Context: Recently a father and son allegedly died in Santhakkulam Station, Tamil Nadu due to police excesses conducted in judicial custody. They were detained for violating the lockdown restrictions.
More on News:
- A CBI inquiry is ordered but case prima facie appears to be a classic example of police brutality when they were given a free hand due to COVID lockdown.
- The case also calls for determining the mindset of police officials who believe a sense of impunity by conducting such types of acts.
- Over 1,700 custodial deaths were recorded between 2001 and 2018 nationwide; only 26 policemen convicted.
- According to data submitted by state police before Madras High Court, there were 157 custodial deaths in Tamil Nadu between 2012 and 2016.
- Underreporting: Only 810 of 1700 cases were registered as cases of torture and others were put under suicide and death in the hospital category.
- Low conviction rate: Between 2001 and 2018 - Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Odisha, no policeman was convicted for such deaths across the country.
- More than 2,000 human rights violation cases were recorded against the police between 2000 and 2018 in which 344 policemen were convicted.
Types of Custodial Violence:
- Physiological Violence: It includes mental torture by means of depriving a person of basic needs such as food, sleep. It also includes threats and humiliations to break the confidence and morale of the victim.
- Physical Violence: Under this method are employed to wreak physical assault on the victim.
- Sexual Violence: Sexual violence is employed through rape/sodomy and is generally directed towards social and psychological harassment of the victims.
Impact of such instances:
- Enhances the gap between police and citizens: Resulting in citizens fearing to report the crime.
- Inculcates a sense of impunity: In the minds of officials that in spite of misusing the power, they can get away freely.
- Sets a wrong precedent for the honest officials: Who follow proper rules and operate under the ambit of law.
- Creates a bloat on the justice system: Wherein extrajudicial killings are portrayed as accidents or mishappenings.
- A major issue of human rights concern: And one of the root obstacles to democracy and the development of human well being in contemporary societies as the act devoids a nation of its most important resource i.e people.
- Makes extradition of criminals difficult: Given the poor state of prisons in India, such instances make extradition of criminals from various countries tougher into India.
- The case calls for respecting accused person right which includes -
- Right against double jeopardy. [Art 20 (2)]
- Right not to be compelled to be a witness against himself. [Art 20 (3)]
- Not depriving him of his life or personal liberty except in accordance with the procedure established by law which is just, fair and reasonable. [Art 21].
- Right to a fair and speedy trial. [Art 21]
- Right to assistance of a Counsel. [Art 22 (1)]
- Right to be produced before the Magistrate within 24 hours of arrest excluding the time for travel. [Art 22 (2)]
- Right not to be detained in custody beyond 24 hours after arrest excluding the time for travel without the order of the Magistrate. [Art 22 (2)]
- Further Guidelines laid down by Court in D.K Basu Case must be strictly followed so as to prevent custodial violence which includes -
- People who are arrested must wear accurate identification and name tags.
- A memo of arrest must be prepared to have date and time which must be signed by a family member of the accused or a respectable member of the locality and countersigned by the accused.
- Where an accused relative/friend stays outside the state, they must be informed within 8-12 hours.
- The accused also has the right to consult his lawyer during interrogation.
- An entry must be made in Diary at the place of detention which will include the date, time and details of police officers under whose custody he has been placed.
- A person arrested should be given an option for a physical examination to give details about minor and major injuries at the time of detention.
- This should be coupled with a medical examination every 48 hours in the detention.
- Copies of all documents including arrest memo have to be sent to the area magistrate.
- Direction to the state human rights body to set up special sub-committees to monitor and report as eyes and ears of the SC and where no SHRC existed, the same to be done by the chief justice of the high court.
- Infrastructure and surveillance: All prisons must have CCTVs installed and regular visits by non-official visitors must be done to do surprise checks on prisons and police stations.
- Monitoring and implementation of DK Basu by independent and balanced civil society individuals at each level, under court supervision, is sufficient to curtail this scourge.
- As per the Law Commission’s 273rd report -
- There is a need to ratify UN Convention Against Torture which India has signed in 1997.
- Further, the definition of Torture must be broadened for including acts of inflicting injury, either intentionally or involuntarily, or even an attempt to cause physical, mental, or psychological injury.
- Police Complaints Authority (Praksh Singh case) must be set up in every district so as to curtail misuse of power by officials.
- A dedicated Torture prevention Law needs to be formulated as the draft Prevention of Torture bill 2017 got lapsed after the dissolution of Lok Sabha.
- Police Sensitisation drives must be carried on to remind them of their duties towards citizens in a democracy rather than merely brutally assault the citizens in wake of law and order as used to be the case in colonial times.
- Local Magistrates must be cautious while sanctioning a police or judicial custody, the sanction currently appears a norm but in a pragmatic sense should be used as an exception.
- It is the local magistrate before whom all arrested and detained persons must be produced within 24 hours, and thus becomes the point of first contact to uphold the rule of law.
The immediate need of the hour is to break intra-departmental solidarity with errant policemen and ensure swift, efficacious departmental coercive action plus criminal prosecution.
UN Convention against Torture:
- It is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
- The Convention requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured.
- It was signed in 1984 and came into force in 1987.
- It has 170 members including Pakistan and China while India is not a member (as it is only a signatory but has not ratified).
Image Source: The Hindu