BY-ANANYA KUNDU
(HERITAGE LAW COLLEGE)
Introduction
It is often seen in movies how the society restores back its peace and happiness when the villain is arrested by the police and taken to jail. Since time immemorial, crime control has been one of the crucial duties of the administration. The contemporary idea of the society is to reform the minds of the criminals and allow them to rectify their mistakes in order to prohibit them from committing further crimes. As a result of which, various rehabilitative programmes have been introduced where rectification and reformation of the criminals are being organised. However, it is not as simple as it is seems. The administration of criminal justice has suffered major drawbacks and the victims of this pitfall are the ones behind the bars i.e., the prisoners. This article mainly focuses on the administrative system prevailing in India; the rights available to the prisoners and how are they deprived of them; and other challenges the prisoners face behind the bars.
Criminal Justice System in India
The criminal justice system of India is an age-old administration established during the British Rule in India. As IPS officer R.K Raghavan states in his World Factbook of Criminal Justice Systems that the administration of Criminal Justice in India is a legacy of the British Rule. It comprises of four wings, starting from making laws, executing them, adjudicating orders and decrees, and finally putting the convicted ones in correctional homes for reformative treatment. The four elements of the criminal justice system are as follows:
· Legislature- The highest authority vested with the power of making laws and regulations in India is the Parliament.
· Executive- The wing of the administration authorised to enforce and execute the regulations put forward by the Parliament mainly comprises of the local or state police.
· Judiciary- This branch of the administration, comprising of the lower and higher courts of the states and the Supreme Court are vested with the power to charge the accused, when found guilty, with crimes; to administer the process by which criminal responsibility is determined; and to interpret laws.
· Correctional wing- This mainly comprises of the prisons and other reformative and correctional centres where convicts are given a chance to rectify their mistakes and reform themselves into a better human-being to refrain from committing further crimes.
The legislative branch has not much to in crime regulation except making laws and orders. Apart from that, the other three organs are majorly responsible for controlling crime in the society. The police, bar, bench and correctional homes are major and inter-related components of the criminal administration. However, the success behind the criminal administration lies in the co-ordination of these three organizations. The criminal process includes a series of events starting with investigation, arrest, investigation post arrest, trial, plea, conviction and punishment to successfully conclude a case.
Police Administration
In a situation of need, danger or crisis, the helpless citizens look forward to the police department where the policemen are believed to be the most approachable and accessible organ of help. Police administration is entrusted to perform the fundamental duty of maintaining law and order where, as a consequence of these two, it is responsible for various other duties, functions, powers, etc. Major functions of this branch are maintenance of public order and prevention of crime. Police administration is the most omnipresent part of the entire governmental organization. However, keeping the present scenario in mind, several questions are raised on the roles and duties of the policemen. Are they worthy of the job? Are they really trying to be the kind of help and support they are supposed to be? Or, are they misusing their powers against these helpless citizens? All these unanswered questions create a dilemma in the psychology regarding the role of the police administration.
Prison Administration
In any civilization, a prison is a crucial establishment as no society is devoid of any crimes or criminal activities. In ancient times, prisons served as basic detention houses where criminals were kept in custody under strict administration and away from the rest of society, prisons were merely used to restrict and prohibit criminals from disturbing societal peace. Although, in the modern world, prisons are not used as detention houses anymore, but more as correctional homes where the aim is to reform, correct and rehabilitate these criminals. In recent times where prisons are not detention centres anymore, there is still the existence of fear in people’s minds regarding the prison.
Issues the prisoners are victims of:
Indian prison administration has been putting up with a lot of problems such as increasing population of undertrial prisoners, overcrowding, insufficient prison staff, lack of facilities such as health and hygiene, insufficient food and clothing, absence of proper care and treatment of prisoners, inadequate correctional methods, etc. since its existence. However, the major issues that stole the limelight are the problems faced by the prisoners. Sometimes, they are deprived of the rights guaranteed by the Indian Constitution. Sometimes, they are subject to immense brutality and torture which lead to death. There has also been reports of heinous assault and rape of undertrial women prisoners. These reports have exposed the darker side of the criminal justice administration and also shed light into its failure to establish a proper correctional institution.
Police brutality and Custodial Torture
Custodial torture varying from several forms of molestation to deaths caused by police for extortion of confessions through coercive means and insinuation of evidence are not new concepts. However, it has seen a hike between the years 2002 to 2007. These heinous methods of investigation and revelation of crime not only neglects an individual’s dignity and fundamental human rights but also subjects him to unjustifiable violence and torture.
In India, on an average, five prisoners die in custody on a regular basis while a handful of them succumb to torture in judicial or police custody. 2019 recorded 1606 deaths in judicial custody and 117 deaths in police custody, even though there has been no conviction of the alleged ones for torture in police custody between the years of 2005 to 2018. The National Campaign Against Torture, which provides a platform for NGOs working against torture in India, published a report highlighting how these government officials misuse their powers to use torture as a method to extort confessions and sometimes in order to exploit persecuted sections of the society.
India: Annual Report on Torture 2019 published by the National Campaign Against Torture revealed the techniques of torture exposing the extent of criminality in the police and jail administration. Ranging from kicking with boots on to pulling hair, custodial torture in various cases also goes down to barbaric extents. Two prisoners Gufran Alam and Taslim Ansari suffered hammering of iron nails into their bodies while Pradeep Tomar of Uttar Pradesh was stabbed with a screwdriver, also Yadav Lal Prasad of Punjab and Monu of Uttar Pradesh were subjected to electric shocks.
A case of custodial torture was reported in Sube Singh v. State of Haryana. The court received a letter from the petitioner claiming illegal detention, custodial torture and harassment of family members. The letter was later registered as a writ petition under Article 32 of the Indian Constitution. The State of Haryana and the Director General of Police were arrayed as the first two respondents and six Police Officers who were mentioned in the letter were arrayed as the third, fourth, fifth, sixth, seventh and eighth respondents respectively.
Dr. Ashwani Kumar, a senior advocate, a former law minister and a member of Parliament himself filed a petition on the grounds of right to life and liberty. In Dr. Ashwani Kumar v. Union of India the court held that custodial torture directly violates Article 21 of the Constitution, it is a crime against humanity and courts should cite and employ jurisdiction under Article 141 and Article 142 of the Constitution in order to protect human dignity which is absolutely a non-negotiable constitutional right.
Custodial Death
Police brutality is, without any doubt, practised as procedure to extract information and confessions of prisoners. It has led to the death of several undertrial prisoners. Succumbing to such harsh conditions, some of them even commit suicide. Subjected to such heinous torture, many prisoners could not make to the trials as well. Custodial death is adversely related to custodial torture and police brutality inside the prisons and correctional homes, rather, it is a by-product of such torture.
One of the landmark cases, the case of D.K Basu, Ashok K. Johri v. State of West Bengal raised a voice against such illegal and immoral act. D.K Basu addressed a letter to the Apex Court in order to gain attention to certain news published in the Telegraph regarding deaths in police custody. He further requested that the letter shall be treated as writ petition under PIL. Meanwhile, Ashok K. Johri also addressed a letter to the Chief Justice of India regarding the death of Mahesh Bihari from Aligarh in the police custody. This letter was also treated as a writ petition and was included in the PIL of D.K Basu. The court highlighted Article 20(3), Article 21 and Article 22 of the Constitution and laid down the guidelines to be followed by the police and prison administration while detaining a person charged for some crime.
Custodial Rape
A prisoner in custody of a person for some criminal offense or petty issues, is naturally at an inferior position. The latter one or the custodian under whose supervision the prisoner is locked up, has an absolute or higher extent of dominance with respect to the prisoner’s independence, mobility, food, contact with the world outside, etc. Such bond of command and vulnerability makes it the responsibility of the custodian to provide good care and protection to the prisoner held in custody. Under such circumstances, commitment of rape on the part of the custodian is a serious violation of that care and protection as the custodian takes immense advantage of his position and power over the prisoner.
The Indian Penal Code 1860 through its Section 376(2) clause (b) and clause (c), explains custodial rape. It stole a great amount of public attention during the years of 1970 and 1980 when the limelight fell under such incidents regarding rape of women in police custody. The women’s movement deployed against this heinous issue highlighting the power and position these government officials have not only over these detained prisoners but also over the ordinary citizens, especially the women.
Custodial rape created controversies all over the world in the landmark Mathura case, where Mathura a young orphan who was not even a prisoner, was raped by a police constable inside the police station. Medical tests revealed that her hymen had old ruptures, although no bodily injury was reported. The absence of such bodily injury made the Supreme Court reverse the decision of the high court which found the constable guilty, to eventually acquit the accused.
Fake Encounter
Fake encounter or extra-judicial killing is not an unknown theme in India. The history of the nation reveals the misuse of power by police and security forces in various scenarios ranging from fake encounters to put an end to revolts in Bengal in 1960 to stop the insurgencies in Punjab in 1980. Presently, the incidents of extra-judicial killings relate to national security offenses such as terrorism, in areas known for active conflicts such as regions of Kashmir, Manipur and the regions of national capital known for active Maoist revolts
.
It can be defensive on the part of fake encounters if it said that such extra-judicial killings are carried out to crush insurgencies, however, such heinous acts considered ordinary in various regions which none to minimal active conflicts, for instance, Uttar Pradesh. Although, the administration could not defend such acts on the grounds of curbing active revolts as they could not escape the vision of international experts of the United Nations which issued statements in 2012 and 2018 against such extra-judicial killings.
These encounters under mysterious circumstances has left a trail of queries in the mind of the people and raised several questions on the responsibility and competency of the police. Encounter of eight people associated with the Students’ Islamic Movement of India in October 2016, after they escaped from the Bhopal Jail, also known as the Bhopal Jail Encounter, has many questions unanswered regarding the escape, the deceased ones carrying weapons, regarding their clothing, etc. Videos surfacing the internet suggested that the encounter was entirely staged, while reports stated that the eight of them were asked to surrender but they chose to open fire at the police and public present during the encounter. As a result, the police had to shoot at them for they did not have any intentions to surrender.
In 2008, the Batla House incident shock the nation and became a national sensation. On 19th September 2008, the special team of Delhi Police carried out an encounter which eventually escalated into a shootout in the Batla House of Delhi’s Jamia Nagar where two suspected Indian Mujahideen terrorists were killed. Inspector Mohan Chand Sharma, who led the operation, also lost his life in that encounter. He was supposed to gather information from the neighbouring residents about the 2008 Delhi blasts, but surged into a shootout. Many people questioned the authenticity of the encounter and claimed that it was staged. An investigation was carried out regarding the encounter by the National Human Rights Commission after the People’s Union for Democratic Rights filed a plea. Eventually, the Delhi Police was acquitted. However, certain loopholes such as the report published by the National Human Rights Commission lacked the post-mortem report of the victims of the shootout, and the fact that the report was dated two days before the Commission was asked to investigate the shootout by the high court. The Delhi High Court allowed the Delhi Police to submit additional evidences before the trial court in February 2018.
Conclusion
Police brutality, custodial torture, custodial death, custodial rape and fake encounter highlighted in this article are some of the important issues in the ocean of difficulties that the prisoners or accused individuals are subjected to. In India, prisoners are considered as human-beings just as the rest of the society, and as a human-being, these prisoners have some fundamental and constitutional rights such as Articles 14, 20(1), (2), 21, and 22(4-7) of the Constitution, besides the rights guaranteed by the Prisons Act 1894, the Prisoners Act 1990, Transfers of Prisoners Act 1950, and Prisoners (Attendance in Courts) Act 1955. Despite such rights, prisoners are victims of inhuman and brutal treatment, the misuse of power to supress the inferior authority has to stop. Therefore, it can be concluded that cases, data and reports reveal that darker side of this system is indeed a fact and not a myth.
References
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18. Article 14 of the Indian Constitution
19. Article 20(1), (2), (3) of the Indian Constitution
20. Article 21 of the Indian Constitution
21. Article 22(4), (5), (6), (7) of the Indian Constitution
22. The Prisons Act 1894
23. The Prisoners Act 1990
24. Transfers of Prisoners Act 1950
25. Prisoners (Attendance in Courts) Act 1955
26. Section 376(2)(b) and (c) of Indian Penal Code 1860
27. Sube Singh v. State of Haryana Civil Appeals No. 5516 of 2001with Nos 5517-30 of 2001
28. Dr. Ashwani Kumar v. Union of India & Ors. Civil Writ Petition No. 18684 of 2005 and Civil Miscellaneous Appeal No. 12138 of 2005
29. D.K. Basu, Ashok Kumar Johri v. State of West Bengal 1997 1 SCC 416
30. Tuka Ram & Anr. v. State of Maharashtra 1979 2 SCC 143
31. Bhopal Jail Encounter October 31, 2016
32. Batla House Encounter September 19, 2008
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