Audio podcast: Supreme Court should walk the talk on police torture

Ashraf Engineer

August 14, 2021

Hello and welcome to All Indians Matter. I am Ashraf Engineer.

A few days ago, Chief Justice NV Ramana served a warning about torture in police custody. “The threat to human rights and bodily integrity are the highest in police stations. Custodial torture and other police atrocities are problems which still prevail in our society,” he said. According to the Union Minister of State for Home Affairs Nityanand Rai in Parliament, the number of persons tortured in detention between 2017 and 2019 was 1,189 while 348 were killed in so-called encounters. These numbers seem low and are most likely an underestimate. According to the National Human Rights Commission, 1,723 died in judicial and police custody across India in 2019 alone. These include 1,606 deaths in judicial custody and 117 in police custody, according to the National Campaign Against Torture. This works out to an average of five deaths every single day. More than seven decades after Independence, why is this barbarism still prevalent in India? And the onus is very much on the Supreme Court to do something about it. Words are not enough.

SIGNATURE TUNE

It’s not as if safeguards against torture don’t exist. But, as the chief justice pointed out, they aren’t working. “In spite of constitutional declarations and guarantees, lack of effective legal representation at police stations is a huge detriment to arrested/detained persons. The decisions taken in these early hours will later determine the ability of the accused to defend himself,” he said.

Correctly, Chief Justice Ramana points to inequality as the core issue. “For all times to come, we must remember that the realities of socio-economic diversity which prevail in our nation cannot ever be a reason for denial of rights. Let our past not determine our future. Let us dream of a future based on legal mobility, a future where equality is a reality,” he added.

Awareness is key to correcting the balance. There is a need to ensure citizens are aware of their legal and constitutional rights and the police need to be better sensitised.

So, why is Chief Justice Ramana so concerned about the situation now?

  • Naturally, the reports of five deaths a day in custody were alarming. Coming close on the heels of that was the National Human Rights Commission revelation that 1,067 people died in custody in the first five months of 2021
  • In addition, there are reports that at least 17,146 people died in judicial and police custody in the decade up to March 2020
  • The National Campaign Against Torture says 63% of deaths in police custody occur within 24 hours of arrest, before the suspects can be produced before a magistrate. And this is done with impunity. The campaign said that between 2004 and 2018, there were no convictions of policepersons accused of custodial torture. During this time, 500 cases of death or disappearance of persons in police custody were reported and 54 policepersons were chargesheeted
  • According to the National Crime Records Bureau, in 2017, 33 policemen were arrested and 27 were chargesheeted. The data for 2019 shows 85 custodial deaths but no policeman convicted, though 14 from Gujarat were arrested and chargesheeted
  • In 2017, a parliamentary panel pointed to the high number of custodial rapes in Uttar Pradesh, where over 90% of such cases in India were reported. The panel looked at data from 2015 in its report titled ‘Women in Detention and Access to Justice’. In it, 95 cases of custodial rape were reported from Uttar Pradesh, followed by two from Uttarakhand and one each from Andhra Pradesh and West Bengal
  • Lastly, caste and minorities – 69% of prisoners and 65% of undertrials are from the scheduled castes, scheduled tribes or other backward classes, according to prisons data. Of the 125 deaths in police custody documented by the National Campaign Against Torture in 2019, 60% belonged to poor and marginalised communities and included 13 victims from Dalit and tribal communities and 15 Muslims

Unfortunately, in India, torture in police custody is all too common. There is little or no oversight as police routinely flout procedures.

As per the law, a person arrested and brought to a police station is said to be in police custody, which can last no longer than 24 hours. However, a person may be held in police custody up to 15 days on the orders of a magistrate. The suspect must be taken for a medical examination during which doctors must list pre-existing injuries; new wounds would amount to evidence of torture.

This is done but, somehow, torture still continues. So, what is the solution? Here are some suggestions by legal experts:

  • Establish an independent investigator to probe allegations of police torture
  • Court hearings should include statements of victims’ family members
  • Initiate action against superiors of officers found to have tortured prisoners
  • Simplify the process to prosecute guilty officers
  • Maintain a database of officers repeatedly accused of torture and place them under scrutiny

Chief Justice Ramana was right in saying that we need to eradicate police torture if the judiciary wants to serve all Indians. He said: “If, as an institution, the judiciary wants to garner the faith of the citizens, we have to make everyone feel assured that we exist for them. For the longest time, the vulnerable population has lived outside the system of justice.”

The chief justice hit the nail on the head but he didn’t say what the Supreme Court, which he presides over, would do about it. Police torture is a human rights crisis in India – it’s so common that we don’t even take notice of it anymore. The chief justice needs to do more than just say it’s a problem. After all, there is no greater legal power in the land than the Supreme Court. It has the means to act and make a difference, so I would like to see that happen. It’s not as if the court hasn’t spoken out in the past but there seems to have been no effect on the ground.

There’s no point in telling people what they already know. The question is what is the chief justice, and the other justices, going to do about it? Nothing stops the Supreme Court from initiating suo motu action to effect widespread changes. Perhaps the process will be slow, but it’s important to make a start. That’s what India needs as a follow-up to what would otherwise be just words. Words that needed to be said, but empty when devoid of action.

Why do we have a police force? Its purpose is to uphold the rule of law. When the force is the one to break the law in such a brutal manner, what hope can there be for liberty and rights?

Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at editor@allindiansmatter.in. Catch you again soon.