This Article is written by Swaranjali Kapoor ( a 4th-year law student at Jims engineering management Technical campus Greater Noida affiliated with GGSIPU)
INTRODUCTION
Custodial violence refers to any kind of violence that takes place within the premises of a police or judicial custody or station. Such violence includes torture, rape, harassment and sometimes even death. The expression ‘Custodial Violence’ is nowhere defined under any law. It is a mixture of two words ‘custodial’ and ‘violence’. The word custody means protective care and guardianship of someone or something, whereas the term violence means the use of physical force to damage, torture, hurt or even kill someone. So the violence that takes place in police custody or judicial custody is known as custodial violence.
The biggest problem with custodial violence is that it infringes the human rights of the person in custody who is subject to such torture. Every human being including prisoners is also entitled to human rights. Torturing people where they are supposed to feel the safest is the cruellest act there can ever exist. Custodial violence remains the number one and the most common cause of death in prisons and lock-up cells. Movies and television shows depict the torture done by police on people in custody as a heroic act and this causes real-life policemen to actually follow such acts without even understanding whether such acts are justified or not. Bollywood movies like Singham, Dabang, RowdyRathore portray the hero aka the policeman brutally torturing the people they have arrested and we as the audience promote such practices in the name of entertainment. In today’s world where cinema has a huge impact on people’s lives, such negative culture should be cancelled.
Custodial violence is a universal issue that is rarely accounted for and is hardly ever prosecuted. 9 out of 10 cases are not even reported because the aggrieved party fears for his life since policemen are people having authority; this creates fear in the minds of the victims because no one wants to take a risk of involving in a case against a policeman. It is so ironic that people who are appointed to protect the citizens of a country are the ones causing the most damage to them.
TYPES AND FORMS OF CUSTODIAL VIOLENCE
The Code of Criminal Procedure, 1973 under Section 167 gives a detailed account of two types of custody; judicial custody and police custody. When within the premises of a police station, the policemen impose violence or inflict harm on the accused person then it will be custodial violence in police custody, where the accused is kept at the police station in a lockup. Whereas, when violence is carried out by other jailbirds who have been in jail for a long time, then such violence will amount to custodial violence in judicial custody. The prisoners in this case have no other option other than obeying the commands and respecting these violent jailbirds, this further leads to a lot of prisoners committing suicide or being killed by these jailbirds.
There are various types of custodial violence:
Psychological violence:
Here the accused is tortured mentally and the main aim of the police officers here is to break the confidence and lower the morale of the person in custody. Different techniques are used such as forcing the accused to violate his religious or social norms, depriving the accused of basic necessities such as food, water, access to the toilet etc. so that the person becomes disoriented and confesses, monitoring various drugs in order to confuse the accused and cause mental torture or making threats on the safety of the accused’s family or friends so that the accused breaks and confesses.
Physical violence:
Here the accused is physically tortured for a confession or acceptance of crime, irrespective of the fact that whether he or she has actually committed that crime or not. Various methods such as disfigurement, exhaustion, beatings with belts, canes, sticks, inflicting cuts as well as scratches with sharp objects, forcefully making the accused sleep on a wet floor or on a slab of ice, use of chilli powder or salt on wounded parts of the person etc., which causes unbearable pain to the person in custody.
Sexual violence:
It is the females in custody who are mainly the victims of such types of violence. A police station is generally a male-dominated environment; the violence starts with the passing of verbal sexual comments or remarks and ends at either rape or sodomy. It targets at exploiting the dignity of females which causes serious mental as well as physical torture. It is very ironic, that the people who are supposed to protect the dignity and ensure the safety of women are the ones who are taking it away and exploiting them.
RELEVANT DATA
According to the National Crime Records Bureau, in between 2001 and 2018, 1,727 custodial deaths were recorded and only 26 policemen were actually convicted.
Aside from custodial deaths, there were more than 2,000 cases of human rights violations that were recorded against the police from 2000-to 2018 and in reality only 344 policemen were convicted. An estimated 2,000 custodial deaths have been reported in the year 2019 up to 2021, and these are the ones that have been reported. There are thousands of cases which go unreported either because nobody comes to know about these deaths or they fear filing a complaint against a police officer and want to stay out of trouble.
REMEDIES AGAINST CUSTODIAL VIOLENCE
In order to suppress the ever-increasing inhuman violence caused in police custody, Section 176(1) of the Code of Criminal Procedure states that if a person has died in police custody, then the magistrate has the power to hold an inquiry or investigation. The scope of this section was expanded after an amendment in 2005 which included cases of disappearance from custody and custodial rapes.
Several Conventions originated namely, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), the International Convention on the protection of the Rights of All Persons against Enforced Disappearance (CPAED) and several others.
CONSTITUTIONAL SAFEGUARDS
The Constitution of India under Part IIIprovides Fundamental Rights to all the citizens of India. The main articles here are Articles 14, 20 and 21.
Article 20 of the Constitution of India provides protection against double jeopardy which means that a person cannot be charged twice for the same offence. Article 20(3) protects a person from self-incrimination, which means that a person cannot be compelled to be a witness against himself. This clause restricts the power of concerned authorities.
Article 21 of the Constitution of India guarantees the Right to life and liberty which also includes an implied right against torture by the State and Central authorities. This provision ensures the protection of people against cruel and inhuman torture caused by authorities.
STATUTORY PROVISIONS
Section 24 and 25 of the Indian Evidence Act, 1872states that any confession made under the influence of threat, physical force, coercion or promise will not be admissible in the court of law. Under the Code of Criminal Procedure, Sections 29, 46 and 50- 56lays down various rights for a detained person. It states that if the person in custody files a complaint of experiencing torture while in police custody then the magistrate shall set up an investigation of the issue. If the magistrate does not comply with his duty in the above-mentioned section then he can be called for questioning by the High court under Section 482 of C.r.P.c.
A new clause was added in Section 376 of the Indian Penal Code, after the 2012 Delhi Rape case, known as Section 376C, which penalized custodial rape. This provision put a restriction on the police officials. Moreover, Sections 330, 331, 341 and 348of the Indian Penal Code also prevents the police authorities from misusing their powers.
CUSTODIAL VIOLENCE AND HUMAN RIGHTS
Being a citizen of India, the most important rights provided are Fundamental rights, but the most crucial Fundamental Right is given under Article 21 which is the Right to Life and Liberty. The Constitution under this Article guarantees a right to a meaningful and dignified life. So whenever a person is arrested or detained, such custody comes under the purview of the State and through this article, the State is bound to keep the detained person safe and protected in the custody.
But when custodial violence takes place, this basic human right is gravely violated which in turn leaves a negative impact in the mind of the public and creates fear from the very authority that is sworn to protect them. The Code of Criminal Procedure, 1973 along with the Constitution of India provides certain rights to arrested persons. These rights are: Right to consult a lawyer, right to be informed about the grounds of arrest, right to medical examination, right to be produced before the magistrate within 24 hours of the arrest, right to bail, right to a fair and speedy trial, right to free legal aid etc. It is mandatory for the Police officials and authorities to follow these rules and protect and inform the arrested person, but instead, the police officers use brutal methods to torture the arrested person in order to get a confession and deprive him of his legal, fundamental and basic human rights.
In the landmark case of D.K. Basu vs. State of West Bengal, the Supreme Court declared that “Custodial violence is an attack on human dignity, even after implementing so many rules and laws, still the cases of violence and torture in custody are increasing at a rapid rate.” In order to curb this problem, they laid down certain guidelines which were made mandatory for the police officials to abide by. Along with these guidelines, certain constitutional safeguards were also issued by the court, which is as follows:[1]
- The police officer who is carrying out an investigation must at all times wear their name tags, in which their name and designation are clearly visible.
- The Police have to maintain a register in which the details of the investigating officer are mentioned.
- The arresting officer is required to maintain an arrest memo wherein all the details of the arrest such as, the time, date, place of arrest, signature of the witness if any etc. should be mentioned.
- The family and friends of the arrestee must be informed about the arrest and the place of arrest.
- All injuries of the arrested person, whether minor or major must be noted in the form of an inspection memo and must be signed by the officer as well as the arrestee.
- The arrestee is required to be medically examined after every 48 hours of the submission of these documents to the Magistrate.
- While interrogation, the arrestee is allowed to meet with his lawyer.
If these guidelines are followed in a proper manner then there will be a huge declination in the cases of Custodial crimes. These steps taken by the court will improve the condition of people taken in custody and proper justice will be served.
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[1]D.K. Basu vs. State of West Bengal, 1997 (1) SCC 416.
