Custodial Violence refers primarily to the violence or torture in police or judicial custody. This violence can be extended to death, rape and some non-human behaviour in the custody. Section 167 of the Cr. PC talks about two types of custody i.e., Police Custody and Judicial Custody. The World Medical Association, in its Tokyo Declaration, 1975, defined “torture” as “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason”. The human right granted to every person of this country is at stake during custodial torture. The provisions regarding custodial torture do exist but are not being properly implemented on the ground level. The custodial deaths are always attributed as suicide in the custody or death during treatment. Encounters is also celebrated and is seen as a heroic work. Even mainstream media and politicians do portray the police officers involved in the encounter as a ‘hero.’ It is not only shameful to hear but witnessing such violation of human rights in the largest democracy of the world is disheartening. Encounter is not something to celebrate but an offence against society. Despite penal provisions and different rights under the Constitution of India, the offence is not decreasing and we are witnessing the barbaric face of the police. For instance, the custodial torture following with death of a father-son Jeyaraj and Bennick. The inhuman treatment they had suffered from the protector of the society is a shivering experience. The third-degree torture meted out to an accused on the mere basis of suspicion and on the name of Investigation and interrogation must not be accepted. The reason usually extends even for the questioning police what we have witnessed in the case of Anwar (name changed), he was subjected to third-degree torture for seven days before his official arrest just for asking the reason of arrest of his neighbour. This example shows the egomaniac attitude of some police. The minority, Dalits and tribal people are frequently tortured and involvement of caste and religion in this as well makes this issue worse.
SOME FAMOUS CUSTODIAL VIOLENCE CASES
1. Mathura Rape Case- A tribal girl named Mathura was allegedly raped in the compound of Desaiganj Police Station by two policemen. This case is famously known as Mathura Rape Case on the name of the victim. The public outcry and protest followed the acquittal of the policemen by the Supreme Court of India. This led to an amendment in the Rape law by The Criminal Law Amendment Act 1983 (No. 43). This amendment amended Section 114(A) of the Evidence Act and it states that if victim will say that the consent was not given by her voluntarily, then, the court will presume that she did not consent.
Amendment was also made into Section 376 of the IPC and Section 376(A) , Section 376(B) , Section 376(C) , Section 376(D) was added to make custodial rape, a punishable offence. It bought a numerous changes like in-camera trial, non-discloser of identity of the victim, tougher punishment and shifted the burden of proof to the accused from the accuser.
Nambi Narayanan case- The then, ISRO scientist was accused of espionage and was treated inhumanely during the interrogation. He was made to stand and was also not offered water. He was subjected to severe torture in the custody. Later, the court exonerated him and awarded 50 lakhs compensation for the inhumane treatment of him in the custody. He was not even informed about the reason for his arrest till he was produced in the court of law and that was a sheer violation of the right to legal aid under Article 39A also a fundamental right under Article 21 (Right to life). Article 21 describes the person under custody as a property of the state and it is the duty of the state to guard him.
Chandrashekar- An ISRO scientist charged for the crime of spying was also tortured severely in the custody. Rajashekhar Nair in his book ‘Spies in Space’ described how he (Chandrashekar) was treated in the custody. He was kept naked and his beard hair was plucked by the pilers. His family member was even subjected to torture by the police and he was threatened that they will kill his mother and rape his wife in front of him. This is how a respected person of the society is treated in the biggest democracy of the world then one can imagine the suffering of poor. Torturing someone in custody is not expressly prohibited but evidence collected by illegal means, is not accepted in courts as per Section 24 of the Evidence Act.
PENAL PROVISIONS AGAINST CUSTODIAL VIOLENCE-
The very Indian Constitution under Article 21 (Right to Life and Personal Liberty) guarantees Free Legal aid as a Fundamental Right that is specifically mentioned under Art. 39A of the Indian constitution and Article 22 Protection against arrest and detention) safeguards us from arbitrary arrest and action. Apart from that, there are several articles also existing that is Art. 20(1), Art. 20(2) and Art. 20(3) which talks about Ex-Post Facto law, Protection against double jeopardy, and the right not to be a witness against himself respectively.
The provision of Murder (Section 302) is applicable if a police officer is suspected of torturing a person to death in custody and principles of the Indian Penal Code applicable to the general masses will also be applicable in the case of custodial violence. The provision specifically talking about Custodial Violence is also mentioned in the Indian Penal Code, 1860 under Section 330 (Voluntarily causing hurt to extort confession, or to compel restoration of property), Section 331 (Voluntarily causing grievous hurt to extort confession, or to compel restoration of property) , Section 348 (Wrongful confinement to extort confession, or compel resto¬ration of property) . Section 29 of the Police Act, 1861 which deals with the ‘Penalties for neglect of duty’ was added to curb the custodial violence and negligence of the personnel during the duty. Torture most of the time is meted out to an individual taking a shield of confession but confession to the police is not admissible in the court as per Section 25 of the Indian Evidence Act.
Supreme Court in the case of D.K. Basu vs. State of West Bengal laid down some provisions to be followed by the police during arrest. The guidelines laid down in this case are not being followed and recently a PIL has been filed by Kukumanu Ravi Kumar in the Andhra Pradesh High Court against police for not following the guidelines and procedure mentioned under Section 54 and Section 57 of the CrPC in an alleged custodial violence case. A PIL has also been filed before the Supreme Court by a lawyer Ashwini Upadhyaya directing the legislature to form a law on protection from torture. Joginder Kumar Vs. State of Uttar Pradesh described the several ways of misuse of power by the police during arrest.
REASON BEHIND CUSTODIAL VIOLENCE-
India is a country with only 69.3% adult literacy rate is prone to violation of rights. Majority population even if educated is not aware of their different rights granted to them against unlawful arrest and custodial violence by the law. Police Act, 1861 is a law of colonial period and granting police with different powers makes the protector of the society as perpetrator in most of the cases. There is a dire need to bring some reform on the Police Act curbing the power of the police and to bring some strict penal but actionable penal provisions against it. The police must be trained properly and make them learn to respect the society and the population they are assigned to protect. Despite several penal provisions, in the last 20 years 1888 cases of custodial deaths have been reported across the country and a recent case of Altaf custodial death case is making the news. Despite 1888 cases of custodial death, only 26 police personnel have been convicted till date. 76 custodial deaths have been reported in 2020 itself. The low conviction rate of the police personnel is encouraging the situation like same.
CONCLUSION-
Custodial violence is one of the menacing things that harms the very reputation of our system. It has been there in our country and even seen in the world for a long time and is still hampering the police system of the country. Whenever such incidents come in the mainstream, it shakes the conscience of people and raises serious questions on the police system of the country. Although various provisions are there in the constitution and also various guidelines have been formed in this regard but still such cases are prevalent there in the system which has been exposed from time to time. We need a serious implementation of these guidelines and rules on the ground level so that the belief in the police do not get hampered and there is no misuse of this system. Custodial violence is a crime against humanity and it needs to be seriously dealt with.