Sattankulam Custodial Deaths is a Sign of Complete Breakdown of law
Prof A Marx
The brutal torture and the resultant death of the father and son, Jayaraj (60) and Bennix (31) in Sattankulam , have once again exposed the lawlessness of some sections of Indian police. The way in which the father and son were arrested and tortured to death moves the heart of everyone who happens to know it.
The father and son were arrested not for any serious violation of law on their part.It is now revealed that the actual reason for the inhuman act on the part of the policemen was not the delay in closing their cell phone shop but their unwillingness to give mobile phones to the policemen for free. The rise of the public anger and international uproar has forced Tamil Nadu CM to transfer the case to the CBI.The state CB-CID is now investigating the case. Many policemen have been arrested.
Over the years NCHRO has been inviting the attention of both the central and state governments to the increase in custodial deaths throughout the country. As per the data available the NHRC has received 5,300 complaints of custodial deaths in police stations and prisons. But this data can only be a small fraction of the actual number of such cases. Even in such cases in which complaints are lodged only in very few cases the culprits are punished. According to another government report, between 2000 and 2018 the number of deaths in police custody is 1727. But the total no of police officials convicted for such custodial deaths are only a meagre 26, proving how difficult it is to punish the criminals in uniform.
There is an unwritten law in India that police are beyond the purview of law and they are not to be punished. The higher authorities always do everything to safeguard the uniformed killers from any punishment. Though the torture and killing in police stations and prisons are an open secret, the successive governments are not at all ready to move anything towards enacting a law that makes the police or prison officials accountable for any deaths in their custody.
We understand that the regular criminal laws are totally inadequate to fix the culprits in custodial deaths. The law commission has suggested that in cases of custodial deaths the burden of proof should be on the police to establish that they are not responsible for the death. But the law still requires that it is the prosecution that has to prove that the police caused the death.
The poor are the victims
Most of the people killed in custody come from poor and down trodden families. In our experience in HR activities we find that most often in cases of such custodial deaths the close relatives of those killed would weep and cry and request rights activists to do something to secure punishment for the horrible crimes at. But in the course of time due to poverty, police arms-twisting and public apathy they lose interest in pursuing the case.
But we should not forget one thing. In many deaths in custody the police men responsible for the deaths do not kill the victims intentionally. In the course of their brutal tortures the victims happen to die. They resort to such brutality just because they are sure that in case of death they won’t be punished. This could be avoided to a large extent if India enacts an anti- torture law. But unfortunately successive governments in India are adamant in not ratifying the UN Convention against Torture.
The SC in its judgements had laid down many measures to prevent torture and fixing accountability. (Joginder Kumar Vs State of UP – AIR 1994; DK Basu Vs State of West Bengal, WB 1997 –SCC 416). But they are ignored. The mandatory independent magisterial inquiry is also not followed in many cases. Only in 20% of the custodial deaths magisterial enquiries are done. As a colonial legacy we have still in our law that in case of custodial torture the officials responsible for that could be prosecuted only after getting the sanction of the government.
At least in two cases the SC has given clear instructions to be followed in the police station when a person is arrested. A memo of arrest should be prepared after the arrest and that should be signed by a family member of the arrested person or by an eminent person; the arrested person can have a relative or a friend in the station where he or she is kept..
A diary entry containing the details of the arrest should be made immediately after the arrest. The person being arrested can request a physical examination at the time of the arrest and the injuries if any should be recorded. The arrested person has the right to consult a lawyer. The arrested person must have a medical examination for every 48 hrs during detention in custody.
Of course the arrested cannot be subjected to any torture. Within 24 hrs of the arrest the accused should be presented before the local magistrate who should ask the arrested person weather he was subjected to any torture in the police station or elsewhere. If the arrested says that he was beaten in the custody he should be examined and if necessary a doctor should be consulted. But In many cases the arrested are not even presented before the magistrate within 24 hrs. Many magistrates just sign in the papers without asking anything.
1. The measures taken by the Madurai Bench of the Madras High Court was very crucial in putting the criminals on the dock. The state government was forced to give some compensation to the family of the victims and a government job to one of the family members.
2. Many people believe that the “Friends of Police”,a local group of informers and musclemen are also involved in the torture. There are many complaints about this “Friends of Police” from other quarters also. This should be dismantled immediately.
3. The Government of India should to ratify the UN Convention Against Torture without delay.
4. All the guidelines and the measures laid by SC to prevent torture in custody and to fix accountability to be strictly implemented in the future. In all cases of custodial deaths the mandatory independent magisterial inquiry should be followed strictly in future. At present prosecution of police officials in custodial torture requires the sanction of the government. This hampers investigation and trial.Put an end to this colonial procedure immediately.
5. Police force should be modernised. There should not be any place for torture in the investigation of crimes. The Sattankulam case is a classic example to prove that torture is an unwritten tool to extract “the truth” from the accused. Police are trained in a way that they always find sadistic pleasure in torture. The impunity it enjoys always encourages such excesses. It is time to put an end to this inhuman and uncivilized practice.