Human Rights- Judiciary Strikes Against 'Third Degree' Through Transparency

  • Human Rights- Judiciary Strikes Against Third Degree Through Transparency

    On this day of International Human Rights Day, can we hope that the third-degree treatment by police will become a thing of past? Whether the recent Supreme Court order put an end Rakshak Bhakshak syndrome in India. Perhaps. Hopes are raised by the apex court's order of 2nd December and Madras High Court's order of 3rd December 2020. 'Who will police the police' is a big question...

    On this day of International Human Rights Day, can we hope that the third-degree treatment by police will become a thing of past? Whether the recent Supreme Court order put an end Rakshak Bhakshak syndrome in India. Perhaps. Hopes are raised by the apex court's order of 2nd December and Madras High Court's order of 3rd December 2020.

    'Who will police the police' is a big question for which world could not give any answer till today. But SC gave answer - Cameras can police the police. Possibility of a watch either by citizen through RTI or judiciary through footage of camera recording will prevent the phenomenon of hurting the person to confess or admit a crime. Transparency is the system that helps police not to resort to third degree methods to extract crime related information.

    Supreme Court asked government to fix camaras in every possible place where the Police interrogates the persons. To avoid efforts or difficulties of investigation, the police mostly use easy technic of torture to extract the information and then collect evidence. The technology available could be effectively used for prevention of violation of Human Rights by police. The Madras High Court directed the state to make police transparent towards the family of victim of custodial violence and also gave specific guidelines to the judicial magistrates and sessions judges.

    Police under the watch of camera

    The Supreme Court on 2nd December was examining a case of custodial torture in Punjab and considering issue of CCTV installation in police stations and examination of witnesses by police. The Bench directed the Governments at the Centre, all the states and union territories to install CCTVs with night vision cameras in each police station, including central probe agencies such as CBI, ED, NIA etc across India. Justice RF Rohinton Nariman, heading a Bench with two other judges K.M. Joseph, Aniruddha Bose, said: "The state and union territory governments should ensure that CCTV cameras are installed in each and every police station functioning in the respective state and/or union territory. In addition, the Union of India is also directed to install CCTV cameras and recording equipment in the offices of: CBI, NIA, ED, NCB, DRI, SFIO and any other agency which carries out interrogations and has the power of arrest"…..The CCTV systems "must be equipped with night vision and must necessarily consist of audio as well as video footage…The SHO of the police station concerned shall be responsible for the working, maintenance and recording of CCTVs". the SC also ordered constitution of Oversight Committees at state and district levels for this purpose.

    Provide Electricity and internet

    Fine. But most of the areas in our country do not have power connection and internet band width. The SC took care of this situation and ordered that in areas without electricity and/or internet, the states/UTs have to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.

    Mandate to Store for 18 months

    Supreme Court went into details and ordered that the CCTV camera footage should be stored in digital video recorders and/or network video recorders. Importantly, the recording system should be such that the data stored therein is preserved for 18 months, and said: "If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all states, union territories and the Central government to purchase one which allows storage for the maximum period possible".

    The top court has rightly recognized the role for State Human Rights Commissions and directed setting up of District level Human Rights Courts as prescribed under Section 30 of Human Rights Act. The court said in case of serious injury and/or custodial deaths, the injured persons shall be free to complain to the State Human Rights Commission as also to Human Rights Courts.

    SC orders not implemented

    It was not for the first time SC was dealing with this issue. On 3 April 2018 in SLP (Crl) No. 2302 of 2017, in Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311, it has directed that a Central Oversight Body (COB) be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videography in the crime scene during the investigation. The Supreme Court in D.K. Basu Vs. State of West Bengal & Others (2015) 8 SCC 744, held that there was a need for further directions that in every State an oversight mechanism be created whereby an independent committee can study the CCTV camera footages and periodically publish a report of its observations thereon. The COB was further directed to issue appropriate instructions in this regard at the earliest. Court wanted COB to issue necessary directions to make videography a reality with implementation of first phase by July 2018, which did not happen. The crime scene videography ought to be introduced at least at some places as per viability and priority determined by the COB.

    The Ministry of Home Affairs constituted COB to oversee the implementation of the use of photography and videography in the crime scene by the State / Union Territory Government and other Central Agencies, to suggest the possibility of setting up a Central Server for implementation of videography.

    Directions were issued to the Administrators of the Union Territory, State Governments and other Central Agencies for effective implementation of the use of photography and videography at the crime scenes, and to furnish an Action Taken Report on the implementation of the use of videography in the crime scene.

    Non-Compliance by states

    The SC mentioned that nothing substantial was done for 2 and half years to implement the SC directions and impleaded all states and union territories to file affidavits explaining the compliance of its earlier orders. The compliance affidavits and Action Taken Reports were filed by 14 States (till 24.11.2020), namely, West Bengal, Chhattisgarh, Tamil Nadu, Punjab, Nagaland, Karnataka, Tripura, Uttar Pradesh, Assam, Sikkim, Mizoram, Madhya Pradesh, Meghalaya, Manipur; and 2 Union Territories, namely, Andaman & Nicobar Islands and Puducherry. (It means two Telugu states did not file). But they failed to disclose the ground position of installation of CCTV cameras in each police station. SC noticed that they are bereft of details with respect to the total number of Police Stations functioning in the respective State and Union Territory; total number of CCTV cameras installed in each and every Police Station; the positioning of the CCTV cameras already installed; working condition of the CCTV cameras; whether the CCTV cameras have a recording facility, if yes, then for how many days/hours, have not been disclosed.

    When most of the states do not file affidavits, though mandated, and do not disclose the real status, can we hope that this judgment becomes a reality? The constitution of Oversight Committees in accordance with the Order dated 03.04.2018, and/or details with respect to the Oversight Committees already constituted in the respective States and Union Territory have also not been disclosed. The apex court instructed states and UTs to file compliance affidavits within six weeks.

    SC reminded that these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India. It directed the states and UTs to implement 2018 order of SC both in letter and in spirit as soon as possible and file affidavits of compliance within six weeks.

    Duties of State Level Oversight Committees

    The constitution of Oversight Committees in accordance with Supreme Court Order dated 03.04.2018 should be done at the State and District levels. The State Level Oversight Committee (SLOC) must consist of: (i) The Secretary/Additional Secretary, Home Department; (ii) Secretary/Additional Secretary, Finance Department; (iii) The Director General/Inspector General of Police; and (iv) The Chairperson/member of the State Women's Commission. It shall be the duty of the SLOC to see that the directions passed by this Court are carried out. Amongst others, the duties shall consist of: a) Purchase, distribution and installation of CCTVs and its equipment; b) Obtaining the budgetary allocation for the same; c) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment; d) Carrying out inspections and addressing the grievances received. Similarly, the District Level Oversight Committees should also be constituted with similar obligation.

    Facilitate reporting of complaints

    The Court directed facilitation of victims to complain. It said: "Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it".

    Union directed

    The apex court directed the Union to install CCTV cameras and recording equipment in the offices of: (i) Central Bureau of Investigation (CBI) (ii) National Investigation Agency (NIA) (iii) Enforcement Directorate (ED) (iv) Narcotics Control Bureau (NCB) (v) Department of Revenue Intelligence (DRI) (vi) Serious Fraud Investigation Office (SFIO) (vii) Any other agency which carries out interrogations and has the power of arrest.

    Police torture kills five persons a day

    In India, the human rights of the arrested persons and prisoners is violated every day and perhaps every hour. The survey Reports and media count deaths on the top, and their details contain the number of tortured persons. It is a sad reflection of our level of civilisation and so-called conformity with human rights norms.

    Number of custodial deaths are over five persons per day. The decade to March 2020 recorded 17,146 deaths in police and judicial custody. According to the latest data from the National Human Rights Commission (NHRC), in the seven months to July 2020, 914 deaths in custody, 53 of these in police custody. Of the 15,759 cases recorded over a decade in NHRC data, 92% of deaths were in judicial custody--which can extend up to 60 or 90 days--and 1,387 in police custody, which can last only 24 hours unless extended by a magistrate for up to 15 days. NHRC recorded 1,723 cases of deaths in judicial custody and police custody across the country from January to December 2019. These included 1,606 deaths in judicial custody and 117 deaths in police custody1 i.e. an average of five deaths daily. (NHRCMonthly Human Rights Cases Statistics from January to December 2019)

    It's obvious that the deaths in police custody occur primarily as a result of torture. In 2019, NCAT documented death of 125 persons in 124 cases in police custody across the country. Out of the 125 deaths, 93 persons (74.4%) died during police custody due to alleged torture/foul play while 24 persons (19.2%) died under suspicious circumstances in which police claimed they committed suicide (16 persons), died of illness (7 persons) and death due to injuries after slipping from police station bathroom (1 person); and the reason for the custodial death of five (4%) persons were unknown.

    The practice of torturing the suspects in police custody to punish them or gather information or extract confessions continued to be rampant. A 17- year-old boy (name withheld) in Tamil Nadu who was tortured to death to extract confession in a case of theft.

    Apart from extracting confession, torture is routinely perpetrated to extract bribe from the detainees or their relatives. According to the India Corruption Survey 2019 conducted by Local Circles in collaboration with Transparency International India, three most corruption prone departments in India were Property Registration & Land Issues, followed by Police and Municipal Corporation. (India CorruptionSurvey 2019 , P.12,)

    NACT explained different varieties of torture inflicted by police. Most common methods of torture are slapping, kicking with boots, beating with sticks, pulling hairs etc. It recorded that torture methods used by the police also included hammering iron nails in the body (victims: Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (victim: Rizwan Asad Pandit of Jammu & Kashmir), 'falanga' wherein the soles of the feet are beaten (victim: Rajkumar of Kerala), stretching legs apart in opposite side (victim: Rajkumar of Kerala), hitting in private parts (victims: Brijpal Maurya and Lina Narjinari of Haryana), stabbing with screwdriver (victim: Pradeep Tomar of Uttar Pradesh), electric shock (victims: Yadav Lal Prasad of Punjab; Monu of Uttar Pradesh), pouring petrol in private parts (victim: Monu of Uttar Pradesh), applying chilly power in private parts (victim: Raj Kumar of Kerala) beating while being hand-cuffed (victims: Sajith Babu and Rajesh of Kerala), pricking needle into body (victim: 13-year-old minor of Tamil Nadu), branding with hot iron rod (victim: 13-year-old minor of Tamil Nadu), beating after stripping (victims: Mohammed Tanveer and Lina Narjinari of Haryana; Minuwara Begum, Sanuwara and Rumela of Assam), urinating in mouth (victim: Amit Sharma of Uttar Pradesh), inserting hard blunt object into anus (victim: Diwakar Kumar of Bihar), beating after hanging upside down with hands and legs tied (victims: Mahavir Bhatia of Rajasthan; and Aaditya Chouhan of Madhya Pradesh), forcing to perform oral sex (victims: Hira Bajania and 12 others of Gujarat), pressing finger nails with pliers (victim: Anup Rabha of Assam), deprivation of food and water (victim: Anup Rabha of Assam), beating with iron rods after victim is suspended between two tables with both hands and legs tied (victims: Aaditya Chouhan and Yashwant Chouhan of Madhya Pradesh), forced to do Murga pose or stress position (victim: Lina Narjinari of Haryana), and kicking in belly of pregnant woman (victim: Minuwara Begum of Assam).

    The Poor & Women victims

    While rich and influential escape the torture, vulnerable sections fall prey for police torture. Majority of the victims belonged to the poor and marginalised sections of the society who are often the soft targets because of their socio-economic status. NACT counted the percentage of marginalized as 60 per cent.

    The women continued to be tortured or targeted for sexual violence in custody and often, the victims belonged to weaker sections of the society. During 2019, NCAT documented death of at least four women during police custody, one committed suicide at home unable to bear custodial torture and another woman died due to torture outside police station. For example, from 3-7 July 2019, a 35-yearold Dalit woman was allegedly illegally detained, subjected to torture and raped in police custody by nine police personnel at Sardarshahar police station in Churu district, Rajasthan. Beside custodial rape, the victim was also allegedly subjected to torture including plucking of her nails. (Rajasthan:Dalit Woman Gang Raped in Police Custody)

    The NCAT documented death of four children due to torture during police custody, one case of death due to torture in juvenile home and a number of cases of torture of children in 2019. The NCRB in its "Crime in India - 2018" recorded 3,164 cases of simple hurt and grievous hurt caused by the police on 3,467 minor victims. (NCRB, Crime In India 2018, Table4A.2(ii))

    Under reporting of police violence

    As per NHRC guidelines the custodial deaths should be reported within 24 hours of their occurrence, and a "failure to report promptly would give rise to presumption that there was an attempt to suppress the incident". But cleverly there is no provision in law for punishment for failure to report. The filing of a first information report is mandatory in the case of custodial deaths, but very rarely it is done. The NHRC also mandated that a magisterial inquiry be completed in two months and must determine the circumstances of death; manner and sequence of incidents; the cause of death, and so on. But not every death in police custody is reported by the police, The deaths that happen outside the lockup which are never reported to the NHRC."

    Torture by armed forces

    The use of torture by the armed forces consisting of the Indian Army and Central Armed Forces who are deployed in the insurgency affected areas and the border areas continued to be reported. (Urgent Campaign, 1 August 2019, OMCT, 'India: Impunity for Extrajudicial Killings in West Bengal',)

    Torture by upper castes

    The other non-State actors continued to perpetrate torture. The Dalits (Scheduled Castes) continued to face torture and other inhuman and degrading treatment at the hands of the upper castes. The incidents of caste atrocities continued to remain high with 42,793 reported cases in 2018.14 During 2019 the Dailts were killed, attacked, tortured, and subjected to other forms of cruel, inhuman or degrading treatment or punishment by the members of the upper castes.

    Views are personal.

    (Prof. Madabhushi Sridhar Acharyulu, Professor, School of Law, Bennett University & former Central Information Commissioner.)

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