This Supreme Court Judgment Can Up India’s Custodial Torture Rate

The police would have an attractive incentive to compromise on fair investigation, and instead violate human rights.

In the scheme of things as the constitution has laid down, the judiciary forms the bulwark of a citizen’s protection from infraction of the most basic human rights by the state. These rights include the fundamental right of not being subjected to custodial torture, which the Supreme Court on multiple occasions has held to be completely illegal. But if the apex court itself delivers a ruling which would pave the path for the police to inflict torture on more people, it gives rise to grave consternation.

This issue comes up because of the Supreme Court’s 2 August judgement in the Raju Manjhi case, in which a bench of Justices N.V. Ramana and S. Abdul Nazeer held that a man can be convicted solely on the basis of the confession he had given in police custody.

This ruling , which goes against statutory provisions and ignores established precedent, has the potential to cause lasting damage.

Judicial Blunder

In the case at hand, the accused Manjhi was arrested by the police for allegedly committing a dacoity. While in custody, he is believed to have voluntarily spilled the beans on how he and his accomplices committed the crime, and where they had stashed away the spoils. Based on this information, the police recovered the incriminating articles. His lawyer had argued that the confession was extracted by force, but the court did not go into that aspect.

That is not the problem here.

Which part of the confessional statement, however, the court ought to have accepted as admissible evidence in order to convict the accused?

According to Sections 25 and 26 of the Evidence Act, a confession made in police custody is not admissible as evidence, because there is always a judicial presumption that it has been obtained under duress. This doctrine, which has become an inherent part of Indian criminal jurisprudence, traces its roots to a 1946 Bombay High Court judgement , and has been strictly adhered to ever since.

But since the law also does not want to render the police totally powerless, Section 27, which is an exception to Section 26, says that part of a statement, which provides information about incriminating articles, but not about the accused’s role in the offence (emphasis supplied), and on the basis of which the police makes some recoveries, can be admitted as evidence. This provision has also been crystallised into Indian law by a 1969 Supreme Court judgement which has since then been followed as a precedent in many cases.

Thus, in the present case, the Supreme Court clearly went against/ignored well-settled precedents, without giving any specific reason for such a deviation. In fact, the judgement does not deal with the legality of the alleged statement’s admissibility at all.

Strengthening Impunity?

A plethora of reports by both government agencies and civil society organisations over the years has proved that custodial torture is endemic in India. In fact, in its 273rd report (2017), the Law Commission of India, shocked at the proliferation of custodial torture, recommended that those state agents- policemen, military and paramilitary personnel – who were accused of custodial torture – should be criminally prosecuted instead of facing just administrative action.

The Supreme Court, hearing a PIL filed by Congress leader and former minister Ashwani Kumar, had taken note of the Law Commission’s report and had said that the government should take necessary steps of ratifying the UN Convention Against Torture. The latest statistics are more shocking.

In a report prepared by the Asian Centre for Human Rights which was released in June this year, it has come to light that a total of 1,674 custodial deaths, including 1,530 deaths in judicial custody and 144 deaths in police custody, took place from April 1, 2017, to February 28, 2018, as per figures placed by the Ministry of Home Affairs before the Rajya Sabha on March 14, 2018.

“This implies 1,674 deaths in 334 days (11 months), i.e. over five custodial deaths per day on an average during 2017-2018. This constitutes a significant increase in the number of custodial deaths as a total of 14,231 custodial deaths ie about four custodial death per day on an average were reported during 2001 to 2010”, the report states.

If this is the prevailing situation, then the apex court’s ruling in the Manjhi case would only embolden policemen to inflict custodial torture on detenues in order to extract confessions, knowing that they would be admissible in evidence.

The police would rather not conduct fair and proper investigations and will try to secure results through illegal means.

Therefore, this pernicious judgement, would grants the police an imprimatur to violate fundamental human rights, must be set aside at the earliest. The supreme court cannot afford to lose time in setting up a larger bench which must do the needful.

(Saurav is a journalist, columnist and researcher based out of Delhi. He tweets at @SauravDatta29. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)