Custodial Torture – Prevalence and Extent of its Usage.

Custodial Torture – Prevalence and Extent of its Usage.

Author: Avinash Kurungot,
3rd Year BBA LLB,
School of Law, Christ (Bengaluru-560029).
Abstract
Custodial tortures has now become a world-wide phenomenon and it being done in every sector. There is a deep concern regarding the custodial crimes that are happening in every part of the country because not even a week goes by without a case of custodial torture. Specifically in India, custodial tortures are being carried out in an unnerving manner. The problems lies in the fact that custodial torture has become so common that not just the police but even the general public too consider it as a routine practice during police interrogation. Due to these discrepancies there are many custodial deaths and torture that are in utter violation of the Human Rights that every person is entitled to. The purpose of this paper is to spread awareness and induce people to know their rights even when accused or under custody as nobody can be denied of their basic rights. This paper also analyses how the police and law enforcement agencies are taking advantage of the power embedded in them and how there is betrayal of custodial trust by a public servant. This paper also aims to give directions as to how the central bodies can ensure effective law and its enforcement in order to ensure human dignity, social welfare and prevention of custodial torture. There are also the factors which lead to why custodial torture is very common. Even though there is a legal framework in India both constitutional and statutory contains provisions relating to safeguards arrest, detention, custodial torture and other crimes in custody it is practiced very often.
Introduction
Custodial torture by its most widely used definition means to intentionally inflict any form of physiological or psychological pain on a victim in order to, fulfill any certain desire or to extract information, while being under the custody of a judicial or governmental body,  conducted by officials of said bodies. The barbaric and inhumane acts that are prevalent under this practice has been time and again been heavily criticized, having received repeated calls for amendments to these methods without avail.

History of Existence of Custodial Torture

Custodial torture is not a phenomenon that had originated in recent times, it has in fact been in practice since ancient times. The existence of concepts of ‘dharma’ and ‘danda’ and also of the king being the possessor of ‘dandhniti’[1] which roughly translates to ‘giver of justice’ forms the base for various sectors in the judicial system and the implementation of justice in today’s scenario in India.[2] The village courts that were the prime redressal and dispute resolution agencies in the village consisted of a village headman, and some of the most prominent elders of the village who were jointly consulted by the folk of the village to address their grievances to seek solutions or redressal. The policing mechanisms of that period were generally split into 2: the criminal investigation wing and the law and order department. The criminal investigation wing was further subdivided into 2 separate standalone units, one of which sought to collect criminal intelligence information and to launch investigation probes whereas the other one was to collect intelligence that pertained to the security of dignitaries, prevention of economic offences, further prosecution of those involved in the same and also to conduct espionage missions. In close relation to this was the existence of the idea of policing and also wherein these legal enforcers resorted to various gruesome methods in order to torture their victims and also as punishments for the crimes they had committed. This also brought forth the idea of an indirect form
of policing which blatantly disregarded the values of natural law, but was often used without question.
[3] Manu’s ‘’Manusmriti’’ and Kautilya’s ‘’Arthashastra” speak extensively about the methods of torture that had been used such as the burning of limbs, forced attacks my wild animals such as tigers and bears, trampling on by elephants and even immolation. These methods have also been referenced in texts from the Buddhist and the Gupta periods where these practices were criticised as being against the basic humane values that our race possesses.[4] The prime prevalence of custodial torture in ancient India was during the Mughal period during which there was no clear existence of any form of criminal or civil code, instead being based upon the ideology of Shariat Law. Emperors such as Akbar aimed to curb this, but other emperors of the period such as Jahangir and Shahjahan were shown to be fond of this as texts reveal unfair methods to force accused persons of confession and to take up the blame in place of someone else.

National and International Provisions and Conventions

In India, due to the massive number of cases of custodial torture and death while in custody, there had been huge public outcries to create amendments to existing provisions which have even gone so far as to result in riots, sit-ins, protests and continued discussions over media channels by eminent personalities and high-ranking officials which all have in some way or the other been slightly influential in creating a difference.
One of the most sought after significant legislative reform in the national arena regarding custodial torture was with ‘The Prevention of Torture Bill, 2010’.  The Prevention of Torture Bill was introduced by the Home Minister for Home Affairs at the time which contended torture to be a punishable offence. The primary objective of the introduction of this bill was to ratify the UN Convention against Torture of 1984. [5]India had been one of the signatories of the bill back then; but had not enacted law on torture which would enabled the nation to ratify the UN Convention. The proposed bill defines and explains the different offences that can be classified under the ambit of torture and prescribes the instances wherein torture can be treated as a punishable offence.
Some of the highlights and key issues of the bill are as follows:
  • The bill sought to create a precise mode of punishment that government officials would be inflicted upon for the practice of torture on accused persons.
  • The Bill by its own right gives torture the definition of “grievous, hurt” or a form of danger to limb, life and health.
  • People who have been victims of torture at the hands of governmental officials have to file a complaint within a period of six months. The complaint can also be made by family members or closely related people on behalf of someone who had undergone said torture. The appropriate government should issue a sanction before the concerning case can be entertained in a court of law.
  • The very definition of torture in primarily inconsistent with the UN Convention on torture.
  • It asks for the intention that the accused official had in order to conduct the torture on the victim.
  • It does not take into account any form of mental and psychological after effect that the occurrences may have on the victim, which can even lead to health disorders such Post Traumatic Stress Disorder (PTSD) which have effects that are long lasting.
  • There is no existence of an independent authority whose sole purpose is to launch investigation probes into the complaints of torture and furthermore, the bill does not mention the method of granting compensation to the victim.

UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)

It is a treaty that was proposed by the United Nations in the year 1984 to effectively increase the security of prisoners and which aimed to prevent and eradicate forms of torture, inhuman and degrading treatment and punishment methods that were used by nations around the world. The primary objective of this convention was to urge states to take forms of effective measures to prevent torture of their prisoners in any territorial jurisdiction that they have control and forbids these states to transport people to any other nation where there is high chance of them being subjected to torture.
The Convention is split into 3 parts which provide provisions and guidelines for nations to follow in terms of custodial torture.
The part 1 defines in detail the related definitions and also the classification of custodial torture and a criminal offence under a state’s municipal laws. It also speaks about extradition wherein nations cannot extradite an accused to another state where there is possibility of them having to undergo torture methods. Part 2 speaks about the implementation of the Convention and also the steps that are to be taken to ensure the proper governance of the said laws and paves way for the creation of The Committee Against Torture which checks the violation of the convention by receiving complaints from individuals.[6] Part 3 speaks about the ratification of the convention and the mode of it coming into force and also includes the arbitrary actions that can be followed as a form dispute resolution mechanism for the involved parties.[7]s

India and the UN Convention

India had not formally ratified the convention, though it was a signatory of the same since 1997. Following the proposed Prevention of Torture Bill of 2010, there have been much efforts from various organizations and individual to pressure the government to create a separate and precise form of laws to follow regarding torture. The Law Commission of India in 2017 recommended the nation to ratify the UN Convention. The commission was spearheaded by Justice B.S. Chauhan who urged the authorities to recognise torture as a separate crime and also to inculcate provisions in the Indian Penal Code and The Code of Criminal Procedure that adequately would address the issue. It was further backed by the National Human Rights Commission who gained the support by a PIL filed by former Union Law Minister Ashwani Kumar which in its contents described custodial torture to be one of the worst forms of disregarding the rights of humans. It also given recommendations for punishments against custodial torture which range from fines to life imprisonment on the accused.

Police brutality and corruption, cases

The entire concept of custodial torture stems from the concept of the law enforcers wanting to punish the wrongdoers for the heinous crimes that they had committed. The propaganda that the police follow in their actions is often that is highly varied and manipulated with, including tampering with facts and evidences. Charges that are mentioned in FIRs are often changed, some even being prepared after the death of the victim. The data that are released by the police is sufficiently comprehensive to draw a picture between the kind of crimes that are committed and the occurrences that happen between the walls of the police station. The thin line drawn between serious crimes and ordinary crimes are a form of misinterpretation on the behalf of the judicial bodies that result in the carrying out of such practices.[8]
The prevalence of corruption in the police force and similar bodies can be accredited to the fact that most of the victims of custodial torture or custodial death have had some sort of direct or indirect relation to the concerning police employee. While most of the bureaucrats of the nation are representing the nation on an international level, they cease to portray the facts that they are just covering up most of the instances such as rape, torture and death in custody, while contributing to further damaging the validity and prominence of Human Rights and all that it stands for. Specifically, in accordance with 33 allegation regarding torture and death that had been raised by the UN Human Rights Committee to the Attorney General of India was met with a blunt statement where he said that custodial deaths are not on the rise and neither is it prevalent in modern India without basing his statements on any form of facts or evidences which would directly contradicted his statements as this incident was during the early 1990s where the number of custodial deaths per year had been on the continuous rise. [9]
The pulling of strings in the governmental and judicial systems act as one of the root causes in the general public and also human rights bodies across the nation and the world being oblivious to the severe punishments and torture methods that have been imposed on victims from time to time all through the annals of history forcing them to believe that it doesn’t exist even.
Custodial torture in the Indian scenario was recently brought forth to the global perspective by the 2015 Tamil docu-drama-crime thriller ‘Visaranai’ directed by critically acclaimed director Vetrimaaran. The story of the movie is based upon the novel Lock Up by M. Chandrakumar, an auto rickshaw driver in Coimbatore based upon his experiences that he had faced when he was randomly picked up off the street on charges of robbery in Andhra Pradesh. He was subjected to inhumane torturous activities which inspired him to document it all into a book. The movie follows 4 individuals who are taken off the street one night to cover up for a high-profile robbery case and then get involved in the whole web of the corrupt activities that occur there.  The movie received high critical acclaim from renowned personalities in the movie industry and even went to so far as to being India’s official entry for the 2015 Oscars. The movie being so widely recognized gave a global perspective to this impending issue and how it has been ignored in the eyes of the law for so long.
While the topic is quite widespread, it still hasn’t made much change to the political and authoritative apathy that is being euphemistically portrayed by the ones in power.
Chief Minister of Maharashtra Devendra Fadnavis
spent to time idling before calling a full-blown strike on corruption in the country. He sought to bring forth new laws, if needed to change up the administrative methods that contributed generously to the expansion of corruption in the nation. The reformatory operations were initiated by the Maharashtra cabinet deciding to create amendments in the Sections 156(3) and 190 of the Code of Criminal Procedure. This created a paradoxical situation as now the magistrate would need the approval of the government before he is able to direct an investigation based upon a complaint by any individual against corruption or any other unfair practices that are being exercised in the system.

Prominent Cases

Numerous cases of Custodial torture have been time and again been reported in India, some being so gruesome and horrendous that the very foundation of the concept of law and rightfulness is shattered.

  • A prominent case that occurred regarding the misuse of authority by police occurred in 2001 where a 14 year old girl was allegedly raped continuously for a period of 6 days by police in Patiala. The news came as a shock to the general public. The girl was electrocuted and kept in confinement for the entire time period. The case urged the National Human Rights Commission to issue notice to the Direction General of Police Punjab to direct an investigation prove into the case. Being denied rightful justice, the girl and her family tried to approach various influential police officials but to no avail. Furthermore, the girl tried to meet with the then Chief Minister of Punjab, S. Prakash Singh Badal. The involvement of the chairperson of the police force instigated a probe which found out that there were marks behind her ears and on her body. Despite all this, the chairperson disregarded the issue by opting not to ‘sensitize’ the issue and not to make it a national sensation by opening it up to the media outlets. In conclusion the girl was denied her rights and justice took a backseat in the scenario. The case took a turn when the girl and her family were later coerced by the chief authorities to change their statements to suppress the case.[10]


  • Another case that was filed by the Maharashtra State Human Rights Commission is that of the custodial death of a 22-year old man Nilesh Atamam Dhool. Nilesh was arrested from his house in the village of Hiwarkhed as one of the accused members in a case of kidnapping. He was subjected to “third degree torture” methods at the hands of the police and was later found to have apparently “hung himself” in the toilet of the police lock-up. The above mentioned commission advised  the DGP to conduct an inquiry of all the officers that were involved in the case and also to train officers appropriately on the methods that can be used in police stations. The evidence that came out showed that there were some attempts by the police to extort bribe from the victim in order to secure his release. When rejected, they resorted to torturing him. The autopsy reports show that Dhool had been mercilessly assaulted owing to many injuries that had been visible on his body. The report also stated that the “hanging” of the victim could have been orchestrated by the police in order to make it look like a suicide which could lead to charges of Culpable Homicide under Section 304. The case was soon closed after not gathering enough evidences and also the victim’s family was awarded 2 lakhs as compensation.

  • One of the ongoing cases of custodial torture is that of Sreejeev who was taken into police custody in Kerala in 2014 under the allegation of being involved in a mobile phone theft. The accused was later found to be dead while under the custody of the police. The police enquiries regarding this case came up with the findings that Sreejeev had consumed pesticide crystals he had in his possession to commit suicide and had purportedly penned a suicide note prior to ending his life. The case was treated as a case of suicide and later closed. But, due to the ambiguity of facts in the version of the case released by the police and with the belief that there was something that they weren’t aware about, Sreejeev’s elder brother Sreejith launched a protest outside the secretariat in Trivandrum to try and convince the state to launch a proper CBI Investigation probe into the case. The facts were later revealed that one of the police officers involved in the case were related to a girl in Sreejeev’s neighbourhood with whom he was involved in a relationship. This leads to the probable possibility that he was taken under custody in order to inflict revenge. The sit-in protest by Sreejith continued for an estimated period of 2 years to no avail until November, 2017 when a social media post on him went viral resulting in an influx of people gathering to support him, including students, celebrities, actors, politicians, singers, and more. The widespread media coverage brought the news to the eyes of the citizens of Kerala who also lent their support to him. Still with no progress on behalf of the government Sreejith decided to fast until his death unless the government launched an investigation. Chief Minister of Kerala, Pinarayi Vijayan initially paid no need to Sreejith, but due to ever-rising public and political pressure he granted them the chance to discuss the matters and also agreed to pursue their demand with the central government. [11]

  • This case is still an ongoing one with the investigation still continuing, but is definitely one of the most publicised cases of custodial torture in India due to the extreme involvement of social media which has been highly influential in getting the public involved and to build up pressure which eventually resulted in the demand of the victim’s family to be heard and consulted.

Conclusion
Custodial torture is definitely one of the elements that plague the proper implementation of our laws and is a sheer contradiction to the concepts of Human Rights. The innumerable number of cases that have occurred in India can be traced back to the methods that the British had implemented during their reign on people they had taken under custody and who were subjected to extreme methods of torture by governmental officials. These practices were carried on post-independence by certain officials but went unnoticed due to the lack of media sensitization on the issue. Due to the cases being cleverly covered up by the officials and the facts altered, there was no form of justice that could be rendered to the affected families. Over time, the number of cases of custodial violence has not lessened rather that they’re slowly being publicised and covered by the media, but still the notion of delivering justice seems to still be in the backseat. India, not having a set of rules and legislations to govern the practices of custodial torture despite having so many cases of it is a form of negligence and lack of concern that is portrayed. The very fact that we being a signatory of the UN Convention have not yet ratified it into our laws in spite of pressure from international bodies creates an air of ambiguity and the equivocation by the government is a flaw that should be subdued.
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[1] One of the main duties of the ruler, according to these laws, was to restrain violence and punish the evil-doers.

[2] The first report of National Police Commission, 1979.

[3] Administrative System of Marathas (1925) p.511.

[4] Sanker Sen, Police in Democratic Societies (2000) p.48.

[5] United Nations Treaty Collection: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[6] Ronli Sifris (December 4, 2013). Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinisation of Torture. 

[7]  “Committee Against Torture – Membership”. United Nations OHCHR. 

[8] Abhijeet Kumar, Crime Beneath The Rule of Law, January 2014

[9] Economic and Political Weekly, Vol. 27, No. 12 (Mar. 21, 1992), p. 551

[10] Dr. Vineeta Gupta, PUCL Bulletin, August 2001


[11] G Anand, The Hindu, January 19, 2018
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