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RAMIFICATIONS OF CUSTODIAL VIOLENCE IN INDIA: A STUDY BY: AAYUSHI KUMARI & KUMAR SAURABH
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RAMIFICATIONS OF CUSTODIAL VIOLENCE
IN INDIA: A STUDY
AUTHORED BY: AAYUSHI KUMARI &
KUMAR SAURABH
ABSTRACT
Custodial violence is not a novel
occurrence. It is known to have existed in many forms over the course of the
world's history. Only in recent years has it become a problem of highest
urgency and significance. Custodial maltreatment has grown to be a significant human
rights problem and one of the main roadblocks to democracies and the
improvement of human dignity in the modern world. Numerous instances of police
and other state agencies cruelty are not the result of individual aberrations,
but rather systemic compulsions. Due to the tacit assistance of senior police
officials, bureaucrats, politicians, and the judges, the practice is more
pervasive and has gone unchecked. A considerable portion of the population also
supports the practice in the false notion that it is required for the effective
maintenance of peace and order.
Since the beginning of time, both
violence and the instruments of terror have been present. What is it about the
modern terror phenomena that necessitates an immediate response? Why is it necessary
to pass a law against custodial violence? Why do we convene from around the
globe, transcending all worries and considerations of race, religious
affiliation, nationality, and even strategic advantage and historical
grievance, to determine how to contain and combat this plague? In reality,
custodial violence is emerging as a new menace to the individual, his family,
community, country, law and order, and the entire civilised world.
INTRODUCTION
The term 'torture' has become
synonymous with the dark side of human civilization, posing a problem for the
medical, legal, and other professions. In the modern age, torture and death in custody are hardly
unique ideas. That has long been known. Yet, violation of the Constitution's
and other laws' authority and violence in prison have produced serious issues
with respect to human rights, which is a hindrance to the development of our
democracy and modern society. It has negative effects on people's social
functioning, both their mental and physical health, as well as those of their
families, communities, and society at large. This has long been the practise of
law enforcement organisations with convicts, criminals, and wrongdoers. A
considerable number of cases and incidents of prisoner abuse are periodically brought
to light.
The protection of civilians, the
maintaining of law and order, and the protection of public property are the
orientation of the police, an organised collection of government employees. The
police role in a democratic country is to protect liberties, not to curtail
them. A democratic police force is unconcerned with the views and associations
of individuals, as well as their movements and obedience to official ideology.
Even the execution of regulations and formal processes are not its main concerns.
Instead, the police force of a democracy is solely concerned with maintaining
secure communities and applying the criminal law equally and impartially to all
individuals.[1]
In a democracy, the police are
treated as a service. An effective and trustworthy police force is the nation's
primary defense against any violation of human rights. The criminal justice
system (courts, police, and prisons) cannot afford to be inattentive, inactive,
careless, cruel, or insensitive towards the human rights of its residents. But
when legislators and law enforcers become lawbreakers and defenders of human
rights become persecutors, democracy is undermined. Unfortunately, our police
and prisons share the blame for disregarding the limitations of their power.
Custodial violence can be committed
in a variety of ways, including any form of harassment that causes mental or
physical suffering, by word of mouth, by requiring an individual to sit at the
police station for extended periods of time for no apparent reason, by
employing third-degree methods, stripping, molesting, raping, etc. It is
performed by those whose primary duties revolve on upholding law and order,
finding and preventing crime, and enforcing it. This propensity and temptation
must be eliminated for the greater good of justice.[2]
CUSTODY AND CUSTODIAL VIOLENCE: MEANING AND DEFINITION
Neither the procedural laws nor the
substantive laws define the word custody. But it refers to
protective care.[3]
The dictionary defines custody as having the authority or responsibility
to look after someone. It is the condition of being guarded or temporarily
imprisoned, often by the police. A formal arrest is not always required to be
in police custody. It might also entail some form of police surveillance and a
restriction on the person in question's freedom of movement.[4]
A situation in which the
accused can be considered to have been placed under police control,
surveillance, or restraint is referred to as being in custody.[5]
More than only possession,
custody also refers to caring. When a judge grants the correctional authority
custody of an offender, he is immediately stating that the power the
correctional authority has over the criminal must be used to advance the
offender's health. The term "custody" suggests protection and
supervision. It has no sinister signs of violence while in captivity, even when
used to denote arrest or incarceration.
In layman's terms, torture or violence is defined as
"cruelty," "atrocity," and "injury," which refers
to the intentional infliction of severe physical and emotional suffering in
order to punish, obtain information, or force a confession. Violence or torture
that exceeds the victim's threshold for toleration results in death.[6]
Yet, neither the Indian
Constitution nor any other penal laws define torture.
Custodial violence refers to any form
of violence committed while a person is in custody, regardless of whether it is
authorised by the law. Violence can manifest in various forms, ranging from
covert to overt, such as verbal abuse, emotional or physical aggression, severe
beating, sexual assault, or even homicide. Detention may occur under different
circumstances, whether it's legal, police custody, or under the supervision of
institutions responsible for the care of the detainees, including hospitals or
homes. Torture in a police or other type of custody is considered to be custody
violence.
In its historic rulings[7],
the Supreme Court of India defined
custodial offences as those that take place while a person's freedom is
restricted, either directly or indirectly, by the police. It explicitly broadens the definition
of crimes committed while in a person's custody by saying that it makes no
difference whether the harm, torture, or assault takes place on the grounds of
a police station or police post.[8]
VARIOUS METHODS AND TYPES OF CUSTODIAL VIOLENCE
The following torture techniques are
still used by Indian police and other agencies[9]:
i.
Striking
the bare soles of the feet with canes
ii.
Rifle
butts striking
iii.
Burning
with candle and lit cigarette flames
iv.
Refusal
to give medical care
v.
Depriving
the victim of food, water, and sleep before making him drink his own urine
vi.
Prolonged
solitary confinement in jail or prison
vii.
The
extraction of teeth under duress
viii.
Placing
the victim forcibly naked on slabs of ice
ix.
Insertion
of metal nails beneath toenails
x.
Forcing
the victim to crouch in the "Z" position for hours
xi.
Death
threat or mock execution
xii.
Severe
beating with a lathi, iron rod, or fist blows
xiii.
Giving
Electric shocks
xiv.
Sexual
Assault
xv.
Forced
Labour
xvi.
Stabbing
victim with sharp instruments
xvii.
Public
whipping
xviii.
Hitting
on the spine
xix.
Mock
amputations
xx.
Submersion
in water
In order to achieve the desired
outcomes, government agencies use a variety of custodial violence-inflicting
tactics.
1. PSYCHOLOGICAL VIOLENCE
The following techniques are employed
to undermine the victim's self-assurance and morale:
a) Communication techniques in which
the victim is misinformed and subjected to mental torture.
b) The act of mental torture can
involve coercing or threatening the victim to engage in or witness torturous
behaviors. The victim may be compelled to choose between two equally horrible
options that cause mental suffering. Examples of such torture may include
forcing the victim to break social taboos or subjecting them to witness the
torture of others[10].
c) Pharmacological methods, such as
the use of various drugs to aid in torturing a victim, mask the effects of
torture, or both.
d) Threats and humiliations made
against detained individuals, their loved ones, or friends.
2. PHYSICAL VIOLENCE
Physical torture techniques aim to
induce pain, discomfort, and dysfunction in different parts of the body, but
typically not to the point of killing the victim. To prevent detection during
routine examinations, torturers take precautions to conceal signs of torture on
the victim's body[11].
Thanks to advances in medical science, it is now possible to detect internal
injuries that may persist for years after the torture incident.
3.
SEXUAL VIOLENCE
Sexual violence can have significant
social and psychological impacts on its victims. It often begins with verbal
abuse and humiliation aimed at demeaning the victim's dignity, and may escalate
to rape or sodomy[12].
Perpetrators of sexual violence often use various methods to quickly break the
victim's resistance and satisfy their own desires.
FACTORS LEADING TO VIOLENCE IN
CUSTODY
Empirical evidence from
numerous nations indicates that effective governance plays a crucial role in
promoting human welfare and facilitating sustainable development. Conversely,
it is imperative to acknowledge that inadequate governance has the potential to
undermine individual competencies, as well as the institutional and communal
capacities required to fulfil even the most fundamental requirements for
survival among significant portions of the populace.
It is now widely
acknowledged that poverty is not solely attributable to unfavourable economic
conditions, but also to inadequate governance. The lack of agency and
representation poses a significant challenge for individuals who are
economically disadvantaged, rendering them vulnerable to the actions of the
state and its institutions, including law enforcement and the privileged class,
who may impede their access to justice.
The availability of
dependable data regarding custodial crimes is limited and frequently inadequate
due to the gravity of the offences committed within the confines of a custodial
setting, which are readily concealed and transpire within a secluded and
safeguarded environment[13].
The current accountability
framework is insufficient, resulting in a state where law enforcement officials
enjoy a high degree of immunity. Consequently, it is challenging to accurately
determine the frequency of violent incidents that occur during police custody.
In situations where the issue at hand is not particularly severe, it is worth
noting that nearly all allegations of police misconduct are disputed, as law
enforcement officials are often able to provide a credible rationale for their
behaviour.
The primary cause of
custodial offences is linked to the practise of torture and its association
with corruption and collusion among prominent members of society. The lack of a
robust institutional framework and the failure to hold accountable those
responsible contribute to the obstruction of justice for the affected parties[14].
There seems to be a
prevalent notion in India that torture is justifiable in exceptional
situations, particularly for individuals deemed as "hardened
criminals" and "terrorists." Despite the presence of judicial
activism, extensive media coverage, efforts by the National Human Rights
Commission, and intervention by civil society, the issue of combating torture
and preserving human dignity remains a concern.
The occurrence of
violence within custodial settings can be attributed to a diverse array of
underlying factors and rationales. Numerous governmental agencies possess a
significant degree of authority and latitude bestowed upon them by diverse
statutes and regulations, the prevailing political atmosphere, and the broader
societal context. The occurrence of custodial crime within law enforcement or
other governmental institutions is indicative of an underlying issue rather
than the root cause itself. The pathology is located elsewhere. The statement posits
that the operational context of our governmental agencies is a direct
manifestation of the prevailing social environment[15].
The aetiology of this phenomenon is complex and involves multiple factors.
The system of internal
awards, which offers financial incentives or promotions for the performance of
extrajudicial executions, functions as a catalyst. The individuals affected by
this offence predominantly originate from marginalized, economically
disadvantaged, socially oppressed, less privileged, and uneducated segments of
the populace, who typically encounter limited opportunities to avail themselves
of the scant legal recourses that are available. The absence of coherence among
regional entities has resulted in the current support structure's inability to
effectively address the issue[16].
The issue of corruption within the police
force and various governmental and legal institutions is a systemic and
pervasive problem that serves to worsen the situation by allowing such criminal
activities to remain unaddressed. Misuse of laws relating to arrest and
investigation also provides the opportunity to the police to commit torture.
EFFECTS OF
CUSTODIAL VIOLENCE
The following are the most disturbing
aspects of the widespread use of torture and violence against prisoners[17]:
1. The public usually views police as
being just as brutal as murderers.
2. It tarnishes the reputation and
furthers the separation between the people and the police.
3. Because of violence committed
while in custody, rape, and deaths while in custody, the population engaging in
policing is the lowest.
4. Because human rights are
frequently violated, the public has less faith in the legitimacy of government
institutions.
5. Victims lose their mental
equilibrium, experience extreme insomnia, and develop paranoia.
6. The negative effects of all the
positive work done by other officers holding the custody are negated by
violence, rapes, and deaths in custody.
7. The victim of the violence or
torture dies, is driven to commit suicide, suffers from a disability, and loses
his identity, personality, and capacity to live a complete life with his family
and friends in the future.
8. The victim experiences intense
mental anguish, including feelings of guilt and humiliation, a lack of
confidence and self-worth, hopelessness, posttraumatic stress disorders, etc.
9. Many innocent people become
criminals as a result of being traumatised by the insensitive police. The
victim is inspired to rebel against the entire system, the nation, and society
by their grievances against even one specific individual. Even common offenders
leave jail properly hardened.
10. A vicious cycle of poor
interrogation, fabricated investigation findings, and mistrust of the criminal
justice system is created by the criminal justice system's growing dysfunction
and torture in custody.
INTERNATIONAL CONVENTIONS AND TREATIES
The act of torture is considered a
violation of international law and is subject to the legal concept of ‘jus
cogens’, which refers to a fundamental norm that cannot be overridden. Under
international law, the use of custodial torture cannot be justified on any
grounds, regardless of whether it is deemed an emergent situation or not.
Several international conventions have been established regarding this matter,
including the Geneva ICCPR, UNCAT, UDHR.
UNITED NATIONS CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, 1984
The Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) is a globally
recognised human rights treaty that operates with the objective of preventing
the occurrence of torture on a global scale. This convention mandates that
States implement efficient measures to prevent the occurrence of torture within
their territorial jurisdiction, and prohibits the repatriation of individuals
to their native country if there exists a reasonable basis to infer that they
may be subjected to torture[18].
The second article of the Convention
explicitly forbids the use of torture and mandates that signatory parties
implement efficacious measures to preclude its occurrence within any region
under their control. The use of torture cannot be justified under any
circumstances, including but not limited to war, the threat of war, political instability
within a country, a public emergency, terrorist activities, violent criminal
behavior, or any type of armed conflict. The principle of absolute prohibition,
which has been recognised as a customary international law, has gained
acceptance since the inception of the convention.
India has signed the convention
against torture in 1997 but has not yet ratified the convention, as a result
currently in India there are no anti-torture laws. This has lead to the lack of
accountability for the perpetrators of such heinous crime.
THE PREVENTION OF TORTURE BILL, 2010
To ratify the 1975 UN Convention against Torture (UNCAT),
the bill was presented in the Lok Sabha. The objective of the Bill is to make
the act of inflicting torture on an individual while they are in custody a
criminal offense. The definition of torture is described as causing severe harm
or posing a risk to the victim's life, body, or health. There are some flaws in
the bill, such as the definition being inconsistent with the UNCAT definition
and being limited to acts of violence committed while a person is being held
against their will in order to force them to make a confession. It also
excludes mental pain or suffering and many other acts that would otherwise
qualify as torture, doesn't specify a minimum sentence for those who commit
such crimes, and does not address victim compensation[19].
The Bill has failed to pass due to
insufficient political support and certain unsatisfactory provisions.
UNIVERSAL DECLARATION ON HUMAN
RIGHTS, 1948
Human rights, much like fundamental
rights, possess a paramount, eternal, sacrosanct, and transcendental nature.
They must be regarded as inalienable and unavoidable in order to uphold the
dignity of individuals. The acknowledgement and declaration of human rights
serves to uphold and advance the innate dignity of all individuals within the
human community. The year 1948 saw the advent of a global movement towards
safeguarding and ensuring fundamental human rights with the introduction of the
Universal Declaration of Human Rights. Article 3 of the UDHR proclaims that
everyone has the right to life, liberty and security of person.[20]
According to Article 5, individuals
shall not be subjected to torture or any form of cruel, inhuman, or degrading
treatment or punishment.[21]
Article 11 stipulates the safeguarding of the presumption of innocence for
individuals accused of a criminal offence until such time as guilt has been
established. The purpose of this measure is to provide insulation to the
individual in question against any potential arbitrary actions by the
authorities involved in the case.[22]
INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS, 1966
Article 7 of the ICCPR states that “no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent
to medical or scientific experimentation.”[23]
UNITED NATIONS VOLUNTARY FUND FOR
VICTIMS OF TORTURE, 1981
The United Nations Voluntary Fund for
Victims of Torture was established in 1981 in accordance with General Assembly
Resolution 36/151 of December 16, 1981. Its purpose is to receive voluntary
contributions and allocate them through established channels of assistance as
humanitarian, legal, and financial aid to individuals who may have been
subjected to torture, as well as to their family members. Various forms of
humanitarian aid are extended to victims, encompassing medical, psychological,
legal, social, and economic assistance.
The escalating occurrences of custodial
violence within police custody across various regions of the nation are a
subject of profound apprehension. Allegations of power abuse and torture of
detainees by law enforcement officials who possess the authority to detain
individuals during the process of interrogation and investigation of criminal
activity appear to be resulting in the emergence of additional offences.
National Human Rights Commission has
reported numerous instances of human rights violations in police custody
resulting from acts of torture, spanning from its inception in 1993 until
2005-2006. Over the years, the NHRC has made a significant observation
that the State of Uttar Pradesh has reported the highest number of such
complaints. The Commission, in its 2005-2006 report, observed that despite the
establishment of a Human Rights Commission by the state, the trend of human
rights violations in Uttar Pradesh persists.
In the year 2020, during covid-19 lockdown
period, a father and son in Tamil Nadu were killed in police custody after
allegedly being tortured by the Toothukudi district police for keeping the shop
open after the covid-19 curfew hours.
The National Crime Record Bureau
(NCRB) data shows that India has in total recorded 88 custodial deaths in the
year 2021 and Gujrat has recorded the highest number of deaths for the second
consecutive year, followed by Maharashtra.[24] According to the National Crime Report
Bureau, one person dies in India’s prisons every six minutes. The need for a
law forbidding torture has been repeatedly stated by the courts, numerous legal
experts, the Law Commission of India, yet, the legislation does not appear to
be in the works due to the gap between words and actions.[25]
The 273rd Law Commission report
released in 2017 suggested, among other things, payment of compensation to
victims of torture keeping in mind socio-economic background of the victim,
nature, purpose, extent and manner of injury, including mental agony caused to
the victim such as the amount suffices the victim to bear the expenses on
medical treatment and rehabilitation. The Commission had also observed that
tolerance of police atrocities, amounts to acceptance of systematic subversion
and erosion of the rule of law and that it is not permissible whether it occurs
during investigation, interrogation or otherwise[26].
CONSTITUTIONAL AND LEGAL SAFEGUARDS
AGAINST CUSTODIAL VIOLENCE IN INDIA
The Indian Constitution mandates that
the State has a duty to uphold and guarantee the protection of fundamental
rights of all individuals, including those who are incarcerated, under trial,
or detained by authorised personnel. Human rights are inherent and inalienable
rights that are afforded to individuals and cannot be revoked or surrendered.
The Indian judiciary has been instrumental in safeguarding the rights of
individuals, including those who have been marginalised and have lost faith in
the system. The Indian legal framework, encompassing both constitutional and
statutory provisions, incorporates clauses pertaining to custodial violence,
torture, and other offences committed while in custody. The Indian Penal Code
outlines the legal consequences for individuals who inflict harm, torment, or
fatality upon an individual who is in custody. The Criminal Procedure Code and
Evidence Act encompasses various provisions that serve to protect the
fundamental rights and interests of individuals who are in custody.
The Indian judiciary has adopted a
broad interpretation of Article 21, which mandates that all actions taken by
the state must adhere to the principles of justice, fairness, and
reasonableness. Article 21 has been interpreted as a prohibition against the
use of torture and other forms of cruel, inhuman, or degrading treatment.
Article 20 of the Constitution[27]
holds significant relevance to the criminal process. According to Article
20(3), individuals who are accused of any offence cannot be forced to testify
against themselves. The relevance of Article 20(3) is significant in terms of
safeguarding against custodial violence and torture. This provision ensures the
protection of an individual's right to refrain from providing evidence that may
implicate oneself in a crime. The protection against testimonial compulsion, as
provided by the Constitution and statutory law, is based on the notion that
such compulsion could potentially exert a coercive influence on the accused[28].
The three clauses of Article 20 may
seem to be addressing distinct subjects or aspects but a recurring theme among
these perspectives is the concern for safeguarding the accused individual from
potential oppression through the various components of the criminal justice
system, including substantive, procedural, and evidentiary aspects.
The present purpose necessitates
consideration of Article 22(1) and 22(2) of the Constitution, as they serve the
purpose of establishing legal safeguards to prevent the misuse of the power of
arrest and detention. As per the provisions of Article 22(1), it is
impermissible to detain an arrested individual without promptly informing them
of the reasons for their arrest. Additionally, it is unlawful to deprive them
of the right to seek counsel and representation from a legal professional of
their preference. According to Article 22(2), it is required that any
individual who is apprehended and held in custody must be presented before the
nearest magistrate within a 24-hour period following the arrest and it is
prohibited to detain such an individual in custody beyond the designated period
without the authorization of a Magistrate. Article 22(2) guarantees the right
to be presented before a Magistrate for several reasons, including the
assurance of an impartial review of the lawfulness of the detention, the
provision of a satisfactory and efficient opportunity to apply for release on
bail, and the availability of a forum for the detained individual to express
any grievances regarding their treatment while in custody.
Also we have Article 32 and Article
226 of the Indian Constitution through which the aggrieved person can move
directly to Hon’ble Supreme Court and High Courts for the violations of their
fundamental rights and can claim fair and reasonable compensation.
The Code of Criminal Procedure of
1973 comprises provisions designed to function as a protective measure against
custodial torture. Such provisions are Sections 49, 50, 54, 56, 57, 162,163,
164, 313, 315, etc. of the CrPC, 1973.
Similarly we have provisions under
the Indian Evidence Act, 1872 in order to prevent instances to torture in
police custody. Such provisions are Sections 24, 25 and 26 of the IEA,1872.
Indian Judiciary has for years
emphasized the problem of custodial torture and has made every effort on their
part to protect individual’s liberty and dignity. Hon’ble Supreme Court of
India in Kishore Singh v. State of Rajasthan[29]
observed that “nothing is more
cowardly and unconscionable than a person in police custody being beaten up and
nothing inflicts deeper wound on our constitutional culture than a state
official running berserk regardless of human rights”.
In the
landmark judgment of D.K. Basu v. State of West Bengal[30],
Hon’ble Supreme Court observed that “Torture has not been defined
in the Constitution or in other penal laws. ‘Torture’ of a human being by
another human being is essentially an instrument to impose the will of the
strong over the weak by suffering. The word torture today has become synonymous
with the darker side of the human civilisation”.
In Raghubir
Singh v. State of Haryana[31],
upon death of a person in police custody due to inflicting torture for
extracting confession upon suspicion of theft, Hon’ble SC made an observation
by stating that “We are deeply disturbed by the diabolical recurrence of police
torture resulting in terrible scare in the minds of common citizens that their
lives and liberty are under a new peril when the guardians of law gore human
rights to death”.
CONCLUSION AND SUGGESTIONS
In a democratic society, employment
within a correctional facility is considered a form of public service. Prisons,
akin to schools and hospitals, ought to be managed by civil authorities with
the aim of promoting the welfare of society. Correctional facilities are an
essential component of the justice system, and as a public sector obligation,
many states mandate the establishment of correctional facilities or the
placement of inmates in other government-owned facilities. Crimes committed by
custodial authorities violate fundamental human rights and confessions obtained
through such means are often deemed inadmissible in a court of law. The
utilisation of violence by law enforcement or any governmental or
non-governmental entities is counterproductive. The process has the potential
to transform individuals who are initially deemed innocent suspects or
incarcerated individuals into individuals who exhibit characteristics commonly
associated with hardened criminals. Occasionally, individuals' grievances
towards a specific government representative can serve as a catalyst for their
insurrection against the entire nation and its populace. The significance of
custodial management in the broader context of jail management cannot be
overstated, as it enables the authorities to achieve their objectives in the
face of diverse obstacles.
It is imperative for the government
to initiate a process of re-education for the police force, aimed at instilling
a deep reverence for the sanctity of human life. This process must be primarily
led by setting a positive example, rather than relying solely on verbal
persuasion. In the event that a law enforcement officer or any other government
agency official engages in misconduct, it is imperative that the authorities refrain
from concealing the offence under the guise of police solidarity or fraternity.
It is imperative that the Indian
government expeditiously ratify the United Nations Convention against Torture
and It is also imperative to amend the Constitution to include provisions that
prohibit acts of torture and other forms of cruel, inhuman, or degrading
treatment or punishment, which are currently absent.
It is recommended that the Government
of India ratify the initial Optional Protocol to the International Covenant on
Civil and Political Rights. It is recommended that the Government of India
consider removing the reservations it placed upon accession to the Covenant,
thereby facilitating the ability of Indian citizens to seek redress for
instances of unjustified arrest or detention.
It is recommended that India extend
an invitation to the Special Rapporteur on Torture and the Special Rapporteur
on Violence against Women to conduct an investigation into the prevalence of
custodial violence against women in the country.
It is recommended that the Government
implement measures to ensure expeditious and efficient inquiry into all
instances of torture as reported by the media, utilising an independent and
unbiased entity. It is recommended that model prosecution proceedings be
initiated against the individuals responsible for acts of torture.
The Custodial Crimes (Prevention,
Protection and Compensation) Bill of 2006, currently awaiting passage through
both houses of parliament, ought to be enacted with a strong display of
political resolve towards the government's zero tolerance policy. The proposed
mechanism aims to establish institutional provisions that enable the
participation of victims in the inquiry, investigation, and trial phases. This
is intended to safeguard the victim's entitlement to access information,
receive equitable justice, and obtain rehabilitation, safety, and security.
It is imperative for Indian
legislation to provide a precise definition of the term 'custodial violence' in
both its substantive and procedural laws.
It is imperative to promote media
coverage of incidents and cases of custodial violence in order to ensure that
perpetrators are held accountable and victims receive due legal recourse. The
investigating agencies should not succumb to pressures exerted by the
politicians.
It is imperative that the
investigative efforts of law enforcement remain entirely insulated from any
external political or other influences.
It is imperative that the Government
of India expeditiously implement the recommendations on custodial violence put
forth by the National Police Commission and other relevant Committees and
Commissions.
Individuals who are in police custody
and are unable to retain legal counsel due to financial constraints should be
provided with free legal assistance by the State.
The issue of custodial violence
necessitates a dual approach, encompassing both remedial and preventive
measures. Compensation award is among the remedial actions taken subsequent to
an occurrence. It is imperative to address the root causes of custodial
violence in order to proactively prevent its recurrence. The attainment of this
objective is contingent upon the collective efforts of individuals to
collaborate towards the establishment of a robust national character. Given
that force cannot operate in isolation, it follows that all other components of
the criminal justice system, including prosecution, legal representatives,
judges, and correctional personnel, must collectively take action to eliminate
instances of torture, violence, rape, and custodial death. The success of this
endeavour is contingent upon the comprehension and synchronisation of all
societal factions and governmental apparatuses.
[1] United Nations International Police Task
Force, 1996.
[2] Dagdu
v. State of Maharashtra, (1977) 3
SCC 68.
[3]
R.E. AlIen, Concise Oxford
Dictionary of Current English (1990) p.286.
Custody
according to shorter Oxford Dictionary, means safe keeping, protection, charge,
care, guardian ship; M.C.Desai, Venkata
Ramaiya’s Law Lexicon with Legal Maxims (1996) p.574.
[4]
Gurdial Singh v. Emperor, AIR
1932 Lah. 609, p. 611. In fact, actual detention or confinement is not
essential, suffice it will be if the accused is submitted to custody by action
or by word of the police; N.K. Jain,
Custodial Crimes – An Affront To Human Dignity, Human Rights (2000) p. 64.
[5]
Mihir Adhikary v. State, 1983
Cri LJ (Cal) 1559.
[6]
Collins Cobuild, English Language
Dictionary (1992) p.1546.
[7]
SAHELI-A Women Resource Centre v.
Police Commissioner of Delhi, AIR 1990 SC 513.
[8]
D.K.Basu v. State of West Bengal,
AIR 1997 SC 610.
[9] Shailendre Mishra, Police
Brutality: An Analysis of Police Behavior (1986) pp.32-33.
[10] Nithya Ramakrishnan, In custody:
Law, Impunity and Prisoner Abuse in South Asia 5 ( Sage Publication Ltd.,
2013).
[11] Ibid.
[12] Ibid.
[13]https://www.academia.edu/9267466/CONCEPT_OF_CUSTODIAL_VIOLENCE_AND_TYPES_OF_TORTUE
[14] Ibid.
[15]
https://knowlaw.in/index.php/2023/05/22/indian-police-custodial-violence-and-interrogations/
[16] Ibid.
[17]https://www.clearias.com/custodialviolence/#:~:text=It%20sometimes%20leads%20to%20psychological,social%20hatred%2C%20and%20many%20more.
[18]https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading
[19]
https://prsindia.org/theprsblog/the-prevention-of-torture-bill-2010
[20] Article 3- “Everyone has the right
to life, liberty and security of person.”
[21] Article 5- “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment.”
[22] Article 11-“(1) Everyone charged
with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees
necessary for his defense. (2) No one shall be held guilty of any penal offence
on account of any act or omission which did not constitute a penal offence,
under national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time
the penal offence was committed.”
[23]https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#:~:text=the%20present%20Covenant.-,Article%207,to%20medical%20or%20scientific%20experimentation.
[24]https://www.deccanherald.com/india/ncrb-report-gujarat-records-highest-custodial-deaths-in-india-1140709.html
[25]
https://knowlaw.in/index.php/2023/02/19/riding-the-roughshod-is-it-time-to-ratify-uncat/
[26]https://cjp.org.in/why-has-india-still-not-ratified-un-convention-against-torture/#:~:text=India%20signed%20it%20but%20did,binding%20as%20per%20international%20law.
[27] Article 20- “(1) No person shall
be convicted of an offence except for violation of a law in force at the time
of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.
(2)
No person shall be prosecuted and punished for the same offence more than once.
(3)
No person accused of any offence shall be compelled to be a witness against
himself.”
[28] Smith v. Director, Serious Fraud
Office, (1992)3 ALL EF 456 (463); People’s Union for Civil Liberties v. Union
of India, (2004)9 SCC 580.
[29] AIR 1981 SC 625
[30] AIR 1997 SC 610
[31] AIR 1980 SC 1087
Article Information
RAMIFICATIONS OF CUSTODIAL VIOLENCE IN INDIA: A STUDY BY: AAYUSHI KUMARI & KUMAR SAURABH
Authors: AAYUSHI KUMARI, KUMAR SAURABH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/22
- Issue 7
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International Journal for Legal Research and Analysis
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