Anushka Jha ~ Law College Dehradun.

Introduction

Custodial Violence means the torture faced by the persons in judicial custody. It is considered s one of the cruellest practices and the worst form of human rights abuse, especially in a democratic country like India. Since the British era, these practices have been followed when human beings were treated like animals, but even after 73 years of Independence, such practices are still prevalent in society. The person in custody is subjected to torture to extract the truth, and in certain situations, they are forced to accept the crime. This torture includes physical and mental torture, sexual harassment, rape, and death. Many provisions are being made but were of no use because of their poor implementation. According to reports of NCRB in 2019, around 1,731 people died in custody with only 26 convictions by the state, and around 2,000 cases of human rights abuse were recorded.

This article focuses on the causes of Custodial violence and the landmark cases where guidelines have been given for providing safeguards and suggestions to prevent such crimes by the police officers.

Causes of Custodial Violence

There are various reasons for custodial violence. Some of them being

  1. Not Following International Conventions

India being a signatory member of UN conventions has signed the UN Conventions Against Torture but still it has not been ratified which is a major reason for the growth of such practices as no measures to combat this has been followed by the Parliament.

  1. No Access to Prison

Because of no access to the prison, the true picture of the investigation by police officers doesn’t come to light.

  1. Lack of strong legislation

It is one of the main causes of the growth of custodial violence as India lacks any legislation against custodial torture so the cases increase every year with a lesser conviction rate of the state and the police officers perform such acts fearlessly.

  1. Use of excessive force

Police officers being less patient use excessive force during interrogation and no other forms of investigation are adopted by them as their primary motive is to extract the truth as soon as possible.  Due to lack of supervision by the senior officers, they perform their duties negligently causing custodial torture.

  1. No respect for the fundamental rights of the persons

While doing investigation no respect for fundamental rights of the person are being taken care of due to the unhealthy competition to extract the truth as their final aim is to make the accused accept that he did the crime.

Landmark Cases

The Supreme Court in its various Judgments made certain guidelines to be followed by the police officers during investigation in custody so as to give protection against custodial violence.

  • Rudal Shah v State of Bihar (AIR 1983 SC 1086)

In this case, SC for the first time observed that if any Constitutional rights of any person are violated by the State then the person is liable to get compensation.

  • Joginder Singh v State of UP

In this case, SC said that “police officers cannot arrest a person without reasonable justification. A proper balance must be maintained between the interests of the society and the fundamental rights of individuals”.

  • D.K Basu vs. State of West Bengal

Certain guidelines are laid down by the Hon’ble Supreme Court in this case which is to be followed by police officers during the investigation

  1. The police personnel conducting the investigation should have accurate, visible, and clear identification and name tags with their designations.
  2. An arrest memo containing all the details of the arrest is required to be maintained by the investigating officer which is attested by one of the witnesses.
  3. It is the duty of the officer to inform the relatives or friends of the arrested person about his arrest including the time of arrest and the place where he has been detained. A diary must be maintained for the same.
  4. Medical Examination of the arrested person must be performed every 48 hours.
  5. Copies of all the documents of the investigation must be sent to the magistrate.
  6. The person in custody must be given the right to meet his lawyer.
  7. The person is required to be presented before a magistrate within 24 hours.
  8. A person who has been arrested must be made aware of his rights.
  9. Police control rooms must be set up in all the districts as well as in all the state headquarters and all the information is required to be communicated to all the Districts.
  10. Duty of the Police Officers to handle the case in a fair manner.

Safeguards

  • Constitutional Safeguards

It has been held in the plethora of Judgments that being in Judicial Custody doesn’t waive off basic fundamental rights of an individual and they are free to approach the Apex Court for remedies if there is any violation of their Fundamental Right.

Article 20- This article gives protection against conviction for offenses. According to this article person cannot be convicted for violation of any retrospective laws which means the person is subjected only to the existing laws, also against double jeopardy i.e. a person cannot be convicted for the same offense twice and the most importantly against self -incrimination as during investigation persons are treated harshly and brutally to force them to admit their crime.

Article 21 It protects against the atrocities, harassment, and use of third-degree methods to the persons in custody. It has been observed by the Supreme Court that these methods are against human dignity and so they must be prevented as persons in judicial custody[1] are also entitled to the right of life and personal liberty except by a procedure established of law and the right to life doesn’t mean mere animal existence it means to live with dignity and the scope of fundamental rights is extended to human rights as well[2].

Article 22- It gives protection against arrest and detention. According to this article, a person cannot be arrested without giving the reason for his arrest, he cannot be denied the right to hire a legal practitioner of his choice, protection against detention for more than said time, and the person arrested must be produced before the magistrate within 24 hours.

  • Other statutes

Indian Penal Code 1860-

Sections 330,331 and 348 are the provisions of IPC that deal with custodial torture. An amendment was made in the IPC after Mathura Rape Case in Section-376(1)(b) of IPC which penalizes and punishes the policemen if they commit Custodial Rape.

Criminal Procedure Code, 1973-

Sec 46 and Sec 49 of CrPC imposes restrictions on the barbaric methods used by the policemen during the investigation.

Indian Evidence Act, 1872-

Certain provisions of the act such as Sec 24, 25, and 26 which states the non-admissibility of the confessions made in the judicial custody. Therefore, even if a crime is accepted by the person out of the apprehension of police officers it is not admissible in court.

Indian Police Act-

Sec 7 and Sec 29 are provisions that have been inserted to keep a proper check on the police officers who are negligently performing their duty.

  • National Human Rights Commission

The commission has been set up to keep a check on human rights violations. Increasing cases of custodial torture during an investigation by the police officers who are performing their duties arbitrarily is causing a violation of the basic human rights of the people. Therefore, commissions like NHRC is required to keep a proper check on this. NHRC since time memorial has been very vigilant in these types of cases. It has led to certain guidelines that are mandatory to be followed by the police officers doing the investigation.

  • United Nations Convention Against Torture

This convention was adopted by the General Assembly to combat torture inflicted on the prisoners. 136 countries of the world ratified this convention. India is a signatory to the UN signed this convention but never ratified it.

  • Universal Declaration of Human Rights

After World War II, provisions for prohibiting torture was inserted in UDHR by the General Assembly.

Article 5 of UDHR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Article 8 of UDHR states that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.

These articles impose a ban on custodial violence as human rights abuse and paves way for the protection of human rights.

  • International Covenant on Civil and Political Right

Article 7 of ICCPR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. This provision is similar to Art.5 of UDHR and the objective of this provision is to protect a person from both physical and mental torture.

Suggestions

  • Ratifying UN Convention against torture

Frequent incidents of custodial torture are an alarm that it is high time that India must ratify the UN convention against torture and introduce “Prevention of Torture Bill, 2017”

  • Access to prison

As said in the landmark case of DK Basu that it must be compulsory that non-official visitors can make surprise inspections of prisons so that they come to know about the real conditions of the person in judicial custody.

  • Installing CCTV cameras

Installing CCTV cameras in prisons can be an effective measure to keep a check on the methods used for investigation in custody.

  • Police Reforms

“Police Act of 1861” must be amended to prevent the abuse of power by the police officers and strict guidelines must be laid down that must be followed by officers while investigating persons in judicial custody.

  • Implementing the 273rd Law Commission Report

In the 273rd Law Commission Report, it is recommended that whoever is accused of committing custodial torture may it be policemen, military or paramilitary personnel should be prosecuted criminally rather than taking a mere administrative action against them. This report must be implemented so as to prevent custodial torture.

Conclusion

“Life means not only physical existence. It means the use of every limb or faculty through which life is enjoyed. The right to life includes the right to a healthier environment”.

                                                                                                                   ~ Justice P.N. Bhagwati

Arresting a person doesn’t mean that their human rights, as well as fundamental rights, are waived off as these are the rights which are available to both civilians as well as prisoners so being in prison doesn’t give license to the officers to treat them like animals. It is important that proper checks are required to prevent crime in society but it must be taken care of while protecting the interests of the society basic human rights as well as fundamental rights of individuals are compromised. So effective mechanisms must be implemented to stop the spread of this heinous crime.


Citations

[1] Sunil Batra v. Delhi Administration, (1978)4 SCC 409.

[2] A.D.M Jabalpur v. ShivKant Shukla,(1976)2 SCC 521.

Custodial Violence: Human Rights Abuse

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