“Nothing can be more abhorrent to democracy than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilization.” -Winston ChurchillTorture seems to be legalized in India. The modus operandi of torture adopted by government officers involves gross forms of inhumanity. It has become a common phenomenon and routine police practice of interrogation these days. The Constitution and the Criminal Procedure Code (CrPC) contain many provisions, which if applied effectively, will help to prevent torture. At the same time, there are loopholes in the laws, which make way for the police to resort to torture. The “Police-friend” to the people has done all sorts of work by just abusing existing law specifically, section 54 & 167 of Criminal Procedure Code. In the past years the unqualified use of the qualified power of arrest by police under section 54 of the Code of Criminal Procedure and the subsequent remand under section 167 of the Code became a common practice. There is a complete lack of clarity and grave loopholes that they found in the practice of those two sections.
Section 54, which is termed as “black law” gives the police a wide power to arrest any person without any warrant or without order of the court. The tragic death of Shamim Reza Rubel, a university student, was a pitiable incident in this regard. The judges were moved that “tragic deaths have resulted due to sweeping and unhindered power given to a police officer under Section 54 of the Code”, and took the view that such police power “to a large extent is inconsistent with the provisions of Part III of the Constitution. Most of the arrests under section 54 are caused on fanciful suspicion and in most cases to fill in the quota allotted to an individual police officer to make an arrest each day.
Section 7 of The Police Act 1861 empowers the higher police officers to “dismiss, suspend or reduce any officer of the subordinate ranks whom they shall think remiss or negligent in discharge of his duty or unfit for the same.” lesser punishments can also be awarded. Also, Section 29 of the act provides that any police officer violating the rules and regulations including any police officer who shall offer any unwarrantable personal violence to any person in his custody shall be punished with three months’ rigorous imprisonment.
In one of the recent landmark judgments in 2006, the Supreme Court of India in a judgment in the Prakash Singh vs. Union of India case, ordered central and state governments with seven directives to achieve two main objectives: functional autonomy for the police – through security of tenure, streamlined appointment and transfer processes, and the creation of a “buffer body” between the police and the government – and enhanced police accountability, both for organizational performance and individual misconduct. Also in the Nilabati Bhera case (1993), which he heard jointly with Justice J.S. Verma, his separate judgment on the right of compensation in the cases of custodial deaths is hailed as a significant contribution to the protection of human rights in the cases of modes of interrogation. In one of the classic judgments, the Supreme Court in D.K. Basu vs. State of WB, referred to custodial violence by way of torture, rape and death in police custody or in police lock-up and held that such violence breaches
basic human rights and Art. 21 of the Constitution of India.
These judgments are the first tangible step towards police reform in a long time but also only an initial step. What is now required is strong political will to introduce long-lasting reform and not merely cosmetic changes. The Supreme Court has held that those who feel themselves called upon to deprive a person of his life and personal liberty in the discharge of what they consider to be their duty should strictly and scrupulously observe and follow the rules and norms of the law. Nowadays, even dubious modes of investigation like Narcoanalysis have been put into operation and are being used where investigators require oral elicitations from a suspect. For instance, if brain mapping indicates that the suspect stores information about a murder weapon used in the crime, then Narcoanalysis, is used to provide information such as location of the weapon and other such information.
According to data available with the National Crime Records Bureau (NCRB), there were 121 custodial deaths during police investigation in 2003, 94 in 2004 and 144 in 2005. A total of 581 people have died in police custody since 2004-05 till date, across the country, the statistics said. The maximum custodial deaths in the most populated state .UP and Maharashtra have earned the dubious distinction of having the highest number of custodial deaths during 2007-08, registering 30 per cent of the total of 188 such incidents across the country.
Such dubious techniques and methods of interrogation which requires enormous amounts of training and patience - skills evidently lacking in much of the police force in India should be prohibited in the Indian Criminal system as it is fundamentally against the presumption of innocence. It should be tested upon the anvil of its own existing constitutionality, to determine the constitutional imperatives in the technique and whether it’s constitutionally ‘clean’ or not.
The pertinent questions to be put forth are, does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. In order to check this, the government has amended the Criminal Procedure Code (CrPC). The proposed amendments will give voice to victims of various crimes as well as make it mandatory that these victims be given compensation.
The end cannot justify the means. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminals and to interrogate him during the investigation of an offence but it is imperative to remember that by torturing a person and using third degree methods, the police would instead of making the investigation purposeful and effective, be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it. In fact, Custodial deaths are perhaps one of the worst crimes in a civilized society governed by the Rule of Law.
With due regard to this another significant amendment has been made to Section 41 of the CrPC, signed into law by the President Of India, which categorically holds forth that no person can be arrested under 498A by the police without an investigation. The scum infesting the ranks of the Indian police force need to get their gravy elsewhere or through some other extortion scheme.
This was made in light of this provision (section 42, CrPC) was severely criticised as capable of being misused and, in fact, was being misused and also reference was made to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest.
One of the contrary opinions have also been especially from the Bar associations across the country, under the pretext that these CrPC amendments (Section 41, CrPC), doing away with mandatory arrest provisions, would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty. In reality, this amendment does away with the need to get bails and anticipatory bails, a rich source of revenue for the lawyers, the dirty Indian cops, some filthy lower court magistrates and public prosecutors.
The CrPC amendments effectively signals the end of using 498A for extortion as the cops can no longer use arrests for extortion. Also remember this, the cops never had the power to arrest without cause or justification. Hence, almost all 498A arrests have been illegal detentions. This is a significant win for all who are fighting against the tyranny on men and their families imposed by this law, IPC, 498A.
The latest amendment was made on the 19th January, 2009 where the President gave accent to the Law forbidding arrest in offenses carrying upto seven years imprisonment. This newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment.
Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice. Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman’s modesty, robbery, attempt to suicide.
These amendments have been made in section 41 of the CrPC. Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified holding that the provision was being capable of being misused and was in fact actually being misused in practice. Substantiating it further the misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark supreme court judgment in the case of DK Basu. In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos’ and donts’ were prescribed to be strictly complied by the police force while investigating a case and arresting an accused.
The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence of a police officer”.
It also enables arrest of “a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.
Moreover, there are numerous (proposed) amendments which have yet not passed and come into force. One of them, is the proposed amendment, in the form of an addition, Section 357 A, to the existing Section 357, would require all state governments to prepare a scheme in coordination with the Central Government for providing funds for compensation to the victim or his dependents. Victims will be entitled to receive compensation if the offender is not caught and tried for the crime.
The proposed amendment to Section 173 of the same Act makes it mandatory for the police to complete investigation in a child rape case within three months from the date on which the case is registered. Another amendment states that, as far as possible, rape cases be investigated by female cops only.
In a bid to check witnesses turning hostile in important cases, an amendment to Section 275 provides that evidence of all witnesses in warrant cases where the punishment is two years or more may also be recorded by audio-visual means in the presence of the advocate of the accused. Right now, in all warrant cases, evidence of each witness is taken in writing either by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him in this behalf. This evidence has to be signed by the magistrate and forms part of the record.
It is perceived that the Police Departments in India have poor skills when it comes to collection, collation and presentation of evidence before the courts. Consequently, when there is enormous pressure on a police department to solve a case. Thus they prefer sending suspects to scientific tests, not only buys time but also gives the impression that something concrete has been done about the case. The old Latin Maxim deceptis non decepientibus, jura subveniuni, meaning “the law helps who are deceived, not those deceiving” has perhaps become an excuse for resorting to such dubious methods of investigation. Being, one of the most lethal tools in the hands of the State (vis-à-vis the police) in the arena of scientific technique of interrogation, it has taken the shape of a monster clad within a Hermit’s skin. This ‘quick fix tool’ has now become such an imperative and an indispensible part of our criminal system that, it cannot be done away with easily.
Abraham Lincoln once said, ” if you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem .”
A reading of the morning newspapers almost everyday carrying reports of dehumanizing torture and death in custody of police, etc. is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of criminal justice system. It is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Society’s cry for justice has never been louder. Therefore, the impending question is that, can this necessary evil be better suited in the dynamic society that we all live in and if not can it be outperformed by a more efficacious and reliable technique of interrogation, before it lends itself such catastrophic consequences that will put the entire criminal justice system into jeopardy.
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