Ratify the convention against custodial torture: SC Adv Nitya Ramakrishnan

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“There are two things about custodial torture that persist in spite of laws: invisibility and impunity. We must recognise that what happens within the darkness of a cell will require various strategies tailored to meet and prevent it and ensure consequences,” said Supreme Court senior advocate Nitya Ramakrishnan on June 19, 2021, one year after the custodial death of Jayaraj and Bennicks.

On Saturday, Tamil Nadu’s Joint Action Against Custodial Torture (JAACT) group released a ‘Santhakulam Declaration’ to condemn police torture and sexual assault, like that against the father-son duo who were taken into custody for allegedly violating the Covid-19 lockdown norms last year. During this event, Ramakrishnan praised the organisers People’s Watch and pledged her support for the movement against social evil.

#Thiagu ask @MKStalin @CMOTamilnadu today to urgently ensure that #Tamilnadu becomes and island in India where police atrocities are brought to an end. #JAACT will ensure that every police station in the state will be monitored by our activists to ensure there is no #Torture. pic.twitter.com/5Zo5ZiQuz6
— Henri Tiphagne (@Tiphagne) June 19, 2021

As the keynote speaker, Ramakrishnan talked about how strategies against custodial violence must pierce the veil of invisibility surrounding cells and the consequent impunity. Citing M. K. Gandhi, she pointed out, “No authority is more liable to be abused than that wielded by someone in a custodial cell where the rest of the world is barred to the prisoner.”

The senior lawyer demanded a ratification of the convention against torture and called for a passing of a dedicated law on custodial torture. She stressed the importance of such moves as indicative of Indian polity’s clear commitment to recognise custodial torture as a crime.

“All these years, India’s reluctance to ratify and pass a law is significant of its wanting somehow not to expose its law enforcement officers either in their own right or as representatives to do the political master’s bidding, somehow not to expose them to a process which they richly deserve,” she said. Further, India also ought to ratify the convention on Enforced Disappearances. She argued that torture is a crime that occurs in a dark place. So, a dedicated law is important to enable procedural and evidentiary conditions to deal with such extraordinary conditions.

Regarding judicial intervention, Ramakrishnan said that it is present but not uniform in all cases of custodial torture. The lack of uniformity shows that custodial torture happens not because of absence of laws but despite pre-existing legal protections. “Speaker after speaker has mentioned how the magistracy has looked the other way. Superior officers are not called to account. Victim’s family runs from pillar to post. So, to have legislation is an important step but a baby step,” she said.

Why is it a baby step?

As Ramakrishnan mentioned earlier while quoting Gandhi, real Swaraj is achieved when all people have the power to resist abusive authority. Yet, in independent India, every police station has a myriad of incidents of custodial torture, she said.

What is ironic about the Jayaraj and Bennicks incident of last year, is that the East India Company in 1855 (150 years before formal swaraj) established a Madras Torture Commission that recognised torture as a crime. Despite their imperial agenda, the colonisers recognised the cruelty. In 1860, the Indian Penal Code’s sections 348 and 337 recognised custodial violence. Further, the Lahore High Court in 1912, sentenced police officers to at least 10 years imprisonment if someone in their custody died, claiming culpable homicide. Yet in the twenty-first century, such cases are rampant with courts intervening with meagre compensations, or at times not intervening at all.

“For Jayaraj and Bennicks, there is no Swaraj,” said Ramakrishnan, who sourced the continuing prevalence of this crime to the societal thought that ‘torture is indispensable to crime prevention.’

She emphasised that custodial torture is not required for law enforcement. Yet, this mindset is found at various points of procedure which is why magistrates and doctors look the other way. To work against this thinking, she called for a public campaign.

Moreover, the campaign should also denounce holding the victim responsible to prove the crime. Instead, a self-generating system of justice must be devised beginning from the magistracy – the first, immediate and only point of interaction that poor and marginalised people have with the law.

“I tell all law schools not to send interns only to fancy law offices but to magistrates as well. Because magistrates need to know what their duties are. Oftentimes they do not know what their duties are,” said the senior advocate.

The magistrate needs to be sensitised and policed. For an effective justice system, real-time access of CCTVs must be given to some watchdog body, said Ramakrishnan. Medical officers and magistrate officers must be relentlessly documented in as many cases as possible. If someone has not performed duty then consequences but scrutiny is required. After police stations, magistracy is an important focus point to operationalise people’s rights against custodial torture.

While acknowledging that compensation in such cases is too little too late, Ramakrishnan said that monetary compensation means nothing. Reparation means non-recurrence – a package to ensure actions against errant officials and superiors. People in authority must realise their duty in keeping such things from happening.

“There is a need to build a campaign among people aside from legislation. We must work with magistrate write-ups and document as many cases and campaign for real time access. Anything that depends purely on litigation not a solution, particularly for those who face custodial torture,” she said.

She called upon all present at the event to fight at the administrative, political and parliamentary level where most people are unable to reach. Expressing admiration for the group’s work against such incidents, Ramakrishnan handed over the declaration to DMK MP Kanimozhi present at the event.