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Rising Police Brutality and Human Rights Violations in India: The Need for an Anti-Torture Law13/8/2020 (Amol Verma is a fourth year student of Chanakya National Law University, Patna) "Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality.” - A.S. Anand J. Introduction While on one hand, India stands with the world for the outrage against the police brutality in the USA, the other hand appears to be following the similar kind of torture behind bars. The custodial deaths of the father-son duo namely- Jeyaraj and Bennix have sparked a series of debates and discussions regarding the unauthorized use of force by police officers. A more recent incident depicting the travesty of justice was the Vikas Dubey encounter case. All these incidents where the legal procedure is hijacked by the police are weakening the Rule of Law. Police brutality takes different forms some of which are custodial rape, fake encounters, lathi charges, and custodial torture. Out of all the forms of police brutality custodial torture has witnessed a massive rise. Custodial torture scars the conscience of a civilized society which is administered by Rule of Law. The National Police Commission in its third report revealed that nearly 60% of the arrests by the police personnel were without any reasonable grounds. According to the National Crime Bureau from 2006 to 2016 there were 1,022 reported deaths in police custody, surprisingly only 5% policemen were convicted. But in 2019 alone as per a report published by The Hindu, there were about 1731 deaths in custody which comes roughly to 5 deaths per day. Moreover, about 74.4% of deaths in police custody are attributed to either torture or foul play. Mostly it is the poor and underprivileged that faces the wrath of the police.
An individual’s fundamental rights do not cease to operate even if he/she is taken into custody. The use of force in custody against a helpless individual is a grossly unlawful, degrading, and despicable practice that needs to be stopped. Existing Mechanisms for Police Accountability and The Judiciary’s Interpretation The custodial death of the father and son has forced the human rights activists to visit the existing mechanism for holding the police accountable for their misconduct. India is a signatory to the United Nations Convention against Torture (hereinafter referred to as ‘UNCT’) which was adopted by the General Assembly in 1984 but still has not ratified it as yet. The reason why India has not been able to ratify the UNCT is that we do not as yet have domestic legislation which, as per India’s state practice, is necessary before it undertakes any international treaty obligations under Article 51C and Article 253 of the Constitution. Furthermore, in 2017, the Law Commission of India had recommended that there must be a stand-alone custodial anti-torture law. The Human Rights Commission had also highlighted the need to have similar legislation. In Joginder Singh v. State of UP, the Supreme Court without entrenching upon the realm of the legislature gave certain guidelines to ensure that the rights of the individuals in police custody are safeguarded while condemning the unreasonable and arbitrary use of powers by the police personnel. The court observed that no individual can be arrested on a mere allegation or suspicion of having committed an offence. The Supreme Court of India in DK Basu v State of West Bengal has emphatically observed that the Right to Life of a citizen cannot be put in abeyance on his/her arrest and that torture is the counter side of human civilization. The court went further and laid down a series of guidelines to ensure that the police remain within its powers. However, it appears that the guidelines though effectively worded have failed miserably in its implementation. Recently, in Re-Human conditions v. State of Assam, the Supreme Court lamented that despite the rules and guidelines laid down in Joginder Singh’s and DK Basu’s Case there seems to be a major challenge of implementation. Surprisingly, in Tamil Nadu, there is a specific set of rules framed in this regard namely, The Criminal Rules of Practice, 2019. Point 10 of the Rules state that no accused person shall be placed in remand unless he is produced before the magistrate. However, in the recent custodial deaths in Tamil Nadu, the rule has been violated with impunity by the police officials. In Rudal Shah v State of Bihar, the Apex Court ordered the payment of rupees 30,000 as compensation for the violation of Article 21 and Article 22 of the Indian Constitution. In Saheli v Commissioner of Police, a nine-year-old boy was beaten to death by the police officers while in custody. The court ordered the Delhi Administration to pay rupee 75,000 as compensation to the mother of the deceased. In Nilabati Behara v State of Orissa, the court took cognizance of the misuse of sovereign power by the police officials wherein they had unlawfully caused the death of a person by inflicting multiple injuries on him while in custody. The court had vehemently regarded the act of the police as a grave violation of the fundamental rights of the arrested person and hence awarded compensation under Article 32 of the Constitution. After the perusal of the above judgments, it has become clear that the police can be held liable under the public law and monetary compensation can be ordered from the state in cases of violation of fundamental rights of citizens while in police custody. Most importantly, the doctrine of sovereign immunity cannot be taken as a defence by the police officials to escape their liability under public law. Furthermore, the police officials can be held liable for offering unwarrantable personal violence to any person in their custody under Section 29 of the Police Act, 1861. Most importantly in Prakash Singh v Union of India, the Apex Court recommended the constitution of the Police Complaints Authority which shall hear complaints against police officers of all rank. The Hurdle of Police Impunity Section 129 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) permits the police officers to use force to disperse unlawful assemblies if in case the command is not obeyed at the first instance. Furthermore, under Section 149 vast powers are given to the police officials to prevent the commission of cognizable offences. Section 197 gives protection to the police officials for acts done by them in the discharge of their official duty. Most importantly, police officials cannot be prosecuted unless a sanction is obtained by the State Government under Section 132 of CrPC. These procedural safeguards are hurdles that need to be crossed while instituting criminal proceedings against the police officials. Suggestions and Way Forward The recommendation to constitute an independent Police Complaint Authority has fallen on deaf ears as the majority of the States have failed to implement the orders of the Supreme Court. The Commonwealth Human Rights Initiative in its report had noted that the Supreme Court’s directives on police reforms have not been fully complied with by any of the States. Time has come for the States to start complying with the Apex Court directives in its letter and spirit. The shield of Section 197 of CrPC which is often used by the police officials to get away from any criminal action against them needs to be amended by doing away with the requirement of sanction by the government. Furthermore, in line with the Police Complaints Authority, a central level body to hear and decide complaints against the police officials for their unlawful acts and atrocities should be set up. The need of the hour is to have a standalone comprehensive law against torture consistent with our well-entrenched jurisprudence on human dignity and expansive interpretation of Article 21. Conclusion Torture is an anathema to any civilized society. Torture is a pain so intangible that there is no way to heal it, it scars not only the man’s psyche or the heart it scars the conscience of the nation. It certainly scars the dignitarian conscience of our democracy and the dignitarian conscience of our constitution. When human dignity is a core constitutional value, torture cannot coexist with it. When Constitutionality is replaced by muscularity, democracy vanishes and anarchy prevails. The Tamil Nadu Case has highlighted the need for a reasonable but purposive law against police brutality. This is a non-partisan issue which flows directly from the commitment to Article 21 i.e., Right to Life with Dignity, with dignity as the core constitutional value and therefore it must be passed as a humanitarian law.
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