Is Custodial Torture a Threat to Justice?: A SocioLegal Study

I. Introduction

“Custodial crimes and torture of persons in police custody are heinous and revolting as they reflect betrayal of custodial trust by public authority against defenceless citizen, such practices violates fundamental and human rights”.

-LAW COMMISSION REPORT OF INDIA, 1994³

India is a country recognised by its diversity and customs. It has recognised human rights jurisprudence at most importance. Human rights are the rights which are with the person as soon as they are born and they are universally same and can be exercised by all. Irrespective of the colour, sex, nationality human rights are entitled to everyone without any kind of discrimination. India has provision punishment for people who infringe the fundamental and human rights. The law has responsibility to up keep the trust of the common man bestowed upon them against their rights and also provide necessary redressed when they are deprived of such important right. With responsibility comes power, which when misused by the law custodians degrade the trust upon authorities and faith over humanity in this system.

The victims of torture can experience serious and long lasting consequences like they may sustain physical injuries, chronic pain, poor health, mental health consequences and behavioural consequence like alcohol abuse, loneliness, shame and isolation. According to The Indian Constitution, 1950, Article 21 which is about that no individual will be exposed to hardship from his life or individual freedom aside from in understanding to strategy built up by law. It likewise incorporates rights like ideal to security, directly against isolation, right against custodial violence. It is the one of the horrible crimes. This is achieved by a two-word mix of guard and aggression. Custody means care and supervision. Even if the custody is followed by arrest it does not have any symptoms of evilness during the period of custody. This means that when a person is under judicial detention and subject to torture, rape, death and other traumatic acts against his will. The rapid custodial deaths as a result torturous act in judicial custody has shaken the very faith in democracy of our nation. Person belonging to lower strata and weaker section suffer the most during custody. The paramount position given to article 21 of Indian Constitution clearly justifies that in a civilized society personal life and liberty are most important attributes, consequently, in most civilized societies, violation and lack of personal freedom and the threat of State action taking life are considered serious recourse by the state enforcement agency, for citizens' freedom is a priceless freedom guaranteed by the Constitution.

Therefore the current procedures regulating the actions of judicial authority need to be reinforced and enhanced. Instead Police or any judicial authorities, people are the sovereign as the power are vested by the social contract in a democratic country like India. Policemen work as an agent to government who are ultimately accountable to the citizens. It is their responsibility to protect the world from killers, thieves, criminals and jihadists to make it a worth living safe place. The basis of any form of social contract between the state and its citizen is dignity and security. Hence, every citizen and its dignity is the obligation of the state.

II. Problems faced by the under- trail prisoners-

Overloading of prisoners, not proper nourished food leading to malnourishment, not sanitation facilities and lack of medical aid are some common reason for death in police or judicial custody but custodial torture is one of the most known reason for death in lock ups. Every country has formulated different kind of laws to combat custodial torture , but even after conventions and committees being made to discourage custodial torture it is one of the dishonoured human rights despite of having being banned in all forms.

Though crime against the prisoners and detainees are very common but few are only brought in light and the accountable person is punished. There are numerous reasons due to which a person faces torture in custody but mainly to extract information from him. There are cases when different degrees of torture are done on the convicted person and it results in custodial deaths.

In any democratic society work in a prison is a public service. It should be run by civil power with object of contributing to the public good. It is critical part of judicial system. Human rights are infringed by custodial crime and even the confessions taken out after the torture process fails in the legal scrutiny process. Torture done by the police can result into turning the innocents into criminals. The grudge against the particular policemen instigates them to go against the country. There is no denial in the fact that police has so much of work pressure and other peer pressure as well upon them but that doesn’t mean police has right to do inhuman treatment with under-trail prisoners by violating the principles of law as well. A coercive prison environment stands as a major impediment to dignified custody living.

Torture of under-trial prisoners: concept and precedents related to it

The meaning of the word 'under-trial' denotes an unconvicted inmate i.e. one who has been detained in prison for the offense he / she is accused of having committed during the period of investigation, inquiry or trial. An under-trial prisoner’s right against unnecessary detention and the procedure to secure his/her release is given under the CrP.C.

Torture of the person in detention is done in different ways, some of which are recognized and described as intolerable by the authorities, But some aren't included in the data due to lack of documents. Some of the principal types are ⁴:

• Bodily torture

• Mental torture

Adriana P. Bartow describes "Torture is so unbearable in the psyche that sometimes you can almost touch it, since it is immaterial, you can't touch it to cure it. Torture is severe clasping like heavy into your chest, ice cold and stone, giving effect to sleep.

The paper engages the study on mental torture of under-trial prisoners. It has been observed that the condition of under-trail prisoners is being under such circumstances where their human rights are being violated, therefore the researchers provides the measures on which the legislature make some enactments as well as the author provides the mechanism on which the government shall pass laws.

It is a matter of concern that even after constitutional mandates like article 20, 21, 22 and landmark judgement by S.C to protect citizen from custodial torture, this crime has not yet stopped. The landmark cases mentioned in this chapter reflects the cruelty inflicted by the police upon the persons and the need to consider it as a serious issue and declare it as a heinous crime. After going through articles and cases, observation that been made is that such type of torture is done on victims who are poor, economically backward even no formal charges are done on them, they suffer because of the incapability of them to pay the officers or stand for their right which is not known by many generally.

In case of Sunil-Batra vs. Delhi Administration⁵, the S.C held that, the Prison organization will be responsible for a situation where the detainee breaks down as a result of mental torment or physical punishment which is furthest reach of legal detainment.

SC in Raghubir Singh-vs. State of Haryana⁶ observed when condemning police officers for custodial abuse, he said that "Custodial aggression, brutality and police mistreatment are not unique to this country, but it is widespread. It was the worldwide network issue in the light of the fact that the issue is widespread and the test is practically all over the world.

In Arvinder-Singh Bagga v. State of U.P⁷, the S.C awarded monetary compensation of Rs. 10,000 each to be paid to the woman and her significant other be recovered from the concerned cops and the SHO, SI and be arraigned for unlawful detention causing them to be humiliated and tortured of the candidates in police headquarters for no blame of theirs.

In D.K. Basu v. State of-West Bengal⁸, the S.C. stipulated certain "basic requirements" for police to be allowed to prevent custodial torture during arrest and detention. The following are they-

• The police who complete the capture and handle the arrested person's cross-examination should bear clear, recognizable labels regarding their names and posts.
• The police who direct such capture must set up a capture notice validated by an observer and counter-signed by the arrester and send notice to the Magistrate at that time.
• Arrested person should be entitled to counsel one partner or relative who is related to him.
• Police must inform the time, location of capture, and setting of arrest of an arrestee.
• The information will be entered in the journal at the detention site about the individual's incarceration, and will also show the identity of the following friend notified of the incarceration And the names and concerns of the police officers in whose custody the person being detained is.
• Examining the arrester in detail as the arrest resulted in his / her injury.
• The arrested person should be subjected to restorative examination at regular intervals in the presence of a specialist on the board of affirmed specialists
• Duplicates of all necessary records, including a Memo of Arrest to be sent to the Ilaqa Magistrate for documentation
• The arrestee may be allowed to meet his legal counsel through cross-examination, not all of it.
• Data surrounding the arrest and the arrester’s place of authority must be sent by the arresting officers

III. Prolongation of under-trial custody

Under court, a whopping 70 per cent of India's prison population is believed to be ⁹. The term of art used in the Indian criminal justice process to describe all unconvict defendants is "under trial" and that they are supposed to fall under the framework of the legal process. It has been observed that, the causes of prolongation of under trial prisoners in India are because of different factors which are of two kinds:-

1. The legal reasons here are understood as such, since holding them in jail means maintaining equal track and that they cannot be in a position to threaten or encourage the jurors, the judicial authority considered to keep prisoners under trial.

2. In case of heinous and grave offence, it is presumed that these under trial prisoners might affect the society or may harm the surrounding, which is totally the threat to right in rem.

3. If the accused is likely to commit the same or other offenses, the accused might appear to have committed the same offense as a result of revenge or to complete some unfulfilled mission.

4. If the accused refuses to appear for trial, well, that may also happen where the accused could withdraw from any prosecution in order to save from further judicial proceedings.

5. The majority of inmates who are unable to use the clauses of section 167 or 437(6) are not only deprived of their right to request parole, but are also too weak for protection.

Now after analysing above mentioned factors as to the prolongation of under trials in India, it can be concluded that the status of under trial prisoners is the result of discriminatory nature of justice system, where crime against the prisoners and detainees are very common but few are only brought in light and the responsible person is punished. These given reasons due to which a person faces torture in custody but mainly to extract information from him. There are cases when different degrees of torture are done on the convicted person and it results in custodial deaths.

IV. International conventions on custodial torture of under trial prisoners

Detainees have human rights and jail torment is the admission of the inability to do equity to living man. For a detainee, every single major right are an enforceable reality, in spite of the fact that confined by the reality of detainment. In practice, however, it has been realized that under-trial treatment in prisons is not satisfactory and that their human rights are being violated. The human rights concerns related to the trials under investigation were discussed in depth. The research focuses on the following issues pertaining to human right:

i) In trials, the majority of the convicts are lodged at the same institution

ii) Number of adjournments longer than required

iii) Delay in Case Trial

iv) Long time in prison

v) Imprisonment in fact rather than the pronounced sentence

vi) Acquittal after jail

vii) False Arrests

In any civilized society, protection of human rights is the utmost agenda. In order to curb torture and various international instruments were brought into force to serve this purpose which is stated here.

• The United Nations International Instruments Containing Torture Prohibiting Clauses:-

The preamble of UDHR states that, it is fundamental that if a man isn't compelled to have cured, as last choice, rebel against the ill-treatment, those human rights ought to be ensured by the rule of law¹⁰. Furthermore, UDHR in article 3, 5, 7, 8, 9, 10, 11(1), 11(2) also in International Court of Justice in the Tehran Hostage Case¹¹ States that, wrongfully to take away human being of their freedom and to subjected them to restraint physically in conditions of such adversity which is against the principles of UDHR.

• Geneva Convention:-

Under the 'Geneva Convention on the Protection of Civilian Persons in Time of War, 1949' Article 31 of the Fourth Geneva Convention specifically prohibited the use of force for information purposes and article 32 gave that secured people reserved the privilege to assurance from homicide, torment, beatings, mutilation and therapeutic or logical analyses yet additionally to some other proportions of severity whether connected by non-soldier or military agents¹². Further established that the treatment of prisoners of war in a global outfitted clash is protected by Geneva Convention III in the "Geneva Convention on the Treatment of Prisoners of War, 1949." Article 17 stipulated that there could be no physical or mental torment, nor any other type of intimidation, on war prisoners. According to Articles 13 and 14 of the Convention, prisoners of war have the right to serve their citizenship and cannot be unequally safeguarded ¹³.

• The ICCPR, 1966

Apart from article 7 and 10(1) of ICCPR, in Linton v Jamaica¹⁴, the Committee considered that, ‘the physical abuse inflicted on the author, the counterfeit execution set up by jail superintendents and the forswearing of sufficient therapeutic consideration after the wounds supported in the prematurely ended break endeavour, comprises merciless and brutal treatment inside the significance of Article 7 and in this manner, additionally involve an infringement of Article 10 of the Covenant¹⁵. It is submitted that ICCPR is the only international instrument drafted within the UN that contains a specific reference to ‘medical and scientific experiments’ as being prohibited if performed without a person’s free consent. Furthermore, special protection is required in respect of such experiments because of persons not equipped to give legitimate consent, and specifically those under any type of detention or detention.

• United Nations Convention against Torture and Other Cruel,-Treatment or Punishment Inhuman or Degrading, 1984:-

In 1984 the U.N. General Assembly adopted the U.N CAT. It sets out universally verified meanings of torture and ill-treatment, establishes the responsibility of States to prevent such abuses and establishes a committee to combat torture. The Convention against Torture criminalizes and seeks to prevent torture (Article 1) and cruel, inhuman or degrading treatment or punishment (CIDTP) (Article 16). ¹⁶.

• NCRB report:-

The NCRB deals with cases of torture in custody, but its reports do not report the annual figures identified with such cases. The below mentioned table is taken from report by NCRB-

The National Human Rights Commission (NHRC) reported 14,231 persons from 2001 to 2010. Vastly more of these deaths result from torture in custody immediately. Such death figures only represent one component of the problem of torture and custodial deaths in India, as NHRC is not responsible for in all cases of death in the police and prison authorities.¹⁷

Taking into consideration the custodial crimes from 1995 to 2015, following observations can be drawn-

Source- Annual Report by NHRC March 1995 to May 2015.

As indicated by NCRB's report distributed in August 2016, the Delhi Police had around 13,000 objections of custodial torture enrolled against the policemen amid that year. Out of the considerable number of grievances of torture, including demise, no policeman has been sentenced in cases for custodial passing or vanishing from police authority in 2015-2016, aside from a 77year-old policeman who was sent to imprison regarding death in custody.

Looking at the history of torture denial and delay in bringing legislature into office, it is unlikely that change will occur soon. From one point of view, there is an open denial of the state experts' presence of torture and, on the other, a silent acknowledgement of torture in the general public. We need to address the manners by which imbalances proceed to exist and scrutinize the idea of our criminal equity framework which chooses not to see to torture.

V. Conclusion and suggestion

The faith over law has been diminishing as the justice is not really reaching the person and places it is required. The prolonged process to get justice makes the accused stay in prison for many years which also increases the risks of custodial-torture and in many cases ultimately death. The climate given in the prisons is not really appropriate for the prisoners there; it is an impediment to a person in detention living in dignity. Police can easily use violence or torture to extract information from the accused as soon as possible and they can be relieved after making such excuses that make it a lacuna in our legal system. There is need to strength the existing mechanism of police and conduct of the police men. There are numerous reports published by NHRC, NCRB, ACHR, National police commissions but all have been ignored.

But the most alarming condition is that it cannot be denied there are cases of custodial-torture although very less are reflected in the reports by NCRB, NHRC, or ACHR but even in those case there have been no conviction. As per NCRB report of august 2017, there were around 13,000 custodial-torture cases were registered against police men, but including all the cases also of custodial deaths there was no conviction except for a single lone policemen of 77 years age who went to prison in case of custodial death. Only the torture cases in police custody of 2016-17 report states that there were 293 cases, but one can easily understand that how the system works to hide the deeds of police, most of the cases are not showed on record and when such cases occur in the rural areas they remain unnoticed. The amendment brought in section 176(1) A of Cr.P.C in year 2005 mandated judicial enquiry in every custodial violence case. But this was followed only by state of Tamil Nadu, rest every state ignored it. On an average when almost 95 persons die in custody, only 12 were ordered judicial enquiries.

VI. Suggestions:-

1) India needs to adopt special legislation which is specific for torture of under trial prisioners, wherein detailed definition of torture is provided along with punishment, compensation for victims and the procedure is established.

2) Need for open air prisons- As it is all about curing the minds of prisoners, because crime involves mens rea. It is a rule followed in jails of Gujarat wherein, the authorities help the prisoners to gain back their personal liberty and life. In Gujarat prisons, if the prisoner has completed his / her full jail term and shows good conduct and encouraging signs of reformation, then it is the responsibility of authority to expand his / her human rights by turning his / her incarceration into open air prison. They follow the principle to remove criminality but not the criminal and hence promote them to become a good citizen. Open prisons can solve problems like heavy crowding in jails and can give reformatory tips to jailor to see whether the person has improved or not.

3) To limit the exclusive police power over the person in detention, the system of checks and balances should be retained. The police men should know about his accountability towards person in custody and government in order to combat interpersonal prison violence.

4) Need for amendment in Law of Evidence- As burden of proof for providing evidence falls on plaintiff, but in torture or death in prison cases, majorly the eye witnesses are co-prisoners who may not speak against the authorities because of fear or other policemen who do not get involved in such cases. The law commission had proposed that the Indian Evidence-Act should be amended by adding a new section 114 (B) which shall be based upon the presumption that injuries sustained by a person in custody of police to be caused by police in-charge and he has to prove his innocence. If it gets implemented it would make the police treat the accused in more human manner.

5) NHRC if works independently from government can be more effective, because the reports made by them are not taken seriously and if it is given its own investigation powers, it would become more meaningful.

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