ISSN (Online) - 2349-8846
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In the ‘Third Degree’

India desperately needs a law and the enforcement of the existing codes to stop custodial torture.

There is no law at present in India that defines “torture” or recognises “custodial deaths.” The grossly inadequate Prevention of Torture Bill was passed by the Lok Sabha in 2010 and sent to a select committee of the Rajya Sabha. Predictably, its recommendations have been duly relegated to the cold storage along with the bill. In an attempt to revive the law, the chairperson of the committee, former Law Minister Ashwani Kumar filed a writ petition in the Supreme Court in September 2016 seeking prevention of custodial torture. The Supreme Court has directed the union government to explain why there has been such a delay in bringing about a law on prevention of torture.

We are constantly reminded of the urgent need for such a law. For instance, on 19 December 2016, the Bombay High Court rapped the Central Bureau of Investigation (CBI) for conducting probes without “applying its mind” in the case of the custodial death in 2014 of Agnelo Valdaris, who had been arrested for robbery in Mumbai. The CBI claimed that Valdaris committed suicide or suffered accidental death. The high court, however, observed that there was prima facie evidence that Valdaris was murdered. In another case, four police constables were convicted in January 2016 for torture leading to custodial death of Aniket Khicchi in Mumbai.

The above cases are part of the negligible minority of custodial death cases where the judiciary has been able to intervene in the interest of the victims. According to the National Crime Records Bureau, 591 persons died in police custody during 2010–15. However, there were no convictions in that period in any of the cases that were investigated. In 2015, of the 97 custodial deaths reported by the police, judicial inquiry was conducted in only 31 cases. While 28 police personnel were charge-sheeted, once again no one was convicted. Between 2008 and 2011, 2,044 cases of police torture not resulting in death were registered with the National Human Rights Commission. This figure, however, is not reliable as there is no mandate to report custodial torture and a majority of cases go unreported.

Invariably, it is the poor and the underprivileged who fall prey to the “third degree” methods used by the police. With no access to a lawyer or to information on arrest and detention procedures, they are unable to seek redressal and justice. How does one complain about the police to the police? The December 2016 Human Rights Watch report, Bound by Brotherhood: India’s Failure to End Killings in Police Custody, exposes how the “brotherhood” between the police (who mete out the violence), the magistrates (who falsify their reports), and the doctors (who transform murders into “natural deaths” or “suicides”) keeps up appearances.

Meanwhile, India continues to be indifferent to custodial deaths and custodial torture. The public perception that criminals “deserve” to be punished violently, and even killed, for their crimes implicitly normalises violence and torture—on Twitter and in practice—in the form of corporal punishment. It is no wonder then that India has not been able to stem violence and torture, be it of the police against criminals, employers against their servants, teachers against students, or parents against their children.

India had signed the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1997. Yet, almost 20 years later, there is no sign of either a move to ratify it, or to bring in legislation on prevention of torture. There have been only piecemeal amendments to the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) on arrest procedures, which are regularly flouted. The absurdity of this situation was highlighted when the Maharashtra government issued a circular in July 2016 in response to an order by the Bombay High Court making judicial inquiry mandatory into every case of custodial death. In fact, such an inquiry has been mandatory since 2006 when it was incorporated into the CrPC. The existing CrPC and the IPC provisions need to be enforced and upheld, and police personnel committing custodial torture, whether or not resulting in death, ought to be prosecuted and convicted in order to stop the “de facto and de jure impunity” with which they function. India should also ratify the UN convention against torture and look again at the Prevention of Torture Bill.

That said, we must also recognise the problem with condoning as a society the violence that a state and its agents commit on “certain kinds of people” at multiple levels, including the acceptance of corporal punishment, the normalisation of custodial torture by the police, the apathy towards custodial deaths and executions by “encounter,” and the strident calls for executing those convicted for crimes such as rape or acts of terror. These are all chapters of the same book.

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