Who will police the police?
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Apprentice Lawyer

The Enshrinement of Custodial Violence in India

Bar & Bench

by Aadhyaa Khanna and Chetan Chawla

Hon’ble Justice Krishna Iyer posed a very fundamental question before us— ‘Who will police the police?’, and it is not only disappointing, but also despicable, that 39 years down the line, we, as a ‘civilized society’ continue stand at the crossroads asking ourselves the very same question.

Recent incidents that have invited the rage of the entire nation clearly shed light on the persistence of a harrowing reality, which goes on to show that those in charge of the law enforcement, often blatantly disregard the rule of law.

This realization is further strengthened when one looks at the data. In 2019, the number of custodial deaths averaged to over 5 persons per day.[1]

Not only that, between 2001 and 2018, a total of 1,727 people died in police custody. During this period, as a stark contrast, only 26 officers have been convicted, most of whom are out on bail.[2]

It is significant to note that the police force is an extension of the State, delegated with law enforcement powers by the Legislature. Various precedents like Nilabati Behera v. State of Orissa[3] have highlighted the vicarious liability of the State in cases of police excesses and have reinforced the rights of the victims through Section 357B of The Code of Criminal Procedure. Further, such overreach also subverts the role and power of the judiciary.

The intent to strike a balance between the Due Process Model and the Crime Control Model is evident from various provisions across statutes.

However, the ground realities illustrate that the prevailing laws are far from truly embracing the tenets of due process. Articles 21 and 22 of the Indian Constitution act as umbrella provisions, laying down the basic principles with regard to protection from arbitrary action.

The possibility of torture in police custody is recognized under various statutes like the Evidence Act through provisions like Section 24, 25 and 26 – where even a confession made to a police officer is inadmissible in the court of law.

General provisions of the Indian Penal Code, which apply in case of any crime, also apply to crimes committed on detainees under arrest.

However, certain provisions which deal specifically with custodial crimes are also present in the IPC, such as Section 330 (Voluntarily causing hurt to extort confession, or to compel restoration of property), Section 331 (Voluntarily causing grievous hurt to extort confession, or to compel restoration of property), 376(2) (Custodial Rape) and Section 348 (Wrongful confinement to extort confession, or compel restoration of property).

Acts such as employment other than police- duty and cowardice have been clubbed with ‘unwarrantable personal violence to any person’ under Section 29 of the Indian Police Act, which deals with ‘Penalties for neglect of duty’.

The penalties specified under this provision do not exceed three months’ pay or imprisonment for a term greater than three months. This is emblematic of the tendency to trivialise custodial violence, a wide spread offence which has cemented itself as a rot in the law enforcement machinery.

Further, the absence of a provision analogous to Section 330, 376(2) and 331, specifically referring to murder in police custody highlights the sheer apathy of the Legislature to the systematic embeddedness of the culture of impunity.

It is noteworthy that law enforcement officials are put on a pedestal and are given certain powers such as the right to legally possess firearms, the right to detain people at will, and even made available the net of sovereign immunity.

Cases where protectors of public safety become the ones endangering it, under the shield of uniform and authority, warrant for a treatment which is at a higher threshold than that of normal offences.

The law regarding presumptions exists to ensure that a miscarriage of justice does not arise out of situations wherein evidence, to prove the commission of an offence beyond reasonable doubt, might not be easily available due to the special nature of a particular circumstance.

The case of police custody is a glowing illustration of a situation where the victim might be completely powerless, leaving little or no room for an unbiased eye witnesses or documentary evidence. Crimes committed by the Police on detainees under their custody, presents a unique situation where the power dynamic between the two parties is absolutely lopsided.

In this light, it is imperative for the Legislature to enact upon the much needed reform suggested in the 113th Report of Law Commission, which recommended the insertion of Section 114 B (1) in the Indian Evidence Act, 1872 for prosecution of a police officer in such cases.

The same raises a rebuttable presumption that an injury to the deceased in custody was caused by the police officer having custody of that person during that period, thus rightly reversing the burden of proof.

It is further perturbing that despite repeated assurances of ratifying the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, India is one of the 5 signatory nations that have failed to fulfil its international commitments.[4]

It has also filed reservations against Articles 20, 21 and 22 of the Convention, thus essentially rejecting a basic level of international scrutiny envisaged by the Convention.

Such reservations against inquiry and international progress evaluation, raise questions regarding the intentions of the State to halt the perpetuation of a culture of extra-judicial and inhumane practices.

This apprehension is further strengthened when viewed in juxtaposition of the fact that the legal framework in India, has till date, failed to incorporate the very definition of the word ‘Torture’.

In the midst of a yearly clamour for extradition of one fugitive or the other, public opinion discounts the fact that India often has to face disappointment at International judicial fora due to the non-ratification of this Convention, acting as a blot on the country’s perceived systemic arrangements for treatment of under-trials and convicts.

The cycle which perpetuates custodial violence begins with police officers arresting people without necessary paper work, in clear violation of the guidelines framed by the Hon’ble Supreme Court in DK Basu’s case[5] and the subsequent amendments in the Code of Criminal Procedure.

This ‘unofficial’ arrest means that the requirement of production of the accused before a magistrate is automatically waived, and what happens in custody remains a secret within the fraternity of the Police.

Post this, the offending official can commit any act which suits his/her whim – this could be torture, rape, prolonged confinement or a gruesome act of murder.

This chain of illegal acts through which custodial torture is committed must be abated by a special legislation, which defines torture and envisages the institution of an independent committee to investigate allegations of Police brutality, while imposing high penalties as a deterrent.

Such a special legislation would be instrumental in ensuring that India truly lives up to its constitutional values of protection of life and liberty.

The Prevention of Torture Bill, 2010 was passed in the Lok Sabha on May 6, 2010. However, it lapsed after inaction post it being referred to the Select Committee of Rajya Sabha on December 6, 2010.

Former Law Minister Ashwini Kumar, filed a Public Interest Litigation before the Supreme Court of India in 2018.[6] The PIL sought a direction to the Central Government, from the Apex Court to frame a bill on protection from torture.

The Supreme Court left the onus to pass such a bill, with the Legislature. It is now incumbent on the Government to introduce and pass this absolutely critical piece of legislation.

It is paradoxical that when the Supreme Court has recognized the right to die with dignity, citizens are often denied their basic right to live with dignity by those in charge of protecting these rights. We lose all rights to condemn and denounce such acts, when we are the ones who applauded this ‘Dabangg Syndrome’ when the accused in a rape case were ruthlessly encountered in Hyderabad.

The doctrine of presumption of innocence is all encompassing. Our anger and censure against such arbitrary and callous acts cannot be selective. It has become pertinent to question ourselves as a People, as to why does it always take a Mathura or a Nirbhaya to make the required amendments to strengthen our penal provisions?

We need to stop casting curtains on these abominable truths and demand action as a society, before we see another Jayaraj, Bennicks or Vikas Dubey mercilessly murdered by those entrusted with power.

(The authors are final-year students at Campus Law Centre, Delhi University. Views are personal)

[1] India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf (Last visited on July 5, 2020)
[2] Available at: https://theprint.in/opinion/dont-just-question-police-for-custodial-killings-of-jayaraj-bennix-courts-also-responsible/451971/ (Last visited on July 5, 2020)
[3] (1993) 2 SCC 746
[4] Available at: https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en (Last Visited on: July 5, 2020)
[5] (1997) 1 SCC 416
[6] 2019 SCC OnLine SC 1144
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