Safeguards Against Torture
Perspectives of Lawyers, Judges, Doctors
Early and effective access to the three crucial safeguards against torture and ill-treatment in custody— lawyers, judicial magistrate, and doctors—plays a key role in preventing and dealing with cases of police torture. Unfortunately, the findings of this report indicate that police often disregard these safeguards. In this context, it was important to also look at the perspective of these actors who play an important role in ensuring police accountability and preventing custodial torture.
The study included in-depth interviews with a total of 28 such actors, comprising of seven doctors, 12 lawyers (including one Public Prosecutor), and nine judges, whose responses have been presented in this article, extracted from Chapter 7 of the report.
Victims and Purposes of Torture in India
Many interviewees consider torture to be frequent, emphasising that the victims of torture are mainly people from poor and marginalised communities. A lawyer described it as “all the faceless and voiceless’ are targeted. The following groups are common targets of torture: Muslims, Dalits, Adivasis, people who cannot read and write, and slum dwellers. A lawyer candidly described it thus: “The police know nobody is going to stand up for them. They do not have lawyers… At some level, the police know even if we do something to him, he is not going to take it to court nor is [he] in a position to complain to anybody. It becomes easier for them to do”.
Interviewees said that the main causes of torture are to extract information from suspects, and also, often to mete out “punishment”. Interviewees said police use force and violence to get information from suspects in custody. About this, two judges asked how the police are expected to get information without resorting to some force or “pressure”, while in contrast, a lawyer pointed out the police have little knowledge of noncoercive interrogation techniques. Such a wide range of reactions indicates that there are differing levels of acceptance of forceful techniques even among accountability actors.
Access to Lawyers
Lawyers also reveal that the police do not easily facilitate arrested persons’ access to them. Some lawyers recounted being regularly stopped by the police from even entering the police station to assist an arrested person.
Lawyers from some states said they have to put in an application at the magistrate’s court for access during interrogation, and such orders are not granted as a “matter of right”. Two lawyers said that in their locations they may be allowed to be in seeing range, but not in earshot range of the police’s interrogation, preventing them from intervening while it is ongoing.
Most people, the poor and marginalised in particular, do not know they are entitled to a lawyer during interrogation and the police do not inform them of this right. There was a consensus that the possibility of coercion or torture by the police increases without a lawyer. A retired High Court judge said the absence of a lawyer gives the police “a free hand, they become like unbridled horses”. A lawyer shared that even if severe acts such as beating do not always occur, acts such as slapping or applying some force during interrogation are “normalised” in the absence of a lawyer.
Many interviewees consider torture to be frequent, emphasising that the victims of torture are mainly people from poor and marginalised communities.
First Production Before a Judicial Magistrate
A key constitutional safeguard against illegal detention and torture is the requirement of Article 22(2) that every arrested/detained person shall be produced before the nearest judicial magistrate within 24 hours of their arrest. Eight interviewees believe the judicial magistrate has the most important role in preventing torture in custody. Several interviewees outlined the questions a magistrate should asked the person produced before them; these include: whether the person is being treated properly, whether they have been injured or tortured by the police, whether they have seen a doctor, whether they have a lawyer, and if they cannot afford one, facilitate a legal aid lawyer for them. The interviewees also expressed that the magistrate should call for and examine key documents relating to each arrest, such as the First Information Report and case diary, among others.
However, when focusing on the lived experiences, ten interviewees recounted that it is “very rare” to see magistrates interacting with arrested persons. A lawyer described magistrates as “silent spectators” who “do not record anything or ask [arrested persons] where and when they were arrested”. A retired High Court judge said that magistrates only check whether the produced person is alive. Even if magistrates see “visible marks of torture or physical discomfort of the person”, they will not probe further.
There were also systemic problems that were highlighted by the interviewees that hinder a magistrate’s envisioned role. A lawyer pointed out that the high number of productions in a day makes it “virtually impossible” for the court to individually interact with every arrested person. A retired district judge pointed out that dealing with the “large number” of productions and presiding over trial proceedings, makes it difficult for magistrates to give adequate time or judicial attention to productions.
Medical Examination of Arrested Persons
Another key safeguard against torture in the law is the requirement that an arrested person is to be medically examined “soon after the arrest is made”, with the specific mandate that “any injuries or marks of violence” on the arrested person are to be recorded in the medical examination report. A key pattern that emerged from interviews with doctors is that medical examinations of arrested persons are often done by doctors without expertise in forensic medicine. This in turn leads to implications for the accused since the examining doctor is less capable of recognising signs of torture.
Examinations are conducted by whichever doctor is available, even if they are an “eye specialist or anaesthesiologist”. A doctor pointed out that there are no forensic doctors in district or taluk hospitals. It also emerged from the interviews that there is no routine protocol or practice in place that makes it compulsory for healthcare workers to photograph or sketch the injuries found on a person, and such documentation also depends on policies that may or may not be present in each medical institution.
Collusion of Accountability Actors With the Police
Interviewees talked about the partisan relationships, including informal social networks, and active collusion of police with lawyers, judicial magistrates, and doctors, and its impact on police accountability. A retired judicial magistrate candidly shared that “judicial officers in every station, they want to get some service of the police officers for their safety and well-being” and in turn the police get “accommodated” by these judicial officers.
Several interviewees observed that due to the close proximity of these various actors of the criminal justice system, owing to their duties as well as their place of residence, friendly relations develop and impact
Most people, the poor and marginalised in particular, do not know they are entitled to a lawyer during interrogation and the police do not inform them of this right.
A retired High Court judge said that magistrates only check whether the produced person is alive. Even if magistrates see “visible marks of torture or physical discomfort of the person”, they will not probe further
a judicial magistrates’ oversight of the police. Lawyers, on the other hand, maintain friendly relations with the police so that the latter will “give them cases”. Lastly, police maintain good rapport with doctors and often stick to the same doctor for examinations so that doctors would not write “implicating reports” or will neglect to record injuries.
Postmortem Reports in Custodial Death Cases
Two doctors said they have observed that postmortems in custodial death cases are conducted by “untrained staff”, such as attendants, and sometimes even sweepers. A doctor explained that due to “caste dimensions”, particularly the refusal to touch dead bodies, “very often doctors do not even do the postmortem”.
A lawyer recounted that in her experience, postmortem reports are frequently “manipulated”, in that injuries on the body are not recorded, and the “underlying cause of death” is not reported.
The interviewees expressed divergent views on how the postmortems are carried out, indicating that there is a concerning lack of consistency in the conduct of postmortems across the country, and also that accountability actors in different states hold varying levels of trust in the accuracy and independence of postmortem reports.
Complaints Against Torture and the Role of NHRC
There was consensus among judges and lawyers that the NHRC is not effective in dealing with cases of torture. Three retired High Court judges reiterated this, with one describing the NHRC as a “paper tiger without any teeth”. Two lawyers emphatically said they advise their clients to avoid filing complaints with the NHRC altogether. They both spoke of the waste of time, energy, and resources of the chance for relief or remedy from the NHRC, compared to courts.
Further, interviewees described numerous systemic hurdles that impede affected persons from filing complaints of torture, whether before the NHRC or any other institution, and taking them forward.
Interviewees commonly pointed to several challenges that prevent people in custody from even filing complaints of torture. These include, prominently, the fear of reprisal or retaliation from the police, which can range from verbal threats to physical attacks. Another deterrent repeatedly brought up is the reality that torture complaints will be investigated by the police itself and people doubt these investigations will proceed fairly. The lack of any independent witnesses, or the lack of willingness of witnesses to depose in court against police officers, was also stated. Judicial disbelief and apathy to torture complaints was also a recurrent factor in restraining complaints.
Confessions to the Police and the Need for Anti-Torture Law
There was consensus among lawyers and judges that confessions to police should never be made admissible. A retired judicial magistrate said that it would be “very dangerous to the life of accused persons”. Lawyers said that this would go against the basic tenets of criminal jurisprudence, against fair trial principles, and particularly against the right against self-incrimination. Several interviewees warned that making confessions admissible would effectively provide legal sanction to torture and coercion by police.
Eleven interviewees emphatically supported the need for a separate law against torture. A lawyer highlighted a larger point relating to such a law’s purpose. She said, “Law is not merely for punishment and for action after the incident. It is a code of conduct. You should not do this thing. The law must also have the intention to stop violence and torture”.
Key Recommendations
The following are select key recommendations provided by the interviewees:
1. Actions by judicial magistrate
1.1 Interact with arrested persons at first production.
1.2 Order arrested persons to be medically examined throughout the duration of police custody.
1.3 Independent enquiry and trial by lawyers and judges on allegations of torture.
1.4 Judicial magistrates should conduct surprise inspections of police lock-ups.
2. Mechanism for an independent investigation into torture: Several interviewees recommended that investigation into torture complaints should not be done by the same police department whose personnel are implicated. One retired judge suggested that a separate investigating agency could be considered. A lawyer suggested that an independent body be formed, which is wholly insulated from police involvement.
3. Select legal reforms and training: 3.1 Medical training of doctors on legal, moral and ethical aspects of torture and practical guidelines on how to recognise torture and give evidence in courts in torture cases.
3.2 Improved police training on interrogation techniques and “modern scientific evidence analysis”.
3.3 The provision for lawyers to be present at interrogation must be expanded to ensure that a lawyer can be present “throughout the interrogation”.
There is a need for a law on medico-legal examination of “live persons including torture victims” which would fix liability on doctors and for streamlining autopsy procedures in cases of custodial deaths.
Conclusion
The findings of this chapter, gathered from lived experiences and insights from accountability actors themselves, sharply highlight that existing safeguards against torture are failing to prevent, protect effectively, or ensure redress for torture. These grave shortcomings are failing to dent the wide use of torture.
Torture is used by the police to target the poor and marginalised, ranging from extracting or coercing information from crime suspects to being expended as a means of control and punishment. The present constitutional protections against torture are ineffective in practice— magistrates are overburdened, access to lawyers is almost never facilitated, sometimes barring them from even entering police stations, and the doctors examining the accused are not always trained in forensic medicine.
The legal system is failing to provide constitutional protections against torture, and other institutional processes and mechanisms are also failing to limit or eradicate torture by the police.
A key pattern that emerged from interviews with doctors is that medical examinations of arrested persons are often done by doctors without expertise in forensic medicine.
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