Just after few weeks of the cruel murder of George Floid in US the brutal torture that lead to the death of the father and son, Jayaraj (60) and Bennix (31), remains in the news and discussions all over the world even after two weeks. The way in which the father and son were arrested and tortured to death moves the heart of everyone who happens to know it. Brutality of Indian Police is now the subject matter of discussions in television channels and the social media.
The father and son were arrested not for any serious violation of law on their part. Just because they have not closed their cell phone shop even after the permitted time they were taken to the station and tortured. All this earned the sympathy of the people all over the world. Traders all over the southern districts of Tamilnadu came to the streets in support of the victims. Lawyers of southern districts were also gone in processions in support of the victims. Within few hours visual scenes of torture spread all over the world. All these made the Madurai branch of the Madras HC took Suo Motu cognizance and directed the SP to file the status report.
The rise of the public voice all over Tamilnadu had made the CM to announce that the investigation of the case is transferred to the Central Bureau of Investigation (CBI). Madurai HC branch once again intervened and transferred the case to CB-CID to prevent tampering of evidences. CB-CID is now investigating the case and this will continue till CBI Takes over.
Till now five policemen are arrested. They are Inspector Sridhar, Sub-Inspectors Balakrishnan and Raghu Ganesh, Head Constable Murugan and Constable Muthuraj.
As per the data available in NHRC the commission has received 5,300 complaints of custodial deaths in police stations and prisons. But this data is arrived by counting the complaints registered by the relatives of the patients. This can only be a small fraction of the actual number of such cases. Even in such cases in which complaints are lodged only in very few cases the culprits are punished. According to another government data between 2000 and 2018 the no of deaths occurred in police custody is 1727. But the total no of police officials convicted for such custodial deaths are only 26.
There is an unwritten law in India that police should not be punished. The higher authorities as well the government always do everything to safeguard the uniformed killers from any punishment. Though the torture and killing in police stations and prisons are an open secret, the successive governments are not at all ready to move anything towards enacting a law that makes the police or prison officials accountable for any deaths in their custody. We should understand that the regular criminal laws are totally inadequate to fix the culprits in custodial deaths. The law commission has suggested that In cases of custodial deaths the burden of proof should be on the police to establish that they are not responsible for the death. But the law still requires that it is the prosecution that has to prove that the police caused the death.
Most of the people killed in custody come from poor and down trodden families. In our experience in HR activities we find that in cases of such custodial deaths the near and dear of those killed would weep and cry and request us to do something to secure justice for that. But in the course of time due to poverty and government apathy they loose interest in pursuing the case.
But we should not forget one thing. In many deaths in custody the police personals who are responsible for the deaths do not kill the victims intentionally. In the course of their brutal tortures the victims happen to die. They resort to such brutality just because they are sure that in case of deaths they won’t be punished. This could be avoided to a large extent if India enacts an anti torture law. But unfortunately successive governments in India are adamant in not ratifying the UN Convention Against Torture.
The SC in its judgements had laid down many measures to prevent torture and fixing accountability. (Joginder Kumar Vs State of Up – AIR 1994; DK Basu Vs State of West Bengal, WB 1997 –SCC 416). But they are ignored. The mandatory independent magisterial inquiry is also not followed. Only in 20% of the custodial deaths such magisterial enquiries are done. As a colonial legacy we have still in our law that in case of custodial torture the officials responsible for that could be prosecuted only after getting the sanction of the government.
At least in two cases the SC has given clear instructions to be followed in the police station when a person is arrested. A memo of arrest should be prepared after the arrest and that should be signed by a family member of the arrested person or by an eminent person; the arrested person can have a relative or a friend when he or she is kept in the police station. A diary entry containing the details of the arrest should be made immediately after the arrest. The person being arrested can request a physical examination at the time of the arrest and the injuries if any should be recorded. The arrested person has the right to consult a lawyer. The arrested person must have a medical examination for every 48 hrs during detention in custody. Of course the arrested cannot be subjected to any torture. Within 24 hrs of the arrest the accused should be presented before the local magistrate who should ask the arrested person weather he was subjected to any torture in the police station or elsewhere. If the arrested says that he was beaten in the custody he should be examined and if necessary a doctor should be consulted. But In many cases the arrested are not even presented before the magistrate within 24 hrs. Many magistrates just sign in the papers without asking anything.
- We appreciate the measures taken by the Madurai branch of the Madras High court. The state government has already announced some compensation to the family of the victims and a government job to one of the family members.
- A discussion is going among the people that the “Friends of Police” are also involved in the torture. There are many complaints about this “Friends of Police” from other quarters also. This should be dismantled immediately.
- We urge the Government of India to ratify the UN Convention Against Torture without delay.
- We urge that all the guidelines and the measures laid by SC to prevent torture in custody and to fix accountability to be strictly implemented in the future. In all cases of custodial deaths the mandatory independent magisterial inquiry should be followed strictly in future. At present these mandatory magisterial inquiries are held only in 20% of the custodial deaths. At present prosecution of police officials in custodial torture requires the sanction of the government. We should put an end to this colonial procedure immediately.
- Police force should be modernised. There should not be any place for torture in the investigation of crimes. The Sattankulam case is a classic example to prove that tortures are held in the police stations not to extract truth from the accused. It goes beyond that. Police is trained in a way that it always finds a pleasure in torture. It wants to teach a lesson to the public. The impunity it enjoys always encourages such excesses. We should put an end to this.