Torture in custody:Don’t turn innocent suspects into hardcore criminals

by R.D. Sharma

IN a recent landmark judgment, the Supreme Court expressed its serious concern over the increasing number of custodial deaths and called upon the law enforcing agency to take remedial measures.
A Bench sconsisting of Justice Arijit Pasayat and Justice A.K. Ganguly observed, “Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/ undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves”.
Quite close on the heals of it, another apex court Bench directed all the state governments to file their status reports detailing the exact number of such incidents and steps taken to check them at their end.
The use of brutal force and third-degree methods on suspects and undertrials remains one of the major and at times sole weapons of the Indian police. Reports of states/Union Territories reveal that the enforcers of the law are among the major perpetrators of crime against humanity. Extreme torture or assault in custody often results in grievous injuries including death. Police lock-ups and prison cells in the country are only mirrors reflecting a deeper malaise and telling a story that to be imprisoned in India can by itself amount to a death sentence.
The number of custodial deaths is steadily increasing despite the National Human Rights Commission’s watchful role and repeated strictures from the judiciary against police brutality and repression. Worse, several such deaths are not factually reported and are brazenly dismissed as suicides or encounter killings.
The police is notorious in its use of the third degree — a short-cut to investigation. Unable to cope with rising crime and hierarchical pressures from above, the police resort to it to produce quick results. Those subjected to such torture often breakdown and confess to crimes they may have never committed. Not hardcore criminals but first-time offenders and petty criminals from the poor and vulnerable sections of society are the easiest victims — be they children, women or members of marginalised communities.
It is scandalous that there is no proper mechanism in place to check such brutality. Though India has signed the Convention Against Torture, it has refused to ratify it on the plea that there are enough laws and safeguards against police torture!
The Supreme Court had made several suggestions to check police atrocities which include additional powers to the NHRC and the CBI so that they can take stern and immediate action on public complaints against the police. Yet, nothing has changed. The reasons are not far to seek why the menace still persists.
Our jail manuals are outdated. Policemen are not trained in the methods of modern scientific investigation aimed at checking the use of force. Rules and laws are flouted with impunity in the belief that the men in uniform are accountable to none. There is no forum where the detainee can seek redress. Since there are no witnesses to contradict the police version in the event of a custodial death, the accused often goes scot-free. Rare indeed is the case in which the guilty is brought to book.
In March last year, the Delhi High Court observed that courts must not overlook the fact that custodial death is the worst crime in a civilised society. It called for an amendment in the Evidence Act so that the policemen guilty of custodial torture do not escape for lack of evidence.
The National Police Commission (NPC) long ago recommended surprise visits by senior officers to police stations to deter the use of excessive force in lockups. The Law Commission too recommended that custodial deaths should be deemed as murder unless proved otherwise, placing the onus of disproving it on the police. The Jiwan Commission, which had investigated cases of torture in Punjab some years ago, suggested payment of compensation to victims and its recovery from the guilty cops and jail personnel.
Custodial crimes infringe upon human rights and the confessions so extracted often fail to stand the legal scrutiny. Violence at the hands of the police is counter-productive. It can turn innocent suspects into hardcore criminals. The grouse they have against a particular policeman motivates them to rebel against the country.
The government may boast it has the Press and the judiciary as safeguards against human rights violation. But the lack of media scrutiny in remote areas, coupled with the failure to hand down exemplary punishment to the perpetrators of violence, has not made any difference to the steadily growing menace of custodial violence.
Disciplinary action is seldom taken against the guilty cops. The inquiry proceedings are often shelved. Transfers and suspensions are just routine measures to buy time. Cases are swept under the carpet before long as public memory is short and media outcry short-lived. Such cases must be investigated expeditiously by an independent agency — perhaps the NHRC’s investigative wing — rather than the police who tend to go soft on crime committed by colleagues.
After all, a policeman is a custodian of law and an offence on his part, as observed by the NPC, is inexcusable due to the power of suppression and repression he wields. In a civilised police set-up, people don’t get killed in fake encounters or lock-ups. Nor do enforcers of the law use third-degree methods to make the undertrials confess. A professional police force presupposes better methods to collect information. If the investigation is efficient and foolproof, there will be more convictions and fewer acquittals.
Training and recruitment are the other important areas that need to be addressed promptly. The training programme should be reoriented to bring about a change in the police attitude and mindset in regard to investigations. They must recognise and respect human rights and adopt scientific investigation methods. Arguably, a dramatic improvement in the working conditions of the police could lessen brutality.
Simultaneously, the recommendations on police reforms made by the NPC and the Soli J. Sorabjee Committee must urgently be implemented to impart greater accountability and transparency in the functioning of the force. There is a strong case for insulating the police from executive control and political influence. It should operate under an independent commission on the pattern that exists in Britain, with little or no scope for pulls and pressure from above.

The writer is Senior Advocate and Consultant, Delhi High Court

Source:- The Tribune 5 April 2009
http://www.tribuneindia.com/2009/20090405/edit.htm#3

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