Custodial Violence

Mains Marks Booster     3rd August 2023        
Samadhaan

Quote: Threat to Human Rights is the highest in Police stations. Custodial torture and other police atrocities are problems which still prevail in our society. In spite of constitutional declarations and guarantees, lack of effective legal representation at the police stations is a huge detriment to arrested/detained. - Ex CJI N.V.Ramana 

Context: 

  • Riots erupted in the cities of France after Police action on a youth who jumped the Red signal.
  • Killing of criminals Atiq Ahmed and others in Police custody
  • As per the report of the National Crime Records Bureau (NCRB), the number of deaths in police custody between 2001 and 2018 was 1,727. But only 810 cases were reported, 334 were charge-sheeted out of which just 26 policemen were convicted. 

Custodial Violence

  • Custodial violence primarily refers to violence in police and judicial custody. It includes death, rape and torture.
  • Aspect of Custodial Violence - Torture:  Mental & Physical, Sexual Harassment, Rape, Death

Is Torture Justified in Certain Cases

  • According to the National Crime Records Bureau (NCRB), a total of 11,419 custodial deaths were reported in India between 2016-17 and 2021-22.
  • Utilitarian view says that an act is right if it brings about the greatest good for the greatest number. For example, 
  • If someone has kidnapped a child and left him/her to die somewhere. In this case, If torturing someone is the only way to find out the whereabout of the child, then it might be the right thing to do.
  • In similar case, if torturing a terrorist uncovers a plot, then it might save many lives.

Categorical Imperative

  • As per Immanuel Kant’s theory, not hurting others is a categorical imperative, which all human beings must follow throughout their lives. 
  • Torture is unjustified as it consists of intentional infliction of severe physical, mental or emotional suffering on the other person.
  • Immanuel Kant also said one should never treat people merely as instruments; and just as means to one’s goals.  
    • Ex. There's a difference between a tape recorder and a person. If you’re having trouble getting information out of a tape recorder you can pound on it or kick it. This may not be very effective, but it isn’t immoral.’ 
    • But if you want to get information out of a person, you should convince them to tell you what you want to know.

Human Rights approach

  • Torture of human beings consists of curtailment of individual autonomy. Given the moral importance of autonomy, torture is also unjustifiable on this account. 
  • It is sometimes also used to suppress independent thought and make people comply with the more accepted beliefs of the society.  
  • Torture treats the victim as a means to an end and not an end in themselves. It often explicitly dehumanize their victims to make it easier to torture them. 
  • It violates the rights and human dignity of the victim, including the legal right to remain silent when questioned.

Consequentialist Arguments against Torture 

  • Torture is a slippery slope: Each act of torture makes it easier to accept the use of torture in the future. 
  • Ineffective interrogation tool: It does not provides guarantee that the person who is being tortured will give the correct information because under torture a prisoner will eventually say anything to stop the pain.  
  • Damages the humanity: Those who carry out torture are likely to become brutalised by their acts, and desensitised to humanity.
  • Institutional degradation: Torture damages the institution that carries it out. It damages the reputation and moral authority of the institution. Its use is likely to produce internal dissent among the members and so damages the integrity of the institution.
  • Use as Propaganda by Non state actors: Torture provides ‘the enemy‘with something they can exploit for propaganda. For example, the terrorist organizations like ISIS use state brutalities as an excuse to radicalize the youths to pick up arms. 

Way Forward: Though, torture is unjustified from many ethical perspectives, but there may be situations when the unity and integrity of the State is under threat or the lives of innocent people may be in danger.

  • Under such situations, a law enforcement officer or a person with noble intentions might feel compelled to undertake any means necessary to protect the country or to save their lives. 

Following efforts may be adopted -

  • Ratification of UN Convention Against Torture. It means that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors. 
  • Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty. 
  • Access to Prison
  • Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed. 
  • CCTV cameras should be installed in police stations including in the interrogation rooms. 
  • Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measures against custodial torture 
    • This has also been suggested by Supreme Court in its landmark judgment in the DK Basu Case in 2015
  • Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel should be criminally prosecuted.
Conclusion: Torture is always wrong, and it should always be illegal. Those who torture put themselves at risk of legal punishment. But there may be cases where they can show good reasons why torture was necessary. Hence, custodial torture must always be done as per rule of law. It should be used as a tool in order to ensure safety and security of citizens and nations.
Samadhaan