Keeping a wary eye on custodial torture

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Offline Talukdar Rasel Mahmud

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Keeping a wary eye on custodial torture
« on: April 05, 2015, 02:50:17 PM »
The notion of 'custodial violence' includes all types of wanton acts that cover physical and mental torture inflicted upon a person in police custody. It is a brutal and inhumane treatment to a person that often includes death and torture in police lockups. Violence in police custody most likely includes slapping, kicking, beating, sexual harassment and rape. Keeping people in lock-up like animals, providing inadequate or no food or drink, keeping men, women, children together are also brutal and inhumane practice in police custody.

Custodial violence is a crime against humanity and a naked violation of human rights. The Indian Supreme Court held it as "….nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights'[Kishor Singh Ravinder Dev Etc vs State Of Rajasthan (1980)].”

The Supreme Court of India provides some observations on torture in police custody that the torture is committed under the shield of uniform and authority in the four walls of a police station or lock-up and the victim become totally helpless [D.K. Basu vs. State of West Bengal]. It was also stated by the court that the custodial torture is a naked violation of human dignity and degrading which destroys, to a very large extent, the individual personality.

The Eighth Amendment of American Constitution provides a prohibition against cruel and unusual punishments. Likewise, the Constitution of Bangladesh also prohibits torture and other forms of cruel and degrading treatment under Article 35(5). Custodial torture and violence are clear violation of fundamental rights within the scaffold of our constitution. Some provisions of the Code of Criminal Procedure, 1898 call for judicial scrutiny by magistrates in the event of granting detentions and remand with a view to reducing, if not eliminating, custodial torture. The Penal Code, 1860 of Bangladesh also provides that causing hurt to a person in order to extract confession, wrongful confinement voluntarily, causing grievous hurt, rape and murder are punishable offences. Again, Article 35(4) of our constitution provides protection against self-incrimination. Again, a person shall not be compelled to be witness against himself and an arrested person should not be coerced and intimidation to answer self-incriminating questions under section 25 of the Evidence Act. But these provisions are being neglected by law enforcers over years.

Custodial violence is an open secret in our dehumanised authoritarian society. In this milieu, the recent placatory enactment by parliament namely the Torture and Custodial Death (Prevention) Act 2013 deserves to be appreciated. It has been made to comply with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention").

The history of this enactment is a unique one that a bill was presented in Parliament as a private member bill by Mr. Saber Hossain Chowdhury MP as he experienced custodial torture during the regime of the BNP (Bangladesh Nationalist Party). Some people are criticising the ruling party as they think it has been passed for their protection when they will appear in opposition. But whatsoever the criticisms, the act criminalises all forms of tortures and violence in police custody.

The newly-passed law has defined custodial death as any death in custody of any public servant, death in custody in illegal detention, death during arrest by law enforcers, and death during interrogation. It defines torture as any act or omission that causes physical or mental pain to any individual for obtaining from that individual or some other individual, information or a confession, or for punishing that individual for any act or omission, for intimidating or coercing that person or some other person. It also says causing physical or mental pain to an individual through discrimination at instigation of someone or at the individual capacity or government capacity would also be considered as torture. Again it stipulates that the police, Rapid Action Battalion (Rab), Border Guard Bangladesh (BGB), Customs, Immigration, Criminal Investigation Department (CID), intelligence agencies, Ansar & VDP, Coast Guard and other public servants cannot extract confessional statement through torture.

The act also provides punishment for custodial deaths. Within the meaning of this law if anyone dies from torture in custody, the convicted individual would be sentenced to maximum life-term jail or minimum Tk 100,000 as fine or both. In addition, the convicted individual would have to pay compensation of Tk 200,000 to the family of the victim.

The law addresses delays in investigation and adjudication of the cases of custodial violence for the first time in Bangladesh as it mandates that any investigation into cases of torture will have to be completed within 90 days of registration of a complaint, and the trial will have to be completed within 180 days. It also mandates suspension of the accused from service during investigation.

The enactment has been highly commended by the Asian Human Rights Commission (AHRC). It has stated that "the enactment is the quintessence of the struggles and demands of the people, survivors of torture, families of extrajudicial executions, and human rights defenders to end the culture of custodial violence in the country". However, AHRC emphasises on more advertisement of this law by publicising for creating public awareness about it. AHRC also suggests that the new law should be included in all legal education programmes and curriculums for students of law as well as for police and judicial officers.

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« Last Edit: April 05, 2015, 03:17:46 PM by Talukdar Rasel Mahmud »
Talukdar Rasel Mahmud
Lecturer, Department of Law
Daffodil International University (DIU)
Contact No:+88 01719 479603.