Custodial Justice

People’s resistance to structural violence and destructive development has been met by a growing abuse of civil and political rights, in India by state agencies. Simple protests to protect livelihood, resources, land, water and forests are met with severe brutality. Thousands of poor are arrested on false charges and made to pay for lawyers and courts. Despite pressure from people’s movements, lawyers, students, and other civil society organisations to ensure that Rule of Law is maintained yet widespread torture and ill-treatment by the state continues. Hundreds of people have ‘disappeared’ or have been ‘extra-judicially executed’ in notorious false encounters. Rape and molestation of women when in custody and during mass-searches have become common. Through various special legislations, the security forces and police have been given unlimited powers to shoot at or kill people with absolute impunity. This is happening inspite of inbuilt safeguards in the Constitution and other laws meant to promote and maintain democracy. On the other hand new statutes are introduced which are putting stringent restrictions on fundamental freedoms and human rights of the people. Parallely we observe a whole new generation of human rights violation emerging. Increasingly we are witnessed to Corporate Crime for which mechanisms to monitor and ensure systems of accountability are being developed including amendments to laws and jurisprudence by civil society organisations, lawyers, doctors, law teachers and to a limited extent the judiciary. However the judiciary which is expected to play a very important role in upholding democracy and justice on several occasions even in the Supreme Court has failed to interpret laws in favour of the poor in striking down draconian laws.

Successive Governments over the last 40 years in Tamil Nadu have presided and promoted an undemocratic police establishment in Tamil Nadu. Numerous Supreme Court and High Court Directions are violated by the police with regard to custodial justice. The famous direction in D.K.Basu vs. State of West Bengal making it compulsory to give a custody memo before arrest or detention is yet to be honoured. Till today in several places of police custody persons are stripped, handcuffed, tortured, face the most degrading and inhuman treatment, especially dalits and women. Women are abused, harassed and even raped in police custody. Women are very often made victims when for instance their husband or son has committed even a petty theft but has temporarily disappeared. They are forced into illegal detention and abuse in these custodial institutions unless their male family members surrender. Most of the custody deaths have occurred because the suspected offenders were beaten and tortured during interrogation by the police personnel in the police stations. Guidelines have been given as to how suspected offenders should be treated in police station. Yet torture and custodial deaths occur even till today. Indian law makes confession out of the presence of judge inadmissible in evidence. Accordingly, extracting such confessions is not a major purpose of torture, rather the main purpose appears to illegally detain suspected male offenders and to persuade their relatives to pay bribes to the police to spare the male member from illegal detention and further torture.

The most dehumanising form of custodial injustice is to detain people, at times families or members of a village under preventive detention laws / special arrest laws / syndicate laws such as

(a) The Tamil Nadu Prevention of Dangerous Activities of Boot Leggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982. (Goondas Act) (b) National Security Act., (c) The Armed Forces Special Powers Act. (d) State Legislations that permit detention in the name of disturbed areas or syndicated crime. (e) TESMA 2002 (f) Tamil Nadu Police Act (g) The Disturbed Areas (Special Courts) Act (h) Unlawful Activities (Prevention) Act (i) The Narcotic Drugs and Psychotropic Substances Act 1985.

These laws give unbridled powers to the executive magistrates (non judicial) and a person can be kept in detention without bail for any period from 3 months to 12 months. HRF will continue its education and advocacy work to get these laws repealed.

After several detailed fact finding investigations, obtaining records under Right to Information Act following Court cases challenging the so-called encounter death it is been found that these fake encounters all over the Country are nothing but cold-blooded murder by the police and in more than 90% of the cases it happens while the person is in custody of the police and being transported from police custody to a judicial institution for Trial. It is a gross violation of International Standards on Right to Life and Article 21 which protects right to life and liberty enshrined in the Indian Constitution. National Human Rights Commission has laid down detailed guidelines to ensure a proper investigation and trial of the perpetrators of this extra-judicial killing. Recently the Andhra Pradesh High Court has also set standards with regard to investigation regarding fake encounter deaths. This lawless activity of the state must be stopped immediately.