Custodial Torture: It Is the Criminal Justice System That Requires Investigation

From judicial apathy to society's acceptance of the police's methods, there are several factors that have eroded the rights to life, liberty and dignity.

According to one view, the lockdown era represents the Satyug, the ‘Golden age’ when there was no need to labour because all that people required was obtained by the power of the will and there were no thefts and robberies has arrived in India. There is no need to put locks on doors; just relax at home and food appears at the doorstep.

In this Satyug, the father-son duo of P. Jayaraj and Bennix was picked up for alleged violation of the lockdown in Thoothukudi district in Tamil Nadu. It seems fairly clear that they were brutally tortured to death by the police after that. This has had the grand result of the arrest of five police officers, but only after intense public outrage.

It appears that the magistrate, before whom the blood-soaked duo was produced, did not react in shock but instead waved from the first floor, by way of remanding the two to judicial custody. In addition to the Criminal Procedure Code, the constitutional provision of production before a magistrate is meant precisely as a safeguard to check custodial torture. But this safeguard clearly failed in this matter.

Slogans such as ‘Dalit lives matter’, ‘Muslim lives matter’ and ‘Adivasi lives matter’ do not click in Indian society. In the US, the brutal chokehold of a police officer that led to the death of George Floyd catalysed protests not only in that country but in many parts of the world. In India, police brutality enjoys considerable acceptance in society.

Also Read: Why Indians Don’t Come Out on the Streets Against Regular Police Brutality

The individuals who adorn the bench are part of society and we see this acceptance of torture reflected in the judiciary as well. The magistrate who remanded Jayaraj and Bennix is a judicial officer.

Of course, courts in their benevolence, at times do entertain cases taken up by human rights groups and give high-sounding judgments espousing right to life and liberty. The D.K. Basu judgment laying down the procedure of arrest with name, designation of the arresting officer, preparation of custody memo and supplying the grounds for the detention is a shining example.

Jayaraj and Bennix. Photo: Twitter


However, police torture and brutality is an everyday occurrence. By and large, the highest to the lowest courts of the land find the use of third-degree torture an acceptable part of the criminal justice system.

As in everything else, a class system operates – the death of a businessman in custody increases the chances of the courts choosing to intervene in the matter. In this ladder, consciously or unconsciously, the death in custody of individuals who are categorised as ‘criminals’, has the least chance of evoking the judiciary’s conscience.

The distinction between ‘criminal’ and ‘criminal class’ blurs and generally, the torture and death of persons from the lower socio-economic background, does not result in any action being taken against the perpetrators.

Take for instance the case of Disco Purti, a small-time ‘criminal’ in the tribal district of Singhbhum in Jharkhand. Weekly bazaars are held across the length and breadth of India. Like many others, Disco Purti was at the haat-bazaar. The police came to the bazaar, caught Disco and took him to a short distance from the bazaar. A crowd followed the police. In full view of the crowd, the police shot Disco in cold blood. There were eyewitnesses to the entire chain of events that led to the illegal custodial murder of Disco Purti.

Shammu Khan, who was a rickshaw-puller, was picked up by the Delhi Police along with another person. Khan was beaten throughout the way and when he collapsed and could not walk, a cart was commandeered and he was thrown on it, taken to the police station where he died as a result.

I argued both these cases in the higher courts. The Supreme Court, in its wisdom, threw out the petition with regard to Disco Purti’s death, in limine, despite the best evidence in law being available– the testimony of eyewitnesses. The petition regarding Shammu Khan’s death, where the second post-mortem report showed nineteen injuries, was transferred to the Delhi high court. In turn, the Delhi HC “admitted” the case, pushing the matter in a Kafkaesque queue of ‘regular’ matters languishing for years.

Confessions to the police 

Newspapers abound with reports about accused ‘A’ being apprehended for a crime and naming accused B, C and D as accomplices to the police and further leading the intrepid investigation team to the spoils of the crime, leading to the recovery of evidence. Invariably, the accused confesses to the police, revealing all the details. The puzzle of accused ‘A’ being so ‘cooperative’ to the police and readily providing the names of accomplices and evidence against himself is glossed over in the matter.

Under the Indian Evidence Act of 1872, confessions to police officers are inadmissible as evidence in India. In Britain, confessions to a police officer even in custody are admissible as evidence, provided there was no promise or threat used. However, the evidence law brought in by the British totally barred confessions to police officers in India. In 1884, Justice Straight of the Allahabad high court succinctly put the matter:

“It is incredible that the extraordinarily large number of confessions made which come before us in criminal cases disposed of by this court, should have been voluntarily and freely made as represented.”

Rebutting the presumption that the accused is glad to purchase immediate release by confessing, he adds:

“I may claim some knowledge and acquaintance with the ways and conduct of persons accused of crimes, and I do not believe the ordinary inclination of their minds, which in this respect, I take to be pretty much the same with humanity the world over, is to make any admission of guilt.”

Unfortunately, there appears little likelihood that in spiritual India, the accused are so stricken by guilt and remorse leading to confessions for the expiation of sins.

Representative image. Photo: Ye Jinghan/Unsplash

The parallel track of encounter killings

On a track running parallel to beatings and torture as a method of investigation is the phenomenon of “encounter killings” as a legitimate form and strategy of meting out justice and crime prevention.

It comes as a shock that “encounter” killings in the country are a post-Independence phenomenon. Martyrs of the Indian Independence struggle like Shaheed Bhagat Singh, Sukhdev and Rajguru were sentenced to death by a court of law and hanged on March 23, 1931. There do not appear to be instances of “encounter” killings of political activists or criminals during British rule in India.

There has been a silent green signal from the political masters in independent India for encounter killings, which has recently been made explicit by UP chief minister Yogi Adityanath, as a declared state policy to counter crime.

At a public discourse level, we have the spectacle of police officers being valorised as “encounter” specialists, with the adulation of a significant section of society. In fact, inspector Daya Nayak of the Mumbai encounter squad, with 56 notches on the gun belt, inspired the making of the movie Ab Tak Chappan. The film, which glorified cold-blooded murder, was a “hit”.

Also read: Malicious Prosecution: A Deep Dive Into Abuse of Power by Police

In lieu of developing investigation skills and locating independent witnesses, the method of investigation followed by the police in India is to catch hold of the relatives and friends of the accused and coerce them to be prosecution witnesses. Rather than meticulously following clues and collecting evidence, the police present stories of the “accused” leading them near a well, pointing to the spot and digging up the “revolver” used in the crime from the site, which is adduced as evidence in court.

Given the snail’s pace of the legal system, the case comes up for trial years later. The investigating officers are long gone from the scene, transferred out or retired. The prosecution witnesses predictably turn hostile. The story presented by the prosecution strains the credulity of the judge, leading to an acquittal.

Even though it is a serious offence under the Indian Penal Code, it is almost unknown for judges in India to call for the prosecution of police officers for fabricating evidence. Similarly, much-like the magistrate in the Sathankulam case, there is a turning of a blind eye by the judiciary to allegations and evidence of beatings and torture. This can only be read as tacit approval of third-degree methods employed by the police. It is this cycle which contributes and feeds into the approval of extra-judicial killings and third-degree methods.

Rather than try and address corruption and pollution, the higher constitutional courts of our country – which enjoy vast powers – would serve citizens well by addressing the deficiencies of the criminal justice system, which seems to make a mockery of the rule of law and rights to life, liberty and dignity.

Rakesh Shukla is an advocate and member of the Supreme Court Bar Association