By Gokul Abhimanyu-
The whole nation has been in shock after hearing the news of the death of a Son and a Father who was kept allegedly under police custody at Sathankulam in Thoothukudi district. The father and the son were arrested on June 19th for keeping their mobile accessories shop open during the lockdown period. The Media report says that the son and the father were beaten up by the police officers rudely and treated them harshly. This violent assault has led to their death. The brutal act committed by the policemen has caused public anger in the state of Tamilnadu. This makes the discussion on custodial violence and the existing legal cover guarding the protection of the prisoners imperative.
CUSTODIAL VIOLENCE – MEANING AND FORMS:
Custodial violence is a crucial problem that curbs the peace and security of the persons under police custody. This is not merely a law and order issue but a new form of criminality that is more dangerous in a democratic country like ours. Custodial violence traces its origin since the development of the police system. There is no one absolute definition available for defining Custodial violence as the motives, methods, and incentives vary from every case. From the custodial deaths taking place in our nation, we would ultimately conclude that there is a lack of professionalism in methods of investigating. Custodial violence has not been defined under any law. It is the combination of two different terms ‘custody’ and ‘violence’.
Custody means guardianship or protective care to any person. It does not carry any evil symptoms though it is used to indicate arrest or detaining.
Custodial violence generally means the violence that takes place in judicial custody and police custody. Section 167 of the Criminal Procedure Code deals with the types of custody as per the orders of the Judicial Magistrate. Violence generally means that it is a use of sheer force by a dominant person over the other to cause physical, mental, or any other forms of injury. 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”. So, custodial violence is regarded as a senseless exhibition of superiority and physical power over the one who is overpowered. Custodial violence includes rape, torture, excessive beating in police custody, rape, and so on.
CAUSES FOR CUSTODIAL VIOLENCE:
Though every segment of the society is concerned about custodial violence, it remains unresolved over the years. This makes us feel that it is imperative to study the root causes of the problem of custodial violence. The basic causes of custodial violence can be categorized as follows,
Work pressure: A very important reason for continuing violent behavior by the Policemen is pressure. The pressure on police is due to the dynamic nature of crimes, lack of proper infrastructural facilities, and operational inefficiencies. Policemen have to deal with crime and disorder not on bits of paper but in practicality. This work pressure has been created both by the Government and by the People.
Lack of proper training: Lack of knowledge of application and experience of scientific methods in crime investigation and interrogation of accused, the inadequate training is given to constables, being civil and respectful to the public, avoiding brutality or unnecessary harshness, are the factors that which leads to violence. Police training should include a separate training to impart the knowledge about human rights and that they are here to protect human rights and not to infringe them.
Greed for money: This is the most important and hateful reason for custodial violence to happen in our country. Policemen, in greed for money torture those persons who were innocents and suspects.
Social acceptance: People of our country are of a robust belief that only an ‘eye for an eye’ treatment will be better to prevent crimes in the society. Most of the people appreciated those policemen who have encountered those rapists of the Doctor in Hyderabad. Therefore, the Society tacitly expects and approves the use of violence on suspects to get the truth. Complainants themselves urge the police to use force or violence to break a suspect.
RIGHTS OF PRISONERS:
Though no law in India explicitly mentions the rights of the prisoners, the Judiciary hasn’t forgotten to mention the rights of the prisoners and recognized them. V.R. Krishna Iyer (J) has rightly observed:
“In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters.”
Justice Marshall has expressed,
“I have previously stated my views that a prisoner does not shed his basic constitutional rights at the prison gate and I fully support the court’s holding that the interest of inmate”
It is a well-established law that conviction will make a person into a non-person. A prisoner is entitled to all kinds of rights, that are generally available to the non-prisoner. Also, it is undeniable that he is not been entitled to the absolute right, that is available to a non-prisoner but subject to some restrictions. Indian Supreme Court has held that the convicted person will still be a natural person or legal person. It is right to say that, the prisoner also enjoys some basic rights that are enshrined in our constitution.
RIGHTS AGAINST TORTURE UNDER INTERNATIONAL INSTRUMENTS:
India has to follow the international conventions that it has ratified. India has ratified, and signed the International instruments such as Universal Declaration of Human Rights( UDHR), International Covenant on Civil and Political Rights ( ICCPR), International Covenant on Economic, Social and Cultural Right (ICESCR), Inhuman or Degrading Treatment and Punishment (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), International Convention on the Elimination of All Forms of Racial Discrimination(ICERD), Convention on the Right of the Child (CRC), Convention against Torture and Other Cruel, and the International Convention on the protection of the Rights of All Persons against Enforced Disappearance (CPAED)..
- Universal Declaration of Human Rights (UDHR)- Article 5 of UDHR states “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment” International Covenant on Civil and Political Rights (ICCPR) – ‘Article 7’ of this Covenant states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This provision is similar to that of Article 5 of UDHR. This provision aims to protect not only the person from physical abuse but also the dignity and mental integrity of the person.
- Convention against Torture and Other Cruel, Inhuman or degrading treatment or Punishment (UNCAT): The UN General assembly adopted this convention in 1984 with the intent to make the struggle against the use of torture more effective. India signed the convention in 1977 and is amongst few countries that have signed the convention.
RIGHT TO FUNDAMENTAL RIGHTS:
Article 22(1) and 22(2) of the Constitution are dealt with rights that the prisoners have. Article 22(1) of the Indian Constitution reads as follows,
“No person who is arrested shall be detained in custody without being informed as soon as may be, of the ground for such arrest, nor shall he be, of the grounds for such arrest, nor shall be de denied the right to consult and to be defended by Legal practitioner of the choice.”[1]
Article 22(2) provides,
“Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.” [2]
Under Article 21 of the Indian Constitution which says that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’[3]. The expression personal liberty is not limited to bodily restraint or confinement to prison only as has been illustrated by the Honorable Supreme Court in Kharak Singh V. State of U.P[4]. Article 20 (1) prohibits the retrospective operation of penal legislation. Article 20(2) protects against double jeopardy for the same offense. Article20 (3) provides that no persons accused of any offense shall be compelled to be a witness against himself.
The attention of the Indian Supreme Court has been drawn to the rights of the prisoners in 1983, in the case of T.V.Vatheeswaran v. State of Tamil Nadu[5]. The court, in this case, held that the fundamental rights that are enshrined under Articles 19, 14, and 21 of the Indian Constitution are available at all times to prisoners as are provided to the freeman. It further expressed its view that the walls of prisons can’t keep the fundamental rights out. Rights granted to prisoners under the purview of Article 21 are: ‘Right against custodial torture and death in police lockups’[6], ‘Right against cruel and unusual punishment’[7], ‘Right to Free Legal Aid’[8], ‘Right to a fair trial’[9], ‘Right to Speedy Trial’[10], and ‘Rights of Inmates of protective homes’[11]. In the case of State of Maharashtra v Prabhakar Pandurang Sanzgir, “The Supreme Court held that conditions of detention cannot be extended to deprivation of fundamental rights”[12]. Prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement. “Moreover, the rights enjoyed by prisoners, under Articles 14, 19 and 21, though limited, are not static and will rise to human heights when challenging a situation arises”[13]. The Protection of life, liberty, and protection from or against the arrest of a citizen are contained in our Constitution.
STATUTORY SAFEGUARDS FOR PRISONERS:
Section 330(Voluntarily causing hurt to extort confession, or to compel restoration of property), 331(Voluntarily causing grievous hurt to extort confession, or to compel restoration of property) and 348 (Wrongful confinement to extort confession, or compel restoration of property)
- of the Indian Penal Code curbs the tendency of policemen to resort to torture to extract confessions, etc.
- Section 76 of the Criminal Procedure Code and Section 25 and 26 of the Indian Evidence Act also does the same. Indian Penal Code punishes those who commit an offense by causing hurt or grievous hurt to extract a confession.
- The Protection of Human Rights Act, 1993 provides for the better protection of the human rights of a person under custody.
THE COURT OF LAW ON CUSTODIAL VIOLENCE:
In the case of Dastagir V. State of Madras (1960), “the punishment that has an element of torture is held to be Unconstitutional”[14].
In the case of Raghubir Singh V. State of Haryana (1974), the apex court expressed its view that “the society was deeply disturbed by the diabolical recurrence of police torture resulting in a 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. This development is disastrous for our human rights awareness and humanistic constitutional order”[15].
In the case of Inderjeet V. State of Uttar Pradesh (1979), the Supreme Court holds that “the prison restrictions amounting to torture, pressure or infliction and going beyond the court authorities, are unconstitutional”[16].
In the case of Sheela Barse V. State of Maharashatra (1987), “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”[17].
In Francis Corallie Mullin v. Union Territory of Delhi (1981), the Supreme court has condemned cruelty or torture as being violative of Art 21 in the following words “any form of torture and cruelty or degrading treatment would be offensive of human dignity and it would on its view, be prohibited by article 21”[18].
In the case of D.K. Basu v. State of West Bengal (1997), the Supreme Court held that “the custodial death is perhaps one of the worst crimes in a civilized society that is governed by the rule of law. The rights inherent in Article 21 and 22 (1) of the Constitution require to be jealousy and scrupulously protected. Any form of torture or cruel inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation interrogation or otherwise if the functionary of the Government become lawbreakers, it is bound to be contempt for law and would encourage lawlessness and every man would tend to become a law unto himself there why leading to anarchism”[19]. Also, in this case, the Supreme Court has issued certain requirements to be fulfilled in all cases of arrest or detain.
In the landmark judgment of the case of Prakash Singh V. Union of India[20], the Apex court has issued six directives for the police reforms. The directives related to our study are separating the function of investigation and law and order and the establishment of the Police Complaints Authority at the state and district levels. The government is still not interested in reforming the police and making the police accountable because even after more than 10 years, from the time when the Prakash Singh’s judgment was delivered, there is almost no progress and initiative by the Governments and there is only partial compliance.
CONDITIONS TO BE FULFILLED IN CASES OF ARREST:
The conditions to be fulfilled in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures which are as follows,
(1) “The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible, and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register”[21].
(2) “That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest”.[22]
(3) “A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having an interest in his welfare being informed, as soon as practicable, that he has been arrested an is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.”[23]
(4) “The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee fives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest”[24].
(5) “The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained”[25].
(6) “An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is”[26].
(7) “The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her bed, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee”[27].
(8) “The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well”[28].
(9) “Copies of all the documents including the memo of arrest, referred to above, should be sent to the respective Magistrate for his record”[29].
(10) “The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”[30].
(11) “A police control room should be provided at all district and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on conspicuous notice board”[31]
CONCLUSION:
To restore human rights and streamline the criminal justice system, there is a need for addressing custodial death. In this era in which most of the countries are in favor of democracy and personal liberty, it is unacceptable to have custodial deaths taking place in a democratic society like ours. The Government should take active steps in analyzing those causes that lead to custodial violence and should be ready to take away those causes from its root. Basic infrastructure facilities, installation of CCTV cameras, effective training to the police, Amending certain provisions of legislations, Independent Judicial investigations into custodial deaths, and the establishment of human rights courts will be a probable solution for curbing the custodial violence in our nation.
[1] Art.22(1) , the Constitution of India.
[2] Art.22(2) , the Constitution of India.
[3] Art. 21, the Constitution of India.
[4] AIR 1963 SC 1295
[5] 1983 AIR 361.
[6] DK Basu v. State of West Bengal, (1997) 1 SCC 416.
[7] Jagmohan Singh V. State of UP, (1973) AIR 1973.
[8] MH Hosket V. State of Maharashtra, (1987) 3 SCC 544.
[9] Rattiram V State of Madhya Pradesh, (2012) 4 SCC 516.
[10] Hussainara Khatoon v State of Bihar, [1980] 1 SCC 81.
[11] Upendra Baxi v State of Uttar Pradesh, [1983] 2 SCC 308.
[12] State of Maharashtra v Prabhakar Pandurang Sanzgir ,AIR 1966 SC 424.
[13] Charles Sobaraj v. Supdt Central Jail Tihar, AIR 1978 SC 1514.
[14] Dastagir V. The State of Madras, 1960 AIR 756
[15] Raghubir Singh V. State of Haryana, 1974 AIR 1516
[16] Inderjeet V. State of Uttar Pradesh & Anr, 1973 AIR 1867.
[17] Sheela Barse V. State of Maharashatra, JT 1988 (3) 15.
[18] Francis Corallie Mullin v. Union Territory of Delhi,1881 AIR 746.
[19] D.K. Basu v. State of West Bengal,1997 1 SCC 416.
[20] Prakash Singh V. Union of India, 2006 (8) SCC 1
[21] D.K. Basu v. State of West Bengal,1997 1 SCC 416.
[22] Ibid.
[23] D.K. Basu v. State of West Bengal,1997 1 SCC 416.
[24] Ibid
[25] Ibid
[26] Ibid
[27] Ibid
[28] Ibid
[29] D.K. Basu v. State of West Bengal,1997 1 SCC 416.
[30] Ibid
[31] Ibid