Custodial Torture in India and Dk Basu guidelines

CUSTODIAL TORTURE IN INDIA AND DK BASU GUIDELINES

“Torture is a 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 anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”                                                  - Adriana P.Bartow

INTRODUCTION 

   

The term Custodial Torture can be defined as the harm that is inflicted upon a person either mentally or physically or both when he/she is in custody. There are two types of custody judicial custody and police custody. Judicial Custody can be defined as one in which a person is kept in custody by a magistrate. A person is kept for a certain period which is temporary on the orders of the magistrate. Whereas, Police Custody can be defined as one in which a person is arrested by police on the charges which were alleged against him or on suspicion. In this case, the accused must be brought before a magistrate within 12 hours of detention.

Now, when it comes to torture in custody, at least 17,160 people died in judicial/police custody between 2010 and 2020, according to National Human Rights Commission (NHRC) data. This he is almost five per day. Between January and July 2020, the NHRC reported 914 deaths in custody. 53 of them are in police custody. The data are published in two categories, the first including those not in custody. This includes people who have not been arrested but have not yet been brought to court. The second category includes pretrial detention, i.e. those who are already in police/judicial pretrial detention. Among all states and Union territories across India, Gujarat has reported the highest number of Custodial deaths (23) for the second consecutive year as per the latest NCRB report.

CUSTODIAL TORTURE- AN EVIL FOR THE RIGHT TO LIFE

When we mention Article 21 of our Constitution, we talk about the Right to Life. It's not just merely living but it also says to live with dignity and respect. Now when a person is in custody and his rights are being abused by the dominant one, then it's a direct violation of his/her Fundamental Rights. Though India does not have any law in particular that talks about torture in custody when it's harming someone's basic right to life, then it should be controlled in a permanent form. Some critics say that torture is a valid ground to obtain important information from the accused. But, beating someone so badly, giving them death threats even raping them was not the right way to do it.

THE TORTURE CONVENTION- CONCERNING INDIA

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention") was adopted by the United Nations General Assembly on 10 December 198 (Resolution 39/ 6). The treaty entered into force on June 26, 1 after being ratified by 20 states.

 The Torture Convention was launched shortly after the adoption by the United Nations General Assembly of the Declaration on the Protection of All Persons from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Declaration"). It was the result of work. December 9, 1975 (Resolution 3 52 (XXX))

The Indian government signed the Torture Convention in October 1997 but has not yet ratified it. A law must be enacted for India to ratify the treaty. A step in the past was taken on April 26, 2010, when the Home Secretary introduced the Anti-Torture Act 2010 in the House of Commons. The law he passed in the House of Commons on May 6, 2010, is still pending in the Upper House.

IMPORTANT CASES OF CUSTODIAL DEATH & TORTURE

The Supreme Court's first landmark decision was the 1983 case of Radul Sah v. Bohar State, a PIL was filed under Article 32 of the Constitution. In this case, the complainant violated his right to life and personal liberty and was unlawfully detained in prison for 12 years (Article 21). This was a landmark ruling as it was the first time the state had been held responsible for the plaintiff's wrongful detention and he was given compensation.

Afterwards, in 1989, in the case of Saheli v. Commissioner of Police, Supreme Court awarded a large sum of money to the mother of a 9-year-old boy who was beaten to death by police officers. The case has been upheld by various courts dealing with violence in custody and providing compensation to victims of abuse. One of the landmark cases in which such a judgment was upheld, is Nilbati Behra v. Orissa State (1993).

Then in 1994, in the case of Joginder Kumar v. Uttar Pradesh State, the Supreme Court laid out some guidelines for arrests. In this case, the complainant was brought to the police station where he was illegally detained for five days and his family did not know his whereabouts.

The guidelines were:

●An arrested person in pretrial custody has a right to inform a friend, relative, or another person he or she knows about his or her whereabouts, with the reason for his detention and where he/she is detained.

●An arrested person should be informed about his/her rights by the police officer when he/she was brought up to the station.

●The police shall make an entry of the person who was informed about an arrest in the dairy maintained by him.

Magistrate was assigned the duty to verify whether all the guidelines were followed by the police while making an arrest.

This was a landmark ruling, but the guidelines weren't as specific as they should have been. On December 18, 1996, D.K. Bass v. Supreme Court of West Bengal, to prevent violence in custody, pending legislation in this regard, set certain basic " requirements "which need to be followed during an arrest.

DK BASU GUIDELINES

The court noted this when providing the requirements "The law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations weighing and balancing rights, liberties, and privileges of an individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first-the criminal or society, the law violator or the abider."

Here are the guidelines:

● Police officers conducting arrests and interrogations shall wear accurate, visible, and clear identification and names, and unique identification and name tags with their designations mentioned on them. The personal information of the arrested person must also be recorded in the ward diary.

● The police officer making the arrest shall make a record of the arrest, which shall be at least authenticated by an official of the person arrested or a respected person at the place of arrest. It must be countersigned by the person accused and include the date and time of the arrest.

● Persons arrested or detained in police station has a right to inform his friends, relatives or a person concerned about his well being within a time frame about the place of detention unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

● The police shall inform the Legal Aid Organization and the local police of the time of arrest, place of arrest, and place of detention of those detainees who have close friends or relatives living with them in the district or outside the city. Notification must be made through the office and they need to be notified by telegram within 8 to 12 hours of arrest.

● Arrested persons must be informed of their right to inform someone of their arrest or detention as soon as they are arrested by police officials.

● A record of the arrest must be made. This must also include the name of a friend or close relative and the identity of the police officer in whose custody the arrested person is.

● At the arrester's request, a medical examination may be conducted at the time of arrest and any serious and minor injuries shall be recorded. The "Inspection Memo" must be signed by both the arrestee and the police officer, and a copy must be given to the arrestee.

● Detainees should undergo a medical examination by a qualified medical practitioner every 48 hours while in custody. Physicians must be licensed by a medical association composed of the Director, Health Services of the State, or Union Territory concerned.

● Photocopies of documents also the memo of arrest shall be given to the Magistrate for his record.

● Arrested persons are permitted to have an attorney present during interrogation at a police station, but not during interrogation.

● Details of the arrest and the place of detention of the arrested person shall be reported to the designated police control center in each district within 12 hours after the arrest and the same must be posted on the notice board.

CONCLUSION

The cases of custodial torture and deaths in India are reported daily, though after having such guidelines. The reason for such a rise can be a lack of accountability of the police they protect themselves under the garb of self-defense and encounters. The second reason can be public anger toward the arrestee because they know the judicial proceedings take years and years, and this also appreciated the officials to take such steps. Thirdly there are cases where powerful politicians who are in power use the help of police to get criminals who can expose their illegal activities.

Fourthly, the police have extensive investigative powers, which they use to gather information and trick arrestees into confessing to crimes. They also use third-degree torture, which is not permitted by law.

To overcome such issues the Court should look forward towards making more scrutiny of the procedures followed by police. Are police stations are equipped with the technology they need to interact? Are police officials following the same treatment that they were required to with the arrestee? A random inquiry should be conducted and proper details must be sent to Magistrate to check and recommend further improvements to be made in the police station. The inquiry should not only cover the perspective of the police but also the arrestee, they should also comment on the situation. Proper laws must be made instead of issuing guidelines in the relation to custody rights and duties. The hatred and disrespect of the people, towards the persons who are detained by the police, are needed to be changed. It can get worse when a media trial takes place and it set a notion in the minds of people that they like to portray, without them thinking properly.

Guidelines that can be viewed as steps to reduce such cases are still in effect, but no one sees the lack of awareness and redundancy among the masses. To overcome this, educated people, the ones who are aware of their rights should come forward and give their best efforts to extend their knowledge to the ones who are left behind. The government should also start new programs and schemes about these rights for tier 3 cities and villages. These steps can bring a positive change in our society.

-Vedansh Raj