Custodial tortures, ranging from assault of various types to death in the process of extorting confessions and imputation of evidence, are not uncommon. Such methods of investigation and detection of a crime, in the backdrop of vast scope or idea of “humane” administration of criminal justice, not only disregard human rights of an individual but also undermine his dignity and expose him to unwarranted violence and torture by those who are expected to ‘protect’ him.
In India where the rule of law has an apex command and the right to life and liberty is an existential force or derivative right for most of the other fundamental rights, the events or instances of torture and use of third-degree methods upon suspects during illegal detention and police remand cast a slur on the very system of administration. Furthermore, it raises questions on the competency of judiciary on letting such actions of police go unpunished and sacrosanct rights unsafeguarded.
Torture in custody is at present treated as an inevitable part of investigation. Investigations retain the wrong notion that if enough pressure is applied, the accused will confess. ‘Jai Bhim’ movie has unfolded several aspects of the society and the systems we are a part of and live in. It has made it more apparent and understandable for the general masses the injustice they face or may face in police custody. How prisoners are denied of their rights in jails and the use of force against them in a very dangerous way is what this movie has shown, and it is that which makes it a devastating and tremendous movie at the same time.
The movie has provided insights into various aspects of the rule of law and the misuse of power and authority. It reflects the reality of jails, dealings with the prisoners, and the use of various inhumane tortures. The movie has not only highlighted the police’s illegal and inhumane treatment of inmates but has also focused on the difficulties of fighting against such a system.
The rule of law is just a mere idea that has to kneel down before such self-styled lawless authorities. How a country changes from a welfare state to a police state is the consequence of unaccountable and unchecked power of policing authorities. In the last two decades, 1,888 custodial deaths have been reported across India, with 893 cases registered against police personnel, while a mere 358 police officers and justice officials were formally accused. Just 26 policemen were convicted in this period, official records show. Data compiled by the country’s National Crime Bureau reports that in the year 2020, 76 custodial deaths were reported. The state that reported the highest number of such deaths in 2020 was Gujarat, with 15, followed by Uttar Pradesh. No convictions were reported last year. According to a report by the National Campaign against Torture (NCAT), on average five people died in custody every day in 2019.
Torture has been widely denounced by the international community and is regarded as illegal under international law. The supreme Court of the United states in Miranda v. Arizona, 384, U.S. 436, 448 (1996) and also in Blackburn v State of Alabama, U.S. 199 (1960) held that “coercion can be mental and as well as physical.’’ Not only has the U.S. come up with a change in its approach to torture but also European states have framed up a convention for protection of Human Rights and Fundamental Freedoms.
India has a strict legal procedure for dealing with cases of torture. Legal remedies are clearly laid down in various laws and codes such as the Code of Criminal Procedure, Indian Penal Code, Indian Police Act, Indian Evidence Act, and the fundamental law of the land, i.e., the Constitution of India. Despite these safeguards, India has failed to put into practices these provisions of laws. India is a signatory of many conventions such as ICCPR, UDHR and UNCAT, which provide for prohibition of torture. These conventions also prohibit torture and use of inhumane means and methods against human beings. Article 2(1) of UNCAT provides that “every state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Similarly, Article 5 of the Universal Declaration on Human Rights states, “No one shall be subject to torture or cruel, inhuman or degrading treatment or punishment.” Article 7 of ICCPR is also significant in directing countries to refrain from torturing for any purpose. India is duty-bound to follow and not to violate the provisions of these conventions as a part of these. However, the implementation of these conventions is nowhere, and India is about to cross the number of most human rights violations in the world.
The government must intervene and courts should lay down strict guidelines for police custody, the literal meaning of which is ‘guardianship’ because a suspect is never a criminal in the first instance and torturing a suspect or victim never lowers down the crime rate but rather accelerates it. To conclude, the unchecked run of custodial tortures eventually could define the nature of Indian governance, as to quote former Supreme Court judge V.R. Krishna Iyer, custodial torture is worse than terrorism because the authority of the state is behind it.
The central message of Jai Bhim is that such incidents are thousands in numbers, all of whom have gone unheard. Justice has to be provided to them in the courts of law.

—The writers are law students. [email protected], [email protected]

Aabid Mushtaq & Tajamul Islam