By Shonottra Kumar

The issue of police brutality was recently brought back to light following the death of George Floyd in the United States. Soon, many across the world took to social media to highlight the problems of custodial torture prevalent in their countries.

This wave also brought out the story of Jayaraj and Fenix from Tamil Nadu, India, a father-son duo who were assaulted in police custody that eventually led to their deaths. They were arrested for having kept their shop open beyond the permitted hours and reportedly subjected to brutal torture including sexual violence, for a crime that did not even require any arrest to begin with.

The circumstances surrounding their deaths has created much uproar calling for strict action to be taken against the responsible policemen. But the truth of the matter is that custodial torture is not a new or even rare phenomenon in India. For many Indians, the police is an arm of the State that is seen more as a feared adversary than an ally to help victims of a crime. While some may claim the ‘few bad apples’ theory to absolve the Indian police, incidents like that of Jayaraj and Fenix only further highlight the inherent systemic problems in the country’s police force and criminal justice system.

Law on Torture in India

India does not have a separate law on torture. It has signed the UN Convention Against and Other Cruel, Inhuman or Degrading Treatment or Punishment, but not ratified the same into domestic law. There was an attempt to ratify this Convention in 2010 by way of the Prevention of Torture Bill, 2010, but this Bill lapsed on account of the Parliament being dissolved.

Alternatively, there are certain penal provisions and procedural safeguards provided in the Indian Penal Code and the Criminal Procedure Code that deal with instances of torture. Indian Courts have also on occasion provided guidelines that are aimed at preventing custodial violence.

Steps to Ensure Prevention of Torture

When Arrested/Being Arrested by Police

If you have been arrested or about to be arrested, you need to know the following procedural compliances that the police must follow:

• The police must identify themselves and bear accurate, visible and clear identification and name tags with their designations on it.
• The police must afford you an opportunity to call your lawyer. If you can’t afford a lawyer, you can ask the Court to appoint you when from the State Legal Service Authority.
• The police must allow you to contact your friend or family member to inform them of the arrest taking place.
• The police must clearly inform you of the reasons for your arrest. If the arrest is for a non-cognisable offence, they must produce a warrant for your arrest signed by a judge.
• The police must include all details of your arrest such as time and place in the memo of the arrest. You will be required to sign this memo of the arrest. Please read it carefully before signing it and insist on getting a signed copy for yourself as well.
• If you are eligible for bail, the police must inform you of the requirements for the same.
• As soon as the arrest is made, the police must inform the nearest Police Control Room and provide the reasons for the arrest.
• The police MUST produce you before a Magistrate within 24 hours of the arrest.
• You have the right to be examined for major and minor injuries on your body by a trained doctor and the police must comply with this. This examination has to be done every 48 hours if you are in their custody. This physical examination has to be recorded in the Inspection Memo and signed by the police officer. This is done to prevent violence by police while you are in their custody.

In Cases of Custodial Violence

Indian law does not have specific provisions for custodial violence at the behest of the police. If you or any person you know has been subjected to violence by the police while being in their custody, your recourse under the law is to proceed like you would with any other criminal case of torture.

While many judges have noted that higher punishments should be given to police officers committing atrocities against those in custody, there has been a lack of legislative intent to insert these provisions into law. It may also prove to be very difficult to initiate criminal proceedings against a police officer, but here are a few recourses available to you:

Filing an FIR

• It may be difficult to file an FIR against a police officer at the police station they may be posted at, but know that the police cannot refuse to file an FIR under any circumstances. If they do refuse, write an application to the Senior Inspector or Station House Officer at that police station for registering the same.
• Alternatively, you can approach another police station to file a complaint against this officer. There is no bar on territorial jurisdiction.

Make a Private Criminal Complaint to the Magistrate

• Cases need not always be initiated with an FIR. You can also file a private criminal complaint with the Magistrate, with the help of a lawyer.

File a Complaint with the National or State Human Rights Commission

• The NHRC and State HRC’s are independent bodies set up by the government to ensure compliance of human rights in the country/state. Complaints of custodial violence can be directly made to them and they have the power to initiate inquiries into the matter. Please refer to this for more information on filing complaints with NHRC.

In Cases of Custodial Deaths/Disappearance/Rape

If a person has died or disappeared after being taken into police custody or a woman is raped by a policeman in custody, the law requires the Judicial Magistrate to conduct a parallel inquiry, apart from the one already being conducted by the police.

In case of death of a person in custody, the magistrate must have the body be sent to the civil surgeon for a post mortem within 24 hours of death. If this is not done, the Judicial Magistrate must record his reasons for not doing so. This parallel Magisterial inquiry is considered to be very important as it acts as a fail-safe in cases of evidence and/or witness tampering. The NHRC has also provided a set of guidelines to be followed to ensure proper compliance of this parallel inquiry.

Rape of a woman by a police officer is seen as an aggravated offence that carries a stricter punishment in the Indian Penal Code. In order to prevent custodial rape, it is important to know that the law forbids the arrest of women between sunset and sunrise. Such night arrest can only be made in exceptional cases, provided express permission of the Magistrate is taken and the arrest is made by a woman police official.

It is truly a sad state of affairs to see how police brutality has been normalised in India and the lack of any political will to introduce reforms only fuels the existing pit of oppressive behaviour at the hands of the police. An arm of the state that was meant for protection and societal stability is looked at with utmost fear. There are non-profits and civil society organisations that work tirelessly in advocating for a better, robust and more accountable police and justice system to ensure access to justice for all. However, as evident by the case of Jayaraj and Fenix, there is still a long way to go. In any event, please know that you have certain basic civil rights that protect you from torture, cruel and any degrading treatment.

Shonottra Kumar is a Research Fellow at Nyaaya, an initiative of Vidhi Centre for Legal Policy. Views are personal.

References

Indian Penal Code, 1860

Sec 176, Code of Criminal Procedure, 1973

Sec 154, Code of Criminal Procedure, 1973

DK Basu v. State of West Bengal (1997) 1 SCC 416

Lalita Kumari vs. Government of Uttar Pradesh (2014) 2 SCC 1