Chapter 1.Custodial Violence

CHAPTER - I INTRODUCTION “Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on constitutional rights” Supreme Court 1.

Violation is the core of any criminal justice system and the initiation of its action. The instigation for this action and its nurturing are vested as a responsibility with the custodians of law. But when these men who are ushered with the prestigious powe r of regulating the civil life of the nation, themselves degrade the authority they hold the trust of a common man on the system of governance is crushed. Custodial violence has been the crunch to mistreated police control for decades now. The very idea of a human being in custody other than for protection and nurturing is an anathema to human existence.2 The word custody implies guardianship and protective care. Even applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law allows custodial cruelty-an inhuman trait that springs out of a preserve desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the on e who is over powered or a collective wrath of hypocritical thinking. Those who are endowed in our law to carry the burden of enforcing our laws, such as the police, have the responsibility to carry such burden with care and in trust for the citizenry. They must not get intoxicated by the enormous powers made available to them by the law for its own cause and in the benefit of the citizens, to molest, harass, intimidate and cage the innocent citizens they are meant to protect. 3 It is one of the worst crimes in the civilized society. Torture in custody flouts basic

1 AIR 1982 SC 625. 2 http://theglobaljournals.com/ijsr/file.php?val=February_2014_1392374672_d5a23_27.pdf 07/05/2014. 3 Isenalumhe v Joyce Amadin (2001) 1 CHR 458.

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rights of citizens and is an affront to human dignity. Self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. 4 Torture is the inquiry after truth by means of torment. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.5 Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is anathema in any civilized society. It is a matter of concern and to aggravated by the fact that it is committed by persons who are supposed to be protectors of the citizens. It is strange and astonishing that custodial crimes are always committed under the shield of uniform and within the four watts of a police station or link-up, the victim being totally helpless. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal Justice system, in India at large. Undoubtedly, any form of torture or cruel, Inhuman or degrading treatment, whether u occurs during investigation, interrogation or otherwise, needs the severest condemnation. Today‟s police stations and prisons have become synonymous with assault and torture cells with the detainees either getting seriously injured or killed because of third-degree methods adopted by the men in khaki and are breeding contempt for the law, it invites every man to become a law into himself. 6 The police are under a legal duty and have legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed door what the demands 4 Abdul Karim v. State of Karnataka, (2000) 8 S.C.C. 710. 5 Article 5 of the Universal Declaration of Human Rights in 1948. 6 Justice Brandies in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643.

of our legal order forbid. No society can permit it. 7 The police, with their wide powers are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud. 8 On many occasions, when law-breakers are arrested, they make wild allegations, and shout from roof top 'police brutality' or 'customs brutality', which are nothing but cat-calls.9 No person who supports human rights can support terrorism which results in a grave violation of human rights of innocent people. A terrorist who violates human rights of innocent citizens must be punished, but his human rights should not be infringed except in the manner permitted by law.10 But it needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. 11 Nothing tarnishes the image of the police more than brutality directed against persons in their custody. Exposure of such incidents causes national and international concern; Of course, use of excessive force by the police against persons in custody is not is peculiar to India alone. Custodial torture is virtually a world-wide phenomenon inflicted upon individuals regardless of sex, age or state of health. This worst form of human rights violation has become a very serious and alarming problem. In Third World countries like India. Brutal atrocities perpetuated by the police, jail authorities, armed forces and other law enforcing agencies on the suspects/accused persons and prisoners are menacingly on the increase day by day. "Torture" has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the „strong‟ over the „weak‟ by suffering. The word torture today has become 7 S.Krishnamoorthy and another v. State of Tamil Nadu, (2008) 2 MLJ (Cr) 1217. 8 Dagdu v. State of Maharashtra (1977) 3 SCC 68. 9 Roshan Beevi and another v. Joint Secretary, Government of Tamil Nadu, 1984 Cr.L.J. 134 Mad. 10 Speech of the Chairman of the National Human Rights Commission at the National Foundation for Law and Social Justice, at Kochi, organized by Justice V. R. Krishna Iyer. 11 Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 2003 (7) SCC 749.

synonymous with the darker side of human civilisation. 12 Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. 13 Custodial crime is a species of manmade malady which is growing in alarming proportions. By resorting to such excesses, the law enforcers are only creating a congenial atmosphere for fostering terrorism. No civilized society can afford to support this transformation of man into a beastly animal. The death in police custody is perhaps one of the worst kinds of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. 14 "Custodial torture" is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward - flag of humanity must on each such occasion fly half-mast.15 Nothing is as dehumanizing as the conduct of police in practicing torture of any kind on a person in their custody. The police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several years. 16 Denying a person of his liberty is a serious matter. 17 It is more heinous than a game keeper becoming a poacher.18 Torturing suspects with a view to extorting information from them, is a crude, barbarous and reprehensible method of investigating and detecting crime. Those who are entrusted with the duty of enforcing the law, must learn to obey the law. In police investigation as in other matters, the end does not justify the means; the means are as 12 D.K.Basu v. State of W.B., AIR 1997 SC 610; (1997) 1 SCC 416. 13 Dalbir Singh v. State of U.P., 2009 Cr.L.J. 1543 SC. 14 State of M.P. v. Shyamsunder Trivedi and others, AIR 1995 SCW 2793. 15 D.K.Basu v. State of W.B., AIR 1997 SC 610. 16 4th Report of June 1980 of the National Police Commission. 17 Joginder Kumar v. State of U.P. (1994) 4 SCC 260. 18 Bhagwan Singh and another v. State of Punjab, AIR 1992 SC 1689.

important as the end 19. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. 20 Torturing, a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid.21 There is an inclination on the part of some of the supervisory ranks in the police hierarchy to countenance this practice in a bid to achieve quick results by short-cut methods.22 Custodial violence in India: A Historical Introspection All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person (Article 10. ICCPR). No one can truly know a nation until one has been inside the jail. A nation should not be judged by how it treats its highest citizen but its lowest one. The history of crime and criminals is as old as human civilization. They are the products of social system in which every human being enjoys the rights privileges and claims. It is true that the correct place of the criminals are neither their family nor isolation but behind the bars but it is also true that being criminals does not affect their status of human being. They remain human being and enjoy certain basic rights. Whenever a crime is committed in a civilized society, the wrong doers is subjected to punishment according to the gravity of the offence and the law of land. But it is unfortunate that very often the protector of law is the police themselves violated the law and then start to inflict custodial violence on the criminals, accused and detainees which often proved fatal to them in various ways. Custodial violence perhaps one of the worst crimes in a civilized society is a matter of concern for many reasons. Custodial violence is a very broad team and it includes 19 Public Prosecutor v. Shaik Ibrahim, 1964 (2) Cr. LJ 636. 20 Gauri Shanker Sharma etc., v. State of U.P. etc., AIR 1990 SC 709. 21 Bhagwan Singh & Am. vs. State of Punjab, 1992 (3) SCC 249. 22 4th Report of June 1980 of the National Police Commission.

deaths, rapes, tortures, illegal arrests and detention, false implications, disappearances from police custody and other police excesses. Violence is a dark reality in our democratic country governed by "Rule of Law". It is a blatant violation of human dignity. It strikes at the very of the rule of law. Custodial violence in India is defined as is the one occurring during the period the person is in the custody of police prison or any other institutions set up by the state for detention. No doubt, the police officers have contributed towards the maintenance of public order and their plans are enforced with purity, activity vigilance and descript ion. But more often that, the police officers have been abused and condemned for to returning 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 is not only peculiar to this country but it is also 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 th e 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 prisoner 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. Torture and misconduct on behalf of concerned authority's unlawful detention of a person more than the stipulated time. Duress resulting to 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 any thing about the injustice done to them or one of their family members in march last year. 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 evidence Act. So that the policemen guilty of custodial torture do not escape for lack of evidence.

The history of custodial violence has been the history of mankind. An attempt has been made here to trace out the historical evolutions of the concept of arrest custodial, violence in India. The historical retrospection of custodial violence has been divided under two heads (i) British India period (ii) Post- Independence period. Custodial violence during British India: - after the advent of the British in India they showed great interest in improving the Indian legal system on the basis English legal system. But even during their regime, the severe and barbarous cerements or punishments were not uncommon. There are many instances, which the inhabitants in police custody received harsh treatment on many occasions. The policy of British administration in India has based on coercion. They ill treated the masses, denied civil liberties, discriminate and torture them in many ways in their own country. During reign in India, there was no fundamental law guaranteeing the subjects rights and liberties. The rights of persons in custody were appended on many occasions. History of freedom movement in India provides glaring epitomes of torture which Indians met under British rule during 1857-1947.During the British rule in India, custodial violence was considered legitimate to maintain kingship and sustain the domination. Human right phenomenon was like a curse for police officers because their prime concern was to protect British rulers 23. History informs that custodial violence, including tortures, illegal detention, rapes, deaths etc. in police custody etc. was the rule of law in colonials reign. Criminals and suspects were humiliated and subjected to custodial violence. With the passage of time, the administrative structure of British India began to assume a new form; various major allocations were made in the existing legal system. In the year 1790, the punishment of mutilation was forbidden by law in Bengal and criminal Courts were directed to inflict imprisonment with hard labour in its stead. In 1839, the attention of the British Parliament was drawn to the analmous and sometimes conflict judicatures why which laws were hitherto being administered. Accordingly in that year an act was passed which effected many changes in the 23 S. K. Ghosh., “The Outcry of Police Brutality”, Ashish Publishing House, New Delhi, 1993, p. 34.

constitutional set up of this country. All Indian Law commission was appointed to prepare a uniform code of legal rules. In 1858, was issued the Royal Proclamation, whence forth direct responsibility was assumed by the British crown 24. The frequent report of brutality in lock ups, rapes and deaths in custody and widespread corruption against the policemen compelled the government of the day to bring about certain changes in the law existing at that time 25. In the next three years, first the Civil Procedure Code, then The Indian Penal Code was enacted in 1860. The Indian Police Act 1861, The Indian Evidence Act in 1872 and Cr. P.C 1973, one by one came into force. Britishers through these legislations prohibited illegal detentions by a Public authority further they also tried to prohibit inflicting simple injury during custody for obtaining information or confession and also prohibited inflicting grievous the world community that they were against detention and torture26. Custodial violence after independence:But from 1903 till 1947 when India achieved independence, the British set the Police machinery as Status quo so as to suit their imperialist needs with the transaction of India from slave country to an independent, socialist, democratic and welfare state. The style of police handling the offenders remained same as it was during colonial period27. In fact, the agencies that performed policing functions independence of India could hardly be expected to be democratic and service oriented in nature. After the Second World War that regular attention has been paid to the rights of an individual. Many international conventions and declarations have been adopted by U.N. assembly which takes about the prohibiting of brutal practice of custodial violence by the law enforcement agencies. Among the declaration and convention adopted by the U.N. general assembly, the convention against torture and other cruel in human or

24 Custodial Violence in India: A Historical introspection. p. 105. 25 Report of Indian Police Commission by Government Training office, Shimla (1902-03) p-150. 26 Gupta Gulab, “Custodial Violence and Human Rights Commission”, Central Indian Law Journal, Quarterly Vol.12 july-Sep 1999, p-286. 27 Prashar Rajinder, Police Administration (1986) p. 29.

degrading treatment of custodial crimes and tortures. This convention enjoins upon all member states to take effective measures to prevent acts of torture. Acts of torture cannot be justified even in the exceptional cases. This convention globalizes the prohibition against custodial violence and makes it the concern of all nations of the world. India is also the signatory of this convention. In India to prevent custodial violence there are many constitutional, Penal and Legal Safeguards available. The adoption co constitution brought a ray of hope for the victims of police torture 28. The judiciary in India played a very significant role to prevent custodial violence by enlarging the scope of Article 21 of the Indian constitution. A part form it, the democratic principles incorporated in the constitution changed the prime duty of the police personals. But it is unfortunate, that despite of protecting the interests of public police force bore stigma, for being violator of human rights 29. Present Scenario:The devotional and ethical services rendered by the police, as a social service institution is undoubtedly laudable, but due to certain unscrupulous activities of a handful of policemen, the esteemed image of police are tarnished. Public criticism various from its alleged overzealousness and brutalization at one end of the spectrum, to ineffectiveness in controlling crime and criminals at the other not surprising in the face of mounting evidence of violence and crime. Not surprisingly, the police trend to be the hand maidens of the political rulers of the day. Instead of being an instrument to enforce the rule of law, it is increasingly seen as a pliable tool in the hands of unscrupulous politicians. The Indian police have a long tradition of being a part is an instrument in the hands of the rulers since colonial times. At the heart of problem is the fact that a section of police officers instead of fighting crime and criminals decided to join them, because doing so was more 28 Custodial violence in India - A Historical Introspection p-106. 29 Custodial violence in India - A Historical Introspection p-107.

profitable and less risky. The criminalization of politics has affected police performance more than the performance of any other state institution. Though international laws criminalize custodial violence, it enjoys unprecedented license in India. The methods of custodial violence adopted by government officers involve gross forms of inhumanity. The allegations of incompetence, corruption, brutalization and being a violates rather than an enforcer of the rule of law, have all been voiced before against the police force. But the deteriorating law and other situation and an increasing sense of insecurity in the country have lent a new edge to these allegations. The present system of administrative and political supervision ever the police suffer from many distortions. The amendment in Cr.P.C in 1973 the so called Magisterial Control has last its original motivation after the separation of the executive from the Judiciary complete control has now passed on to political rulers. Hence there is an urgent need to examine the issue in depth to develop criminal jurisprudence and also to make the police officers accountable for their acts and omissions.

VIOLATIONS OF HUMAN RIGHTS Most of the violations of human rights take place in the management of law and order, by the police. In India, the history of human rights violations in police custody can be traced to British period. Even after 57 years of independence, in a democratic country like India, the police remains virtually a terror to the people and almost absolutely unaccountable for the violations of human rights of people in their custody. Through custodial torture, custodial deaths and other forms of human rights violation in police custody abuses, no static steps have been have been taken so far for a permanent solution. Since conviction rate is considered as the yardstick to measure the ability of an investigating police officer, every police officer would try to accomplish the maximum conviction rate to his credit by hook or crook. This will definitely help to increase the rate of police torture. It is really pathetic that the successive governments have persistently refused to investigate the abuses reported in

newspaper. Nowadays custodial violence has become a part of the police culture and the incidence of custodial deaths is quite common. Though the academic world and judiciary have become conscious of the need of a study of the causes, of human rights violations in police custody from the legal standpoint has so far received little attention. Though much has been written on this topic, most of them concentrate on individual issues. The area of human rights violations is so vast both in the national and international perspective. Hence the work is mostly confined to the state of Kerala. Though many of the police officers have co-operated in a better manner, much difficulties arose in the task to penetrate the shields of defense of police personnel who tried to conceive the realities in the interrogation, torture etc. Rights of a man area symbolic depiction of the aspiration of man to free himself from oppression and tyranny from his fellow men and his innate urge for equality and fraternity amongst homo sapiens 30. A right may be defined as something to which an individual has a just claim. The contemporary use of the term “Human Rights” finds its mention in Universal Declaration of Human Rights in 1948. The expression human rips have not been specifically defined in any Declaration or Covenant of the United Nation. They may be regarded as fundamental and inalienable rights which are essential for life as human being and without which we cannot live as human beings. Human rights are as ancient as civilization of man, as it moved from nomadic existence to that of urbanity. The very basis of healthy community existence is recognition of human rights.31 Human Rights as a democratic society experiences today, is the result of the evolution of human consciousness on the basis of the necessary demand for life based on equality, freedom and justice in a civilized society. Hence, human rights arc the reflections of a civil society to protect and promote rule of law and human dignity. 32 Human rights and social justice arc necessary to society and our ideas on them arise from needs common to all human being. They are binding by custom and convention

30 S. Krishnamurthi, “Human Rights and the Indian Police”, R.R. Publishers, Banglore, 1994, p. 24. 31 Nagendra Singh, “Human Rights and the future of Mankind”, Vanity Books, Delhi, 1981, p. 1. 32 Krishna layer. “Justice at Cross Road”, Deep and Deep Publication, New Delhi 1992, p. 21.

but arc justified by their inseparable quality to human dignity Human rights are an integral part of the concept of human dignity. 33 No society is free, no state democratic, unless every citizen actualizes human rights, in widest commonalty spread. The battle for justice is not confined to individual claims but to a transformation of the social system itself. 34 Human rights are the rights which are essential for the living of the humanity. The expression „Human Rights‟ itself talks about its importance. These are those rights which are made for the sustenance of people. All individuals and all people have these rights to self directed development. Human rights in a general sense, denotes, the rights of humans. Human rights constitute those very rights which one has precisely because of being a human being. The concept of human rights is as old as the ancient doctrine of natural rights founded on natural law, based on mankind's demand for a life in which the inherent dignity of the human being will receive respect and protection. It comprises of these minimal rights, which every individual must have by virtue of his being a member of the human family respectable of any other consideration. The most precious legacy of classical and contemporary human thought to culture and civilization has been the human dignity, which has culminated into the present day notion of human rights. 35 These rights are essential for the development of human being and to use and utilize his talents, qualities and intelligence. They are basic rights, which cannot be denied to human beings. They are integral part of the concept of human dignity. In the Protection of Human Rights Act 1993 (10 of 1994), Human Rights arc defined as the rights relating to Life, liberty, equality, dignity to the individual guaranteed by the constitution or embodied in the international Covenants and enforceable by courts in India.

33 D.Devasia and Leelamma Devasia, “Women Social Justice and Human Rights”, APH Publishing Corporation, New Delhi. 1998, p. 1. 34 V. R. Krishna layer, “Human Rights and in human Wrong”, B.R. Publishing Corporation, New Delhi, 1990, p.7. 35 Navin Aggarwal, “Police is Protector of Human Rights”, July 1998, CB1 Publications, New Delhi, p.25.

Human right can be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings. Human rights and fundamental freedoms allow us to hilly develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our physical, spiritual and other needs. They are based on mankind‟s increasing demand for a life in which the inherent dignity and worth of each human being will receive respect and protection. 36 Human rights are sometimes called fundamental rights or basic rights or natural rights. As fundamental or basic rights they ore those which must not be taken away by any legislature or any act of Government. As natural rights they belong to men and women by their very nature. Another way to describe them would be to call them „common rights‟ for they are rights which all men and women in world should share just as common law in England, for example was the body of rules and customs which unlike local customs, governed the whole country. 37 Whatever adds to the dignified and free existence of Human beings should be regarded as Human rights.38 They are fundamental privileges or immunities to which all human beings have moral claims. These rights are inalienable. Nobody can alienate them by gift, sale or transfer. The concept of human rights is a concept of world order. Every Individual‟s human‟s dignity is protected. Human rights do not constitute a mere enumeration of certain basic rights but certain clear conditions, which must be created leading to the fulfillment of a individual in society 39. The concept of human rights is expanding. Besides, traditional civil and political rights, they also include economic, social and cultural rights. Human rights are truly universal. They are not the monopoly of any one culture or of any one geographical region. Human rights are indeed present in the cultural development religions and philosophies in all parts of the world, since the

36 S.K. Kapoor, “International Law”, Central Law Agency, Allahabad, 1998, p335. 37 J.E.S. Fawcett, “The Law of Navours Allen Lane”, The penguin Press, London, 1965, p. 151. 38 Subramanian, “Human Rights and Police, Association for Advancement of Police and Sec Sciences”, Hyderabad, 1998 at 17. 39 Dr. Deeps Singh, “Human Rights and Police Predicament”, The Bright Law House, Delhi, 2002, p. 254.

dawn of recorded history. 40 The time concept of human rights is as old as ancient doctrine of natural rights founded on natural Jaw. It comprises of those minimal rights, which every individual must have by virtue of his being a member of the human family irrespective of any other consideration. 41 Dr. Nagendra Singh,42 describes four aspects of human rights. First is the national aspect since human rights take their origin within the national area. Second is the international aspect. Human rights cannot be compartmentalized to be restricted to national boundaries. The third aspect relates to the human rights in peace as against human rights in armed conflicts. The fourth aspect pertains to the humanitarian laws of war. Therefore, Human rights are set to be universal legal guarantees protecting individuals and groups against actions, which interfere with fundamental freedom and human dignity and possess the following importance characteristics. 43 1)

They are internationally guaranteed.

2)

They are legally protected.

3)

They focus on the dignity of the human being.

4)

They protect individuals and groups.

5)

They obligate states and state action.

6)

They cannot be waived or taken away.

7)

They are equal and inter dependent.

40 Jan Martenson, under Secretary General for Human Rights and Director General of the United Nations office at Geneva , in his key note address during the third world congress convened at New Delhi from December 10-15, 1990. 41 "Police as protector of Human Rights" C.B.I. Buiieten, July 1998, p 25. 42 Ex. President, International Court of Justice, Netherlands. 43 United Nations, “Human Rights Training- A Manual on Human Rights Training Methodology”, Profession Training Service No. 6, High Commissioner for Human Rights Centre for Human Rights, New York, 2000 p. 10.

REVIEW OF LITERATURE The review of studies on custodial crimes in Indian context includes various studies undertaken by books, articles, periodical websites, and commentaries, individuals, academic institutions, police research and training institutions, non government organizations and various Committees and Commissions. Bayley (1969) who has conducted a pioneer study on Police and Political Development in India found that police brutality varied from rural and urban set up. The rural people are less critical than urban people as well as north are significantly more critical than it is in the South. Citing reasoning of increasing complaints of police brutality in Northern part of India as Bihar, Delhi, Madhya Pradesh, Rajasthan and Uttar Pradesh (Gosh, 1983) diligently brought out police brutality is a symptom and not the disease. It cases are multifaceted such as violence is politicized, political, criminal and police nexus and police are trapped in a vicious circle and seek more authoritarian solutions under various labels for survival. While analyzing torture and rape in police custody Ghosh (1993) has drawn attention towards the main cause of the persistence of torture is the failure or unwillingness of governments to hold an inquiry and punish those found guilty. Particularly disturbing is the fact that redress for the victims or their familiar is almost impossible to obtain; most of them have neither the information nor the resources required it seek it. Moreover, these cases are difficult to substantiate because custodial deaths take place in „out of the view „situation which seldom are monitored by supervisions or witnessed by complainant. Even when a few witnesses are available, they are intimated or even killed to prevent them from giving evidence. The victims of police brutality are often minority people.44 Mishra (1986) in an empirical study on Police Brutality-An Analysis of Police Behaviour has focused four main causes of the malady. First is a colonial tradition of our police as instrument of the executive or oppression by the rulers; second is the subculture of our police includes brutality. The police subculture is strengthened by 44

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alienation cynicism, low esteem in society, conflicting demands made of policemen inconsistent judgment of their work, all forcing them into a corner, their backs to the wall. Third is very important reason for the continuing brutal behavior of policemen is under pressure and finally the most hateful reason for brutality is to extract money from suspects and innocent persons. It concluded with the remedies is the real reforms pushed through with some severity will produce enduring improvement. It would help it the emphasis within and outside the police organization is shifted from results to behavior. This shift will be perceptible and effectual only it notices is taken not merely of deaths in police custody or where bones have been broken out also every act of discourtesy and punishment given. Besides, improvement in behavior should in the long run, by increasing public acceptance of policemen and their work and eliciting public cooperation, lead to better and better police work resulting in higher percentage of conviction. Bureau of Police Research and Development (1993) in its study on „Custodial Crimes‟, has identified the following causative factors for occurrence of custodial crime in our county; sadism in police, unrealistic public expectations about crime control, Failure of criminal justice system; Inadequacy of strength and resources in police; Inadequacy of laws; Lack of scientific temper and non-availability of facilities. This study has also suggested the various remedial measures to tackle the menace of custodial crimes. These include tightening recruitment standards, improving training standards, improving the machinery for enquiring into complaints, improving supervisory and leadership standards, review and implementation of reports submitted by commissions/ committees and review of laws. A survey undertaken by the Commonwealth Human Rights Initiative (2001) on Police –Public Interface for United Nations Development (UNDP) in State of Assam and Tamil Nadu in 9 police stations to assess the level of human rights awareness and attitude of police personnel towards human rights issues, found that the police admit that they occasionally use brutal methods. The respondents consider the lack of skill in investigation work, pressure of work and desire of quick results as the three more important reasons for using third degree methods. The Study suggested improvement

in human rights training and sharpening of investigation skills of the police officers will show good results. The study further suggested improvement in recruitment standards to screen out the wrong ones, like the emotionally unbalanced persons, at the entry stage and weed out at regular intervals those who have been brutalized in the course of their career in the department Further, it was suggested that problem of police brutality persists because there are no effective police accountability mechanisms in existence. The existing system, where public complaints against police personnel were inquired into by police themselves, lacks credibility. 45 Talwar (2003) on custodial violence in Delhi found that political interference in day to day police functioning, public expectation of quick results, archaic colonial oppressive laws, malfunctioning of criminal justice system, lack of infrastructure facilities, pathetic working condition poor supervisory and absence of accountability are main causative factors for custodial violence. Further, the study suggested awareness, education and training of human rights to police personnel, use of scientific investigation, supervisory of interrogation in custody stringent, women officer needs to interrogate women detainee, legal action to the guilty officers and transparency in institution of magisterial inquiry or inquest for custodial death. National Police Commission ( 1979-1981) in its first report analyzed the complaints of police torture and custodial deaths in eight states and found that under pressure of work and driven by a desire quick results leave the path of patient of investigation officers and resort the use of physical force in different forms to pressure the victims/witnesses and accused to disclose all the facts known to him. The Commission observed in 11 out of 17 judicial inquiries, 37 out of 82 magisterial inquiries and 23 out of 43 other agency inquiries were conducted in different states. The Commission also made an observation that victims are coming from poor background. Thus, the Commission recommended that in all cases of custodial deaths there must be mandatory judicial inquiry. While investigating 45 deaths in police custody in seven states Arun Sourie (1980) found that victims are invariably poor. Several of them were brought without any charge 45

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against them. Some of them were formally arrested in petty offences such as puny-theft (a goat in one case and copper wire in another), the causal complaint of another one that the victims had occupied his land, ticketless travel. Others were in serious charges like relation to murder and attempt to murder. The study revealed the fact that in seven cases the bodies were so badly mauled, the evidence of external and internal so considerable that even authorities had to eventually register cases of murder against policemen and eventually, the policemen suspended and few policemen transferred and later reinstate. Five cases were reported as having died due to natural causes like snake bite‟; heart failure on the way to the hospital, „sudden illness‟, etc. Five others were said to have died for mysterious reasons, while the rest committed suicide. The study also revealed that “the patterns are uniform from one death to another, from one State to another, that generalizations are possible. No state had examined deaths in police custody systematically, not by government, not by any civil rights organizations, not by press. In each case, inquiries about the death looked after by the police and the civil administration as illegitimate encroachments into their private preserves. Amnesty International (1992) conducted on in-depth analysis of 459 deaths in police custody in eighteen States of India between 01 January, 1985 to July, 1992. The study revealed the most common torture methods were severe beatings, sometimes hanging upside down, administering electric shocks, crushing with heavy rollers, burning, stabbing with sharp instruments and inserting chilies or thick sticks forced their rectums. Most of the torture victims were arrested in connection with criminal investigation and tortured to extract to extract information and confessions. Others were arrested because a relative or friend was sought by the police or because false charges were levelled against them at the behest of powerful local members such as members of state ruling parties, businessmen or land owners. It was found common in states in which there was organized opposition to economic exploitation. The majority of them were suspected of criminal offences such as burglary, theft, robbery, arson or public order offences, moving suspiciously or traveling in trains without tickets, juveniles and children who were ill or physically disabled as young age have been among the victims. The victims were

belonging to dalits, minority groups, women, children, poor and unprivileged sections of society and have little opportunity to obtain redress. The main reason why torture continues to be practiced on such a wide scale throughout India was that the police felt themselves to be immune. As they were fully aware that they will not be held accountable, even if they kill the victims and even if truth is revealed. Institutional factors which contributed to the persistence of torture include : the negative public image and bad working conditions of the police, the inadequate training and facilities available to them, the high degree of political involvement in directing their activities and the failure of government to accept responsibility for insuring that the police operate within the limits of the law, distortion of cause of death, intimidating victims and witness, ignoring legal duty of magistrate to find out case of death and medical aspects of official cover up.46 Amnesty International recommended that the following steps be taken to enhance the protection of human rights in India, halt the practice of torture and create effective institutional framework for the prevention of torture.

46

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Adopt an official policy to protect human rights

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Investigate impartially all allegations of torture

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Bring the perpetrators to justice

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Strengthen safeguards against torture

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Inform detainees of their rights

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Train the police and security forces to uphold human rights and reform the police

•

Compensation the victims

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Provide torture victims with medical treatments and rehabilitation

•

Investigate the causes and pattern of torture

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•

Strengthen India‟s international human rights commitment & compensation.

Shinghal (1993) draws sample of 40 cases of police custodial deaths in Delhi and examined its causes and remedial measures. The study was based on secondary data sources from Delhi Police and District Magistrate, Delhi. The study found that the unnatural causes of deaths in custody were due to torture/custodial violence by the police, natural causes (illness, suicide, hanging, jumping from roof, non-custodial injury, accidental drowning, burning and drug overdose). Suggesting remedial measures for combating custodial torture in custody the study emphasis to bring about attitudinal change amongst the policemen from the grass root to the senior supervisory levels overall to creating culture of human rights, reducing pressures which lead to adoption of short cuts, providing adequate resources both human and material, enforcing sticker control and accountability, improving public credibility and confidence. Besides, the measures for controlling natural deaths in police custody as health check up of detainee before interrogation in custody, availability of proper transport facility at police station and utmost care should be given to juvenile, women and aged person in the custody.47 A Study conducted by Sanker Sen (1994) on Custodial deaths in India on behalf of Indian Police Academy, Hyderabad shows a number of causes of custodial deaths such as due to the use of third degree methods by police, lack of effective supervising by the Senior Police Officer, inadequate training in the areas of scientific investigation and interrogation, insensitive to people about rights of citizens, extraneous pressure because of political forces and corruption within police force. The study suggested measures to control custodial deaths in police custody. Firstly, severe punishment should be given to the erring police officer. Secondly, training interventions should focus more on sensitization of Police functionaries to human relations. Thirdly, every case of deaths in custody should be judicial inquiry. Fourthly, medical examination of accused should be made compulsory before and after the police demand and finally, surprise visits specifically in night visits to Police stations by Supervisory Officers should be carried out.

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RESEARCH GAP Custodial violence is on rise. Whether it‟s Delhi, Lucknow, Kerala and Punjab, the accused in police custody is not safe. Many enactments have been made by Indian government, but these laws have not been implemented properly. One of the reasons that custodial violence is widespread in our country that most of the time the accused does not even know there rights in custody and therefore subjected to extra judicial punishment. This research is beneficial because it shows that in addition to making new laws to curb the menace of custodial violence. There is need for properly implement existing laws and educate inmates of their rights while in custody.

SIGNIFICANCE OF STUDY Custodial violence has become so common these days that not only the police and bureaucracy but even people take it for granted as a routine police practice of interrogation. The result is that the news of such outrageous conduct causes nothing more than a momentary shock in the society. When a custodial death occurs, there is a public uproar, which either dies down with time or at the most subsided by constituting an enquiring committee. A reading of the morning newspapers carrying reports of dehumanizing torture, assault, rape and death in police custody or other governmental agencies almost every day is, indeed, depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of the criminal justice system. As a result the society rightly feels perturbed. The society's cry for justice becomes louder. Any form of torture or cruel, inhuman or degrading treatment, whether it occurs during investigation, interrogation or otherwise needs the severest condemnation. If the functionaries of the Government become law-breakers, it is bound to breed contempt for the law and no civilized nation can permit that to happen.

Custodial violence may be both physical and or mental. It may also consist of gross negligence or deliberate inaction. In a case 19, when a person was suffering from high blood pressure or similar type of disease, almost for which continuous medicine is essential, and he is not allowed to take medicines the men develop serious health problem or dies. The Apex Court held it to be a case of custodial violence and the State was made liable for damages for their gross negligence in protecting the person in custody. Despite several initiatives in recent years, torture and ill treatment continues to be endemic throughout India and continues to deny human dignity to thousands of individuate. There is a depressing repetitiveness about statements made by government officials, members of judiciary, senior police officials and others in official reports and studies during the past many years, which have all identified and acknowledged a serious problem of torture and ill- treatment within the criminal justice system. Having knowledge of this, it might be keen urge that research study in field of custodial violence must be undertaken to highlight the infirmities.

SCOPE OF THE STUDY The present study covers within its scope the meaning and historical background of the concept of custodial violence, covering the magnitude of custodial deaths in India, and the number of custodial deaths committed in various states and extent of custodial violence in 2010. The study also analytically examines the constitutional articles and provisions of Cr.P.C, IPC and Evidence of protection of rights of prisoners and also it scans the important judgments of Supreme Court of India, regarding the protection of Prisoners right in India. The study also analytically examined the available literature from various criminal law articles, journals and reports.

HYPOTHESES The present research study proceeds on the following hypothesis.



Inspite of various constitutional and legislative safeguards, the custodial violence still a continual phenomenon.

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Failure on the part of investigating agencies in safeguarding personal liberty and life of citizen.

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Lacuna in the existing enforcement machinery to protect the right of accused person.

RESEARCH METHODOLGY The researcher has used analytical method. The researcher has analyzed primary sources like bare acts, Constitution of India, Code of criminal procedure and Indian Penal code Indian evidence act, policies and notifications issued from time to time in India. The researcher has also taken help from secondary sources like book, newspaper, journals, articles, magazines, internet etc. for critically analyzing the concept of custodial violence and has interviewed the concerned people, departments and ministry officials.

RESEARCH QUESTIONS The following research questions have been addressed in the term paper (i)

What arc the causes of custodial violence?

(ii)

What are various safeguards for curbing custodial violence?

(iii)

What practice to be followed by police while arrest and interrogation?

(iv)

What are Human Rights and scope of International Conventional on Custodial Crimes?

(v)

What are constitutional Rights of a prisoner in police custody?

(vi)

What are the legislative measures available to a person in police custody?