Custodial Violence: An obstacle to democracy and development of human well-being in contemporary Indian society BHAVNI SAHAI BASICS OF LAW Tue, Jul 21, 2020, at ,01:36 PM Custodial violence or torture has become one of the grossest forms of human rights violation existing across the Globe. The development of human well-being in contemporary society comes with the fearlessness of reporting a case of violence and a system where citizens have the freedom to raise voice strongly but the irony is the very system and department made of resolving the mercilessness, violence and fearfulness. The term custodial violence has not been defined under the Indian Constitution. But it can be understood by the combination of two-word custody and violence. The word ‘custody’ implies guardianship and protective care and the word ‘violence’ imply the use of force by one person over another so as to cause physical or mental injury to him. According to the Law Commission of India “crime by a public servant against the arrested or a detained person who is in custody amounts to custodial violence” Custodial violence includes torture, atrocity and other excesses on the suspect in police custody or in judicial custody in order to punish or to get information or to forcibly make one confess to something. Suspect under police custody is detained by the investigating agency in the police lock-up during the period of investigation, which can’t be more than24 hrs, without the prior permission of the magistrate and in total it can’t exceed 15 days as per section 167 of CrPC whereas in judicial custody there is the incarceration of the suspect which is authorized by a magistrate pending investigation or trial in jail. Suspect in the custody generally suffers physical torture, mental torture, sexual harassment, rape or death. In a democratic country, democracy does not mean merely majority rule coupled with human rights, in the absence of which democracy is not possible, but it means liberty, freedom, dissent, rule of law and all other rights which together constitute human rights, and these are the essence of democracy and extremely essential for dignified survival of human being constituting organized society within a state[1]. Today, Custodial violence or torture has become one of the worst crimes in the civilized society, governed by the rule of law and poses a serious threat to contemporary society. There have been countless incidents of custodial violence but recently it has drawn the attention of media, public, Legislature, Judiciary and even Human Rights Commission. Due to the three consecutive incidents which were directly or indirectly result of custodial crime or violence. This started with the first incident of killing of African-American George Floyd by a police officer in the United States which ignited protests against police use of excessive force against Black. Then second incident took place in India that was the death of a Jayaraj and his son Fenix who were brutally beaten up by the police at the Sathankulam police station. The father and son were profusely bleeding when they were produced before the Sathankulam magistrate, who in turn sent them on remand to Kovilpatti sub-jail seemingly without due diligence and with the subsequent deteriorated and they both died in the police custody, then this whole incident caused nationwide outrage and people draw comparisons to the death of George Floyd. Then the third incident took place in Uttar Pradesh were a Gangster Vikas Dubey was shot dead by policemen who said that the suspect tried to flee while they were on the way from Madhya Pradesh to Uttar Pradesh. This incident raised a question on the criminal justice system and the procedural laws of the country. It is observed that generally in such cases the justice is denied as by the death of the suspect the evidence against the policemen or people in authority can’t be disclosed. Whereas, in the last case the death of the accused was the punishment for his crime but the manner in which it came out that was not lawful. It is observed that in the custodial violence the people who are responsible for resorting to third-degree methods are in charge of police station records which they do not find difficult to manipulate in any case. Moreover, there is also an international convention against this type of custodial torture. International Convention Against Torture The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was one of the first documents at the international level to address the issue of torture. It was adopted by the General Assembly of the United Nations on 10 December 1984. In 1997 India signed the United Nations Convention against torture. India being a party to this Convention has an obligation to take the following steps: Take actions to prevent torture by criminalising such acts by enacting domestic laws and regulations and to make provisions to respect the human rights of the alleged victim and the accused. The torture should be outlawed and ‘higher orders’ or exceptional circumstances’ should not be permitted to be used as an excuse for committing torture As per the above steps to apply any law of UN in India, our Parliament has to make a law for it for this India introduced a Prevention of Torture Bill, 2010 but till date, India has not ratified it, which means after the ratification of this treaty India will have to proactively take measures such as framing and enforcing a law against torture, which includes specifically custodial torture. There are certain provisions that are laid down by the Universal Declaration of Human Rights that prohibits torture: Section-5 states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Section-8 states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by Law. Anti-Torture Bill 2010 India introduced the Prevention of Torture Bill or anti-torture bill on April 26, 2010, in the Lok Sabha In 2010, while the Lok Sabha passed the bill but Rajya Sabha referred it to a Select Committee. Further, the committee proposed to amend the bill to define the word torture broadly, add provisions for severe punishment in case of torture against women or child and set out independent authority for the same. Then the bill lapsed and government also did not show any urgency to enact amended torture bill. Subsequently, in 2014, the anti-torture bill of 2010 lapsed upon the change of government since the Rajya Sabha had not passed it. In 2016, the union home ministry said in parliament that the law ministry had prepared a draft bill but did not commit one when they would circulate it on the table. In November 2017, the Law Commission in its 273rd report has recommended that the Government should ratify the convention. The report also presented a draft of the new Prevention of Torture Bill to the government. Moreover, the Commission observed that there is no definition of torture in the current Indian law so in the draft the word torture was defined as “any public servant or an individual authorised by him indulges in an act of torture if they inflict on another person: grievous hurt, danger to life, limb, or health, severe physical or mental pain, or Death for the purpose of acquiring information or punishment. The Commission also recommended stringent punishments for individuals who commit such acts; according to the draft punishment for torture includes imprisonment up to 10 years and fine. In case torture leads to death, the punishment includes death or life imprisonment in addition to the fine. But after looking at this report several state governments said that for implementation of this bill, India will have to amend its Criminal laws to deal with torture complaints and further on this note it was not enacted. Brutality in Custody In India brutality in police and judicial custody has been observed from decades. In 2019 according to a report by a rights group total 1,731 people in India died in custody. According to the recent NHRC monthly report of June 2020, there is a list of approx. 136 cases registered in which 45 cases were disposed and till June ends there were still 4076 cases pending, these numbers include cases of custodial death in police and judicial custody and death in a police encounter. The brutality of police came into limelight when the recent death of a father-son duo from Tamil Nadu, allegedly due to custodial violence, has nurtured seeds of anger in the people of the country and everyone out there is condemning it through their posts. The whole incident triggered horror and furious reactions on social media. It is said that the offender has every right to be tried and punished in accordance with the law and any punitive action taken outside the ambit of law is illegal. Besides, no matter how heinous the crime be, and howsoever dangerous be the criminal, he or she has every right to be treated with human dignity. The courts have even discouraged the practice of handcuffing the accused unless it is necessary. The court after observing the plethora of cases on custodial violence and infringement of arrested person’s rights, then the Supreme Court in the case of DK Basu vs. State of West Bengal[2] said that the custodial violence is the attack on human dignity and further in the judgement of the case it laid down the 11 guidelines which prominently displayed in every police station. The guidelines given by the Supreme Court provide protection from such violence such as the person arrested must be immediately informed about the grounds for arrest, right to bail, right to nominate a person to be informed of the arrest and place of detention etc. But the biggest challenge in India is of enforcement. The courts themselves complain of poor enforcement including the Supreme Court which has also rued this fact. Despite all these guidelines torture and ill-treatment continue to be endemic throughout India and continues to deny human dignity to thousands of individuals. In 1996, in the case of Prakash Singh vs. Union of India[3], the petitioner raised various instances of abuse of power by the police and alleged that police personnel perform their duties in a politically partisan manner. Under this case in 2006, the Supreme Court delivered a historic order on police reforms. It stated, among other things, that every State should have a Police Complaints Authority which will evaluate police performance, and receive complaints of police misconduct. However, only a few States such as Kerala, Jharkhand, Haryana, Punjab and Maharashtra implemented the order. Legal Framework on Custodial Violence There are two different models of the criminal justice system. First is ‘Crime Control Model’ which emphasis on efficiency of action, and second is ‘Due Process Model’ which emphasis on the legitimacy of the action. While West Germany, France and Latin American countries follow the crime control model and countries like the U.K., U.S.A., Australia and India follow due process model. So, here custodial violence raises serious questions about the credibility of the Rule of Law and administration of the criminal justice system in both the model. Constitutional Provisions Torture in custody flouts the fundamental rights of the citizens recognized by the Indian Constitution. Part III of the Indian Constitution deals with Fundamental Rights, under which Article 20, 21 and 22 safeguards the right of the accused person which is directly relevant to the criminal process. Article 20[4] provides doctrine like non-retroactivity of penal laws, double-jeopardy and protection against self-incrimination. Article 21[5] of the Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by law. The expression “Life and personal liberty” occurring in the Article has been interpreted to include Constitutional guarantee against torture, assault or injury against a person arrest and custody. The following are the illustrative decisions, in Dastagir v. State of Madres[6], it was held that the punishment which has an element of torture is unconstitutional. Then in the case of Inderjeet v. State of Uttar Pradesh[7], the Supreme Court held the view that prison restrictions amounting to torture, pressure or infliction and going beyond what the court authorities, are unconstitutional further it extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amount to human degradation. In Sheela Barse v. State of Maharashatra[8], The same observation was upheld. In D.K. Basu & Ashok K. Jauhari v. State of West Bengal[9], the bench said that only restrictions to the enjoyment of fundamental rights can be imposed by the authority and that too through following due process of law and it is the responsibility of the police and prison authorities to ensure that the citizens in custody is not deprived of his right to life and personal liberty, it is an indefeasible right of a citizen. Article 22(1) and 22(2)[10] both are relevant for the present purpose because one of their objects is to ensure that certain checks exist in the law to prevent abuse of power of arrest and detention. Statutory and Procedural Provisions Beside constitutional provisions, there are provisions in criminal laws of India, which deals with the issue of custodial violence or torture and lay down statutory provisions to prevent such cruelty. Code of Criminal Procedure, 1973 Section 46 and 49 of the Code protects those under custody, from torture, who are not accused of an offence punishable with death or imprisonment for life. The scope of Section 176 CrPC includes ‘disappearance’ of accused from custody with ‘death’ in custody. Indian Evidence Act, 1872 Sec. 25 mentions that a confession to a police officer cannot be proved as against a person accused of any offence. Under Indian Penal Code 1860, Sec. 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. Sec.220 is a provision to check the power of police in order to prevent misuse of it over innocent, or at times even guilty, people. Section 330 of IPC curbs the tendency of policemen to resort to torture to extract confessions. Section 340-348 of IPC talks about wrongful restraint and wrongful confinement. Section 376 (2)[11] covers the provision for the prevention of victims for an offence like custodial rape, under section 375 IPC. An offence under this provision can be committed by a police officer, public servant, a member of jail or hospital staff on any woman in their custody. Conclusion When police abuse citizens, then individual erode public confidence in law enforcement. There have been international conventions and criminal laws in India which directly or indirectly provides restriction on custodial violence but still, there is an overlapping of powers. The separation of power is an essential element of the Rule of Law and is enshrined in the constitution. But with one loophole in the system three pillars of democracy are not able to work in a balance. To have a balance in the system there is an immediate need of exemplary punishment meted out to policemen who are responsible for custodial violence or custodial deaths after proper judicial inquiry, not much can be expected to ameliorate the situation. Proper interrogation techniques coupled with the use of scientific methods to extract the truth from suspects can go a long way in reducing custodial deaths and also government should put an obligation on all police stations to have a Police Complaints Authority which will receive complaints of police misconduct and take action on it. In addition to this, our system also needs fast track courts to have speedy disposal of cases and with this only citizens will able to believe on the judiciary and the practices of custodial violence can be reduced. [1] Dr. Lodhi K. Fatima Niyaz; Status of Human Rights in India, 1 (5) INDIAN STREAMS RESEARCH JOURNAL (June 2011) [2] See D.K. Basu & Ashok K. Jauhari v. State of West Bengal AIR 1997 SC 610 [3] See Prakash Singh vs. Union of India Writ Petition (Civil) No. 310 of 1996 [4] See Article 20, The Constitution of India, 1950 [5] See Article 21, The Constitution of India, 1950 [6] See Dastagir v. State of Madres AIR ,1960 SC 759 [7]See Inderjeet v. State of Uttar Pradesh AIR 1979 SC 1867 [8]See Sheela Barse v. State of Maharashatra AIR 1983 SC 378 [9] See D.K. Basu & Ashok K. Jauhari v. State of West Bengal AIR 1997 SC 610 [10] See Article 20(1) & (2), The Constitution of India, 1950 [11] See The Criminal Law (Amendment) Act, 1983