TORTURE IN POLICE CUSTODY CONTINUES TO PLAGUE INDIA’S JUSTICE SYSTEM

THE CONTEXT:

A joint study by Common Cause and Lokniti (CSDS) on police torture and unaccountability highlighted disturbing trends of violence within the Indian police system. Torture by law enforcement is a worldwide issue, with notable examples of abuse in nations such as the United States (Guantanamo Bay, police brutality), Iraq (Abu Ghraib), and other countries. India signed the UN Convention Against Torture (UNCAT) in 1997 but has yet to ratify it, resulting in the absence of a dedicated legal framework criminalizing torture.

THE BACKGROUND:

• Colonial Legacy: The structure and culture of the Indian police originated in colonial times (the Police Act of 1861), emphasizing a coercive apparatus designed primarily for control rather than service.
• Constitutional and Legal Safeguards:
  • • Article 21 (Protection of Life and Personal Liberty): Interpreted by the Supreme Court to include the right to live with human dignity.
    • D.K. Basu Guidelines (1996): The Supreme Court outlined procedures to curb custodial violence, such as mandatory medical examinations and the presence of witnesses during arrest.
    • NHRC Guidelines: The National Human Rights Commission issued directives on arrest, custodial death investigations, and compensation to victims.

THEORETICAL FRAMEWORK: UNDERSTANDING TORTURE AND ACCOUNTABILITY

• Definition of Torture (UNCAT, 1984): Involves the intentional infliction of severe physical or mental pain by a public official to obtain information, confessions, or to punish.
• State Responsibility: Under international law, states are obliged to protect individuals from torture, prosecute perpetrators, and provide remedies to victims.
• Criminological and Sociological Views:
  • • “Culture of Impunity”: Without adequate checks and balances, law enforcement agencies may resort to harsh measures.
    • “Broken Policing Model”: Excessive reliance on confession-based investigations rather than scientific evidence-based methods.

CURRENT SCENARIO IN INDIA

Key Findings from the Common Cause–Lokniti (CSDS) Study

1. Use of “Tough Methods”:
   • • 20% of police personnel feel it is very important to use tough methods to create public fear; 35% find it somewhat important.
     • Implication: Over half the police force believes in some degree of coercion or intimidation.
2. Mob Violence Justification:
   • • 1 in 4 police personnel justify mob violence in cases involving sexual harassment or child lifting, indicating a tendency to overlook due process when the crime is considered heinous.
3. Extra-judicial Killings:
   • • 22% believe killing “dangerous criminals” is better than giving them a legal trial. However, 74% hold that no matter how dangerous, legal procedures must be followed.
4. Third-Degree Methods:
   • • 30% of personnel justify third-degree methods for serious crimes; 9% for petty offences. Vulnerable communities (Dalits, Adivasis, Muslims, illiterates, slum dwellers) are most at risk.
5. Encouraging Signs:
   • • 79% favor human rights training; 71% recommend torture prevention; 79% back evidence-based interrogation.

 OFFICIAL DATA FROM MULTIPLE SOURCES:

• Custodial Deaths:
  • • National Crime Records Bureau (NCRB) 2020: 76 cases
    • National Human Rights Commission (NHRC) 2020: 70 cases
    • National Campaign Against Torture (NCAT) 2020: 111 cases
• Zero Convictions: From 2018 to 2022, there were no convictions for custodial deaths, underscoring the lack of accountability and successful prosecution.

OTHER GOVERNMENT REPORTS AND COMMITTEES:

• Law Commission (1977, 69th Report): Suggested inserting Section 26A in the Indian Evidence Act to make confessions before senior police officers admissible under safeguards.
• Malimath Committee (2003): Recommended allowing confessions before senior police officers in evidence with adequate safeguards.

KEY DIMENSIONS

1. Constitutional Provisions: Article 20(3) protects against self-incrimination; Articles 21 and 22 ensure due process and safeguards against arbitrary detention.
2. Judicial Directives:
   • • D.K. Basu vs. State of West Bengal (1996): Detailed procedural guidelines for arrests and custody.
     • Prakash Singh vs. Union of India (2006): Mandated extensive police reforms, including insulation from political interference and establishment of accountability mechanisms.
3. Institutional Framework:
   • • National Human Rights Commission (NHRC): Empowered to investigate human rights violations, but often criticized for limited enforcement powers.
     • State Human Rights Commissions: Varying degrees of effectiveness.
     • Police Complaints Authorities: Mandated by the Supreme Court for each state, but often inadequately empowered or staffed.

GLOBAL PERSPECTIVE

• United States: Incidents of police brutality; Guantanamo Bay controversies over “enhanced interrogation techniques.”
• Iraq (Abu Ghraib): Global condemnation for inhuman treatment and torture of detainees by military personnel.
• Russia, China, Pakistan: Regularly flagged by international bodies for severe human rights violations.

THE CHALLENGES:

WEAK ACCOUNTABILITY AND LOW CONVICTIONS:

• Persistent Low Conviction Rates: According to the National Crime Records Bureau (NCRB), overall convictions in crimes involving public officials—including custodial torture—remain disproportionately low.
• Ineffective Complaints Mechanisms: Despite the Supreme Court mandate (in Prakash Singh vs. Union of India, 2006) to establish independent Police Complaints Authorities, many states either have not set them up or have severely under-resourced them.
• Systemic Challenges:
  • • Overlapping Responsibilities: Internal departmental inquiries often result in mild departmental action rather than criminal prosecution.
    • Absence of Strong Whistleblower Protection: Few officers come forward to report or testify against superiors or colleagues.

 PRESSURE FOR QUICK “RESULTS”

• “Encounter Culture”: Instances like the 2019 Hyderabad Encounter (involving suspects in a rape case) revealed the public’s and political leadership’s tacit or open approval of extrajudicial measures for instant “justice.”
• Data from State Vigilance Commissions: Several states report rising allegations of “custodial violence/harassment” that correlate with high-profile crimes where politicians demand swift resolutions for populist gains.
• Bureaucratic Dependencies: District Superintendents of Police (SPs) often rely on local political patrons for logistical support (vehicles, station maintenance, etc.), creating a patronage nexus.
• ‘Tough on Crime’ Rhetoric: Political leaders sometimes champion a “zero tolerance” stance that in practice translates to extrajudicial or coercive tactics.

DELAYED TRIALS AND JUDICIAL BACKLOGS:

• NCRB Data on Pending Cases: Over 4 crore cases are pending in the Indian judiciary across various levels, creating a massive backlog. Custodial violence cases get stuck in the same slow process, prolonging justice.
• Impact on Policing Culture: Frustration with sluggish trials can create public and political demand for “quick fixes,” inadvertently legitimizing extralegal measures.

• Magistrate’s Role: As noted in the Common Cause–Lokniti (CSDS) study and echoed by many legal experts, magistrates often act as “silent spectators,” rarely recording or investigating allegations of torture.

• Structural Issues:
  • • Workload: Subordinate judiciary is overburdened with daily bail pleas, administrative responsibilities, and a high volume of routine cases.
    • Lack of Specialized Training: Magistrates may lack training in forensic medicine or psychological indicators of torture, making detection difficult.

INSUFFICIENT FOCUS ON HUMAN RIGHTS:

• Police Training Colleges: The Gore Committee on Police Training (1971) and subsequent committees have repeatedly flagged the lack of emphasis on human rights and communication skills.
• Current Curriculum Gaps:
  • • Evidence-Based Interrogation: Minimal practical training in advanced interrogation methods that rely on behavioral science or forensic evidence.
    • Forensic Tools: Underutilization of technology (like audio/video recordings, lie detectors, DNA sampling) in everyday policing due to resource and skill gaps.

• Hierarchy and “Seniority Culture”: Training might emphasize discipline over innovation, leading many young recruits to adopt older, often coercive, methods.
• In-Service Refresher Courses: Often relegated to formality. Funding constraints mean few advanced modules or collaborations with forensic labs/universities.

DISPROPORTIONATE TARGETING OF MARGINALIZED COMMUNITIES

• NCRB and Civil Society Findings: Dalits, Adivasis, Muslims, and urban slum dwellers are significantly more likely to face harassment or violence during police encounters.
• Structural Bias: Historically, certain communities are stereotyped as “criminal,” a carryover from the colonial era (when entire tribes/groups were designated “criminal” under the now-defunct Criminal Tribes Act).
• Legal Illiteracy: Many victims are unaware of D.K. Basu guidelines or their fundamental rights. Limited knowledge of legal remedies fosters impunity.

• Economic Constraints: Hiring lawyers, securing bail, or pursuing complaints in higher courts is financially prohibitive for the poor.

THE WAY FORWARD:

• ENACT A ROBUST ANTI-TORTURE FRAMEWORK:

  An updated version, bolstered by inputs from the Law Commission and NHRC, could specifically criminalize torture, mandate stringent penalties for perpetrators, and ensure victim compensation. Sri Lanka, despite facing internal strife, has a torture-specific law; India can learn from their legal frameworks and judicial interpretation. Making torture a standalone offense aligns with Article 21 (Right to Life) of the Constitution, D.K. Basu guidelines, and fosters synergy with ongoing police reforms.

• INDEPENDENT OVERSIGHT & POLICE REFORM: “Civilian Review Boards”

  at district levels, with rotating membership from civil society, academics, and retired judges/police officers, to periodically audit station records. Empowering state assemblies to discuss annual “Police Accountability Reports,” thereby building continuous oversight. The UK’s Independent Office for Police Conduct (IOPC) investigates allegations against officers impartially. Indian PCAs could adopt a similar model, ensuring high transparency and open reporting standards.

• STRENGTHENING FORENSIC AND INVESTIGATIVE CAPACITIES:

  Upgrading the Crime and Criminal Tracking Network & Systems (CCTNS) with real-time data analytics to minimize reliance on confessions. Establishing regional labs, mobile forensic units, and modernizing existing ones. Kerala’s modernization of forensic services (including digital forensics) has significantly reduced reliance on forced confessions in cybercrime and financial fraud cases.

  • • Training and Capacity Building: Regular refresher courses on evidence-based interrogation, advanced criminology, and international best practices. Familiarizing police with AI-enabled surveillance, geotagging evidence, etc., bolsters investigations without coercion.
    • Cross-Functional Teams: Joint training of police, prosecution, and forensic specialists for cohesive case-building.
    • Innovation Labs: State police forces collaborating with tech institutes (IITs, NITs) for crime analytics, reducing the “need” for forced confessions.

• EXPANDING JUDICIAL ACCOUNTABILITY AND SPEEDY TRIALS:

  Magistrates must proactively question detainees about any custodial ill-treatment during remand. Periodic judicial inspections of lock-ups could be mandated. Similar to fast-track courts for rape or POCSO cases, specialized benches can ensure swift disposal and focused expertise on custodial issues. Maharashtra’s experiment with dedicated courts for certain categories of offenses helped reduce pendency; a similar model could tackle police excesses.

• SOCIO-CULTURAL AND COMMUNITY-CENTRIC APPROACHES:

  Janamaithri Suraksha (Kerala), Mohalla Committees (Mumbai), Community-driven models that enhance trust and reduce fear-based policing. Legal Literacy Camps in rural/urban slum areas, creating grassroots awareness about the D.K. Basu guidelines, how to file complaints, and available remedies (NHRC, State HRCs).

INCLUSION AND REPRESENTATION

• Diversity in Police Forces: Recommendations from the Sachar Committee (2006) on boosting minority representation can increase trust among marginalized communities.
• Civil Society Collaborations: NGOs like the Commonwealth Human Rights Initiative (CHRI) can train local police in conflict resolution and mediation.

BROADER GOVERNANCE AND ADMINISTRATIVE REFORMS

• As the Malimath Committee (2003) recommended, creating an independent prosecution cadre reduces the pressure on the police to secure convictions via any means.

• • Reducing Judicial Backlogs: Expanding judicial capacity (more judges, improved infrastructure) and adopting alternative dispute resolution (ADR) methods for minor offenses.
  • Mandatory Video-Recording of Interrogations: Supreme Court has nudged states towards CCTV in police stations (Paramvir Singh Saini vs. Baljit Singh, 2020). Extending it to interrogation rooms ensures real-time checks.
• Annual “State of Policing” Report: Each state to publish standardized data on custodial violence, complaints received, disciplinary actions taken, and convictions. This fosters competition for better police governance.

THE CONCLUSION: With 74% of police personnel endorsing legal processes and 79% advocating human rights training, India stands poised to translate these encouraging attitudes into robust anti-torture legislation, independent oversight, and evidence-based policing. A steadfast focus on swift judicial accountability and meaningful community engagement can decisively curb custodial violence, uphold constitutional values, and rebuild public trust in the rule of law.

 

UPSC PAST YEAR QUESTION: It is a State where prohibition is in force. You are recently appointed as the Superintendent of Police of a district notorious for illicit distillation of liquor. The illicit liquor leads to many death, reported and unreported, and causes a major problem for the district authorities. The approach till now had been to view it as a law and order problem and tackle it accordingly. Raids, arrest, police cases, and criminal trials – all these had only limited impact. The problem remains as serious as ever. Your inspections show that the parts of the district where the distillation flourishes are economically, industrially and educationally backward. Agriculture is badly affected by poor irrigation facilities. Frequent clashes among communities gave boost to illicit distillation. No major initiatives had taken place in the past either from the government’s side or from social organizations to improve the lot of the people. Which new approach will you adopt to bring the problem under control? (250 words, 20 marks) 2018

 

MAINS PRACTICE QUESTION: “Examine the ethical implications of custodial violence and suggest measures to uphold human dignity.”

SOURCE:

https://indianexpress.com/article/opinion/columns/torture-police-custody-plague-india-justice-system-9922120/

 

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