“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. ”
BACKGROUND
The phenomenon of custodial violence is not new in India, and its presence, in various forms, can be traced throughout the history. From Kautilya’s Arthashastra to Manu’s laws to the atrocities in British Raj, every age has witnessed it. However, the situation currently prevailing in the country is the legacy given to us mostly by the colonizers. The colonizers were infamous for employing custodial violence, in order to make people confess a crime, which they had not even committed most of the time. Torture in various forms, including denying food, giving insufficient quantity of food, or whipping people, were applied.
It is also pertinent to note that these horrendous acts were committed by the servants of the colonizers. Their motive was not to gain appreciation and respect of their subjects, but to create an era of terror and oppression. The term ‘Police’ started to symbolize repression. Unfortunately, the laws that are currently prevailing in India are the very ones that were created by the foreign government. Without various amendments, the same model and the same penal code are still being followed. For instance, the Prison Act of 1894 stands unchanged, and it still authorizes jail officials to punish the prisoners upon breaking of rules by them.
There are various faces of Custodial Violence some of which include, Police torture, degradation in the quality of life of the detainees, under-trial torture and many more, some of which leading to the death of the person including gross violation of his basic rights even enshrined under Article 21.
PROBABLE REASONS BEHIND CUSTODIAL VIOLENCE
There can be many reasons pertaining to the commission of Custodial Violence, some of which are listed below:
1) Overburdened Police Force- There are plethora of matters in which the police is investigating and in order to complete the investigation on time and to record the statements police often retorts to the third degree, leading to the custodial violence. The latest BRPD data shows there are 138 police personnel per lakh population and the sanctioned strength is 181 personnel per lakh population .
2) Lack of proper training and Greed for money- The social menace of Corruption is holding the Police machinery from the roots, which has been evident in various real scenarios. The draconian old principle of, “Law of the Mighty” comes into the picture, when the incident of Custodial Violence takes place on account of unjust monetary enrichment. Furthermore, the police constables or any other person concerned with the investigation, are not specifically trained from the Psychological perspective as how to use the other means to extract the information. Sometimes, the shortest means is to use the torture and other strict mechanism and they easily fall prey to it.
3) Lack of Accountability- The greed for money and unethical practices of corruption has led to a serious issue of accountability on the police and other concerned authorities.
CUSTODIAL VIOLENCE: A CONSTITUTIONAL PERSPECTIVE
The Rule of Law principle, provides for the effective application and implementation of Article 14, which is the constitutional mandate for the noble idea of “Rule of Law”. This Noble Idea, is pivoted on the idea of equal treatment under equal circumstances and by virtue of Article 21, the right to life has an essential trait attached with it, “due procedure of law”. The Right to life enshrined under Article 21 cannot be suspended even in the time of emergency, but on account of Custodial Violence, the detainee is deprived of his quality of life, which can never be justified. This principle finds its origin from the Jurisprudence of Natural Rights and as elucidated by Thomas Aquinas,
“Unjust Law is no law”
We can clearly find this idea, to be self-explanatory, as Article 21 is shadowed by the ideology of “due procedure established by law” and no law which is violative of Fundamental Rights of any individual can be justified.
In Raghubir Singh v State of Haryana, Hon’ble SC obtained a pragmatic approach and held police torture and custodial violence to be “disastrous to our human rights awareness and humanist constitutional order”.
“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under the new peril when the guardians of the law gore human rights to death”
In CERC v UOI , the Hon’ble SC held that equality is the basic feature of the Article 21 and in the celebrated case of Francis Coralie v Delhi Administration , the Hon’ble SC held that Right to life under Article 21 does not mean mere animal like existence. The basic tenets associated with life includes life with dignity and respect. When a person is subjected to Custodial Violence, including all forms of the torture used by the officials, then the basic Jurisprudence of the Article 21 is shattered into the pieces. The deprivation of the quality of life which brings him under different scenario from rest of the people or detainees, is a sheer mockery of the doctrine of Rule of Law under Article 14.
CONCLUSION
Sometimes, the force used against the person is disproportional to the degree of harm caused by him, which again proves this practice to be ‘unreasonable’ when viewed from the realm of Article 19 of the Constitution. The malpractice of Custodial Violence, is a direct assault on the cannons of Criminal Jurisprudence, where a person is deemed to be innocent until proven guilty and the treatment inflicted upon a person is no less than a punishment. Therefore, these practices not only defeat the Constitutional mandates of Article 14,19 and 21 respectively, but also nullify the rights of the arrested enshrined under the Code of Criminal procedure Code, 1973.