By Neeraj Mahajan
A total of 1,731 — almost five people per day died in custody in India during 2019. According to ‘India: Annual Report on Torture 2019 these allegedly included 1,606 of the deaths in judicial custody and 125 in police custody.
According to a report published by the National Campaign against Torture (NCAT), out of 125 cases in police custody, 93 persons (74.4%) died due to alleged torture or foul play, 16 due to suicide under suspicious circumstances, illness (seven) and injuries after slipping on the bathroom floor in the police station (one). The reasons for the custodial death of five others (4%) were unknown, the report said.
Uttar Pradesh topped the list with 14 deaths in police custody, followed by Tamil Nadu and Punjab – 11 cases each; Bihar and Madhya Pradesh with 9 cases; Gujarat with 8 cases; Delhi and Odisha with 7 cases each; Jharkhand with 6 cases; Chhattisgarh, Maharashtra, and Rajasthan with 5 cases; Andhra Pradesh and Haryana with 4 cases each; Kerala, Karnataka and West Bengal with 3 cases each; Jammu & Kashmir, Uttarakhand and Manipur with 2 cases each; and Assam, Himachal Pradesh, Telangana and Tripura with 1 case each.
Over 60% of the people who died in police custody belonged to the poor and marginalized communities, and a good number of them were Muslims, Dalits, and tribals
Torturing the suspects in police custody to punish them or gather information or extract confessions is nothing new and is an age-old practice. Apart from the most common method of torture like slapping, kicking with boots, beating with sticks, pulling hairs, etc, NCAT also recorded other torture methods used by the police including electric shock, pouring petrol or applying chili powder on private parts, beating while handcuffed, pricking body with needles, branding with a hot iron rod, beating after stripping, urinating in mouth, inserting a hard blunt object into the anus, beating after hanging upside down with hands and legs tied, forcing to perform oral sex, pressing fingernails with pliers, beating with iron rods after the victim is suspended between two tables with hands and legs tied, and kicking the abdomen of a pregnant woman.
Even women were not spared. NCAT documented the death of at least four women during police custody, one committed suicide at home unable to bear custodial torture, and another woman died due to torture outside a police station in 2019. Shanti (name changed) was allegedly illegally detained, tortured, and raped in police custody by nine police personnel at Sardarshahar police station in Churu district, of Rajasthan from 3-7 July 2019. Besides custodial rape, she was also allegedly subjected to torture including plucking of her nails.
Later when the matter came to light, the Churu superintendent of police was transferred out and cases were registered against eight policemen, including the SHO, one head constable and six constables were under 376-D (gang rape) Indian Penal Code and other sections of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. They were all suspended. Also pending inquiry twenty-six other policemen, including a sub-inspector, additional sub-inspector, five head constables, 18 constables, and a woman constable, were attached to Churu police line and the case was transferred to the crime branch.
In yet another case a Dalit rape victim was asked to “wait” until the general elections and the case was hushed up to protect the Gujjar vote bank.
In yet another case father and son J. Jayaraj, 58, and Benicks Immanuel, 31, were arrested by the Tamil Nadu police on June 19 for keeping the shop open beyond permitted hours during the lockdown.
They were allegedly tortured and beaten to death so badly that they died in the hospital a few days later due to rectal bleeding. According to sources they were allegedly sodomized in custody and their private parts were forcibly shoved inside their bodies. But to make things appear ‘normal’ their blood-soaked clothes were changed. The police claimed that the two suffered internal injuries while trying to resist arrest.
Making a mockery of the rule of law, the magistrate assigned to investigate the alleged custodial deaths reportedly complained to the Madras High Court that the police had destroyed evidence and was not cooperating within the investigation. Even worse, he is believed to have told the HC that the policemen tried to threaten the judicial team.
These incidents more than ever focus the spotlight on the issue of custodial violence and torture which are rampant and routine in India. According to the National Human Rights Commission, 3,146 people died in police and judicial custody in 2017-18.
According to the National Crime Record Bureau (NCRB), 1,022 deaths in police custody were reported from 2000-2016 but only 428 FIRs were filed, and just 5% policemen were finally convicted.
The case of Joginder Kumar v. the State of UP is another example of misuse of powers by the police where a 28-year-old young lawyer was asked to come to the SSP Ghaziabad office on the pretext of making some inquiries and illegally detained for nearly five days without any formal arrest. The Apex Court ruled that no one can be arrested based on a mere allegation as mandated by the constitutional rights of a person unless reasonable satisfaction is reached after proper investigation.
In the Tuka Ram and Anr vs the State of Maharashtra also known as the Mathura rape case, two policemen on duty pounced on and raped Mathura, a young tribal girl in the Desaiganj Police Station in Maharashtra. The session’s court dismissed the case against the accused policemen on the plea that because Mathura was ‘habituated to sexual intercourse’, her consent was voluntary; under the circumstances, only sexual intercourse could be proved and not rape. The Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court and sentenced the accused to one and five years imprisonment respectively. The HC held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse. However, the Supreme Court acquitted the accused policemen on the ground that Mathura did not raise an alarm. Besides since there were no visible marks of injury on her body; suggesting struggle, there was no question of rape. “Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her,” the judgment said.
This landmark case eventually led to amendments in the Indian rape and made custodial rape punishable. Besides defining custodial rape, the amendments shifted the burden of proof from the accuser to the accused once intercourse was established; it introduced the provisions for in-camera trials, prohibition on the victim identity disclosure, and tougher sentences.
In the Saheli v. Commissioner of Police on November 14, 1987 – children’s day — 9-year-old boy Naresh, succumbed to the injuries, sustained while clinging to his mother Kamlesh Kumari who was being assaulted by the police. Naresh’s guilt was that he was trying to protect his mother from a sub-Inspector in uniform and two others who were beating her, tearing her clothes, and molesting her. This is when one of the policemen forcibly grabbed Naresh, threw him on the floor before dragging his mother to the police station, and lodging a criminal case of trespass against her. Kamlesh Kumari was later made to give a signed statement that no policeman had beaten her son and Naresh died in hospital.
The National Police Commission in its Third Report referring to the power of arrest as one of the chief sources of corruption in the police. The report suggested that, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounts for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
“It is obvious that a major portion of the arrests was connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from crime prevention. Continued detention in ‘ail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period, it was estimated that 43.2 percent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”
In DK Basu v. State of West Bengal taking cognizance of the police violence and misuse of powers, the Supreme Court laid down several guidelines – making far-reaching changes in the procedures to be followed for arrest, and detention. As things stand today the powers to arrest with or without warrant depends on the circumstances of a case and are governed by the Code of Criminal Procedure. These guidelines include attesting the memo of arrest by at least one witness, countersign by the arrestee; and the medical examination of the arrestee every 48 hours.