Events & Issues
New Delhi, 16 July 2020
Police Reform
A LONG WAY TO GO
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The UN Secretary-General Antonio Guterres has
expressed that every death in police custody with signs of torture should be
investigated as a principle. The South Asia Director of Human Rights Watch has
said that it is important for authorities in India to embark upon robust
efforts “to ensure police reform, accountability, and putting an end to the
culture of immunity”. The observations are not made in vacuum, but provoked by
police action in crimes.
Two incidents in quick succession – one in Tamil
Nadu in a place notorious for custodial violence and the other in Uttar Pradesh
– involving police handling of accused person(s) in their custody have rocked
the entire nation so severely that people even forgot the state of COVID-19
pandemic in the country for some time. The first related to the death of a
father and son in police custody for interrogation and the other to encounter
killing of an arrested person. The TN case is entrusted to an eight-member CBI team
for investigation.
“Everything has been said already, but as no
one listens, we must always begin again” – A quotation in the Malimath
Committee Report on Reforms of Criminal Justice System 2003, taken from the French thinker Andreu Gide, is
equally applicable to police reforms also. We have been at it for several
years, but still have a long way to go.
Tamil Nadu case apparently arising from a
minor offence of violation of lockdown rule on closing time of shops led to
arrest of two shop owners – father and son -- and shutting them in police
lock-up. The allegation is about merciless torture of the traders in police
custody to the extent of causing their death. The irony is that the incident
happened close to the International Day in Support of Victims of Torture
observed on June 26.
It certainly needs a probe into the details
of the incident, the background of the incident, the behaviour of the victims, and
the methods used by the police in dealing with persons in their custody for
interrogation as the offence in this case is not grave by any stretch of
imagination to require excessive use of police force. It is reported that a
group of agitated inmates of the district prison attacked the police personnel
who were arrested on charges of committing torture. The UP case is a clear case
of police encounter said to be necessitated by murder of eight cops by the
accused and his attempt to escape.
It is for the government and legal and
judicial authorities to deal with the cases. They will do it with reference to
existing laws and regulations and prescribed procedures. For the society, more
important is the criminal law and procedure and the role, responsibility, and
authority of the police including methods of investigation and treatment of the
accused and witnesses. Ordinary citizens do not generally maintain close and friendly
relations with police personnel and keep them at a distance, and are aware that
police is a very powerful agency and plays a role in their orderly and peaceful
normal life.
Union Home Minister Amit Shah has
categorically asserted a few days back that the age of third degree torture is
over. He had been saying that the Central government has “zero tolerance on
custodial deaths, extra-judicial deaths, and police atrocities”. He has suggested
amending the criminal justice system. The Law Commission has also stated that
tolerance of police atrocities amounts to acceptance of systematic subversion
and erosion of rule of law.
Third degree method is a term used to refer
to police excesses in interrogating an accused.
Specifically, it denotes use of
coercion, threats, and often physical/mental torture to extract a confession or
information from an accused.
A Member of Parliament has now pointed out to
the Home Minister that during 2019, the National Human Rights Commission
recorded 1,723 cases of death of persons in judicial and police custody across
the country. Though there could be many reasons for death, the number, if
accurate is a cause for concern and remedial action. NHRC has registered over
400 cases of alleged death in police custody and over 5,000 cases of death in
judicial custody. The MP has also referred to an analysis by the National
Convention Against Torture for the period 2005-2018 which revealed that of the
500 deaths in police custody, only 281 cases were registered and 54 policemen
were charge-sheeted and no one has been convicted.
The UN Convention Against Torture was adopted
by the UN General Assembly on 10 December 1984 and came into force in 1987. India
became a signatory in 1997, but has not yet ratified the Convention by a
comprehensive law. By June 2020, the Convention had 170 State parties. Prohibition of torture has long been
established as a universal code or jus
cogens that all countries have agreed to abide by. Anti-torture is now
accepted as a principle of customary international law and an extraditable
offence. The Committee Against Torture (CAT) is a body of human rights experts
that monitors implementation of the Convention by State parties.
To ratify the convention, the Prevention of
Torture Bill was introduced in the Lok Sabha in May 2010 and sent to Select
Committee by Rajya Sabha, but it lapsed with the dissolution of the Lok Sabha.
Its main provision was to make torture a punishable offence. It defined torture
as “grievous hurt” or causing “danger to life, limb or health”. The Bill was
again brought in the Lok Sabha in 2017 and 2018 as a Private Member’s Bill, but
could not be passed due to dissolution of the Lok Sabha in 2019. Some MPs are
now demanding promulgation of an ordinance to curb custodial violence and
police brutality.
However, custodial violence is an age-old
practice. As our ideas of human rights expand and penal actions get modified
with reformist ideals, we become more sensitive to treatment of criminals and
suspected offenders and demand humane treatment of even hardened criminals. We
shudder at the very word “torture” which has become “synonymous with the darker
side of the human civilization” as observed by the Supreme Court. Therefore, persons
in police and judicial custody for interrogation in connection with a crime
deserve certain rights in accordance with the basic principle that unless and
until the guilt is proved, a person is deemed to be not guilty.
There are several provisions already written
into the IPC, (Sections 330, 331, 348), Indian Evidence Act (Sections 25 and
26), Criminal Procedure Code (Sections 76), and the Police Act (Section 29) to
curb police violence.
Under NHRC Guidelines of 1993, every
incidence of custodial death or rape must be reported to the
Commission by the concerned State within 24 hours, and should be followed by
post-mortem report, a video report, and a magisterial enquiry.
Ultimately, the question seems to centre on
civilized treatment of persons in police custody. Will it work in a climate of day-by-day
increase in crimes, newer and sophisticated forms of crimes, and
criminalization corroding every activity? In any case, rule of law and
adherence to limits of power must pervade police reforms. --- INFA
(Copyright, India
News & Feature Alliance)
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