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Custodial Torture and Deaths

Introduction : Anyone with limited legal knowledge would be able to make out that this term means something negative. So what is custodial violence and why is it in the news so often? To answer why we hear or read about it so often, we need to understand what it means. Custodial violence is the term given to the inhuman treatment of individuals in custody by the police.

This act isn't something new, as it has been in existence for a very long time. But then why haven't we been able to solve this problem? What are the various forms of custodial violence? Up until now, what steps have been taken by our country to solve this problem? All these questions are answered in this article.

What is custodial violence

According to the Chambers Dictionary, the condition of being held by the police, arrest, or imprisonment is called 'custody'. Violence means the use of force by one person over another so as to cause injury to him. The injury may be physical, mental, or otherwise.

Custodial violence basically means torturing or inflicting violence on an individual or group of persons while in the custody of the police or judiciary. According to the Law Commission of India, crime by a public servant against the arrested or a detained person who is in custody amounts to custodial violence. Usually, custodial violence results in the death of the victim or trauma to the victim. It is important to note that the term custodial violence has not been defined under any law. Custodial violence includes illegal detention, wrongful arrest, humiliating suspects, extorting information under pressure, and physical, mental, and sexual violence.

Some of the statistics released by the National Human Rights Commission (NHRC), National Crime Records Bureau (NCRB), and National Campaign Against Torture (NCAT) are discussed below:
  • 151 people died in police custody in the year 2021 as per NHRC.
  • 1,569 deaths in judicial custody were recorded in the year 2020 by NHRC
  • 55 deaths by suicide due to police torture were recorded in the year 2020 by NCAT
  • Torture of women in custody, custodial rape of women, and gang rape were also reported.

Types of custodial violence

The authorities come up with different types of violence for different circumstances for purposes like extracting information or abusing authority.
  • Physical violence
    This is the most common form of violence used by the police. This involves using physical force to cause bodily harm and exhaustion to the victim. In some instances, this form of custodial violence can cause the victim to fear immediate death.
  • Psychological violence
    The next type of custodial violence deals with the mental aspect of the victim. This involves depriving the victim of basic needs like food, water, sleep, or toilet thereby causing the victim to lose confidence and morale. Humiliation or threats to the dear ones of the victim can cause them mental agony.
  • Sexual violence
    Any sexual or attempt to obtain a sexual act by violence or coercion is called sexual violence. This includes rape, sodomy, etc.

Causes of custodial violence in India

There are various causes of custodial violence by the police:
  • One of the biggest causes can be attributed to the absence of an Anti-Torture law in the country.
  • Due to loopholes in the system, the policemen do not fear being caught in the act. This encourages them to continue with their violent methods of extracting information or to teach their enemies a lesson.
  • Lack of awareness among the public about their rights makes them easy victims. When victims are not aware of their rights, it gives the policemen the confidence to carry on with violent means to deal with people.
  • Lack of proper training also is another cause. The policemen are not properly trained to deal with suspects. Little attention is paid to their emotional intelligence which remains unchecked, thereby leading to them being violent easily.
  • Lastly, the huge responsibility on their shoulders, pressurises them to use faster methods to solve a case. Some policemen crack under this pressure and resort to violent means to get information quickly.

Indian laws dealing with custodial violence
The lawmakers have kept this possibility of custodial violence in mind while drafting laws that provide safeguards to citizens and place limits on the powers of the authorities. Let's look at each one of these safeguards:

Article 20(1) of the Constitution:
Article 20(1) of the Indian Constitution provides that, no person shall be convicted of any offence except for the violation of law in force at the time of the commission of the offence. No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This article thus stops the authorities from charging people with offences not in force at the time and also they can not subject them to a greater penalty.

Article 20(2) of the Constitution:
Article 20(2) of the Indian Constitution provides that, no person shall be prosecuted and punished for the same offence more than once.

Article 20(3) of the Constitution:
Article 20(3) of the Indian Constitution provides that no person shall be compelled to be a witness against himself. This stops the authorities from coercing the accused to provide evidence.

Article 21 of the Constitution:
The ambit of this article is quite extensive. It states that no person can be deprived of life and liberty except according to the procedure established by law. Hence it guarantees to safeguard against any form of torture, assault, or injury.

Article 22 of the Constitution:
Article 22(1) and Article 22(2) are there to ensure certain checks exist in law to prevent abuse of power by authorities. Article 22(1) provides that no person shall be arrested without being informed about the grounds of arrest nor shall he be denied access to a lawyer. Article 22(2) provides that every person who is arrested shall be produced before the magistrate within 24 hours of such arrest excluding the time taken for the journey from the police station to the magistrate.

The Code of Criminal Procedure (CrPC) 1973:
Section 41 of the Code of Criminal Procedure, 1973 was Amended in 2009 to include safeguards under 41A, 41B, 41C, and 41D so that procedures for arrest and detention for investigation purposes have reasonable grounds and the procedures to be documented. Also, family members, friends, and the public to be informed of the arrest, and legal representation to be allowed for the arrested individual.

Section 163 of the CrPC prohibits the investigating officers from inducing, threatening, or promising under Section 24 of the Indian Evidence Act (1872). Section 164(4) of the CrPC provides that confessions be recorded and signed in a proper manner and confirmation by a magistrate that the confession has been made voluntarily. Section 49 states that more restraint than necessary cannot be exercised to prevent one's escape.

Indian Penal Code (IPC) 1860:
Section 220 provides for the punishment for an officer who maliciously confines any person. Section 330 of the IPC provides that whoever causes hurt to extract information or confession which may lead to detection of offence shall be liable to be punished with imprisonment which may extend to 7 years and a fine. Section 331 states the same about grievous hurt but with imprisonment which may extend to 10 years and a fine. Section 348 of the IPC prohibits wrongful confinement and any such confinement for extorting any confession or information for detecting crime. Such confinement is punishable with imprisonment of up to three years and also liable to a fine.

Indian Evidence Act 1872:
Section 25 states that no confession made to a police officer can be used to prove any offence against the suspect. Section 26 makes confessions made during custody inadmissible unless made in the presence of a magistrate.

Police Act 1861: Section 29 of the Act provides that if a police personnel inflicts violence on a person in his custody, he shall be liable to a penalty not exceeding 3 months of pay or imprisonment not exceeding 3 months or both.

Role of a Magistrate

Article 22(2) provides that every arrested person has to be brought before the nearest Magistrate within 24 hours of arrest excluding the time taken to travel from the place of custody to the magistrate. Also, no one can be kept for more than 24 hours without the order of a magistrate. So the arrested person is brought before the Magistrate whose duty is to examine if the arrested person has been subjected to custodial violence. The arrested person is questioned regarding the same and the magistrate is required to inform him of his right to get medically checked. The magistrate has the duty to decide if the arrested person is to be sent to remand.

Since the Magistrate is the first stop where the arrested person is presented after arrest. It is also the first stop where the victims of custodial violence get the chance to be heard. Here, the role of the Magistrate becomes crucial in deciding the fate of a custodial violence victim. If the victim is not heard or examined properly, then sending him to remand would worsen his situation. Hence, the Magistrate should be vigilant and be proactive while dealing with cases of custodial violence and make necessary interventions to protect the rights of the arrested persons.

Recent instances of custodial violence

The most recent instance of custodial violence took place in the State of Tamil Nadu in the year 2020. Jayaraj and his son Fenix were picked up by the police for inquiry into their alleged violation of the Indian Government's COVID-19 lockdown rules. They were sexually assaulted and tortured by the police which led to their deaths. The torture continued for 7 hours and the police staff took turns in beating the two. They were stripped naked which added to the brutality.

In another case, 4 men accused of raping and murdering a 27-year-old veterinarian were taken into custody. The news of rape had sparked a huge outrage all over the country. The police during the investigation, fired upon the accused leading to their death. This raised concerns about custodial violence and an inquiry was set up. A panel headed by former SC Judge V.S. Sirpurkar found that the police fired at the accused with an intention to cause death. The panel recommended filing murder charges against the 10 policemen responsible for it.

Recently Vikas Dubey, a gangster, was arrested for killing eight police personnel in Kanpur. While he was being transported the next day, the vehicle carrying him met with an accident and overturned. The police alleged that while a policeman was fixing a flat tire, Dubey snatched his gun and tried to flee. This provoked the police and he had to be shot. There have been several clues indicating that this was staged and that it was another case of custodial violence.

In the month of June this year, five policemen were booked for torturing a man suspected of a crime in Uttar Pradesh. The policemen reportedly inserted a stick inside his rectum and gave him multiple electric shocks. After realising that they had arrested the wrong person, they paid him Rs. 100 and let him go.

Landmark cases relating to custodial violence

There have been several judgements made by the Supreme Court where they have taken steps to curb police brutality or custodial violence.

Nilabati Behera vs. State of Orissa, 1993

Facts of the case
In this case, Suman Behera, the petitioner's son, was arrested by the police and on the very next day, his dead body was found on the railway tracks with multiple injuries. The police claimed that the victim had escaped from the Police Station and was found dead on the railway tracks the next day.

Issues involved in the case:
  • Whether the victim suffered injuries due to custodial violence.
  • Whether the police are liable for the death of the victim.

Judgement of the Court
The Supreme Court found that the injuries were inflicted on the victim while he was in custody, thereby indicating that he was subjected to custodial violence. The court held that providing compensation is the responsibility of the State and not the police and awarded a compensation of Rs. 1,55,000.

D.K. Basu vs. State of West Bengal, 1997

This case is important because the Supreme Court in this case recognised custodial violence and police brutality. It stated that custodial violence is an attack on the dignity of a human being. The court noted that enacting recommendations and policies have had no effect as a death in police custody is increasing at an increasing rate. In this case, the Supreme Court laid down 11 guidelines that are to be followed while making an arrest. These guidelines consist of various rights that are available to every arrested person.
  1. The police personnel must bear name tags with their designations while making arrests or conducting an interrogation.
  2. Arrest memo to be prepared and copy of it to be attested by a family member or a respectable person of the locality. It must also be signed by the arrestee and must include the date and time of the arrest.
  3. In cases where a relative or family member of the arrestee is not present during the arrest, he is entitled to inform one friend or relative or other person having an interest in his welfare, of the arrest and location of detention.
  4. Within 8-12 hours, the relative or friend of the arrestee must be informed of the time, place of arrest, and venue of custody if they live outside the district or town.
  5. Person arrested to be made aware of his right to inform someone of his arrest.
  6. An entry to be made in the diary of the place of detention, name of the friend who has been informed, and names and particulars of police officials in whose custody the arrestee is.
  7. Major and minor injuries to be recorded at the time of arrest and to be signed by both the arrestee and the police officer. A copy of it is to be provided to the arrestee.
  8. Medical examination by a doctor every 48 hours during the arrestee's detention.
  9. Copies of all documents are to be sent to the Magistrate.
  10. Arrestees may be permitted to meet their lawyer during interrogation.
  11. A police control room to be provided in all districts and arrests to be intimated within 12 hours to the control room.

Joginder Kumar vs. State of Uttar Pradesh, 1994

Facts of the case:
In this case, the petitioner, an advocate, was illegally detained after being called for questioning by the police. After frequent inquiries by the petitioner's family members about his whereabouts, the petitioner was taken to some undisclosed location. The police constantly lied about his whereabouts.

Issue involved in the case
  • Whether the police are guilty of illegally arresting the petitioner.

Judgement of the Court
The Supreme Court held that arresting someone without justification would make it illegal. It also stated that the police have been given certain powers but they cannot misuse them for illegal purposes.

Rudul Shah vs. State of Bihar, 1983

Facts of the case
In this case, Rudul Shah, the petitioner, was detained in prison for over 14 years after his acquittal. A writ of habeas corpus was filed demanding his immediate release. A plea was also made seeking compensation for his illegal detention.

Issue involved in the case:
  • Whether the detention of the petitioner was justified or not.

Judgement of the Court
The Supreme Court held that the detention was wholly unjustified. It also stated that ensuring his release and not awarding compensation would be mere lip service to the petitioner's fundamental right to liberty. It held that if an individual's fundamental right is violated by the wrongful act of the State, then that individual is entitled to compensation. The Government of Bihar was ordered to pay a sum of Rs. 30,000 in addition to the Rs. 5000 paid by it.

Bills introduced to curb custodial violence
The Prevention of Torture Bill, 2010 was introduced to curb the problem of custodial violence. The objective of the proposed law was to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant. The bill had defined torture and had proposed a punishment of a minimum of 3 years and extended to 10 years in prison along with a fine for the perpetrators of this crime.

The bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the Bill to a Select Committee which then proposed certain changes to the bill. However, the bill lapsed due to the dissolution of the 15th Lok Sabha.

In 2017 the bill was introduced as a private member bill in Rajya Sabha and in 2018, it was introduced in the same manner in Lok Sabha. The latter lapsed due to the dissolution of the 16th Lok sabha.

Role of NHRC in prevention of custodial violence
The National Human Rights Commission (NHRC) was set up on 12th October 1993. Its objective is to ensure better protection and promotion of human rights. It acts as a watchdog over the police and issues guidelines on the process to be followed in case of custodial deaths. It has been given powers that are equivalent to a civil court. One of its main features includes the ability to conduct suo motu inquiries. This ability somewhat acts as a deterrent. This is because, when the policemen are aware of the fact an organisation is actively keeping a tab on their malpractices, they refrain from continuing with such practices to avoid falling into trouble.

The guidelines issued by the committee include:
  • In cases of custodial deaths, a magisterial inquiry would be conducted.
  • The magistrate must visit the place of crime, note all relevant facts, record evidence and identify witnesses.
  • Issue of public notice to the witness.
  • An inquiry should include reasons for death, events leading to the death of the victim, suspects of the said crime, and medical treatment provided to the victim taken into account.
  • Recording of statements of family members, relatives, and witnesses.
  • A detailed report to be prepared on time.

Recent developments
Recently in 2020, the Supreme Court of India in the case of Paramvir Singh Saini v. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020 directed the State governments to install CCTV cameras in the police station. The court also reiterated the 9 directions it issued to the State governments apart from the 11 it had issued in the year 1996. Some of the notable directions include:
  • State governments to install CCTV cameras in police stations in a phased manner.
  • Deployment of at least two women constables in police stations where women have been taken for interrogation.
  • Setting up of State Human Rights Commission (SHRC).
  • Filling up of vacancies in SHRC as and when they arise.
  • Setting up of Human Rights Courts.
  • The CCTV must have night vision and audio recording capability.
  • The recording should be preserved for a period of 18 months.
If implemented properly and quickly, this would help curb instances of custodial violence in the country.

Prohibition of custodial violence - the way forward
In order to curb cases of custodial violence there needs to be major changes in the system:
  1. Body cams � Just like police in some foreign countries are required to wear body cams at all times, the police in India need to do the same. Body cams with all the requirements like audio recording, GPS tracking, etc. need to be made available as soon as possible as they would act as a deterrent for the police.
  2. Even though the CCTV cameras are being installed in the police stations gradually, there has to be a proper procedure to ensure that the cameras work properly and are being checked on a regular basis. During interrogations, there has to be a higher level officer keeping a watch from the CCTV cameras.
  3. Physiological-Physical-Medical tests need to be conducted periodically to ensure that all the police personnel are in the right state of mind to carry out their duties.
  4. All the police stations must be made to put up posters which contain the rights of arrested persons. The instructions should be in English as well as in the language of that locality. This would ensure that the unaware people who are brought into custody get to know their rights and exercise it.
  5. Awareness programs should be run by the government by making the Police its frontrunners.
  6. Lastly, an Anti Torture law must be made as soon as possible containing strict punishments for the offenders.

Some of the sources from which India can take inspiration include:
  • Section 2340A of Title 18, United States Code:
    It provides for the prohibition of torture including custodial torture. It applies to acts of torture outside the country. It aims to hold people of US nationality liable for torture inflicted upon anyone including victims of other countries. It also applies to foreign offenders residing in the country. Such wide provisions enable the justice system of the USA to hold a person liable for committing torture even if he is a foreign national. India must also make provisions such as this to give itself wide-reaching powers to hold the perpetrators liable.
  • Human Rights Act, 1998:
    In the United Kingdom, human rights are protected by this Act. Section 3 of the Act talks about the right to not be ill-treated. It clearly defines what constitutes ill-treatment and degrading treatment, what to do when these rights are breached, etc. Such clarity allows its justice system to deal with cases of custodial torture in a better way. India would benefit from a codified law dealing with custodial torture as it would enable the justice system to convict the perpetrators using well-established procedures and punishments.
  • United Nations Convention against Torture and other Cruel, Inhuman, and Degrading Treatment or Punishment:
    Even though India has been a signatory to this Treaty, it has still not ratified it. This Treaty laid down in detail the various methods the signatory countries must adopt in order to effectively deal with the crime of torture. The Prevention of Torture Bill, 2010 was a step in this direction. India can take inspiration from countries that have ratified this Treaty and make better legislation to protect people from torture, including custodial violence.

Implementation of Law Commission of India's 273rd Report:

The Commission in the 273rd report focused on the "Implementation of 'United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment' through Legislation." It made some important recommendations:
  • It suggested that the definition of torture should include inflicting injury, either intentionally or voluntarily, or even an attempt to cause such an injury which will include physical, mental or psychological injury.
  • The Commission prepared a draft "The Prevention of Torture Bill, 2017" which provides for punishment for torture, inhuman treatment inflicted by public servant on persons while in custody and protect the interest of victims, their compensations etc.
  • The Commission suggested the ratification of Convention Against Torture. This will aid the government in getting criminals extradited and ensure individuals' right to life.
  • The CrPC and the Indian Evidence Act require amendments to incorporate payment of compensation and a provision in IE Act which would put the burden of proof on the police in case a person sustains injuries in custody.
  • It suggested stringent punishments for perpetrators of this heinous crime.
  • It also recommended a compensation policy for the victims and the power will lie with the courts to allocate justiciable compensation.
  • An effective mechanism must be put in place to protect the victims, complainants and witnesses against ill treatment and threats.
  • The commission believed that the State should own the responsibility for injuries caused by its agents and sovereign immunity should not override the rights given by the Constitution.

The implementation of these recommendations would help curb the menace of custodial violence by the authorities.

Custodial violence is indeed a disgraceful act against humans. It has been used by people having authority to get what they want without considering the immense trauma the victim has to face. Although international bodies and commissions have taken steps to curb this act, we are still far from our goal. In India, even though there are rights available to citizens, the cases of custodial violence keep on increasing.

The Hon'ble Supreme Court has tried to fill the gap by pronouncing landmark judgements and laying down guidelines, but it still doesn't seem enough. Some ways in which this problem could be solved further could be the enactment of the Prevention of Torture Bill, 2010, equipping officers with body cameras, physiological-physical-medical tests, and assessments of the investigating officers be undertaken every year, etc.

Award Winning Article Is Written By: Mr.Shvet Sharma
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