Civil liberty must precede enforcement efficiency

THERE is something manifestly unusual in the media report that says that the police have sought cancellation of a legal provision that bars them from justifying torture and inhuman treatment of anyone in custody even in circumstances like war and political unrest. The Torture and the Custodial Death (Prevention) Act 2013 makes torture by law enforcers and government officials a punishable offence.

Any society believing in the pre-eminences of civil liberty must register a serious protest and condemn custodial torture or death. In fact, 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.

Experiences indicate that police officers alone, and none else, can give evidence as regards the circumstances in which a person receives injuries while in their custody. The reality is that quite often the persons on whom atrocities are perpetrated by the police in the sanctum of the police station are left without any evidence to prove who the offenders are. 

Torture in custody flouts the basic rights of the citizen recognised by the constitution and is an affront to human dignity. Torture and death in custody tarnishe the image of any civilised nation and encourage the persons in authority to consider themselves to be above law. The reality is that rarely in case of torture by police or custodial death, direct evidence of complicity of police would be available. 

The Indian Supreme Court has observed that with regard to bodily injury to a person in police custody, if there is evidence that the injury was caused during the period when the person was in police custody, the court may presume that the injury was caused by a police officer having custody of that person during that period, unless the police officer proves the contrary. 

There is a continuing effort to ensure that the system created to protect civil liberties does not become the instrument of bondage. In addition, there are activities to see that the manner of control and the nature of the system's work in relation to containing crime and disorder does not take away those basic freedoms enshrined in domestic and international laws.

It should be both possible and desirable for coercive power to be mixed with discretion, particularly in respect of protecting civil liberty. For example, where police have power to arrest, to bring people before the courts of law, it may not always be necessary to use it since arrest and detention before proof of guilt is an administrative convenience and not a punishment. The securing of the balancing of human liberty with adequate control of human indiscretion is a democratic necessity.

The reality on ground is that the rule of law, in its application to the criminal process, is primarily concerned with the protection of the rights of the accused persons and not of the victims. In upholding civil liberties of the citizens, a basic principle of criminal jurisprudence is: "let ninety nine guilty persons be acquitted but not even one innocent person be convicted."

It would appear that the rule of law and criminal jurisprudence are unequivocally in favour of the offenders, the criminals, the law breakers and the accused persons. One could say that the dice from the very beginning is loaded against police effectiveness. One may be led to believe that police effectiveness and civil liberties can hardly co-exist in a society governed by the rule of law. One could say that the society is constrained to sacrifice police effectiveness at the altar of civil liberties, and that it is the desirable course.

In our democratic dispensation citizens would expect much of their police. The police have to negotiate a delicate balance. They have to secure human rights and at the same time exercise their lawful powers given to them by governments in the name of the people, to protect the people and their institutions.

Laws have been promulgated which give police wide powers to deny human rights, in some cases even the most basic civil liberties. Thus police authority can be abused in a democratic polity. Such authority would actually snuff out more freedom than it protects. The main problem lies in control. 

Under circumstances as above, the government in its earnestness to uphold civil liberties, has to ensure that those who are chosen to exercise the power and authority of police officials are carefully selected for their human qualities, properly trained to perform their difficult duties in an ethically correct manner and, very importantly, be led and directed by persons with high qualities of human excellence.

When police are seen to be at the service of human liberty public support will be forthcoming to a greater degree. It is thus important that police officials are enabled to address their minds to this phenomenon. In fact, social actions and influence of police could be brought to bear in significantly preventing crime and disorder.

Where individuals or groups are exposed to great inequality of treatment or rendered victims to denial of human rights and civil liberties generally, they may resort to anti-social or criminal behaviour. Therefore, police with a developed social awareness will have better opportunities for prevention of crimes and maintenance of social order.

Our police need to develop an attitude which embodies an instinct or a perception for human liberty and dignity. Being witness to human beings often falling in degrading and degraded situations, they are exposed to the influence of cynicism. They have to avoid becoming indifferent, however difficult that may be, if they are to develop and retain proper judgment of and appreciation for the rights and dignities of all.

It is desirable for police officials to acquire a general consciousness of concepts of democracy, justice, fundamental freedoms and human rights. But this in itself would be insufficient if police practice were not pervaded and directed in accordance with this consciousness and knowledge.

The writer is a columnist of The Daily Star.