INDIA: Apathy to criminal justice reforms will only perpetuate torture

“Matters can go to such a head that the SHO (station house officer) would have to bring him (the detainee) chapattis and chicken curry to satisfy him.”

Indeed, this is not an obiter dictum by Justice T. S. Thakur. This comment that the Supreme Court judge has made while hearing a case concerning the installation of closed circuit cameras inside police stations, however, reflects an oft repeated opinion in India: that an accused will not tell the truth if treated well.

Even though the judge has agreed that “no civilised country should torture its citizens”, during the hearing of the case, the judge did not withhold from expressing his apprehension that should such technology be made available at detention centres, the accused could “misuse” the facility and allege human rights abuses against state officers. What the judge unfortunately failed to acknowledge is that the lis he is deciding is based on the fact that all over India detainees are tortured and their rights violated.

Lack of transparency in procedures followed in detention centres, most importantly at the police stations in the country, is one of the reasons why custodial violence is uncontrollable in India. The impossibility in India to prove that a detainee has been ill-treated in custody, results in impunity for law-enforcement officers.

Even if litigation is initiated, it takes ages to be decided by the country’s courts. The litigation in which Justice Thakur has expressed his opinion is 28 years old.

Justice D. K. Basu, who filed this particular litigation, is also the petitioner in the landmark case, where the Supreme Court in 1996 interpreted the rights of a detainee, and ordered state governments to follow strict procedural laws to ensure that no person will be tortured in custody or held incommunicado. The 1996 judgment and a subsequent amendment to the criminal law made no improvement to the reality.

With such dishonourable delay, considered normal even at the Supreme Court, what chances does a poor detainee in India have to seek and obtain redress for custodial torture, even if such torture happens inside a police station and a closed circuit camera records the incident?

Indeed, installing modern devices inside police stations and other detention facilities will have a positive effect. But cameras alone cannot prevent torture. Furthermore, custodial violence in India is not used to extract confession alone. It is used to demand bribes, to force a complaint to withdraw legitimate accusations, to silence human rights defenders and social activists, and even to supress political opposition.

Incidents of torture are not limited to detention centres. It happens inside police vehicles, houses rented by law enforcement agencies to question and illegally detain persons, and above all in board daylight in front of thousands of people. Torture in India is not a secret. It is the quintessence of law enforcement in India.

Getting entangled with the criminal justice process itself is torture. This is the very opinion made by the incumbent Chief Justice of India. Yet, absent in India is the realisation that the country’s criminal justice apparatus is nothing more than a phantom limb.

Prevention of crime and safeguarding justice are the two basic tenets that India’s criminal justice process is unable to do. What it is capable, however, is the generation of fear in large sections of the population and providing for the vested interests of the rich and powerful. For the poor the justice process does not exist, whereas for the rich and influential, it is nothing more than a commodity that could be purchased through bribes, and influence.

To effectively remedy the reality in line with that of a self-respecting democratic nation, Indians need to first accept that their criminal justice apparatus is a complete failure. The institutions that make up the criminal justice framework, most importantly the police, the prosecution, and the magistrate courts must be rebuilt, equipping them to deal with crimes in civilised manner.

It is not the high-ranking police officers — who often receive advanced crime investigation training and other facilities like good salaries — that investigate crimes. The police constables, their immediate superiors like the Sub Inspectors and Circle Inspectors, who walk the beat, investigate crimes. These officers work in inhuman conditions. Expecting them to treat the ordinary citizen humanely and respect their rights is a demand farfetched.

To the national and state governments, reforming criminal justice institutions is not a priority. All political parties in India expect law enforcement officers to play the role of a ferocious guard dog that will bark or attack when ordered.

The presence or absence of closed circuit cameras alone will not help ending torture in India. Such initiatives must be complimented by modernising the Indian police, bringing accountability and professionalism to the office of the public prosecutors, and the Indian judiciary being able to decide cases within a reasonable time. All said and done, if the judiciary is unable to decide a case for 28 years, no reform will work. Such changes warrant the government to have the political will to make resources available to provide adequate manpower and finance to these institutions.

Until this happens, custodial violence in India will never end.

Document Type : Statement
Document ID : AHRC-STM-194-2014
Countries : India,
Issues : Administration of justice, Corruption, Right to life, Rule of law, Torture,