Custodial Violence in India
  2024-02-22
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Custodial Violence in India

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Custodial violence is a pressing issue that continues to plague the Indian criminal justice system. The inhumane treatment of individuals in police custody has been a longstanding problem, resulting in physical, mental, and sexual violence. Despite the existence of laws and guidelines, custodial violence remains prevalent, with numerous cases of illegal detention, wrongful arrest, and torture being reported.

What is Custodial Violence?

Custodial violence refers to the inhuman treatment of individuals in custody by the police or judiciary. It involves torturing or inflicting violence on the victims, resulting in physical, mental, or sexual harm. The term "custodial violence" encompasses a range of illegal activities, including illegal detention, wrongful arrest, extortion, and physical assault.

According to the Chambers Dictionary, "custody" refers to the condition of being held by the police, arrest, or imprisonment. "Violence" entails the use of force by one person over another to cause injury. Therefore, custodial violence can be understood as the use of force, both physical and psychological, by law enforcement officials against individuals in their custody.

Types of Custodial Violence

Custodial violence manifests in various forms, each designed to exert control and extract information or confessions from the victims. The different types of custodial violence include:

  1. Physical violence: This is the most common form of custodial violence, involving the use of physical force to cause bodily harm and exhaustion to the victim. Physical violence can range from beatings and torture to life-threatening assaults, instilling fear and trauma in the victims.
  2. Psychological violence: In this form of custodial violence, the focus is on the mental aspect of the victim. The perpetrators deprive the victims of basic needs such as food, water, sleep, or access to a toilet. They may also subject them to humiliation, threats, or isolation, leading to mental anguish and a loss of confidence.
  3. Sexual violence: Custodial violence can also take the form of sexual assault or coercion. This includes rape, forced nudity, sexual harassment, and other forms of sexual abuse. Sexual violence not only causes physical harm but also inflicts severe emotional and psychological trauma on the victims.

Causes of Custodial Violence in India

Several factors contribute to the occurrence of custodial violence in India. Understanding these causes is crucial to implementing effective measures to prevent such violence. The main causes of custodial violence include:

  1. Absence of an Anti-Torture Law: One of the significant causes of custodial violence in India is the lack of a specific law criminalizing torture. Without a comprehensive legal framework to address and punish such acts, perpetrators often escape accountability.
  2. Loopholes in the System: The presence of loopholes in the legal and administrative systems allows police officers to act with impunity. The lack of fear of being caught or punished encourages them to continue using violent methods to extract information or settle personal scores.
  3. Lack of Public Awareness: Many individuals are unaware of their rights, making them easy targets for custodial violence. When victims are unaware of their legal protections, it empowers the police to engage in violent behavior without fear of consequences.
  4. Inadequate Training: Insufficient training of law enforcement personnel in dealing with suspects is a significant contributing factor to custodial violence. Emotional intelligence and de-escalation techniques are often overlooked, leading to a higher likelihood of violence during interactions with suspects.
  5. Pressure to Solve Cases Quickly: The immense pressure on police officers to solve cases within tight deadlines can lead to the use of violent methods to extract information promptly. This pressure can push some officers to resort to custodial violence as a means of obtaining quick results.

Indian Laws Dealing with Custodial Violence

The Indian legal system has incorporated various safeguards and provisions to address custodial violence and protect the rights of individuals in custody. These laws aim to restrain the powers of authorities and provide remedies for victims. Let's examine some of the key laws dealing with custodial violence in India:

  1. Article 20(1) of the Constitution: Article 20(1) ensures that no person can be convicted of an offense that was not in force at the time of its commission. It prevents authorities from charging individuals with offenses that did not exist when the alleged crime took place.
  2. Article 20(2) of the Constitution: This article prohibits the prosecution and punishment of an individual for the same offense more than once. It ensures that double jeopardy does not occur, protecting individuals from being subjected to repeated trials for the same offense.
  3. Article 20(3) of the Constitution: Article 20(3) safeguards individuals against self-incrimination. It prohibits any person from being compelled to be a witness against themselves, protecting them from forced confessions or testimonies.
  4. Article 21 of the Constitution: Article 21 guarantees the protection of life and personal liberty. It ensures that no person can be deprived of their life or personal liberty except according to the procedure established by law. This article serves as a fundamental safeguard against custodial violence.
  5. Article 22 of the Constitution: Article 22 provides certain rights to arrested individuals to prevent abuse of power by authorities. It includes the right to be informed of the grounds for arrest, the right to legal representation, and the right to be produced before a magistrate within 24 hours of arrest.
  6. The Code of Criminal Procedure (CrPC) 1973: The CrPC lays down procedures for arrest, detention, and investigation. It includes safeguards such as the provision for informing a relative or friend about the arrest, the requirement for a memo to be prepared, and the need for medical examination during custody.
  7. Indian Penal Code (IPC) 1860: The IPC contains provisions that deal with custodial violence. Section 220 provides for the punishment of a public servant who maliciously confines any person. Sections 330 and 331 prescribe punishment for causing hurt and grievous hurt, respectively, to extract information or confessions.
  8. Indian Evidence Act 1872: The Indian Evidence Act prohibits the use of confessions made to police officers as evidence against the accused. It requires confessions to be made voluntarily and in the presence of a magistrate to ensure their admissibility.
  9. Police Act 1861: Section 29 of this Act penalizes police personnel who inflict violence on persons in their custody. It imposes penalties such as imprisonment or fines for such misconduct.

These laws and provisions are intended to ensure that custodial violence is deterred, perpetrators are held accountable, and victims receive justice.

Role of a Magistrate

A crucial role in dealing with custodial violence is played by the magistrate. According to Article 22(2) of the Indian Constitution, every arrested person must be brought before the nearest magistrate within 24 hours, excluding the time taken to travel from the place of custody to the magistrate. The magistrate's duty is to examine the arrested person if they have been subjected to custodial violence.

When an arrested person is presented before the magistrate, it is their responsibility to question the person regarding any custodial violence they may have experienced. The magistrate must inform the arrested person of their right to undergo a medical examination. Based on the evidence and the victim's statement, the magistrate decides whether the arrested person should be sent to remand or released.

The magistrate's role is crucial in addressing custodial violence because it is at this stage that victims have the opportunity to be heard. The magistrate must be vigilant and proactive in dealing with cases of custodial violence, ensuring that the rights of the arrested persons are protected.

Recent Instances of Custodial Violence

Despite efforts to curb custodial violence, instances of such violence continue to occur in India. Here are some recent cases that highlight the severity of the problem:

  1. Jayaraj and Fenix Case (2020): In Tamil Nadu, Jayaraj and his son Fenix were picked up by the police for alleged violation of COVID-19 lockdown rules. They were subjected to brutal torture, including sexual assault, which resulted in their deaths. This case sparked outrage and shed light on the issue of custodial violence.
  2. Rape and Murder Case (2019): In a high-profile case, four men accused of raping and murdering a 27-year-old veterinarian were taken into custody. During the investigation, the police fired upon the accused, resulting in their deaths. A subsequent inquiry found that the police had fired with the intention of causing death, raising concerns about custodial violence.
  3. Vikas Dubey Case (2020): Vikas Dubey, a notorious gangster, was arrested for killing eight police personnel. While being transported the next day, the vehicle carrying him met with an accident. The police alleged that Dubey attempted to escape, leading to his shooting. However, suspicions were raised regarding the incident, suggesting the possibility of custodial violence.
  4. Uttar Pradesh Torture Case (2021): In Uttar Pradesh, five policemen were booked for torturing a man suspected of a crime. The victim was subjected to extreme torture, including the insertion of a stick into his rectum and multiple electric shocks. After realizing their mistake, the police paid the victim a small sum of money and released him.

These recent cases highlight the urgent need to address custodial violence and ensure accountability for those responsible.

Landmark Cases Relating to Custodial Violence

The Supreme Court of India has delivered several landmark judgments that have sought to curb custodial violence and protect the rights of victims. These cases have established important precedents and guidelines to prevent and address custodial violence. Let's explore a few notable cases:

  1. Nilabati Behera vs. State of Orissa (1993): In this case, the petitioner's son, Suman Behera, was arrested by the police and found dead on the railway tracks the next day. The Supreme Court ruled that the injuries inflicted on the victim indicated custodial violence. The court held that the state, rather than the police, is responsible for providing compensation to the victim's family.
  2. D.K. Basu vs. State of West Bengal (1997): This case recognized custodial violence as an attack on human dignity. The Supreme Court laid down 11 guidelines to be followed during arrests, ensuring the protection of the rights of arrested individuals. These guidelines include the requirement for police officers to wear name tags, the preparation of an arrest memo, and the right to legal representation.
  3. Joginder Kumar vs. State of Uttar Pradesh (1994): In this case, the petitioner, an advocate, was illegally detained by the police. The Supreme Court held that arresting someone without justification is illegal and that police officers should not misuse their powers. This judgment emphasized the need for law enforcement personnel to act within the bounds of the law.
  4. Rudul Shah vs. State of Bihar (1983): In this case, Rudul Shah was detained in prison for over 14 years after his acquittal. The Supreme Court held that his detention was unjustified and awarded compensation to him. This case established the principle that individuals whose fundamental rights are violated by the state are entitled to compensation.

These landmark cases have contributed to the development of jurisprudence surrounding custodial violence and have laid down important guidelines for the protection of individuals in custody.

Bills Introduced to Curb Custodial Violence

Efforts have been made to address custodial violence through legislation. The Prevention of Torture Bill, 2010 was introduced to provide punishment for torture inflicted by public servants or with their consent. The bill defined torture and proposed imprisonment and fines for perpetrators.

Although the bill was passed by the Lok Sabha, it lapsed due to the dissolution of the 15th Lok Sabha. In subsequent years, the bill was reintroduced as a private member bill in the Rajya Sabha and Lok Sabha but did not progress further.

The enactment of an Anti-Torture Law remains crucial to effectively curb custodial violence and hold perpetrators accountable.

Role of NHRC in Prevention of Custodial Violence

The National Human Rights Commission (NHRC) plays a vital role in preventing custodial violence and protecting human rights in India. Established in 1993, the NHRC acts as a watchdog over the police and issues guidelines on the proper procedures to be followed in cases of custodial deaths.

The NHRC has been given wide-ranging powers equivalent to a civil court. It can conduct suo motu inquiries, which act as a deterrent to custodial violence. The guidelines issued by the NHRC include the conduct of magisterial inquiries in custodial death cases, the recording of statements of witnesses, and the preparation of detailed reports.

The NHRC's proactive approach and ability to investigate and hold authorities accountable contribute to the prevention of custodial violence. By actively monitoring and taking action against human rights violations, the NHRC acts as a deterrent to custodial violence.

Recent Developments

In 2020, the Supreme Court of India directed state governments to install CCTV cameras in police stations to monitor custodial activities. The court reiterated guidelines issued in 1996 and added new directions, including the deployment of women constables during the interrogation of women suspects and the setting up of State Human Rights Commissions and Human Rights Courts.

The use of CCTV cameras in police stations, along with the implementation of these guidelines, can serve as effective tools in deterring custodial violence and ensuring transparency and accountability.

Prohibition of Custodial Violence - The Way Forward

To effectively curb custodial violence, several measures need to be implemented. These include:

  1. Mandatory Body Cameras: Police officers in India should be required to wear body cameras equipped with audio recording and GPS tracking capabilities. Body cameras act as a deterrent and provide valuable evidence in cases of custodial violence.
  2. Effective CCTV Surveillance: The installation of CCTV cameras in police stations should be accompanied by proper procedures to ensure their functionality and regular monitoring. Higher-ranking officers should be assigned to oversee interrogations through CCTV cameras.
  3. Periodic Assessments: Regular physiological, physical, and medical tests should be conducted on police personnel to ensure their fitness and mental well-being. These assessments can help identify any signs of aggression or psychological distress that may contribute to custodial violence.
  4. Public Awareness Campaigns: The government should run awareness programs, with the police taking the lead, to educate the public about their rights and the consequences of custodial violence. Empowering individuals with knowledge will make them less vulnerable to abuse.
  5. Enactment of an Anti-Torture Law: The Indian government should prioritize the enactment of an Anti-Torture Law that explicitly criminalizes custodial violence and prescribes stringent punishments for offenders. This would send a strong message that such acts will not be tolerated.

Implementing these measures, along with the recommendations of the Law Commission of India's 273rd Report, can help in effectively prohibiting custodial violence and ensuring the protection of individuals in custody.

Conclusion

Custodial violence remains a grave concern in India's criminal justice system. Despite the existence of laws and guidelines, custodial violence continues to occur, inflicting physical, mental, and sexual harm on individuals in custody. It is crucial to address this issue through comprehensive legal reforms, public awareness campaigns, and the implementation of preventive measures.

The judiciary, law enforcement agencies, and the NHRC have important roles to play in curbing custodial violence and ensuring accountability for offenders. By enacting an Anti-Torture Law, implementing the recommendations of the Law Commission of India, and adopting measures such as mandatory body cameras and effective CCTV surveillance, India can take significant steps towards eradicating custodial violence.

It is imperative that all stakeholders work together to protect the rights and dignity of individuals in custody and promote a fair and just criminal justice system.

Frequently Asked Questions (FAQs)

  1. What is custodial violence?

Custodial violence refers to the inhumane treatment of individuals in custody by the police or judiciary. It includes physical, mental, and sexual violence inflicted on victims while in custody.

  1. What are the causes of custodial violence in India?

Causes of custodial violence in India include the absence of an Anti-Torture Law, loopholes in the system, lack of public awareness, inadequate training of police personnel, and pressure to solve cases quickly.

  1. What are some other forms of custodial violence?

In addition to physical violence, other forms of custodial violence include psychological violence, which includes deprivation of basic needs and mental anguish, as well as sexual violence, such as rape and sexual assault.

  1. Why is custodial violence a huge problem?

Custodial violence is a significant problem because it violates the rights of individuals, causes physical and psychological harm, and erodes public trust in the criminal justice system. The low conviction rate for custodial violence cases further exacerbates the problem.

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