by Akshita Tiwary 18 July 2020
The recent news of custodial deaths of a father-son duo in the Indian state of Tamil Nadu has shocked the entire nation. It has spurred the debate on the need to protect people in custody from the high-handedness of the police. Against this backdrop, this article analyses such a situation by focusing on the violation of fundamental rights guaranteed to people by the Constitution of India, which is also reflected in Indian judgments. It also discusses this instance within a broader context of the violation of international human rights law, and how India should rectify the same.
On June 19, P Jeyaraj was taken into custody because he had allegedly kept his shop open beyond specified hours as per the lockdown rules during the pandemic. His son, J Bennix, followed his father to the police station where he saw him being physically harassed by the police officers. In an attempt to protect his elderly father, Bennix tried to stop the officers and pushed them aside. This provoked the police team which thrashed both the father and son for hours. When the couple was taken to the hospital, the doctors found their lower garments (veshti) soaked in blood. The constant bleeding in their nether regions made the doctors change their veshti multiple times. After receiving some treatment at the hospital, they were taken to the Magistrate Court where the Magistrate remanded them to police custody without proper investigation. The duo ultimately succumbed to their injuries and died by June 23.
The incident has provoked protests in the state of Tamil Nadu. According to the data of the National Crime Records Bureau, 1,727 people died in police custody between 2001 and 2018. These deaths are a violation of the fundamental right to life and liberty as guaranteed by Article 21 of the Indian Constitution. The Supreme Court of India has explicitly interpreted Article 21 to include the right against custodial torture in the case of D. K. Basu v. State of West Bengal. As was upheld in this case, “Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality.” Hence, the apex court recognised custodial torture as violating the very fabric of human dignity which is an important component of our Constitution and needs to be protected at all costs.
Indian criminal laws too contain certain principles prohibiting the use of torture by the police. Section 330 of the Indian Penal Code, 1860 (IPC) is an appropriate example. Section 220 of the IPC is directly applicable in this instance given the fact that the police officers brought Jeyaraj in custody after he allegedly made certain critical remarks about them; so is Section 166 which punishes a public servant who disobeys the law with the intent of causing injury to a person. With regards to the Code of Criminal Procedure, 1973, Section 49 explicitly mentions that the person arrested should not be subject to more restraint than is necessary to prevent his escape. Unfortunately, the existence of these laws also has not derailed the police from resorting to custodial brutality. This calls for an urgent need for reform in keeping with international human rights standards and treaties.
Prohibition against torture is a jus cogens norm under international human rights law. The same is provided in Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights (ICCPR). There is no reason why this provision should not apply to people detained in police custody. In fact, General Comment No. 20 on Article 7 of the ICCPR specifies that police officers should be given appropriate instruction and training in this aspect so that they do not inflict torture on people remanded in custody. Having ratified the ICCPR, India has a duty to work towards this goal.
India is a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The Law Commission of India, in its 273rd Report, called upon the Indian government to ratify this convention in light of increasing incidents of custodial violence. One of the recommendations made was that the Indian Evidence Act, 1872 should be amended in such a way that if a person sustains injuries in custody, it will be presumed that these injuries were inflicted by the police. This would effectively curb the use of violence by the police for fear of facing stringent punishment.
The Code of Conduct for Law Enforcement Officials, the International Human Rights Standards for Law Enforcement, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials are some other international human rights conventions dealing with the question of use of force by law enforcement authorities, including the police. All these conventions accord respect to the human rights of people remanded in custody, especially by emphasizing upon the principles of ‘necessity’ and ‘proportionality’ where it concerns the use of force by the police. Since these principles have taken the form of customary international law, the Indian government must work towards their implementation at the domestic level as well.
The Reports of the National Human Rights Commission have frequently recognised that custodial violence and torture is so rampant in India that it has almost become a routine. The Prevention of Torture Bill was introduced in the Parliament in 2010 to punish torture by government officials in keeping with the provisions of UNCAT. However, the Bill lapsed. Nonetheless, the Law Commission prepared another draft Bill as part of its 273rd Report in 2017 along the same lines which has not yet been passed. Keeping in mind the current scenario, it is imperative that the Parliament approves this Bill as soon as possible. Additionally, the legislature will have to make suitable amendments to Indian criminal laws and the Police Act of 1861. People should be educated about the prohibition on custodial torture so that they can raise their voices against the same. The Indian government should also provide proper training to the police and other law enforcement officials regarding this issue. Having been entrusted with the duty of protection, it is only valid that the police force values human life above all to reduce occurrences of such instances in the future.