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Is over-reliance on confessions inviting killings in custody?

Pradeep Tomar was reportedly called in to the police station for questioning in connection with the murder of a woman.

An 11-year-old child reportedly saw his father being beaten up in police custody, a beating that eventually led to 35-year-old Pradeep Tomar's death.

Tomar is just one among hundreds of people who have died during coercive interrogations that are more a norm than exception in India.

Not too long ago, the Unnao rape victim's father lost his life while in police custody after reportedly being beaten up mercilessly.

While the National Crime Records Bureau (NCRB) data is discussed each year for rape and murder figures, custodial deaths remain largely a topic of discussion for human rights groups only. According to the National Human Rights Commission (NHRC), in 2018-19, there were 136 cases of deaths in police custody, while the number of deaths in judicial custody for the same period stood at a staggering 1,797. The numbers have remained more or less the same over the past few years.

Uttar Pradesh, where Tomar died, has the dubious distinction of having the highest number of such cases. During January to August 2017, 204 such deaths were reported in UP, and by February 2018, the numbers had almost doubled.

Tomar was reportedly called in to the police station for questioning in connection with the murder of a woman. The woman's husband allegedly hired two men to kill her for Rs 1.5 lakh. Tomar is believed to be the person the husband asked to pay the contract killers.

Tomar's son, who had accompanied him to the police station, said that his father was first abused by policemen and then the beating started. Soon after the beating, Tomar said he wasn't feeling well. He was taken to a hospital but soon died.

Many policemen would tell you (off the record, of course) that they need to use coercive techniques to elicit a confession or information needed to find evidence that would stand scrutiny in a court of law.

What the law says

India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the UN Convention Against Torture (CAT) on October 14, 1997. However, so far it has not been ratified.

The central government first said that under the Indian Penal Code, 1860, torture is a punishable offence. Later, it decided to go for standalone legislation and the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha to give effect to the provisions of the convention. The Bill was passed by the Lok Sabha in May 2010. Rajya Sabha referred the Bill to a select committee which had proposed amendments to the Bill to make it more compliant with the torture convention. However, the Bill lapsed with dissolution of the 15th Lok Sabha.

According to NCRB data, between 2000 and 2016, there were 1,022 deaths in police custody. But FIRs were filed in 428 cases only.

The conviction rate in cases of custodial deaths is abysmally low. (Photo: Reuters)

Out of this, only in 234 cases did the police file charge sheets so that court proceedings could take place. Not surprisingly, only 24 policemen have been convicted so far. In 50 per cent of custodial deaths, magisterial inquiries were not conducted. The court often orders that a special investigation team (SIT) probe such cases, but then, SIT comprises police personnel who are likely to be sympathetic to fellow cops "bound by the ties of brotherhood".

The Supreme Court has repeatedly noted that with custodial crimes, producing evidence against the police is very difficult.

It is little surprise then that during India's May 2017 Universal Periodic Review (UPR) at the United Nations Human Rights Council, 35 countries raised the issue of torture in India. They called on India to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The reliance on confessions

Police personnel resort to torture mostly because there is an over-reliance in law on confession.

The "Trial and Torture to Elicit Confession" is discussed in detail in Kautilya's Arthashastra:

"There are in vogue four kinds of torture (karma):-- Six punishments (shatdandáh), seven kinds of whipping (kasa), two kinds of suspension from above (upari nibandhau), and water-tube (udakanáliká cha). As to persons who have committed grave offences, the form of torture will be nine kinds of blows with a cane: 12 beats on each of the thighs; 28 beats with a stick of the tree (naktamála); 32 beats on each palm of the hands and on each sole of the feet; two on the knuckles, the hands being joined so as to appear like a scorpion; two kinds of suspensions, face downwards (ullambanechale); burning one of the joints of a finger after the accused has been made to drink rice gruel; heating his body for a day after he has been made to drink oil; causing him to lie on coarse green grass for a night in winter. These are the 18 kinds of torture... Each day a fresh kind of the torture may be employed.

Visaranai, a movie that depicts a sordid tale of what happens in Indian jails to extract confession was, India's official entry into Oscar's in 2016. So poignant was the theme that the film went on to win three honours at the national awards. (Source: Reuters)

"Those whose guilt is believed to be true shall be subjected to torture (áptadosham karma kárayet). But not women who are carrying or who have not passed a month after delivery. Torture of women shall be half of the prescribed standard."

Confession, in modern India, is of two kinds: judicial and extra-judicial.

Judicial confession is that which is made by the accused before a magistrate or in court during the course of legal proceeding, whereas extra-judicial confession can be made anywhere by the accused other than before the magistrate. The Supreme Court maintains that an extra-judicial confession can be relied upon if it stands "clear and consistent". The court decides what is clear and consistent and so the cops believe in securing a confession that they can still present before the court to establish their case. Even a retracted confession, an admission made and recanted, can be held against an accused if the court finds that it holds true. This can lead to conviction and sentencing.

Naturally, the cops then want to have a confession in hand - even one that can be retracted - than not have any. Torture is a cop's first go-to option to secure this confession.

Interrogations can probably become less violent if the over-reliance on confession is reduced. Culpability can be established by way of evidence collection or moving away from coercive interrogation.

The impact

Not all custodial deaths are, however, caused due to torture. Many commit suicides too due to depression or guilt. It is, however, difficult to say how many cases of death due to torture are covered up as suicides.

The staggering number of such cases and the failure to ratify CAT has made it difficult for India to secure the extradition of many wanted criminals.

It is time India took note.

Also read: This is what Kashmir went through in the 70 days since Article 370 was scrapped

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