Open Access Research Article
REVISITING INDIAS ANTI-TORTURE LAWS: EXAMINING INTERROGATIONS AND CUSTODIAL ABUSE
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"REVISITING
INDIA'S ANTI-TORTURE LAWS: EXAMINING INTERROGATIONS AND CUSTODIAL ABUSE"
AUTHORED BY
- SANKEERTANA KAVULURU,
4th Year BBA LLB(Hons.)
MIT WPU, School of Law, Pune
ABSTRACT:
India has long grappled with a
reputation for custodial abuses, with recent instances of such violations of
human rights on the rise. Despite global outcry against police brutality,
recent cases of custodial deaths have tarnished the reputation of India's law
enforcement agencies. These incidents have sparked a nationwide conversation
about the alarming recurrence of police misconduct. As those meant to protect
turn into perpetrators, the safety and freedoms of ordinary citizens are
consistently jeopardized. This paper aims to delve into the underlying reasons
behind the increasing prevalence of custodial deaths and assess the
shortcomings in the Indian legal system.
Keywords: Indian Legal System, police, police brutality, human rights,
misconduct
INTRODUCTION:
The legal framework in India, akin to
other democratic nations, is designed to safeguard the rights of its citizens
through fundamental rights and various regulations. The three branches of
government - Legislature, Executive, and Judiciary - collaborate to uphold
these rights, ensuring checks and balances. Within the Executive branch, the
police play a crucial role in maintaining societal peace and order at the
grassroots level, enforcing laws diligently to prevent crime and disorder. However,
despite their vital role, there are instances where the police misuse their
authority, often under political influence or for personal gain. Police
brutality encompasses not only physical harm but also psychological abuse, with
tragic cases sometimes resulting in fatalities. Instances of police officers
being disrespectful and verbally abusive towards individuals are unfortunately
common, whether encountered at police stations or during routine interactions
such as at traffic signals. These occurrences are not unfamiliar to Indian
society, with reports frequently surfacing regarding human rights violations,
falsified charges, and fabricated encounters. The term "police" finds
its roots in the Latin term and Ancient Greek word "Politia." In the
Indian Constitution, crucial elements such as human rights and laws to prevent
major crimes are enshrined to ensure social stability. Human rights encompass
various fundamental freedoms, including equality, freedom from exploitation,
freedom of religion, cultural and educational rights, and access to
constitutional remedies. To uphold peace and security, the judiciary was
established as the cornerstone of justice, while the responsibility of law
enforcement and citizen protection was entrusted to the police. In India, a
federal union comprising 28 states and 8 union territories, policing falls
under List II of the 7th schedule of the Constitution, designated as the State
List. The Police Act of 1861 provides a definition of "police" in
Section 1, which encompasses all individuals appointed under its provisions.
The police force serves as the civil
authority tasked with upholding law and order within a state, playing a crucial
role in maintaining societal stability. Acting as a vital component of the
legal system, it serves to protect states from criminal activities while
ensuring the rights of citizens are upheld. However, despite its essential
function, the police have garnered a negative reputation among the general
populace for instances of power abuse and instilling fear rather than fostering
a sense of positive protection in society. As Mary Frances Berry aptly stated,
"When you have a police officer who abuses citizens, you erode public
confidence in law enforcement. That makes the job of good police officers unsafe."
Recognizing these challenges, the Supreme Court has advocated for the
establishment of a "Police Complaint Authority"[1] to
address grievances against police officers at both district and state levels.
Unfortunately, there is often a perceived bias within the police force when
investigating complaints against their own members. Police brutality in India
can be attributed to several factors, including the absence of legislation
specifically targeting torture. Another significant factor is the lack of awareness
among citizens regarding their rights. As a society, we have also fallen short
in our responsibility to educate our children about laws and civic duties,
instead instilling fear of the police in their minds. According to the National
Campaign Against Torture (NCAT), which collects data from local media reports,
76% of custodial deaths reported last year were allegedly due to torture or
misconduct by law enforcement officials. Additionally, 19% of these deaths were
classified as suspicious, with police attributing causes such as suicide or
sudden illness.[2]
Following India's independence,
several acts pertaining to police forces were enacted, including the Police
Forces (Restriction of Rights)[3]
Act of 1996. Additionally, individual states introduced their own legislation
such as The Kerala Police Act of 1963 and The Punjab Police Act of 2007. The
All India Services Act of 1951 was established to facilitate the selection of
officers for prestigious positions like the Indian Administrative Service (IAS)
and Indian Police Service (IPS).
According to the Indian Annual Report
on Torture published by a Human Rights group, a total of 1,731 deaths occurred
in 2019, with 1,606 taking place in judicial custody and 125 in police custody.
Paritosh Chakma, director of the National Campaign Against Torture, highlighted
various torture techniques employed in 2019, including hammering iron nails
into the body, inflicting injuries to private parts, electric shocks, branding
with hot iron rods, pressing fingernails with pliers, and physically assaulting
pregnant women's abdomens, among others.
INTERNATIONAL
LAWS TO RESCUE AGAISNT TORTURE:[4]
There is a misconception that
resorting to torture and abuse during interrogations is an effective means of
extracting accurate information from the individual being questioned. However,
this belief is misguided, as such tactics can often yield unreliable results
and may even backfire. Psychological, emotional, or physical coercion can
compel the victim to say anything simply to halt the distressing ordeal,
undermining the very purpose of interrogation, which is to obtain credible
information. Furthermore, torture is inherently inhumane, as it directly
violates the individual's right to life with dignity. To address this issue,
legislative bodies worldwide have endeavored to establish comprehensive laws
aimed at preventing torture during interrogations. One notable outcome of these
efforts is the Miranda Warning. This warning comprises notifications typically
issued by law enforcement to suspects in police custody or during custodial
interrogations, including informing them of their right to remain silent. By
rendering statements obtained under duress inadmissible, these warnings not
only deter the use of coercion by police but also ensure that the individual
being interrogated is aware of their rights. Such warnings have served as a
model for the development of laws in nations worldwide. A prime example of this
approach is Section 10 of the Canadian Charter of Rights and Freedoms, enacted
in 1982, which mandates that arrested individuals be informed of the reasons
for their arrest and grants them the right to seek legal counsel immediately. Torture
and abusive interrogation methods are prohibited under international law, as
outlined in key conventions such as the Convention against Torture, the Geneva
Convention, and the International Covenant on Civil and Political Rights. These
conventions unequivocally forbid the use of torture and mistreatment of
prisoners by authorities. However, India lacks a specific legal framework
addressing these issues. Despite having ratified and acceded to the Geneva
Convention and the International Covenant on Civil and Political Rights, India
has yet to fully adhere to the requirements stipulated within these agreements.
INDIAN
LEGISLATION: EXISTING LAWS & LACUNAE:
In India, there isn't a dedicated
legal framework specifically addressing the issue of torture perpetrated by
police officers. Proponents of this stance argue that the existing provisions
within the Constitution and criminal laws are deemed adequate to handle
instances of torture. The Supreme Court of India has consistently reaffirmed
that the Right to Life enshrined in Article 21 of the Constitution includes
protection against torture.[5]
This means that individuals have the inherent right to be free from any form of
torture or inhuman treatment. As such, Article 21 serves as a cornerstone,
providing comprehensive protection against arbitrary actions by the state,
particularly during the process of arrest and throughout the duration of
criminal proceedings. Therefore, the principles embodied in Article 21 remain
pertinent and applicable, ensuring the safeguarding of individuals' fundamental
rights in the face of state action.[6]
Concerning protection from torture,
Article 20(3) of the Indian Constitution safeguards against self-incrimination.
This provision indirectly acts as a barrier against torture, as the main motive
for subjecting an accused individual to torture is often to extract a
confession. However, this safeguard isn't absolute, as information obtained
from such a confession can still be used to support evidence against the
accused.[7]
Section 27 of The Indian Evidence Act, 1872 further stipulates that facts
uncovered as a result of a confession or statement can be utilized against the
accused, potentially allowing torture to persist unchecked in India.
Additionally, Article 22(2) of the Constitution aims to prevent torturous
practices by imposing a limit of 24 hours on the detention of individuals based
on judicial discretion. No one can be detained beyond this period without the
authorization of a magistrate.
Similar provisions can be found in
Section 57 of the Criminal Procedure Code (CrPC), where the Judicial Magistrate
is tasked with overseeing instances of torture through a medical examination.
Any mistreatment of the accused must be documented by the Magistrate after
inspecting their body, and the cause of any injuries is to be investigated.[8]
However, this procedure overlooks injuries that are not outwardly visible but
still adversely affect the mental well-being of the accused. One notable
example of such a practice is sleep deprivation.
HISTORY:
The origins of brutality within armed
forces and armies stretch far back into history, dating back to ancient times.
Kings and emperors historically maintained armies both to protect their empires
and populace, yet these same forces often instilled fear among the people. The
evolution of the police system can be traced from the era of Kautilya through
the Mughals and ultimately to the British colonial period.[9]
Pre-British examples are often omitted, as the socio-political context differed
significantly, with the king or ruler often regarded as a divine authority.
Today's police system bears the closest resemblance to the British model, with
many aspects, including attire and practices, being inherited from that period.
It's worth noting that during the British era, the police force consisted
primarily of Indians, and significant legislation such as the Police Act of
1861 was enacted under British rule. During the British colonial period, civil
and criminal courts were established, along with Faujdari Thanas and Chowkies,
which are still referred to as police stations in India today. Under British
rule, the police were notorious for instilling fear among the population. They
often resorted to severe physical torture, known as third-degree methods,
against those who spoke out against British authority. This included tactics
such as electric shocks, genital mutilation, branding with hot irons, beatings,
and applying salt to wounds. People subjected to such inhumane treatment were
also forced into slave labor, even within the confines of British-run jails
like the infamous Andaman and Nicobar Cellular Jail.[10]
While these methods are no longer commonly employed, they are still considered
available for use "when necessary." The Jallianwala Bagh massacre,
which took place on April 13, 1919, stands as a stark illustration of police
brutality. The incident resulted in the deaths of 380 individuals, though some
historians speculate that the actual death toll may have been even higher, with
numerous others sustaining injuries. General Dyer, acting on orders,
orchestrated this brutal act with the intention of setting a fearful
"example" for other Indians. Prior to this event, in 1895, tensions
flared between Hindus and Muslims during the Ganesh Visarjan procession near
the Sai Masjid in Old Dhule Township, Maharashtra. In response to the ensuing
communal clashes, the police resorted to opening fire on the crowd, resulting
in numerous casualties and injuries. This incident has since led to the temple
being referred to as "Khooni Ganpati," a name that persists to this
day.[11]
Following Independence, one of the
initial instances of police brutality occurred during the Angamaly firing
incident on June 13, 1959, resulting in the deaths of seven individuals and
many more sustaining injuries due to police gunfire.[12]
The Universal Declaration of Human Rights (UDHR) was formally adopted in 1948,
while the International Covenant on Civil and Political Rights came into effect
in 1976. These developments marked significant early efforts towards
safeguarding human rights following India's independence.
POLICE
BRUTALITY VS HUMAN RIGHTS IN INDIA:
Since Independence, such occurrences
persist, and to this day, the police force is notorious for its acts of cruelty
and violence against suspects, undertrials, and detainees. Some individuals are
apprehended or brought in without warrants to police stations. Instances of
police brutality are observable globally, but this discussion concentrates
solely on India due to the prevalence of such behaviour being particularly high
here compared to other parts of the world. Suspects or detainees, including
minors, women, and the elderly, are not spared from experiencing torture while
in police custody. Notably, the highest number of custodial deaths, totalling
27, were reported in Andhra Pradesh.
India, being a signatory to the
Universal Declaration of Human Rights, affirmed its commitment to upholding the
principles enshrined in this international instrument. Additionally, by
acceding to two covenants in 1979, India further demonstrated its dedication to
promoting and protecting human rights on a global scale.
In 1993, the Vienna Declaration and
Programme of Action reinforced the idea that human rights and fundamental
freedoms are intrinsic to all individuals, regardless of their nationality,
ethnicity, or other characteristics. This declaration underscored the universality
and indivisibility of human rights, emphasizing that they are not privileges
bestowed by governments but are inherent to all human beings by virtue of their
humanity.
Following these international
commitments, the Indian government took steps to address human rights concerns
domestically. The establishment of the Human Rights Commission under the
Protection of Human Rights Act, 1993, marked an important milestone in this
regard. The primary objective of this commission was to hold law enforcement agencies,
including the police, accountable for any instances of misconduct or violations
of human rights.
However, despite the creation of the
NHRC, there were limitations to its effectiveness. While the commission played
a valuable role in data collection and research related to human rights issues,
it lacked substantial authority to enforce its recommendations. This meant that
while the NHRC could make suggestions and highlight cases of human rights
abuses, it did not have the power to independently investigate complaints
against the police or other authorities. As a result, its impact in holding law
enforcement agencies accountable for human rights violations was somewhat
limited. The NHRC was primarily established to gather reports and monitor human
rights violations, particularly those involving law enforcement agencies like
the police. However, despite its mandate, the NHRC has faced challenges in
fulfilling its responsibilities effectively. One significant issue is the lack
of binding authority, which means that the commission cannot enforce its
decisions. Furthermore, there have been instances where the Central government
has rejected the data provided by the NHRC, casting doubts on the accuracy and
reliability of the information.
Moreover, the data collected by the
NHRC may not accurately reflect the true extent of human rights abuses,
especially in rural areas. In many cases, people in rural communities may not
be fully aware of their rights or may face barriers in reporting violations.
Additionally, several states have not established their own human rights
commissions, further limiting the scope of reporting and accountability
mechanisms at the state level.
In summary, while the NHRC serves an
important role in monitoring human rights violations, its effectiveness is
hampered by its lack of binding authority, challenges in data accuracy, and
gaps in coverage, particularly in rural areas and states without their own
human rights commissions. Addressing these issues would be essential in
strengthening human rights protections and accountability mechanisms across
India.
The National Police Commission was
established by the Indian National Congress with the objective of scrutinizing
and reforming the police system to ensure its effectiveness both as a law enforcement
agency and as a safeguard of citizens' rights. Its primary mandate was to
propose measures and structures to address the abuse of police powers and the
manipulation of the police by politicians. Between 1979 and 1981, the
commission submitted eight reports to the government, all of which were
disregarded. In these reports, the NPC recommended the creation of a
"Criminal Justice Commission" and the establishment of separate
investigation units tailored to the needs of marginalized communities such as
scheduled tribes and scheduled castes. Additionally, the National Police
Commission recommended that individuals should not be handcuffed for any
bailable offense unless specifically ordered by the court. The NPC also
advocated for transparency in the operations of the police force. In its final
report, it proposed the removal of protections afforded to police personnel
under sections 132 and 197 of the Code of Criminal Procedure of 1973 (CrPC).[13]
As of 2020-21, the National Human
Rights Commission (NHRC) has received a staggering number of complaints,
exceeding 11,000, pertaining to alleged human rights violations by law
enforcement agencies, particularly the police. Uttar Pradesh (UP) emerges as
the state with the highest number of grievances, comprising nearly half of the
total complaints received. Specifically, UP accounted for 5,338 complaints
during the period up to January 15, 2020-21, topping the list of states with
the highest reported incidents. Following UP, Delhi registered 940 complaints,
Tamil Nadu 575, Assam 562, and Haryana 408, with Karnataka recording 175 such
cases within the same timeframe.
The data reflects a troubling reality
of ongoing human rights transgressions within the country. The cases handled by
NHRC's Investigation Division from April 2019 to March 2020, encompassing
instances of police and judicial custodial deaths, as well as fact-finding
investigations, amounted to a substantial 801,912 cases. This concerning trend
indicates a persistent infringement of fundamental human rights, despite
India's 76 years of independence. It underscores the urgent need for systemic
reforms to address the underlying issues contributing to such violations and
ensure the protection of citizens' rights and dignity.
Police brutality isn't confined to
India; it's a global issue. In 2021, United Nations experts urged an end to
police brutality worldwide, particularly highlighting the United States,
cautioning against the severe repercussions stemming from such violations of
human rights and the rule of law. The Human Rights Council has emphasized the
crucial importance of public trust in law enforcement agencies, underscoring
that their effective functioning hinges on their adherence to human rights,
fundamental freedoms, and human dignity.
Former IPS officer Meeran Chadha
Borwankar advocates for swift punishment for errant officers, emphasizing the
need to demystify the police. Echoing this sentiment, Chief Justice of India,
C. V. Ramana, voiced concerns over the gravest threats to human rights and bodily
integrity being prevalent within police stations.[14]
These statements collectively
illustrate the persistence of police brutality, necessitating acknowledgment
and reform. India requires comprehensive police reforms to safeguard the rights
of thousands of citizens and ensure accountability for police misconduct. The
current police system appears to prioritize serving powerful and corrupt
politicians over the interests of citizens. Instances of police overreach and
deliberate infringement upon the human rights of innocent civilians underscore
the urgent need for change.
CONCLUSION:
Since gaining independence, India has
made significant strides in reforming its police force and operations, yet
there remains considerable ground to cover. Police brutality has persisted
since before independence, with many cases involving law enforcement officials
violating human rights or constitutional rights. Despite numerous
recommendations from various courts, committees, and organizations, little
progress has been achieved in curbing police brutality.
The directive issued by the Supreme
Court in the Prakash Singh case has not been effectively implemented at the
grassroots level. Additionally, the Justice Thomas Committee, tasked with
addressing this issue, expressed dismay over the states' apparent indifference
toward reforms. One of the major obstacles lies in the lack of trustworthiness
of the data provided by the police in cases of police brutality, necessitating
a change in this regard.
Furthermore, existing laws and statutes
grant immunity to police officers, thus limiting the recourse available to
victims, as this immunity shields policemen from prosecution and imprisonment.
This systemic issue poses a significant challenge to addressing police
brutality effectively.
Here are some suggestions based on
research:
- Victims of police brutality should
be awarded compensation in all cases, and accountability should be shifted from
the state to the individual police officials responsible.
- Specific laws or provisions within
the Indian Penal Code should be established to address criminal acts committed
by police officers.
It is imperative to transform the
prevailing policing culture in India and develop a law enforcement system that
prioritizes aiding and serving the nation's citizens. Lawmakers must redirect
their efforts toward safeguarding the fundamental rights of citizens and
enacting new legislation to uphold justice. As the largest democracy globally,
our primary objective should be to ensure that every citizen enjoys the basic
human rights guaranteed by the Constitution, thereby putting an end to police
brutality.
[1] Prakash Singh v. Union of India
(2006) 8 SCC1
[2] Mohit Rao, “Indian police use
violence as a shortcut to justice. It’s the poorest who bear the scars”, (CNN
Article, Dt. 3rd Dec. 2020)
[3] The Police Force Act (Restriction
of Rights) vide notification No. G.S.R 1848, 3rd Dec. 1966.
[4] Mohd Rameez Raza and Ujjwal Singh,
INTERROGATIONS AND CUSTODIAL TORTURES: WHY INDIA NEEDS TO RE-ANALYSE ITS
LACUNAE OF ANTI-TORTURE LAWS? , (SSRN Article Dt. 16 Aug. 2021)
[5] D.K. Basu v. State of West Bengal,
1 SCC 416 (1997); See also: Joginder Kumar v. State of U.P., 4 SCC 260 (1994);
Nilabati Behera
[6]
Sheela Barse v. State of Maharashtra, 2 SCC 96 (1983).
[7] Pakkirisamy v. State, 8 SCC 158
(1997).
[8]
A. K. Sahdev v. Ramesh Nanji Shah, Cri.LJ 2645 Bom (1998)
[9] Pragati Sen, “Get complete
information on Police Organisation of the Mughal Empire” article on
preservearticles.com
[10] Robyn Wilson “Inside Cellular
Jail: the horrors and torture inflicted by the Raj on India’s political
activists.” (Independent, Dt. 11th Aug. 2017).
[11] Dhaval Kulkarni, “How communal
conflict led to the birth of Ganesh Utsav”, (Hindustan Times, Dt. 22nd Aug.
2022).
[12] Fr Joyce Kaithakottil “Remembering
the Angamaly police firing” (The Indian Express, 12th June 2009)
[13] Reports available at
npc_recommendations.pdf (humanrightsinitiative.org)
[14] Dhananjay Mahapatra, “Threat to
human rights and bodily integrity is highest in police stations: CJI Ramana”,
(Times of India, Dt. 9 th Aug. 2021).
Article Information
REVISITING INDIAS ANTI-TORTURE LAWS: EXAMINING INTERROGATIONS AND CUSTODIAL ABUSE
Authors: SANKEERTANA KAVULURU
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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