CHAPTER - IINTRODUCTION Nothing is more cowardly and
unconscionable than a person in police custody being beaten up and
nothing inflicts a deeper wound on constitutional rightsSupreme
Court[footnoteRef:2]. [2: AIR 1982 SC 625.]
Violation is the core of any criminal justice system and the
initiation of its action. The instigation for this action and its
nurturing are vested as a responsibility with the custodians of
law. But when these men who are ushered with the prestigious power
of regulating the civil life of the nation, themselves degrade the
authority they hold the trust of a common man on the system of
governance is crushed. Custodial violence has been the crunch to
mistreated police control for decades now. The very idea of a human
being in custody other than for protection and nurturing is an
anathema to human existence.[footnoteRef:3] The word custody
implies guardianship and protective care. Even applied to indicate
arrest or incarceration, it does not carry any sinister symptoms of
violence during custody. No civilized law allows custodial
cruelty-an inhuman trait that springs out of a preserve desire to
cause suffering when there is no possibility of any retaliation; a
senseless exhibition of superiority and physical power over the one
who is over powered or a collective wrath of hypocritical thinking.
Those who are endowed in our law to carry the burden of enforcing
our laws, such as the police, have the responsibility to carry such
burden with care and in trust for the citizenry. They must not get
intoxicated by the enormous powers made available to them by the
law for its own cause and in the benefit of the citizens, to
molest, harass, intimidate and cage the innocent citizens they are
meant to protect.[footnoteRef:4] [3:
http://theglobaljournals.com/ijsr/file.php?val=February_2014_1392374672_d5a23_27.pdf
visited on 07/05/2014.] [4: Isenalumhe v Joyce Amadin (2001) 1 CHR
458.]
It is one of the worst crimes in the civilized society. Torture
in custody flouts basic rights of citizens and is an affront to
human dignity. Self-preservation is the most pervasive aspect of
sovereignty. To preserve its independence and territories is the
highest duty of every nation and to attain these ends nearly all
other considerations are to be subordinated.[footnoteRef:5] Torture
is the inquiry after truth by means of torment. No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment.[footnoteRef:6] Custodial violence, including torture
and death in the lock ups strikes a blow at the Rule of Law, which
demands that the powers of the executive should not only be derived
from law but also that the same should be limited by law. Custodial
violence is anathema in any civilized society. It is a matter of
concern and to aggravated by the fact that it is committed by
persons who are supposed to be protectors of the citizens. It is
strange and astonishing that custodial crimes are always committed
under the shield of uniform and within the four watts of a police
station or link-up, the victim being totally helpless. The
increasing incidence of torture and death in custody has assumed
such alarming proportions that it is affecting the credibility of
the rule of law and the administration of criminal Justice system,
in India at large. Undoubtedly, any form of torture or cruel,
Inhuman or degrading treatment, whether u occurs during
investigation, interrogation or otherwise, needs the severest
condemnation. Todays police stations and prisons have become
synonymous with assault and torture cells with the detainees either
getting seriously injured or killed because of third-degree methods
adopted by the men in khaki and are breeding contempt for the law,
it invites every man to become a law into himself.[footnoteRef:7]
[5: Abdul Karim v. State of Karnataka, (2000) 8 S.C.C. 710. ] [6:
Article 5 of the Universal Declaration of Human Rights in 1948.]
[7: Justice Brandies in (1928) 277 U.S. 438, quoted in (1961) 367
U.S. 643. ]
The police are under a legal duty and have legitimate right to
arrest a criminal and to interrogate him during the investigation
of an offence but the law does not permit use of third degree
methods or torture of accused in custody during interrogation and
investigation with a view to solve the crime. End cannot justify
the means. The interrogation and investigation into a crime should
be in true sense purposeful to make the investigation effective. By
torturing a person and using third degree methods, the police would
be accomplishing behind the closed door what the demands of our
legal order forbid. No society can permit it.[footnoteRef:8] [8:
S.Krishnamoorthy and another v. State of Tamil Nadu, (2008) 2 MLJ
(Cr) 1217.]
The police, with their wide powers are apt to overstep their
zeal to detect crimes and are tempted to use the strong arm against
those who happen to fall under their secluded jurisdiction. That
tendency and that temptation must in the larger interest of justice
be nipped in the bud.[footnoteRef:9] On many occasions, when
law-breakers are arrested, they make wild allegations, and shout
from roof top 'police brutality' or 'customs brutality', which are
nothing but cat-calls.[footnoteRef:10] No person who supports human
rights can support terrorism which results in a grave violation of
human rights of innocent people. A terrorist who violates human
rights of innocent citizens must be punished, but his human rights
should not be infringed except in the manner permitted by
law.[footnoteRef:11] But it needs to be carefully examined whether
the allegations of custodial violence are genuine or are sham
attempts to gain undeserved benefit masquerading as victims of
custodial violence.[footnoteRef:12] [9: Dagdu v. State of
Maharashtra (1977) 3 SCC 68.] [10: Roshan Beevi and another v.
Joint Secretary, Government of Tamil Nadu, 1984 Cr.L.J. 134 Mad. ]
[11: Speech of the Chairman of the National Human Rights Commission
at the National Foundation for Law and Social Justice, at Kochi,
organized by Justice V. R. Krishna Iyer. ] [12: Shakila Abdul Gafar
Khan v. Vasant Raghunath Dhoble, 2003 (7) SCC 749.]
Nothing tarnishes the image of the police more than brutality
directed against persons in their custody. Exposure of such
incidents causes national and international concern; Of course, use
of excessive force by the police against persons in custody is not
is peculiar to India alone. Custodial torture is virtually a
world-wide phenomenon inflicted upon individuals regardless of sex,
age or state of health. This worst form of human rights violation
has become a very serious and alarming problem. In Third World
countries like India. Brutal atrocities perpetuated by the police,
jail authorities, armed forces and other law enforcing agencies on
the suspects/accused persons and prisoners are menacingly on the
increase day by day."Torture" has not been defined in the
Constitution or in other penal laws. 'Torture' of a human being by
another human being is essentially an instrument to impose the will
of the strong over the weak by suffering. The word torture today
has become synonymous with the darker side of human
civilisation.[footnoteRef:13] Torture is anguish squeezing in your
chest, cold as ice and heavy as a stone paralyzing as sleep and
dark as the abyss. Torture is despair and fear and rage and hate.
It is a desire to kill and destroy including yourself. [13:
D.K.Basu v. State of W.B., AIR 1997 SC 610; (1997) 1 SCC 416.]
Torture in custody flouts the basic rights of the citizens
recognised by the Indian Constitution and is an affront to human
dignity.[footnoteRef:14] Custodial crime is a species of man-made
malady which is growing in alarming proportions. By resorting to
such excesses, the law enforcers are only creating a congenial
atmosphere for fostering terrorism. No civilized society can afford
to support this transformation of man into a beastly animal. The
death in police custody is perhaps one of the worst kinds of crimes
in a civilized society, governed by the rule of law and poses a
serious threat to an orderly civilized society. Torture in custody
flouts the basic rights of the citizens recognized by the Indian
Constitution and is an affront to human dignity.[footnoteRef:15]
"Custodial torture" is a calculated assault on human dignity and
whenever human dignity is wounded, civilization takes a step
backward - flag of humanity must on each such occasion fly
half-mast.[footnoteRef:16] Nothing is as dehumanizing as the
conduct of police in practicing torture of any kind on a person in
their custody. The police image in the estimation of the public has
badly suffered on account of the prevalence of this practice in
varying degrees over the past several years.[footnoteRef:17]
Denying a person of his liberty is a serious
matter.[footnoteRef:18] It is more heinous than a game keeper
becoming a poacher.[footnoteRef:19] [14: Dalbir Singh v. State of
U.P., 2009 Cr.L.J. 1543 SC.] [15: State of M.P. v. Shyamsunder
Trivedi and others, AIR 1995 SCW 2793.] [16: D.K.Basu v. State of
W.B., AIR 1997 SC 610.] [17: 4th Report of June 1980 of the
National Police Commission.] [18: Joginder Kumar v. State of U.P.
(1994) 4 SCC 260.] [19: Bhagwan Singh and another v. State of
Punjab, AIR 1992 SC 1689.]
Torturing suspects with a view to extorting information from
them, is a crude, barbarous and reprehensible method of
investigating and detecting crime. Those who are entrusted with the
duty of enforcing the law, must learn to obey the law. In police
investigation as in other matters, the end does not justify the
means; the means are as important as the end[footnoteRef:20]. Death
in police custody must be seriously viewed for otherwise we will
help take a stride in the direction of police raj. It must be
curbed with a heavy hand.[footnoteRef:21] Torturing, a person and
using third degree methods are of medieval nature and they are
barbaric and contrary to law. The police would be accomplishing
behind their closed doors precisely what the demands of our legal
order forbid.[footnoteRef:22] There is an inclination on the part
of some of the supervisory ranks in the police hierarchy to
countenance this practice in a bid to achieve quick results by
short-cut methods.[footnoteRef:23] [20: Public Prosecutor v. Shaik
Ibrahim, 1964 (2) Cr. LJ 636.] [21: Gauri Shanker Sharma etc., v.
State of U.P. etc., AIR 1990 SC 709.] [22: Bhagwan Singh & Am.
vs. State of Punjab, 1992 (3) SCC 249.] [23: 4th Report of June
1980 of the National Police Commission. ]
Custodial violence in India: A Historical IntrospectionAll
persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of human person (Article
10. ICCPR).No one can truly know a nation until one has been inside
the jail. A nation should not be judged by how it treats its
highest citizen but its lowest one.The history of crime and
criminals is as old as human civilization. They are the products of
social system in which every human being enjoys the rights
privileges and claims. It is true that the correct place of the
criminals are neither their family nor isolation but behind the
bars but it is also true that being criminals does not affect their
status of human being. They remain human being and enjoy certain
basic rights. Whenever a crime is committed in a civilized society,
the wrong doers is subjected to punishment according to the gravity
of the offence and the law of land. But it is unfortunate that very
often the protector of law is the police themselves violated the
law and then start to inflict custodial violence on the criminals,
accused and detainees which often proved fatal to them in various
ways.Custodial violence perhaps one of the worst crimes in a
civilized society is a matter of concern for many reasons.
Custodial violence is a very broad team and it includes deaths,
rapes, tortures, illegal arrests and detention, false implications,
disappearances from police custody and other police
excesses.Violence is a dark reality in our democratic country
governed by "Rule of Law". It is a blatant violation of human
dignity. It strikes at the very of the rule of law. Custodial
violence in India is defined as is the one occurring during the
period the person is in the custody of police prison or any other
institutions set up by the state for detention.No doubt, the police
officers have contributed towards the maintenance of public order
and their plans are enforced with purity, activity vigilance and
description. But more often that, the police officers have been
abused and condemned for to returning the public particularly those
who are in custody and detention and inflicting injuries to their
life and property. It is a calculated assault on human dignity.
Custodial violence and abuse of police power is not only peculiar
to this country but it is also widespread. However, in our country
it is considered second to none. It has been a concern of the
international community because the problem is universal and the
challenge is almost global. In recent years, third degree torture
and custodial deaths have become an intrinsic part of police
investigations and the injury inflicted on the prisoner is
sometimes unbearable custodial death can be because of negligence
by the concerned authorities. This includes safety, provided to the
arrestee medical aid to be provided to the detainees.Torture and
misconduct on behalf of concerned authority's unlawful detention of
a person more than the stipulated time. Duress resulting to the
person taking his own life to avoid the authorities or punishment
"abetment to suicide". The majority of the victims of custodial
death and violence as observed by the law commission are the poor
and weak. The lower level of society who in almost a majority of
the cases cannot revolt back and do any thing about the injustice
done to them or one of their family members in march last year. The
Delhi High Court observed that courts must not overlook the fact
that custodial death is the worst crime in a civilized society. It
called for an amendment in the evidence Act. So that the policemen
guilty of custodial torture do not escape for lack of evidence.The
history of custodial violence has been the history of mankind. An
attempt has been made here to trace out the historical evolutions
of the concept of arrest custodial, violence in India. The
historical retrospection of custodial violence has been divided
under two heads (i) British India period (ii) Post- Independence
period.Custodial violence during British India: - after the advent
of the British in India they showed great interest in improving the
Indian legal system on the basis English legal system. But even
during their regime, the severe and barbarous cerements or
punishments were not uncommon. There are many instances, which the
inhabitants in police custody received harsh treatment on many
occasions.The policy of British administration in India has based
on coercion. They ill treated the masses, denied civil liberties,
discriminate and torture them in many ways in their own country.
During reign in India, there was no fundamental law guaranteeing
the subjects rights and liberties. The rights of persons in custody
were appended on many occasions. History of freedom movement in
India provides glaring epitomes of torture which Indians met under
British rule during 1857-1947.During the British rule in India,
custodial violence was considered legitimate to maintain kingship
and sustain the domination. Human right phenomenon was like a curse
for police officers because their prime concern was to protect
British rulers[footnoteRef:24]. History informs that custodial
violence, including tortures, illegal detention, rapes, deaths etc.
in police custody etc. was the rule of law in colonials reign.
Criminals and suspects were humiliated and subjected to custodial
violence. [24: S. K. Ghosh., The Outcry of Police Brutality, Ashish
Publishing House, New Delhi, 1993, p. 34.]
With the passage of time, the administrative structure of
British India began to assume a new form; various major allocations
were made in the existing legal system. In the year 1790, the
punishment of mutilation was forbidden by law in Bengal and
criminal Courts were directed to inflict imprisonment with hard
labour in its stead. In 1839, the attention of the British
Parliament was drawn to the analmous and sometimes conflict
judicatures why which laws were hitherto being administered.
Accordingly in that year an act was passed which effected many
changes in the constitutional set up of this country. All Indian
Law commission was appointed to prepare a uniform code of legal
rules. In 1858, was issued the Royal Proclamation, whence forth
direct responsibility was assumed by the British
crown[footnoteRef:25]. The frequent report of brutality in lock
ups, rapes and deaths in custody and widespread corruption against
the policemen compelled the government of the day to bring about
certain changes in the law existing at that time[footnoteRef:26].
[25: Custodial Violence in India: A Historical introspection. p.
105.] [26: Report of Indian Police Commission by Government
Training office, Shimla (1902-03) p-150.]
In the next three years, first the Civil Procedure Code, then
The Indian Penal Code was enacted in 1860. The Indian Police Act
1861, The Indian Evidence Act in 1872 and Cr. P.C 1973, one by one
came into force. Britishers through these legislations prohibited
illegal detentions by a Public authority further they also tried to
prohibit inflicting simple injury during custody for obtaining
information or confession and also prohibited inflicting grievous
the world community that they were against detention and
torture[footnoteRef:27]. [27: Gupta Gulab, Custodial Violence and
Human Rights Commission, Central Indian Law Journal, Quarterly
Vol.12 july-Sep 1999, p-286.]
Custodial violence after independence:-But from 1903 till 1947
when India achieved independence, the British set the Police
machinery as Status quo so as to suit their imperialist needs with
the transaction of India from slave country to an independent,
socialist, democratic and welfare state. The style of police
handling the offenders remained same as it was during colonial
period[footnoteRef:28]. In fact, the agencies that performed
policing functions independence of India could hardly be expected
to be democratic and service oriented in nature. After the Second
World War that regular attention has been paid to the rights of an
individual. Many international conventions and declarations have
been adopted by U.N. assembly which takes about the prohibiting of
brutal practice of custodial violence by the law enforcement
agencies. Among the declaration and convention adopted by the U.N.
general assembly, the convention against torture and other cruel in
human or degrading treatment of custodial crimes and tortures. This
convention enjoins upon all member states to take effective
measures to prevent acts of torture. Acts of torture cannot be
justified even in the exceptional cases. [28: Prashar Rajinder,
Police Administration (1986) p. 29.]
This convention globalizes the prohibition against custodial
violence and makes it the concern of all nations of the world.
India is also the signatory of this convention.In India to prevent
custodial violence there are many constitutional, Penal and Legal
Safeguards available. The adoption co constitution brought a ray of
hope for the victims of police torture[footnoteRef:29]. [29:
Custodial violence in India - A Historical Introspection
p-106.]
The judiciary in India played a very significant role to prevent
custodial violence by enlarging the scope of Article 21 of the
Indian constitution. A part form it, the democratic principles
incorporated in the constitution changed the prime duty of the
police personals. But it is unfortunate, that despite of protecting
the interests of public police force bore stigma, for being
violator of human rights[footnoteRef:30]. [30: Custodial violence
in India - A Historical Introspection p-107.]
Present Scenario:-The devotional and ethical services rendered
by the police, as a social service institution is undoubtedly
laudable, but due to certain unscrupulous activities of a handful
of policemen, the esteemed image of police are tarnished. Public
criticism various from its alleged overzealousness and
brutalization at one end of the spectrum, to ineffectiveness in
controlling crime and criminals at the other not surprising in the
face of mounting evidence of violence and crime.Not surprisingly,
the police trend to be the hand maidens of the political rulers of
the day. Instead of being an instrument to enforce the rule of law,
it is increasingly seen as a pliable tool in the hands of
unscrupulous politicians. The Indian police have a long tradition
of being a part is an instrument in the hands of the rulers since
colonial times. At the heart of problem is the fact that a section
of police officers instead of fighting crime and criminals decided
to join them, because doing so was more profitable and less risky.
The criminalization of politics has affected police performance
more than the performance of any other state institution.Though
international laws criminalize custodial violence, it enjoys
unprecedented license in India. The methods of custodial violence
adopted by government officers involve gross forms of
inhumanity.The allegations of incompetence, corruption,
brutalization and being a violates rather than an enforcer of the
rule of law, have all been voiced before against the police force.
But the deteriorating law and other situation and an increasing
sense of insecurity in the country have lent a new edge to these
allegations.The present system of administrative and political
supervision ever the police suffer from many distortions. The
amendment in Cr.P.C in 1973 the so called Magisterial Control has
last its original motivation after the separation of the executive
from the Judiciary complete control has now passed on to political
rulers. Hence there is an urgent need to examine the issue in depth
to develop criminal jurisprudence and also to make the police
officers accountable for their acts and omissions.VIOLATIONS OF
HUMAN RIGHTSMost of the violations of human rights take place in
the management of law and order, by the police. In India, the
history of human rights violations in police custody can be traced
to British period. Even after 57 years of independence, in a
democratic country like India, the police remains virtually a
terror to the people and almost absolutely unaccountable for the
violations of human rights of people in their custody. Through
custodial torture, custodial deaths and other forms of human rights
violation in police custody abuses, no static steps have been have
been taken so far for a permanent solution. Since conviction rate
is considered as the yardstick to measure the ability of an
investigating police officer, every police officer would try to
accomplish the maximum conviction rate to his credit by hook or
crook. This will definitely help to increase the rate of police
torture. It is really pathetic that the successive governments have
persistently refused to investigate the abuses reported in
newspaper. Nowadays custodial violence has become a part of the
police culture and the incidence of custodial deaths is quite
common. Though the academic world and judiciary have become
conscious of the need of a study of the causes, of human rights
violations in police custody from the legal standpoint has so far
received little attention. Though much has been written on this
topic, most of them concentrate on individual issues. The area of
human rights violations is so vast both in the national and
international perspective. Hence the work is mostly confined to the
state of Kerala. Though many of the police officers have
co-operated in a better manner, much difficulties arose in the task
to penetrate the shields of defense of police personnel who tried
to conceive the realities in the interrogation, torture etc.Rights
of a man area symbolic depiction of the aspiration of man to free
himself from oppression and tyranny from his fellow men and his
innate urge for equality and fraternity amongst homo
sapiens[footnoteRef:31]. A right may be defined as something to
which an individual has a just claim. The contemporary use of the
term Human Rights finds its mention in Universal Declaration of
Human Rights in 1948. The expression human rips have not been
specifically defined in any Declaration or Covenant of the United
Nation. They may be regarded as fundamental and inalienable rights
which are essential for life as human being and without which we
cannot live as human beings. Human rights are as ancient as
civilization of man, as it moved from nomadic existence to that of
urbanity. The very basis of healthy community existence is
recognition of human rights.[footnoteRef:32] Human Rights as a
democratic society experiences today, is the result of the
evolution of human consciousness on the basis of the necessary
demand for life based on equality, freedom and justice in a
civilized society. Hence, human rights arc the reflections of a
civil society to protect and promote rule of law and human
dignity.[footnoteRef:33] [31: S. Krishnamurthi, Human Rights and
the Indian Police, R.R. Publishers, Banglore, 1994, p. 24.] [32:
Nagendra Singh, Human Rights and the future of Mankind, Vanity
Books, Delhi, 1981, p. 1.] [33: Krishna layer. Justice at Cross
Road, Deep and Deep Publication, New Delhi 1992, p. 21.]
Human rights and social justice arc necessary to society and our
ideas on them arise from needs common to all human being. They are
binding by custom and convention but arc justified by their
inseparable quality to human dignity Human rights are an integral
part of the concept of human dignity.[footnoteRef:34] No society is
free, no state democratic, unless every citizen actualizes human
rights, in widest commonalty spread. The battle for justice is not
confined to individual claims but to a transformation of the social
system itself. [footnoteRef:35] [34: D.Devasia and Leelamma
Devasia, Women Social Justice and Human Rights, APH Publishing
Corporation, New Delhi. 1998, p. 1. ] [35: V. R. Krishna layer,
Human Rights and in human Wrong, B.R. Publishing Corporation, New
Delhi, 1990, p.7.]
Human rights are the rights which are essential for the living
of the humanity. The expression Human Rights itself talks about its
importance. These are those rights which are made for the
sustenance of people. All individuals and all people have these
rights to self directed development. Human rights in a general
sense, denotes, the rights of humans. Human rights constitute those
very rights which one has precisely because of being a human
being.The concept of human rights is as old as the ancient doctrine
of natural rights founded on natural law, based on mankind's demand
for a life in which the inherent dignity of the human being will
receive respect and protection. It comprises of these minimal
rights, which every individual must have by virtue of his being a
member of the human family respectable of any other consideration.
The most precious legacy of classical and contemporary human
thought to culture and civilization has been the human dignity,
which has culminated into the present day notion of human
rights.[footnoteRef:36] [36: Navin Aggarwal, Police is Protector of
Human Rights, July 1998, CB1 Publications, New Delhi, p.25.]
These rights are essential for the development of human being
and to use and utilize his talents, qualities and intelligence.
They are basic rights, which cannot be denied to human beings. They
are integral part of the concept of human dignity. In the
Protection of Human Rights Act 1993 (10 of 1994), Human Rights arc
defined as the rights relating to Life, liberty, equality, dignity
to the individual guaranteed by the constitution or embodied in the
international Covenants and enforceable by courts in India.Human
right can be generally defined as those rights which are inherent
in our nature and without which we cannot live as human beings.
Human rights and fundamental freedoms allow us to hilly develop and
use our human qualities, our intelligence, our talents and our
conscience and to satisfy our physical, spiritual and other needs.
They are based on mankinds increasing demand for a life in which
the inherent dignity and worth of each human being will receive
respect and protection.[footnoteRef:37] Human rights are sometimes
called fundamental rights or basic rights or natural rights. As
fundamental or basic rights they ore those which must not be taken
away by any legislature or any act of Government. As natural rights
they belong to men and women by their very nature. Another way to
describe them would be to call them common rights for they are
rights which all men and women in world should share just as common
law in England, for example was the body of rules and customs which
unlike local customs, governed the whole country.[footnoteRef:38]
[37: S.K. Kapoor, International Law, Central Law Agency, Allahabad,
1998, p335.] [38: J.E.S. Fawcett, The Law of Navours Allen Lane,
The penguin Press, London, 1965, p. 151.]
Whatever adds to the dignified and free existence of Human
beings should be regarded as Human rights.[footnoteRef:39] They are
fundamental privileges or immunities to which all human beings have
moral claims. These rights are inalienable. Nobody can alienate
them by gift, sale or transfer. [39: Subramanian, Human Rights and
Police, Association for Advancement of Police and Sec Sciences,
Hyderabad, 1998 at 17. ]
The concept of human rights is a concept of world order. Every
Individuals humans dignity is protected. Human rights do not
constitute a mere enumeration of certain basic rights but certain
clear conditions, which must be created leading to the fulfillment
of a individual in society[footnoteRef:40]. The concept of human
rights is expanding. Besides, traditional civil and political
rights, they also include economic, social and cultural rights.
Human rights are truly universal. They are not the monopoly of any
one culture or of any one geographical region. Human rights are
indeed present in the cultural development religions and
philosophies in all parts of the world, since the dawn of recorded
history.[footnoteRef:41] The time concept of human rights is as old
as ancient doctrine of natural rights founded on natural Jaw. It
comprises of those minimal rights, which every individual must have
by virtue of his being a member of the human family irrespective of
any other consideration.[footnoteRef:42] [40: Dr. Deeps Singh,
Human Rights and Police Predicament, The Bright Law House, Delhi,
2002, p. 254.] [41: Jan Martenson, under Secretary General for
Human Rights and Director General of the United Nations office at
Geneva , in his key note address during the third world congress
convened at New Delhi from December 10-15, 1990.] [42: "Police as
protector of Human Rights" C.B.I. Buiieten, July 1998, p 25.]
Dr. Nagendra Singh,[footnoteRef:43] describes four aspects of
human rights. First is the national aspect since human rights take
their origin within the national area. Second is the international
aspect. Human rights cannot be compartmentalized to be restricted
to national boundaries. The third aspect relates to the human
rights in peace as against human rights in armed conflicts. The
fourth aspect pertains to the humanitarian laws of war. Therefore,
Human rights are set to be universal legal guarantees protecting
individuals and groups against actions, which interfere with
fundamental freedom and human dignity and possess the following
importance characteristics.[footnoteRef:44] [43: Ex. President,
International Court of Justice, Netherlands.] [44: United Nations,
Human Rights Training- A Manual on Human Rights Training
Methodology, Profession Training Service No. 6, High Commissioner
for Human Rights Centre for Human Rights, New York, 2000 p.
10.]
1)They are internationally guaranteed.2)They are legally
protected.3)They focus on the dignity of the human being.4)They
protect individuals and groups.5) They obligate states and state
action.6) They cannot be waived or taken away.7) They are equal and
inter dependent.
REVIEW OF LITERATURE The review of studies on custodial crimes
in Indian context includes various studies undertaken by books,
articles, periodical websites, and commentaries, individuals,
academic institutions, police research and training institutions,
non government organizations and various Committees and
Commissions. Bayley (1969) who has conducted a pioneer study on
Police and Political Development in India found that police
brutality varied from rural and urban set up. The rural people are
less critical than urban people as well as north are significantly
more critical than it is in the South. Citing reasoning of
increasing complaints of police brutality in Northern part of India
as Bihar, Delhi, Madhya Pradesh, Rajasthan and Uttar Pradesh (Gosh,
1983) diligently brought out police brutality is a symptom and not
the disease. It cases are multifaceted such as violence is
politicized, political, criminal and police nexus and police are
trapped in a vicious circle and seek more authoritarian solutions
under various labels for survival. While analyzing torture and rape
in police custody Ghosh (1993) has drawn attention towards the main
cause of the persistence of torture is the failure or unwillingness
of governments to hold an inquiry and punish those found guilty.
Particularly disturbing is the fact that redress for the victims or
their familiar is almost impossible to obtain; most of them have
neither the information nor the resources required it seek it.
Moreover, these cases are difficult to substantiate because
custodial deaths take place in out of the view situation which
seldom are monitored by supervisions or witnessed by complainant.
Even when a few witnesses are available, they are intimated or even
killed to prevent them from giving evidence. The victims of police
brutality are often minority people.[footnoteRef:45] [45:
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Mishra (1986) in an empirical study on Police Brutality-An
Analysis of Police Behaviour has focused four main causes of the
malady. First is a colonial tradition of our police as instrument
of the executive or oppression by the rulers; second is the
subculture of our police includes brutality. The police subculture
is strengthened by alienation cynicism, low esteem in society,
conflicting demands made of policemen inconsistent judgment of
their work, all forcing them into a corner, their backs to the
wall. Third is very important reason for the continuing brutal
behavior of policemen is under pressure and finally the most
hateful reason for brutality is to extract money from suspects and
innocent persons. It concluded with the remedies is the real
reforms pushed through with some severity will produce enduring
improvement. It would help it the emphasis within and outside the
police organization is shifted from results to behavior. This shift
will be perceptible and effectual only it notices is taken not
merely of deaths in police custody or where bones have been broken
out also every act of discourtesy and punishment given. Besides,
improvement in behavior should in the long run, by increasing
public acceptance of policemen and their work and eliciting public
cooperation, lead to better and better police work resulting in
higher percentage of conviction.Bureau of Police Research and
Development (1993) in its study on Custodial Crimes, has identified
the following causative factors for occurrence of custodial crime
in our county; sadism in police, unrealistic public expectations
about crime control, Failure of criminal justice system; Inadequacy
of strength and resources in police; Inadequacy of laws; Lack of
scientific temper and non-availability of facilities. This study
has also suggested the various remedial measures to tackle the
menace of custodial crimes. These include tightening recruitment
standards, improving training standards, improving the machinery
for enquiring into complaints, improving supervisory and leadership
standards, review and implementation of reports submitted by
commissions/ committees and review of laws.A survey undertaken by
the Commonwealth Human Rights Initiative (2001) on Police Public
Interface for United Nations Development (UNDP) in State of Assam
and Tamil Nadu in 9 police stations to assess the level of human
rights awareness and attitude of police personnel towards human
rights issues, found that the police admit that they occasionally
use brutal methods. The respondents consider the lack of skill in
investigation work, pressure of work and desire of quick results as
the three more important reasons for using third degree methods.
The Study suggested improvement in human rights training and
sharpening of investigation skills of the police officers will show
good results. The study further suggested improvement in
recruitment standards to screen out the wrong ones, like the
emotionally unbalanced persons, at the entry stage and weed out at
regular intervals those who have been brutalized in the course of
their career in the department Further, it was suggested that
problem of police brutality persists because there are no effective
police accountability mechanisms in existence. The existing system,
where public complaints against police personnel were inquired into
by police themselves, lacks credibility.[footnoteRef:46] [46:
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Talwar (2003) on custodial violence in Delhi found that
political interference in day to day police functioning, public
expectation of quick results, archaic colonial oppressive laws,
malfunctioning of criminal justice system, lack of infrastructure
facilities, pathetic working condition poor supervisory and absence
of accountability are main causative factors for custodial
violence. Further, the study suggested awareness, education and
training of human rights to police personnel, use of scientific
investigation, supervisory of interrogation in custody stringent,
women officer needs to interrogate women detainee, legal action to
the guilty officers and transparency in institution of magisterial
inquiry or inquest for custodial death.National Police Commission (
1979-1981) in its first report analyzed the complaints of police
torture and custodial deaths in eight states and found that under
pressure of work and driven by a desire quick results leave the
path of patient of investigation officers and resort the use of
physical force in different forms to pressure the victims/witnesses
and accused to disclose all the facts known to him. The Commission
observed in 11 out of 17 judicial inquiries, 37 out of 82
magisterial inquiries and 23 out of 43 other agency inquiries were
conducted in different states. The Commission also made an
observation that victims are coming from poor background. Thus, the
Commission recommended that in all cases of custodial deaths there
must be mandatory judicial inquiry.While investigating 45 deaths in
police custody in seven states Arun Sourie (1980) found that
victims are invariably poor. Several of them were brought without
any charge against them. Some of them were formally arrested in
petty offences such as puny-theft (a goat in one case and copper
wire in another), the causal complaint of another one that the
victims had occupied his land, ticketless travel. Others were in
serious charges like relation to murder and attempt to murder. The
study revealed the fact that in seven cases the bodies were so
badly mauled, the evidence of external and internal so considerable
that even authorities had to eventually register cases of murder
against policemen and eventually, the policemen suspended and few
policemen transferred and later reinstate.Five cases were reported
as having died due to natural causes like snake bite; heart failure
on the way to the hospital, sudden illness, etc. Five others were
said to have died for mysterious reasons, while the rest committed
suicide. The study also revealed that the patterns are uniform from
one death to another, from one State to another, that
generalizations are possible. No state had examined deaths in
police custody systematically, not by government, not by any civil
rights organizations, not by press. In each case, inquiries about
the death looked after by the police and the civil administration
as illegitimate encroachments into their private preserves.Amnesty
International (1992) conducted on in-depth analysis of 459 deaths
in police custody in eighteen States of India between 01 January,
1985 to July, 1992. The study revealed the most common torture
methods were severe beatings, sometimes hanging upside down,
administering electric shocks, crushing with heavy rollers,
burning, stabbing with sharp instruments and inserting chilies or
thick sticks forced their rectums.Most of the torture victims were
arrested in connection with criminal investigation and tortured to
extract to extract information and confessions. Others were
arrested because a relative or friend was sought by the police or
because false charges were levelled against them at the behest of
powerful local members such as members of state ruling parties,
businessmen or land owners. It was found common in states in which
there was organized opposition to economic exploitation. The
majority of them were suspected of criminal offences such as
burglary, theft, robbery, arson or public order offences, moving
suspiciously or traveling in trains without tickets, juveniles and
children who were ill or physically disabled as young age have been
among the victims. The victims were belonging to dalits, minority
groups, women, children, poor and unprivileged sections of society
and have little opportunity to obtain redress. The main reason why
torture continues to be practiced on such a wide scale throughout
India was that the police felt themselves to be immune. As they
were fully aware that they will not be held accountable, even if
they kill the victims and even if truth is revealed. Institutional
factors which contributed to the persistence of torture include :
the negative public image and bad working conditions of the police,
the inadequate training and facilities available to them, the high
degree of political involvement in directing their activities and
the failure of government to accept responsibility for insuring
that the police operate within the limits of the law, distortion of
cause of death, intimidating victims and witness, ignoring legal
duty of magistrate to find out case of death and medical aspects of
official cover up.[footnoteRef:47] [47:
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Amnesty International recommended that the following steps be
taken to enhance the protection of human rights in India, halt the
practice of torture and create effective institutional framework
for the prevention of torture. Adopt an official policy to protect
human rights Investigate impartially all allegations of torture
Bring the perpetrators to justice Strengthen safeguards against
torture Inform detainees of their rights Train the police and
security forces to uphold human rights and reform the police
Compensation the victims Provide torture victims with medical
treatments and rehabilitation Investigate the causes and pattern of
torture Strengthen Indias international human rights commitment
& compensation.Shinghal (1993) draws sample of 40 cases of
police custodial deaths in Delhi and examined its causes and
remedial measures. The study was based on secondary data sources
from Delhi Police and District Magistrate, Delhi. The study found
that the unnatural causes of deaths in custody were due to
torture/custodial violence by the police, natural causes (illness,
suicide, hanging, jumping from roof, non-custodial injury,
accidental drowning, burning and drug overdose). Suggesting
remedial measures for combating custodial torture in custody the
study emphasis to bring about attitudinal change amongst the
policemen from the grass root to the senior supervisory levels
overall to creating culture of human rights, reducing pressures
which lead to adoption of short cuts, providing adequate resources
both human and material, enforcing sticker control and
accountability, improving public credibility and confidence.
Besides, the measures for controlling natural deaths in police
custody as health check up of detainee before interrogation in
custody, availability of proper transport facility at police
station and utmost care should be given to juvenile, women and aged
person in the custody.[footnoteRef:48] [48:
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A Study conducted by Sanker Sen (1994) on Custodial deaths in
India on behalf of Indian Police Academy, Hyderabad shows a number
of causes of custodial deaths such as due to the use of third
degree methods by police, lack of effective supervising by the
Senior Police Officer, inadequate training in the areas of
scientific investigation and interrogation, insensitive to people
about rights of citizens, extraneous pressure because of political
forces and corruption within police force. The study suggested
measures to control custodial deaths in police custody. Firstly,
severe punishment should be given to the erring police officer.
Secondly, training interventions should focus more on sensitization
of Police functionaries to human relations. Thirdly, every case of
deaths in custody should be judicial inquiry. Fourthly, medical
examination of accused should be made compulsory before and after
the police demand and finally, surprise visits specifically in
night visits to Police stations by Supervisory Officers should be
carried out.RESEARCH GAPCustodial violence is on rise. Whether its
Delhi, Lucknow, Kerala and Punjab, the accused in police custody is
not safe. Many enactments have been made by Indian government, but
these laws have not been implemented properly. One of the reasons
that custodial violence is widespread in our country that most of
the time the accused does not even know there rights in custody and
therefore subjected to extra judicial punishment. This research is
beneficial because it shows that in addition to making new laws to
curb the menace of custodial violence. There is need for properly
implement existing laws and educate inmates of their rights while
in custody. SIGNIFICANCE OF STUDYCustodial violence has become so
common these days that not only the police and bureaucracy but even
people take it for granted as a routine police practice of
interrogation. The result is that the news of such outrageous
conduct causes nothing more than a momentary shock in the society.
When a custodial death occurs, there is a public uproar, which
either dies down with time or at the most subsided by constituting
an enquiring committee.A reading of the morning newspapers carrying
reports of dehumanizing torture, assault, rape and death in police
custody or other governmental agencies almost every day is, indeed,
depressing. The increasing incidence of torture and death in
custody has assumed such alarming proportions that it is affecting
the credibility of the rule of law and the administration of the
criminal justice system. As a result the society rightly feels
perturbed. The society's cry for justice becomes louder.Any form of
torture or cruel, inhuman or degrading treatment, whether it occurs
during investigation, interrogation or otherwise needs the severest
condemnation. If the functionaries of the Government become
law-breakers, it is bound to breed contempt for the law and no
civilized nation can permit that to happen.Custodial violence may
be both physical and or mental. It may also consist of gross
negligence or deliberate inaction. In a case19, when a person was
suffering from high blood pressure or similar type of disease,
almost for which continuous medicine is essential, and he is not
allowed to take medicines the men develop serious health problem or
dies. The Apex Court held it to be a case of custodial violence and
the State was made liable for damages for their gross negligence in
protecting the person in custody.Despite several initiatives in
recent years, torture and ill treatment continues to be endemic
throughout India and continues to deny human dignity to thousands
of individuate. There is a depressing repetitiveness about
statements made by government officials, members of judiciary,
senior police officials and others in official reports and studies
during the past many years, which have all identified and
acknowledged a serious problem of torture and ill- treatment within
the criminal justice system. Having knowledge of this, it might be
keen urge that research study in field of custodial violence must
be undertaken to highlight the infirmities.SCOPE OF THE STUDYThe
present study covers within its scope the meaning and historical
background of the concept of custodial violence, covering the
magnitude of custodial deaths in India, and the number of custodial
deaths committed in various states and extent of custodial violence
in 2010. The study also analytically examines the constitutional
articles and provisions of Cr.P.C, IPC and Evidence of protection
of rights of prisoners and also it scans the important judgments of
Supreme Court of India, regarding the protection of Prisoners right
in India.The study also analytically examined the available
literature from various criminal law articles, journals and
reports.HYPOTHESES The present research study proceeds on the
following hypothesis. Inspite of various constitutional and
legislative safeguards, the custodial violence still a continual
phenomenon. Failure on the part of investigating agencies in
safeguarding personal liberty and life of citizen. Lacuna in the
existing enforcement machinery to protect the right of accused
person.RESEARCH METHODOLGYThe researcher has used analytical
method. The researcher has analyzed primary sources like bare acts,
Constitution of India, Code of criminal procedure and Indian Penal
code Indian evidence act, policies and notifications issued from
time to time in India. The researcher has also taken help from
secondary sources like book, newspaper, journals, articles,
magazines, internet etc. for critically analyzing the concept of
custodial violence and has interviewed the concerned people,
departments and ministry officials. RESEARCH QUESTIONSThe following
research questions have been addressed in the term paper(i) What
arc the causes of custodial violence? (ii) What are various
safeguards for curbing custodial violence?(iii) What practice to be
followed by police while arrest and interrogation? (iv) What are
Human Rights and scope of International Conventional on Custodial
Crimes?(v) What are constitutional Rights of a prisoner in police
custody?(vi) What are the legislative measures available to a
person in police custody?