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The Biggest Lie: Maintenance Of Law And Order & Protection Of Human Rights By Police (By: Nikchen Tamang & Nitesh Tamang)
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The Biggest Lie: Maintenance Of Law
And Order & Protection Of Human Rights By Police
Authored By: Nikchen Tamang & Nitesh Tamang
Introduction
It may sound paradoxical, but it is a
universal phenomenon that Police have been criticized and condemned for
committing acts contrary to what duties have been conferred to them. As law
enforcement officers, they have the fundamental responsibility to serve humanity,
safeguard lives and property, protect innocent from deception and respect the
constitutional rights of all people to liberty, equality and justice.[1]
However, the reality is precisely contrary to it. It is not surprising to hear
daily news that the Police oppress the weak, destroy their property and torture
their fellow beings. Indeed, the most unfortunate is brutal torture in police
custody. Third-degree suffering and custodial deaths have become an intrinsic
part of Police Investigation. While discussing one of the heinous crimes,
“Custodial death”, India can’t be left out. In July 2022 Home Ministry reported
to Lok Sabha a total of 4,484 deaths in Police custody and 233 in alleged
police encounters in the last two years only.[2] It
is shameful for the largest democratic country like India, where the rule of
law also governs society and the land, where personalities like Buddha and
Mahatma are used to spread the message of non-violence. Custodial death
(referred to as the death of a person who is under trial or has already been
convicted of a crime) is the most significant violation of human rights and the
most brutal and heinous form of human rights abuse. It is a vicious attack on the
right to life and liberty guaranteed by the Constitution of India. Though, the
authorities such as The Constitution of India, the Supreme Court, the National
Human Rights Commission (NHRC) and the United Nations prohibit it.[3]
But the officials all over the country disobey these institutions,[4]
and our bureaucrats are sent abroad to lie to cover up torture, rape death in
police custody for the good of India.[5]
Ironically, the Universal Declaration of Human Rights, 1948 and the
International Covenant on Civil and Political Rights, 1966, proclaimed "No one shall be subjected to
torture or cruel, inhuman or degrading treatment or punishment” for
safeguarding fundamental human rights to which India voted and was a party.
However, the biggest question is how much India itself practices it.[6]
The present study will provide the various aspects of custodial torture and
police atrocities and strive to grapple with loopholes in International and
domestic legal frameworks with increasing custodial death in India, besides
discussing the role of the Indian judiciary in preventing and safeguarding
fundamental human rights against torture.
Atrocities Of
Police And Custodial Death
In the past few years, custodial death has
been increasing at an alarming rate. The atrocities of Police in custody and
torturing prisoners, whether physical, mental or psychological, to induce them
to make confessions are very common these days. Putting a person behind bars
doesn’t deprive him of fundamental human rights. And therefore, the Supreme
Court time and again laid down in its judgment that carrying out wrongdoing and
being a detainee doesn’t deprive an individual of being a human being.[7]
However, these guidelines have not yielded anything as they are brazenly
ignored by officials all over the country. The atrocities of Police and
custodial deaths are rising, and such cases are not rare in the country. In
November 2021, a twenty-year-old man was found dead in Police Custody in
Kasganj, where Police claimed he died by suicide.[8]
More recently, in April this year, it was reported that a Muslim man, Rehan
Shah, was brutally assaulted and tortured by giving electric shock by Police.[9]
Torturing the commoner by making false allegations became the daily routine of
Police all over the country. Another instance of Custodial torture came to
light from Rampur District, where the father-son duo were illegally detained by
Police and treated brutally during detention on the pretext of interrogation.[10]
It is difficult to imagine any
police station
in India where the Police have not
used brutal and barbaric methods while treating the persons in their custody.[11]
Greed for money is the most disdainful explanation behind custodial torture. It
has been seen that there are police officers who use mercilessness to extricate
cash from suspects and blame people.[12] Also, torture is used as a mechanism to threaten and demand bribes from
the relatives and family members of the accused. One study ordered by the
Supreme Court regarding Haryana Prisons also revealed extreme forms of torture
such as giving an electric shock, depriving them of sleep, harming sexual
parts, etc. The condition of prisons in other parts of the country is no more
different. One report
about the Torture of Political Prisoners in India has pointed out some forms of
physical torture such as (a) Stamping on the bare body with heeled boots. (b)
Beating with canes on the bare soles of feet. (c) Rolling a heavy stick on the
shins, a policeman sits on it. (d) Making the victim crouch for hours in a 'Z'
position. (e) Beating on the spine. (0 Beating with a rifle butt. (g) Slapping
with cupped hands on both ears until the victim bleeds and loses consciousness.
Besides these torture methods, there are other forms of brutalities and
atrocities committed by our Police. Some of them are inhuman and barbaric.[13]
Moreover, sexual harassment of
women to the extent of rape has become a common form of torture. In 2016 -17
NHRC reported 4,851 custodial deaths,[14]
and this number has been rising at a speedy mode yearly. Asian Centre for Human
Rights, in its report of 2017 -18, stated the aggregate of 1,674 custodial
deaths.[15]
Sadly, many cases aren’t reported, and those noted haven't also yielded any
relief to the victim. How many Police get convicted and held guilty of
custodial death? By using their power, money, and political connection, they
get out of it. In 2019, NHRC reported 1,723 cases of custodial death; in
2020-2021, it reported 4,484 custodial death and 233 in alleged police
encounters.[16] The
statistics of the reports show that we’re moving towards jungle Raj. In a
democratic country, power is primarily conferred upon the Police to deal with
ordinary people. And hence it is essential to regulate and direct this power
righteously.
India is one of the largest
democracies in the world and has always paid tremendous respect to human
rights. We have also adopted these rights in our Constitution and later on
their recognition of these rights by being a part of the Universal Declaration
of Human Rights 1948, a State party to the International Covenant on Civil and
Political Rights 1966 and most importantly, through the acceptance of the
International Covenant on Economic Social and Cultural Rights.[17]
It shows India’s national and international commitment in respect of human
rights. Nevertheless, the ground reality is far from what India has
demonstrated in International Sphere. The increasing police atrocities have
shaken the faith of people in the democratic system of the country. Uncovering the
cause behind the custodial torture is essential to tackle the situation.
Various reasons paved the way for the atrocities of the Police resulting in
custodial brutality, torture and deaths. Blaming the Police for the increasing
crime rate in a society over which they have no control is the prevalent notion
in the community. They are overloaded with work and ill-equipped in terms of
resources to work. Despite these constraints, they are pressured by politicians
and bureaucrats to detect criminals and solve the cases quickly. In such
circumstances, it has been seen that Police, instead of finding real criminals,
induce poor people by using the third degree to confess a crime that hasn’t
been committed.[18] They
even threaten their family or relatives to extract money. Immense importance
should be given to the FIR in the eyes of the law as the Police entirely frame
it.[19]
Our Constitutional makers have impliedly included the concept of Rule of Law to
tackle arbitrary power and arbitrariness. However, the Police enjoy such broad
discretionary power, leaving huge room for arbitrariness. There are many
loopholes in our Indian legal system. As per our country's legal system, while
a case is being recorded in the police diary, it is mandatory to present it in
a court of law. To produce better results, it has often been seen that the
police authorities make illegal arrests or unlawful detention of people to
establish the facts in favour of the prosecution.[20] Besides, India doesn’t have a separate
comprehensive anti-torture law. Hence, the Police find themselves immune to
whatever they do.[21]
Third-degree torture has been a matter of their right while investigating. The
inadequate training,
lack of knowledge and experience in
scientific interrogation of the accused, lack of supervision by superior
officers and poor pay scale have resulted in custodial brutality and atrocity.
It is not only because of official negligence but because of incompatible
demands and expectations of the society to take strict action not sanctioned by
law.[22]
Abuse related to human rights is the
most sensational issue all over the globe. Amongst them, Custodial torture and
death have been considered the most brutal act against humankind as it
constitutes the very denial of the essence of human rights. Though every state has its way of
preventing human right abuse, as far as custodial deaths are concerned, there
are various international frameworks, treaties and conventions that have
recognized and dealt with the issue of custodial deaths and protect the rights
of detained persons.[23]
In the year 1948, after the horrible incidents of World War II, the General
Assembly of the United Nations introduced the prohibition against torture
provision in the significant Universal Declaration of Human Rights. Article 5
of the declaration states: "No one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment."[24]
Torture is universally condemned. To deal with this blatant inhuman practice, apart from the
Universal Declaration of Human Rights, it has been widely incorporated in a
wide range of international and regional human rights treaties, such as Article 7 of the International Covenant on
Civil and Political Rights (ICCPR) (1966), Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984), The European
Convention for the Protection of Human Rights and Fundamental Freedoms (1953),
African Charter on Human and Peoples' Rights (1979), American Convention on
Human Rights (1969).[25] Accordingly, in
tune with the international human rights instruments against torture, the
Constitution of India paid respect and honour to human dignity and fundamental
freedoms. The Preamble, the fundamental rights, directive principles of the
State Policy and various other provisions stand for the protection of human
rights. Beginning with
the Preamble, the Constitution assures every citizen of the dignity of the
individual and guarantees justice - social, economic and political, equality of
status and opportunity. Article 21
guarantees the right to life and personal liberty, of which deprivation can
only be by the procedure established by law, which must be just, fair and
reasonable.[26] It also includes the right to live
with human dignity in its expanded
form and, thus, would guarantee
against torture and assault by the state or its functionaries. Therefore, the right against
custodial violence arises from article 21 of the Constitution. Besides, article 20(3) mandates
self-incrimination[27]—article
22 guarantees protection against arrest and detention in some instances.[28]
Article 22(2) directs that an arrested person or person detained in custody
shall be produced before the nearest magistrate within 24 hours of his arrest,
excluding the journey period.[29]
Right to life and personal liberty has, thus, acquired the status of a sacred
and cherished right under the Constitution and cannot be denied to anyone, even
to convicts, undertrials and deteneu etc., except according to procedure
established by law. In consonance with the constitutional mandate, several
statutory provisions also seek to protect persons from being tortured.[30]
However, in the above background, it is
essential to discuss that India is one of the very few countries that have not
yet ratified the UN Convention against Torture, which is not exactly ideal for
protecting human rights in our country. India does not have a separate
anti-torture law, and ratifying it would require framing such a law. An attempt
was made in 2010 when the anti-torture bill was passed in the Lower House and
then referred to the Select committee, which recommended extensive changes.
Nevertheless, it didn’t yield any result, and the bill lapsed.[31]
Simultaneously, there are many loopholes in the police legal system. Under the
Criminal Procedure Code,[32]
the Police authorities are empowered with enormous power, which sometimes
becomes the cause of Custodial death. Under Section 41 of the CrPC, the Police
have the authority to arrest without a warrant and a magistrate’s order.[33]
At the same time, in the case of death in police custody, the investigation is
entrusted to an executive magistrate with powers to absolve the police officers
of their crimes. The enquiry is an administrative action and useless for
initiating any action. Why shouldn’t the Police be put up for trial before a
Sessions Judge whenever death occurs in a police station or while in custody?
Is not the procedure prescribed under section 176 patently discriminatory and
violative of Article 21?[34]
Concurrently, under the Indian Evidence Act, the burden of proof is
on the victim’s family in case of
custodial death. Why should not the presumption of guilt be raised against
police authorities? The law enacted during the colonial period with such a
mindset is still prevalent - Police Act 1861.[35]
It doesn’t have any provision to deal with the cadre training to interrogate
the accused, investigate the case scientifically, and teach them about human
rights.[36]
Hence, in light of the loopholes mentioned above in the Indian Legal system,
one can’t say that the Indian legal framework complies with the International
legal frameworks. The pathetic conditions of the Indian legal system only show
that law and order is an illusion, whereas law vs order is the reality.
Role Of The Indian Judiciary In Combating Custodial Torture
Since our Constitution has adopted,
the judiciary has played various roles in safeguarding the interest of
citizens. Concerning custodial torture, deaths and police atrocities, it has
played an essential role in protecting the rights against human abuse in police
custody. Even though our Constitution has impliedly recognized the rights of
arrestees, the judiciary has guaranteed and enforced it. India wouldn’t have
been a democratic country without the bench. The Supreme Court and High Courts
of different states have protected the right of arrestees. In the case of Nandini
Satpathy, [37]the
honourable Supreme Court held that an investigator should possess the qualities
of patience and perseverance and must avoid using the third degree as it has
become outlawed. Dealing with the role of the Police, the apex court again, in Delhi
Judicial Service Association v. State of Gujarat,[38] condemned
the arbitrary and excessive use of force by the Police. An example of serious
actions taken by the judiciary could be seen in Joginder Kumar v. State of
U.P.,[39] where
the Supreme Court held that no arrest could be made unless a police officer is,
apart from his power to arrest, able to justify it. Again, the Supreme Court in
D.K. Basu v. State of West Bengal[40]
warned that: “Failure to comply with the requirements shall, apart from
rendering the concerned official liable for departmental action, also render
him liable to be punished for contempt of Court, and the proceedings for
contempt of Court
may be instituted in any High Court
of the country, having territorial jurisdiction over the matter”. Taking it seriously, the Supreme
Court in D K. Basu v. State of W.B.[41]
again directed the states to strictly comply with the same, observing that
"the state governments ought to know that protection of human rights is
their primary constitutional obligation and not the sole concern of this court
alone". While protecting the interest of arrestees, the Supreme Court, in
the case of Munshi Singh Gautam v. State of Madhya Pradesh, has stated
that: "The dehumanizing torture, assault and death in custody which has
assumed alarming proportions raise serious questions about the credibility of
the rule of law and administration of the criminal justice system... the
concern which was shown in the Raghbir Singh case more than two decades back
seems to have fallen on deaf ears, and the situation does not seem to be
showing any noticeable change. However, the Supreme court, in the case of D.K. Basu v. State of West
Bengal,[42] has
provided guidelines to safeguard the interest of arrestees. Once more, in the
case of D.K. Basu vs State of West Bengal,[43]
the Supreme Court of India observed in this publicized death in police custody
that the usage of torture is impermissible and violent to Article 21. The
Supreme Court also ruled that the burden of justifying a custodial death lays
on the Police rather than the sufferer or victim. In the landmark judgment of T.V.
Vaitheeswaran v. State of Tamil Nadu,[44] the Supreme Court of India stated
that the rights given to its citizens under part III of the Indian
Constitution, which includes 'Articles 14,19 and 21 ', are also granted to the
prisoners. Furthermore,
the Constitution of India also provides that no person who is arrested will be
detained in custody without being informed as early as possible of the ground
for the arrest, nor will he be detained of the right to consult and to be
defended by a lawyer of his choice.[45]
In the case of Sunil Batra vs Delhi Administration,[46]
the Supreme Court held that: The prison authorities will be obligated for a
situation where the prisoner breaks down on account of mental torment and
physical violence past the legitimate limits of lawful detainment. Thus, the
said case gave the opportunity for the court to censure torture. In the case of
Khatri and Others vs State of Bihar & Others,[47]
the Supreme Court ordered to investigate and punish the liable Police officials
who uncouthly blinded around thirty
prisoners by piercing their eyes with
needles and pouring corrosive into their eyes. Further, Supreme Court denounced
this savage torment as an infringement of Art. 21 and granted compensation to
the sufferers.[48] The
judiciary not only protects the human rights of people but also has assured the
citizens that they live under such a legal system which aims to protect their
interests and dignity and preserve their rights.[49]
Suggestion And Conclusion
The practice of policing and human
rights are closely interrelated. Police authorities play a vital role in
protecting some fundamental rights, safeguarding the people's life, liberty and
freedoms. Effective enforcement of law and order will enable people to enjoy
their civil and political rights and social and economic rights. However, in
recent times, thoughtless and unlawful policing has suppressed people’s rights
and freedoms. An alarming increase in the case of custodial torture, assault
and death has also invited the judiciary's attention. With the rising cases of
custodial death, India must take the necessary steps. The existing framework is
insufficient to deal with the issue, and India must endeavour to form separate
and comprehensive legislation on custodial deaths and anti-torture laws. India
should also ratify the UN Convention Against Torture.
Further, educating and sensitizing
the police personnel towards these arrestees without prejudice towards their
guilt is of utmost importance, requiring an overhaul of police reforms.
Further, there is no formal report or information on the exact number of
custodial deaths, the reasons for deaths in police custody and the outcomes of
inquiries into these deaths. For the betterment of society, it is crucial for
the Indian government to recapitulate the recommendations made by different
International associations to forestall the cases of custodial torture. Also, necessary changes must be
brought to the provisions of the “Police Act of 1861” because, at times, the
police authorities have misused their power and infringed the prisoner's human
rights. The reality lies in the fact that the current period is the period of
human rights, and it is the utmost duty of the state to secure these rights.
Article Information
The Biggest Lie: Maintenance Of Law And Order & Protection Of Human Rights By Police (By: Nikchen Tamang & Nitesh Tamang)
Authors: Nikchen Tamang, Nitesh Tamang
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/14
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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