Jeyaraj & Beniks: Accountability for Torture Must Start at the Top

Torture in police remand, as opposed to judicial remand – and the difference must be stressed – is widespread.

(This article was first published on 6 July 2020 and has been reposted from The Quint’s archives. The CBI, on 26 October, in its report to the Madras High Court, said that the DNA samples collected from the walls of the Sathankulam lockup, toilet, room of SHO and from the lathis were a match to the samples of the father-son duo Jeyaraj and Beniks, proving the deceased ‘were subjected to brutal torture by the accused police officials.’)

Jeyaraj & Beniks: Accountability for Torture Must Start At The Top

In the crime drama 'Aarya', an ACP is shown beating a person one moment, pausing at the arrival of his partner, and then sharing a tender moment at the dinner he has brought. This scene probably surprised no one. The torture and beating of P Jeyaraj and J Beniks were not an exception.

The torture of people in police remand, as opposed to judicial remand – and the difference must be stressed – is widespread.

Perhaps, at least anecdotally, the severity of the practice has reduced, and the number of custodial deaths has decreased. Torture in India is, however, a systemic problem. The Law Commission’s 273rd Report refers to the specificity of the practice described in Kautilya’s Arthashastra, although the then Attorney General informed the United Nations Human Rights Committee that torture was impossible in Indian civilisation.

Has Ratification of Convention Against Torture Helped At All?

Much of the attention on the tragic murders of Jeyaraj and Beniks in police custody has been focused on the ratification of the Convention Against Torture, which India signed in 1997, a process that requires a domestic law implementing the Convention. Even beyond the ratification, the proscription of torture, and the ancillary principle of non-refoulement – which states that countries should not send someone back to a country where they may be tortured or persecuted, is now universally recognised as customary international law. That it has been 23 long years since India signed the Convention, and is only one of 9 countries that has not done so, is indeed a problem.

However, the Convention offers no panacea. Afghanistan ratified in 1987, in the middle of a civil war, and the People’s Republic of China in 1988. These are not the only outliers. The Convention adds to a country’s international obligations, and adds an international dimension of the rights already articulated and enjoyed by people in India by virtue of our constitution, articulated in a catena of judgments – including DK Basu.

Harmonising India’s laws on the criminalisation of torture with those of other countries, is a positive step towards both living up to India’s international commitments, and its covenant with its people.

• Much of the attention on the tragic murders of Jeyaraj & Beniks in police custody has been focused on the ratification of the Convention Against Torture.
• India signed this in 1997, a process that requires a domestic law implementing the Convention.
• The Convention puts victims at the heart of the process, and makes torture a crime warranting compensation to the victims.
• The question remains – compensation from whom? The State or the guilty police officers?
• The judicial pronouncements on the illegality of torture must be contrasted with the consequences of torture.

Torture & the Question of Compensation: Who Will Pay?

The Convention puts victims at the heart of the process, and makes torture a crime warranting compensation to the victims. Both the 2010 Bill and the 2018 Bill to implement the Convention spoke of compensation. The question remains – from whom? The State or the guilty police officers? The Convention calls for the State to be liable. This has been affirmed by the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.

In India, there is no statutory remedy for such a compensation from the State, despite there being judgments in specific cases upholding such a liability. In D.K. Basu, the Supreme Court also held that the reservation on compensation to the International Convention on Civil and Political Rights was no longer valid. India, in signing the Convention, had declared that “under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State.” However, the compensation amounts granted in a few cases have been simply too meagre to act as a deterrent or an incentive for the State to enforce the laws against torture.

Indian law is also silent on the evolving international jurisprudence on superior responsibility, which affixes direct responsibility on superiors who had effective control over the perpetrators of a crime, had knowledge of the crime, and did nothing to prevent it or punish it.

The accountability for torture must start at the top rather than at the bottom.

Rare to See a Criminal Case Brought to Court Without a Signed Confession By the Accused

The Law Commission, in various reports, has come up with numerous proposals for amendments to penal laws to tackle torture in police custody. It has recommended an amendment in the Evidence Act to make any injury in police custody be presumed to be caused by police. It sought to limit arrest, by amending the Criminal Procedure Code, particularly for non-grievous offences, by inserting a recording of reasons for arrest. It made it the duty of police officers to be responsible for the health and safety of those in custody. It sought the insertion of Section 41B to the Criminal Procedure Code, which would intimate a person of her rights upon arrest, and liberalising the process of bail.

The Constitution of India of course enshrines the rights effectuated by the amendments. It has not only the right to life, but also the right against self incrimination, and effective assistance of counsel. Despite this right, it is rare to see a criminal case brought to court without a signed confession by the accused, which is prejudicial to the accused getting bail and to his presumption of innocence, even if the confession is inadmissible in evidence.

New special laws, such as the Prevention of Money Laundering Act, allowing confessions to be admissible in evidence, have unfortunately further weakened the protection against self incrimination, an important safeguard against torture.

No Sufficient Deterrent to Have Prevented Murder of Jeyaraj & Beniks

The legal system has also evolved into a system where interrogation is conducted without record, video or audio taping, presence of lawyers, or any other mechanism of accountability. A witness’s or accused’s allegation, that a statement or a confession has been coerced or fabricated by the police, hardly elicits a response, let alone outrage, from the judiciary.

The judicial concession for the police not to be sanctioned for pre-arrest custody has further weakened the protections offered for those who are arrested.

The domestic law on torture would likely not have been enough to prevent the torture and killing of Jeyaraj and Beniks, nor ensured that the State investigated and prosecuted those responsible for the murders without an outcry, and interventions by the Madras High Court. Section 176 of the Code of Criminal Procedure provides for a compulsory magisterial inquest on a death in police custody. The National Human Rights Commission must be informed, and may conduct an inquiry.

None of these were a sufficient deterrent for the torture meted out to him.

Judicial Pronouncements On Illegality of Torture Must Be Contrasted With Consequences of Torture

The Protection of Human Rights Act, noble in its intent, is so toothless that no one has even noticed that the special courts with jurisdiction over the act are simply not constituted.

Without a remedy, there are no rights – ubi jus ibi remedium.

The judicial pronouncements on the illegality of torture must be contrasted with the consequences of torture.

Criminal lawyers would be hard pressed to give a list of cases in which police officers have been prosecuted for torture. The contempt of court outlined as a remedy for the breach of the Supreme Court’s order in D.K. Basu has resulted in zero police officers being held in contempt. Indian criminal jurisprudence eschews the ‘fruit of the poisonous tree’ doctrine, so evidence obtained through torture is still evidence, despite its providence.

Why Are Judicial & Administrative Safeguards Not ‘Good Enough’ for the ‘Gatekeepers’ Themselves?

Police officers, as all public officials, have been granted protection against prosecution in special laws as well as the Indian Penal Code, as their superiors must sanction it, and armed forces have immunity from criminal law prosecution in parts of the country where the Armed Forces Special Powers Act has been notified. The sanction allows the government to govern the prosecution of police officers, who are already protected due to the natural bias of the investigating agencies of which they are directly or indirectly a part.

It is curious that the judicial and administrative safeguards good enough for everyone else, are never considered good enough for the gatekeepers themselves.

There cannot be a more emphatic statement of their belief in the justice system.

Lastly, the mechanisms of transparency and accountability, addressed in the Prakash Singh case have been miserly implemented. The Model Police Act is still missing. Criminal justice and police reform are absent from political manifestos and platforms. There is not even an independent prosecutorial oversight over chargesheets.

Ratification and a law implementing the Convention Against Torture is an important step, but it may simply add to the constitutional aspirations and judicial pronouncements if there are no remedies for torture and other illegalities in policing. The remedy must have teeth, and the victims the right to enforce, and compensate.

(Avi Singh is an advocate who specialises in transnational law and serves as the Additional Standing Counsel for the government of NCT of Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)