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Torture in custody

Proper and well-conducted training can influence the conduct and reflexes of the police officers and reduce their proclivity towards violence. But what is most crucial is to build up within the police a culture of human rights which respects human dignity and opposes abuse and misuse of force. It is here that senior police leaders have to play a transformative role.

Sankar Sen | New Delhi |

It is a common belief that torture has become part and parcel of policing in India. Reports of police torture, sometimes gruesome and shocking, are being received with monotonous regularity from different parts of the country. These purvey an impression that a large number of policemen in this country are sadists, who enjoy torturing people. This is an erroneous impression. In the Indian police, as in police forces in different countries of the world, there are some violence prone personnel, but there are also many officers and men, who are against torture and misuse of force, and genuinely feel that indulgence in torture is giving police a bad name and alienating the force from the public.

Torture has been defined as infliction of serious physical pain on a person in order to force him to act against his will, or to punish him. As early as 1850, Torture Commission, while attempting to define torture, quoted Dr. Johnson, who said that torture is the time-honoured means by which guilt is punished and confession extorted. Torture Commission, in its report, mentioned the prevalence of torture in different police stations of the then Madras Presidency. Unfortunately, the tradition of police resort to torture in its work has persisted. The Police Commission of 1902 stated that the continuance of torture in different parts of the country and the adoption of different methods of torture by police station officers (darogas) to extort confession. The second Police Commission (1978-1981), better known as Dharma Vira Commission, strongly condemned torture, and misuse of force by the police. It recommended mandatory judicial enquiries into all cases of death in police custody

But persistence of torture and third degree methods in police operations has continued undiminished. The National Human Rights Commission (NHRC), after its formation in 1993, issued a direction to District Magistrates and Superintendents of Police in all districts of the country to report within 24 hours all cases of custodial deaths and custodial rape, failing which, an adverse presumption of ‘covering up’ would be drawn by the Commission. A total of 2,516 of deaths in police custody (PCD) and 23,695 deaths in judicial custody (JCD) were reported to the Commission by various states since the Commission’s inception in October 1993 to March 2013. The annual average was of 147 police and 1,126 judicial deaths.

While serving as the Director-General of the National Human Rights Commission, I had probed many cases of custodial deaths. I found that all cases of custodial death are not due to police torture, or strongarm methods. But there were also many cases of police violence and torture, resulting in the death of the victims. It is also a sad and hard fact that majority of the victims belong to disadvantaged and marginalized groups.

Causes behind police torture are many and complex. Whenever there is a surge in crime, pressure mounts on the police for quick prevention and detection of crime and deterrent punishment of the criminals. The police in the country function under many constraints ~ paucity of adequate staff, inadequacy of equipment and infrastructural facilities. They also operate under a criminal justice system based on distrust of the police. The system is pathetically sluggish. More often than not, criminals cock a snook at it, and get away scot-free. Gains of crime clearly outweigh the risks of crime. There is pressure on the police from the public, as well as their political masters, to take law in their own hands, and deliver rough and ready justice to the criminals. This happens more so in cases where dreaded criminals and terrorists are involved. I have had the experience of working under a Chief Minister, who would ask the police to adopt “other methods” to deal with notorious criminals and terrorists, without bothering about such agencies as the Human Rights Commissions. The police are also handicapped because of the inadmissibility of confession before the police, and statements before the police are not to be signed by the witnesses under the provision of Section 162 of the Criminal Procedure Code. The Malimath Committee, in its report on criminal justice reforms, gave the practical recommendation that statements before police officers of and above the rank of Superintendents of Police, should be admissible under certain restrictions and safeguards.

Unfortunately, the stark fact remains that there is a measure of doubletalk and doublethink on this issue. Members of the public, including enlightened members of the community and political leaders, expect the police to adopt strongarm methods, not sanctioned by law against criminal elements, who are getting away scot-free. I recollect that in a case of double murder, which caused panic and consternation in Cuttack, a senior political leader strongly advised me to use every method known to the police to elicit information from the suspect. I had to discourage him by explaining its critical implications. Unfortunately, many police officers opt for short-cut methods to obtain quick results.

A leading American defence lawyer, Alen Dresoeitz, has argued in favour of the view that torture is justifiable under some rare circumstances. He has advocated ‘torture warrants’ in cases of “ticking bomb urgency”. In practice, however, attempts to use torture sparingly never work, and lead to widespread abuse in practice. There is always the danger of “slippery slope “ and officers and interrogators fail to draw the line. In the war against terror, the legal officers of the US government issued “torture memos” that sought to restrict the definition of torture to serious physical injury, and claimed that certain forms of ill treatment can be justified on grounds of military necessity, or selfdefence. But torture does not become permissible by being euphemistically referred to by some other term.

There is no denying that in every police force, there are some officers who frequently indulge in violence and strongarm methods. It is necessary to weed out such personnel who resort to unnecessary misuse of force and violence. Such officers feel emboldened when they receive physical and psychological reinforcements.

Torture is also counter-productive from a practical and operational perspective. The occasional hard work and dedication by the police is forgotten or ignored when serious cases of misconduct or torture by the police come to light . In the face of severe public condemnation of those who encourage the police to adopt strongarm methods retreat to the background and field officers only come to grief. I have seen some promising careers of junior officers thus coming to an unceremonius end because of their involvement in custodial violence. Again, the police share all the blame, and are made the scapegoat for the inadequacies of the criminal justice system.

Proper and well-conducted training can influence the conduct and reflexes of the police officers and reduce their proclivity towards violence. But what is most crucial is to build up within the police a culture of human rights which respects human dignity and opposes abuse and misuse of force.

It is here that senior police leaders have to play a transformative role. External mechanisms to punish police aberrations are necessary in a democratic society but an enduring and meaningful change can only come from within.