CUSTODIAL TORTURE: CAN YOU TRUST THE POLICE?

“Injustice anywhere is threat to justice everywhere”- Martin Luther King

In our daily lives we sometimes totally ignore many important topics but slowly or gradually this
ignorance becomes acceptance and everything looks very normal. After the death of George
Floyd in the USA and the custodial death of Jayaraj and Fenix at a police station in Tamil Nadu
rose a lot of concern and also a new debate have been started with regard to the 3rd degree
torture done by the police. The death of George Floyd in the USA resulted in heavy protests due
to which Congress has decided to pass a Police Reform Bill and along with this it is discussed to
maintain a National Database which will register all police misconducts.

In India as well, a certain Anti-torture Bill was discussed in 2010 which has been discussed in
the Parliament many a times but has not been passed yet. Globally it was discussed for the first
time by the United Nations on UN Convention against Torture in 1975. Since India being the
member of the United Nations, if the UN passes any law, and for that to apply in India as well,
the Parliament has to pass a law regarding the same. So, a bill was presented in the Lok Sabha to
make the UN Convention against Torture, 1975, a law naming it as Prevention of Torture Bill,
2010.

Under Prevention of Torture Bill, 2010, if any public servant commits torture on any person who
is in his custody, then that public servant will be punished under the bill. The objective of the bill
is to provide punishment for torture inflicted by public servants or any other person inflicting
torture on anyone with the consent or compliance of any public servant. The bill defines
“torture” as an act which is committed by a public servant or by any person subordinate to a
public servant, causing grievous hurt or danger to life, limb or health on anyone, be it mental or
physical.

Further the bill proposes punishment of minimum 3 years which may extend up to 10 years and
fine, for torture inflicted for the purpose of extorting confession, or for punishing or on
discrimination on the ground of religion, race, place of birth, residence, language, caste or
community or any other ground. This bill is still pending in the Parliament and is yet to be
passed.
CUSTODIAL TORTURE

The word ‘torture’ can be described as infliction of physical or mental pain, hurt or discomfort
by one or more person to force another person to yield information, to get confession or any
other reason.

Custodial torture is a naked violation of human dignity. It has become a common phenomenon
and a routine practice of interrogation or questioning by the police these days. These include the
use of 3rd degree methods to get confession, custodial deaths, sexual harassment and custodial
rape, fake encounters, etc. Human rights activists have been raising voice against all such
practices since a long time, but nothing has changed yet.

Some of the examples of custodial torture talks about the death of Maulvi Mujahid, the accused
of Lucknow court blasts, who died in the custody of the police when he was being transferred
back to jail after his appearance in court. The incident of Maulana Asad Raza also talks about the
custodial torture of the police officials where a Muslim Cleric of Muzaffarnagar who along with
almost 100 of his students was stripped naked and beaten on his private parts by the police after
the eruption of violence in the city during a protest against the CAA and NRC and there are
many more of such incidents of custodial torture by the police.

PUNISHMENT AND TRAINING OF THE POLICE

The NCRB data shows that even after registration of so many cases against the police personnel
for violation of human rights which includes custodial deaths or killings and illegal arrests or
detentions, not even one single police officer was punished for the crime which was reported
against them.

The reports also show that more than 10% of the police personnel never received any sort of
human rights training. Even the officers who received the training in human rights said that it
was only at the time of joining the police force which is clearly not enough. Along with the lack
of training it is also found that the police in India suffer from illegitimate political interference,
inadequacies which lead to such behavior towards the people in their custody.
Police Reforms

 Gore Committee on police training:

The Committee recommended adding a greater sensitivity and understanding of human
behavior and human rights in police training.

 National Police Commission, (1977-81):

The Committee recommended insulating or protecting the police from illegitimate
bureaucratic and political interference and biases.

 Padmanabhaiah Committee, 2000:

This Committee recommended providing greater training in soft skills such as
communication and counseling the constables and the police force in general as they need
to deal with the public and society on a daily basis.

The Hon'ble Supreme Court in Prakash Singh v. Union of India, 2006 directed the government to
constitute:

• State Security Commission: in every state to ensure that the state governments do not
exercise unjustified or unwarranted influence or pressure on the police personnel and to evaluate
the performance of the police.

• Police Establishment Board: to decide the transfers, promotions, postings and other
matters related to service for the officers ranked below Deputy Superintendent of Police (DSP).

• Police Complaints Authority: at both state and district levels to inquire into complaints of
serious misconduct and abuse of power by the police officers.
CUSTODIAL RAPE AGAINST WOMEN

The Indian Penal Code, 1860 defines 'custodial rape' under Section 376(2) (a), (b) and, (c).
Custodial Rape is rape committed by a public servant on a woman in his custody or in custody of
a subordinate public servant. The Mathura rape case is a horrendous incident of custodial rape in
India. The case that made the government to wake up from its long slumber. It reflected the
patriarchal biases of the entire legal system. The incident of Mathura Rape Case opened the eyes
of everyone and created awareness of women's legal rights issue, oppression, and patriarchal
mindsets in the society.

In the late 1970s and early 1980s, the issues of custodial rape came into light when a chain of
events of women being raped in the in the custody of police came into picture. The concept of
custodial rape not only includes security forces but also hospitals, mental institutions, shelter
homes and juvenile homes. The punishment for custodial rape is rigorous punishment of at least
10 years and fine or both.

Landmark Judgements On Custodial Rape:

TukaRam v. State of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810, the famous Mathura
Rape Case that has been one of the landmark cases of custodial torture talks about a girl named
Mathura and also the injustice delivered to the girl.

Mathura, the victim lived with her brother and was employed as a domestic worker with a
woman named Nushi. Mathura and Ashok (Nushi's nephew) had sexual relations and they
wanted to marry each other. This they came to knowledge of Mathura's brother and he lodged a
police complaint to the local police claiming that Mathura was being kidnapped by Ashok and
his family members. The officials started their investigation and brought Ashok and his family to
the police station. Later Mathura was raped by two policemen.

The case came for hearing in the court and it was stated that since Mathura was habituated to
sexual intercourse therefore her consent was voluntary and these circumstances only proved
sexual intercourse and not rape. The medical examinations stated that her hymen revealed old
ruptures but there was no bodily injury found in the examinations.

Later the High Court found the accused guilty and sentenced him but the Apex Court reversed
the decision of the High Court and acquitted that police constable Ganpat and Tukaram stating
that no penetration was found and also showed no marks of bodily injuries which showed that
Mathura did not resist and consented to the officials.
In Maya Tyagi, Meerut v. Ito, Baraut, the victim was travelling in a car with her husband
Ishwar Tyagi and two of her husband's friends when their car broke down near Baghpat police
station. Then Maya's husband along with his two friends left to get the tyre repaired. After they
left, a police officer in plain clothes came in and molested Maya. When Maya's husband saw
this, he slapped the police official.

Then the police officer returned with 10 policemen. Then they shot Ishwar Tyagi and his two
friends who accompanied Maya Tyagi and died there. Maya was then dragged out of the car,
stripped naked and paraded her through the marketplace. When she resisted, they attacked her by
inserting the police stick into her. Later, the officers had taken her to the police station and
subjected her to brutal torture and false accusations were charged on her, which stated that she
was a dacoit's mistress and was covering up for their killings.

Later during the inquiry, the policemen tried to justify their actions by calling her a woman of
'easy virtue' as her marriage to Ishwar Tyagi was her second marriage.

On the allegations put on Maya Tyagi, her husband and two of his friends the Court held that all
those allegations were false as they were not dacoits and were falsely framed by the police
officials. It was found that all the torturous incidents told by Maya Tyagi upon her by the police
officials as true. However, since there was no penetration, the police officials were acquitted.

These cases brought out many changes in the custodial rape laws in India which are:

• The concept of custodial rape was added.

• The burden of proof shifted upon the accused and has to prove the women's consent.

• A rigorous punishment of 10 years or life imprisonment or fine or both was prescribed.

• Failure to assist rape case victims by government officials came under the purview of
punishable offence. Under section 166A of IPC, punishment of up to 2 years imprisonment is
prescribed for a public servant disobeying the law.

• Even after having all such provisions in place, women in these vulnerable conditions are
usually forced to live with the trauma or suffering and continue with their lives as they see no
hope in pursuing any legal action or help against the men in uniform who take oath to protect
them and the society. The sad reality is that more than half of such cases go unreported.