Custodial Violence: Legal Safeguard and Legal Response 

Abstract

The constant violation of basic human rights under custodial violence is an issue that can shake human sanity to the core. Custodial Violence refers to the physical, psychological and sexual abuse the suspects detained in custody of police face every day.  Greed of money, lack of empathy, work pressure, loopholes of laws and support of higher authorities work as a catalyst in the increasing number of cases related to Custodial Violence.

Key words: Custodial Violence, Human Rights, Legal Framework, Judicial Response, Physical Torture, psychological torture, Sexual abuse, Custodial death, Article 21, article 22.

Introduction

Custodial violence is one of the most controversial issues in India. This can be regarded as one of the worst examples of the brutal humiliation of one’s person right to life. Though there is no proper definition of ‘Custody’ available in Indian law, in legal field the word ‘Custody’ refers to the detention or surveillance of a person. In simple words ‘Custodial Violence’ means the torture, abuse or ill treatment the suspects face under the custody of law enforcement authorities. Here violence refers to both physical and psychological abuse which can even led to death. ‘Custodial Violence’ in India needs to come under strong legal framework and better law enforcement for the protection of human rights in India.

Custodial Violence

Lack of proper enforcing law can be detected as one of the main reasons for the surge of custodial violence in India. Suspects facing physical or psychological abuse in custody is a prominent problem in Indian legal system. Custodial violence often includes sexual harassment or exploitation as well. Astonishingly ‘Custodial Violence’ does not stir as much criticism in the society as expected. The kind of support the police or legal authorities receive from the society fuels their practice of excessive use of power on the individuals detained under their surveillance. Inadequate legal awareness within the people or major part of the Indian society can be identified as another reason behind the incidents of ‘Custodial Violence’ till date. Absence of any landmark judgment against the cases relating to ‘Custodial Violence’

Types of Custodial Violence:

The term ‘Violence’ generally means excessive force used by an individual to harass or injure another individual. ‘Custodial Violence’ specifies the torture against any individual by the police authority. This violence can occur in many forms i.e. physical, psychological and sexual violence. 

• Physical Torture: Using any kind of force or way to cause bodily injury to an individual tantamount to physical abuse. Physical Torture includes beating (by kicking, punching or beating by using objects), burning, suspension (by using ropes or handcuffs), depriving from basic needs like water, food or the need to use toilet. Sleep deprivation, forcing to sleep on cold floor, forced exercise, denial of medical assistance also constitutes physical Torture. Physical Abuse may led to fear of imminent death or to actual death of person under police custody.
• Psychological Abuse: Psychological abuse includes coercing suspect to forceful confession by intimidating them with threats of harming family, accusing under false case , detention without trial or public defamation. The threat against personal dignity or against family causes enough mental stress to person to confess about a crime which they didn’t even commit. Sometimes custodial violence even causes PTSD (Post Traumatic Stress Disorder) or even permanent change of personality of a person.
• Sexual Abuse: Women facing sexual abuse in custody is not an unknown fact but that doesn’t mean men detained in custody are exempted from sexual harassment by legal authorities. The amount of cases of sexual violence in custody can shake a person to the core. Strip search in a humiliating manner in front of multiple officers, forced nudity, forced masturbation, deprivation of menstrual hygiene products, Gang rape in police custody, forced intercourse with police officer, sexual threats are very common example of sexual abuse that individuals face in custody. Sexual harassment also include degrading sexual remarks against certificate gender communities regarding their gender identity or sexual preferences, or humiliating sexual remarks against any individual etc. Custodial rape is most heinous offence that can happen against individual.

Reason Behind Custodial Violence

The root of the reason behind custodial violence can be stressed in the confidence of police or legal authorities boosted by the society. Police holds a superior place in the society holding infinite legal power. But the most common reason behind such violence is the lack of empathy in the police personnel. Police often fail to deal cases with empathy, taking the basic human rights under consideration. Immense working pressure or greed of money can also provoke a police officer to use extreme force to make the suspect confess as soon as possible. The higher authorities backing up the police personnel or using their power to conceal the wrongdoings create the canvas for such violence. Many reasons can be find behind the custodial violence committed by police but none of these justifies the inhuman treatments happening against individual detained in custody, every other day.

Legal Safeguard Against Custodial Violence in India

Many people in our society believes that the rough treatment by police is needed in order to extract truth from suspects that cannot be supported by law for the sake of basic human rights. Though there is no specific law exclusively aiming Custodial violence, Indian Legal system provides some legal safeguards against custodial violence by police.

• Constitution of India: The supreme legal authority of India that is the Constitution of India provides safeguard against custodial violence.

Article 20(3): Article 20(3) of the Constitution of India provides that no person can be forced to testify against themselves if they are accused of any crime.

Article 21: Article 21 of Indian Constitution provides protection of one’s life and liberty. Unlawful detention or torture in police custody breaches article 21 of the Indian Constitution.

Article 22: Article 22 of the Constitution of India prohibits arbitrary arrest and detention of people. According to Article 22 of the Indian Constitution no person can be arrested or detained without being informed the reason behind their arrest. Any person being arrested should be produced before the magistrate within 24 hours of arrest. No person can be detained for more than a period of three months without the approval of Advisory Board.

• Criminal Laws of India: Section 330,331,348,376(2) of the Indian Penal Code 1860, Section 41B, 41D, 54,176 of the Code of Criminal Procedure (CrPC), Section 25,26 of the Evidence Act,1872 provide safeguard against custodial violence.
• Protection of Human Rights Act,1993: National Human Rights Commission was established under Protection of Human Rights Act, 1993 for investigation of any kind of human rights violation which includes ‘Custodial Violence’ as well.

Judicial Response Against Custodial Violence

The issue regarding ‘Custodial Violence’ is not something new in Indian legal field. Indian judiciary has been responsive regarding custodial torture in order to protect peoples’ basic human rights.

• K.Basu Vs State of West Bengal(1997) : Following the custodial death of a suspect, a petition was filed by Advocate D.K. Basu to bring attention on the violation of Article 21. Some guidelines on arrest and custody was provided by Indian judiciary in this case. The guidelines are: 1) The person being arrested must know the reason behind it, the police must inform family or relatives of the person, the arrested person must be produced to the magistrate with 24 hours of arrest. 2) There must be at least one witness of arrest and the police must provide the arrested person with a copy of the memo of arrest. 3) The arrested person must be produced for medical examination within 48 hours to ensure the absence of any kind of physical torture. 4) Arrested person must not be denied from any kind of medical assistance. 5) Police must keep a record of the arrest procedure which must include the name of the person being arrested, reason of arrest, the officer who is executing the arrest. 6) This guidelines also prohibits custodial or any kind of physical, psychological or sexual abuse, and any such act if being reported needs immediate investigation and punishment.

This Guidelines made the police personnel accountable and subject to punishment for committing any kind of custodial torture.

• Rudul Shah Vs State of Bihar(1993): In this case of Rudul Shah VS State of Bihar , a landmark judgment was given by the supreme court of India highlighting both the issue of Custodial Violence and Unlawful Detention. Here in this case the petitioner Rudul Shah was illegally detained for 14 long years and was letter found innocent. Key issues of this case is unlawful detention, breach of right to life and personal liberty. As a judgment of this case the State of Bihar was directed to pay a sum of 30,000 as compensation for the unlawful detention to Rudul Shah.

Conclusion

Custodial Violence still remains a significantly concerning issue in India having its adverse effect in the society. Though legal framework and judicial proceedings have helped framing issue related to custodial torture, still social and legal awareness of both people and police is needed to control the increasing number of cases related to custodial violence. For the protection of the fundamental rights given under Indian Constitution as well as basic human rights, more systemic criminal reform is needed.