The recent incident of a father and son in Tamil Nadu allegedly dying due to custodial violence has sparked outrage in India. This event has put the spotlight on the rampant issue of custodial violence, referring primarily to violence within police and judicial custody. Custodial violence can take different forms such as death, rape, and torture.
Data Relating to Violence in Custody
The National Crime Records Bureau (NCRB) states that between the years 2001 and 2018, only 26 policemen were convicted for custodial violence in spite of 1,727 documented deaths due to this issue in India. Only 4.3% of the recorded 70 deaths from 2018 were ascribed to injuries sustained during law enforcement custody due to police assault. Nevertheless, no convictions were made for such deaths across the country except for Uttar Pradesh, Madhya Pradesh, Chhattisgarh, and Odisha. Additionally, over 2,000 human rights violation cases against the police were logged between 2000 and 2018, with only 344 police officers found guilty in these cases.
Root Causes for Low Conviction Rates
Most custodial deaths were linked to reasons other than custodial torture such as suicide or death during hospital treatment.
Rationale Behind Custodial Violence
The primary factors influencing custodial violence include the lack of robust legislation, numerous institutional challenges, excessive force, and non-adherence to international standards.
Legislative Gaps
India is yet to criminalize custodial violence and establish an anti-torture legislative framework. Although deterrent measures against the guilty officials exist, they are somewhat illusory. Furthermore, the assertions claiming sufficient domestic legal provisions to prohibit and penalize torture are superficial and lack substantial protective measures.
Institutional Challenges
The prison system in India operates with opaque mechanisms, making it less transparent. Accessing a prison requires prior approval and involves hefty security deposits. Furthermore, any recorded or documented material within the prison is excessively scrutinized. India still fails to implement significant prison reforms, and prisons continue to suffer from poor conditions, overcrowding, acute manpower shortages, and minimal safety against harm.
Excessive Force
Another contributing factor is the use of excessive force including torture especially targeted towards marginalized communities and control people participating in movements or propagating ideologies that the state views as contrary to its status.
Non-Adherence to International Standards
Despite signing the United Nations Convention against Torture in 1997, India has yet to ratify this treaty. Ratification entails bringing in laws and mechanisms to fulfil the commitments of the treaty.
Constitutional and Legal Provisions
Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution. The right to counsel is also a fundamental right under Article 22(1) of the constitution. Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards.
Suggestions for Reforms
To address this issue head-on, some potential solutions could be: aquick ratification of the UN Convention Against Torture, comprehensive police reforms, unrestricted access to prisons, installation of CCTV cameras in police stations and regular surprise inspections by Non-Official Visitors (NOVs), and full implementation of recommendations from the Law Commission of India’s 273rd Report. These changes could help to improve the handling of arrest, detention or imprisonment, set up mechanisms for victim compensation, and ensure rigorous criminal prosecutions for those accused of committing custodial torture.