Police and Custodial Violence in India: A Human Rights Perspective

1. Police and Custodial Violence in India: A Human Rights Perspective Presentation by Dr . K.KOTTAI RAJAN Assistant Professor Department of Political Science and Public Administration Annamalai University

2. Content • Introduction • Conceptualization of Custodial Violence • Aspects of Custodial Violence • Case Study • Remedies Against Custodial Violence • Conclusion

3. Introduction “Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself”. -Adriana P. Bartow

4. Basic Police Data I • The Indian Police cater to One Billion plus Population • Police are a State subject/Home dept • Each state/ union territory has its own separate police force • There are central police organisations for specialised work. (e.g) CRPF,CISF,ITBP etc.,

5. Basic Police Data II • The total combined strength of the state/union territory police forces: 14,49,761 • The strength of CPOs - 5,28,370. • Police- Population Ratio- 10: 10,000 • Police Area Ratio: 34 Policemen per Sq KM. • 85% are constables

6. The Police System - A Colonial Legacy ? • The police system in India was established by the Police Act of 1861 • This legislation came in the wake of the Indian Sepoy Mutiny of 1857 • Aim was to quell rebellion & Perpetuate the rule

7. Indian Police Overcoming colonial attitude by • Community policing • Human Rights sensitization •   Police complaint system •   Media Audit •   Judicial Activism

8. Definition Custodial Violence is a trait against human dignity and human rights that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation Or A senseless exhibition of superiority and physical power over the one who is overpowered.

9. Conceptualization • The word custody implies guardianship and protective care • The violation of human rights under the shield of uniform and authority between the four walls of a police station, lock-up and prison where the victims are totally helpless.

10. Custodial Violence…. • Custodial Violence is a dark reality in our democratic country governed by “rule of law”. • In a democratic society, the police have the predominant role of protecting the rights of citizens as enshrined in the constitution. • But it is well known that they systematically violate their powers and employ torture as part of their investigation process. The poor , the deprived classes, women & political activists are the worst victims of police brutality.

11. Cont.. • The police constitute major party in the administration of criminal justice, & it’s with them that the average man first comes into contact when wronged. • The main reason why torture continues to be practiced on such a wide scale throughout India is that the police feel themselves to be immune, they are confident enough that they will not be held accountable, even if they kill the victim & even if the truth is revealed.

12. Aspects of Custodial Violence • Torture (a) mental (b) physical 2. Sexual Harassment 3. Rape 4. Death

13. 1. TORTURE • “Torture in custody flouts the basic rights of the citizens and is an affront to human dignity”. • It is one of the worst crime in the society, governed by the rule of law and imposes a serious threat to an orderly civilized society. • It is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. • In all custodial crimes what is of real concern is not only the infliction of body pain but the mental agony which a person undergoes within the four walls of police lock-up. It is the real face of torture

14. Torture Physical torture Mental torture verbal aggression- using filthy language Emotional blackmail Solitary confinement Inhuman treatment –degrading individual self. 1. lock-up harassment - beating, punching, hitting, kicking, scratching, and slapping. 2 . Denailing • Disfigurement • Force feeding • Drowning in water/ice • Sleep deprivation • Foot whipping • High pitched noise • Starvation • Stress positions • Tooth extraction

16. 3rd DEGREE TORTURE • Mainly there are 3 reasons for this :1) when the investigating officer (I.O) lacks the brain of Sherlock holmes , to cover-up his own inefficiency he uses 3rd degree torture on innocents.2) When the I.O is biased towards rich , powerful crooks , to frame innocents & to extract false confessions from them , 3rd degree torture is used on innocents.3) When the I.O is properly doing the investigations , but the higher-ups need very quick results - under work stress I.O uses 3rd degree torture on innocents

17. Torture to extract confessions • Torture of the victims during interrogation is common across India. Torture remained integral to investigation to obtain confessions from suspects. • Terror suspects are at increased risks of torture given the immense pressure on the police to solve the crimes

18. Torture resulting from a failure to pay bribes • On 2 June 2010, a constable was arrested and three others, including Shailendra Singh, Station House Officer (SHO) of Puwayan police station in Shahjahanpur district, Uttar Pradesh were suspended for illegally detaining Khatib Ahmed for three days and extorting money against his release. On 28 April 2010, a police team led by the SHO raided his house and picked him up. The SHO threatened the victim to implicate in a false case if he did not arrange Rs. 40,000 for his release. • On 13 July 2010, one Sneha Kumar Chakma, son of DirendraChakma of Silkur village in Lunglei district was assaulted by a personnel of Mizoram Armed Police (MAP) at Demagiri market place in Lunglei district. The victim had come to sell “dry fish” in the market and was reportedly assaulted when the victim’s wife objected to the MAP personnel who forcibly tried to take away dry fish without paying its price

19. 2. SEXUAL HARASSMENT • “Hammering upon one’s personal dignity and self respect”. • Women complainants were sexually harassed e.gwidows/destitute & poor women • Sexually abusive behavior of police officers towards the prisoners is a matter of deep concern. • Police officials treat women prisoners as their pawn. • They think that prisoners are the domestic servants and female prisoners are subject to satisfy their physical desire • At times when they deny to perform these tasks then the real picture of sexual harassment could be easily seen on the stage of reality

20. 3. RAPE • “A broader pattern of custodial abuse”. • It is committed under the shield of uniform and authority within the four walls of a police station, the victim being totally helpless. • Rape by police, including custodial rape, is very common. A higher incidence of abuse appeared credible, given other evidence of abusive behavior by police and the likelihood that many rapes were unreported due to a sense of shame and a fear of retribution among victims. • On 9 March 2010, Mr. Ajay Maken, then Minster of State in the Ministry of Home Affairs, Government of India stated in the LokSabha that the National Human Rights Commission registered 39 cases of rape from judicial and police custody from 2006 to 2010 up to 28 February 2010. These included 9 cases, including 2 in judicial custody and 7 in police custody, in 2006-2007; 17 cases, including 2 in judicial custody and 15 in police custody, in 2007-2008; 7 cases, including 2 in judicial custody and 5 in police custody, in 2008-2009; and 6 cases, including 1 in judicial custody and 5 in police custody in 2009-2010 up to 28 February 2010.

21. 4. CUSTODIAL DEATH • The Government of India allows torture, so inflicted in police lock-ups, considering it necessary for the administration of justice while providing impunity to the law enforcement officers. • Incarcerational barbarity has been validated by the popular retributive-deterrent philosophy, this is current sentencing coin in many criminal jurisdictions. • Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law • From 2001 to 2010, the National Human Rights Commission (NHRC) recorded 14,231 cases. This includes1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010

22. Deaths in Police custody 2001-11 in • The NHRC recorded 1504 deaths in police custody during 2001-2011 which includes: • 165 deaths in 2001-2002; • 183 deaths in 2002-2003; • 162 deaths in2003-2004; • 136 deaths in 2004-2005; • 139 deaths in 2005-2006; • 119 deaths in2006-2007; • 187 deaths in 2007-2008; • 142 deaths in 2008-2009; • 124 deaths in2009-2010 and 147 deaths in 2010-2011

23. Death in police Custody • The Asian Centre for Human Rights (ACHR) has consistently underlined that about 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody. • Maharashtra recorded the highest number of deaths in police custody with 250 deaths; followed by Uttar Pradesh (174); Gujarat (134); Andhra Pradesh (109); West Bengal (98); Tamil Nadu (95); Assam (84); Karnataka (67); Punjab (57); Madhya Pradesh (55); Haryana (45); Bihar (44); Kerala (42); Jharkhand (41); Rajasthan (38); Orissa (34); Delhi (30); Chhattisgarh (24); Uttarakhand (20);Meghalaya (17); Arunachal Pradesh (10); Tripura (8); Jammu and Kashmir (6); Himachal Pradesh (5); Goa, Chandigarh and Pondicherry (3 each); Manipur, Mizoram and Nagaland (2 each); and Sikkim and Dadra and Nagar Haveli (1 each).

24. Torture not resulting in deaths • Torture remains endemic and majority of torture cases do not result in the death. • Unlike custodial deaths, the police are not mandatorily required to report cases of torture which do not result in deaths to the NHRC. • Yet, the NHRC recorded a number of cases of police torture not resulting in deaths. In the last three years, 2,044 cases of police torture were registered to the NHRC. These included 574 cases in 2008-2009, 615 cases in 2009-2010 and 855 cases in 2010-2011. • The statistics has gone up every year. However, these cases are only a fraction. Majority of the cases go unreported.

25. Deaths in judicial custody (2001-11) • Uttar Pradesh recorded the highest number of deaths in judicial custody with 2171 deaths, followed by Bihar (1512); Maharashtra (1176); Andhra Pradesh (1037); • Tamil Nadu (744); Punjab (739); West Bengal (601); Jharkhand (541); Madhya Pradesh (520); Karnataka (496); Rajasthan (491); Gujarat (458); Haryana • (431); Orissa (416); Kerala (402); Chhattisgarh (351); Delhi (224); Assam (165); Uttarakhand (91); Himachal Pradesh (29); Tripura (26); Meghalaya (24); • Chandigarh (23); Goa (18); Arunachal Pradesh (9); Pondicherry (8); Jammu and • Kashmir and Nagaland (6 each); Mizoram (4); Sikkim and Andaman and Nicobar Island (3 each); and Manipur and Dadra and Nagar Haveli (1 each).

26. PRISONER’S RIGHTS • ICCPR: ARTICLE 10 (1):-All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. -MENAKA GANDHI V. UNION OF INDIA • ARTICLE 10,2(1):-Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvinced persons.-SUNIL BATRA V. DELHI ADMINISTRATION

27. Prisoner’s rights.. • ARTICLE 14:-“Right to speedy trial” all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law . • ARTICLE 14, 3(4):-it provides free legal aid to the prisoners • KHATRI V. STATE OF BIHAR……It was the duty of a trial court to inform the accused that he is entitled to free legal aid service or a lawyer of his choice. • ARTICLE 9(5):-“RIGHT TO COMPENSATION” For Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation -RUDAL SHAH V. STATE OF BIHAR

28. CConstitutional Provisions • Article 19(1)(a) provides for freedom of speech and expressions. Freedom of thought and expression is one of the important political freedoms guaranteed by Article 19(1) (a) of the Constitution. As a Fundamental Right it remains with the Prisoners Rights. • O.RAJ GOPAL v. STATE OF TAMIL NADU (Auto shankarcase)There was a serial killer with the stone in the prison and he wanted to write certain articles to papers as a series about relationship/support/expose criminals and police. Held that though is a prisoner freedom of speech and expression is available to him as following above decision too

29. Constitutional Provisions • Article 20(1) It prohibits Conviction or greater sentence for an offence under ex post facto criminal laws. Article 20(2) Embodies the principal of ‘double jeopardy’, that is, no person shall be prosecuted and punished for the same offence more than once. Article 20(3)Provide for important safeguards to the under trials that the jail authorities or police authorities cannot compel the prisoners to give testimony which is likely to expose them for criminal consequences.( No self incrimination) • Article 21 Article 21 provides no person shall be deprived of his life or personal liberty except according to procedure established by law. Our Constitution has guaranteed certain rights and safeguards which the State should uphold for every citizen of the sovereign India. Some basic rights reads as under out of which article 21 of the Constitution is most luminary provisions in the Constitution and is a part of the scheme for fundamental rights, occupies a place of pride in the constitution. Right to speed trial, right against handcuffing, right against inhuman treatment are some of the rights which come under the purview of the Article 21.

30. Constitutional Provisions • Article 22 • Article 22 provides for protection against arrest and detention in certain cases. It deals with the right of a person who is arrested and procedures for preventive detention. • No person can be detained without being informed of the reasons of his arrest. • Right to be informed as soon as may be of the grounds of arrest; • Right of freedom to consult and to be represented by a lawyer of his own choice.(Article22(1)); • Right to be produced before a Magistrate within 24 hours of arrest and detention beyond the said period only on the order of the Magistrate. The 24 hours do not include the time taken for the journey from the place of arrest to the magistrate; • Free legal aid is provided to those who cannot afford the same. • Article 25(1) provides for freedom of conscience and free profession, practice and propagation of religion. This right to religion can be equally enjoyed by the prisoner also • Article 39(A) is a Directive Principle of State Policy and grants equal justice and free legal aid. It deals with providing free legal aid to disabled categories and women are among them.

31. Remedies against custodial violence 1. Constitutional Safeguards • Article 20 primarily gives the rights against conviction of offences • Article 21 Right to life or personal liberty (to protect the right to be free from torture) • Article 22 provides four basic fundamental rights with respect to conviction

32. Cont….. These include 1. Being informed of the grounds of arrest, 2. To be defended by a legal practitioner of his choice, 3. Preventive detention laws and 4. Production before the nearest Magistrate within 24 hours of arrest of the person

33. 2. Statutory Safeguards: • Indian Evidence Act, 1872 A confession to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) • Code of Criminal Procedure, 1973 Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life

34. Cont.. • Indian Police Act 1861 Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. • Indian Penal Code sections 330,331,& 348 were enacted to curb the tendency of policemen to resort to torture to extract confessions

35. 3. Judicial Precedents • The Supreme Court is heralded as a beacon of rights against torture. • provided for guidelines on rights of the arrested persons especially women • Medical examination every 48 hours during detention by a doctor from the approved panel of doctors and • Copies of all prescribed documents should be sent to the concerned Magistrates • Women should not be detained in police stations during night time • No arrest/enquiry of women after 6 P.M • if warranted with assistance of women P.C arrest should be carried out a producing the accused before the magistrate immediately and lodge in the prison.

36. Case Study -1 • Nandagopal in Annamalai Nagar was held by 4 policemen on suspicion of theft. “After picking him up on May 30, 1992, the cops kept him in custody for five days where he was beaten to death. The cops also allegedly gang raped his wife Padmini,” the court was told. • Judgement “We are surprised the accused were not charged under Section 302 IPC (murder) and instead the courts below treated the death as suicide. They should have been charged under that provision and awarded death sentence, as murder by police in custody in our opinion comes in the category of rarest of rare cases deserving death sentence,” the Bench observed.

37. Case Study -2 • One Vinod Sharma from GulabiBagh area of New Delhi whose blackened eyes swollen with frozen blood –exposing that he was brutally boxed before he died –was published by The Hindustan Times on 8 April 2010. There are hundreds of victims of custodial death across the country whose plight never makes it to the newspapers

38. Case study- 3 • In December 2009, the Bombay High Court asked the Maharashtra government to explain why it had rejected the state Criminal Investigation Department (CID)’s plea to prosecute 10 officers of Mumbai Police in the KhwajaYunus murder case. The Maharashtra government had sanctioned the prosecution of four minor officers but let off 10senior officials despite the CID establishing their roles in the custodial death of Yunus in January 2003.

39. Case Study-4 • Award of Rs 500,000 compensation to family of custodial death victim by Madras High Court • On 24 August 2010, the Madras High Court Bench directed the State Government to pay a compensation of Rs.500,000 to the wife of custodial death victim,L. Kuttiappan alias Bhoominathan.The victim was picked up and tortured at the Palayamkottai police station, Tirunelveli after his cousin eloped with a daughter of a policeman on 15 June 2003. • In her petition, the victim’s wife B. Priya stated that her husband L. Kuttiappan’s cousin M. Santhosh fell in love with a police constable’s daughter and eloped with her.Later, a team of policemen from Palayamkottai police station picked up her husband at late night on 14 June 2003. He was subjected to torture in custody and released the next day only after the police came to know that the couple had surrendered before the police. The victim sustained injuries on his chest, groin and genital parts after being beaten up with batons and boots resulting in his death. As a result, the victim remained weak since his release and died on 16 June 2003.

40. 10-Points to combat torture 1.Adopt an official policy to protect human rights 2.Investigate impartially all allegations of torture 3.Bring the perpetrators to justice 4.Strengthen safeguards against torture 5.Inform detainees of their rights 6.Compensate the victims 7.Train the police and security forces to uphold human rights, and reform the police 8.Provide torture victims with medical treatment and rehabilitation 9.Investigate the causes and patterns of torture. 10.Strengthen India’s international human rights commitment

41. Recommendations Hereby we urge the GOI & all state governments :1) to book cases of murder against police personnel who use 3rd degree torture on detainees and kill detainees in the name of encounter killings.2) To dismiss such inhuman , cruel personnel from police service and to forfeit all monetary benefits due to them like gratuity , pension ,etc.3) To pay such forfeited amount together with matching government contribution as compensation to family of the victim's of 3rd degree torture & encounter killings.4) To review , all cases where false confessions were extracted from innocents by 3rd degree torture.5) To make liable the executive magistrate of the area , in whose jurisdiction torture is perpetrated by police on innocents.

42. Recommendations • 6) To make it incumbent on all judicial magistrates ,to provide a torture free climate to all parties , witnesses in cases before his court. 7) To make it mandatory for police to use scientific tools of investigations like brain mapping , polygraph(lie detector) , Narco-analysis test etc without bias against suspects rich or poor.8) To include human rights education in preliminary & refresher training of police personnel.9) To recruit persons on merit to police force who have aptitude & knack for investigations.10) To insulate police from interference from politicians & superiors.11) To make police force answerable to a neutral apex body instead of political bosses. Such body must be empowered to deal with all service matters of police.12) The political bosses & the society must treat police in a humane manner and must know that they too have practical limitations. Then on a reciprocal basis , police will also treat others humanely.13) The police must be relieved fully from the sentry duties of biggies & must be put on detective , investigative works.

43. Conclusion • Custodial torture must be made a crime by special law • The existing laws under the constitution and the rules established by the Supreme Court--though not a complete remedy--should be applied without failure • The public--and especially concerned professional groups, including rights groups , NGOs and the media--must closely monitor police practices • The central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

44. Questions &Discussion

45. Thank you