19 - 01 - 2021

Strict law needed to deal with police torture

Reports of torture and violence perpetrated by the police are being received from different parts of the country. Recently, there was a shocking report from Hapur in Uttar Pradesh of a person being tortured to death by the police, in the presence of his son. Incidents like this terribly besmirch the image of the police and shake the conscience of the public. 

But police torture is not a new phenomenon in India. It has its roots in the past. As early as in 1850, the Torture Commission reported the prevalence of torture in different police stations of the then Madras Presidency. The Police Commission of 1902 severely denounced the commission of torture by police officers, mainly darogas, in different police stations of the country. The National Police Commission (1978-81) roundly condemned police torture and recommended that there should be a mandatory judicial enquiry in all cases of death in police custody. 

However, the situation has not changed. Reports of the National Human Rights Commission show that on an average, during the last 10 years, there have been about 150 deaths per year in police custody, and it is spread all over the country. All deaths in police custody are not due to torture. But, some of them, unfortunately, are. 

The causes of police torture are deep-seated and systemic. 

First, there is tremendous pressure on the police to deliver results whenever there is a surge in crime. The public also expects the police to adopt short-cut, third-degree methods, if necessary, to deal with dreaded criminals and terrorists. The end justifies the means. This kind of police outlook prevails in other countries also. In a BBC survey of 27,000 people in 25 countries in 2008, it was found that a large number of people in many countries consider a degree of torture acceptable if it saves lives. Another poll by Pew Research Centre found that nearly half of all Americans thought the torture of suspected terrorists was sometimes justified. A perceptive writer on police psychology, Ben Whitaker, has observed that the public has ‘Janus-like’ turned two faces towards the policemen. Because of the incompatible demands of the public, policemen have become stoically immune to criticism. 

Second, the criminal justice system in the country is slow moving and it takes an inordinately long time to get the criminals, if at all, punished. The pressure on the police is to adopt rough and ready justice, and ensure that criminals get their just deserts. The political masters also put pressure on the police to go for short-cut methods for successfully combating serious crimes. I remember that while functioning as DIG in Odisha, I was advised by the then Chief Minister of the state to adopt ‘other methods’ (known to police officers) to deal with depredation of the dacoits in Puri district. 

Third, there is supervisory cowardice of senior police officers to weed out violence-prone officers. I vividly recall a case when I was posted as DIG, CID, in the Orissa Police. An inspector of police posted in Koraput district brutally kicked to death a bright schoolboy in the police station when the latter, at the time of interrogation, had the temerity to ask him under which Section of law he had the authority to use third-degree methods during the investigation of a case. The inspector’s blood was up. He gave two hard kicks on the chest and the genitals of the boy, and the latter passed away. Investigation done by the CID team sent from police headquarters unravelled the truth. The inspector was prosecuted under Section 302 of the Indian Penal Code for murder. The Sessions Judge, in a mood of clemency, exonerated the officer of the charge of murder and convicted him under Section 323 of the IPC for causing hurt. But nemesis overtook the errant officer, and he soon lost his life in a road accident. 

At present, there are no specific laws to deal with the crime of torture. Culpable officers are prosecuted under various provisions of the Indian Penal Code. The Prevention of Torture Bill 2010 has lapsed. The proposed legislation, though restrictive and inadequate, was a step forward. There is an imperative need to pass a stringent law to severely deal with the crime of torture. 

But mere passing of law will not be adequate. International experience shows that it is difficult to convict officers committing torture within the four walls of a police station. Witnesses are also gained over. The Law Commission recommended that Section 114-B should be inserted into the Indian Evidence Act, 1872, to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by police officers. This would shift the burden on the officer. It is felt that this kind of an amendment will have a restraining effect on officers indulging in custodial violence and torture.

Some senior law enforcement officers hold the erroneous view that the torture can be justified in rare cases of "ticking bomb" urgency. 

In practice, however, attempts to use torture sparingly have only led to widespread abuse. There is always the difficulty of knowing where to draw the line and one cannot rely on interrogators to bear in mind such distinctions. There is a danger of "slippery slope" that calls for a total ban on torture. 

Israel is the only country in modern times that has allowed moderate physical pressure as a last resort. But in 1999, the Supreme Court of Israel, citing the "slippery slope" argument, ruled that torture could never be justified even in the case of ticking bomb. The court went to the extent of outlawing techniques such as sleep deprivation, exposure to extent of hot and cold and other tactics.  

Police officers have to constantly bear in mind that custodial torture and violence are counterproductive and expose the police to public condemnation and criminal prosecution. Some egregious cases of custodial deaths wash away all the good and hard work done by the police and create a lasting negative impression about police in public mind. 

Moreover, the police are scapegoated for failure of other agencies of criminal justice system. Unfortunately, no sustained effort has been made to foster a human rights culture within the police and make police officers realise that not only from a normative point of view but also practical, adherence to human rights norms will enable the police to do their jobs better. The challenge is before the police leaders to usher in a new culture in the police.  

Sankar Sen

Ex-Director, National Police Academy