04, Dec 2020 | CJP Team
A Facebook Live discussion was organised by Citizens for Justice and Peace (CJP) with Senior Counsels and human rights advocates Nitya Ramakrishnan and Mihir Desai and veteran Rights Advocate Henri Tiphagne on December 3, 2020. It was moderated by CJP secretary Teesta Setalvad.
The exclusive discussion started with welcoming the recent judgment of Paramvir Singh Saini vs Baljit Singh (SLP Crl. No. 3543 of 2020) in which the Supreme Court directed States and Union Territories to install CCTV cameras in all police stations to curb custodial violence and check human rights abuse.
Senior Counsel Nitya said that the latest judgment on CCTVs is very powerful and getting an independent agency to review footage real time to ensure no manipulation takes place will go a long way to prevent custodial torture. The committees are now charged with a positive obligation to review footages of cases that are otherwise not reported but there is a scope of moving ahead, according to her.
“I feel 24 hours real time viewing video footage should happen to avoid editing and manipulation of any kind. Magistrate is the single most important unit in countering custodial torture as they have the closest access during police and judicial custody”, she added. This is the most far reaching judgment in the custodial torture matter she remarked.
On the issue of compliance with directions raised by Teesta Setalvad, Mihir Desai said that it is the duty of the civil society to take up the cause and implement the judgment. He opined that custodial torture has always been illegal, but this judgment will help set up CCTVs to point out exactly which police personnel were responsible for the abuse. He said that this is an extremely important judgment and focused on the fact that through this judgment, successful prosecution will play out against custodial torture.
Henri Tiphagne said that this is an important beginning. “This judgment should be taken to the streets by the civil society”, he said. The latest judgment should be made available in Tamil so that the Judicial Magistrate is told what further step is to be taken. District Legal Services authorities and activists should take the judgment forward and ensure that directions are followed, he stressed.
He referred to the Madurai Bench judgment on the same matter and said that from a medico legal standpoint, family and activists have a right to click photographs, get access to post mortem reports which is a very significant step in keeping a check on abuse.
On the power of Magistrates, Ramakrishnan said that any person arrested must be produced before a Magistrate. It is the duty of the Magistrate to explain all the Constitutional and custodial rights to the accused. He must ask the detenue about custodial abuse and engage with him/her to set in motion a trustworthy dynamic. So, the civil society also needs to engage with Magistrates to induce energy into them. “This is the first brush of the judiciary with criminal justice”, she added.
Further, when the accused is brought to make a confession, the Magistrate should make the accused feel confident enough to reveal if he is being forced to make a confession. He is responsible to see if DK Basu guidelines of medical conditions, ground of arrests, presenting him/her before the Magistrates are being followed. Accused must feel emboldened to speak to Magistrates, senior counsel Nitya noted.
Mihir Desai said that Maharashtra has the highest number of custodial deaths in the country and there are hardly any convictions. He added that many good directions have been passed by the Supreme Court and various high courts over the last 40-50 years, but in the latest judgment they have paid attention to detail to matters like defective cameras.
Another significant area senior counsel Mihir Desai focused on was investigative agencies apart from police stations. “This order not only covers police and the six agencies named, but to any agency that has the power to arrest and interrogate. So now the army in Kashmir and the North East can also be monitored. So, the SC has applied its mind carefully”, he said. North east regions and Kashmir have had allegations of custodial torture over the years.
Further into the live session, Teesta Setalvad stated that in the Post-mortem stage, a medico legal procedure, has been shrouded in secrecy until the Madurai bench order on the post-mortem procedures. She asked how can transparency and accountability be ensured in such processes that are related to life and human dignity.
Henri Tiphagne cited the example of the Santhakulam torture cases where they kept the father son duo in a hotel that lacked CCTV cameras. He said that post-mortems are rarely conducted by forensic experts. In a recent case, it was conducted by doctors who were not forensic experts and only a 7 minutes-long video was recorded on a mobile phone. But the Madurai bench judgment shatters this, he said.
When Setalvad brought up the topic on culture of torture in India and the Government’s reluctance to ratify the Convention against Torture, Ramakrishnan was of the opinion that we need to tackle this outside the law because of people’s mindset. “We as a people, through our movies and popular culture, have come to believe that torture is necessary”, she said.
She pointed at the Hindi movies that glorify torture and physical abuse. She suggested that torture needs to be condemned via poetry, plays, other popular culture media in India. She also added that the system needs to move away from a desire to have victims prove the abuse and run pillar to post for justice. Mihir Desai said that India hasn’t ratified the international convention on torture but once ratified, there is an obligation to have legislation against torture.
The moderator further asked for recommendations and advice to abolish custodial torture. Nitya Ramakrishnan focused on district and state legal committees and the reviewing of CCTV footages periodically. Every case of torture should be dealt at the lower judiciary, she believes. Senior counsel Ramakrishnan also suggested a pilot project where lawyers, activists watch all proceedings from the moment the accused is produced before the Magistrate. She also strongly recommended that when an accused is presented for a medical examination, one family member must be present to ensure that there has been no violation.
Lawyer Henri Tiphagne commented on how the situation in India can change after ratifying the Convention against Torture where the Government has consistently attempted to not ratify it. He said a continuous campaign to ratify it must go on. “To sustain this campaign, we must document local cases”, he said. Human rights are better protected in the lower judicial level and was positive about the basic approach towards torture changing with younger Magistrates taking the lead.
Mihir Desai finally suggested that all monitoring processes need to be followed and complied with routinely, in peacetime and not wait for a tragic incident to happen, with other panelists in strong agreement.
The entire exclusive Facebook Live session may be viewed here:
Image courtesy: Amna Suraka Prison, (Red Security Museum), Sulaymaniyah, Iraq