Status as on: 10/02/2023
Senior Advocate Dr. Abhishek Manu Singhvi recently requested the Supreme Court to pass additional guidelines to prevent abuse of arrest powers and custodial torture.
In this context, it is fitting to discuss India’s notorious and persistent issue of custodial deaths and torture. The last incident that received widespread attention in this regard was the Jeyrax-Bennix Case of 2020, in which a father-son duo in Chennai was arrested by the police on grounds of violating social distancing guidelines and subsequently tortured in custody to the extent that the two lost their lives. Since then, custodial deaths have been rising in India, reaching the figure of 88 in 2022 as per the National Crime Records Bureau.
The problem of custodial misconduct and suffering is not new in India. At the time of the Emergency, the infamous custodial torture and death of Rajan Warrier led to the resignation of the then Home Minister of India. The problem of custodial torture owes itself to certain structural causes in the justice delivery system.
The first major problem is that of under-trials. As per National Crime Bureau Records,77% of all prisoners in the country were under trial, i.e., they had not yet been convicted. In order to extract confessions out of these under trials, the police often resort to extreme measures, such as 3rd-degree torture.
These tactics go unpunished due to a lack of accountability. Such absence of accountability exists, to a great extent, due to the toothless nature in which the National Human Rights Commission functions. While its officials are required to visit jails to keep stock of the conditions of prisoners, the NHRC lacks the power to impose punitive measures upon violators.
Another factor perpetrating custodial high-handedness is the colonial legacy of the criminal justice system; offenses such as sedition are vaguely defined so as to give authorities the leeway to interpret incidents loosely. This has been misused against political opponents, as in the recent case of Father Stan Swamy.
The prevalence of custodial torture has a debilitating impact on several aspects of the legal system.
Its most apparent consequence is that it undermines the rule of law. This was evident in the “Disha rape case of Hyderabad”, wherein the four accused of the offense were killed by the police in fake encounters, having been presumed guilty even without facing the court.
Moreover, it leads to the exploitation of vulnerable communities. The film, Jai Bhim (based on a true story), highlighted how the authority abuses their powers to falsely implicate members of tribal communities like the Irulas, who are exploited for their lack of access to legal remedies.
In order to keep a check on such custodial abuse of power, the need is to act on several fronts. On the legal front, it is important to limit vague descriptions of offenses that allow citizens to be taken into custody at the drop of a hat. The Supreme Court order putting a stay on registering of FIRs under the sedition law is a step forward in this regard.
Simultaneously, the NHRC should be given constitutional status and equipped with its cadre and punitive authority.
Also, the infrastructure around police stations such as CCTV needs also be modernized (eg. CCTV) to help capture instances of custodial torture.
The above measures and enforcement of the aforementioned D.K. Basu guidelines will help rid the country of the malice of custodial torture.
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