In recent times, we have witnessed an exponential increase in incidence of police atrocities all over the country. Catapulted by the June 2020 case of brutal custodial torture and killings of Jayaraj and Bennix in Thoothukudi, Tamil Nadu, this article examines the issue through human rights and legal perspectives. It discusses the gaps in the law and its implementation, and examines ways of addressing the same.
The authors thank the peer reviewer for the insightful comments and suggestions received.
The shocking and brutal custodial torture and killings of Jeyaraj and Bennix—the father and son—by the police of Santhankulam police station in Thoothukudi, Tamil Nadu in June 2020 have, once again, catapulted the discourse on the impunity with which the police force functions across India. While many incidents of police brutality take place regularly, and often in public spaces, few of them get highlighted in the media or witness public outrage in the same manner. Then too, once the initial phase of public outrage tides over—assuaged through enquiries, arrests and investigation—very rarely are police officials prosecuted and convicted for these heinous acts of violence. While law is often touted as a solution to social issues, including police torture, custodial violence and extrajudicial killings, this article argues that the provisions of law and their implementation are part of the problem. It explores some ways of addressing the impunity through domestic law reform, advocacy and adherence to international human rights standards.
Existing Law and Legal Processes
The Indian Constitution guarantees a fundamental right to life and liberty to all persons (Article 21), and further provides safeguards against arbitrary arrest and detention, by requiring that the arrested person has the right to be informed of the grounds of arrest and the right to consult and be represented by a lawyer of their choice (Article 22). The arresting authority is also duty-bound to produce the arrested person before the nearest magistrate within 24 hours (Article 22). The fundamental rights are specifically enshrined in the Constitution as a safeguard against state authorities and public servants, who wield enormous powers vis-à-vis laypersons, and whose powers have the potential for misuse.
Under statutory law, the Indian Evidence Act, 1872 makes any confession extracted through inducement, threat or promise inadmissible during a criminal trial (Section 24), and specifically makes a confession made to a police officer inadmissible in evidence for obtaining a conviction (Section 25). These provisions were enacted to rule out torture by the police in custody for the purpose of extracting a confession. However, it is important to note that the police subject the detenu to torture, harassment, degrading and humiliating treatment not only for the purpose of obtaining a confessional statement, and not only in custody. Subjecting civilians to inhumane, humiliating and degrading treatment is the police’s way of asserting their power and authority, and teaching a lesson to those whom they consider as criminals because they anticipate that the courts may acquit them. Seen in this light, the provisions in the Indian Evidence Act discussed above are certainly not helpful in curtailing such forms of brutality.
The Code of Criminal Procedure (CrPC), 1973, prohibits the police from subjecting the detenu to more restraint than is necessary to prevent their escape (Sections 46 and 49). However, this is frequently violated. The code also mandates a medical examination of the arrested person prior to remand (Section 54). However, due to a nexus between the medical officer and the concerned police officials, an accurate medical examination and report is often not forthcoming, and medical issues arising from police torture are not brought on record. The Thoothukudi case illustrates this nexus, leading to a denial of urgent medical treatment to the detenus (Subramanian 2020).
In the case of D K Basu v State of West Bengal (1997), several guidelines were passed by the Supreme Court of India as specific requirements for police, magistrates and other actors in the criminal justice system to follow during arrest, detention and interrogation of a person. These include: issuance of arrest memo by the arresting police officer; informing the accused about the grounds of arrest; informing family members of the arrested person about the arrest and place of detention; physical examination at the time of arrest; medical examination every 48 hours during detention in custody; and the right of the arrested person to meet a lawyer during the interrogation. Despite the fact that many of these directives were subsequently incorporated in the CrPC, they are often flouted, and custodial torture has not reduced.
Role of the Magistrate
Much of the custodial torture can be prevented if the magistrates, before whom the accused are produced for remand, are vigilant. The magistrate, prior to remand, is duty-bound to examine the demeanour of the arrested person to detect any injuries or mental agony due to police brutalities; however, this has become a mere formality and rarely does the magistrate look at or ask the arrested person about possible custodial torture. Conversely, the accused persons are intimidated by the police into silence, and often fail to complain to the magistrate of torture meted out in custody. The law, on its part, lacks the imagination to create a secure and enabling environment for the arrested person to inform the magistrate about police brutality.
In the case of Jayaraj and Bennix, media reports state that the magistrate granted custody after looking at the accused from his balcony of the court and did not even ask the accused any questions (Janardhanan 2020). Given the distance and the angle, the magistrate may not have been able to observe their bleeding injuries and their blood-soaked clothes. This is not an exception. For example, in the Bhagalpur blinding case of 1979, the police had poured acid in the eyes of the accused and they were then produced before the magistrate. The magistrate did not take the cognisance of the fact that the accused were blinded while in custody by the police (Khatri and Others v State of Bihar and Others 1981). In the case of Soni Sori—a tribal woman—she was administered electric shocks, and stones were inserted in her vagina and anus while in police custody, and could not walk to the courtroom at the time of remand. In a clear violation of the law and legal processes, the magistrate passed an order for continuing remand without even seeing her, while she was kept in a police van (Indian Express 2011). These instances indicate that while the magistrate’s legal mandate at the time of remand is to check abuse and violations of the law by the police, there needs to be an oversight mechanism to ensure that the magistrates discharge this responsibility with utmost sincerity and seriousness, with dire consequences for their failure to do so.
Prosecution of Perpetrators
Though torture is inflicted routinely by the police force, leading to grievous injuries and gruesome killings, there are very few instances when the concerned officials have been prosecuted. The most recent statistics gathered by the National Crime Records Bureau (NCRB 2018) indicate that in 2018, a total of 5,479 cases had been registered against police personnel, out of which only 580 were arrested, and 545 acquitted as against a conviction of 41 personnel. The number of acquittals is more than 13 times those of convictions of police personnel for a range of offences registered against them. The NCRB statistics are only the tip of the iceberg as far as such cases are reported to the police, on which first information reports (FIRs) have been registered.
Prosecuting Police Officials
A major challenge to prosecution is posed by the procedural requirement of sanction for prosecution. Section 197 of the CrPC mandates sanction of the government for prosecution of public officials. Courts have repeatedly emphasised that this procedural requirement is important, to protect public officials (including the police) from vexatious, frivolous litigation in connection with their discharge of public duties. However, the provision for sanction has become a protective shield behind which heinous offences committed by the police force are sheltered from any process of accountability.
The question that arises is: Are acts of torture, harassment, illegal detention, enforced disappearances and extrajudicial killings acts done in the course of discharge of official duty or reasonably connected with the same, so as to extend procedural immunity to the official concerned? In P P Unnikrishnan v Puttiyottil Alikutty (2000), two police officials illegally detained a person in a police lock-up for several days and inflicted torture on him at a police station in Kerala. The Supreme Court dispensed with the need for governmental sanction to prosecute the officials, on the grounds that they were abusing their duty and were acting outside the contours of their duty, and hence were not eligible to obtain protection from prosecution under Section 197 of the CrPC. In a subsequent judgment, the Gujarat High Court applied this reasoning and denied protection to police officials accused of custodial torture of a detenu for three days (S S Khandwala [IPS] Addl DGP v State of Gujarat 2003).
In the case of S P Vaithianathan v K Shanmuganathan (1994), the Supreme Court clearly stated that “by no stretch of reasoning can it be said that the respondent’s action of torturing the appellant was in discharge of any duty or function under the Act or any other law.” In a case before the Allahabad High Court, police and paramilitary officials were accused of a range of offences, such as indiscriminate and deliberate firing on an assembly of unarmed protesters, commission of molestation and rape on several women, illegal detentions and custodial torture, planting of evidence to show fake recoveries and tampering with evidence. The court said that these were not acts done or purported to be done in discharge of the official duties, and hence, no sanction from the government was required for prosecution (Uttarakhand Sangharsh Samiti v State of UP 1995). In People’s Union for Civil Liberties v Union of India (1997), the Supreme Court categorically stated that public officials could not claim immunity on the grounds that they were exercising the sovereign power of the state while depriving detenus of their life and liberty.
However, judicial responses have been confusing and inconsistent. In several instances of custodial torture and deaths, where the government’s refusal to grant sanction for prosecution was challenged in courts, the courts have opined that it was a decision of the executive, and refused to intervene unless mala fides of the executive is proved. In this manner, Section 197 of the CrPC has shielded police officials accused of heinous offences from prosecution. For example, several senior police officers from Gujarat and Rajasthan were discharged by the court in the case of the extrajudicial killings of Sohrabuddin Sheikh, Kausar Bi and Tulsi Prajapati, where the officers were alleged to have killed these persons in a fake encounter. The discharge was on the grounds of want of sanction for prosecution (Modak 2018a). Thus, the grant of sanction is often a considered decision by the state or central government based on political ramifications, and the court’s non-interference with such a decision exacerbates the impunity that is caused by the legal requirement of sanction.
Challenges to Justice
Despite judgments restricting the requirement of governmental sanction for prosecution as discussed above, in reality, police officials skirt justice and accountability in a number of ways. First, FIRs are not registered against such police officials accused of acts of torture, killings and other violations. Even if an FIR is registered, sanction for prosecution being an executive act, police officials with considerable political clout ensure that sanction is not granted; the nexus between the political masters and the police force facilitates this. When granted, it is usually to prosecute subordinate officers to assuage public outrage. Thus, it appears that the entire criminal justice system is stacked against the victim and the family of the victim who will need to show tremendous courage and determination to stand up and seek justice against all odds, including addressing their own survival needs and threat of violence and harm to self and family. Even if a case is registered against the police officers, the victims’ families have to deal with several hurdles in the process till the end of the trial and a conviction, which could take several years.
Second, the investigation is mostly conducted by the police officers of the same department or the police force belonging to the same state as the accused police officers, leading to biased and botched investigations. The sense of solidarity and brotherhood that the investigating officers feel with police officials accused of heinous crimes, has been judicially recognised. In Munshi Singh Gautam v State of MP (2005), the Supreme Court observed as follows:
Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues … The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable.
Third, in some cases, the government admits that the person died in custody but their bodies were never found. The cases of Khwaja Yunus from Mumbai and Kausar Bi from Gujarat are some such examples. The witnesses to a custodial torture are often other inmates, or subordinate police personnel stationed at the same police station, who may not speak up or give statements against the accused police officers due to fear of threat and harassment.
Fourth, the accused police officers get ample time and opportunity to tamper with and destroy evidence before the case is taken up for investigation, as the documents, scene of crime and weapons used for the crime are within their custody. For instance, in the case of Jayaraj and Bennix, a lady police officer who witnessed the brutal torture purportedly stated how the evidence of torture—bloodstains on a table and lathis—were tampered with. On this basis, the Madras High Court ordered the Crime Branch Criminal Investigation Department (CB-CID) to take charge of the case till the Central Bureau of Investigation (CBI) takes over the investigation, so that further destruction of evidence does not take place (Wire 2020).
Fifth, the public prosecutors who regularly take instructions from the police in other cases are expected, in cases of custodial torture and killings, to prosecute the same police officials. This is a major obstacle to an effective prosecution. For a fair and unbiased prosecution in the cases of custodial violence, there ought to be separate machinery to investigate the offence and a separate cadre of public prosecutors. In addition, very rarely are lawyers of the victim’s choice appointed as the prosecutor, as the discretion is with the court to permit the same. In one of the ongoing trials of custodial deaths, the state of Maharashtra removed the public prosecutor who was appointed on the request of the victim’s family as the prosecutor made an application for bringing in more police officers as accused (Modak 2018b).
Additionally, the concerned police officials delay the prosecution for several years by raising the issue of requirement of sanction, and the delay is favourable to the accused as it gives them time to weaken the determination of the victims and their families, threaten witnesses, and tamper with evidence. A case in point is the Vakapalli incident, where 11 tribal women from the Vakapalli village of Andhra Pradesh were allegedly gang-raped in 2007 by police personnel belonging to the anti-Naxal elite force, the Greyhounds. Eleven years later, during which time two of the victims died, the trial had not commenced, and one of the delaying tactics was to insist on governmental sanction for prosecution. The inordinate delay has caused crucial evidence to be tampered with, with the police failing to produce the duty roster and armoury general diary in court as they are “untraceable” (Mohammed 2020). Similarly, in the case of Khwaja Yunus, who was killed in custody in 2003, the trial has not been completed and remains pending before the sessions court at Mumbai.
‘Reward’ for Custodial Torture
The immediate response of the police force to a public outrage about torture or custodial killings is suspension of the errant police personnel. While this assuages the public, it is often an eyewash; suspension happens through public announcements, but reinstatement is done subsequently, surreptitiously, after public memory fades or the public engages with other important issues.
A case in point are the officials prosecuted for the killing of Khwaja Yunus. Sachin Waze (assistant police inspector), the main accused, and his three subordinates were reinstated in June 2020, 16 years after their suspension in 2004 (Ali and Samervel 2020). Waze, after his suspension from the police force, had joined one of the present ruling parties in Maharashtra and contested elections. The reinstatement assumes further significance as the trial for the extrajudicial killing against those officials who have been reinstated is still pending in a sessions court in Mumbai.
One cannot forget the police medal for gallantry awarded to Ankit Garg, the superintendent of police at Dantewada, Chhattisgarh in 2010, under whose custody Soni Sori was sexually tortured, administered electric shocks and stones inserted in her genital tract and rectum (Sethi 2012). Garg has not been made accountable for the crimes he committed of directing his subordinates to inflict torture on Soni Sori. A Ravi Kumar, a police official accused of gang-raping the tribal women at gunpoint in Vakapalli, was given a promotion in 2012, even while the prosecution was pending against him (TOI 2012).
K Vijay Kumar—who headed the joint special task force (JSTF) of Karnataka and Tamil Nadu from the latter state and coordinated the anti-Veerappan operations, including his killing—was accused of arbitrary arrests, incarceration, systematic torture, humiliating and degrading treatment and extrajudicial killings of hundreds of victims who lived in the border area of Sathyamangalam forest and were considered informers and supporters of the forest brigand Veerappan (Uma 2013: 24–59). While the National Human Rights Commission (NHRC nd) awarded crores of rupees as interim compensation to the victims of the atrocities, it did not recommend prosecution against Kumar or other police officials involved in the heinous offences. The officials of the JSTF were awarded promotions, double promotions and medals, and rewarded with land, cash awards and the like (Tiphagne 2014: 278).
These awards and recognition, conferred by state and central governments, convey a clear message to the police force that the atrocities they commit will be overlooked by the political masters and that they will escape the clutches of law. On the other hand, such incidents alienate the public and reduce their confidence in the legal system, and weaken the rule of law.
Convention against Torture
Although the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) prohibit torture, cruel or degrading treatment or punishment, the United Nations (UN 1984) Convention against Torture (CAT) is the primary convention setting normative standards and institutional mechanisms. The CAT defines torture as
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (Article 1)
So the purpose of torture extends beyond extracting confessions, to punishing, intimidating, coercing and discrimination of any kind.
CAT vests states with the responsibility to prevent torture by effective legislative, administrative, judicial or other measures as well as to punish the perpetrators (UN 1984: Articles 2 and 4). CAT further excludes any justifications for inflicting torture, such as war, internal conflict and states of emergency, and excludes “superior order” to torture as a defence in favour of the accused (UN 1984: Article 2). The convention calls upon state parties to ensure that all acts of torture, and acts of complicity in and abetment of torture are offences under its criminal law (UN 1984: Article 4). This necessarily warrants the enactment of a domestic law outlawing torture if there are none, or to amend the law to bring it in conformity with the international standards. The CAT was adopted in 1984 and entered into force in 1987. India became a signatory to the convention on 14 October 1997, which signified that it was in agreement with the principles enshrined therein, and intends to implement them at the national level. It is yet to accede to the treaty, which would make its provisions legally binding on India.
In fact, the offence of “torture” has particular connotations in international law, as it is a jus cogens crime, a peremptory norm of international law. Jus cogens norms are so fundamental in international law that no deviations and derogations from them are permissible, even in times of war, internal armed conflict and states of emergency. Torture also gives rise to obligation erga omnes, which means that all states have a mandate to investigate, prosecute, punish and extradite offenders even if the offence was not committed on the state’s territory, in other words, universal jurisdiction (Wet 2004). Indeed, CAT provides for universal jurisdiction for prosecution, punishment and prevention of torture, irrespective of where the offence is committed or the nationality of the alleged perpetrator. It is important for a domestic anti-torture legislation to incorporate these provisions to bring about parity with international human rights standards.
During the Universal Periodic Review (UPR)—which is a mechanism by which each country’s human rights record is examined by other countries’ delegates every four years—a most frequent recommendation made by other countries to India is ratification of CAT. In its second cycle in 2012, almost 100 states recommended that India ratifies CAT and enacts a domestic anti-torture legislation. In India’s third cycle in 2017, many countries reiterated the recommendation (HRC 2017a). In its statement during the UPR, it reaffirmed its commitment to ratify CAT and stated that the Law Commission of India (LCI) was examining specific aspects of domestic law reform, and that in the meanwhile, existing Indian law was adequate in combating torture (HRC 2017b).
The NHRC has, time and again, requested the Government of India to ratify CAT and to enact a domestic legislation. In the NHRC’s (2017: 139) submission to the UN Human Rights Council for the third UPR of India, it stated as follows:
A mendacious view prevails in the Government that existing provisions with slight amendment in the IPC are sufficient to deal with torture. Delay in bringing out the changes in the law as a pre-requisite for ratification of CAT is disquieting as five years have passed without any significant change.
Domestic Initiatives at Law Reform
Although the Constitution protects life and liberty of all persons, there is no explicit fundamental right against torture. The National Commission to Review the Working of the Constitution (NCRWC), established by the government in 2002, recommended that the existing Article 21 be numbered as Article 21(1) and a clause added as follows: “(2) No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment” (NCRWC 2002). The Government of India has not acted upon this recommendation till date.
The term “torture” has not been defined in the Constitution or in the criminal laws of the country. The proximate offence in the Indian Penal Code (IPC) is “voluntarily causing grievous hurt” (defined in Section 322), which is punishable with imprisonment of up to seven years and fine. The IPC also has a provision that makes voluntarily causing grievous hurt by dangerous weapons or means which is a higher degree offence, punishable with life imprisonment or imprisonment of up to 10 years with fine (Section 326). These provisions are not comparable to the offence of torture; they are equally applicable to grievous hurt inflicted by one civilian upon another. In that sense, the provisions do not capture the severity of the offence of torture, nor are they context-specific; the sections do not reflect the power dynamics between the detenu and the perpetrator, that is, a public servant in uniform who may or may not have custody over a detenue but certainly has authority over, and power to arrest the ordinary person. Hence, it is important for the offence in Indian law to reflect the language, substance and severity of the offence of torture.
Eleven years after its signature of CAT, the Indian government took an initiative to enact a domestic legislation proscribing torture, by way of introducing a Prevention of Torture Bill, 2008 in Parliament. The bill was passed in the Lok Sabha on 6 May 2010. However, the bill had many problematic provisions which were not in compliance with the provisions of CAT and other international standards; hence, the Rajya Sabha referred the bill to a select committee for further examination. The select committee modified the draft and presented it before the Rajya Sabha in 2010 but the bill was not passed. It lapsed due to the dissolution of the 15th Lok Sabha in May 2014.
In 2016, a petition was filed in the Supreme Court by a former union law minister, Ashwani Kumar, seeking India’s compliance with CAT (Dr Ashwini Kumar v Union of India 2017). The Court referred the issue to the LCI for its examination. The commission submitted its 273rd report on the issue in October 2017, in which it made the following important recommendations (LCI 2017):
(i) that India should ratify CAT at the earliest;
(ii) that a stand-alone legislation prohibiting torture should be enacted;
(iii) the legislation should provide for stringent punishment;
(iv) that some provisions of the CrPC, 1973 should be amended (primarily these deal with an award of compensation to victim or victim’s family);
(v) that some provisions of the Indian Evidence Act, 1872 should be amended, in order to shift the onus of proof of custodial torture on the accused police officials, since the evidence is in their knowledge and within their control; and
(vi) that an effective mechanism must be put in place to protect victims, complainants and witnesses against possible threats or violence.
While not endorsing the contents of the Prevention of Torture Bill, 2017 that was presented by the LCI in its entirety, it will suffice to state that the draft bill is potentially a starting point for a new round of deliberations and advocacy initiatives with multiple stakeholders, that can culminate in the passage of the bill.
One may feel elated and relieved that five police officials have been arrested in the custodial torture and killing of Jayaraj and Bennix in Thoothukudi, a transfer of investigation to the CBI has been effected, and the criminal law process has commenced, owing largely to public outrage and vigilance. However, challenges to justice persist. It is important that this public outrage is sustained through a determination to condemn all incidents of torture, cruel, inhuman, and degrading treatment by personnel in uniform. It needs to be recognised that the legal mandate given to the police force is for fair investigation of offences; it is not up to the police force to determine the guilt or innocence of the persons in their custody, or to inflict punishment or degrading treatment on them in the anticipation that they will be released by courts of law. A selective outrage will be counterproductive to the cause of justice and accountability, and will only embolden the perpetrators.
In the contemporary context of the COVID-19 pandemic, the Indian government has used a punitive approach rather than a humanitarian approach in the implementation of lockdown measures. A brute police force is relied upon by a masculinist and authoritarian state that uses violence and threat of violence to control the people, quell dissent and assert its power. In this process, the unchecked power of the police is augmented, reducing the human security of civilians, and leading to a breakdown of constitutional governance. It is true that a sound law with effective implementation are key aspects in the quest for justice. However, dismantling the current environment of over-criminalisation, and shifting the power from the police to the public are equally crucial aspects for restoring rule of law and democracy. Social movements and sustained vigilance by concerned citizenry are invaluable for ensuring justice and accountability for the heinous offence of torture.
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