A few months ago, the Madras High Court in a painstaking custodial torture case made a statement claiming custodial torture to be worse than death. Custodial Torture has been a grappling issue for this country since its independence, and even before, under the British Raj. It refers to torture, including third-degree assault, negligence, and even death, resulting from extortion of confession from the accused during investigations. In a growing backdrop of making the criminal system more humane, custodial torture remains a stain on democracy and rule of law.
The recent case of the custodial torture of a police constable in Jammu and Kashmir has left the country in shock and agony. The extremities inflicted upon the constable reflect a blatant disregard for human rights and tear the very social fabric of our nation. The Supreme Court called this case “deeply shocking to its conscience” and ordered a CBI probe into the matter along with a compensation to the tune of Rs. 50,00,000.
Factual Matrix
In the present case, Khursheed Ahmed Chohan v. Union of India, the appellant is a police constable who was detained and subjected by the police and brutally tortured for 6 days. His genital organs were amputated and he was given electric shocks, which led to the fracture of his foot. Then, the police filed an FIR against him, accusing him of attempting to commit suicide. The constable’s wife, after seeing the condition of her husband, approached multiple avenues to get relief, such as filing an FIR, approaching the SSP, and even sending a legal notice, but to no avail. Aggrieved, she finally filed a writ petition before the High Court of J&K, seeking to either register an FIR and conduct a police investigation, or direct the matter to the CBI considering the potential police influence on this case.
The High Court directed that a preliminary enquiry be conducted by the SSP and if the enquiry substantiated the claims, an FIR be registered. The HC also refused to quash the FIR against the appellant, claiming it’s too soon since the investigation is in its infancy. Aggrieved by this order, the appellant further filed an SLP before the Supreme Court.
Court’s Ruling
The SC stated that the present case involves grave allegations of custodial torture which the perpetrators tried to cover up as a suicide attempt by the appellant. There has been a complete and systematic denial of justice at every level. Instead, the system orchestrated an attempt to shield perpetrators within it and tried to accuse the appellant of inflicting harm on himself, which in this case has been declared medically impossible. The SC also declared that the High Court committed a grave error in law by failing to recognize the violation of the appellant’s fundamental rights under Article 14 and 21 of the Constitution. Not only this, the High Court also flouted the principles of natural justice by appointing the SSP and DSP in charge of the investigation, when it was the SSP’s office which made the call of detention. The High Court also misinterpreted multiple precedents in how to deal with cases where the primary investigative body, i.e., the police, may be exerting undue influence upon the investigation, and what these extraordinary circumstances entail.
Legality of Custodial Torture
A retired Supreme Court Justice, V.R. Krishna Iyer once said that custodial torture is worse than terrorism because it is backed by state authority. Multiple institutions, such as the Supreme Court, the Constitution of India, the National Human Rights Commission (NHRC), as well as the United Nations prohibits custodial torture, yet it runs rampant within the country. India may have signed the UN Convention Against Torture, but it has not ratified it, and nor has it passed any central law banning or regulating this violence.
Multiple cases, such as the Sunil Batra case, the D.K. Basu case, and Arnesh Kumar case have been decided to significantly reduce the violence faced by prisoners and accused during custody. However, these cases only lay down the procedures and rule of law in theory. The true reality of prisons in India has not seen an equivalent change, and the reason for that lies in the slow process of justice, the continual negligence of prisons and welfare of prisoners, the lowly condition of state and police machinery, the lack of scientific methods of investigation and training of personnel, and a blatant disregard of authority due to an affinity to a superiority complex caused by corruption being embedded within the very fabric of our government administration.
Way Forward
Article 21 is the most basic right that every human being deserves, irrespective of whether the accused is a state terrorist or a petty thief. The solution to this age long problem is not straight-forward. Notwithstanding the requirement of an entire upheaval of our police administration, the first step towards a drastic reduction in custodial torture and death could lie in the formulation of a central law banning or severely regulating custodial torture, along with the ratification of international conventions on custodial torture, which will further increase the pressure upon state officials to abide by the rule of law.
