The Asian Human Rights Commission (AHRC) welcomes the decision of the government of Kerala to initiate action on reported custodial deaths in police stations. However, while some may consider this to be a bold step by the state government–contrasted by feet-dragging in the central government of India on police abuses–in fact it is but a small first step towards a bigger goal: the end of all custodial abuse.
Custodial death comes after custodial torture. In Kerala, as elsewhere in India, torture in custody is at present treated as an inevitable part of investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess. The AHRC has documented hundreds of cases from around the country that speak to the crudest and most primitive forms of “criminal investigation” being used daily: these are but a tiny fraction of the total number of incidents.
The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job properly. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalising and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India. Where a torture victim must wait for years in hope that a judge may one day take up her case, while meanwhile the perpetrator is being promoted, the very concept of justice is undermined.
Of equal concern is the absence of an independent agency to investigate. Custodial torture cases are treated the same as other criminal cases, which all but nullifies the possibility of an effective and impartial investigation. Not surprisingly, ordinary people have no confidence in the capacity of the police to investigate alleged torture committed by their peers and colleagues.
The police in Kerala, as elsewhere in India, generate intense fear among the public. After several recent cases in which people died from accidents while being chased by police officers, the Director General of Police instructed officers to avoid creating panic while arresting criminals. Although it is true that police need better training for proper arrest of persons, the life-threatening panic caused by a pursuing officer will not be diminished through instructive circulars or minor reforms. Decades of police violence have left an indelible print on India’s national consciousness: assault is a normal part of arrest; torture is common and brutal. An ordinary person fears arrest at least as much as he fears death.
The difference between custodial death and custodial torture, then, is not the incidence of abuse but the incidence of reporting. Custodial death gets reported; custodial torture does not. The victim of custodial death will have no part in reports of his demise; the victim of custodial torture will not dare speak out for fear of the consequences, and out of knowledge that it will do no good: what investigators, witnesses or courts will there be capable of ensuring justice?
The best way to prevent custodial death is to prevent custodial torture. The way to address one is to address both. How?
First, custodial torture must be made a crime. This could be brought in by way of a special law. The Chief Minister of Kerala a few weeks ago publicly stated that the government is considering a review of the Kerala Police Act, again after increasing reports of custodial deaths. Opposition parties have also become vocal on custodial death and torture, although when in power they showed no inclination towards these topics. Here is a good opportunity. If Kerala’s politicians are serious about addressing these problems, they can take a united position and jointly pass a law to criminalise torture without delay. This would set a laudable precedent that could in turn be used to make calls on the central government of India for the same.
Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court–though not a complete remedy–should be applied without failure. Those who fail to comply must be prosecuted. The Kerala government has already promised that an officer in charge of a police station will be held personally accountable for any custodial death. This commitment must be extended to all cases of torture.
Thirdly, the public–and especially concerned professional groups, including rights groups and the media–must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.
Fourthly, the government and public of Kerala together must call for the central government to join the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture. Were that the case, 59 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.
The government of Kerala has taken a first step to address the incidence of custodial abuse in its police stations. It remains to be seen as to whether or not it will have both the stomach and foresight to tackle the problem wholeheartedly, rather than just halfheartedly. The Asian Human Rights Commission urges it to go forward, and calls upon all concerned persons in Kerala and beyond to canvass for a law criminalising torture and for its complete eradication through comprehensive and far-reaching measures which can serve as an example for the whole of India, and further afield.
