In this era of globalization, anything that violates human rights is of crucial importance to the world at large. Custodial torture is considered to be the harshest form of human rights violation. This is because; here crime is being committed by the police, the protectors of law themselves.
India is the biggest democracy in the world. Protection of life and personal liberty is embedded in its laws as one of the fundamental rights, guaranteed by the constitution to each and every Indian citizen. But still, custodial torture of suspects and those under trials has become an integral part of investigation today. The authority of the state behind it makes custodial crimes worse than terrorism. According to the National Crime Records Bureau (NCRB), 100 custodial deaths were reported in the year 2017. Death rate resulting from custodial torture increased by 9% from 2016 to 2017. One hundred custodial deaths in a year point to a serious cause for concern.
The victims of custodial crimes mostly belong to the weaker section of the society. They are illegally detained and tortured in the custody of police for days without recording the arrest and interrogation process in order to avoid legal complications. Even if the arrest is recorded, the death of the victim is made to look like a suicide or an accident. The relatives and friends of the victim often fail to seek justice because of fear, poverty and ignorance.
Power always comes with the tendency to misuse it and policemen are no exception. Police are given the power to enable themselves to enforce the law and protect people effectively. Custodial torture and killing is an abuse of police power which violates the fundamental and basic human rights of an individual.
The following are the three elements which constitute custodial violence:
- There must be an infliction of severe mental or physical pain or suffering.
- The act must have been committed with the consent of the state authorities.
- It must be committed for a specific purpose such as to gain information or as part of punishment or intimidation.
The term custodial violence includes all types of torture inflicted upon a person who is in police custody. The torture may be physical, physiological or sexual. There are various methods of torture and ill-treatment adopted by the police which even includes burning alive, electric shocks, the forcible extraction of teeth, crushing under heavy rollers, stabbing the victim with sharp instruments, etc. This practice of custodial violence by the police is widespread and has gone unchecked since the days of Britishers. However, in recent years, custodial crimes have drawn great attention of the public, media, legislature, Judiciary and even human rights commission.
Judicial activism, widespread media coverage, initiatives by National Human Rights Commission and Intervention by civil society has shown their concern to fight custodial torture and to uphold human dignity.
Though the Indian constitution doesn’t define or specifically talk about torture, it guarantees protection against torture or assault by the state under Articles 21 and 22.
Article 21 of the constitution provides that no person shall be deprived of his life, personal liberty or property except according to the procedure established by law. No person can be punished unless he is proven guilty before a court of law.
Article 22 of the constitution provides that no arrested person shall be detained in custody without being informed of the grounds of his arrest. He has the right to be informed of the reason behind his arrest and also the right to consult the legal practitioner of his choice. An arrested person has to be produced before the magistrate within 24 hours of his arrest.
The provisions under Article 13 also protect the suspects and arrestees from third-degree methods of police to extort confessions.
The Indian Evidence Act puts forward provisions discouraging forced confessions. Section 24 of the act provides that a confession made by an accused is irrelevant in a criminal proceeding if it appears to the court that the confession has been caused by any inducement or threat. Section 25 of the Evidence Act declares that any confession made to a police officer is inadmissible.
The controversial Mathura rape case brought about a significant amendment to the Indian Penal code which made custodial rape committed by police officers punishable under section 376(1)(b) of the code.
Every offender has the right to be treated with human dignity. He may have committed the most heinous crime. But that would be no ground to deny him his right to be treated in a dignified manner. An offender has all the rights to be punished in accordance with the law. Any punitive action taken outside the ambit of law would be against the law and illegal. The courts do not even encourage handcuffing the accused unless it is necessary.
In D.K. Basu v. State of West Bengal, the Supreme Court laid down certain guidelines or ‘basic requirements’ to be followed by the police during arrest and detention to prevent custodial crimes.
The guidelines are as follows:
- The police personnel carrying out the arrest and handling the interrogation should bear clear and visible identification and name with their designations.
- The police personnel carrying out the arrest must prepare a memo of arrest containing the date and time of arrest, which must be attested by at least one witness and countersigned by the arrestee.
- The arrested person shall be entitled to inform a friend or relative about his arrest and place of detention.
- The time and place of arrest and venue of detention must be notified by the police.
- An entry must be made in the diary at the place of detention regarding the arrest of the person including the name of the next friend who has been informed about the arrest and the names and particulars of the police personnel in whose custody the arrestee is.
- The arrestee should be examined at the time of his arrest and major and minor injuries and marks on his body must be recorded. The inspection memo must be signed by the arrestee as well as the police officer effecting the arrest. A copy of the inspection memo must be made available to the arrestee as well.
- The arrestee should be made to go through a medical examination every 48 hours during his detention by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory.
- Copies of all documents including the Memo of arrest should be sent to the Magistrate for his record.
- The arrestee should be permitted to meet his lawyer during the interrogation but not throughout the interrogation.
- Information regarding the arrest and the place of detention should be communicated to the police control room, within 12 hours of effecting the arrest and should be displayed on a conspicuous notice board in the police control room.
In the case of Kishore Singh v. the State of Rajasthan, the Supreme Court held that custodial crimes by the police violates the provisions of Article 21 of the Constitution and issued directions to the Government to take appropriate measures to educate the police officials to respect human beings. The court observed that nothing is more cowardly and unconscionable than a person in police custody being beaten up.
In Khatri v. State of Bihar, also known as the Bhagalpur Blinding case, on the question of granting compensation to the victims who suffered police atrocities, the Supreme Court answered in the affirmative and held that if compensation was not granted to the victims, then Article 21 of the Constitution would be a mere rope of sand.
In Gauri Shanker v State of U.P, the Apex Court held that death in police custody has to be seriously considered and that it must be curbed with a heavy hand. The punishment should be such as would discourage others from indulging in such behaviour.
Each incident of Custodial violence questions the credibility of the Rule of Law and administration of the criminal justice system.
Although Indian law has several provisions to prevent custodial crimes, abuse of power and custodial torture of suspects, by the police and other such law enforcing agencies continue to exist in the country.
It is the duty of Police to protect each and every citizen. Police are the authority which works towards controlling crime. But if a crime is being committed by the police authorities themselves, then we will have to seek help from some other machinery to curb crime. The prison administration is bound to take proper care of the prisoners and provide them with necessary medical, food and sanitation facilities. The protection and security of those in custody are one of the prime duties of Police.
Custodial crimes committed by police against suspects or convicts are utterly odious and revolting. It reflects the breach of custodial trust by a public authority against the defenceless citizen. There is a pressing need to control the rise of custodial torture and deaths resulting from it. Every case of custodial death or violence needs to be given complete attention. Each case is to be condemned, analyzed and investigated appropriately to come up with findings which will ultimately help in punishing the guilty.
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