Custodial harassment and access to justice

Pranoy Sarmah

(The writer can be reached at way2pran@gmail.com)

Custodial harassment is probably the cruelest type of denial of personal liberty, abuse of human rights and abuse of the rule of law. The Constitution of India, Indian judiciary and multilateral organization such as the United Nations condemn it quite often. Yet, the police force all over the nation ignores the decrees of such institutions. Recently during the lockdown, police all over the country could be seen beating the common people brutally for not wearing mask and coming out of home which is a perfect example of abuse of power. Probably the cruelest incident was the death of a father son duo in police custody in Tamil Nadu.

Two shopkeepers, who were father and son, were arrested by police for keeping their shop open beyond permitted hours amid the lockdown. They were brutally tortured in the police custody and later they succumbed to their injuries in the hospital. This incident has sparked quite an outrage in the whole country recently.

The history of custodial harassment is not new in India. Government data has recorded 1,727 deaths in police custody between 2000 and 2018. Interestingly, only 26 police officials have been convicted which is again a controversial matter. But this fact cannot be denied that only a few unethical police officials are involved in this torture game; but sadly when it comes to bearing the blame, the entire police fraternity has to go through it.

As per available data, custodial deaths often go unpunished in India. Furthermore, the Indian Parliament has not yet ratified the United Nations Convention against Torture (UNCAT), an international human rights treaty under the purview of the United Nations, that aims to prevent torture and other acts of inhuman punishment around the world. Despite signing it in 1997, India has not yet ratified the convention.

Fortunately, it is often the Indian judiciary who has been vocal against custodial harassment and Rule of Man. The apex court of our country has spoken a number of times condemning the arbitrary actions of the state. The Supreme Court has often linked such abuse of power with the violation of Article 21 of the Indian constitution and has passed numerous guidelines to secure basic human rights and dignity of an individual in custody. In the judgments of Joginder Kumar v/s State of UP, 1994 and D.K Basu v/s State of West Bengal, 1997, the Supreme Court emphasized the prominence of Article 21 (Right to Life) and Article 22 (Right to Know) and passed directions to the state to prevent custodial harassment and to secure personal liberty and human rights.

Article 21 of the Indian Constitution is the most diverse article which says, "No person shall be deprived of his life and personal liberty except according to the procedure established by law". Whenever there is a threat to life and dignity of any individual, Indian judiciary has never failed to deliver justice. Apart from just adhering to the 'Procedure Established by Law', the Supreme Court has even followed 'Due Process of Law' which states that a law must be 'just and fair' and not arbitrary. For the first time in Maneka Gandhi v/s Union of India, 1978, the Supreme Court followed the 'Due Process of Law', and gave a wide interpretation of Article 21, saying that a law should be fair, just and reasonable. In the same case, the Supreme Court also said that there is a unique relationship between the provisions of Article 14, Article 19 and Article 21 which can be abridged by no law of the state. This landmark judgment extended the scope of Article 14 and Article 19 to the protection of personal liberty of every Indian citizen.

In spite of such active role of the Supreme Court to protect the personal liberty and rights of an individual, cases of custodial harassment have not decreased whatsoever. The recent death of the abovementioned father and duo is a live example of that. This particular chunk of policemen, who give primacy to Rule of Man over Rule of Law, must be punished for their act. The role of Indian judiciary again becomes prominent to take action against such policemen. In Francis Coralie Mulin v/s UT of Delhi, 1983, the Supreme Court upheld the primacy of Article 14 and Article 21 and accordingly, Clause 3 (b) of COFEPOSA Act which regulated the right of petitioners to have an interview with his legal adviser was held ultra-vires. Again in Sheela Barse v/s State of Maharashtra, 1983, the Supreme Court gave directions to safeguard the life and dignity of female prisoners, right to know grounds of arrest (Article 22) and legal aid.

The duty of police is to enforce law and order and protect the citizens of the country. It is moral and professional obligation to respect the dignity of an individual and stay abide by the Constitution. But when the police force is governed by the Rule of Man, society tends to lose faith on the system. This can be chaotic. Thus, it becomes the responsibility of the police force to make the citizens trust them. Nevertheless, it will no way be right to blame the entire police fraternity for that. There are number of policemen who have done tremendous work to protect the lives and dignity of our citizen, and some of them even sacrificed their life while protecting us. Their contributions will always be remembered.

It is highly necessary for India to ratify the United Nation Convention against Torture (UNCAT). A chunk of unscrupulous policemen has been repeatedly violating the apex court guidelines against custodial harassment. Indian law needs to be stringent against such custodial harassment and Rule of Man. It is now the utmost responsibility of the Indian parliament either to pass new law or to bring stern amendment to the existing law. Respecting the Constitution and obeying guidelines of the apex court is the professional obligation of our police force. To uphold democracy in India and to make its citizen have faith on the system, the laws need to be strict against the arbitrary action of state as well. India could only be a true welfare state when the police, along with citizens will obey the laws and respect the Rule of Law. As quoted by Aristotle, "Law is order, and good law is good order."