By Sana Das
April 2, 2019
Two young men, Taslim Ansari, 32, and Gufran Alam, 30, died in police custody in Dumra, Sitamarhi district of Bihar on March 7. Nails were allegedly hammered into their thighs, soles and wrists and their legs were broken. Picked up in healthy state on March 6 for investigation in a theft and murder case, both died within less than an hour of reaching the hospital.
Giving the macabre event a farcical twist, the suspended police officials “escaped” from custody, and till date are evading arrest. Their disappearance also implies the possible disappearance of diary entries, warrants, memos, list of pre-existing injuries, interrogation records, recoveries and CCTV footage, if any.
The government of Bihar is in denial that the police are dragging their feet in the matter. However, neither have arrest warrants been issued nor the errant officers dismissed. The FIR does not mention their names, nor the IPC section for murder. No inquest by a judicial magistrate has been initiated. An inquiry delegated to a Range DIG has no deadline. The autopsy report is yet to be handed over to the National Human Rights Commission (NHRC). These are all factors conducive for the fudge and smudge of proof and public memory, as is common in states without policies for such eventualities.
While we await the nabbing of the police by the police, and the strictest action against perpetrator officials, we cannot overlook that the two young men who died in custody were Muslim men. The torture inflicted on their bodies is symbolic of the fissured times we live in. The monstrous act of nails beaten into bodies speaks of a horrifying hatred and not the power of the Thana alone or the lust for evidence. It cannot be remotely confused with impartial agencies of the law and dutiful men at work against crime. So, while condemning the act of third-degree custodial torture, let us condemn this too: The torture on particular bodies made easy, excesses made acceptable as “necessary” acts on bodies that are always guilty and lives that matter less anyway.
At least 90 people die in police custody, annually, the largest number of them being people arrested and yet to be produced before a magistrate. In 2016, government data recorded 92 deaths in police custody, of which 60 occurred before reaching the court. This makes a travesty of sections 55A and 57 of the Criminal Procedure Code (CrPC) which place the duties of care of the accused, and production before a magistrate within 24 hours, on the person having custody.
Even as Taslim and Gufran join the statistical enumeration of persons who did not survive police contact to appear in court, their deaths remain specific. They signify a much larger problem than the already overwhelming abuse of both power and duty that should make this a matter of suo motu inquiry by the various rights commissions.
Alongside rising statistics, laments, condemnations, some compelling issues too must be addressed in the public interest, if not the interest of those who are no longer alive to benefit.
We do not have an anti-torture legislation and are yet to criminalise custodial violence, while action against culpable officials remains illusory. What graspable safeguards and deterrence, then, can make the “24 hours” less lethal than what they proved for Taslim and Gufran?
In its landmark judgment in the DK Basu case, the Supreme Court, in 2015, asked for closed-circuit television (CCTV) cameras to be installed in police stations including interrogation rooms, and surprise inspections by Non-Official Visitors (NOVs), as preventive measures against custodial torture. Of course, no state has appointed the NOVs yet, while the camera installation and tracking have largely been a trajectory of reluctance, tamper and delay. The main barrier has been the mindset that cameras pose an interference in investigation. The high courts, Women’s Commission and other authorities continue to persist in ensuring adequate and functional cameras in each police station in Delhi, in Maharashtra (having the highest number of custodial deaths), Gujarat (having the highest number of custodial deaths closed as “suicides”), and elsewhere. In Bihar, the government approved a Rs 282-crore plan in 2016 to install CCTV cameras in all 1,056 police stations, including lock-ups and office rooms. But the actual status needs to be made public.
Of course, CCTVs alone are not enough deterrence. We need more than cameras. We need the systematic and continuous presence of external agencies who have a mandate to be present with the suspect when they are in police custody. The case of Taslim and Gufran is not only a case of errant and fugitive policemen, but of missing lawyers who never took the stage.
The right to a lawyer in custody, so crucial for life and liberty to be enshrined as a fundamental right, is one of the weakest links in the chain of criminal justice. Section 41 CrPC was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation. Specifically, section 41D CrPC provides, “When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.”
This right to “meet” an advocate during interrogation ensures that the arrested person is not overpowered by the law, nor isolated in those critical hours before seeing a magistrate, or when in remand. This provision simultaneously takes care of the distinct responsibilities that the police have to obtain evidence, and the advocate in giving their counsel, but is just lying by the wayside. No police department in the country appears to have evolved the standard operating procedures to implement this safeguard with integrity. This means ensuring prerequisites, verifiability by relevant external agencies and consequences for violators of the law.
How can a lawyer or family member appear if the place of detention is kept undisclosed — a blatant violation of section 50A of the CrPC? What would be left to do if the information is not timely? Gufran was allowed his one phone call home only after his legs had already been broken. His family kept looking for him in the wrong police stations and discovered him dead in the hospital.
Had professionalism, cameras, inspections, access to lawyer and family been embedded in our custodial practices, Taslim and Gufran might have been alive to appear before the court and face trial against the charges they faced as per due process. Instead, news of another custodial death rolls in, this time of 29-year-old Rizwan in Awantipora police station of J&K: death caused by multiple injuries, ruptured veins and arteries, indicating the use of a ‘roller’ on the legs.
Undeniably, the first onus is on the police to fix the “man-holes” in their quarters. Cameras and lawyers in custodial places are statutory and enforceable rights. But torture cannot be effectively prevented till the senior police wisely anticipate, as some indeed do, the changes that would most definitely come, and proactively lead in filling these gaps as a call of professional integrity and regain public trust in law enforcement.
Sana Das is an independent consultant on criminal justice reforms.