How to contain custodial violence and death
S JYOTIRANJAN
We have a seemingly discouraging record in police brutality and custodial violence as according to reports between 2001 and 2018, about 1,727 persons died in police custody. However, it is deplorable that only 26 police personnel could only be convicted for such extra-judicial killings. Despite lots of effort and lots of time and resources for training of police personnel to embrace humane and scientific methods of investigation, there is no visible impact on the reduction of number of custodial deaths.
Custodial deaths or deaths of persons in police custody or judicial custody while undergoing trial or serving a sentence are a scar on the judicial process and weakens public trust in the process of law. According to National Crime Records Bureau (NCRB) data, in the last 20 years, 1,888 custodial deaths were reported across the country; 893 cases registered against police personnel and 358 personnel were charge-sheeted, but a few of them, to be exact only 26 of them were convicted in this period. It is unfortunate that except Odisha, in Uttar Pradesh, Madhya Pradesh and Chhattisgarh no conviction in such cases was reported in any other part of the country.
Further, leaving aside cases of custodial deaths, over 2,000 human rights violation cases were reportedly recorded against police between 2000 and 2018, but only 344 police personnel stand convicted in such cases.
The reasons are manifold: first, there is an absence of a strong anti-torture legislation categorically criminalising any form of custodial violence; second, there is serious lack of transparency in the entire prison system; third, we have so far failed to bring in meaningful Prison Reforms and most prisons continue to be overcrowded and facing acute manpower shortages and there is no safeguard against any harm within the prison; fourth, the ratification of the United Nations Convention against Torture is still pending although India has signed it since 1997. And consequently, although by signing the treaty we have only indicated our intention to meet the obligations set out in the treaty but in the absence of ratification are far from fulfilling our commitments.
It is not that we don’t have any provision regarding safeguard of individuals within custody, but whatever we have, it is simply insufficient to suffice the cause. Protection from custodial torture and death is implicit in Article 21 of the Constitution which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Besides, under Article 22. the right to counsel is provided in case of arrests.
Besides, under Section 41 of the Criminal Procedure Code (CrPC), there are provisions for assigning reasonable grounds and making documented procedures in case of arrests and detentions and for making interrogation and arrests transparent to family, friends and public.
Interestingly after the Desaiganj police station rape case, which was a case of custodial rape on March 26, 1972, wherein a young tribal girl, was allegedly raped by two policemen in the compound of Desaiganj police station in Gadchiroli district of Maharashtra, there were huge changes in laws relating to rape and custodial rape. The Government of India amended the rape laws and the new law mandated the court to presume a woman who says she did not consent to sexual intercourse is telling the truth and this also led to in camera rape trials being conducted as closed proceedings and to a ban on identifying victims by their real names. Besides this, the new law not only defined custodial rape but also shifted the burden of proof from the complainant to the accused and mandated that women cannot be called to the police station before sunrise and after the sunset.
Custodial deaths and tortures can be contained to a great extent by the use of technology to uncover truth without using extreme measures of physical torture of persons in custody. For example, by use of the Brain Fingerprint System, which is a type of lie-detection technique, through which a person’s brainwaves are measured to find out if the individual is telling the truth while answering questions put to him/her or by use of automated interrogation technology developed by the University of Arizona, called The Automated Virtual Agent for Truth Assessments in RealTime (AVATAR). The system uses visual, auditory, near-infrared and other sensors to scrutinise a suspect’s eye movements, voice and other qualities throughout an interaction; Or by use of Artificial Intelligence (AI) and Machine Learning (ML), which are emerging as advanced tool of interrogations. AI can be very helpful in detecting human emotions and predicting behaviour and ML can do wonders by alerting superiors on real-time basis when police personnel are meting out inhumane treatment to suspects.
Apart from bringing in the technological advancements to use in containing custodial violence and death, it is extremely important to have a rethink over the laws governing the field. To start with, India should ratify the UN Convention against Torture which will mandate a systematic and regular review of colonial rules, methods, practices and arrangements relating to arrest, detention or imprisonment.
Besides, the Supreme Court’s suggestion in its landmark judgment in the Shri Dilip K Basu Case, 2015, like surprise inspections by Non-Official Visitors (NOVs) and installation of CCTV cameras in police stations and interrogation rooms should be made mandatory.
Also, the Law Commission of India’s 273rd Report should be implemented in letter and spirit, wherein it is recommended that those accused of committing custodial torture should be criminally prosecuted instead of facing mere administrative action, which will act as an effective deterrent.
(The writer is an Addl. Central Government Standing Counsel, Central Administrative Tribunal, Cuttack and a Distinguished Adjunct Professor of Law and Media Studies, KIIT University. Views are personal)