“Torture is despair and fear and rage and hate. It is a desire to kill and destroy including you.”
Custodial violence generally indicates any kind of violence within the premises of the police and judicial custody. It includes the torture, sexual harassment, and even death of the sufferer or the victim. It is a true infringement of the human rights which are claimed by all the citizens within a country. It, not only includes the physical abuse but the mental torture is also imposed on the victim. It is extensively recognized as one of the brutal establishments on human rights, all over the world. It is generally inflicted in many ways such as hitting the spine and feet, uprooting of the teeth with force, gluing ice on the feet or other body parts, forcible positioning of the head inside the water, refusal to the medical treatment, etc. are practiced by the police on the people in custody. It is noteworthy that even after the disallowing of this evil and horrific act by the Supreme Court of India, National Human Rights Commission, United Nations, and various other institutions, the Police never stopped applying it. A recent annual report by National Campaign against Torture projected that there were 1700 cases of custodial death in 2019 with 5 deaths per day. The police officials are regarded as the protectors of the law and are delegated to maintain the sanctity of the rights of the citizens. However, they put wrong use of their power and authority over the people in their custody and impose violence on them, then in a way, they are shattering the trust of the people which is vested in them. This research paper defines and focuses on the problem of custody violence, its foundation, and the legal viewpoint of this brutal act executed by police officials.
Violence, Custody, Police Officials, Court, Dignity, Rights, Arrest, Government, Investigation.
Generally, the expression ‘Custodial Violence’ is not defined under any law. It is an integration of two words ‘custodial’ and ‘violence’. The word custody denotes guardianship and protection; it does not hold any evil symptoms even when applied to arrest or imprisonment under judicial and penal safekeeping. In an actual sense, the term violence is the act of forceful thrusting harm on a person or his property.
Our entertainment industry projects the violence on various people within the custody of the police and this reel life has a major influence on real-life scenarios. The Police agencies feel encouraged by this and practice custodial violence on the person under their authority. Therefore, it becomes complicated to figure whom to blame in this case. One thing, which is assured, is that custodial violence is an act which is extensively left without being questioned and infrequently checked. This leads to a shooting up of the situation of chaos in the police departments. ‘According to the National Crime Record Bureau, a total of 591 cases of death were reported in police or judicial custody between 2010 and 2015, cited with the reason of death as suicide, death during hospitalization, or natural death through illness. And also, around 265 deaths were recorded with zero conviction by the state between the period of 2016 and 2018’.
The elucidation and secondary data-based analysis are held to be knowledgeably aware of the lawful perspective of custodial violence in India. The information integrated is majorly from various sources such as articles, annual reports published by the government and its agencies, books, journals, and different governmental and non-governmental institutions and organizations.
REVIEW OF LITERATURE:
Violence is chosen because it is regarded as the simplest means of scrutiny and the easiest method of inflicting power and authority by police officials. Even though it is considered unlawful, the police officers impose various forms of violence on the person under their custody to get their admission of guilt or any piece of data which will be useful to them. The true picture of ‘immediate justice’ portrayed by the police agencies that have the task to maintain peace and harmony by conserving law within the state, destroys the towers of civilization, order, and justice in the society. In the case of Joginder Kumar vs. State of Uttar Pradesh, the Hon’ble court looked into the power of arrest misused by the police and stated that “no arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified.”
CONCEPT OF CUSTODIAL VIOLENCE: TYPES AND FORMS
Section 167 of the Code of Criminal Procedure, 1973 describes two types of custody i.e. judicial custody and police custody; therefore, we can split the violence into forms, which are, violence in police custody and violence in judicial custody. Within the premises of the police custody, the police officials impose violence on the person accused to investigate and he or she confesses. Not only is this but they also neglected a medical examination or the right to have legal representation on time. On the other hand, the violence in judicial custody is carried out by other jailbirds who, with time, have gained enormous power. Under this influence, the prisoners get caught up in this and become the victim of violence in heinous forms, if they don’t exhibit loyalty or obedience to them. This has its repercussions on these prisoners as in some cases they tend to commit suicide.
Moreover, there are certain forms of custodial violence as well such as psychological, physical, or sexual. In the case of the psychological form of custodial violence, the police office-holder tends to pressurize the accused and attacks the mental state or stability by the tactic of threats, harassment, denying food or sleep or water, etc. In most cases, this method breaks the spirit of the person in police custody. Physical custodial violence generally involves beating various parts of the body, and brutal torture which ultimately makes the accused apprehend sudden death. Lastly, sexual violence in the custody aims at the dignity of the accused and it has a long-lasting effect on his or her mental and physical state.
CAUSES OF CUSTODIAL VIOLENCE:
The growing problem of custodial violence is visible throughout the country. But it is important to understand the reason behind it. Firstly, being a police officer is a very challenging job. Daily basis they come across various criminals and they have to take them under custody and follow all the norms ahead. Not only this, day-by-day, the scenario of committing crimes by the people across the nation is increasing, and this eventually escalated the pressure on the shoulders of the police officers. As a result, for investigation and getting the truth, they engage in custodial violence. Secondly, one of the most disgusting reasons for custodial violence by police officials is the thirst for money. Police officers inflict harsh methodsof violence and torture to extract money from the person under their custody. Thirdly, the mindset of the policemen is such that the investigation and the truth extraction can only be done through violence and beating up the suspect or the accused. Therefore, instead of following the appropriate procedure, they take action on their level and also deprive the person of various rights such as legal representation or a medical examination. Moreover, the inadequate training of the police officers during their early days is considered an important cause of custodial violence. The lack of training and proper advice usually leads to practicing third-degree techniques. Another reason for custodial violence is the production of results to a higher authority. No matter what the repercussions are, the outcome needs to be submitted. Therefore, to ease the process of investigation, the use of harmful methods of violence becomes the prominent choice for police officers. But these reasons don’t give the liberty to the police agencies to practice brutal violence on the person under their custody. Also, these reasons are not enough for depriving the arrestee of his or her basic rights.
CUSTODIAL VIOLENCE AND HUMAN RIGHTS:
As a citizen of India or any other country, there are a certain set of rights that are assured to us and are considered fundamental and their major aim is to protect us. The most crucial and significant among these fundamental rights is Article 21 i.e. Right to Life and Liberty. Article 21 of the Indian Constitution guarantees that the citizens residing in the country shall have the right to life with dignity and personal liberty. Therefore, whenever a person is taken in the custody of the police, then this person tends to come directly under that State authority. So, the State and all the other organizations under it are bound to protect him or her. However, this conception is mostly covered under the blanket of violence by the police officials who by doing so not only infringe the fundamental rights but also the basic human rights of dignity. This not only makes people feel fear but also questions about the administration of the State. The Code of Criminal Procedure, 1973and the Constitution of India guarantees certain rights to the person under arrest such right to be informed about the reason of arrest, the right to proper medical examination, the right to legal representation, right to be produced before the Magistrate within 24 hours of the arrest, right to a speedy and fair trial, and right to be released on bail. These legal provisions are mandatory and the police officials are bound to follow them but instead, they use barbaric acts of violence on the accused for the purpose of investigation. With the constant execution of custodial violence, it becomes quite clear that the citizens of India should be protected by it.
In the case of Rudul Shah vs. State of Bihar, it was reported that the petitioner, Rudul Shah, was kept in jail illegally for 14 years. Later, the writ of habeas corpus was filed and his instant release was demanded. The Hon’ble Court held that ‘if by any state, any individual’s constitutional rights have been violated; the individual will be granted compensation.
In the case of Smt. Nilabati Behera vs. State of Orissa, the petitioner was arrested by the police officials. The next day, her body was found on the railway tracks with numerous injuries on her body, therefore, while granting compensation, the Hon’ble Court remarked that “every prisoner and the arrestee has the right to enjoy all the fundamental rights and the police have to ensure that they don’t deprive the right to life of the prisoner mentioned under the Article 21.”
In the case of D.K. Basu vs. State of West Bengal, the Hon’ble Court stated that “custodial violence is an attack on human dignity. After having many recommendations and policies, still, the cases of torture and death in police custody are increasing.” With this in mind, the Court gave a list of guidelines that became compulsory for all police officials to follow. Besides these guidelines, the Court also issues certain constitutional safeguards which are, “whichever police officer is handling the interrogation or arrest should carry their name tag in which their name and designation must be seen clearly; Police have to maintain a register of those officials who are handling the case or interrogation. Police officer arresting someone has to maintain an arrest memo in which all the details related to arrest should be there like the signature of any witness person, time, date, and place of arrest; the arrested person’s relatives or friends must be informed about the arrest and the place where he has been detained and a diary of the same is to be maintained; all the major and minor injuries of the arrestee have to note down in the form of an Inspection Memo and also it has to be duly signed by both officer and arrestee, and arrestee will get a copy of the inspection memo; the arrestee should be medically examined every 48 hours after that copies of all these documents such as a medical report, inspection memo, and arrest memo will be sent to the magistrate for their records. And while at the time of interrogation, an arrested person can meet with his lawyer; there should be a police control room in every district and state headquarters.”
INTERNATIONAL FRAMEWORK ON CUSTODIAL VIOLENCE:
The increasing instances of custodial violence are not something that is limited to our country, but it is widely growing and accepted all over the world. Therefore, this has been a growing tension for the international organizations in order to get an efficient and pragmatic foundation for combating the custodial violence faced by the people under the custody of the police officials. One such structure is United Nations Convention against Torture (UNCAT)which works toward curbing and prohibiting torture or other acts which are brutal, cruel, or inhumane in nature, all over the world by keeping a check on the governments and holding them accountable for such practice in their country. This Convention on torture was adopted in 1984 by the United Nations General Assembly; however, India became its signatory in 1997 which is later by more than a decade. Article 1.1 of the UNCAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third party, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It doesn’t include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.”
Furthermore, in the event of World War II, custodial violence became very prominent and required urgent focus. In this regard, the United Nations General Assembly incorporated Article 5 in the Universal Declaration of Human Rights which says, “No one shall be subjected to a cruel or inhumane or degrading treatment or punishment.”
Custodial Violence is not something that can be curbed on its own rather certain measures have to be taken in order to mitigate it. Remedies against custodial violence can be addressed in two ways: firstly, by taking the help of the legal provisions such as Article 20, 21, and 22 of the Indian Constitution; Section 25 and 26 of the Indian Evidence Act, 1872; Section 330, 331 and 348 of the Indian Penal Code, 1860 which provides punishment for causing injury and harm to the person under the custody. Secondly, by taking the judicial precedent into consideration where the judges have given numerous judgments which are relevant to prevent custodial violence. Another important path to prevent custodial violence is to keep a proper check on the administration at the level of the police station. Visits, checking the records, etc should be carried out by an appropriate authority. During the period of the training of the police officials, attention should be given to keeping the temper, being respectful and civilized, and avoiding any kind of brutal or heinous acts, which would often result in custodial violence. It is important to hold accountable such officials who commit the act of custodial violence and proportionate punishment should be given to him or her. Seminars and pieces of training should be conducted to familiarise the police officers with the legal provisions about it. Strict following of the guidelines and safeguard measures provided in the D.K. Base Case should be adhered. The citizens should be informed regarding their rights in case they get arrested in any kind of situation or circumstance. Lastly, sensitization of the subject, custodial violence should uphold so that it can be combated at its earliest.
The police agency which is considered as the wheel to run on the path of the society with the law is obeyed. However, in the current scenario, the police officers themselves are engaging in acts which are illegal and not only preventing the people from having their basic human rights but also violating their fundamental rights. People in police custody are suffering due to the extreme and brutal violence faced by them. They come out with many injuries and unstable mental states due to the drastic experience they witness with the police officials. The notion of custodial violence is not new, rather it is persisting in our country constantly for decades. It is growing as a concern for the people, government of our country, and international institutions. Many laws and conventions are there to prevent this type of activity but the problem is practical accountability which is lacking at another level. Another thing that is lacking is the motivation of our government machinery to fight this act of violence. Establishing laws, rules and regulations are not going to be supported till the time its on-ground enforcement is checked. Therefore, prevention of custodial violence is difficult but not impossible. Nationally and internationally, the organizations and institutions need to work in collaboration so that this long-existing problem can be erased from our societies permanently. Working together will make it easy to fight custodial violence.
By – Vishakha Bhardwaj
National Campaign against Torture, Annual report on Torture, 2019.
Wadhwa & Company Nagpur, India, P. Ramanatha Aiyer: The Encyclopedic Law Dictionary with Legal Maxim (1992).
Joginder Kumar vs. State of Uttar Pradesh, 1994 4 SCC 260.
Rudul Shah vs. State of Bihar, 1983 SCR (3) 508.
Smt. Nilabati Behera vs. State of Orissa, AIR 1993 SC 1960.
D.K. Basu vs. State of West Bengal, 1997 (1) SCC 416.