Custodial Torture and Police Brutality in India

Kolkata police Commissioner Anuj Sharma IPS visit the containment zone at the north Kolkata Telengabagan area after state government full Lockdown all containment zone in West Bengal
Kolkata police Commissioner Anuj Sharma IPS visit the containment zone at the north Kolkata Telengabagan area after state government full Lockdown all containment zone in West Bengal © picture alliance / NurPhoto | Debajyoti Chakraborty

In the Indian state of Tamil Nadu, P Jayaraj and J Fenix were subjected to torture in judicial custody and they succumbed to their injuries after two days. They were arrested for keeping their small mobile phone and accessories shop open just 15 minutes beyond the state government imposed curfew. The deaths have caused outrage on social media in the country and hashtags like #JusticeforJayarajAndFenix were trending on Twitter and Instagram. Celebrities like the actor Rajinikant have also contributed and people are demanding the disempowerment and defunding of police. But this is not new for post-colonial India as a vast number of Indians face custodial brutality and till date, there is no bill against custodial torture in the country.

In post-independence India, there are two distinct channels for the protection of citizens against custodial torture; the legal regime and judicial precedents. The Constitution of India, Code of Criminal Procedure (CrPC) and Indian Penal Code form part of the legal protections for persons under arrest against torture. The most important judicial precedent is D.K. Basu vs. State of West Bengal (1997) which enumerated eleven key steps to be taken by the police and associated stakeholders towards the protection of persons under arrest or in judicial custody. The Law Commission of India has, on many occasions highlighted the importance of implementing the norms from the D.K. Basu case and has recommended amendments to be made in police operating procedures and associated laws to affect positive change. Some significant incidents of custodial brutality are the blinding of 33 prisoners in Bihar in October 1979, the torture of Maya Tyagi, a 26 year old pregnant woman, in Uttar Pradesh in 1980 and the attack on a Chief Judicial Magistrate in September 1989 in Gujarat are illustrative of the impunity with which police forces have operated.

The impact of COVID-19 has been felt at all layers of Indian society, no less the police personnel. As essential services, the police in India have been at the front line of enforcing the state-ordered lockdown. This has no doubt further stretched the already overburdened capacity of the police. However, one cannot ignore the impact that poor training and lax supervision have been systemic issues plaguing Indian police forces which have contributed to the poor quality of their response.

A couple of weeks after India went into lockdown and started witnessing police brutality, the FNF partner Commonwealth Human Rights Initiative (CHRI) drafted guidelines for police on respecting human rights while enforcing the lockdown. In the guidelines, CHRI proposed that every police organization needs to develop a holistic Lockdown Management Plan to frame the policing approach, define key principles and provide practical guidance for all aspects of the operational response. CHRI also developed a video, in which Jacob Punnoose, Retd. IPS and Former State Police Chief, Kerala, N. Ramachandran, President of Indian Police Foundation and Former Director General of Police and Meeran Chadha Borwankar, Former Commissionar of Police, Pune, highlighted some important measures for the police. This video has been adopted by some police academies in India.

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CHRI’s police team has been working on demanding rights-based police reform and the strengthening of police accountability. They work with the police, governments, independent institutions, and civil society actors to improve policing, advocating for human-rights based, accountable police practices. The Friedrich Naumann Foundation for Freedom, South Asia (FNF South Asia) has been supporting CHRI’s work for more than 20 years.

Devika Prasad, Programme Head of Police Reforms, CHRI, told HuffPost India during an interview that there is such drastic difference in the behaviour of the police officials due to lack of preparedness. The Ministry of Home Affairs could have issued an advisory to all police organisations as soon as the lockdown was announced on the situation can be better handled while using minimum force.  

CHRI is working on a short report which will document types and patterns of police brutality in relation to "enforcement" of the lockdown, based on compilation for the entire lockdown period of media reports of brutality, ranging from beatings, summary punishments, extending to deaths that occurred due to police actions. This will also include a description of the kinds of people/communities affected by the police brutality, migrant workers as one example. The report will be published on FNF South Asia by the end of July 2020.