BREAKING THE SILENCE: PIONEERING LEGAL REFORMS AND HUMAN RIGHTS ADVOCACY TO CONFRONT THE EPIDEMIC OF CUSTODIAL TORTURE IN INDIA BY - DHRUVI VED & SHAKIR RADHANPURWALA
BREAKING
THE SILENCE: PIONEERING LEGAL REFORMS AND HUMAN RIGHTS ADVOCACY TO CONFRONT THE
EPIDEMIC OF CUSTODIAL TORTURE IN INDIA
AUTHORED BY -
DHRUVI VED[1]
& SHAKIR
RADHANPURWALA[2]
ABSTRACT
This in-depth research paper addresses
the pervasive and pressing issue of custodial torture in India, shedding light
on a phenomenon lacking a precise legal definition. Custodial torture involves
subjecting individuals under police or judicial custody to physical,
psychological, and sexual suffering. The research explores the gravity of this
problem, considering its immediate and enduring consequences on victims,
encompassing both psychological trauma and enduring social ramifications
post-release. Factors contributing to custodial torture include pressure on law
enforcement agencies, external influences, and the absence of a specific
anti-torture law in India, leading to alarming statistics as reported by the
National Human Rights Commission (NHRC) on custodial deaths. Adopting a human
rights perspective, the paper draws insights from international frameworks such
as the Universal Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR), condemning torture and
emphasizing the protection of individuals from inhumane treatment. Despite the
legal foundation provided by the Indian Constitution through fundamental rights
like equality, freedom, protection against arbitrary arrest, and the right to
life, the paper underscores gaps in the implementation of these rights.
Advocating for comprehensive reforms, the research emphasises the meticulous
enforcement of existing laws, increased public awareness, responsible media
coverage, police management reform, and the integration of science and technology
in criminal investigations. The ultimate goal is to ensure justice, protect
human rights, and uphold the rule of law within custodial situations in India,
aligning with democratic values and respecting the dignity of every individual.
Keywords: - Custodial Torture, Human Rights
Violations, Legal Reforms, Police Management, Judicial Determinations.
INTRODUCTION
Custodial torture, despite lacking a
specific legal definition in Indian laws, remains a pervasive and serious
concern that demands urgent attention. This research paper delves into the
multifaceted dimensions of custodial torture, which encompasses the imposition
of physical and mental suffering on individuals under police or judicial
custody. In doing so, it explores the violation of fundamental human rights,
particularly the right to dignity and respect, guaranteed to every person,
regardless of their legal status. While the term “custodial torture” may
conjure images of physical violence, it is crucial to understand its broader
classification, encompassing physical, psychological, and sexual torture. The
gravity of custodial torture lies not only in its immediate impact on the
victims but also in the long-term psychological and social consequences that
persist even after their release.
Rooted in various factors, including
pressure on law enforcement agencies, external influences, and the lack of a
specific anti-torture law in India, custodial torture has led to alarming
statistics, as evidenced by the National Human Rights Commission’s reports on
judicial and police custodial deaths. This paper further examines the issue
from a human rights perspective, drawing insights from international provisions
such as the Universal Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR). These global frameworks
unequivocally condemn torture and emphasize the need to protect individuals
from inhumane treatment, irrespective of their legal status.
The Indian Constitution, with its
fundamental rights, provides a legal foundation for safeguarding individuals in
custody. Articles such as 14, 19, 20, and 21 underscore the right to equality,
freedom, protection against arbitrary arrest, and the right to life,
respectively. Additionally, the Code of Criminal Procedure, 1973, includes
provisions to prevent unnecessary restraint, inform the arrested person of the
grounds of arrest, and notify the substance of a warrant. Judicial
determinations, as exemplified by landmark cases like D. K. Basu v/s. State of
West Bengal, have played a pivotal role in shaping guidelines for arrests and
interrogations to prevent custodial violence. However, the persistent
occurrence of custodial torture reveals gaps in the implementation of these
guidelines. As the research unfolds, it will explore the need for reforms in
addressing custodial torture, emphasizing the enforcement of existing laws,
public awareness, media responsibility, police management reform, and the
integration of science and technology in criminal investigations. The ultimate
goal is to ensure justice, protect human rights, and uphold the rule of law
within custodial situations in India.
THE MULTIFACETED NATURE OF CUSTODIAL TORTURE:
PHYSICAL, PSYCHOLOGICAL, AND SEXUAL DIMENSIONS
The term custodial torture may not
have a specific legal definition in the Indian laws but the fact is that it is
a prevalent issue which should be addressed. Custodial Torture can be
understood as an imposition of physical and/or mental suffering on the person
who is under police or judicial custody. It entails subjecting the victim to
inhuman treatment while being in custody. It is a grave breach of human rights
as every person regardless of them being an accused or not is guaranteed a
right to dignity and respect. This dignity is striped off when they are
subjected to illegal violence by police officials.
Custodial Torture in a layman’s
understanding would only comprise of the physical force used upon the person
under custody. However, it is much broader than that. It can be classified into
three forms: Physical, Psychological and Sexual Torture. Physical torture may
include battering the person under custody by use of force and in extreme cases
also includes electrocution. It may not be limited to just that but may also
include restricting a person unlawfully within the police or judicial custody.
Acts such as use of derogatory language, issuing threats and omissions like
providing, extorting incorrect information or failing to meet basic needs
encompasses Psychological Torture. While physical torture is evidently more
common to report and recognise, it is the psychological torture which leaves
deep imprint in the minds of the victims. Sexual Torture includes verbal as
well as physical sexual abuse of the victims. While rape is a commonly occurring
offense in jails among the inmates, but the fact that the same is also a phenomenon
seen in custodial torture is a serious issue as in this case the protectors of
law become the perpetrators by means of sexual torture in the custody. It is
pertinent to note that sexual torture affects individuals of all genders and is
not limited to a specific group.
Custodial torture may stem from
various reasons, such as the work pressure on the police administration to
provide speedy investigation leading to wrongful extortion of information from
individuals in custody or the involvement of powerful external forces making
the victim a scapegoat. Psychologically as well, police officials may have a
tendency to resort to custodial torture due the violent nature of their day-to-day
work. Violence becomes a common occurrence in a police officer’s life and if
its effects are not regulated then the same will lead to arbitrary use of their
own power. While the above reasons stem from the internal work system of legal
enforcement agencies, one other reason related to law making also leads to
increased number of cases of custodial torture. There no specific anti torture
law in India. While the Indian Penal Code, 1860 provides for charges such as
punishment for murder or death by negligence under section 302[3] and 304[4]
respectively if a police officer is convicted for the offence of custodial
death; but the same is insufficient. This is because a lack of specific anti
torture law undermines the seriousness of such criminal acts and poses as a
deterrent in decreasing custodial torture.
Custodial Torture not only undermines
the legal rights of the accused but also has grave consequences in the form of
custodial deaths. According to National Human Rights Commission (NHRC) Annual
Report[5] 1,586
judicial custodial deaths and 114 police custodial deaths have been intimated
to NHRC in the year 2019-20. Surprisingly, no custodial death was intimated
from paramilitary/defence forces custody in this particular period. While the
guidelines of NHRC emphasise on strict intimation within 24 hours of the
custodial death and further submission of post mortem reports, videographic
reports, etc. within 2 months; it is questionable as to how much adherence has
been there to such guidelines.
Additionally, where the custodial
death is not a consequence of the torture, such incidents leave grave psychological
impact on the sufferer. The victim may experience post-traumatic stress
disorder leading to anxiety, depression, and nightmares. Social consequence is
also an issue as the victim and his/her family may be ostracised from the
society. This phenomenon is a result of how stigmatised our society is towards
the working of legal enforcement agencies. The fact that it is assumed that any
person who is involved in a legal matter may have done something wrong on their
part without considering wrongful accusations of the victim makes the case of a
sufferer of the custodial torture weaker in the eyes of the society.
MODERN-DAY CUSTODIAL TORTURE: BALANCING THE SCALES
BETWEEN HUMAN RIGHTS AND LAW ENFORCEMENT
Human rights are those inalienable
rights which every human being must possess. It cannot be said that such rights
are granted by the state, rather the rights exist solely because human beings
exist. Human rights are of varied nature, including those dealing with
fundamental, moral, social and cultural rights. When it comes to custodial
torture the human right being protected here is the Civil and Political Right
of a person. These encompass a wide range of entitlements such as freedom to
make political choices, fair and impartial legal proceedings and prohibition on
any kind of cruel or torturous treatment to an individual. Custodial Torture is
a serious infringement of human rights as no person regardless of their legal
status should be subjected to cruelty, let alone by the hands of the legal
enforcement officers who are duty bound to protect the citizens.
Moreover, we follow the concept of ‘Innocent
Until Proven Guilty’. The fact we should not consider a person as bearing
criminal nature until and unless there is evidence beyond reasonable doubt
makes it even more concrete that we have no right to torture a person merely on
the basis of suspicion regarding their involvement in a crime.
International Provisions
Universal Declaration of Human Rights (UDHR)
Article 1 - All human beings are born equal and free[6]: The opening statement of the first
article of UDHR encapsulates the core belief that every person, irrespective of
their background or circumstances of birth, possesses inherent dignity and
rights. Custodial torture directly contradicts this principle by subjecting an
accused or a witness to degrading and inhumane treatment, stripping them of
their inherent right to live with dignity. This practice not only violates
their physical well-being but also erodes their fundamental human rights.
Article 5 - Prohibition of Torture and Inhuman Treatment[7]: This article unequivocally prohibits
any form of torture or cruel, inhuman, or degrading treatment or punishment.
Custodial torture is an antithetical to the aforementioned article as it
inflicts severe physical, sexual and psychological harm upon individuals who
find themselves in the custody of law enforcement. It emphasises the absolute
imperative to protect individuals from such cruel practices, regardless of
their legal status.
Article 9 - Arbitrary Arrest, Detention, and Exile[8]: This article affirms the right to
freedom and security of person, as well as the protection against arbitrary
arrest or detention. Custodial torture often accompanies situations of
arbitrary arrest or detention, where individuals are held without proper legal
justification or due process. Such practices not only infringe upon an
individual’s right to liberty but also create an environment where torture can
occur with impunity.
In summary, these articles of the
UDHR collectively establish a framework for safeguarding the dignity, equality,
and freedom of all individuals. Custodial torture stands in stark contrast to
these principles, as it undermines the very essence of human rights by
subjecting individuals to brutal and degrading treatment, often in the absence
of proper legal procedures. Upholding these principles is essential in ensuring
that every person is treated with the respect and dignity they inherently
deserve.
International Covenant on Civil and Political Rights
(ICCPR)
Article 7 - Prohibition of Torture and Inhumane Treatment[9]:
Article 7 of the ICCPR, is a mirror
to the Article 5 of UDHR which forbids torture, cruel, inhuman, or degrading
treatment or punishment. The word ‘degrading’ in this article shows that
torture extends beyond physical abuse and includes any form of mental or
psychological harm inflicted intentionally. The differentiating element of this
article is that it emphasises the prohibition of scientific and medical
experimentation without the informed consent of the individual. This provision
is vital in safeguarding the physical and mental integrity of individuals under
any form of custody or detention. Modern-day custodial torture can take various
forms, including psychological manipulation or non-consensual medical
procedures, which this article aims to prevent.
Article 9 - Liberty and Security of a Person[10]:
Article 9 establishes the right to
liberty and security of a person. It outlines specific procedures that must be
followed during an arrest to prevent arbitrary arrest or detention. The term “promptly”
as used in this article highlights the effectiveness with which authorities
must act when detaining an individual. It is crucial that the reasons for
arrest and any charges against the detainee are promptly communicated, ensuring
transparency and accountability in the legal process. Unfortunately, wrongful
arrests do occur, constituting a form of custodial torture, as individuals are
subjected to unwarranted deprivation of their liberty.
Additionally, Article 9 recognizes
the right to compensation in cases of illegal detention. This provision is a
crucial safeguard against abuse of power by authorities. However, it is often
observed that victims of custodial torture may not be aware of their right to
compensation. Factors like illiteracy, lack of resources to hire legal
representatives, and limited knowledge of available legal aid contribute to the
underutilization of this right.
Furthermore, in India it is the duty
of National Human Rights Commission (NHRC) and its state counterparts that is
State Human Rights Commissions (SHRCs) to take into account that appropriate
compensation is granted to the custodial torture victims.
United Nations Convention Against Torture
Article 2[11]
Article 2 of the United Nations
Convention Against Torture firmly declares that no exceptional circumstances,
including the orders from superior authorities of the legal enforcement
agencies of a state can justify employing torture techniques on a person.
Article 11[12]
Article 11 addresses the formation of
systematic guidelines, procedures and protocols for interrogations, along with
the arrangement of custody and proper treatment of persons in custody. This
article is framed with the aim to prevent custodial torture and provide basic
human rights to a person who has been detained.
Interrogation and custodial torture have
deep roots as one’s failure leads to latter’s occurrence. This is why better
interrogation techniques are the need of the hour. This can be done by focusing
on the questioning pattern used to interrogate a detainee.
While the convention provides such
detailed reference to custodial torture, India has just been a signatory to the
same and has not ratified the convention. The 273rd report of the Law
Commission of India emphasised on ratifying the convention. Though a different
step was taken in response to the report wherein the Anti Torture Bill, 2017
was drafted. However, the bill never took off and has not resulted in India’s
Anti Torture Act.
Provisions in the India
Constitution of India, 1950
Article 14 of the Indian Constitution
ensures that everybody is treated equally in the eyes of the law and they
receive equal protection of law. This is a relevant human right in the concept
of custodial torture as the mere suspicion of criminality, or any
differentiating factor of a detainee i.e., there caste or gender should not be
a justification which leads to custodial torture.
Article 19 - Right to Freedom[14]
Right to freedom entails various
provisions which are a part of a human’s liberty and one such freedom is that
of speech and expression. It encompasses not just the right to speak but also
the right to remain silent. Torture is no means to extract information, which
why confessions made under police custody are not admissible in court.
Article 20 - Protection in Respect of Conviction for Offences[15]
The article provides for the concept
of Double Jeopardy, in which no person shall be punished more than once for the
crime committed by them. Moreover, the person should be punished only for the
specific crime that they have committed.
Article 21 - Right to Life[16]
One of the most important human
rights which every person deserves is the right to life and liberty. When a
person undergoes custodial torture or has been illegally detained, this right
is infringed.
Article 22 - Protection Against Arrests and Detention in Certain Cases[17]
Every person who is arrested should
be informed duly about their cause of arrest and has the right to consult an
advocate. Furthermore, a person may not be under custody perpetually without
any evidence against them, precisely not more than 90 days.
The Indian Constitution, through Part
3 outlining fundamental rights, ensures the protection of various human rights
for individuals in custody. The legal authority’s control over a person does
not entail the deprivation of their rights. Consequently, the concept of Habeas
Corpus, as mentioned in Article 226, assumes significance in preventing illegal
detention—a form of custodial torture.
Code of Criminal Procedure, 1973
Section 49 - No Unnecessary Restraint[18]
Whenever a person is arrested, arrangements
are made to prevent escape, but this should happen in a limited manner. A
person should not be restrained unnecessarily.
Section 50 - Person Arrested to Be Informed of Grounds of Arrest and of
Right to Bail[19]
This section derives its similarity from
Article 22 of the Constitution of India, 1950.
Section 75 - Notification of Substance of Warrant[20]
The police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person
to be arrested, and, if so required, shall show him the warrant.
Section 24 of the Indian Evidence Act[21]
This section talks about if any
confession is recorded by the police officer by way of Threat, Inducement or
any kind of Promise then, that confession is not admissible in the eyes of law.
CHANGE IN NATURE OF CUSTODIAL TORTURE OVERTIME WITH
THE ADVENT OF HUMAN RIGHTS
Although custodial torture is
strictly prohibited in India, the way it is practised has changed overtime. The
shift has been towards inflicting torture in a manner that leaves no
discernible physical evidence behind. This change can be traced back to
colonial era wherein custodial torture was acted upon because the British legal
enforcement agencies saw every Indian under their custody as their enemy and
treated them with hostility. The nature of torture employed then was more
physical in nature. Victims endured electrocution, severe physical abuse, and
brutal beatings. With the global emergence of human rights principles and their
adoption into municipal laws, custodial violence was formally recognised in
several landmark judgements and legislations. Thus, it has led to a higher
scrutiny of police conduct and their responsibilities towards witnesses and
prisoners. Unfortunately, the aftereffect of this is that methods have been found
to torture a victim without any physical evidence.
CONTINUED VIGILANCE: JUDGE’S OVERSIGHT ON ENSURING
JUDICIAL REVIEW AND ACCOUNTABILITY IN CUSTODIAL CASES
The Constitution of India is a
cornerstone of democracy, safeguarding the fundamental rights of every
individual in the country. Among these rights, Article 21 holds immense
significance, despite its brevity in the text. Over the years, the Supreme
Court of India has expanded the scope of Article 21 through remarkable
interpretations, ensuring that every citizen’s personal and professional
development is protected within the framework of the law. This constitutional
provision is especially crucial when it comes to preventing custodial torture
and safeguarding the liberties of individuals in police custody. By virtue of
the Constitution of India, every individual has been given the basic
fundamental rights which are very helpful for the personal and professional
development and growth of the human being. Just imagine the Indian Country
being under the dictatorship where all the individuals of the country are
supposed to surrender their all freedoms to the sovereign command of the
country. Fortunately, we are a democratic country where we are given the
fundamental rights under the supreme law of the land i.e., the Constitution of
India. Article 21 of the Indian Constitution covers only two lines in the bare
act of the Constitution, but the interpretation done by the Supreme Court of
India in this regard is unbelievable. From 1951 to till date, the scope of
Article 21 has become so much broader that one can easily claim his right.
By looking at the figures, it is hard
to believe that, in a democratic country like India, people are not safe even
in the custody of the Police. I am not saying that there is an external threat
to the accused and police are not able to deal with the same, the threat is the
police officials itself. The cases of the custodial torture are rising in the
last decade. After the initiative taken by the Justice Krishna Iyer in the Social
Action Litigation, Supreme Court has provided the numerous verdicts and
guidelines to eliminate the cases of the Custodial Torture. In the case of Rudul
Sah v/s. State of Bihar[22], in this
case the petitioner was imprisoned for 14 years even after the verdict of the
acquittal by the court. The court held that not awarding compensation to the
petitioner will be a violation of the liberty rights given in the Constitution.
In another case of Joginder Kumar v/s. State of U.P.[23],
a petitioner advocate was without any reason confined by the police officer
even after the completion of the inquiry and then writ of habeas corpus was
filed before the Supreme Court. The court held that arresting someone without
any justification would amount to illegal detention and police officials are
not supposed to misuse their powers. In the case of Nilabati
Behera vs. State of Orissa, 1993[24], the son of the petitioner was found dead on the railway
track the day after police arrested him. The contentions from the police were
that the accused tried to escape from custody and this incident took place, but
the Supreme Court later on found that there were injury marks on the body of
the deceased and court awarded the compensation to the victim indicating the
custodial torture inflicted upon him. In another landmark case of the D. K.
Basu v/s. State of West Bengal[25],
the Supreme Court of India recognized the custodial violence done by the police
officers and by way of this verdict, the court provided guidelines while making
the arrest of any person and for further proceedings. the guidelines are as
follows:
1. At the time
of making arrests or conducting inquiries, police officers have to put on
identifiers that carry their designations.
2. Arrest memo
must be created, and a copy must be attested by a member of the family or an
admired member of the community. The arrestee must also sign it, and the time
and date of the detention has to be mentioned.
3. If the
person who is arrested and his associates or relatives are not present during
his arrest, the arrested person has the right to tell a single friend,
relative, or other person with an interest in his welfare of the arrest and
site of incarceration.
4. If the
arrestee’s relative or friend lives outside the district or town, they must be
informed of the date and time, location of arrest, and site of imprisonment
within 8-12 hours.
5. The
arrested person must be informed of his right to notify someone of his arrest.
6. A notation
in the journal of the site of imprisonment, the name of the friend who has been
notified, and the names and contact information of the police officers in whose
possession the arrestee is.
7. Major and
minor injuries must be documented and signed by both the arrestee and the
police officer at the moment of arrest. The arrestee will be given a copy of
it.
8. During the
arrestee’s incarceration, he or she is subjected to a doctor’s examination
every 48 hours.
9. Every
document must be sent to the Judge.
10. During
questioning, suspects may be allowed to see their counsel.
11. Every
district will have a police control centre, and arrests will be reported to the
control room within 12 hours.
This verdict is considered as a
significant verdict in the criminal justice system since it is providing the
guidelines for the making arrest of any person without violating the rights of
him. In a democratic nation like India, the custodial safety of its citizens is
of paramount concern. The unfortunate rise in cases of custodial torture in
recent years has prompted the judiciary to take substantial measures to protect
citizens’ rights. Notable judgments such as Rudul Sah v/s. State of Bihar,
Joginder Kumar v/s. State of U.P., Nilabati Behera v/s. State of Orissa, and
the landmark D. K. Basu v/s. State of West Bengal has collectively laid the
foundation for comprehensive guidelines aimed at preventing custodial violence
and ensuring that the rights of those in police custody are respected. These
guidelines, coupled with the enduring spirit of India’s democratic values,
serve as a beacon of hope and justice for all its citizens.
COMPREHENSIVE TRANSFORMATION: SAFEGUARDING JUSTICE,
PRESERVING HUMAN RIGHTS, AND UPHOLDING THE TENETS OF LEGAL INTEGRITY
The issue of custodial torture in
India has long been a matter of concern, despite landmark verdicts by the
Supreme Court aimed at curbing such abuses. The recent data from the National
Human Rights Commission and other reputable sources reveal a disheartening
reality: custodial violence continues to persist across the country. This
persistent problem underscores a failure of the administration to effectively
implement the court’s directives. While existing legislation does address
custodial torture, the key challenge lies in the proper execution of these laws
and guidelines. This article explores the various steps that can be taken to
address custodial torture, including the meticulous enforcement of laws, public
pressure, media responsibility, police management reform, and the use of
science and technology in criminal investigations. The landmark verdicts of the
Supreme Court have provided detailed elaboration regarding the custodial
torture and if it is properly followed then, no specific law should be made to
curb the Custodial Torture. If we look at the data which are annually published
by the National Human Rights Commission and other authentic publications,
unfortunately, results are very shocking for everyone because even after the
verdict of Apex Court, the cases of Custodial Violence are still taking place
across the country. This shows the failure of the administration to follow the
verdict of the court. Apart from the verdict of the court, there are following
steps that can be taken into consideration[26].
- Execution
of laws and various guidelines
We are not denying the fact that,
government has not made any legislations to curb the Custodial Torture, but the
implementation of the said legislations and other legislations which are
working co-jointly with the principal legislation should be done appropriately
and there must be a checks and balances for the same also. when it comes to the
guidelines provided by the Supreme Court of India in the verdicts of Joginder
Kumar v/s. State of U.P.[27]and D.
K. Basu v/s. State of West Bengal[28],
the implementation is not done appropriately by looking at the present figures
of the data which are published. In these cases, the Supreme Court has provided
very exhaustive guidelines, if these are followed then, there is no separate
legislation that needs to be passed and implemented. If, for example,
guidelines provided by the Apex Court are not followed then the punishment for
non-compliance of the same should be done on immediate basis.
- Stress
from the general population, high-ranking officials, and government
agencies
Many at times, we have seen that, in
order to resolve a case, the highest-ranking officers and the government at
large put unnecessary burdens on police officers functioning at the grassroots,
and that inappropriate pressure causes officials to employ torture to get
information or an admission of guilt. This sort of stress is one of the causes
of incarceration torture. In Prakash Singh v/s. Union of India[29], the
Indian Supreme Court asked both the Central and State governments to make certain
that no excessive stress be placed on police. Stress from the general
population in the current Hyderabad case of rape resulted in the detention of
the perpetrator, which was highlighted; this must stop. In a system of
democracy, retribution is not a choice.
- The
impact of media organisations and the views of individuals
The function of media organisations
in multiple instances has been called into doubt by members of the legal
profession as well as by the judicial system. Media frequently presents an accused
individual as an offender prior to the verdict of the court being delivered.
The media has to acknowledge its duties to the public. It has an impact on how
someone thinks. While we look at a person getting assaulted by police, we
overlook it since our opinion is that the individual who was assaulted might
have done anything wrong. When a bail is denied by the court, we assume that
something went wrong. This thinking must transform. We don’t have to overlook
these issues. These factors only help police officers thinking they are doing
the correct approach.
- The
strategic intrigue of police management
Not all police officers seek prison
torture to get the truth and a confession. Some of them perform extremely well
at their jobs, and it is when they are constantly relocated that their
excellent performance suffers.
This in-depth research paper
addresses the pervasive and pressing issue of custodial torture in India,
shedding light on a phenomenon lacking a precise legal definition. Custodial
torture involves subjecting individuals under police or judicial custody to
physical, psychological, and sexual suffering. The research explores the
gravity of this problem, considering its immediate and enduring consequences on
victims, encompassing both psychological trauma and enduring social
ramifications post-release. Factors contributing to custodial torture include
pressure on law enforcement agencies, external influences, and the absence of a
specific anti-torture law in India, leading to alarming statistics as reported
by the National Human Rights Commission (NHRC) on custodial deaths. Adopting a
human rights perspective, the paper draws insights from international
frameworks such as the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR), condemning
torture and emphasizing the protection of individuals from inhumane treatment.
Despite the legal foundation provided by the Indian Constitution through
fundamental rights like equality, freedom, protection against arbitrary arrest,
and the right to life, the paper underscores gaps in the implementation of
these rights. Advocating for comprehensive reforms, the research emphasizes the
meticulous enforcement of existing laws, increased public awareness, responsible
media coverage, police management reform, and the integration of science and
technology in criminal investigations. The ultimate goal is to ensure justice,
protect human rights, and uphold the rule of law within custodial situations in
India, aligning with democratic values and respecting the dignity of every individual.
In my experience is that a few officers who safeguard the humanity and rights
of those incarcerated or detained, who conduct true law enforcement activities
are repeatedly relocated by the higher officials since they fail to adhere to
standard torture procedures and do not yield under governmental coercion
strategies.
- Method
of Investigation of the cases of Custodial Torture and Provisions of
Punishment
The formal mechanism of punishment in
situations of custodial torture is either suspended or dismissal. There is
hardly any independent investigation carried out for the same.
In every case of incarcerated
torture, an independent investigation must be conducted under the supervision
of a court. A harsher punishment should be inflicted upon the person who has
inflicted unjustifiable corporeal pain on the accused person who is in the
custody of Police.
- Changes
needed in the internal Police Administration
Along with the external changes to
curb the Custodial Torture, the internal administration and mechanism of the
police enforcement should be modified, and hoe it can be done is as follows;
A. Officers in
higher positions are liable for the actions of their lower officers. The idea
is known as Vicarious Liability in tort law. This will provide a certain level
of accountability to the police management, which is now lacking.
B. The police
agency should create various divisions, and postings, transfers, and
advancements should take place solely inside these departments. There shouldn’t
be cross-division transfers or upgrades.
C. Using the
Mind and Science: Today’s police work on abuse and confession of guilt. In our
nation, forensic science is still not used to solve crimes and even if forensic
science is called for the investigation, until then, there is a lot of delay
which affects the case. Science and technology today have advanced so much in
the police department that not enough emphasis is placed on using mental
abilities and technology; this has to change. Without the use of torture,
forensic science can assist in cracking the case. Mind intelligence should be
utilised to manipulate the accused’s thoughts; intelligence can be used to
gather data and proof, and technology can confirm the credibility of evidence.
The issue of custodial torture in
India demands a comprehensive and multi-pronged approach for effective
mitigation. While the Supreme Court has provided essential guidelines and
verdicts to tackle this problem, their implementation remains deficient. The
focus should shift towards rigorous enforcement of existing laws and
guidelines, coupled with stringent penalties for non-compliance. The undue
stress placed on law enforcement officers must be addressed, with an emphasis
on professional and ethical conduct. Media organisations should exercise
restraint in prejudicing cases, and the public should refrain from passing
premature judgments. Furthermore, police management reforms, including
vicarious liability and departmental divisions, can enhance accountability
within the force. Finally, embracing forensic science and technology can
revolutionize criminal investigations and reduce reliance on custodial torture.
It is imperative that India takes these steps to ensure justice, protect human rights,
and uphold the rule of law in custodial situations.
CONCLUSIONS SUGGESTIONS AND RECOMMENDATIONS
Custodial torture is a grave
violation of human rights, and despite the existence of legal provisions and
guidelines, its prevalence remains a significant concern in India. The
multifaceted nature of custodial torture, encompassing physical, psychological,
and sexual forms of abuse, necessitates a comprehensive and sustained effort to
address the issue. The implications of custodial torture go beyond the immediate
violation of an individual’s rights, extending to custodial deaths,
psychological trauma, and social ostracization.
The international legal framework,
including the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR), unequivocally
prohibits torture and underscores the need to protect individuals in custody.
India’s constitutional provisions, such as Article 21 guaranteeing the right to
life and liberty, and various sections of the Code of Criminal Procedure, offer
protection against custodial abuse. Judicial pronouncements, particularly
landmark cases like D. K. Basu v/s. State of West Bengal, have provided
guidelines for the humane treatment of individuals in custody.
However, the gap between legal
provisions and their implementation is evident in the persistently high number
of custodial deaths and instances of torture. To bridge this gap and address
the root causes of custodial torture, several recommendations and suggestions
emerge:
? Strengthen Implementation: - There is an urgent need to strengthen the implementation of
existing laws and guidelines. Law enforcement agencies must ensure strict
adherence to the Supreme Court’s directives, particularly those outlined in
cases like D. K. Basu v/s. State of West Bengal.
? Public Awareness and Pressure: - The general public plays a crucial role in shaping societal
attitudes and expectations. Increased awareness about human rights and the
detrimental effects of custodial torture can lead to public pressure for
accountability and reforms.
? Media Responsibility: - Media organizations should exercise responsible journalism,
refraining from prejudicing cases and contributing to a culture of impunity.
Reporting should be objective, and media can play a role in raising awareness
about the issue.
? Reform in Police Administration: - Internal reforms within the police administration, including
accountability measures for higher-ranking officers, transparent transfer
policies, and a focus on ethical conduct, can contribute to a culture of
professionalism.
? Independent Investigations: - In every case of custodial torture, there should be an
independent investigation under the supervision of the court. Vicarious
liability should be applied to hold higher-ranking officers accountable for the
actions of their subordinates.
? Embrace Forensic Science and Technology: - Modern investigative techniques,
including forensic science and technology, can reduce reliance on custodial
torture. The police should be trained in utilizing these tools effectively to
solve crimes without resorting to inhumane practices.
? Legislative Reforms: - While existing laws address custodial torture to some extent,
consideration should be given to enacting a specific anti-torture law, as
recommended by the Law Commission of India. Clear and stringent legislation can
act as a deterrent and provide a more robust legal framework.
? Global Cooperation: - India should actively participate in international efforts
against torture, including ratifying the United Nations Convention Against
Torture. Collaboration with global organizations can provide insights and best
practices for combating custodial torture.
In conclusion, addressing custodial
torture requires a holistic approach involving legal, societal, and systemic
changes. By implementing and reinforcing existing laws, raising public awareness,
and embracing reforms within the police force, India can work towards
eradicating custodial torture, upholding human rights, and fostering a justice
system that is fair, transparent, and humane.
[1] Author is a 3rd Year Law Student at Faculty of Law
affiliated to GLS University.
[2] Co-author is a 4th Year Law Student at GLS
Law College affiliated to Gujarat University.
[3] Indian Penal Code, 1860, § 302, No. 45, Acts of
Parliament, 1860 (India)
[4] Indian Penal
Code, 1860, § 304, No. 45, Acts of Parliament, 1860 (India)
[5]National Human Rights Commission India, Annual Report
2019-20 (Available at- https://nhrc.nic.in/sites/default/files/AR_2019-2020_EN.pdf
) (Last visited - Oct 1, 2023 02:03 PM)
[6] Universal Declaration of Human Rights, Art. 1, Available at- https://www.un.org/en/about-us/universal-declaration-of-human-rights, (Last Visited on Nov. 18, 2023, 06:54PM)
[7] Universal Declaration of Human Rights, Art. 5, Available at- https://www.un.org/en/about-us/universal-declaration-of-human-rights, (Last Visited on Nov. 18, 2023, 06:59PM)
[8] Universal Declaration of Human Rights, Art. 1, Available at- https://www.un.org/en/about-us/universal-declaration-of-human-rights, (Last Visited on Nov. 18, 2023, 07:10PM)
[9] International Covenant on Civil and Political Rights, Art. 7, Available at- https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
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[10] International Covenant on Civil and Political Rights, Art. 9, Available at- https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
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[11] United Nations Convention Against Torture, Art.
2, Available at- https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading
(Last Visited Nov. 18, 2023 05:35PM)
[12] United Nations
Convention Against Torture, Art. 11,
Available at- https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading
(Last Visited Nov. 18, 2023 05:35PM)
[13] INDIA CONST. Art. 14, amended by The Constitution
(One Hundred Fifth Amendment) Act, 2021
[14] INDIA CONST. Art. 19, amended by The Constitution
(One Hundred Fifth Amendment) Act, 2021
[15] INDIA CONST. Art. 20, amended by The Constitution
(One Hundred Fifth Amendment) Act, 2021
[16] INDIA CONST. Art. 21, amended by The Constitution
(One Hundred Fifth Amendment) Act, 2021
[17] INDIA CONST. Art. 22, amended by The Constitution
(One Hundred Fifth Amendment) Act, 2021
[18] Code of Criminal Procedure, 1973, §
49, No. 2, Acts of Parliament, 1973 (India)
[19] Code of Criminal Procedure, 1973, §
50, No. 2, Acts of Parliament, 1973 (India)
[20] Code of Criminal Procedure, 1973, § 75, No. 2,
Acts of Parliament, 1973 (India)
[21] Indian Evidence Act, 1872, § 25,
No. 1, Acts of Parliament, 1872 (India)
[22] Rudul Sah v/s. State of Bihar, 1983 AIR 1086
[23] Joginder Kumar v/s. State of U.P., 1994 AIR 1349, 1994 SCC (4) 260
[24] Nilabati Behera vs. State of Orissa, 1993 AIR 1960, 1993 SCR (2)
[25] D. K. Basu v/s. State of West Bengal, (1997) 1 SCC 416: 1997 SCC (Cri)
92
[26] Legal Service India, Custodial Torture and Reforms in
Police Administration, Available at- https://www.legalserviceindia.com/legal/article-3120-custodial-torture-and-reforms-in-police-administration.html
(Last Visited Oct. 01, 2023, 01:48PM)
[27] Joginder Kumar v/s. State of U.P., 1994 AIR 1349, 1994 SCC (4) 260
[28] D. K. Basu v/s. State of West Bengal, (1997) 1 SCC 416: 1997 SCC (Cri)
92
[29] Prakash Singh v/s. Union of India, Writ Petition (Civil) 310 of 1996