AUTHOR- Mansi Rajput, Geeta Institute of Law.
Today many laws and conventions or legislations are enacted so that this old phenomenon of violence can be stopped. However, in countries like India, this custodial violence primarily refers to violence in police custody and judicial custody and it is becoming a serious and alarming problem. Custodial violence is not about custody or imprisonment; it can be called the open torturing of prisoners. Besides the death of a person in the police station or police encounters and detention of undertrials without trial for years, torturing of prisoners and rape are other forms of custodial violence. All of these are the forms of custodial violence and they are against the prisoners’ human rights and also the brutal assault of arrested persons. Disappearance of suspects in police custody is also a part of custodial violence. Section 167 of the Code of Criminal Procedure, 1973 speaks about two types of custody i.e. police custody and judicial custody. Death in judicial custody is directly linked to the number of prison population during a given period. Indian prisoners also face a huge problem and that is the overcrowding of prisoners and this is not only an issue but also a mark of deficiency of food quality, medical facilities, and others which have adversely affect the prisoners.
Keywords: Custody, Torture, Human Rights, Police, Prisoner.
The term custody means protective care and guardianship. Custody may mean a restriction of movement of a person but we should know or draw a line between the prisoners' rights and police autonomy as it never gives the autonomy of inflicting harm to the detainee. Custodial violence means any kind of violence done to a person while he is in custody whether legal or not and which is not acceptable to the law of the land. Torture or violence done by the officers or police is only to punish or to extract information or merely for pleasure and when this torture goes beyond limits, it may even result in death. It is clearly stated under Article 21 that a person cannot be deprived of his life and personal liberty except according to the procedure established by the law. However, if we look at the Code of Criminal Procedure, 1973, unfortunately, the violence and torture have become a part of police’s operations; it has become a stereotype of their job. We know that police is the guardian of our rights but again, unfortunately, police do all these things and then the result is their brutality causing custodial death of the accused which is indirectly “custodial murder”. Now Custodial violence has raised a very serious question over the credibility of the Rule of Law and how criminal justice is administered. Every person has the right to life whether that person is normal or a prisoner or innocent or guilty, the only thing that matters is that every person shall be treated with human dignity.
WHAT IS CUSTODIAL VIOLENCE?
Custodial Violence is among the worst crimes in a civilized society. It is a blatant violation of human dignity. It strikes at the very roots of the rule of law. Custodial death in India is defined as the one occurring during the period in which a person is in the custody of police, prison, or any other institutions set up by the State for detention, as mentioned in the Entry-4, State List (List II). No doubt, the police officers have contributed towards the maintenance of public order, and their plans are also enforced with purity, activity, vigilance, and description. But more often than, the police officers have been abused and condemned for torturing 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 are not only peculiar to this country but they are 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 prisoners 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, and unlawful detention of a person for more than the stipulated time resulting in 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 anything about the injustice done to them or one of their family members. In March 2019, 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 Indian Evidence Act, 1872 so that the policemen guilty of custodial torture do not escape for the lack of evidence. Safety and security, both for the public and within the institution, is the core of a jail's mission. Unlike most state and federal prisons, local jails must achieve this despite diverse inmate populations that vary by age, gender, legal status, charge severity, medical and health condition, intellectual capacity, threat level, escape risk, and length of stay. The huge number of custodial deaths is not the only manifestation of violence, but also the abysmal health conditions. The major complaint of many prisons is a skin disease and many prisoners complain that no matter what the ailment is, they are given standard treatment of two to three types of tablets.
FORMS OF CUSTODIAL VIOLENCE:
VIOLENCE IN POLICE CUSTODY: This is a very common practice and is kind of custody where police torture an accused to extract the information.
VIOLENCE IN JUDICIAL CUSTODY: This kind of violence is seen in detention centers where the gang of prisoners having unlimited freedom with prison premises usually beat that victims who do not give the commitment to them and this is one of the primary reasons behind suicides committed by prisoners.
CAUSES OF CUSTODIAL VIOLENCE
Instead of focusing on its solution or spreading awareness the only thing happening is the rise in these cases. The police officers use their official position to manipulate pieces of evidence against themselves and this is a big reason for this question that why victims are increasing in numbers and they can’t protest against their violence. The other root of custodial violence is greed for money. Every person gives the priority of money, they want money anyway, and this is a mental condition of our primitive to higher society. The main motive of the police is to get a particular position or promotion in their post through the method of custodial violence in which they harm the victims or the honest man, threaten them, beat them, or keep them hanging in the police station just to extract money, for which the whole world is searching for and police are the means of producing money for officers and ministers. The FIR is written by the police officer itself and the court gives importance to FIR, or police will not write against them. Another cause for this violence is the genuine reason but not the right way as punitive violence is that reason. They have started seeing brutality as a part of their work in the organization and this is being treated as the only way of extracting the truth from the victims. One more reason for brutality is the lack of proper training. As police, they are the protectors not the infringers of human rights and law. They should stop the violators but they, with inadequacy, lead to losing their temper, the absence of respect towards public, unnecessary harshness and it leads to violence. There are other factors also that lead to custodial violence: sexual weakness in which they may have an attraction towards opposite sex prisoners where they may use force for the satisfaction of their lust.
Absence of Strong Legislation: India does not have anti-torture legislation and is yet to criminalize custodial violence, while action against culpable officials remains illusory. The Indian state either denies the existence of torture in the country or defends its resistance to enact a law by claiming that there are sufficient provisions in the domestic legal framework to prohibit and penalize torture. These claims, however, remain superficial and without any such protections. India also fails in bringing the much desired Prison Reforms and prisons continue to be affected by poor conditions, overcrowding, acute manpower shortages, and minimal safety against harm in prisons.
CONSTITUTIONAL AND LEGAL PROVISIONS:
Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution. The right to counsel is also a fundamental right under Article 22(1) of the Indian constitution.
Section 41 of Criminal Procedure Code (Cr PC) was amended in 2009 to include safeguards under 41A, 41B, 41C, and 41D so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends, and public, and there is protection through legal representation.
Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as preventive measures against custodial torture which has also been suggested by Supreme Court in its landmark judgment in the DK Basu Case in 2015.
Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
DATA RELATED TO VIOLENCE IN CUSTODY:
According to the National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India. Only 4.3% of the 70 deaths in 2018 were attributed to injuries during custody due to physical assault by police. Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh, and Odisha, no policeman was convicted for such deaths across the country. Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. However, only 344 policemen were convicted in those cases.
The article is all about the concept of custodial violence and the role of police institutions in such cases. We do accept that police work under so much pressure of ministers or their superiors and with so many other disturbances than work is also there, but the thing is that they have no right to inflict brutality or violate human rights and laws.
1. Satya Prakash, , Custodial Violence: Culture of impunity must come to end, (June 03,2020 06:54 AM), https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.tribuneindia.com/news/archive/nation/custodial-violence-culture-of-impunity-must-come-to-end-782175&ved=2ahUKEwia6p_W1bPqAhXnxDgGHYe0DREQFjAGegQIBBAB&usg=AOvVaw3NB78d9BqIKB4T1bXyDPB_&cf=1
2. Vignesh Radhakrishnan, Five states including Tamil Nadu recorded over 100 custodial deaths but zero police convicts between 2001-2018, (June 30, 2020 06:55 IST), https://www.thehindu.com/data/five-states-including-tamil-nadu-recorded-over-100-custodial-deaths-but-zero-police-convictions-between-2001-18/article31949326.ece
3. T.H., Custodial Violence, (June 30, 2020 7:30:55), https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-violence
4. Abhishek Singhvi, Implementation of DK Basu judgments can protect against custodial, torture death, (July 1, 2020 9:45:13), https://indianexpress.com/article/opinion/columns/tamil-nadu-police-custodial-deaths-torture-guarding-the-guardians-6484025/