EXAMINING CUSTODIAL VIOLENCE IN INDIA: CASE ANALYSIS OF DK BASU VS STATE OF WEST BENGAL BY - BHAVYA SUREKA
EXAMINING CUSTODIAL VIOLENCE IN INDIA: CASE ANALYSIS
OF DK BASU VS STATE OF WEST BENGAL
AUTHORED
BY - BHAVYA SUREKA
Ø Abstract
Police
audacity and ruthlessness are predictable wonders. In light of recent reports
of excessive force by Indian law enforcement resulting in unnecessary custodial
violence, this study seeks to examine custodial violence in India, with case
analysis of landmark judgement of DK Basu vs. State of West Bengal. The
National Human Rights Commissions (NHRC), High Courts, and the Supreme Court of
India[1]
have recorded a series of connections from the past times to modern-day cases
related to custodial violence and death. The paper begins with discussion about
what custodial violence is and how common it is in India. Then, it looks at the
DK Basu case and how it impacted on custodial violence in India. The
legal framework, statutes and provisions in India that attempts to prevent
violence in custody is examined. Things that lead to violence in
prisons in India are identified. This research paper also
gives suggestions to stop custodial violence in Indian.
Keywords
– custodial violence, police brutality, custodial death, Code of Criminal Procedure, 1973.
In
India, violence against those in custody has existed for years and is a grave
problem. Any form of violence that occurs while a person is in the custody of
the police or the legal system is referred to as custodial violence. It means
when law enforcement officials abuse their power to hurt people who are in
their custody. These incidents clearly violate people's rights and
can cause physical and mental harm or even death. With the rise in the
frequency of violence against individuals in police custody, the Indian court
has been instrumental in establishing norms and regulations on the proper
treatment of those in police custody. Even though these rules are written into
the law, they still are not that effective. This can be seen in the NHRC and
NCAT's recent statistical report[2].
The National Campaign Against Torture (2020) and the National Human Rights
Commission (NHRC) released a report called "India: Annual Report on
Torture, 2019," which revealed that there were 1,731 custodial
deaths in jail in India in 2019.
One
of the landmark judgement for setting up of more such guidelines is DK
Basu vs. State of West Bengal[3],
which was filed in 1986 as a Public Interest Litigation by two lawyers who
wanted to stop custodial violence in India. In its judgement, the Supreme
Court of India set out several rules and guidelines that law enforcement
officials must follow when arresting, holding, and interrogating individuals.
Ø CATEGORIES
OF CUSTODIAL VIOLENCE
Custodial
death and torture as two major examples of human rights abuses done by police
officers while in custody. NCRB?divides custodial
violence into three categories:
l Violence
in police custody following a court remand.
l Violence
in police custody of "persons not on remand".
l When
being transported to court or during court proceedings, there is violence.
Ø TYPES
OF CUSTODIAL VIOLENCE
For
goals such as extorting information or abusing authority, the government employs
a variety of forms of violence under various circumstances.
1.
Physical violence:
This is the most frequent kind of violence employed by police officers. This
comprises the use of physical force to induce bodily pain and exhaust the
victim. In certain situations, this type of custodial violence might cause
the victim to fear for his or her life and may also lead to death.
2.
Psychological violence:
The second sort of judicial violence involves the victim's psychological
condition. This entails depriving the victim of basic requirements such as
food, drink, sleep, or access to a bathroom, causing the victim to lose
spirit and morale. Mental anguish can be caused by humiliation or
intimidation to the victim's loved ones.
3.
Sexual violence: Any
sexual act or attempt to get a sexual act using coercion or violence is
considered sexual violence. Also included are rape and sodomy.
2.
To analyze the DK Basu vs State of West
Bengal case and its impact on legal policies regarding custodial violence in
India.
3.
To examine the statutes and legal
provisions of Indian laws concerning custodial violence including
4.
To suggest measures for prevention of
custodial violence in India, including legal reforms, policy changes, and
training of law enforcement officials.
Ø LITERATURE REVIEW
1.
Neha
Nehraa, (2022)[4]. The barbarian approach of
the police towards people in custody, have not diminished since a long
time; rather, they are advancing step by step and one step at a time. The
author intends to assess the police's use of excessive force against the
public, the police's debts and obligations in the case of death caused by
excessive brutality, and third-degree police violence. This study examines the
question Does law enforcement have the capacity to harm people under any
circumstances like their own custody? If this to be true, what restrictions are
placed on police authority when the general population is harmed while being in
their custody? The author attempts to evaluate the responsibilities of the
police during the arrest, the responsibilities of the adjudicators during the
request for legal guardianship, and the author also intends to offer the
rehabilitation methods to study the process of prison release.
2.
Tanya
Sehrawat, (2022)[5]. It's common knowledge that as humans, we all
have some basic rights, and that these rights can be limited by the due process
in custody. But what rarely gets noticed is that when the law limits these
basic human rights, it also takes on the duty of safeguarding the accused. Even
though there are many laws on paper that are meant to protect the weak, law
enforcement agencies often ignore this duty. This research paper is mostly
about things that went wrong while the person was in police custody. It aims to
carry out this duty and bring attention to the fact that the Judiciary has a
proactive role to play in protecting these rights in cases of inhuman torture.
3.
Karan
Singh Chouhan, (2018)[6]. Although efforts to reform the police force
have been ongoing since the late 1960s, this study highlights the need to
finally act on the problem of custodial violence. Many reports of the law
commission, the National police commission, and other committees were cited in
order to comprehend the background of police reforms and to track their
progress to the current day. It has been established through these reports and
supreme court guidelines that no action has been taken to reform the police in
order to reduce custodial violence and police atrocities; therefore, action
must be taken to implement police reforms in accordance with the reports and
recommendations of several committees.
4.
Maasir
Javed, (2020)[7]. Law enforcement officials is supposed
to always act legally. All law enforcement activities must be
justified, fair, nondiscriminatory, proportionate, and humane. Cases of police
brutality and the excessive use of force by police officers towards citizens
are discussed in this article. Too much time has passed without enough
monitoring, allowing police to conduct numerous crimes against innocent
citizens and detained suspected or accused without consequence. The study looks
at custodial death and torture as two major examples of human rights abuses
done by police officers while on the job. It addresses the need for tougher
laws for police to comply to and hold them accountable for their acts, as well
as the legislation available for protecting individuals from this physical and
mental abuse by police.
Ø Research
Methodology
The
research methodology for this research paper is secondary and non-empirical.
Several relevant national and international research papers, which include
Scopus indexed research papers and UGC peer reviewed research papers, were
referred to write this research paper. The research paper is an in-depth
analysis of the relevant sections and provisions of the custodial violence
under CRPC, as well as a review of the existing case law, landmark judgements,
articles, statutes, and amendments from authorized websites/books that have
been referred to, are cited in this article. The study can contribute to the
existing research on custodial violence in India and provide insights into the
effectiveness of legal and policy measures in preventing such incidents.
Ø DISCUSSION
Custodial
violence is the mental or physical abuse of a criminal while in judicial
or police custody. One of the biggest problems with custodial violence is that
it infringes upon fundamental rights. This is a grave violation of human rights
and a major roadblock to a democracy. While there are a number of variables
that contribute to fatalities in police and court custody, including as
overcrowding, malnourishment, dirty surroundings, and inadequate medical
attention, the primary cause of death in prisons and lockups continues to be
custodial violence.
The
increase in fatalities and violence in prison has several reasons. The police
have a duty to guarantee the well-being and security of those who are being
detained in their custody. The HRC (Human Rights Commission) must be notified
within 24 hours of a death in custody and within 48 hours of a fatal encounter.
Article 22 mandates that all people in custody appear before the nearest
magistrate within twenty-four hours after their arrest, with consideration
for the time required for transportation from the place of detention to the
magistrate. In addition, no one may be held in custody for more than
twenty-four hours without a magistrate's approval. Consequently, the detained person
is brought before the Magistrate, whose duty it is to ascertain whether or not
the arrested person has been the victim of abuse while in custody. The person
who was arrested is questioned about it, and the magistrate is expected to
inform him of his entitlement to a medical examination. The magistrate is
responsible for deciding whether or not to remand the person in custody.
According
to the National Crime Records Bureau (NCRB), the number of custody fatalities
increased by 9 percent from 92 in 2016 to 100 in 2017. The NCRB claims that in
2018, 1,639 inmates died of 'natural causes,' 149 from 'unnatural reasons,' and
the remainder from 'unknown causes' because certain states were reluctant to
disclose the specifics. The report primarily divides deaths into two
categories: natural and unnatural.
Custodial
violence is one of the most heinous violations of human rights that occurs
during the investigative process, when officers, in order to obtain proof
or confessions, frequently succumb to third-degree torture, and arrest
techniques, such as not documenting them or referring to the loss of freedom as
"prolonged interrogations."
Ø REASONS
FOR CUSTODIAL VIOLENCE IN INDIA
1.
Lack of strict Laws —
In order to put a stop to custodial violence, strict and enforceable laws must
be enacted. In India, custodial violence has not been criminalised, and those
in power have enjoyed an undeserved advantage from it for decades.
2.
No Effective Prison Reform
— The prison system as a whole is fundamentally opaque, leaving little space
for openness. India's jails continues to be challenged by poor facilities,
overcrowding, severe personnel shortages, and inadequate protection from
injury.
3.
Work Pressure -
The police operate under enormous strain, and in order to obtain evidence and
confessions quickly in difficult cases, they resort to violence.
4.
Social Component -
Given the "an eye for an eye" philosophy, those in authority prefer
to employ violence to get information from criminal suspects.
5.
Not adhering to international
requirements - India joined the United Nations
Convention against Torture in 1997, although the nation has failed to implement
its provisions.
Among
the factors contributing to custodial violence in
India includes, inadequate resources and training for law enforcement
personnel, corruption, a lack of accountability, and societal beliefs that
promote or condone violence against disadvantaged communities.
The
victims of prison violence, their families, and society at large all suffer
grave consequences. Victims may suffer from physical and psychological stress,
and their trust in the judicial system and law enforcement may be completely
damaged. Custodial violence has the potential to worsen social and political
tensions in addition to undermining democratic values and the rule of law.
Ø Statutes and provisions
Articles
330, 331, and 348 of the Indian Penal Code; Sections 25 and 26 of the Indian
Evidence Act; Section 76 of the CRPC; and Section 29 of the Police Act, 1986,
are intended to restrict police personnel from using coercion and
coercion to get a confession.
The
CRPC sections define the arrest procedure including the arrestee's
safety. Chapter 5 of the CrPC, 1973 focuses on the authority to arrest a
person and the security that police must provide during and after arrest.
1. According
to Section 46 and 49[8]
of the Criminal Procedure Code, A law enforcement officer may not use violence
unless the suspect is resisting arrest, attempting to flee, or is suspected of
a crime punishable by death or life in prison. Arrest Process is governed by
Section 46 of the CrPC.
2. Section
41[9]
of CrPc is the section in which the police can arrest and detain without
the need for a magistrate's permission or warrant.
3. Section
50[10],
highlights the necessity of the person being completely aware of the reasons
for his or her arrest.
4. Article
57
of the CRPC is just like the Article 22 of the Indian Constitution.
5. According
to Section - 54[11]
CRPC, 1973, when a person files a complaint against a police officer or law
enforcement authority in whose custody the individual is, the court must
inspect the individual's body and maintain documentation of the evaluation.
With the magistrates notice, it will be assessed by the clinical
expert.In accordance with Section - 176[12]
of the law, the justice is obligated to submit a request upon the death of a
suspect under police guardianship.
6. Section
- 167 & 309[13]
of the law specifies that the purpose of bringing a case before a judge is to
protect the the privileges and interests of the accused.
Ø CASE ANALYSIS
D. K. Basu vs. State of West Bengal is a
landmark case that act against the custodial violence such as rape,
abuse, and fatalities in judicial custody or jail. The DK Basu case
established the ground principles and safeguards that must be followed before
conducting an arrest. It is regarded to be one of the earliest instances in
which the judiciary attempted to preserve the rights of persons who had been
arrested and to restrict the authority that the police had without being
monitored.
Ø ISSUE
1. Growth
in incidents of Custodial Torture and Deaths by Police
2. Arbitrariness
of Police in arresting a person
3. Is
there any need to specify some guidelines to make an arrest?
Ø JUDGEMENT
The court
stated that police authority must be checked by maintaining an appropriate
level of openness and accountability. Furthermore, there is an urgent need for
changes in workplace culture and training for police officers.
The case of
Joginder Kumar[15],
which was also referenced in the ruling, was explained along with directions
for arrest procedures. Another case cited was Nilabati Bahera v. State of Orissa,
in which the Supreme Court declared that prisoners' basic rights, such as
Article 21, are not violated while in custody. The prisoner is only subjected
to reasonable limitations under the law.
Article 21
states that no one shall be deprived of his life or personal liberty unless
there is an extraordinary circumstance when the legal procedure is followed. It
was explicitly established in the judgement, relying on Nilabati Behera v State
of Orissa (1993), that custodial assault is a direct violation of Articles 21,
22, and 32 of the Indian Constitution, which grants us our most basic
fundamental rights. The judgement also clarified what the term
"torture" meant. Any type of violence would be a violation of Article
21.
The court
also considered how violence in prison harms people both physically and
emotionally. According to the ruling, "torture in detention" is an
obvious breach of human dignity that diminishes a person's personality.
Furthermore, the court announced its decision by detailing eleven preventative
measures that must be followed during the arrest and custody process.
The
petitioner's son, Suman Behera, was arrested by the police and the
next day his deceased body was discovered dead with several injuries on the
railway tracks. According to the officials, the person fled the police station
and was discovered dead on the train tracks the next day.
Ø ISSUE
1. If the victim was
injured as a result of custodial violence.
2. If the cops are
responsible for the victim's death.
Ø JUDGEMENT
The Supreme Court came to the judgement that the
person had been injured while being held in custody, suggesting that he could
have been the victim of an assault while in custody. After ruling that the
state, not the police, should be responsible for paying compensation, the court
granted Rs. 1,55,000 in compensation.
Addressing
violence against prisoners, PUCL v. State of Maharashtra is a landmark
judgment in India. The decision stemmed from a letter PUCL wrote to the
National Human Rights Commission (NHRC) highlighting the issue of abuses and
deaths that take place when an individual is under police custody. The NHRC
then filed the letter with the Indian Supreme Court in the form of a writ
petition. The petition raised issues with the investigation into the custodial
death's lack of accountability and openness as well as the need for an unbiased
monitoring body to monitor the proceedings.
Ø JUDGEMENT:
In India, the PUCL v. State of Maharashtra case was
an important development addressing the issue of custodial violence.
The court established rules to eliminate violence during police detention and
guarantee protection of inmates' fundamental rights. To ensure
accountability and openness in the custodial death inquiry, the court ordered
the creation of an independent monitoring mechanism to oversee the guidelines'
application. The ruling upholds the value of human rights and the requirement that
the government take the appropriate action to safeguard them.
Violence
in prison is not only against the law, but also against society as a whole.
Arresting a criminal and questioning him is a necessary and legal police job,
but using violence or torture to get information or confessions is not okay in
a democratic country. Even though the DK Basu case happened twenty years ago,
violence in prisons is still a problem in our society. The only reason for this
is that the guidelines given in the DK Basu case were not followed properly.
The guidelines given in the DK Basu case are good and should be followed, and
no one has the right to break the law on their own while pretending to be an
official. Crimes like rape and assault are not allowed and must be thoroughly
looked into or people will lose faith in law and order.
To
ensure that police personnel are held responsible for their unreasonable acts
against victims, laws should be strengthened and clarified. Significant
structural changes are required to reduce judicial violence:
l Body
cameras - Officers in India are
required to wear body cams. Since they will effectively dissuade the police,
body cameras that comply with all standards—such as audio recording and GPS
tracking, should be made available as soon as possible.
l Even
if police stations are installing more and more CCTV cameras, a clear system
must be in place to ensure that the cameras are functioning properly and are
routinely inspected. A higher-level officer is required to monitor the CCTV
cameras during interrogations.
l
Finally, as
soon as possible, a anti-torture law must be passed, with severe
consequences for those who violate it.
Ø REFERENCES
JOURNALS AND ARTICLES
1.
Neha
Nehraa, Custodial Violence and Police Brutality: A Critical Overview and
ways to reach Reforms, heinonline.org
(2022).
2.
Tanya
Sehrawat, Human Rights & blatant custodial deaths: When will it stop?,
HeinOnline.ORG (2022).
3.
Karan Singh
Chouhan, Police Reforms against Custodial Violence in India: Past and Present, Int'l
JL Mgmt. & Human., 1, 29. (2018).
4.
Maasir Javed, Police Brutality and Human Rights Violations by Police
Authorities. Jus Corpus LJ, 1, 280. (2020).
5.
Devendra
Kumar Sharma, RIGHT AGAINST TORTURE AND CUSTODIAL VIOLENCE. ISSN: 2395-4132.
(2016)
CASE LAWS
1. DK Basu v State of
West Bengal [1997] 1 SCC 416
2. Joginder Kumar v
State of UP [1994] 4 SCC 260
3. Nilabati Behera v
State of Orissa (1993) 2 SCC 746
4. PUCL v. State of Maharashtra (2014)
10 SCC 635
STATUTES
1. Code of Criminal
Procedure, 1973
[1] Neha Nehraa, Custodial
Violence and Police Brutality: A Critical Overview and ways to reach Reforms,
heinonline.org (2022).
[2] 76 Deaths in Police Custody, 14 Deaths Due to Lathicharge: NCRB
2020 Report’ (The Quint, 2 September 2021)
[4] Neha Nehraa, Custodial Violence and Police Brutality: A Critical
Overview and ways to reach Reforms, heinonline.org
(2022).
[5] Tanya Sehrawat, Human
Rights & blatant custodial deaths: When will it stop?, HeinOnline.ORG
(2022)
[6] Karan Singh Chouhan,
Police Reforms against Custodial Violence in India: Past and
Present, Int'l JL Mgmt. & Human., 1, 29. (2018).
[7] Maasir Javed, Police
Brutality and Human Rights Violations by Police Authorities. Jus Corpus
LJ, 1, 280. (2020).