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BREAKING THE CYCLE: THE USE OF THIRD-DEGREE TORTURE IN LAW ENFORCEMENT INVESTIGATIONS BY: PRIYANSHI AGRAWAL
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BREAKING THE CYCLE: THE USE OF
THIRD-DEGREE TORTURE IN LAW ENFORCEMENT INVESTIGATIONS
AUTHORED BY: PRIYANSHI AGRAWAL
INTRODUCTION
In India, the legal system follows
the Due Process Model. This model assumes that human memory, particularly in
emotionally charged contexts, can be inherently inaccurate. Within this
framework, confessions extracted from individuals in police custody are viewed
with caution due to the potential for coercion, whereby suspects may be inclined
to utter what they perceive the authorities desire, rather than the truth.
Moreover, this model acknowledges the possibility of witnesses being swayed by
undisclosed biases or vested interests, underscoring the necessity for
impartial oversight to safeguard the accused's rights.
Consequently, the countries following
the Due Process Model have created a series of regulatory measures aimed at
evaluating the admissibility of custodial confessions. These regulations span over
various provisions within the legal framework, from Sections 161 to 164 of the
Code of Criminal Procedure 1973[1],
in conjunction with Sections 24 to 27 of The Indian Evidence Act, 1872[2].
Furthermore, constitutional safeguards against compelled self-incrimination are
enshrined within Article 20(3) of the Indian Constitution[3].
Even with these regulatory frameworks
and constitutional precautions, the Indian criminal justice system encounters
challenges arising from restrictions and gaps in these provisions as well as
the use of coercive questioning techniques by law enforcement. The integrity of
the criminal justice system is frequently compromised by those suspected making
false confessions or statements as a result of this intersection of
circumstances.
This paper delves into the underlying
reasons behind statements and confessions obtained under coercion by law
enforcement agencies and magistrates. The initial section examines the measures
and tactics employed by police, such as third-degree torture, to circumvent
proper investigative procedures, thereby infringing the right against
self-incrimination. Subsequently, we explore the reasons behind the
implementation of these coercive measures. Following this, we assess various
efforts and solutions to address this issue.
EXAMINING POLICE CONDUCT
The Police plays a pivotal role in
the investigation process, with statements made to the Police Investigating
Officer by witnesses being essential to initiate a trial. Section 161 of the
Code of Criminal Procedure, 1973[4], outlines
the rules of examination of witnesses by the police, commonly referred to as
‘police interrogation’. Individuals questioned are obligated by law to respond
truthfully to all inquiries, except those that might potentially incriminate
them. In this provision, any police officer of a rank not lower than specified
by the state government is authorized to orally question ‘any person’ believed
to have knowledge of the facts and circumstances related to the case. The term ‘any
person’ includes the accused as well. However, accused individuals retain the
privilege to remain silent during police interrogation through the “right
against self-incrimination” as per Section 161 (2)[5]
and Article 20(3)[6] of
Indian Constitution. This right lies for the protection of the accused from
improper compulsion by the authorities, thereby contributing to the avoidance
of the miscarriages of justice.[7]
Despite the expectation of protecting
rights, police often become infringers upon them. “Nothing has tarnished the image
of the police more than brutality directed against persons in police custody”.[8] In
2019, India estimates 1723 custodial deaths have been occurred which
constitutes 5 deaths every day[9]
indicating a grim reality where third degree torture and custodial deaths have
become commonplace in police investigations.[10]
Police routinely engage in the
practice of employing third-degree torture on suspects in their custody. They
often resort to extra-legal and violent methods for case detection and
occasionally resort to staged encounters to eliminate notorious criminals. “These
techniques range from the direct and explicit use of physical assaults to
tactics that were both physically and psychologically coercive to lesser forms
of duress”.[11] Various
forms of physical torture inflicted include slapping on ears until bleeding,
inserting live electric wires into body crevices, laying nude on ice slabs,
denying food, water, and sleep, and forcing victims to drink their own excreta,
among others.[12] The alarming rate of custodial deaths and
widespread torture reflects a systemic failure, with even police personnel
acknowledging flaws in the administration and legislation that seemingly
authorize such egregious acts[13].
This reality highlights the urgent need for comprehensive reforms within the
criminal justice system to ensure the protection of human rights and the
prevention of abuses of power.
REASONS BEHIND THE USE OF TORTURE
Law certainly expects an investigator
to unravel the mysteries of a sordid crime, but it does not approve of his
turning into another criminal in order to solve a crime.[14] However,
under the due process model, the police have to establish the crime in the
court beyond doubt which leads to solving the case by “any means”. The
pragmatic logic of third-degree interrogation is thus an articulation of the
internal structural contingencies affecting police violence.[15]
1. Duration of custody
“Every person who is
arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.”[16]
Failure to adhere to the 24-hour presentation rule constitutes a breach of
procedure by the arresting officer. In such instances, the magistrate is
endowed with the authority to summon the said police officer to elucidate the
allegations and furnish details regarding the custodial status of the detained
individual. Subsequently, the magistrate possesses the discretion to either
grant bail or remand the individual to police custody. This temporal limitation
often places significant pressure on law enforcement, leaving them with a mere
12 to 13-hour window for interrogation. Consequently, an overburdened and
stressed police force may resort to the utilization of torture as a perceived
expedient method to obtain requisite information, further creating a loop in
itself.
2. Distrust towards the profession as
well as the justice system.
The second major reason
for employing third-degree interrogation tactics stems from a deep-seated
distrust within the police profession. Statements made to the police under
Section 161[17] are not
considered substantive evidence in court, as they are neither sworn nor
subjected to cross-examination. Additionally, Section 162[18]
prohibits the practice of obtaining witness signatures on these statements,
reflecting concerns about their reliability. This lack of evidentiary value for
statements made to the police contrasts with Western countries, where such
statements are verified and carry weight in court. Consequently, Indian police
officers feel their credibility is undermined by a system rooted in colonial
legacy, leading to a sense of insecurity[19].
This distrust within the police profession can lead to the use of torture as a
means to compensate for perceived inadequacies or weaknesses in the justice
system. When police officers feel that the legal system does not adequately
support their efforts or protect their interests, police officers may see
torture as a shortcut to obtaining evidence or as a way to assert control in
situations where they feel powerless.
Another reason is the
distrust towards the justice system. Police officers feel compelled to use
violence not because of circumstances beyond their control, but rather as a
means to uphold justice. They argue that the justice system often fails to
produce results, especially for those without political connections, leading
them to believe they must act outside the law to ensure justice. As one officer
stated, "Who will come and testify against the accused? Trials take years,
and witnesses must wait and travel."[20]
This highlights the complex motivations driving police conduct, even in the
face of legal constraints.
3.
Admissibility of statements by the Magistrate
Non-evidentiary value of the statements made to the police
does not negate the fact that statements made to the magistrate is admissible
in evidence and may be used to corroborate or contradict a statement made in
the Court. Section 164 provides a special procedure for a competent Magistrate
to record confessions and statements. The object behind recording of statements
under this section is that the Magistrate unlike police, can administer oath
and obtain signature over the statement. However, how does the magistrate
ensure voluntariness from the person making the statement? It gives the person
making statements a warning and adequate time to think and reflect. An enquiry
is made about his/her condition in custody and thoroughly assured of no torture
or pressure from extraneous agents. The magistrate carefully considers whether
statements are provided voluntarily. Although this section acknowledges the
significance of ensuring individuals that provide statements without
constraint, it doesn't entirely address the potential for coercion or pressure
that may persist. Even with the magistrate's authority to administer oaths and
collect signatures, there could still be instances where individuals feel
compelled to furnish false statements due to fear or intimidation. Moreover,
the magistrate's assessment of voluntariness relies on subjective
interpretations, which may not fully grasp the coercion or pressure felt by the
individual. While Section 164 incorporates certain safeguards, it may not
completely forestall involuntary statements from being admitted in court.
MEASURES UNDERTAKEN
&
FURTHER SUGGESTIONS
Now let’s analyse the various
measures undertaken by the various authorities to prevent this misuse of power.
The Supreme court has taken a decisive stance on cases involving torture and
deaths in police custody, thereby, declaring the use of third-degree methods to
be violative of Article 21 of the Constitution.[21] Referencing
recommendations from the National Police Commission’s Third Report, it emphasised
the importance of avoiding unnecessary arrests suggesting the issuance of
notices instead, except in cases of heinous offenses.[22]
In the landmark case of D.K. Basu v. State of West Bengal[23],
the court outlined specific norms for arrest and detention.
Despite the provisions safeguarding
rights of victims of custodial torture, The National Human Rights Commission
(NHRC) recorded a total of 914 deaths in police and judicial custody in the
year 2020, with over five deaths per day in police custody reported in 2019[24].
Recommendations from the Law Commission of India, particularly in its 152nd and
273rd Reports, aimed at reducing custodial crimes and ratifying the United
Nations Convention Against Torture, have seen limited implementation, highlighting
the gap between recommendations and concrete action.
However, recent directives from the
Supreme Court, such as the mandate to install CCTV cameras in police stations,
offer a glimmer of hope in curbing custodial violence, provided they are effectively
implemented by state authorities. Despite legal interventions, instances of
torture persist, with a significant portion of police officials justifying such
actions as necessary for the greater good of society, as revealed in the Status
of Policing in India Report 2019. This underscores the ongoing challenge of
ensuring accountability and addressing custodial abuse within law enforcement
agencies, raising pertinent questions regarding the efficacy of existing
mechanisms in policing the police, as posited by Justice V. R. Krishna Iyer, "Who
will police the police?”[25].
While these measures offer important
steps towards fostering transparency, accountability, and respect for human
rights, they may not fully eliminate the underlying causes of custodial abuse
or prevent instances of coercion or duress during interrogations. Additional
efforts are needed to address systemic issues, rebuild trust, and strengthen
legal safeguards within the criminal justice system. Some of the suggestions which
have been already discussed previously under various reports include equipping
the police officials with body cams for recording real time data and preserving
footage for a specific period, installation of CCTV cameras in police stations
covering entry-exit routes, lockups and interrogation rooms, undertaking
physiological-physical-medical tests of investigation officers to ensure that
they are mentally and physically fit. Some other suggestions include surprise
visits to police stations, upgradation in the process of recruitment, training
police on human rights courses, etc.
In considering legal measures to
address custodial violence, an extension of the 24-hour window afforded to the
police for investigation to a minimum of 48 hours is proposed. This extension
aims to alleviate the burden and time constraints faced by police officers,
allowing for more thorough and deliberate investigative processes.
Additionally, augmenting the evidentiary value of statements and confessions
obtained by the police could be achieved through measures such as allowing
witnesses or accused individuals to sign these statements. However, it is
imperative that any such measures are implemented in alignment with the broader
strategies outlined previously.
Addressing the issue of distrust
towards law enforcement requires a multifaceted approach. Both citizens and
police officers must cultivate trust in one another and in the justice system
as a whole. Achieving this mutual trust necessitates improvements in police
behaviour and ongoing efforts to enhance the efficiency of the judicial
process, particularly in expediting trials. By fostering a sense of confidence
in the justice system's ability to deliver timely and fair outcomes, public
trust in law enforcement can be bolstered, contributing to a more harmonious
and cooperative relationship between police and the communities they serve.
CONCLUSION
The problem of custodial torture
within India's criminal justice system presents a complex challenge that
demands urgent attention and comprehensive reforms. Despite various laws and
constitutional safeguards aimed at protecting individuals in police custody,
abusive interrogation tactics such as third-degree torture persist, resulting
in grave violations of human rights thereby, undermining public trust in law
enforcement institutions. While efforts have been taken by various authorities,
like the Supreme Court and national commissions, the continued occurrence of
custodial deaths and the normalization of such actions among some police
officers portrays the inadequacy of such existing measures. The prevalence of
custodial violence reflects systemic failures within the criminal justice
system and highlights the urgent need for more robust accountability
mechanisms.
One of the crucial aspects that
requires immediate attention is extension of the time provided for police
investigations. Currently, the 24-hour window given to the police for investigation,
specifically interrogation, often leads to coercive measures as officers feel
pressurised and rushed to obtain information within the limited 24-hour time frame.
Therefore, extending this period to a minimum of 48 hours would allow for more
thorough and deliberate investigation, further reducing the likelihood of
resorting to abusive methods.
Additionally, norms should be established
in order to increase the reliability of statements obtained during interrogations.
Mandating witnesses to sign statements would enhance their evidentiary value
and provide greater transparency in the investigative process.
Installation of better surveillance
systems, such as body cameras and CCTV in police stations, is another critical
step towards addressing custodial violence. Body cameras equipped with GPS
tracking and recording capabilities would serve as a deterrent against
misconduct while providing objective evidence of interactions between police
officers and individuals in custody. Similarly, CCTV cameras covering
entry-exit routes, lockups, and interrogation rooms would enhance transparency
and accountability, reducing the likelihood of abuse and ensuring proper
oversight of police conduct. Furthermore, to build trust between citizens and
law enforcement, police behaviour should be checked regularly, expediting
judicial processes, and fostering a culture of accountability are essential in
this regard. By demonstrating a commitment to fairness, transparency, and respect
for human rights, law enforcement agencies can rebuild public confidence and
strengthen their relationship with the communities they serve.
To sum up, policymakers, law
enforcement, the judiciary, and civil society must work together to address
custodial violence. Only by maintaining a commitment to reform and upholding
the values of justice and fairness can meaningful progress be made. India can
work toward a future where custodial violence is eliminated and the rights and
dignity of every person are respected and upheld by placing a high priority on
protecting human rights and upholding the rule of law.
[1] Code of Criminal Procedure, 1973, §
161,162,163,164, No. 2, Acts of Parliament, 1974 (India).
[2] The Evidence Act, 1872, §
24,25,26,27, No. 1, Acts of Parliament, 1872 (India).
[5] Code of Criminal Procedure, 1973, §
161(2), No. 2, Acts of Parliament, 1974 (India).
[7] Saunders v. United Kingdom, (1997)
23 EHRR 313
[8] Nirman Arora, Custodial Torture
In Police Stations In India: A Radical Assessment, 41 JILI, 513, 513 (1999)
[9] Dr J. Lakshmi Charan, Custodial Torture in India:
Intersection of Criminal Law and Constitutional Rights, SCC ONLINE (March
23, 2024) https://www.scconline.com/blog/post/2024/03/23/custodial-torture-in-india-intersection-of-criminal-law-and-constitutional-rights/
[10]
ARORA, supra note 8
[11] Saul M. Kassin, Police-Induced
Confessions: Risk Factors and Recommendations. 34L. & Hum. Behav.,
3, 6 (2010)
[12] KASSIN, supra note 11
[13] Ibid
[14] ARORA, supra note 8
[15] THE WIRE, https://thewire.in/books/police-torture-interrogation-jinee-lokaneeta-excerpt (last visited April 7, 2024)
[16] INDIA CONST. art. 22, § 2, Code of
Criminal Procedure, 1973, § 57, 167, No. 2, Acts of Parliament, 1974 (India).
[17] Code of Criminal Procedure, 1973,
§ 161, No. 2, Acts of Parliament, 1974 (India).
[18] Code of Criminal Procedure, 1973,
§ 162, No. 3, Acts of Parliament, 1974 (India).
[19] LOKANEETA, supra note 15
[20] Rachel Wahl, Justice, Context,
and Violence: Law Enforcement Officers on Why They Torture, 48 LAW &
SOC’Y REV. 807, 824 (2014)
[21] Kishore Singh v. State of
Rajasthan AIR 1981 SC 625
[22] Joginder Kumar v State of U.P. AIR
1994 SC 1349
[23] 1997 Cri. L.J. 743
Article Information
BREAKING THE CYCLE: THE USE OF THIRD-DEGREE TORTURE IN LAW ENFORCEMENT INVESTIGATIONS BY: PRIYANSHI AGRAWAL
Authors: PRIYANSHI AGRAWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/09/16
- Issue 7
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International Journal for Legal Research and Analysis
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