MONTHLY FEATURE **** POLICE AND SECURITY ***** AUGUST 1997

Two recent developments, which are very important and significant in curbing custodial violence by the police have gone unnoticed by the public. These are the announcement made by the Government of India about its intention to accede to 1984 UN Convention against Torture etc. and the landmark judgment of the Supreme Court spelling out mandatory requirements by the police while dealing with arrested persons. Combined with the measures already initiated by the National Human Rights Commission to deal with custodial rates and deaths, these will go a long way in curbing the evil of custodial violence.

Existence of custodial violence by the police and other functionaries of criminal justice system is a slur on the fair name of our democracy. Many steps to eliminate the same have been suggested by the Supreme Court, National Human Rights Commission, National Police Commission and others, but never implemented. A disturbing factor, which runs common to almost all these recommendations, is the belief that tough legal and administrative measures against erring police personnel by itself would eliminate this problem. Custodial violence is not the organisational problem of the police alone but the is problem of entire nation. Elimination of the same calls for an holistic approach. We should create a climate in Indian society to change the mindset of the people approving the custodial violence by the police. An environment where Human Rights of all citizens is respected is necessary to enforce the legal and administrative measures. Dealing with the problem in isolation with the use of only punitive measures would drive the problem underground. In vast country like ours, change in police attitude towards custodial violence should be brought about with a change of heart. This calls for attitudinal change in society and police personnel.

GOVERNMENT SHOULD PROCLAIM AN OFFICIAL POLICY TO PROTECT AND NURTURE HUMAN RIGHTS

The attitude of all national political parties, the Central and State Governments towards human rights is ambivalent and lukewarm. When confronted with serious law and order and internal security problems, governments either encourage or turn a Nelson’s Eye to Human Rights violations. This sends a wrong signal to the rank and file that illegalities have the official backing. When some of these become the subject matter of probe by the Courts and the NHRC, police personnel expect the Government to bail them out. The latter cannot help as what has been done is against the Law of the Land. The forces feel let down by the Government and their morale goes down.

Secondly, the unconscionable delay on the part of the Government of India to accede to the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment sent out wrong signals about the commitment of the Government of India to the cause of upholding Human Rights. It took NHRC over two years to persuade a reluctant Government to see the wisdom in accepting this non-controversial and humanistic convention.

There is thus an urgent need for the Governments of India and the States to proclaim an official policy statement that Human Rights of citizens will be protected at all costs and with all the might of the State and custodial violence will not be countenance. In the Golden Jubilee year of our Freedom, such a proclamation will be most appropriate.

This should be followed up with practical measures of providing necessary financial and administrative support to the NHRC and the State Human Rights Commissions to enable them to function effectively.

NEED TO SENSITISE PUBLIC AGAINST ACCEPTANCE AND ENCOURAGE-MENT OF CUSTODIAL VIOLENCE BY POLICE

One of the prime causes for the existence of custodial violence is its acceptability by the society and tacit approval. People should be made aware of the basic human rights concepts and appreciate the concepts of Rule of Law and the presumption of innocence. They must realise that the use of violence against fellow citizens accused of crime without giving a reasonable opportunity to defend themselves is against all cannons of jurisprudence and justice and has no place in a liberal democracy. A well organised massive campaign in the Print and Electronic Media, Films and Theatre should be launched to educate the public about human rights. Cases of miscarriage of justice where innocent persons suffered due to lack of reasonable opportunity should be highlighted. It is unfortunate in our country Human Rights activists and civil liberties organisations adopt a reactive and negative attitude in this regard. They seem to feel that ‘police bashing’ would serve the cause of human rights. They conveniently forget that unless the society changes its attitudes towards this problem, nothing can be achieved. They should also work for creating an awareness for human rights among the masses. In the curricula and academic programmes of all educational institutions adequate stress should be laid on human rights and the principle that Rule of Law is the rock bed of a democracy. If this campaign succeeds, one of the main supports for police to indulge in custodial violence will disappear.

NEED TO ENSURE QUICK JUSTICE

Justice delayed is justice denied. Safeguards provided against the miscarriage of justice in legal procedures are being exploited by vested interests with the assistance of interested members of legal fraternity and a pliant judiciary. When people find that legal infirmities, procedural safeguards are being exploited shamelessly and enormous delays caused by a sluggish judiciary enable the wrong doers to go Scot free, they lose faith in the efficacy of our legal system. While it is argued that justice hurried is justice buried, the impact on the common man of delays in Courts should be clearly understood. Many reforms in law and procedures to accelerate the pace of disposal of cases in Courts have been suggested in the past by many learned people including Hon’ble Justices of Supreme Courts. But all of them remain unimplemented. When people lose faith in the judicial system to render justice, they look to alternatives to get justice. Often to them custodial violence by police suggest itself as a panacea. The involvement of police in civil litigations, marriage disputes, property disputes, trespass cases etc. are the result of this. Police use the powers given to them by law under the criminal justice system to indulge in these. Naturally this leads to corruption and custodial violence. It should be realised that the apparent success of Peoples War Group in Andhra Pradesh and similar outfits elsewhere in rural areas is mainly due to the fact that the rural people are unable to get prompt justice for their problems. Most of their problems are of a civil nature and resolving them is known to be time consuming in Courts of Law. These political violent groups offer them an alternative of rough and ready justice. Since the complainants are from the deprived sections of society and aggressor parties are from affluent sections of society, these violent groups try to justify their action on ideological grounds. This is a dangerous trend undermining the foundations of our democracy and should be reversed forthwith.

Laws affecting social order often lack teeth and effectiveness. When rowdysm, goondaism, protection rackets, eve teasing, trespass etc. go unpunished or lightly punished, people lose faith in the judicial process. These laws are to be made more effective. Unless this is done, public would not only encourage police to teach a lesson to these bad hats through custodial violence but may themselves indulge in violence to deal with these elements.

LIMITING THE SCOPE OF ARRESTS

Everyday, thousands of people are arrested by the police for violation of a plethora of legislations. This has been made possible due to the fact that almost all legislations have made their violations cognizable by the police enabling them to arrest citizens without a warrant. Arrest is serious infringement of the Fundamental Right of personal liberty of the citizen and should not be resorted to lightly. A complete review of all legislations empowering police to arrest without a warrant should be undertaken by the Law Commission to reduce the scope of arrest by the police. This should also be applied all other enforcement agencies. This step will go a long way in reducing occurrences of custodial violence.

ADMINISTRATIVE MEASURES

Often people opt for police service for the wrong reason of wielding coercive authority over fellow citizens. These types indulge in wanton violence on the people. There is need to prescribe psychological screening at the pre-induction stage to weed out persons with psychological problems and tendencies towards violent behaviour, sadism etc. Recruitment to police service should be at a very early age preferably under 21 years, so that their attitudes towards human rights and the need to serve the people courteously can be properly moulded. Unfortunately, with various provisions for reservations and age concessions for many groups, now a days we get police recruits who are over 30 years of age. It could be realised without must difficulty that at this ripe age, their attitudes have already been well set and it will be well neigh impossible to change them.

At present, the main thrust of police training is on the development of professional skills. Very little time is spent on inculcating proper attitudes. Inputs on human rights, Police Code of Conduct enunciated both by the UNO and the Government of India, the illegality of the custodial violence, principles of lawful and ethical policing etc. receive no or very little attention during training. Thus, new recruits to police service lack a strong moral and ethical foundation. When they are not aware of the egalitarian principles, it is unrealistic to expect them to eschew custodial violence.

In a highly structured and hierarchical organisation like police, the rank and file emulate the standards set by the police leadership. Unfortunately, even today at the higher echelons of police service there is little support for the principles of lawful and ethical policing and human rights. This has been borne out by a research study (1992) conducted by Ms.Sheela Barse of Mumbai. When no effective action is taken by their superiors in reported cases of custodial violence, the rank and file assume that this illegality has the support of their superiors. The tyranny of statistics, which is one of the causes for custodial violence is perpetrated by supervisory officers. Unless the supervisory officers make it clear to the rank and file that good ends cannot be achieved through bad or illegal means and they would judge their performance by the quality of work and not by the quantity, custodial violence cannot be eliminated. The National Police Commission has also stressed this aspect.

Police personnel work under severe hardships with inadequate pay, low social esteem, abominable living conditions, harsh working environment and ever present risk of losing their lives. These collectively dehumanise and brutalises police personnel. With enormous power at their disposal, with hardly any supervision at their exercise, a dissatisfied and disgruntled policeman takes a dim view of the society and when he gets an opportunity takes it on the society with a vengeance. The need to provide congenial conditions for living and working for the police has been stressed by the National Police Commission as well as by the NHRC but no one seems to bother about them. The truism that you get the police you deserve works in this case. Custodial violence is only the outward manifestation of serious internal turmoil

Bulk of the arrests are made in Cities and Towns. It is possible at least in these locations to reduce the occurrence of custodial violence by organising proper arrangements to look after the arrested. We suggest creation of Central Reception Facilities for all those arrested in Cities and Towns. Arrested should be brought to these facilities where there will be a senior police officer and a medical officer on duty. The arrested person will be examined for any injuries and a record will be kept and treatment would be given to him on the spot. Where there is a trauma or psychological problem psychiatric help will be made available. Complicated cases will be promptly referred to bigger medical establishments for treatment. All arrested persons should be given a card/pamphlet in vernacular indicating his rights. If he is an illiterate, this should be read over to him. The arrested will be thoroughly searched and all personal items and items with which he could cause harm to himself will be removed and recorded, kept in safe custody to be returned to him under proper acknowledgment when he leaves the facility. All interrogations would be held only within the facility and the senior police officer in-charge would be responsible to ensure the safety of the arrested. A duty judicial magistrate will be available round the clock nearby and whenever confessions are to be recorded the arrested will be produced before him. Once the Central Reception Facility has been established, there would be no need to have separate lock-ups in Police Stations in urban areas. All arrested persons will directly brought to this facility. Meticulous record of movement of arrested persons, the officers conducting the interrogation, the duration of interrogation etc. should be kept.

While implementation of these positive measures may enable the police organisation to eschew custodial violence, there will still be some black sheep who may indulge in it for their personal ends. To deter them following steps are essential.

Police should faithfully implement the guidelines given by the Supreme Court of India in respect of arrest Failure to do so should be punished severely.

CHANGES IN LAW

To have a deterrent effect on policemen, the NHRC and the Indian Law Commission have suggested changes in law regarding presumption of guilt in respect of grievous injury received while in police custody and removing the need to obtain sanction to prosecute police personnel when custodial violence has been clearly established in a judicial enquiry. The National Police Commission suggested making judicial enquiry mandatory in the cases of custodial grievous hurt, rape and death. NHRC has suggested that the monetary compensation paid to the victims of custodial violence should be recovered from the police officers concerned.

RESPONSIBILITY FOR PREVENTING CUSTODIAL VIOLENCE SHOULD BE FIXED ON SUPERVISORY OFFICERS

Close and effective supervision by senior officers of the working of Police Stations would prevent much of the custodial violence. Surprise visits and inspections by senior officers have been given up. Senior officers are not accessible to the general public. Whenever custodial violence occurs, usually the responsibility shifted to the junior most police functionary. There is no accountability on superior officers including Circle Inspectors. Administratively, responsibility for taking all reasonable steps to prevent custodial violence should be fixed on supervisory officers. Their failure should be reflected in their Annual Performance Reports (ACR). To start with, this should be tried in compact jurisdictions like Cities and Towns.

We believe that with the implementation of these steps occurrence of custodial violence will be minimised.

(The author is formerly Director General, CRPF and NSG)

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