Opinion | India Must Adopt Zero-tolerance Policy For Torture And Death In Police Custody

Amidst growing Indo-China tensions following a recent face-off in the Galwan valley, news from Tuticorin (Thoothukudi) district of Tamil Nadu about the death of father-son duo, Jeyaraj and Bennicks, during medical treatment in jail custody, shook the nation’s trust in its police system. The duo was arrested on June 19 by Sathankulam police on charges of refusing to close down their mobile phone shop during the lockdown. After medical examination by the duty doctor, they were remanded to judicial custody on June 20. Two days later, based on a complaint, Bennicks was admitted to a government hospital where he expired the same night. Jayaram, admitted to the same hospital on June 23, expired the same evening during treatment. The allegation is that both were subjected to third-degree methods by the police during custody, following which the father-son duo succumbed. Four policemen have been suspended. Sensing public rage, the Madurai bench of the Madras High Court took suo motu cognizance of the unfortunate incident and ordered a judicial inquiry on June 26. The state government has now announced a CBI inquiry into the whole incident.

Police personnel of the country have been continuously lauded for doing exemplary work during the lockdown period since March. Besides having enforced the lockdown effectively, they have been on the forefront to help migrant labourers and poor people by providing food, slippers and transport and facilitating shelter. Many policemen got infected with COVID-19 and a few even lost their lives to it. Though they have been kept out of the insurance cover by the Central government, their motivation to work incessantly has not abated. Social media, particularly Twitter, proved very helpful to the police in coordinating the interstate movement of migrants. It will not be an exaggeration to claim that the people’s confidence in police gained momentum and the image of the police moved at least a notch higher. But this one incident of custodial torture in Tuticorin has put the police into a dilemma once again.

Retired Supreme Court judge Markandey Katju tweeted on June 27 that the “policemen responsible for brutal death of father & son in Tuticorin, Tamil Nadu just because they kept their mobile accessories shop open during lockdown deserve harsh punishment, as held by SC in Prakash Kadam vs. Ramprasad Vishwanath Gupta (2011)”. The Prakash Kadam case is an old case of Mumbai wherein the policemen, allegedly involved in contract killing of a person, camouflaged the incident into a police encounter. While writing the judgment, justices Katju and Gyan Sudha Misra emphatically said that “where a fake encounter is proved against policemen in a trial, they must be given death punishment, treating it as the rarest of rare cases”.

There are sufficient provisions of law to deal with custodial torture. The SC has also issued directions from time to time. In the Neelabati Behera (1993) case, the SC held that “detenues are not denuded of their fundamental rights under Article 21 of the Constitution”. Commenting on the National Police Commission’s report that nearly 60 per cent of the arrests were either unnecessary or unjustified, the SC, in the Joginder Kumar (1994) case, observed that “the existence of the power to arrest is one thing and the justification for the exercise of it is quite another”. In the D.K. Basu (1997) case, the SC issued eleven directions to increase transparency and fix responsibility while making an arrest. The medical examination of accused was made mandatory as a matter of right. Moreover, the person arrested was required to be made aware of his or her right to have someone notified about the arrest. The Criminal Procedure Code (CrPC), as amended in 2006, provides that a custodial death shall be inquired into by a judicial magistrate. Another amendment in CrPC, effective from November 2010, says that generally no arrest shall be made if the maximum sentence for an offence is less than seven years imprisonment. In such cases, the accused person shall only be asked to appear before the police officer for investigation. The National Human Rights Commission (NHRC) also closely monitors each case of custodial death as each such case involves violation of fundamental rights.

The National Crime Record Bureau (NCRB) discloses that out of total number of annual custodial deaths of about ninety (90) in last five years (2014-2018), about 30 were suicides, and about six were due to police torture in custody. However, each death in police custody resulting from torture leaves a long-lasting scar on the force’s image. Any suicide in custody may point towards faulty infrastructure or negligent supervision, death due to torture is simply a criminal act, which no authority may compromise on. There should absolutely be zero tolerance for any custodial death resulting from torture.

The case in which the father-son duo was arrested was a case of simple defiance of lockdown norms inviting minor punishment of maximum one month’s imprisonment and a fine. Even use of criminal force on public servants to deter them from discharging duties calls for a maximum imprisonment of two years. No tough interrogation was required to be conducted in the given case. Even in heinous cases, the trend is to use more scientific methods of interrogation. The brain finger-printing method of non-intrusive nature is one such test which is useful in extracting hidden information without even touching or talking to an accused person. The police have no right to punish the guilty. At the most, a few serious cases may remain unsolved due to limited human capabilities. There are many more cases which don’t come to the public light and remain unsolved. The public also needs to realise that the police have limited powers under the law.

Various commissions and committees have given their recommendations for police reforms. The National Police Commission, the Ribeiro Committee, the Padmanabhaiah Committee, the Malimath Committee and the Law Commission are a few to count. In the Prakash Singh (2006) case, the SC also issued a slew of directions on police reforms. One such common recommendation, to improve the quality of investigation, is to separate investigation from law and order. Each committee and commission has realised that the number of investigating officers must increase so that they aren’t induced to use short-cut methods, untenable under the law. The ‘police’ and ‘public order’ being in the State List of Seventh Schedule, police reforms are largely to be undertaken by state governments. However, despite these constraints, it is high time that the police must improve methods of interrogation and behaviour of its officers with the accused persons and witnesses. The police cannot afford to take shelter under the guise of given limitations. The colonial mentality of being brute with citizens needs to go.

In the Prakash Kadam (supra) case, the SC concluded the judgment by saying that “the rule of law collapses when it is replaced by Matsyanyaya which means the rule of the jungle, where the big fish devours the smaller one”. Kautilya says that “if danda be not employed, it gives rise to the condition of matsyanyaya’. Needless to say that police must focus more on its training to ensure improvement in methods of interrogation and behaviour. The sensitisation programmes for the field officers need to be conducted on regular basis. Zero tolerance for custodial torture must be the mission.

(The author is a senior IPS officer of Chhattisgarh. Views expressed are personal)