Cops frequently flout Supreme Court rules intended to prevent custodial deaths, says HRW report

Indian police often flout Supreme Court rules intended to prevent custodial deaths and “routinely violate” domestic and international laws around arrest and detention, says a new report by Human Rights Watch (HRW).

At least 591 people died in police custody in India between 2010 and 2015, according to the National Crime Records Bureau, of which the authorities reported 97 custody deaths in 2015. The police records list only six as due to physical assault by police; 34 are listed as suicides, 11 as deaths due to illness, nine as natural deaths, and 12 as deaths during hospitalisation or treatment.

“While investigations were ordered by courts, human rights commissions, or other authorities in some cases, Human Rights Watch is not aware of a single case in which a police official was convicted for a custodial death between 2010 and 2015,” the 114-page report, titled 'Bound by Brotherhood: India’s Failure to End Killings in Police Custody' and released on 19 December, states.

 Cops frequently flout Supreme Court rules intended to prevent custodial deaths, says HRW report

Representational image. AFP

It is based on interviews of more than 70 witnesses, family members of victims, lawyers, civil society activists, and journalists in West Bengal, Tamil Nadu, Telangana, and Uttar Pradesh, and the cities of New Delhi and Mumbai, and investigations into 17 custodial deaths between 2010 and 2015. It found that in each of the 17 cases investigated the police did not follow proper arrest procedures, making the suspect more vulnerable to abuse.

“Police abuses continue despite changes in laws and guidelines and the promise of police reforms since 1997,” the international rights group says.

The compliance with the six binding directives to the central and state governments to undertake police reforms as contained in the landmark Supreme Court decision of Prakash Singh versus Union of India remains “low”.

According to government data, in the vast majority of cases investigated — 67 of 97 deaths in custody in 2015 — the police either failed to produce the suspects before a magistrate within 24 hours as required by law, or the suspects died within a day of being arrested.

Supreme Court rules set out in the case of DK Basu versus West Bengal in 1997 and incorporated into the amended Code of Criminal Procedure call for the police to identify themselves clearly when making an arrest; prepare a memo of arrest with the date and time of arrest that is signed by an independent witness and countersigned by the arrested person; and ensure that next of kin are informed of the arrest and the place of detention. However, in practice, these rules have not prevented the worst of custodial abuses, the report argues.

Moreover, although the law stipulates an inquiry into every custodial death by a judicial magistrate, these were conducted in only 31 of the 97 custodial deaths reported in 2015. In 26 cases, there was not even an autopsy of the deceased. Last year, police registered cases against fellow police officers in only 33 of the 97 custodial deaths. The Supreme Court has often said that bringing evidence against the police in case of custodial crimes is an uphill task because the police feel “bound by their ties of brotherhood”— the report quotes Satyabrata Pal, a former member of the National Human Rights Commission (NHRC).

In some of the cases, inquiries are conducted by an executive magistrate — who are part of the executive branch of government like the police and hence more susceptible to pressure — instead of a judicial magistrate.

“The state relies on Section 197 (immunity from prosecution to all public officials for actions they undertake in carrying out their official duties unless the government approves the prosecution) heavily to protect the police officials,” lawyer Trideep Pais told HRW. “They are on the same side.”

“Activists are concerned about NHRC’s April 2010 notification to state governments that in cases of custodial deaths where no foul play was alleged, it was not mandatory for the inquiry to be conducted by a judicial magistrate because victims’ families are often unable to challenge police accounts of deaths in custody,” HRW says.

Though the NHRC — established in 1993 — has set guidelines for arrest and detention it remains beset with problems that limit its capacity to deal with custodial abuses.

The investigation division of the NHRC — that reviews cases of custodial deaths — is composed of serving police officials who do not have additional human rights training and tend to protect their erring colleagues.

The 2006 amended Protection of Human Rights Act remains problematic in certain aspects. The amended Act does not include lifting the one-year “statute of limitations” on NHRC investigations — a time limit that has been termed as “unrealistic” by rights groups given the ignorance of many victims of their rights under the Act and the difficulties that face them in obtaining counsel.

The national human rights body is still not authorised to investigate human rights violations by the armed forces and cannot independently make public their findings until the report is placed before Parliament. It is “tightly controlled” financially by the central government and reports to the Ministry of Home Affairs — “the same governmental department responsible for internal security, including police and other law and order officials, therefore undermining its independence”, among other constraints of the NHRC listed by the HRW.

India has ratified the International Covenant on Civil and Political Rights and signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — both of which prohibit torture and other ill-treatment by law enforcement authorities under international human rights law.

The 2016 report has listed a number of recommendations addressed to the Indian Parliament, state and central government ministries, police, civil society organisations, foreign donors and general public, as listed by the international rights group.

The last report on India was published in 2009 by HRW titled Broken System: Dysfunction, Abuse, and Impunity in the Indian Police.

Updated Date: Dec 22, 2016 15:13:27 IST