How to prevent custodial violence

Almost two years after the custodial killing of Jayaraj and Bennix in Tamil Nadu, recent custodial deaths in the state have yet again brought attention to the endemic violence in police custody. As per the National Crime Record Bureau (NCRB), 998 people died in custody in India between 2011 and 2020.

While the legal framework exists to prevent custodial violence and bring accountability, there are inadequacies and limitations both in the law and in its implementation. More than 25 years since India signed the UN Convention against Torture, it is yet to ratify the convention. While the Supreme Court (SC) has outlawed torture, in the absence of a domestic anti-torture legislation, it is difficult to prosecute perpetrators of torture. Further, the gaps in the implementation of constitutional and statutory safeguards for an arrestee — the right to legal representation, right to medical examination, right against self-incrimination, duty of the police to inform the family, production in front of a magistrate within 24 hours of arrest — make persons in police custody more vulnerable to violence.

Beyond these legal safeguards, various bodies have flagged shortages in the police, long working shifts and its psychological impact on their functioning; lack of training and orientation of police personnel; inadequate capacity of forensic infrastructure, and political pressure to quickly “solve” cases as contributing factors.

Systemic issues need redressal, but without acknowledging and addressing the culture of impunity and the lack of accountability, custodial violence will not abate. The limitations and inadequacies of the law coupled with illegal practices allow the police to perpetrate violence and evade consequence.

One of the biggest challenges in custodial violence cases is lack of evidence. This is because police officers do not come forward as witnesses against their own. To address this, the Law Commission recommended reversing the burden of proof in custodial violence cases — presume that the death or injury was caused by the officer having custody and make it the burden of the police to disprove this. Almost four decades since this recommendation, the burden of proof remains with the prosecution. A recent SC judgment mandated the installation of CCTVs in police stations. This has the potential to deter violations in police custody and also record violence, if perpetrated.

Another critical aspect in making the police accountable for torture is accurate documentation of the injury marks of the arrestee. While the law mandates a medical examination of the accused immediately after arrest, and every 48 hours while in custody, medical reports often do not reflect the true physical condition of the arrestee. This can be attributed to the incompetence of medical professionals in detecting torture marks and the fear to document evidence against the police.

Custodial violence is the consequence of unbridled power at the hands of the police. Unless magistrates ensure all constitutional and statutory safeguards are actualised, oversight bodies such as the police complaint authorities and human rights commissions show the tenacity to conduct effective inquiries, and judicial enquires post death are conducted scrupulously as per procedure, the police will continue to get away with murder.