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. Parallelly we observe a whole new generation of human rights violations 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 stations. Yet torture and custodial deaths occur even today. Indian law makes confession out of the presence of a 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 the 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 the 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.

Custodial Justice – Police Reforms

National Consultation on issues and challenges in Custodial Justice and Criminal Justice System, 12 November 2016, Chennai

South Regional Consultation on the necessity to amend The Tamil Nadu Police (Reforms) Act 2013, 7 September 2016 at Tirunelveli

West Regional Consultation for fine-tuning the draft Model Police Act as an alternative to The Tamil Nadu Police (Reforms) Act 2013, 18 March 2017, Coimbatore.

Police reforms: Citizens’ memo to the CM of Tamil Nadu, 20 December 2014

Consultation on the Directives of the Supreme Court and Essentials of a New Police Act in Tamil Nadu, 26th September 2013, Chennai

Tamil Nadu Police (Reforms) Ordinance, 2013. Analysis and Recommendations for Amendments
National Consultation on Drafting an Alternative Tamil Nadu Police Bill Replacing The Police Act of 1861 and Other Police Laws, 25 October 2014, Chennai

N ational Conference on People’s Right to Information: Assessing Compliance of Police and Prison Authorities with the Transparency Regime, 20 – 21 September 2014, New Delhi.

Campaign for Custodial Justice and Abolition of Torture

Campaign for Custodial Justice and Abolition of Torture is a State-wide Campaign formed at the First State Level Consultation on October 9th and 10th 1998 at Chennai. The Campaign organised the First State-level Convention on 11th October 2002. 400 delegates participated in the Convention. This Campaign is comprised of 190 member organisations covering 32 Districts. The membership is comprised of victims of custodial injustice, social activists, political parties, trade unions, voluntary organisations, local government institutions, human rights activists, representatives of Dalits, Adivasi, women and trade organisations, teachers, lawyers, etc., In this convention the delegates passed resolutions regarding torture as an offence in law, abolishing all forms of torture and necessity to ratify the United Nation Convention on Abolition of Torture, withdraw POTA and Repeal Special Detention Laws. Reforming Police and Prison Department, working on Human Rights Courts, Custody / Arrest memo implementation as directed by the Supreme Court were the other important decisions taken at the Convention. The First State-Level Convention was charred jointly by Justice H.Suresh and Justice D.K.Basu.

This campaign is comprised of 160 member organisations covering 32 districts. The membership includes victims of custodial injustice, social activists, political parties, trade unions, voluntary organisations, local government institutions, human rights activists, voluntary organisations, representatives of Dalits, Adivasi, women and trade organisations, teachers, lawyers, etc.

Objectives of the Campaign

To define torture as an offence in law in order to have it abolished.
To create awareness among the public about the rights of people who are in custody.
Support the protests of grassroot voices and building a network of organisations and socially committed individuals to campaign for human rights standards.
To campaign and build support for the proposed reforms needed in custodial institutions based on human rights standards.
To monitor the functioning and to bring to light the overall human rights violations in State Custodial Institutions with documentation of case studies.
To build the campaign inclusive of victims of human rights violations while in custody. Wherever possible to support victims with services of legal aid, counseling, shelter, and rehabilitation.

Voices for Custodial Justice Newsletter

Most of the population affected due to custodial injustice is poor, marginalized, minorities, dalits and adivasis. With intent to educate the above said population and to strengthen human rights defenders about recent developments regarding custodial laws, judgements expert’s opinion articles and critiques HRF bring out this magazine in Tamil language once in three months.