A Human Rights Perspective On Custodial Violence And How The Lives Of SC/ST Do Not Matter
Custodial Violence primarily refers to the violence against the individuals in
custody. This paper tries to answer to the question of why is there an
increasing trend of custodial violence in India in spite of there being a wide
array of existing National legislations and International Conventions on human
rights by analysing the extent to which the existing legal framework- national
and international help in curbing the custodial violence, especially against the
SC/ ST Community.
The paper argues that it is the weaker communities who are most likely to be the victims, owing to their political and financial powerlessness, illiteracy, and inability to protect their interest. It becomes disastrous and an act of betrayal when the public authority whose prime purpose is to protect the defenceless citizens itself violates the same. The paper further argues that inadequate and ineffective laws in monitoring abuse of the power of the police as well as inefficient implementation of the existing laws, to be the basic reason for the increasing trend of custodial violence in India.
The study revolves around the critical analysis of custodial violence against SC/ST in India in the light of various provisions of legislations such as IPC, Cr.P.C, Indian Evidence Act, The Human Rights Act, 1993 with special reference to The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as International Conventions on Human Rights and suggest measures in order to curb the issue.
Introduction
Custodial Violence refers to the violence in police custody and the worst form of human rights violation. Custodial crimes and torture in the police custody are seen as heinous and revolting as it reflects betrayal of custodial trust by the public authority who have been assigned with the duty to preserve the human rights of the defenceless citizens, have turned out to be the violators of the same, disregarding the rule of law.
The recent incidents throw light to the alarming rate of its hike, which occurs mainly to the SCs and STs, owing to their powerlessness and financial backwardness. In 2019, the number of custodial deaths were an average of about 5 persons per day.[1] This situation prevails irrespective of the national legislations both substantive and procedural and various international conventions on human rights as well as by undermining the guidelines given by judiciary since a century ago. Considering the gravity of the scenario, it is quintessential to analyse the menace to arrive at a solution.
It is also seen that it is the weaker sections of the society, especially the SC/ST who become the victims of such brutality very often. The Report of the National Commission for SC ST highlights this aspect showing us the trends in terms of atrocities against them. The law of the land provides for greatest protection to them in terms of Fundamental Rights and considered it to be vital by including in the Directive Principles of State Policy.
The exhaustive criminal code provides for an array of provision to safeguard individuals from being inflicted with torture or violence, by including custodial violence to be a criminal act in the substantive and by providing for procedure that prevent such acts. The Evidence law provides for further add on to both, to prevent the same. Yet there is a hike in custodial torture.
With respect to the SCs/STs, the number of legislations and protection still counts more. There have been special laws to protect them, The SC ST (Prevention of Atrocities) Act, 1989 which specifically provides for custodial violence against SC/ST to be treated as a criminal Act, yet the instances have become part of our daily life.
At an International level, this issue has been seen as a matter involving the basic human rights for which, we have an array of Conventions, to most of which India is a signatory. These Conventions deals with the violence of any form, very exhaustively and considered protection of individuals immensely owing to the existence of their Human Rights but in practical sense, violence such as custodial violence have been at a hike in the Third world countries like India.
This clearly illustrates the effectiveness of such provisions with respect to its implementation. Therefore, the paper critically analyses custodial violence against SC/ST in India in the light of various National and International legislations, to arrive at the causes of it irrespective of the existence of a bundle of legislations as well as exhaustive judicial activism in this area which would also suggest measures to curb this menace.
Research Problem
Custodial Violence primarily refers to the violence against the individuals in custody. This paper tries to answer to the question about the trend of custodial violence in India in spite of there being a wide array of existing National legislations and International Conventions on human rights by analysing the extent to which the existing legal framework- national and international help in curbing the custodial violence, especially against the SC/ ST Community.
The paper argues that it is the weaker communities who are most likely to be the victims, owing to their political and financial powerlessness, illiteracy, and inability to protect their interest. It becomes disastrous and an act of betrayal when the public authority whose prime purpose is to protect the defenceless citizens itself violates the same.
The paper further argues that inadequate and ineffective laws in monitoring abuse of the power of the police as well as inefficient implementation of the existing laws, to be the basic reason for the increasing trend of custodial violence in India.
The study revolves around the critical analysis of custodial violence against SC/ST in India in the light of various provisions of legislations such as IPC, Cr.P.C, Indian Evidence Act, The Human Rights Act, 1993 with special reference to The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as International Conventions on Human Rights and suggest measures in order to curb the issue.
Current Legal Regime
The legal situation with respect to Custodial Violence comes within the purview of both International and Indian Law.
International regime:
Under the International regime, the UDHR forms the backbone having exhaustive provisions on Human Rights, since in a Custodial Violence case it is the basic Human Rights of an individual getting affected, thus the application of Articles 1,3,5,6,8,9 and 10.
The other international instruments on the Human Rights with respect to custodial torture includes:
National regime:
Indian law, unlike the ICCPR, does not provide for specific rights for Custodial Violence but have certain Fundamental Rights related to it which is provided under Part III of the Constitution in Articles 19, 20,21,22,32 and 226.
The Apex Court, through Judicial Activism, have expanded the scope of these Articles to include the following:
Apart from these, there are various Police and Prison Acts and Manuals which has certain rules and regulations against Custodial Violence. Further, the Protection of Human Rights Act has provided for the establishment of National and State Human Rights Commission to deal with such issues. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also provides for violence against the SC and ST Communities.
Research Objectives
The objectives of the study are:
Literature Review
Research Questions
Hypothesis
Research Methodology And Cauterization
The study revolves around analysis of various national legislations and international conventions from the perspective of custodial violence inflicted to the people with special reference to the SC/ST community. The methodology applied to conduct this research is of content analysis and descriptive method.
The analysis of the content will be from primary sources such as, case laws, statutes and statutory instruments etc., as well as from secondary sources such as, books, journal, newspaper articles, Law Commission Reports and websites and blogs.
For the purpose of the convenience, this paper has been divided into five chapters.
Therefore, WHO, placed stress on intentionally inflicting force or power on others or oneself. With respect to Custodial violence, the Custody can be police custody or judicial custody. So, custodial violence can be viewed as an intentional use of force or power in police custody or judicial custody.
Being a grave human right violation which has been addressed globally, custodial violence can be viewed as abuse of power by the State authorities, who have to be the protectors of the Human Rights of the people turn out to be the violators. It not only means inflicting physical force on the victims, rather, it comes in an array of forms such as mental, sexual and several other ill treatments.
Custodial torture often takes place when the State authorities claim that they ought to fulfil their duties, arrest a person, and in the course of investigation, inflict force or power on the accused. Since it has been done within their official authority, they claim it to be fulfilling their duties, but, on the other side, the accused is faced with grave human right violation which sometimes may result in death of the victims.
The 39th session of UNGA in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has defined torture to include,' 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 has committed or is suspected of having committed, or intimidating or coercing him or a third person, 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 does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.
The definition of torture throws light to the abuse of power by the authorities and inflicting such force upon the accused in the name of their duty. There are several forms of brutality and atrocities committed by the police in custody and every means and methods includes violation of the basic human rights of the people.
Beginning with beating up the accused to the gravest form which has now become common form such as rape of women. However, such practice has not arrived in just a blink of an eye, rather it was an age old phenomena which still stand as a threat to the rule of law principle in India.
It was also a practice that, the British officials who were at the higher position would tend to make it in favour of them. Thus, the power of the officials who was given the policing task was entrusted with innumerable and absolute power which provided them with sufficient room to impose these powers on others, specialised the marginalised, who have entrusted with no voice, but to obey.
Even before the British Era, in the ancient times, the police system remained the same. The law enforcement agencies had been practicing this on prisoners, criminals and the wrongdoers. Kautilya in Arthashastra have spoken about various kinds of torture such as burning of limbs, tearing by wild animals, trampling of death by elephant and bulls, cutting of limbs and mutilation etc. During the period of AD 320-500, trial by ordeal was common. When in Gupta period the torture of prisoner has been considered as a method of punishment.
The British Raj was also notorious for using violence in police custody. Men, women and children were caught, beaten and tortured to make them confess to crimes, which they did not commit, in the name of mere suspicion. During this time, it was the political workers who were picked up for questioning and if they did not provide desired reply, then they were subjected to torture. They were subjected to several tortious activities such lying naked on ice, denial of sufficient food, excess physical work and physical beatings, which was employed during this era to punish the law breakers.
A significant point that has to be taken into account is that, all these atrocities and immoral acts have been done by the servant of the Government who are entrusted with the duty of policing. The history shows that, the meaning of 'policing' during the ancient time was considered to be one that involves atrocities and severe human right violation. Although the situation and circumstances have changed in the present era, but this notion of policing still exists, although the present 'policing' meant to be serving the public as the protectors of their rights.
It ensures that, the Human Rights of the prisoners/accused/the suspect should not be transgressed by the authorities in the name of investigation or interrogation. It has been made and have been well fitted in Part III, as it is considered fundamental and most significant, which constitute a man's human rights, that cannot, in any case, be denied. These rights are reiterated in the Criminal Law as well, which has been amended and modified in this aspect upon the interference of judiciary.
The rights of the accused thus includes the following:
The National legislation have been very keen in protecting the rights of the accused by ensuring that, there arise no room for anyone and any circumstance to violate upon their Human rights. However, it is also true that, our criminal justice system have given wider powers to the police officials, which is added on by other legislations a well that would result in them misusing their wider powers.
In India, since the police officials enjoy greater immunity, they are adapted to finding out ways and means by which the textual guidelines can be avoided. Since, they are into implementation of the letter of law, absence of a regular follow up mechanism could end up in nullity. They have the power to intimidate the witness and can lead the case in favour of them very easily.
The CrPC have entrusted them with the right to arrest and the guidelines have been prescribed only once the arrest is made or at the time of arrest. But such violence, very often, occur much before the arrest is recorded. In many a cases it is illegal detention, where the arrest itself have not been recorded. The current criminal justice system which criminalises the custodial violence lack this aspect in it, which otherwise would remain unrecorded and unnoticed.
Also, section 29 of the Indian Police Act, which deals with 'penalties for neglect of duty', the sanction prescribed under this provision does not exceed three months' imprisonment or fine. This can therefore be viewed as trivialising custodial violence, which has cemented itself as a rot in the law enforcement machinery. Further, the absence of a provision analogous to Section 330, 376(2) and 331, specifically referring to murder in police custody highlights the sheer apathy of the Legislature to the systematic embedding of the culture of impunity.
Another situation associated with it is that, there exists a wide gap between the actual custodial violence case reported and the rate of conviction. The Report shows that, out of 70 cases of custodial death, judicial enquiries were ordered only to 28 of them[18]. The major reason for a lesser conviction rate is the lack of evidence to prove it. This happens because, in most of the cases of custodial violence, the better one to give evidence is the police officials itself.
However, owing to brotherhood and to save their colleagues, they try to hide up the matter or divert it to another aspect, with ease. The recent incident of custodial death of Bennix and his father in Tamil Nadu, would better explain the situation. The police tried to wash their hands after being aired, reflecting upon the lack of humanity and compassion upon the fellow beings.
It has also become a common practice that, the medical reports by the concerned doctors are itself being tampered by the police officers in order to save from the liability of the custodial violence. Thus, it can be made clear that, the guidelines of the Apex Court as well as the provisions of various legislations have remained just in the paper and that it has not been implemented effectively.
Judicial Activism
The Indian Penal system has proved to be tired of in dealing with the Custodial Violence issue in the country and that its implementation have now become ineffective. Owing to the failure of the existing criminal legislation that warrants powers to the police, the Supreme Court of India, have been keen in protecting the accused or the suspect of an alleged crime from being victims of the menace.
Although there exists several rights (as stated in the above chapters) for the accused and the prisoners, the Criminal Justice System has proved at fault in its effective implementation, paving way for the judiciary, so that the judicial pronouncements could supplement the constitutional and the relevant penal provisions. The fundamental right, 'Right to Life', being an important one, Supreme Court is regarded as the protector and the guarantor of it as per Article 32 of Constitution of India. Therefore, any person who is aggrieved of any such Fundamental right violation can directly move to the Supreme Court, without much formalities, it can even be mere letter in writing to be treated as a writ petition.
The involvement of the Supreme Court can be traced back to the case Dastagir v. State of Madras[19], which held, the punishment which has an element of torture has been considered unconstitutional. This decision can be relevant in cases of custodial violence, which involves grave violation on the Human Rights of the suspect as it consists of greater elements of torture in it. The point that has to be stressed upon is the fact that the violence have been committed by those authorities that has to be the protectors of the rights of the citizens.
The gravity of the issue has been highlighted in the case, Raghubir Singh v. State of Haryana[20]. The Court held that, 'the society is deeply disturbed by diabolical recurrence of police torture resulting in terrible scare in the minds of the common citizens that their lives and liberty are under a new peril, when the guardians of law gore Human Rights, to death.' In Kishore Singh case [21] the Supreme Court reiterated the strictures against the police force on their cruelest acts of torture,
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'. It further suggested that, the police has to use its wits and not fists in solving a particular investigation, and has advised that, proper training and education has to be imbibed on the police training in order to weed away the cruel mentality of the police and to inculcate compassion and respect towards the human beings, and that, the law should be made stricter to punish those who are involved in the Custodial torture.
The Supreme Court of India have provided guidelines to ensure that the condition of the police lock ups to be improved and to minimise the police excesses on the suspects. Although the case mainly deals with the question of the treatment of women in police lock-ups but its directions provide protection to both female as well as male inmates in the police custody.[22]
Through State of UP v. Ram Sagar Yadav[23], in order to ensure that the police officers does not escape from the liability of the Custodial Violence, the Court have recommended for amendment of the Indian Evidence Act, as they can escape due to lack of evidence. The decision reiterated that, in cases of Custodial torture or death, it is only the police officers who can give evidence as it happens in police custody. But when they remain silent bound by the ties of brotherhood, the police will be left without any evidence to prove who the actual offenders are. The law as to burden of proof in such cases may be re-examined by legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection.
The major mile stone to the act of judiciary in curbing the menace of Custodial Violence can be traced in the decision of the Apex Court in D.K.Basu v. State of West Bengal.[24] The Supreme Court has laid down several guidelines that has to be taken into account and help in dealing with issue such as:
These guidelines have been considered significant that, the Criminal Procedure Code has been amended in order to incorporate these guidelines for more effectiveness in its implementation, as in this case, the Court opined that, since rights without remedies are of no use, law enforcing officials should be made properly accountable. The Court further ordered that the aggrieved party would be entitled to full monetary damages claims for such acts of the officials owing to their strict liability.
These guidelines were reiterated in the case Joginder Kumar v. State of UP[25]. In this case, the Supreme Court held that no arrest can be made on mere allegation or suspicion. It issued several directives on the modalities that have to be followed when a person is being arrested. The Court further reiterated that, the duty vests upon the police to make sure that the suspect knows the rights available to him along with the grounds under which he is arrested or detained. His family members and lawyer should also be aware of it and that the interrogation can happen with their presence. The Magistrate before whom the arrested person would be brought should also ensure that such directives have been adhered to by the police.
In such an instance, the question arises, if such human right violation happens, what could be the extent to which they can be held liable, as, such human rights violation often happens in the name of interrogation or investigation, to which they can be immune to. In Kasturi Lal's case[26] the theory of immunity has been rejected by the Supreme Court, in matters concerning violations of Fundamental Rights by police officials during the course of the performance of their official duties. In this case, therefore, the Court did not take into consideration the sovereign immunity concept and that, any violation to the fundamental right has been considered serious and damages were awarded.
In the recent times, however, the Supreme Court has awarded of compensation in a plethora of judgments. In Sube Singh v. State of Haryana and Ors.,[27] the question which have been dealt with by the Supreme Court is whether compensation should be awarded in every Writ Petition involving custodial violence, violating Article 21. The decision has laid guidelines that has to be dealt in while awarding compensation:
The compensation has been awarded by inflicting strict liability upon the acts of the police officers. However, the amount of compensation that has to be awarded remains subjective and the judiciary is free to decide on it on the basis of the gravity of the case and the injury inflicted.
Although this can be a beginning to the reduction of custodial deaths in India, owing to the monetary liability, however, it can also be an escape for the officials to settle it on account of compensation. Therefore, it would be more prudent to focus on the aspects of prosecuting the erred officials, as they are at ease to escape from the liability in such cases, and that, it is high time that judiciary should now focus on such aspects, so that, it would reduce the custodial violence cases in India.
The statistics with respect to the custodial violence seems scary that, in 2019, the NCAT documented deaths of 125 persons in 124 cases in police custody across the Country. Out of the 125 deaths, 93 persons that is, 74.4% died during the police custody due to torture who have been detained by them and died under suspicious circumstances.[28] The Annual Report on Torture have identified various reasons for which the torture have been inflicted, such as, torture to extract money, to extract confession and so on, which often end up in death of such people. The majority of the custodial violence occurs with the poor and the marginalised communities, by report it states that, out of the total custodial deaths, in 60% of the cases the victims are from poor and marginalised community. These include 13 victims from Dalit and Tribal communities.[29]
The Scheduled Tribes and Scheduled Castes are the disadvantaged sections of the society, who have been considered backward owing to their powerlessness and financial backwardness. There exist several situations in which they have been victims to the torture by the police, which would be mainly with respect to their caste and ethnicity. Considering the vulnerability of them, the atrocities against them have been recognised by the legislation in the Prevention of Atrocities Act, 1989. Section 3 of the Act defines atrocities and as such identified the instances in which it would be regarded as a torture against them. Nonetheless, despite the legal protection, theses castes continue to be particularly vulnerable to violation because of the failure in implementing these laws. In order to understand the implication of the menace in the lives of such people, it is quintessential to understand the cases on this matter, a few from the lot have been mentioned here.
On 10th February 2019, a 23 year old Dalit, namely Pradeep KV, a vegetable seller, was allegedly subjected to torture when he was illegally detained at Konanur Police Station in Karnataka. The victim got involved in the fight of a group of youths while he was travelling and the police caught him and after knowing that he belongs to the Dalit community have hurled abuses on his castes and inflicted bodily harm on him throughout the night, in an inebriated state.[30]
On May 2019, two youth, one being a tribal and the other a Dalit, was illegally detained and tortured in the Guntur district of Andhra Pradesh. They were arrested from their home alleging a theft case. They were illegally detained for five days in the custody and was inflicted with third degree torture, who were released after that. One of them committed suicide on the same day owing to the physical pain and mental trauma.[31]
On August 2019, in Gujarat, 11 persons who belonged to nomadic tribe were picked up on the suspicion of being involved in the theft of cell phones and were detained in the police station. During the time of their detention a specific community people which was considered to be backward, they were beaten continuously for 12 hours and was forced by the police to perform oral sex among themselves. A suspect alleged that, they were forced to do such acts continuously for hours in order to obtain confession to the crime.[32]
Such instances still continues and is at peaks. The recent hashtag '#justiceforBennix' had recently been in the trend in the virtual platform, the Custodial death that happened amidst the COVID 19 lockdown. In this instance, father of Bennix was arrested by the police as he failed to close his small mobile shop in Tamil Nadu within the prescribed time. When Bennix rushed to the police station, he witnessed his father getting beaten up and when on intervening he too was beaten up, leading to the death of both.
But, the outcome of it in terms of punishment was nil and the Government tried it to cover up the issue as a normal death. The circumstances changed when the social media took it up and a large protests arose in the virtual world. The government was forced to punish the offenders and have further appointed a high level committee to ensure that atrocities does not happen in the future.
The instances above have similarity with respect to the violence inflicted for being the backward community. It is often seen that, they are being tortured for them being a member of such community, which was rather inflicted in the name of suspicion of have committed an offence. This instances remind us that, the police are tied into networks of caste and community and carry their prejudices with them. It is therefore, a common practice to consider a particular marginalised community as 'criminals', by the police and victimizing them to torture.
This blatant criminalisation of an entire community has its roots in history, where in 1911, 44 castes including Kuravars were identified as criminal tribes.[33] After the independence, however, many of them managed to progress economically and socially and some politically, but Kuravars who were notified as Scheduled Castes in Tamil Nadu when the Cast commission was formed, continue to be identified as criminals even in this era.
It is a common practice that, they have been faced with false cases for which they are arrested and third degree tortures and other human right violations have been done to the members of such community. Although a report have been submitted by a Special Committee appointed by a National Commission for Scheduled Castes, to the President of India, however, it is yet to be laid before the Parliament.
The Mathura rape case[36] was a monumental custodial violence case which has been committed on women, which shook the humanity to a great extent. However, it came with a change in the legal and social perspective leading to the reforms in Indian rape laws. On 26 March 1972, a young tribal girl in Mathura was allegedly raped by two policemen on the compound of the police station in Maharashtra. In this case, initially, the Supreme Court acquitted the offenders. But since then there was huge protests and outcry and that it finally paved way to the amendments in the Indian rape through the Criminal Law Amendment Act.
In 1978, Rameeza Bee, a poor Muslim women was raped by four police men and her husband Ahamad Hussain was tortured to death in the police custody for protesting. It has been seen very often that, the poor community people are being raped in the police custody and in order to wash way the guilt the officials alleges them with prostitution. In this case as well, the husband of the women was picturised as a pimp, and was illustrated in several obscene ways so that the offenders can escape from their liability.[37]
On 27th March 2007, a Dalit women who was 20 years old of Kashipur town was allegedly raped by a police officer who was in charge of the police post and two other police man. This happened when the women went to lodge an FIR against three young youths for gang raping her. Later, the police charged both the victim and her legal representative with theft.[38]
On August 2019, a Dalit women, due to alleged torture by police personnel, committed suicide. She was taken away by the police for questioning after her husband's alleged elopement with another women from the neighbourhood. As per the allegations raised by the family members of the deceased, she was subjected to torture and was humiliated by the police during interrogations regularly, and that, this made her to end her life.[39]
The aforesaid instances are just glimpse of the issue which is in reality a wider one. It is often seen that, the marginalised women have been exploited relentlessly owing to their helplessness. It is also common that, after inflicting violence upon the women victims, in order to escape from the liability, their goodwill has been tarnished by imposing false allegations on them, so that, these helpless women does not raise their voice against these authorities, who can intimidate and create evidences against the victims easily. This situation exist in spite of a plethora of legislations favouring women's right and protection of them, which proved to be less efficient when it comes to its impact on the powerless.
Suggestions And Recommendations
The above discussion therefore throws light upon the gravity of the custodial violence as a human right violation and its impact on the lives of the people especially the marginalised community of scheduled castes and scheduled tribes.
My suggestions and recommendations to control the menace would be as follows:
Conclusion
Thus, it can be concluded that, the Custodial Violence is the gravest form of Human Right violation which act as a blow to the Rule of Law of the Country, as it is being committed by the authority which is supposed to be the protector of the rights of the people. Such violence has been committed in the name of official duty of the police to interrogate.
However, seriousness of the situation arises when third degree and other atrocities have been committed by the police in trying to accomplish a particular case before them. The reason for reliance on such methods by the police could be traced back to the history, wherein it considered 'policing' as a means by which law and order could be created by way of inflicting torture or violence against the people. It was carried in with the system since the ancient times and became deep rooted within the police system in modern India by way of the Police Act enacted by the British.
There exists an array of National legislations which deals with the rights of the accused, which is protected by way of treating it as the fundamental right. The Apex Court has been keen in ensuring via broad interpretation of the provision and guidelines in bringing about a shield against the Custodial Violence. However, merely including it under the existing laws would not suffice the need of the hour. The dire situation calls for an exhaustive law that explains custodial torture and to envisage an institution to include proper mechanism by which the offenders are punished, which would further create deterrence to not commit such crime among the police.
The abuse of power by the police is often inflicted upon the marginalised and the poor sections of the society. The SC/ST community have been victimised for the majority of the custodial violence cases, in spite of having a legislation which focuses on violence against them. The guidelines proposed would mostly abandon these sections of the society owing to their powerlessness. They would be in a situation where there voice is often unheard by the law.
This is clear from the fact that, the reported cases for which the judicial pronouncements have been made is a little that, often such cases are being washed away by the police or being created in their favour. Therefore, it is clear from the discussion that, the attitude of existing laws towards the marginalised community have been pathetic.
In order to solve this menace, the problem has to be considered from its roots. The police officials have to be given proper education on the human right perspective and training has to be given in such a way that they are motivated to serve the public with compassion. The police officials should also resort to scientific methods for interrogation and abandon the use of third degree method.
The central government should also provide financial assistance to modernise the police system in each state so that, they resort to better and nuanced methods in interrogation which would in turn result in greater efficiency in solving cases before them. It is also inevitable that, India should ratify the Convention on Torture in order get international protection for such grave Human Right violation.
It is also quintessential to have an exhaustive legislation which deals with the Custodial Violence issue so that, there is effective conviction of the offenders creating deterrence among them. Last but not the least, the life of the vulnerable section of the society that is, the SC/ST Community has to be taken care of by establishing a special investigation cell in police departments, so that their voices are adequately heard.
Bibliography
Primary Sources
Case Laws:
Statutes And Statutory Instruments
International
Secondary Sources
Journals
Law Commission Report
The paper argues that it is the weaker communities who are most likely to be the victims, owing to their political and financial powerlessness, illiteracy, and inability to protect their interest. It becomes disastrous and an act of betrayal when the public authority whose prime purpose is to protect the defenceless citizens itself violates the same. The paper further argues that inadequate and ineffective laws in monitoring abuse of the power of the police as well as inefficient implementation of the existing laws, to be the basic reason for the increasing trend of custodial violence in India.
The study revolves around the critical analysis of custodial violence against SC/ST in India in the light of various provisions of legislations such as IPC, Cr.P.C, Indian Evidence Act, The Human Rights Act, 1993 with special reference to The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as International Conventions on Human Rights and suggest measures in order to curb the issue.
Introduction
Custodial Violence refers to the violence in police custody and the worst form of human rights violation. Custodial crimes and torture in the police custody are seen as heinous and revolting as it reflects betrayal of custodial trust by the public authority who have been assigned with the duty to preserve the human rights of the defenceless citizens, have turned out to be the violators of the same, disregarding the rule of law.
The recent incidents throw light to the alarming rate of its hike, which occurs mainly to the SCs and STs, owing to their powerlessness and financial backwardness. In 2019, the number of custodial deaths were an average of about 5 persons per day.[1] This situation prevails irrespective of the national legislations both substantive and procedural and various international conventions on human rights as well as by undermining the guidelines given by judiciary since a century ago. Considering the gravity of the scenario, it is quintessential to analyse the menace to arrive at a solution.
It is also seen that it is the weaker sections of the society, especially the SC/ST who become the victims of such brutality very often. The Report of the National Commission for SC ST highlights this aspect showing us the trends in terms of atrocities against them. The law of the land provides for greatest protection to them in terms of Fundamental Rights and considered it to be vital by including in the Directive Principles of State Policy.
The exhaustive criminal code provides for an array of provision to safeguard individuals from being inflicted with torture or violence, by including custodial violence to be a criminal act in the substantive and by providing for procedure that prevent such acts. The Evidence law provides for further add on to both, to prevent the same. Yet there is a hike in custodial torture.
With respect to the SCs/STs, the number of legislations and protection still counts more. There have been special laws to protect them, The SC ST (Prevention of Atrocities) Act, 1989 which specifically provides for custodial violence against SC/ST to be treated as a criminal Act, yet the instances have become part of our daily life.
At an International level, this issue has been seen as a matter involving the basic human rights for which, we have an array of Conventions, to most of which India is a signatory. These Conventions deals with the violence of any form, very exhaustively and considered protection of individuals immensely owing to the existence of their Human Rights but in practical sense, violence such as custodial violence have been at a hike in the Third world countries like India.
This clearly illustrates the effectiveness of such provisions with respect to its implementation. Therefore, the paper critically analyses custodial violence against SC/ST in India in the light of various National and International legislations, to arrive at the causes of it irrespective of the existence of a bundle of legislations as well as exhaustive judicial activism in this area which would also suggest measures to curb this menace.
Research Problem
Custodial Violence primarily refers to the violence against the individuals in custody. This paper tries to answer to the question about the trend of custodial violence in India in spite of there being a wide array of existing National legislations and International Conventions on human rights by analysing the extent to which the existing legal framework- national and international help in curbing the custodial violence, especially against the SC/ ST Community.
The paper argues that it is the weaker communities who are most likely to be the victims, owing to their political and financial powerlessness, illiteracy, and inability to protect their interest. It becomes disastrous and an act of betrayal when the public authority whose prime purpose is to protect the defenceless citizens itself violates the same.
The paper further argues that inadequate and ineffective laws in monitoring abuse of the power of the police as well as inefficient implementation of the existing laws, to be the basic reason for the increasing trend of custodial violence in India.
The study revolves around the critical analysis of custodial violence against SC/ST in India in the light of various provisions of legislations such as IPC, Cr.P.C, Indian Evidence Act, The Human Rights Act, 1993 with special reference to The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as International Conventions on Human Rights and suggest measures in order to curb the issue.
Current Legal Regime
The legal situation with respect to Custodial Violence comes within the purview of both International and Indian Law.
International regime:
Under the International regime, the UDHR forms the backbone having exhaustive provisions on Human Rights, since in a Custodial Violence case it is the basic Human Rights of an individual getting affected, thus the application of Articles 1,3,5,6,8,9 and 10.
The other international instruments on the Human Rights with respect to custodial torture includes:
- The Standard Minimum Rules for the Treatment of Prisoners adopted by the First UN Congress on the Prevention of Crime and Treatment of Offenders held at Geneva in 1955, have dealt with the provisions which provides for humane treatment of the prisoners by considering them as part of the society.
- The Draft Principles on Freedom from Arbitrary Arrest, Detention and Exile 1963, Article 10, 22(2), 24 and 26.
- Declaration on the Protection of All Persons from being subjected to Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1975.
- International Covenant on Civil & Political Rights, 1976, Articles 6(1), 7,9,10 and 14-16.
- Optional Protocol to the International Covenant on Civil & Political Rights, 1976, Articles 2-5.
- Code of Conduct for Law Enforcement Officials, 1979, Articles 2-3 and 5-6.
- Convention against Torture and Other cruel, Inhuman or Degrading Treatment on Punishment, 1987.
National regime:
Indian law, unlike the ICCPR, does not provide for specific rights for Custodial Violence but have certain Fundamental Rights related to it which is provided under Part III of the Constitution in Articles 19, 20,21,22,32 and 226.
The Apex Court, through Judicial Activism, have expanded the scope of these Articles to include the following:
- Right to Life under Article 21.
- Right against Self-incrimination under Article 20(3), sections 24,26 and 27 of the Indian Evidence Act and sections 162,163(1),315 and 342(a) in Criminal Procedure Code.
- Right to be informed of the ground of arrest under Article 22(1).
- Right to consult a legal practitioner under Article 22(1).
- Right to be produced before the Magistrate within 24 hours of arrest under Article 22(2).
- Bar against handcuffing, has been included in the Punjab Police Manual 1953.
Apart from these, there are various Police and Prison Acts and Manuals which has certain rules and regulations against Custodial Violence. Further, the Protection of Human Rights Act has provided for the establishment of National and State Human Rights Commission to deal with such issues. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also provides for violence against the SC and ST Communities.
Research Objectives
The objectives of the study are:
- To establish effective implementation of the Criminal Justice System to deal with or prosecute violators of the Human Rights of the vulnerable sections of the society
- To control, remove, regulate or reduce future violations of custodial torture against SC/ST.
- Effective implementation of various provisions of international conventions related to custodial torture.
Literature Review
- R.S.Saini, Custodial Torture in Law & Practice With Reference To India,
Journal of the Indian Law Institute, Vol. 36, No.2, 1994, pp. 166-192.
The article stressed upon the concept of torture with reference to the definition adopted by the Convention against torture by UN General Assembly. Having this definition as the base, the article goes on to an analysis of custodial torture as a problem, which focuses on analysing whether the grounds used by the police officials could be used to justify the issue when national security confronts with the human rights.
The article further critically analyses the role of the police, as upholder or violator of law. It also elaborates the rights of the suspects or accused persons in the light of international law and Indian law. To showcase the gravity of the issue, the author has also conducted an elaborate study on the vulnerable section who has been the victim of the custodial violence in India since time immemorial. The Article also elaborated upon the role of SC with reference to an array of case laws and have stressed on the compensation awarded by it in several cases. To conclude, the author highlighted few practical suggestions that can be adopted to curb the menace effectively.
- A.G. Noorani, Access to Prisons & Custodial Torture, Economic &
Political Weekly, Vol.40, No. 42, 2005, pp 4497-4498.
The article stresses upon the lack of effectiveness of the judgments of courts in cases of Custodial Violence. The author criticizes the Apex Court decisions stating that, the 113rd Report of Law Commission recommended suitable amendments to Indian Evidence Act of 1872 that would place onus of proof on the culpable police officials.
However, the Apex Court in order to ensure humane treatment of prisoners in custody, it had to simply adopt an earlier ruling of 1982 that had allowed access to convicted prisoner in jail so that the society would apply the reasons behind their detention and conditions in which they serve their sentence. In order to arrive at an analysis, the author relied on various landmark judgments as well as several important Articles of Constitution of India, provisions of CrPC, IPC and Indian Evidence Act and concluded it with the recommendations to curb the issue.
- Clemens Arzt, Police Reform & Preventive Powers of Police in India: Observations on an Unnoticed Problem, Law & Politics in Africa, Asia & Latin
America, Vol. 49, No.1, 2016, pp 53-79.
In this essay, the author dealt with 'preventive' powers of police in criminal procedure. The author elaborately examined the right of the police to interfere with the constitutional and human rights, relying on several landmark Supreme Court decisions to show case the realities of policing in India.
- Jitendra Mishra, Custodial Atrocities, Human Rights and the Judiciary,
Journal of Indian Law Institute, Vol. 47, No.4, 2005, pp 508-521.
The article elaborately examined the problem of custodial atrocities with its brief history, causes of custodial atrocities and the safeguards provided for under national and international instruments and finally, assessed the role of the judiciary in this regard.
- Nirman Arora, Custodial Torture in Police Stations in India: A Radical
Assessment, Journal of Indian Law Institute, Vol. 41, No. �, 1999, pp 513-529.
The article provided a kaleidoscopic study of various aspects of custodial torture in police station and have highlighted some of the basic problems which created dilemma for the Indian Police as a service organisation besides discussing the increasing National and International concern over torture.
- K.S.Subramanian, Political Violence & the Police in India, 2007, Sage
Publication India Pvt Ltd.
The book focuses on the forms of Political Violence in India. The book begins with a chapter on political violence and the State response in India. It includes a chapter which focuses on the crises in Indian Police System which have been analysed in the light of its colonial origin. The author also highlighted the violence inflicted against the SC/ST populations, with the help of statistics and the landmark judgments and observations of the Apex Court, mentions about the police violence also with the help of study conducted by NHRC.
- Jinee Lokaneeta, Defining an Absence: Torture Debate in India, Economic
and Political Weekly, Vol. 49 No. 26/27, 2014 pp. 69-76.
The article focussed on the absence of a torture 'debate' in India and is striking when considered in relation to the NHRC's statistics on custodial deaths. The paper also articulated some of the theoretical framings that allowed for denial of torture to take place in India despite the evidence of high levels of custodial deaths and torture.
- Hithesh Sanker T S & Praveen Lal, Custody Death in Kerala: A Study from
Post-mortem Data in Thrissur Medical College, Economic & Political Weekly, Vol.
47 No. 12, 2012, pp 23-26.
The article attempted to point out the magnitude of the problem of Custodial Violence by focussing on various reports and observed that the nature of deaths have not been discussed in any of the reports. The author studied 23 autopsies related to custodial deaths and further analysed it in the light of the statistics of NHRC and landmark judgments of the Supreme Court.
- 152nd Law Commission Report on Custodial Crime, 1994.
The Report dealt with custodial crimes with issues of arrest and abuse of authority by officials and made reference to all constitutional and statutory provisions including Ar. 20, 21 and 22. The Commission also took into consideration the provisions of IPC, 1860, sections of CrPC as well as Evidence Act. The Commission in this report also provided for amendment of these Statutes.
- 273rd Law Commission Report, 2017.
In this Report, the Law Commission proposed an amendment to the existing statutes to make the intent of abolition of torture in Prevention of Torture Bill, meaningful. The Commission recommended stringent punishment to the perpetrators of such acts to have a deterrent effect on the acts of torture. The Report further dealt with the crucial issue of compensation of victims of torture, and has left it to the Courts to decide upon the justiciable compensation after taking into account various facets of individual case. It also recommended establishment of an effective mechanism to promote victims of torture.
Research Questions
- Why is there a huge rise in the custodial violence in India, especially with respect to the SC/ST Communities, irrespective of the existence of various provisions, both at national and international level?
- Does the criminal justice system lacks effectiveness with respect to curbing Custodial Violence?
- What could be the plausible solutions to curb the menace of Custodial Violence?
Hypothesis
- A transparent prison system can bring a check to the abuse of power, thereby upholding the basic principles that govern the human rights of the people in custody.
- The ratification of the UN Convention against Torture can bring about a legislation for India, exclusively to deal with the matters of custodial violence.
- An efficient implementation of the existing criminal laws by ensuring adequate measures laid down by the judiciary by way of judicial activism, with respect to arrest and detention.
- Formulating guidelines on educating and training officials to bring about police reform.
Research Methodology And Cauterization
The study revolves around analysis of various national legislations and international conventions from the perspective of custodial violence inflicted to the people with special reference to the SC/ST community. The methodology applied to conduct this research is of content analysis and descriptive method.
The analysis of the content will be from primary sources such as, case laws, statutes and statutory instruments etc., as well as from secondary sources such as, books, journal, newspaper articles, Law Commission Reports and websites and blogs.
For the purpose of the convenience, this paper has been divided into five chapters.
- The first chapter would deal with the introduction of the entire topic and would go and identify the research problem and existing legal scenario of the same.
- The second chapter would be descriptive which would introduce the concept of Custodial Violence in detail by tracing its historical roots.
- The third chapter would discuss the existing National laws that govern the Custodial Violence today. This chapter would also discuss the lacunas in the laws governing Custodial Violence and the challenges associated by it.
- The fourth chapter would exhaustively analyse the role of Judiciary in the form of Judicial Activism and its effects on the issue.
- The final chapter would throw light on the current trends in the Custodial Violence with special emphasis on the causes of on the lives of SC/ST Community with the aid of certain case studies.
- The concluding chapter would sum up the entire discussion in the chapters above and would contain certain possible recommendations for resolving the issues and challenges in the laws governing the Custodial Violence with special reference to SC ST community.
Concept Of Custodial Violence
Violence is defined by the WHO in the WRVH as, 'the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, development or deprivation.[2]Therefore, WHO, placed stress on intentionally inflicting force or power on others or oneself. With respect to Custodial violence, the Custody can be police custody or judicial custody. So, custodial violence can be viewed as an intentional use of force or power in police custody or judicial custody.
Being a grave human right violation which has been addressed globally, custodial violence can be viewed as abuse of power by the State authorities, who have to be the protectors of the Human Rights of the people turn out to be the violators. It not only means inflicting physical force on the victims, rather, it comes in an array of forms such as mental, sexual and several other ill treatments.
Custodial torture often takes place when the State authorities claim that they ought to fulfil their duties, arrest a person, and in the course of investigation, inflict force or power on the accused. Since it has been done within their official authority, they claim it to be fulfilling their duties, but, on the other side, the accused is faced with grave human right violation which sometimes may result in death of the victims.
The 39th session of UNGA in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has defined torture to include,' 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 has committed or is suspected of having committed, or intimidating or coercing him or a third person, 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 does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.
The definition of torture throws light to the abuse of power by the authorities and inflicting such force upon the accused in the name of their duty. There are several forms of brutality and atrocities committed by the police in custody and every means and methods includes violation of the basic human rights of the people.
Beginning with beating up the accused to the gravest form which has now become common form such as rape of women. However, such practice has not arrived in just a blink of an eye, rather it was an age old phenomena which still stand as a threat to the rule of law principle in India.
Historical Aspect Of Custodial Violence In India
The Custodial Violence is not new in India. The existence of an increase in today's custodial violence issues has roots in its history. The existing police system in India dates back to the British era that marked for greater atrocities inflicted on the marginalised sections of the society.It was also a practice that, the British officials who were at the higher position would tend to make it in favour of them. Thus, the power of the officials who was given the policing task was entrusted with innumerable and absolute power which provided them with sufficient room to impose these powers on others, specialised the marginalised, who have entrusted with no voice, but to obey.
Even before the British Era, in the ancient times, the police system remained the same. The law enforcement agencies had been practicing this on prisoners, criminals and the wrongdoers. Kautilya in Arthashastra have spoken about various kinds of torture such as burning of limbs, tearing by wild animals, trampling of death by elephant and bulls, cutting of limbs and mutilation etc. During the period of AD 320-500, trial by ordeal was common. When in Gupta period the torture of prisoner has been considered as a method of punishment.
The British Raj was also notorious for using violence in police custody. Men, women and children were caught, beaten and tortured to make them confess to crimes, which they did not commit, in the name of mere suspicion. During this time, it was the political workers who were picked up for questioning and if they did not provide desired reply, then they were subjected to torture. They were subjected to several tortious activities such lying naked on ice, denial of sufficient food, excess physical work and physical beatings, which was employed during this era to punish the law breakers.
A significant point that has to be taken into account is that, all these atrocities and immoral acts have been done by the servant of the Government who are entrusted with the duty of policing. The history shows that, the meaning of 'policing' during the ancient time was considered to be one that involves atrocities and severe human right violation. Although the situation and circumstances have changed in the present era, but this notion of policing still exists, although the present 'policing' meant to be serving the public as the protectors of their rights.
National Laws Governing Custodial Violence In India
Custodial violence have been dealt with by an array of provisions in national legislations in India. This has been by way of granting few rights to the prisoners/accused/suspect persons while in custody, though there exists no special legislation which deals exclusively with the Custodial violence menace. The Constitution of India is keen in safeguarding the rights of the accused through the fundamental rights enshrined in Part III of it.It ensures that, the Human Rights of the prisoners/accused/the suspect should not be transgressed by the authorities in the name of investigation or interrogation. It has been made and have been well fitted in Part III, as it is considered fundamental and most significant, which constitute a man's human rights, that cannot, in any case, be denied. These rights are reiterated in the Criminal Law as well, which has been amended and modified in this aspect upon the interference of judiciary.
The rights of the accused thus includes the following:
- Right to Life:
One of the basic and fundamental right of the prisoner/suspect/accused persons is the right to life. It is conferred by Article 21 of the Constitution of India. The Article lays down that a person cannot be deprived of his life and personal liberty unless there exists a law, which is enacted by a competent authority that lays down a specific procedure for such deprivation.
The Supreme Court in Maneka Gandhi v. UOI[3] had held that, procedure which is contemplated under Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied[4].
The 'Right to Life' concept under Article 21 has undergone a wide range of interpretations over the time. In Kharak Singh case[5], the Apex Court held that, the term 'life' do not mean mere animal existence, but a right to the possession of each organ of the body. Therefore, this includes every limb or faculty through which life is enjoyed, is protected under Article 21, which not only takes into consideration the physical state but also, the mental state or the state of mind. The Supreme Court has further come up with interpreting 'life' to be more than just physical survival[6].
Thus, the Apex Court was keen in providing a wider interpretation of the term to include all the basic necessities of life for a person, so that it is not been deprived of by any, in any circumstances. The accused/prisoner/suspect have therefore enshrined with the Fundamental Right of life which act as an armour against the brutality of officials, although the same has not been expressly mentioned.
Apart from being the fundamental right, the accused receives protection against the Custodial Violence, treating it as an offence under the IPC, CrPC and Code of Conduct of Police. The Indian Penal Code has treated Custodial torture as an offence which is punishable with 10 years of imprisonment.[7] It has also provided for a maximum of death penalty for custody murder, which shows the gravity of the offence and the intent of the legislature in protecting the Human Rights of the accused.
The Police Act, 1861 has also considered custodial violence as a punishable offence.[8] In addition to it, various other State Police Acts have entrusted the task of keeping safe custody of suspects from assault, like the Bombay Police Act, 1951[9], Calcutta Police Act, 1866[10], Mysore Police Act, 1908[11] and Travancore-Cochin Police Act, 1951[12] are some of them.
- Right against self-incrimination:
The focal point of custodial violence against the accused exists in the interrogation, to extract confession from the suspect for the crime he is alleged to have committed. This has been done so that he confesses the truth. However, the accused has been entrusted with the Fundamental Right to refuse to answer all self-incriminatory questions, under Article 20(3) of the Constitution of India. It is his right, not to be compelled to be a witness against himself.
The Indian Evidence Act[13] and CrPC[14] have also prohibited forced confession and declared them as inadmissible in the Court of Law, thereby protecting the suspect/accused person against confession. The criminal legislation has taken appropriate measures in protecting such rights of the accused by upholding the general criminal jurisprudence that, 'the accused shall be presumed to be innocent till his guilt is proved in the court of law'. Section 162 of CrPC declares that, 'no statement made by any person to a police officer in course of an investigation' shall be used 'for any purpose' barring a few exceptions.
- Right to be informed of the ground for arrest:
The accused is entrusted with the Fundamental Right to be informed on the ground of arrest, in spite of being arrested with or without warrant, under Article 22(1) of Constitution of India. With respect to it, the Supreme Court have also opined that the authorities need not furnish the full details of the alleged offence, but rather, should inform the accused on why he has been arrested. This can prevent the abuse of power by the authorities on the arrest and the further scope of inflicting violence against the accused.
The CrPC, under Section 50(1) provides that, 'every police officer or person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Based on the decision of the Supreme Court in Joginder Kumar v. State of UP[15] and DK Basu v. State of West Bengal [16], Section 50A of CrPC has been amended to make it obligatory for the police officer who make an arrest to inform the friend, relative or any nominated person of the arrested person about his arrest, inform arrested person of his rights and make an entry in the register maintained by the police.
- Right to consult legal practitioner:
The accused has been entrusted with the Fundamental Right that, 'No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice'. This fundamental right have been enshrined under Article 22(1) of the Constitution of India. The right has been interpreted and upheld by the Apex Court several a time to ensure that, there exists no scope for the accused to be left unheard and that his human rights are not denied. The Court also held that, while undergoing interrogation in police custody he has right to have his lawyer by his side. Although Part III of the Constitution of India does not provide for free legal aid to the accused, the Directive Principles of State Policy has required the State to provide free legal aid by suitable legislation or schemes[17], so that opportunities for serving justice is not denied to any citizen.
- Right to be produced before the Magistrate within 24 hours of arrest.
The right to be produced before the Magistrate within 24 hours of arrest have been granted as Fundamental Rights under Article 22(2) of COI, and therefore, is considered to be a valuable right of the arrested person.
In the CrPC, it requires the police to produce the suspect/accused person before the Magistrate within 24 hours of his arrest, as per section 57 along with 167. The Magistrate in such case, can order release on bail or remand to the police custody to facilitate further investigation of the case. The maximum period for police remand is 15 days, which states that, the detention beyond 24 hours without producing him before the Magistrate would be illegal. This provision has been formulated with the intent to ensure that the authorities would not arbitrarily keep the accused person in custody and thus avoid room for further abuse of power. The question of the period of detention have been dealt with by Section 57 of CrPC.
The National legislation have been very keen in protecting the rights of the accused by ensuring that, there arise no room for anyone and any circumstance to violate upon their Human rights. However, it is also true that, our criminal justice system have given wider powers to the police officials, which is added on by other legislations a well that would result in them misusing their wider powers.
In India, since the police officials enjoy greater immunity, they are adapted to finding out ways and means by which the textual guidelines can be avoided. Since, they are into implementation of the letter of law, absence of a regular follow up mechanism could end up in nullity. They have the power to intimidate the witness and can lead the case in favour of them very easily.
The CrPC have entrusted them with the right to arrest and the guidelines have been prescribed only once the arrest is made or at the time of arrest. But such violence, very often, occur much before the arrest is recorded. In many a cases it is illegal detention, where the arrest itself have not been recorded. The current criminal justice system which criminalises the custodial violence lack this aspect in it, which otherwise would remain unrecorded and unnoticed.
Also, section 29 of the Indian Police Act, which deals with 'penalties for neglect of duty', the sanction prescribed under this provision does not exceed three months' imprisonment or fine. This can therefore be viewed as trivialising custodial violence, which has cemented itself as a rot in the law enforcement machinery. Further, the absence of a provision analogous to Section 330, 376(2) and 331, specifically referring to murder in police custody highlights the sheer apathy of the Legislature to the systematic embedding of the culture of impunity.
Another situation associated with it is that, there exists a wide gap between the actual custodial violence case reported and the rate of conviction. The Report shows that, out of 70 cases of custodial death, judicial enquiries were ordered only to 28 of them[18]. The major reason for a lesser conviction rate is the lack of evidence to prove it. This happens because, in most of the cases of custodial violence, the better one to give evidence is the police officials itself.
However, owing to brotherhood and to save their colleagues, they try to hide up the matter or divert it to another aspect, with ease. The recent incident of custodial death of Bennix and his father in Tamil Nadu, would better explain the situation. The police tried to wash their hands after being aired, reflecting upon the lack of humanity and compassion upon the fellow beings.
It has also become a common practice that, the medical reports by the concerned doctors are itself being tampered by the police officers in order to save from the liability of the custodial violence. Thus, it can be made clear that, the guidelines of the Apex Court as well as the provisions of various legislations have remained just in the paper and that it has not been implemented effectively.
Judicial Activism
The Indian Penal system has proved to be tired of in dealing with the Custodial Violence issue in the country and that its implementation have now become ineffective. Owing to the failure of the existing criminal legislation that warrants powers to the police, the Supreme Court of India, have been keen in protecting the accused or the suspect of an alleged crime from being victims of the menace.
Although there exists several rights (as stated in the above chapters) for the accused and the prisoners, the Criminal Justice System has proved at fault in its effective implementation, paving way for the judiciary, so that the judicial pronouncements could supplement the constitutional and the relevant penal provisions. The fundamental right, 'Right to Life', being an important one, Supreme Court is regarded as the protector and the guarantor of it as per Article 32 of Constitution of India. Therefore, any person who is aggrieved of any such Fundamental right violation can directly move to the Supreme Court, without much formalities, it can even be mere letter in writing to be treated as a writ petition.
The involvement of the Supreme Court can be traced back to the case Dastagir v. State of Madras[19], which held, the punishment which has an element of torture has been considered unconstitutional. This decision can be relevant in cases of custodial violence, which involves grave violation on the Human Rights of the suspect as it consists of greater elements of torture in it. The point that has to be stressed upon is the fact that the violence have been committed by those authorities that has to be the protectors of the rights of the citizens.
The gravity of the issue has been highlighted in the case, Raghubir Singh v. State of Haryana[20]. The Court held that, 'the society is deeply disturbed by diabolical recurrence of police torture resulting in terrible scare in the minds of the common citizens that their lives and liberty are under a new peril, when the guardians of law gore Human Rights, to death.' In Kishore Singh case [21] the Supreme Court reiterated the strictures against the police force on their cruelest acts of torture,
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'. It further suggested that, the police has to use its wits and not fists in solving a particular investigation, and has advised that, proper training and education has to be imbibed on the police training in order to weed away the cruel mentality of the police and to inculcate compassion and respect towards the human beings, and that, the law should be made stricter to punish those who are involved in the Custodial torture.
The Supreme Court of India have provided guidelines to ensure that the condition of the police lock ups to be improved and to minimise the police excesses on the suspects. Although the case mainly deals with the question of the treatment of women in police lock-ups but its directions provide protection to both female as well as male inmates in the police custody.[22]
Through State of UP v. Ram Sagar Yadav[23], in order to ensure that the police officers does not escape from the liability of the Custodial Violence, the Court have recommended for amendment of the Indian Evidence Act, as they can escape due to lack of evidence. The decision reiterated that, in cases of Custodial torture or death, it is only the police officers who can give evidence as it happens in police custody. But when they remain silent bound by the ties of brotherhood, the police will be left without any evidence to prove who the actual offenders are. The law as to burden of proof in such cases may be re-examined by legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection.
The major mile stone to the act of judiciary in curbing the menace of Custodial Violence can be traced in the decision of the Apex Court in D.K.Basu v. State of West Bengal.[24] The Supreme Court has laid down several guidelines that has to be taken into account and help in dealing with issue such as:
- Suitable identification of all officials in person, at the time of arrest.
- Preparation of arrest memo, attested by a family member of the accused.
- Recording injuries of the accused in the inspection memo, if requested by the accused and signing it by both parties.
- Providing all the details with respect to the arrest such as time and place of arrest.
- Intimation of the location of arrest to the family members of the accused and all details to any nearby legal aid centre.
- Maintenance of daily diary in the police station and procedure of its maintenance.
- Medical examination of the arrestee, every 28 hours after arrest, by a trained doctor.
- Right of the arrestee to meet and consult lawyers.
- Mandatorily send copies of all relevant documents to a local Magistrate by the police.
- Setting up of police control rooms where all such information would be properly preserved.
These guidelines have been considered significant that, the Criminal Procedure Code has been amended in order to incorporate these guidelines for more effectiveness in its implementation, as in this case, the Court opined that, since rights without remedies are of no use, law enforcing officials should be made properly accountable. The Court further ordered that the aggrieved party would be entitled to full monetary damages claims for such acts of the officials owing to their strict liability.
These guidelines were reiterated in the case Joginder Kumar v. State of UP[25]. In this case, the Supreme Court held that no arrest can be made on mere allegation or suspicion. It issued several directives on the modalities that have to be followed when a person is being arrested. The Court further reiterated that, the duty vests upon the police to make sure that the suspect knows the rights available to him along with the grounds under which he is arrested or detained. His family members and lawyer should also be aware of it and that the interrogation can happen with their presence. The Magistrate before whom the arrested person would be brought should also ensure that such directives have been adhered to by the police.
In such an instance, the question arises, if such human right violation happens, what could be the extent to which they can be held liable, as, such human rights violation often happens in the name of interrogation or investigation, to which they can be immune to. In Kasturi Lal's case[26] the theory of immunity has been rejected by the Supreme Court, in matters concerning violations of Fundamental Rights by police officials during the course of the performance of their official duties. In this case, therefore, the Court did not take into consideration the sovereign immunity concept and that, any violation to the fundamental right has been considered serious and damages were awarded.
In the recent times, however, the Supreme Court has awarded of compensation in a plethora of judgments. In Sube Singh v. State of Haryana and Ors.,[27] the question which have been dealt with by the Supreme Court is whether compensation should be awarded in every Writ Petition involving custodial violence, violating Article 21. The decision has laid guidelines that has to be dealt in while awarding compensation:
- Whether the violation of Article 21 of the Constitution of India was potent and incontrovertible
- Whether the violation was gross and of a magnitude to shock the conscience of the court.
- Whether the custodial torture alleged resulted in death or whether it be supported by medical report or visible marks or scars or disability.
The compensation has been awarded by inflicting strict liability upon the acts of the police officers. However, the amount of compensation that has to be awarded remains subjective and the judiciary is free to decide on it on the basis of the gravity of the case and the injury inflicted.
Although this can be a beginning to the reduction of custodial deaths in India, owing to the monetary liability, however, it can also be an escape for the officials to settle it on account of compensation. Therefore, it would be more prudent to focus on the aspects of prosecuting the erred officials, as they are at ease to escape from the liability in such cases, and that, it is high time that judiciary should now focus on such aspects, so that, it would reduce the custodial violence cases in India.
Analysing The Trend Of Custodial Violence In The Lives Of Sc /St Community
The blunt attack on the life and liberty of the people, Custodial Violence have been seen as one of the cruellest form of human right violation and have been addressed in detail in the previous chapters. However, there exists a plethora of legislations both at the National as well at International level, along with the judicial pronouncements, the numbers of such form of human right violation have been increasing day by day. It has become so common that, the mindset of the society towards the police have changed, who started considering them to be ineffective losing hope on them to be the protector of their rights and property. The opinion of Krishan Iyer, J. seems relevant here, who will police the police? This dire situation have arrived that, the authorities who has to be the actual protectors have now turn out to be the violators.The statistics with respect to the custodial violence seems scary that, in 2019, the NCAT documented deaths of 125 persons in 124 cases in police custody across the Country. Out of the 125 deaths, 93 persons that is, 74.4% died during the police custody due to torture who have been detained by them and died under suspicious circumstances.[28] The Annual Report on Torture have identified various reasons for which the torture have been inflicted, such as, torture to extract money, to extract confession and so on, which often end up in death of such people. The majority of the custodial violence occurs with the poor and the marginalised communities, by report it states that, out of the total custodial deaths, in 60% of the cases the victims are from poor and marginalised community. These include 13 victims from Dalit and Tribal communities.[29]
The Scheduled Tribes and Scheduled Castes are the disadvantaged sections of the society, who have been considered backward owing to their powerlessness and financial backwardness. There exist several situations in which they have been victims to the torture by the police, which would be mainly with respect to their caste and ethnicity. Considering the vulnerability of them, the atrocities against them have been recognised by the legislation in the Prevention of Atrocities Act, 1989. Section 3 of the Act defines atrocities and as such identified the instances in which it would be regarded as a torture against them. Nonetheless, despite the legal protection, theses castes continue to be particularly vulnerable to violation because of the failure in implementing these laws. In order to understand the implication of the menace in the lives of such people, it is quintessential to understand the cases on this matter, a few from the lot have been mentioned here.
On 10th February 2019, a 23 year old Dalit, namely Pradeep KV, a vegetable seller, was allegedly subjected to torture when he was illegally detained at Konanur Police Station in Karnataka. The victim got involved in the fight of a group of youths while he was travelling and the police caught him and after knowing that he belongs to the Dalit community have hurled abuses on his castes and inflicted bodily harm on him throughout the night, in an inebriated state.[30]
On May 2019, two youth, one being a tribal and the other a Dalit, was illegally detained and tortured in the Guntur district of Andhra Pradesh. They were arrested from their home alleging a theft case. They were illegally detained for five days in the custody and was inflicted with third degree torture, who were released after that. One of them committed suicide on the same day owing to the physical pain and mental trauma.[31]
On August 2019, in Gujarat, 11 persons who belonged to nomadic tribe were picked up on the suspicion of being involved in the theft of cell phones and were detained in the police station. During the time of their detention a specific community people which was considered to be backward, they were beaten continuously for 12 hours and was forced by the police to perform oral sex among themselves. A suspect alleged that, they were forced to do such acts continuously for hours in order to obtain confession to the crime.[32]
Such instances still continues and is at peaks. The recent hashtag '#justiceforBennix' had recently been in the trend in the virtual platform, the Custodial death that happened amidst the COVID 19 lockdown. In this instance, father of Bennix was arrested by the police as he failed to close his small mobile shop in Tamil Nadu within the prescribed time. When Bennix rushed to the police station, he witnessed his father getting beaten up and when on intervening he too was beaten up, leading to the death of both.
But, the outcome of it in terms of punishment was nil and the Government tried it to cover up the issue as a normal death. The circumstances changed when the social media took it up and a large protests arose in the virtual world. The government was forced to punish the offenders and have further appointed a high level committee to ensure that atrocities does not happen in the future.
The instances above have similarity with respect to the violence inflicted for being the backward community. It is often seen that, they are being tortured for them being a member of such community, which was rather inflicted in the name of suspicion of have committed an offence. This instances remind us that, the police are tied into networks of caste and community and carry their prejudices with them. It is therefore, a common practice to consider a particular marginalised community as 'criminals', by the police and victimizing them to torture.
This blatant criminalisation of an entire community has its roots in history, where in 1911, 44 castes including Kuravars were identified as criminal tribes.[33] After the independence, however, many of them managed to progress economically and socially and some politically, but Kuravars who were notified as Scheduled Castes in Tamil Nadu when the Cast commission was formed, continue to be identified as criminals even in this era.
It is a common practice that, they have been faced with false cases for which they are arrested and third degree tortures and other human right violations have been done to the members of such community. Although a report have been submitted by a Special Committee appointed by a National Commission for Scheduled Castes, to the President of India, however, it is yet to be laid before the Parliament.
Women As The Victim Of Custodial Violence
Custodial Violence against the women in custody have also become common, which include rape as a common form, and remains as the worst form of torture inflicted on by the police authorities. As per the NCRB, it has been recorded that, there was an increasing trend of crime against women, including rape in the country.[34] According to the report, 3,78,277 cases of crimes were reported against the women in 2017, and Uttar Pradesh has the highest number in crime against the women.[35]The Mathura rape case[36] was a monumental custodial violence case which has been committed on women, which shook the humanity to a great extent. However, it came with a change in the legal and social perspective leading to the reforms in Indian rape laws. On 26 March 1972, a young tribal girl in Mathura was allegedly raped by two policemen on the compound of the police station in Maharashtra. In this case, initially, the Supreme Court acquitted the offenders. But since then there was huge protests and outcry and that it finally paved way to the amendments in the Indian rape through the Criminal Law Amendment Act.
In 1978, Rameeza Bee, a poor Muslim women was raped by four police men and her husband Ahamad Hussain was tortured to death in the police custody for protesting. It has been seen very often that, the poor community people are being raped in the police custody and in order to wash way the guilt the officials alleges them with prostitution. In this case as well, the husband of the women was picturised as a pimp, and was illustrated in several obscene ways so that the offenders can escape from their liability.[37]
On 27th March 2007, a Dalit women who was 20 years old of Kashipur town was allegedly raped by a police officer who was in charge of the police post and two other police man. This happened when the women went to lodge an FIR against three young youths for gang raping her. Later, the police charged both the victim and her legal representative with theft.[38]
On August 2019, a Dalit women, due to alleged torture by police personnel, committed suicide. She was taken away by the police for questioning after her husband's alleged elopement with another women from the neighbourhood. As per the allegations raised by the family members of the deceased, she was subjected to torture and was humiliated by the police during interrogations regularly, and that, this made her to end her life.[39]
The aforesaid instances are just glimpse of the issue which is in reality a wider one. It is often seen that, the marginalised women have been exploited relentlessly owing to their helplessness. It is also common that, after inflicting violence upon the women victims, in order to escape from the liability, their goodwill has been tarnished by imposing false allegations on them, so that, these helpless women does not raise their voice against these authorities, who can intimidate and create evidences against the victims easily. This situation exist in spite of a plethora of legislations favouring women's right and protection of them, which proved to be less efficient when it comes to its impact on the powerless.
Suggestions And Recommendations
The above discussion therefore throws light upon the gravity of the custodial violence as a human right violation and its impact on the lives of the people especially the marginalised community of scheduled castes and scheduled tribes.
My suggestions and recommendations to control the menace would be as follows:
- Proper education and training
The present situation demands that the change must happen from the roots of the problem without which such acts could not be made within the control. Therefore, the amendment should be initiated right from the selection of candidates to be appointed as police officials. The system should be devised in such a way that, the right type of candidates have to be selected. The personality traits and behaviour of the candidates should be assessed to ensure that, there exists compassion towards other people, so that they can be the protectors of the rights of the people. The training of the officials should be imparted in such a way that, it creates and motivates them to inculcate a sense of service within them to be offered to the people in accordance to the rule of law, to bring about a police reform.
- Use of scientific methods for investigation
The Custodial Violence are often being inflicted upon in situations where the police officers are forced to find solution to a particular case in front of them. For it, they use the method of torture in order to extract confession from the accused. In order to curb this issue, there is a need to have more scientific methods for investigating which would prevent them from using the violence as a means, when overburdened the trained officials would delegate their work to the untrained subordinates who resort to the practice of third degree measure as they aim to solve the case as early as possible due to the pressure from the officials. Therefore, the supervisory rank can help in a large measure by avoiding hasty criticism of investigation done by the subordinate police officers and desisting from pressurising them to "solve" the cases somehow or the other. They should try to convince their subordinate staff that the scientific methods of detention and interrogation are more effective than the traditional third degree method of torture. The police should therefore be encouraged to use scientific methods such as forensic laboratories, computer databases etc. Schemes which would provide financial assistance to the police to improve communication, computer, forensic science equipment and other scientific aids of investigation, in order to modernise the police force.
- Amendment of the Evidence Act
As recommended by the 113th Law Commission, there should be amendment of section 114B of the Evidence Act. This is essential because, in case of custodial torture, the only witness that could narrate the incident would be the police officials and since they owe to the brotherhood, in most of the instances would not go against their colleagues and so much of such custodial torture or death cases are being tampered by the police officials. Thus, the Law Commission have rightly proposed that the Evidence Act should be amended by creating a new section 114B to provide a rebuttable presumption that the injuries sustained by a person in police custody has been caused by the police officer-in-charge. The burden of proving the innocence will be on the shoulders of the police personnel. Once implemented, it will prompt the police to treat the suspects/accused persons in their custody more humanely and more in accordance with law.
- Adequate protective measures during arrest:
In light of the judicial guidelines laid down by the Apex Court in various cases, there should be proper protective measures that has to be taken while arresting a person alleged to have committed an offence. The police officials should make sure that, the accused is aware of the grounds under which he is arrested and the rights available to him. They should also inform the family members about the same. They should make sure that the arrest is being recorded in the prescribed form and that proper medical examination have to be done. To prevent atrocities in the police stations, the provision for mandatorily fixing CCTV cameras have to be checked frequently to ensure that it is working, in the absence which would make the officials in charge of the station to be held liable.
- Establishing a transparent prison system:
There should be reform to the prison system in India which is seen as opaque, giving less room to transparency. It should be such that, it is transparent enough to be scrutinise the records or the documented materials in the prison. Regular visits by the authorities concerned have to be done to ensure that the prisoners are not inflicted with any force, abuse or violence.
- An exhaustive legislation which deals with Custodial Violence:
The custodial violence as discussed in the above chapters, have been covered under various national legislations as rights of the accused. The Apex Court have also came with several guidelines that has to be followed by the police. However, since the violence occur much before the arrest is made and often it is covered up by the police officials which remain unnoticed. Such chain of illegal acts which results in custodial violence can only be abated by a special legislation, that provides for defining the torture and which envisages for an institution that provides for an independent committee to investigate upon the allegations of the police brutality, while imposing high penalties as a deterrent. Such a legislation would help in releasing the full potential of enjoying the constitutional values of protection of life and liberty.
- Protection of the weaker sections:
With respect to the weaker sections who are often been victimised of the custodial violence, the recommendation made by NPC in its third report have been implemented. The Commission recommended for a special investigation cell in the police department at the State level in order to monitor the progress of investigation of cases under the Protection of Civil Rights Act or other atrocities against Scheduled Castes and Scheduled Tribes. Also, there is a requirement of a composite cell at the district level under the Sub Divisional officer to inquire into complaints that emanates from Scheduled Castes and Tribes, particularly those relating to lapses in administrative measure meant for their relief.[40]
Conclusion
Thus, it can be concluded that, the Custodial Violence is the gravest form of Human Right violation which act as a blow to the Rule of Law of the Country, as it is being committed by the authority which is supposed to be the protector of the rights of the people. Such violence has been committed in the name of official duty of the police to interrogate.
However, seriousness of the situation arises when third degree and other atrocities have been committed by the police in trying to accomplish a particular case before them. The reason for reliance on such methods by the police could be traced back to the history, wherein it considered 'policing' as a means by which law and order could be created by way of inflicting torture or violence against the people. It was carried in with the system since the ancient times and became deep rooted within the police system in modern India by way of the Police Act enacted by the British.
There exists an array of National legislations which deals with the rights of the accused, which is protected by way of treating it as the fundamental right. The Apex Court has been keen in ensuring via broad interpretation of the provision and guidelines in bringing about a shield against the Custodial Violence. However, merely including it under the existing laws would not suffice the need of the hour. The dire situation calls for an exhaustive law that explains custodial torture and to envisage an institution to include proper mechanism by which the offenders are punished, which would further create deterrence to not commit such crime among the police.
The abuse of power by the police is often inflicted upon the marginalised and the poor sections of the society. The SC/ST community have been victimised for the majority of the custodial violence cases, in spite of having a legislation which focuses on violence against them. The guidelines proposed would mostly abandon these sections of the society owing to their powerlessness. They would be in a situation where there voice is often unheard by the law.
This is clear from the fact that, the reported cases for which the judicial pronouncements have been made is a little that, often such cases are being washed away by the police or being created in their favour. Therefore, it is clear from the discussion that, the attitude of existing laws towards the marginalised community have been pathetic.
In order to solve this menace, the problem has to be considered from its roots. The police officials have to be given proper education on the human right perspective and training has to be given in such a way that they are motivated to serve the public with compassion. The police officials should also resort to scientific methods for interrogation and abandon the use of third degree method.
The central government should also provide financial assistance to modernise the police system in each state so that, they resort to better and nuanced methods in interrogation which would in turn result in greater efficiency in solving cases before them. It is also inevitable that, India should ratify the Convention on Torture in order get international protection for such grave Human Right violation.
It is also quintessential to have an exhaustive legislation which deals with the Custodial Violence issue so that, there is effective conviction of the offenders creating deterrence among them. Last but not the least, the life of the vulnerable section of the society that is, the SC/ST Community has to be taken care of by establishing a special investigation cell in police departments, so that their voices are adequately heard.
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