Criminal Law Reforms: Addressing Human Rights Violations in Custody

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This article has been written by Mahita Swamy, Law Graduate from BMS College of Law, Bengaluru, Karnataka.

Table of Contents

Abstract

Human Rights are an innate part of this life on the planet. They cannot be separated from a person. At the same time, different countries have guaranteed it as their fundamental rights. But these rights are quite easily violated when it comes to police custody or judicial custody. It is mainly because of the unawareness about one’s rights when they are being arrested, all the while their rights when detained by the police officers. This has not only led to deaths, but also has made general public loss trust in the institution of police and justice. Though this has been countered again and again by the courts in India, the process to implementation is something we have to understand and look out for. This article encompasses most of the innate human rights that will be violated due to police abuse and brutality and certain reforms that have taken place to curb the same.

Introduction

If you remember the popular movie from the months of lockdown, you may be aware of the conversation on Police brutality or Police torture of arrested personal. Jai Bhim was a movie highlighting many flaws of being human and how innocents fall prey to the evils of society. This was a case of bias and violence, by the hands of police, against a marginalised community and a major case of human rights violence. Many not believe it, but it was based on an actual case that was dealt by the Madras High Court – Rajakannu v State of Tamil Nadu and Ors. (1993) [1]– where the court acted quickly to those who had been the victim of police abuse and became a landmark case to uphold the rule of law.

If you are confused about the topic that is being covered, let me explain it as such – any form of violence or abuse/torture or cruel, inhuman or degrading treatment or punishment inflicted on someone from a place of authority. Or in this article, by the hands of the Police officers.

For all movie lovers, I can give you a long list of movies that depict this violence as a part of the police officers job description – though in reality, it far from the truth. All police officers as expected to follow a certain set of rules and regulations, specially made for them, which should be met at all times. Ignorance or non-abidance of these rules in not only a violence on their part, but may also lead to human rights violence for the common people.

Custodial Violence – Meaning and Forms

The word ‘custody’ just means the condition of being held by the police, either arrested or imprisoned. And ‘violence’ means the use of force over a person so as to cause an injury to him. With both these definitions in mind, let’s try to go into the nuances of custodial violence.

As per 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. This violence usually refers to torturing or inflicting violence on an individual or group while they are in the police custody or judicial custody. Custodial Violence can happen in these ways: –

Physical – this is where the arrested person or detained person suffers physical/bodily injuries as it involves the use of force on them. There could be use of various tools such as belts, sticks or punches and kicks to the body. This is the most used form of violence chosen by the police and can instil in the victim, a fear of immediate death.
Psychological – this form of violence is mostly deteriorating the mental strength of the victim and involves aspects of humiliation, threats to loved ones or depriving the basic needs such as food, water, sleep or using toilets.
Sexual – this is that form of violence that is faced by both genders and others. Where there are any sexual acts or attempts to obtain a sexual act either by force or coercion, constitutes sexual violence.

When looking at reports submitted by the Ministry of Home Affairs, in 2021-2022 alone there have been 175 cases reported of death in police custody[2]. Though one would wonder how these acts of violence leads to a human rights violation, as it is not common knowledge that human rights is treated as inalienable rights guaranteed to every human being by the rule of law. Let’s look at this part of the vortex, shall we?

Human Rights Violation in Custody

As given in the Article 1 of the Universal Declaration of Human Rights (UDHR), every person is born free and has inherited rights and dignity, irrespective of the circumstances of their birth. On the basics of this one article, we learn that every person who is born on this planet has an inherent right – some thing that is now known as Human Right. This is based on the French Declaration of the Rights of Man which stated that “Men are born free and remain free and equal in rights”. This principle and article in integrated in Article 14 of the Indian Constitution, which promises “Equality before law and equal protection of laws”. This Article 14 is also a fundamental right, that means that this right is guaranteed by the state and should be upheld by all reasonable measures. There is also Article 19 which deals with the “Right to Freedom”, under which there is the freedom of speech and expression. Though it also encompasses the right to remain silent, following the law under the Indian Evidence Act 1872, where any confessions made under police custody are not admissible in court without evidence backing up the evidence. By facing any abuse or violence by police while in custody, these are human rights that are violated.

Article 5 of UDHR prohibits any form of torture or cruel, inhuman or degrading treatment or punishment. Article 7 of the International Convention on Civil and Political Rights (ICCPR) mirrors the aforementioned article and prohibits the same. Both the articles talk about custodial torture as antithetical as well as that torture expends beyond physical harm and includes sexual or mental/psychological harm inflicted on the victim. There is no equivalent law at the present in Indian laws.

Moving onto other human rights that are violated by custodial violence, we come across Article 9 of the UDHR, which protects the right to freedom of individuals and against arbitrary arrest or detention. Article 22 of the Indian Constitution talks about the same, where every person who is arrested should be made aware of the cause of arrest, including the right to consult an advocate as well. Both the articles deal with the same basic principle – individuals/common people should not be held without proper due process or also known as without justifiable reason by the police. A violation of this human right is violating the framework of dignity, equality and freedom guaranteed to all individuals.

Article 9 of ICCPR deals with the right to liberty and security of a person, where an outline is given that should be met while arresting or detaining an individual. This article is similar to Article 21 of the Indian Constitution, which talks about the right to life and liberty, encompassing many rights related to living a life with dignity and not being forced to arbitrary measures from the state.

Apart from the Constitution and other international laws and conventions, the Code of Criminal Procedure, 1973 has given a few provisions that protect these human rights of individuals. Provisions deal with Unnecessary Restraint (Section 49), Being informed the Grounds of Arrest and their rights to Bail (Section 50) and producing a warrant and shall Notify the Substance/Content of the Warrant (Section 75) be in the Code to protect the fundamental rights guaranteed to everyone.

Even with all these provisions in place, there has been a constant violation of these rights by the police officers in the country. There is no one cause or excuse for this to happen. One of the reasons for this to continue on is that the police officers involved in such brutal acts think of themselves as a brotherhood that should not break the code and back each other whenever questioned[3]. There are also instances where there is pressure on the police to finish the investigations, which ultimately leads them to use extensive force on detained individuals to meet the deadline. There are cases of personal biases coming into play as well in these custodial cases. As such, not all reported cases of police brutality have evidence and can be proved in the court of law. But the ones that have proven the violence and violation of human rights, the courts have upheld the rights and also laid down significant guidelines for checks and balances on police and the judicial custody systems. The courts have always been the first to reform and safeguard against any violation of the rights that takes place, after many tried and failed attempts by other institutions of the country and accordingly, we will look into certain cases where the courts have done the same for violation of human rights in custody.

Reforms that have happened

- Judiciary

One of the most prominent cases under this topic is DK Basu v State of West Bengal[4], which was a PIL filed by DK Basu on issues of death and custodial torture and arbitrary arrests by the police. The Supreme Court not only recognised police brutality and custodial violence but also laid down 11 guidelines to protect the rights of every arrested person. While some of these guidelines have been implemented in the CrPC under Sections 41B, 41C, 46, 50, 55A, 57, etc., most of them are still unknown to layman. Some of these guidelines includes police officials identifying themselves while making the arrest and having interrogations, preparing a memo of the arrest that should be signed by at least 2 independent witness and countersigned by the arrestee, informing either a relative or friend of such arrestee of the arrest made, requiring a medical exam of the accused within 48 hours of the arrest, sending all the records to the local magistrate and to establish police control rooms in all states and districts that would communicate information about the arrests made within 12 hours.

Along with this, the Supreme Court also issued another 9 additional guidelines to the case of Paramvir Singh Saini v Baljit Singh & Others SLP, 2020[5], which are yet to be implemented into the legal framework. One of these guidelines included setting up of “State Human Rights Commissions” (SHRC), while others included installations of CCTV cameras in all prisons and police stations by the state government, the recording from these will be kept for a period of 18 months and appointment of at least 2 women constables should be considered.

In Sheela Barse v State of Maharashtra[6], the court laid down guidelines for the arrest of women as well as the presence of a female police officer during the interrogation process. It also held that there should be timely visits to all police lock-ups by the District Judge, to check the conditions of the lock-ups and to ensure all requirements of law are being full-filled.

In the case of Sube Singh v State of Haryana[7], the court recognised many drawbacks in the police system, which leads to the use of violence on their part, these being lack of modern technologies and equipment required to catch an online crime, lack of training in scientific methods of investigation and lack of training with respect to human rights.

When talking about awarding compensation to the victims of police abuse and violence, the Supreme Court held that Article 21 would be reduced to nullity if the State was not held liable to pay compensation for infringing this article in the Bhagalpur Blinding case[8]. This was further solidified in the case of Nilabati Behera v State of Orissa[9], where the Supreme Court had not only found that the victim had sustained his injuries while he was in custody but also granted compensation of Rs. 1,55,000 that was to be paid by the State and not the police.

In another case, Joginder Kumar v State of Uttar Pradesh, 1994[10], the Supreme Court held that any arrest made without a justifiable reason or cause is illegal and will be an infringement of Article 22 of the Indian Constitution.

Other Reforms

With all these cases, spread across different decades in our country’s modern history, there is still a continuation of custodial violation and police brutality that occurs every day, in different parts of the country. Alongside judicial judgements, there have been certain actions taken by the legislature as well.

Protection of Human Rights Acts, 1993 and NHRC

National Human Rights Commission (NHRC) acts as a watchdog of human rights, that was established in 1993 through the Protection of Human Rights Act, 1993 as an independent statutory body. It is a stand-alone institute of the Government of India, with a mission of protecting and promoting human rights. The NHRC can also take suo motu inquiries of cases that deal directly with human rights violation, acting as a deterrent for the police as they would keep active tabs on their malpractices and other such related acts.

In the history of United Nations, the year, 1948, the Universal Declaration of Human Rights was adopted. The year, 1991, Paris Principles were established by the National Human Rights Institutions (NHRIs), which later in the year, 1993, was adopted in the General Assembly. In the same year, India adopted the same and enacted the Protection of Human Rights Act 1993, leading to the establishment of NHRC. [11]

NHRC, in 2006, held a seminar focusing in the custodial torture that is preventable and how it is the State’s responsibility to protect the rights of people in custody. The main recommendations were divided under 2 heads[12]: –

Police Set-up – Recommendations included points on needing monitoring cases related to minorities, children and women as they need special attention and speedy disposal, no tolerance for any violation of human rights in custody and once guilt has been established, there must be penalties imposed on such police officers, need for two separate wings in the police (one for investigations and other for law and duties) with specialized training for investigation procedures, etc.

Prisons – The recommendations under this head included urgent review of under trial prisons for not only living their term of imprisonment which will also help in decongesting the prisons from their huge numbers, working on a system for holding regular special courts to hear cases, the periodical visits of District Magistrates and other Judicial officers should not only encompass the routine exercise but should also make an effort to make way for speedy disposal of cases, keep more humane conditions inside the prisons meant for women, aged and mentally ill prisoners and provide regular check-ups for such prisoners while also requesting them to be kept separately and provide necessary medical treatments to them.

Prevention of Torture Bill, 2010

In the 15^th Lok Sabha, a bill, Prevention of Torture Bill, 2010, was introduced, to curb the issue of custodial violence. The bill’s objective was to penalise the act of torture inflicted by public servants or a third-party inflicting torture with consent or acquiescence of any public servant, which was proposed to be 3 years of imprisonment (minimum), extending to 10 years along with a fine for the crime.

This bill though lapsed due to the dissolution of the Lok Sabha. It was reintroduced as a private member bill in the Rajya Sabha in 2017, meeting the same fate after it’s dissolution again.

New Criminal Laws

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, that seeks to replace the existing Code of Criminal Procedure, doesn’t deal with custodial violence directly anywhere. Though, Section 187 of the new act deals with police custody, which is now authorised in whole or in parts at any time during the initial 40/60 days out of the 60/90 days period of judicial custody. In the CrPC, it was 15 days.

This is a raising alarm for violations of human rights, as the period of time spent within custody is much more, giving way for any undue act by the police or taking any extra-judicial measures. This could increase the fundamental rights and human rights violations in the country.

Though, the other side of the coin, the police, are grateful for this extended time period, saying that they could conduct investigations properly, meeting all due diligence and conduct interrogations without haste.

This provision should be taken with a grain of salt, as it will be useful in serious crimes that could happen or in cases of cheating or property offences or online crimes. But it would not be applicable for petty crimes, that can be easily proven with help of modern technology.

Conclusion

However you call these acts of police, it is a disgrace not only to the uniform and the message it carries but also losses trust amongst the general public. A Public Servant/Police officer is expected to protect you from your perpetrator. If they themselves become the perpetrator, the peace that could remain for years together in the society will turn into instant chaos, leading to more violence in the society. Chaos can not be easily contained, no matter the effort one puts in. Going to the root cause of this problem might help solve the issue – and there could be more than one root cause.

Only suggesting or offering recommendations to the government will not work, as general public should also be made aware of the inherent rights they have. All police officers should also be routinely examined for them to carry out their duties. Along this, there should be another attempt to implement an anti-torture law/act, that defines torture properly, keeping in mind that physical and mental capacity of every individual varies and there should be a standard formed, keeping this range in mind. An added effort to learn about one’s rights and laws that protect them and talk about it to another will also go a long way in this discussion of human rights.

References