Custodial Violence: Legal Safeguards and Challenges

 

Abstract:

Globally, custodial violence continues to be a grave issue. In India, the cases of custodial violence and police brutality forms the most of human right violation cases due the procedural irregularities and flaws in the working of public authorities. There is the need of Police reform in India to tackle the issues of custodial violence as well as the cases of extra judicial killings. The legal protections against violence in custody are examined in this article, with a focus on judicial, legislative, and constitutional safeguards.

It also shed light on various issues, such as systemic inefficiencies, excessive use of power by public authorities and violation of principle of natural justice by referring the data from the National Human Rights Commission (NHRC) and the National Crime Records Bureau (NCRB). This article also includes the various guidelines issued during various cases highlighting the need of balancing the Right to life and personal liberty along with enforcement of law and order in the state.

This article promotes a cooperative effort to balance and protect the rule of law and human dignity and liberty by highlighting the need for legislative reforms, accountability of administrative authorities while adhering to international standards and national standards of Human rights.

Introduction:

In India, custodial violence is a situation in which people under the custody of law enforcement are abused, tortured, or even killed, remains a serious and continuing problem. Custodial violence represents a grave and serious violation of human rights where the protectors of the law acts as a violator of law. This issue is not only against the constitutional safeguards and rule of law, but also strikes a blow at democratic and human right values. Instead of having constitutional safeguards and provisions in CrPC, Custodial torture and violence remains an alarming and continuing issue in India, that demands police reforms and stringent legislative reforms.

The cases of police brutality and torture not only harm the arrested person, but also erode the confidence of public at large in law enforcement authorities. Recent example of custodial torture and illegal detention is reported in Bihar, where a person was illegally detained under the police custody denied the medical care, even on biting of snake, which led to the death of that person.[1] Article 5 of Universal Declaration of Human Right states that no one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. [2]

Legal Safeguards Against Custodial Violence- Constitutional aspect:

Part 111 of the Indian Constitution, also known as magna carta of India provides the fundamental rights from Article-14 to Article 32. This part includes the fundamental and foremost right of an Individual- Right to life and personal liberty under Article 21-

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”[3]

The word procedure established by law means the procedure established by the due course of law. Through various interpretations, Supreme court includes right to livelihood, right to dignity, equality, right to privacy under the ambit of this right. The illegal and wrongful detention under the police custody is an infringement of Right to personal liberty. The rights of arrested persons are also protected under the Protection against arrest and detention in certain cases- Article 22 of Indian Constitution.[4] This right prohibit the wrongful detention of a person by the law enforcement authorities including the right to be informed of the ground of arrest and to consult a legal aid.
Article 14 also provides a fundamental right of equality and equal protection of law.[5] This right provides for the equal protection of every individual in the court of law without any discrimination.

Legal Safeguards Against Custodial Violence- Code of Criminal Procedure:

The Code of Criminal Procedure (CrPC) in India contains various provisions that marked the rights and protections available to individuals who are arrested or detained, including prisoners such as:

Section 167: Specifies the maximum period of 24 hours which a person may be detained without being charged before a magistrate.

Section 168: Requires the police to report the arrest of a person to the nearest magistrate.

Section 172: Requires the police to maintain a diary of all arrests made.

Section 173: Mandates the completion of the investigation without necessary delay and submission of an Investigation report to the magistrate.

Rights of the Accused (Sections 50, 54): Section 50 of CrPC Requires that the person arrested shall be informed of the grounds of arrest and the right to bail whereas Section 54 deals with the medical examination of the accused.

Custodial Deaths and Injuries (Section 176): Section 176 provides for a mandatory magistrate inquiry in the matter where any person dies or disappears, or rape is alleged to have been committed on any woman and while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court. This section of CrPC streamlined the process of investigation in cases of custodial violence and death. [6] The recently introduced Bharatiya Nagrik Suraksha Sanhita (BNSS) aims to reform criminal law, emphasizing humane treatment and enhanced accountability in custodial torture practices.

Legal Safeguards Against Custodial Violence- Indian Penal Code:

IPC primarily deals with definitions of various offenses and prescribing punishments for them, certain sections address custodial violence indirectly.

Section 330 deals with cases where hurt or harm is inflicted upon a person with the intent of extracting a confession or compelling the restoration of property.[7] It can be applicable in cases where custodial torture or use of third degree on accused in order to confess the crime.

Similarly, Section 348 deals with cases of wrongful confinement in order to extract a confession or compel the restoration of property. It can be relevant in cases where arrested persons are unlawfully detained in custody for the purpose of coercion in order to extract confessions.

Judicial Pronouncements and Principles

In landmark case of D.K. Basu v. State of West Bengal 1997[8], Apex Court mandated to follow certain guidelines adhering to Articles 21 and 22(1):

• The police officer who is in charge of the investigation must bear an accurate and correct information about his name and designation.
• An arrest memo must be prepared and attested by at least one witness, either a family member of the detainee or respectful person of locality. The arrest memo should also be signed by the arrestee and also contain the time, date and place of the arrest.
• The police must inform a relative or friend of the arrestee regarding the arrest and the location of custody without unnecessary delay.
• The arrested person shall be examined by medical practitioner every 48 hours during the custody.
• The arrested person must be informed of his/her right to consult a lawyer during interrogation, not throughout the investigation.
• The arrest details along with name and designation of police officer, must be communicated to the police control room within 12 hours and be publicly displayed.

In PUCL v. Union of India [2003][9], the Supreme Court issued specific guidelines concerning extrajudicial killings:

• A FIR must be registered for every extrajudicial killing’s cases.
• An independent investigation must be conducted by the independent police teams from another police station or CID to ensure impartial investigation.
• The magisterial inquiry is mandatory in all cases of custodial death under policy custody as per the Section 176 of the Code of Criminal Procedure (CrPC).
• In case of custodial death, a detailed report must be sent to National Human Rights Commission (NHRC) within 48 hours of such death.
• The public officer found guilty of misuse of power in custodial deaths or torture shall be face departmental actions.

In case of Raghubir Singh v. State of Haryana (1980)[10] which involved the custodial death of Balbir Singh, who was arrested by the police on charges of theft. The Apex Court of India, while delivering judgment, strongly condemned the concern of custodial violence by saying that such acts violate the fundamental rights guaranteed under Article 21 of the Constitution of India, ensures the fundamental right to life and personal liberty.

Statistical Overview

As per the report published by National Crime Record Bureau (NCRB), 2022 There were 75 cases of custodial death is reported in all over India including the death by injury sustained during police custody. [11] In the year 2021–22, the National Human Rights Commission (NHRC) of India reported a total of 2,152 deaths in judicial custody and 155 deaths in police custody.[12] Suicides Attributed to Police Torture (2020)- NCAT’s documentation presents a distressing insight, capturing 55 cases of suicide directly linked to police torture during the year 2020.[13]

Challenges in Custodial violence:

The custodial violence cases are on peak point, and still increasing. Some of the key reasons for increase in custodial violence cases include:

• Lack of Strong Laws: To prevent violence in custody, stronger laws need to be enacted. Currently, custodial violence is not considered a crime in India, and while the power to enforcement attributed by the law, shall also be limited by the law in order to keep a check on abuse of power.
• Lack of Prison Reform: The prison system lacks transparency, making it difficult to address issues effectively. In India, prisons and reform institutions suffered from overcrowding and bad conditions.
• Workplace Stress: The police are under immense pressure to solve cases quickly, and when other methods fail, they may resort to violence to extract confessions and evidence in order to solve the particular case within time stipulated.
• Social Mindset: In some cases, there is a belief in a “revenge-driven” policy, where those in power use violence to force confessions or punish suspects following the mindset of retributive justice.
• Failure to Uphold International Standards: While India signed the United Nations Convention Against Torture in 1997, the country has yet to implement its provisions in wholesome. The NHRC has been Recommending the Government of India to ratify the Convention Against Torture and Other forms of Cruel, Inhuman and Degrading Punishment or Treatment, which was signed by India on 14 October 1997 but haven’t ratified the same yet.[14] The ignorance allowed the continuing misuse of public authorities against the arrested person, results in custodial violence.

Conclusion:

In conclusion, custodial violence remains a grave violation of human rights in India, posing serious threats dignity, freedom and the rule of law. Despite existing legal frameworks and accountability mechanisms, cases of abuse and torture during custody either- police or judicial, continue to occur within law enforcement facilities and prisons. Addressing custodial violence, requires a holistic approach encompassing legislative reforms, robust oversight mechanisms, comprehensive training, victim support services, and community engagement. Additionally, there is a need for cultural and attitudinal shifts within law enforcement agencies and society at large, emphasizing respect for human rights and the inherent dignity of all individuals.[15]

 

References

[1] https://www.oneindia.com/india/nhrc-notice-bihar-police-death-snake-bite-011-3949923.html

[2] Article 5, Universal Declaration of Human Rights, 1948

[3] Article 21, The Constitution of India, 1950

[4] Article 22, The Constitution of India, 1950

[5] Article 14, The Constitution of India, 1950

[6] The Code of Criminal Procedure, 1973

[7] Sec 330, Indian Penal Code, 1860

[8] D.K. Basu v. State of West Bengal 1997 (1) SCC 416.

[9] PUCL v. Union of India [2003] 4 SCC 399

[10] Raghubir Singh v. State of Haryana 1980 AIR 1087, SCR (3) 84)

[11] National Crime Record Bureau, Report 2022 https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1702037574TABLE16A3.pdf

[12] National Human Rights Commission (NHRC) Annual report, 2021-22

[13] Ishita Ayala, Custodial Violence in India, The Society for Advancement of Criminal Justice, 12 June 2023, available at: https://www.nujssacj.com/post/custodial-violence-in-india

[14] https://nhrc.nic.in/press-release/status-ratification-convention-against-torture

[15] Riya, Dr. Nitu Nawal- Understanding Custodial Violence In India: A Critical Analysis, published at https://3fdef50c-add3-4615-a675-a91741bcb5c0.usrfiles.com/ugd/3fdef5_19ff48d72ca14ba399584fae72a47c32.pdf