. This only increases the number of custodial deaths and cases of torture and other violent acts against accused persons. Even though there are several laws in place, there are a lot of technical and executive reforms that must take place to completely eradicate custodial violence in India.
INTERNAL ACCOUNTABILITY MECHANISM
The Indian Police Act, 1861 sets up a framework of a hierarchical accountability mechanism where a police officer is accountable to his senior officer. The Act permits for suspension, dismissal or penalty in case a police officer is found to be negligent or unfit while performing his/her duties. The Act also authorizes fines, removal, and deprivation of good conduct pay. Apart from this, there is a state government established Police Act and Police Manuals that establish an accountability mechanism. Any act of causing unwarrantable violence to a person in custody attracts a penalty of fine amounting to three months’ pay or imprisonment for three years or both. However, the challenge faced by any internal mechanism is that it is a long and tiresome procedure. Even if charges are proved, the delinquent police officer seeks the court for an appeal or they are patronized by external influence against punishment. Any internal mechanism must be acceptable to both the police and the public.[i]
The Constitution mandates all actions of the state to be just and fair. The Constitution in its wide interpretation applies to all administrative and criminal due process. This article stands as an injunction against inhumane treatment. The courts in India have concretely held that “punishment” which has an element of torture is unconstitutional.[ii] No convicted or under-trial prisoner should be subject to mental or physical restraint amounting to human degradation.[iii] The Constitution tries to ensure independent scrutiny of the police detention by imposing a twenty-four-hour timeline. In Gopalan v State of Madras (1950 SCR 88), it was held that both Art 22(1) and 22(2) of the Constitution of India are mandatory in nature.
In the case of Joginder Singh, the court suggested that the framework should consider substituting notice of appearance in place of arrest.[iv] Reports show that arrests under preventive suspicion are more than arrest in substantive offenses.[v] The word "may" in section 41 of the Code of Criminal Procedure 1973, indicates mere discretion and not a duty. Every arrested person has the right to get himself medically examined to prove any bodily offense during custody under section 54 of the Code of Criminal procedure. Production of accused before the magistrate is ensured by the combined operation of sections 56 and 57 of the Code of Criminal procedure. But this is hardly followed as most of the informal arrests happen without following due process of law.
The accused is kept in police custody for interrogation and arrest is made public only after confession or to publicize discovery of weapons. The Supreme Court of India in a landmark case has held that the burden of explaining a custodial death is not upon the victim, but rather on the police.[vi] For the exercise of jurisdiction to record confession it is a sine qua non that the magistrate must have “reason to believe that the confession is being voluntarily made”.[vii] The Code per Indian Evidence Act also tries to ensure safeguards against influence by threat, inducement, or promise. The confession made to a police officer involves a second layer of safeguard under section 26 of the Indian Evidence Act. By overriding the exclusionary rules relating to confession, section 27 puts a strong tool in the hands of police. It is evident from the number of cases relying on this section that police might use any method to extract information to satisfy the requirements under this section.
HUMAN RIGHTS PERSPECTIVE
The National Human Rights Commission and State Human Rights Commission were established under the Human Rights Act, 1992. India is a signatory member of the ICCPR and ICESR. [viii] The NHRC has the power to investigate and inquire in matters of violation of human rights by authorities. It has the power to take cases on a suo-moto basis. Even though the NHRC was established to protect the human rights of people and has gained its powers to investigate matters of human rights violations, it lacks a significant and effective enforcement framework to function to its fullest.
WHY CUSTODIAL VIOLENCE IS A SERIOUS PROBLEM IN INDIA
The Supreme court in a landmark case has observed that “using torture to extract information is unconstitutional and violates Article 21.”[ix] According to National Crime Record Bureau, around 26,426 individuals have lost their lives during custody. In 2018, alone 1,845 individuals have lost their lives in the prison system. But the issue here is that out of this around 1700 individuals have died due to "natural death". The details of what caused these natural deaths have not been revealed yet. The reason could be illness or any sexual, mental, or physical torture they have undergone during the interrogation process. Also, there is a very low or close to a nil conviction rate in case of custodial death in India. There were 89 cases of alleged human rights violations by police in 2018 and in none of them was anyone convicted. These included four encounters, 3 custodial deaths, 3 cases of police torture, 17 of extortion by police personnel, illegal detention and 61 other cases. Even the remaining 8.1% death don't indicate police brutality but rather indicate suicide which is unbelievable. These statistics fail to gain trust because of the mere fact that they don't even indicate police brutality which is widely known to be in existence.
The preamble of the Indian Police Act, 1861 only indicated that the role of the police is "prevention and detection of crimes". In changing times, apart from the duty of preventing and reducing crimes, there is a duty cast upon the police to act for the welfare of the people. This must be included in the preamble to reassure a state of trust among the public.
Setting up Police Accountability mechanisms as suggested by the Model Police Act, 2006 must be implemented immediately. Every officer who has been suspended during his tenure must undergo a training process and complete physical and mental scrutiny before joining the service again. As suggested in the case of Joginder Singh v. State of Uttar Pradesh JT (1994)3 SC 423., the idea of substituting arrest with a notice for appearance, along the lines of nature of summoning, must be taken into consideration for certain cases. This might largely reduce the number of cases regarding custodial violence. This has been included but not exercised to the fullest yet.
It is therefore understood that there is a need for reform in the Indian Evidence Act, where the burden of proof in cases of custodial violence is on the plaintiff. Grant of compensation must be made uniform. The provision of compensation must not be used as a tactic to safeguard police atrocities. According to the Status of Police reporting in India, an average police officer works 14-20 hours per day with no offs. Further, the study states that 73% of these officers suffer from physical and mental health issues. This is a serious issue as this degrading health factors might affect the efficiency of their work. They must be provided with sufficient health care systems and mental health counselling on a routine basis to ensure that the police fraternity is able to function with a free mind since often police brutality is seen as a repercussion of their pressure at work. A special committee must be formed by the state to analyse and study all the six committee reports[x] made so far on police reports and enact new legislation to ensure a strict accountability mechanism on the police force. This must include special and autonomous inquiry committees comprising of retired police officers, judges, and human rights activists.
* The author is a student at VIT University, Chennai.
[i] Arora Nirman, “CUSTODIAL TORTURE IN POLICE STATIONS IN INDIA: A RADICAL ASSESSMENT.” Journal of the Indian Law Institute, vol. 41, no. 3/4, 1999, pp. 513–529. JSTOR, www.jstor.org/stable/43953348. [ii] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378; Javed v. State of Maharashtra, AIR 1985 SC 231. [iii] Sunil Batra v. Delhi Administration, AIR 1968 SC 1675; Sita Ram v. State of U.P., AIR 1979 SC 745; [iv] Joginder Singh v. State of Uttar Pradesh JT (1994) 3 SCC 423. [v] 177th Law Commission Report on laws relating to arrest, 2001. [vi] Nilabati Behra v. State of Orissa, AIR 1993 SC 2366. [vii] Chandran vs State of Tamil Nadu, 1978 AIR 1574. [viii] Recognized by section 2(f) of Human Rights Act, 1992. [ix] D.K.Basu v. State of West Bengal, (1997) 1 SCC 416. [x] The committees include: Gore Committee on Police Training, Ribeiro Committee on Police Reforms, Padmanabhaiah Committee on Police Reforms, Group of Ministers on National Security, and Malimath Committee.