The history of crimes and criminals is as old as human society itself. It is true that the ultimate destination of the criminals is neither their family nor the isolation but prison. It is also true that being a criminal does not affect their rights or status as human beings they remain human beings and enjoy certain basic rights. There are many types of violence and custodial violence. Custodial violence means violence that takes place in the police and judicial custody where an individual who has done a crime is tortured mentally and also physically. Custodial violence means any kind of violence occurring in the police and judicial custody whether legal or not, which is not warranted by the law of the land. Violence may be subtle or extreme like abusing, emotional or physical violence, thrashing and beating, harassment, rape or even death. Custodial violence is a huge and dangerous problem that is continuously threatening the peace, security and stability of the entire world but there is a lack of consensus on arriving at a single universally accepted definition of custodial violence phenomenon. It is committed due to different motivations, objects, misuse of power and rationales.
It is important and necessary to punish offenders for their offences and make them go through the judicial process like trial in order to bring the truth out. But it is also important that all this process is done within the boundaries of the law. No matter what the criminal did but criminal has all the right to be treated with dignity. Justice A.P. Shah states that the culture of torture is endemic to the Indian policing system.
INDIAN LAWS AND VIOLENCE
A custodial crime means “To take a person in custody is to limit his freedom. Taking advantage of such a situation, the custodian may attempt to commit a crime on the person under custody. Individuals come under police custody for various reasons like arrest, police remand or the police custody per se is unauthorized. The most prevalent crimes in police custody are assault of various types, rape and murder.
According to Custodial Crimes (Prevention, Protection and Compensation), Bill, 2006 ‘Custodial Crime’ means “an offence caused against any arrested person or a person in custody when that person was in the custody of a police office or a public servant who has power under any law to arrest and detain a person in custody, by the police officer or the public servant concerned having the custody of that person during that period.” The Supreme Court of India in the landmark judgment of SAHELI-A Women Resource Centre v. Police Commissioner of Delhi( A.I.R. 1990 SC 513) interpreted the ” Custodial Crimes” as a crime occurring during the period when some limitation is placed upon the liberty of the person either directly or indirectly, by the police.
It precisely extends the meaning of custodial commission of crimes that it is immaterial whether or not the injury, torture or assault occurs within premises of police station or police post( chowki). What really matters is the control of the police over the victims. According to United Nations Special Rapporteur on Torture (2008), “Custodial Violence against women very often includes rape and other forms of sexual violence such as threats of rape, touching private parts of a woman, being stripped naked, invasive body searches, insults and humiliations of a sexual nature etc.
The Man has certain rights which are universal, inalienable, inherent, and fundamental, the enjoyment of which is the foundation of freedom, justice and peace in the state. Indeed effective maintenance of law and order will enable people to enjoy fully not only their civil and political rights but also social and economic rights.
The police cannot violate human rights; rather they are legally bound to protect them. But it often happens that instead of implementing and protecting the law police itself violates it, which undermines its image. Thus there is a direct and critical interrelationship and interdependence between policing and human rights. Police can be a positive or negative factor in securing the respect and ensuring the protection of human rights, police are part of the sub-system which plays a crucial role in the enforcement mechanism of any country. Human Rights issues are vital to human development and the continuation of human civilization. Police as the law enforcement agency have a duty to see that the people in a democratic society enjoy their fundamental human rights freely.
There has been growing concern in the country and abroad about issues relating to human rights. The Parliament enacted the protection of human rights Act, 1993. According to Section 2(d) of the Protection of Human Rights Act,1993 ” Human Rights” means ” Rights relating to Life, Liberty and Dignity of an Individual guaranteed by the Constitution and embodied in International Covenant endorsable by the court in India. The Act provides the constitution of a National Human Rights Commission, State Human Rights Commissions and Human Rights Courts for better protection of human rights of citizens in the country. 67 The National Human Rights Commission, since its inception, has been addressing the problem of custodial violence including torture, rape, death and disappearance in police custody.
INTERNATIONAL FRAMEWORK AND ORGANIZATIONS
The legal framework in India both constitutional and statutory contains acts relating to safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law (Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on the body of a person in custody under sections 330,331 and 348 Of the Indian Penal Code, 1861. The procedural law (Criminal Procedural Code, 1973 and Indian Evidence Act, 1872) contains several provisions(under Criminal Procedural Code, 1973, section 76 dealing with it and under Indian Evidence Act, 1872, section 25 and 26 dealing with it) safeguarding the legal rights of a person in custody. In addition, the Protection of Human Rights Act, 1993 provides institutions of the National and State Human Rights Commissions as well as Human Rights Courts for better protection of human rights of a person in custody. India has ratified, acceded and singed the International Declarations, Covenants, Conventions and treaties such as the Universal Declaration of Human Rights( UDHR)[1] Adopted in 1948, International Covenant on Civil and Political Rights ( ICCPR)[2], Ratified on 1st November,196 International Covenant on Economic, Social and Cultural Right(ICESCR)[3], Ratified on 10th April 1979 International Convention on the Elimination of All Forms of Racial Discrimination( ICERD)[4] Ratified on 3rd December 1968, Convention on the Elimination of All Forms of Discrimination against Women( CEDAW)[5], Singed on 30th July 1981 Convention on the Right of the Child(CRC)[6]Acceded on 11th December 1992, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment(CAT)[7] Singed on 8th October 1997, and the International Convention on the protection of the Rights of All Persons against Enforced Disappearance ( CPAED)[8] Singed on 6th February 2007. This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power is relevantly Adopted in 1985[9].
LEGAL FRAMEWORK
The 135th Report of Law Commission has recommended by Supreme Court that a section 114(B) should be inserted in the Indian Evidence Act, 1872, to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by the police officer. Such a provision perhaps will have a restraining effect on officers indulging in torture in police custody and judicial custody. The Supreme Court recommended, “Appropriate such changes in the law not only to curb custodial crimes but also to see that such crimes do not go unpunished. Further, the Court observed that courts are also required to have a change in their approach, particularly in cases involving custodial crime and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach.
Sections 25 and 26 of the India Evidence Act, 1872 make confessions made to a police officer irrelevant in evidence. If it is made to an ordinary citizen without, of course, inducement, threat or promise, it is relevant, but if it is made to a police officer under the same circumstances, it is deemed to be unworthy of credit. It shows the deep distrust of law of the very institution it created for investigation of crime and collection of evidence for the prosecution. Some police officers believe that the use of third-degree methods is the main reason/consequence of distrust of law. Since only that part of the confession or statement leading to a material, discovery becomes valid evidence under Section 27 of the Evidence Act. Again there is a provision in the Criminal Procedure Code, 1973. Section 162 say that no statement made by any person to a police officer in the course of an investigation shall if reduced to writing, be signed by the person making it, Why? Because the person making the statement would not know what the police officer has actually recorded. It gives the Scope, to add or delete materials that fit or do not fit into their story.
LEADING CASE LAWS
Supreme Court of India in awarding compensation has relied on Article 9(5)[10]of ICCPR even though India had entered a specific reservation to the same claiming that the Indian legal system did not recognize a right to compensation for victims of unlawful arrest or detention. The courts have leaned in favour of international conventions in interpreting the scope of life, liberty and due process clause of the Indian Constitution under Article 21 in a long line of its judicial precedents.
In the matter of Pravat Chandra Mohanty vs. the state of Odisha[11], the supreme court of India held that the Police is the protector of law and order and people look forward to the Police to protect their life and property. People going to the Police Station for their property will be protected. Injustice and offences committed on them shall be correct and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beats the person who comes to the police station, it is a matter of great public concern. The beating of a person in Police custody is the concern for all the people and causes a sense of fear in the entire society”, the judgment says.
In the matter of Nilabati Behera vs. State of Orissa and others[12], The Hon’ble Supreme Court proceeded to take view that even convicts, prisoners and undertrials cannot be denied of their fundamental rights under Article 21 and 14 of the Constitution of India and once an incumbent is taken into custody and there are injuries on incumbent’s body, then State will have to explain, as to how he sustained the injuries and compensation can be awarded under various public law remedy.
In Dastagir v. State of Madres[13], it was held that ”The expression “Life and personal liberty” occurring in Article 21 of the constitution of India has been interpreted to include Constitutional guarantee against torture, assault or injury against a person arrest and custody”.
CONCLUSION
Human beings are born free in society. Freedom is God’s greatest gift to man and woman even to the criminals and prisoners for being human but due to custodial violence by police, many persons like accused and prisoners have lost their freedom, fundamental rights and human rights. the beginning of the 21st-century criminals was looked at with hatred. Police are the safeguards in society that keep its morals and foundations intact and functioning as we go towards progress and development. The idea of police custody is protection or guardianship even when applying it to arrests and incarcerations. The law is a continuous and omnipresent process and system which is permanent, yet always changes according to the needs and progress of society. As such, law enforcement authorities should be held accountable for their crimes and further training and sensitization must be provided on the basis of science and sound morals so as to promote legal principles amongst our officers and the public.
[1]Adopted on 1948
[2]Ratified on 1st November,196
[3]Ratified on 10th April 1979
[4]Ratified on 3rd December 1968
[5]Singed on 30th July 1981
[6]Acceded on 11th December 1992
[7]Singed on 8th October 1997
[8]Singed on 6th February 2007
[9]Adopted in 1985
[10]Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
[11]AIR 1992 3 SCC 249
[12]1993 AIR 1960
[13]1960 AIR 756
