According to a report by The Hindu dated 20th June 2020, five custodial deaths happen in India on a daily basis. A total of 1731 people died in custody in the year 2019. Annual reports on torture in 2019 said 1606 deaths happened in judicial custody and 125 in police custody.
Torture methods in the year 2019 included hammering iron nails in the body, applying rollers on legs and burning, some other methods include electric shock, beating while handcuffed, and pricking body with needles etc. However 1731 is the only the reported data while a good number of such cases are buried deep from the reach and knowledge of common man. And then we also have people who are physically and mentally tortured and remain impaired for life. No wonder under such circumstances common masses carries such a brutal image of the police and hold them so low.
Not much time has passed when a father-son duo in the state of Tamil Nadu were arrested for exceeding the curfew limits during covid-19 lockdown and as we all know it they were brutally tortured in the custody and later died at the hands of those who take vows to protect each and every citizen even with their own lives. We must also not have forgotten the suspicious encounter of notorious criminal Vikas Dubey. These incidents are a mere reflection of age long process of torture on the suspects which is prevalent till today. This also shows us how the custodians of public safety can become perpetrators of grave injustice. Former SC judge V.R. Krishna Iyer said and I quote “custodial torture is worse than terrorism as the authority behind it is the State.”
In a vast democracy like India where Rule of law lays the very foundation of our legal system and Right to life & liberty is considered to be the most important of all the available Fundamental rights and when the constitution very meticulously articulated provisions against torture, It seems almost paradoxical that this inhumane form of interrogation is still not just prevailing but also flourishing.
Torture and Interrogation: Two Sides of the Same Coin
The UN General Assembly in 1984 for the first time adopted the convention against torture and defined it as:
For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in the official capacity does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
This is where the trouble begins, this definition carries a wide scope for its misuse as it permits for the lawful infliction of torture at the hands of the officials. Interrogation and torture, as different as these two words may sound but the prevalent and bitter truth is, they go together. Torture is inflicted when a suspected person is forced to extort information or evidences. This force may range in its form and it includes blackmailing or threating for confession, to physical or mental assaults and many times it even leads to the death of the suspect.
During interrogation physical and psychological torture techniques serves the purpose of physical, cognitive and emotional exhaustion in the detainee’s mind which is considered necessary for the purpose of successful questioning of the potential source of information. Interrogation follows procedures and regulations but in most countries like ours there is a lack of transparency and information. Most people in India are disgruntled with coercive interrogation, it happens when someone is deprived of their will and forced to act against themselves. Any interrogation that coerces the detainee and deprives them of their will potentially enters the realm of custodial torture. Police manual reflects the belief that interrogation and torture are two entirely different spheres but there lies a very thin line of difference as interrogation becomes torture as soon as any form of psychological or physical pain is inflicted upon the detainee.
Provisions against Torture in India
Indian constitution provides certain fundamental rights to each and every citizen of the country irrespective of the fact that they are suspects or convicts. These rights are mainly laid down in article 19, 20, 21, 22, 32, 226 of the constitution of India. Besides these there are also a number of rights available to them under other statues such as Indian Penal Code, Criminal Procedure Code, and the Indian Evidence act of 1861. As has been held by the SC in a plethora of judgements that these rights are so fundamental that they cannot be withdrawn just because the person is in police custody or even under arrest for that matter.
Article 20 of the constitution essentially gives a person certain set of rights against conviction of misdemeanour. These various rights include:
Article 20(1) which prohibits any legislative authority in making rules against ex post facto criminal laws. The universal declaration of human rights also recognises this concept under article 11(2) of its charter.
Article 20(2) provides protection against double jeopardy along with this The General clauses act of 1897 also provides that if an offence is constituted under two different statues, the offender shall be liable to be punished only under either of them and not both. Furthermore Section 300 to Criminal procedure code 1973 also recognises the same right to an accused.
Article 20(3) dispenses the right against self-incrimination, that is no person can be coerced to become a witness against oneself. This is said to be the foundational principal of criminal law that a person must be presumed innocent and it is for the prosecution to prove his guilt. This is further recognised by International Covenant on Civil and Political Rights under article 14(3)(g). In addition, Evidence Act 1872 lays that no confession made by the accused under police custody shall be admissible as a proof in conviction.
These rights are considered so fundamental that they are non-derogable even during emergency.
Article 21 lays that every person has aRight to life and Personal Liberty though this article does not specifically lays provisions against custodial torture but its ambit on the account of being so vast is interpreted in a way so as to protect a person against torture or any other form of assault which may be degrading of basic human rights.
Article 22 of the constitution dispenses the following rights to a person detained in police custody.
Article 22(1) talks about the Right to be Informed of the Ground of Arrest as soon as such incident takes place and the Right of an accused person to Counsel so that he may he may be saved against any unlawful perpetration.
Article 22(2) givesthe right of speedy trial which makes it compulsory for the police to produce the detainee in-front of the nearest magistrate within 24 hours of his arrest.
Psychological Mishaps due to Custodial Torture
The physical wounds suffered by a person may be cured with time but the psychological torment which one has to go through can be fatal as it leads to various mental health and behavioral complexities. Anxiety attacks, panic attacks, depression are the some very common occurrences. But what disrupts the flow of life is the post-traumatic stress disorder where a person starts losing control over himself and in certain cases it has also been observed the person being tortured gets fascinated with violence and start to exhibiting appetitively aggressive behavior.
In Raghubir Singh v. Haryana ,the Supreme Court said, “We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scars in the minds of common citizens that their lives and liberty are under a new peril because the guardians of the law destroy human rights.”
In the case of Pram Shanker Shukla v. Delhi Administration, the Supreme Court along with recognising the due need of securing the detainee from escaping asserted that handcuffs are prima facie violative, inhumane and degrading of basic human rights and it was also observed that handcuffing is arbitrary and unfair on the part of the police. The honourable court then went on to issue some guidelines to be observed while detaining a person, which are:
- Handcuffs should only be put when a person is involved in some non-bailable offence and also was convicted previously for a serious misdemeanour.
- The detainee if of despairing character, violent, unruly or causes obstruction.
- On being produced before the magistrate an inquiry must be made by him regarding the use of ferrets on the detainee.
- In case where police finds it absolutely necessary to put handcuffs a prior judicial permission must be obtained.
The Supreme Court in a number of judgements time and again has reiterated the fact that handcuffs/ferrets and irons manifest of savagery which aversus the universal aim of equality and supremacy of human dignity and social justice.
As the custodial torture is no hidden phenomenon but we must also not turn a blind eye towards the challenges faced by Indian police in the course of dispensing their duty. The need of the hour calls upon us to understand and analyse these challenges and try to find solutions to them. The complexities faced by Indian police ranges wide and far, some of the prominent issues are:
1. The inadequate strength of the required task force and the below average working conditions leave no room for the police to stay motivated for duty.
2. The basic pay of police department to extremely low considering the demanding requirements of their job which in turn paves way for bribe in the system.
3. The all mighty and powerful politicians exercises an undue amount of authority on the police for speedy results which leads to them performing their duties under pressure and gives unsatisfactory results in turn. More over the masses show a very un-cooperative attitudes with the polices which makes the whole situation more troublesome.
4. The police personnel works up to 16 hours a day, 7 days a week, they even work on national holidays, working under such circumstances it is not unlikely of them to not show sensitivity.
5. Our police system lacks the required scientific aids and temperament and the aptitude training skills required for successful and cooperative interrogation and they turn to third degree torture.
6. There should be a mandatory human rights course for the task force. Training should be given at every level to deal with masses.
7. The sovereign immunity being enjoyed by the force should be abolished as it will keep them cautious of the severe consequences of inflicting torture upon the detainee.
8. Lastly Indian government should ratify the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment. Which the government has wilfully failed to ratify thinking our domestic laws are enough to protect detainees against such torture which very evidently is not the case.
- The Hindu, Custodial Torture Worse than Terrorism, http://www.thehindujobs.com/the hindu/2003/07/27/stories/2003072703510500.html (Visited on January 23, 2010)
 United Nations, Resolutions and Decisions adopted by the General Assembly during, First Part of its Thirty-ninth Session, pp. 381-82 (1985)
 AIR 1980 SC1087
 AIR 1980 SC 1535