WITHIN THE FOUR WALLS OF PRISON! -CUSTODIAL VIOLENCE IN INDIA
Author: Adv. Siddhi Gokuldas Naik, II year of LL.M. from V.M.Salgaocar College of Law, Miramar-Panaji, Goa
“It has been long recognized that an essential element in protecting human rights is a widespread knowledge among the population of what their rights are and how they can be defended!”
Custodial Violence is not a new occurrence in India. It has always existed in one or the other forms. Lately, custodial crimes have come to the notice of the Public, Media, Legislature, Judiciary, and the Human Rights Commission. They have come to light as a major human rights concern and one of the prime hurdles to democracy and the progress of human welfare in this ultra-modern world. Custodial Violence has destructive consequences on the physical and mental health and the social functioning of the prisoner, his children, wife/husband, parents, family, community, and society on the whole.
In India, Custodial violence is very vast and complex. Abundant cases of police and government agency brutalities happen not only because of individual abnormality but because of orderly obligations and compulsions. Usually, these harsh exercises remain unexamined because of the powerful support and affirmations from senior police officers, politicians, bureaucrats, and the judiciary. The facts also remain tacit because the practice is braced by a large section of the public who are of the view that custodial violence is necessary to maintain law and order in society.
MEANING AND NATURE OF CUSTODIAL VIOLENCE
Custodial Violence involves some kind of torture inflicted on the person. The Oxford Dictionary defines Torture as, “The action or practice of inflicting severe pain on someone as a punishment or to force them to do or say something.”[i]It is a brutal act that has adverse consequences on the body and mind of the victim. The objective is to build terror, draw out confessions, impose power, and take revenge. The Prevention of Torture Bill, 2010 defines torture as, “Grievous hurt or danger to life, limb, and health.”
TYPES OF CUSTODIAL VIOLENCE[ii]
Torture has been widespread and predominant in India since ancient times. It is unchallenged and unopposed as a result of which it has become a normal and legitimate act all over the country. Victims can be tortured in the followed ways:
A. Custodial Torture (Not resulting in death)
There are varied in which victims are tortured by the officials:
1. Physical Violence
Following are some of the methods used to physically torture the inmates:
a. Causing disfiguration and exhaustion.
b. Forcing them to sleep naked on ice, damp floors, or under the scorching sun.
c. Torturing them to such an extent that the victim fears immediate death.
d. Beating with canes or rods on the soles of the feet by handing upside down or suspension of arms.
e. Beating with rifle butts.
f. Scratches and cuts are made on body parts which sharp objects.
g. Forcibly extracting their teeth.
h. Inserting metal nails under toenails.
i. Applying irritants like chilies, chilly powder, salt, etc. to their private parts or on wounds.
j. Burning with cigarettes and candle flames.
k. Submersion in water
l. Inserting live wires into body cervices.
m. Causing suffocation.
n. Crushing their body parts under heavy rollers.
o. Denying medical treatment to them.
2. Psychological Violence
To break the confidence and morale of the victim they are tortured mentally in the following manner:
a. Forcing them to violate social taboos.
b. Forcing them to witness the torture of other victims.
c. Forcing the victim to perform torturous activities.
d. Depriving them of food, water, sleep, and sanitation facilities.
e. Forcing them to take pharmacological drugs to facilitate the torture.
f. Threatened directed towards their family members or friends.
3. Sexual Violence
a. Verbal sexual abuse.
b. Abruptly touching the private parts of the inmates.
e. Asking them to satisfy their sexual pleasures.
f. Forcing them to indulge in sexual acts with other inmates.
g. Compelling them to dance naked or erotically.
h. Sexual harassment.
i. Forced impregnation and virginity testing.
The Supreme Court in Khatri v. The State of Bihar,[iii] tackled the blinding of under-trial prisoners by police by piercing their eyeballs with needles and pouring acid on them. This case exemplified the key aspects of the pattern of torture, the sanction of torture by the State and local judicial authorities, the routine concealment of torture, the failure to conduct proper inquiries, and the inordinate length of a judicial proceeding.
B. Custodial Deaths
Police excesses in India have resulted not only in third-degree methods but also in custodial deaths. Custodial death is one of the worst crimes committed in a civilized society which is governed by the Rule of Law. It is a grave threat to an orderly developing society.
Custodial deaths can happen due to the following reasons:
a. Negligence of the authorities involves the deficit safety to the inmates, insufficient medical assistance, or basic requirements.
b. Torture and misconduct by the officials.
c. Unlawful detention of a person exceeding the prescribed time.
d. Duress causes a person to commit suicide to escape torture from authorities or punishment.
e. Enormous pressure on the police to detect cases whenever there is a surge in crime, especially heinous crimes. [iv]
Most of the time custodial deaths occur not because of the intention to kill the victim but due to the excessive torture inflicted on him by the officials. The Law Commission has observed that the majority of the victims of custodial deaths are poor and weak. [v] The backward section of society often struggles to fight back and is helpless towards the injustice done to them or their family members.
In a survey conducted in 1944, it was revealed that officials employ all sorts of methods and techniques to make the suspect guilty of the offense. [vi]
In 1980, Arun Shourie [vii]investigated 45 custodial deaths in seven states. He stated the patterns are uniform from one death to another, from one state to another, that generalizations are possible. The victims were invariably poor, and many were kept in custody upon fake charges or no charges at all. Even if there were charges, they were very petty. He also stated that the bodies were mauled badly that it was not easy to hide the crime. The explanations given for these deaths were varied- snake bite, heart attack, sudden sickness, suicide, etc., the accounts of suicide given have not varied even now- by hanging inside the lockup using a lungi, belt, jumping out of the building, or in front of the bus, etc.
In Sunil Batra v. Delhi Administration,[viii]the Supreme Court held that a person does not lose his fundamental right under Article 21 of the Constitution which requires a person to be treated with dignity. The Court observed that most of the jails in our country are have turned into jungles where the security people often behave like animals, in ill-treating the prisoners.
In Nilabati Behera v. The State of Orissa,[ix]the Supreme Court observed that it is axiomatic that convicts, prisoners, or under-trials are not robbed of their fundamental rights under Article 21 of the Constitution. The State must ensure that there is no infringement of rights. The defense of “Sovereign Immunity” is not available to the State in custodial violence and death.
In Harbans’s Kaur v. Union of India,[x] one person was called to the police station and thereafter went missing. A Habeas Corpus was filed and compensation was claimed by his family. The Supreme Court directed an inquiry to find out whether the Petitioner was mercilessly beaten in the police custody which ultimately led to his death.
In Meena Singh v. The State of Bihar,[xi] the Court observed that it is the prime duty of the jail authorities being custodian to provide security and safety to the life of prisoners while in jail, even though he is a criminal or an accused in a criminal case.
In The State of Uttar Pradesh v. Mundrika,[xii] the Court observed and directed the record of the police station to be thoroughly examined by holding a departmental inquiry to bring to book such police personnel way be found guilty of misconduct or negligence or dereliction of duty resulting into the death of the deceased while in police custody.
C. Custodial Rapes
Custodial torture is a pandemic in India but those living in armed conflict situations, Dalits, minorities, refugees, asylum seekers, economically downtrodden, indigenous people, women, and children are more vulnerable to it. Often women are attacked based on their gender. The National Crimes Records Bureau claimed that at least seven women were raped by police in custody in the year 2009 in India. The Daht and Tribal women are more prone to sexual violence. [xiii]
On 26th May 2003 three Special Police Officers (SPO) Personnels gang-raped a 15-year-old tribal girl near Manoranjan Das Para Camp at a remote place in Tripura and pushed a cane inside her vagina when she resisted. [xiv] Even though there are provisions under the law against custodial rapes, however, these incidents hardly come to light. The victims usually fear stigma from society and this fear is triggered more by the police officials when they attempt to complain of the act.
D. Staged Encounters
An encounter is an incident in which police shoot dead a suspected criminal under controversial circumstances, which may even include personal gain. Encounters are in part a response to India’s grindingly slow and dysfunctional criminal justice system. The police many a time see cases dry up as trials are delayed and witnesses turn hostile. The defendants also know that they can buy freedom at any cost. But taking the law into their hands reflects something even more alarming wherein some police officers assume that they can torture the inmates to death knowing that they will escape the consequences.
In People’s Union for Civil Liberties v. Union of India,[xv] there were allegations of cold-blooded murder by the police. The District and Sessions Judge was directed to record evidence of relevant witnesses and submit a report to the Supreme Court within Six Months to decide the question of compensation.
In Prakash Kadam & etc. v. RamPrasad Vishwanath Gupta & Anr,[xvi] the Supreme Court held that fake encounters are equivalent to a cold-blooded and brutal murder by persons who are expected to uphold the supremacy of law. Also, since the crime is committed by the police, a stricter punishment has to be given.
In People’s Union for Civil Liberties v. The State of Maharashtra, [xvii] the genuineness of 130 encounters was questioned. The Court held that in a society governed by the rule of law, extra-judicial killings must be independently investigated without any bias so that justice prevails.
REASONS FOR CUSTODIAL VIOLENCE IN INDIA
Custodial violence is inflicted on the inmates for several reasons. A few are enumerated below:
a. Work Stress
The police officials work under stress to a great extent as there are plenty of cases to handle at the same time. Dealing with volumes of cases becomes very hectic for them. In case they fail in obtaining the expected results within a particular time frame, they are transferred which creates abundant pressure on them. This is the main reason they use violence as a means to get maximum information from the inmates.
b. Punitive action by Police
Police officials are of the view that punishment is the only method to prevent criminals from committing more offenses in the future. According to police officials, prisons have lost their deterrence effect because criminals live freely there. They believe that rapists and murders deserve to be treated in such a harsh manner.
c. To obtain quick conclusions
The National Police Commission claims that 37 percent of the time spent by police is on the investigation while the rest of their time is indulged in VIP security, law and order duty, court attendance, and other work. Therefore, they tend to use force as a single click to achieve rapid results.
d. To extract money
Some greedy police officials exploit their powers to draw money from innocent people by threatening them to file cases against them by manipulating First Information Reports. They torture the person till he agrees to pay the money demanded.
e. Inadequate training
Many police officers lack knowledge of the application of scientific procedures in the investigation of criminal matters and interrogation of the accused. This eventually leads to the use of force against the inmates.
f. Lack of supervision
Generally, a police investigation is not supervised by any superior officials. This grants them an opportunity and freedom to do whatever they want. Many police officials often go unpunished for their acts due to the absence of evidence, influence, and corruption in the system.
g. Psychological issues
Sometimes the persona of the police officer plays a significant role in deciding the approach towards the investigation. An investigating officer with an atrocious frame of mind would administer pain on the inmates for his pleasure and a lustful official would abuse his position to exploit the victims physically, mentally, and sexually.
AFTERMATH OF CUSTODIAL VIOLENCE
The victim has to go through a lot of after-effects:
a. Physical impacts
The physical impacts include pain and swelling at various parts of the body. The victim can be paralyzed for life and might not be able to carry out his day-to-day chores. Some even lose their lives.
b. Psychological impacts
The victims are also affected psychologically. They suffer from post-traumatic disorder symptoms such as anxiety, depression, nightmares, phobia, sleeplessness, flashbacks, etc. They find it extremely difficult to lead a normal life.
c. Economic impacts
The victims are burdened with the expenses incurred during inquiry and investigation. A lot of expenditure is required to fight the case for their compensation.
d. Social impacts
The victim and his family are usually re-victimized by society. They are treated as criminals and withdrawn from social gatherings which causes further depression. Unable to take this some even commit suicide.
The National Human Rights Commission has claimed that from the year 2001 to 2010, 14,231 people died in police custody in India. A major chunk of these deaths was due to torture in the custody. These deaths bring out only a fraction of the problem of custodial violence in India. [xviii]
ARE THERE ANY LAWS TO TACKLE THIS MENACE?
The legal framework in India, both Constitutional and statutory comprises provisions concerning violence, torture, and other crimes relating to custody. Under the Constitution remedies against torture are available under Article 14 (Right to Equality), 19 (Right to freedom of Speech and Expression, etc.), 20 (Protection in respect of conviction of offenses), 21 (Right to Life and Personal Dignity), 22 (Protection against arrest and detention), 32 (Right to Constitutional Remedies), 39 (Certain policies to be followed by the State), and 39A (Free legal aid).
The substantive law, the Indian Penal Code, 1860 provides for punishment for an authority causing injury, torture, or death of any person in custody. The procedural law, the Criminal Procedure Code,1973 contains several provisions safeguarding the fundamental rights and interests of the person in custody. The applicability of the Criminal Procedure Code to the concept of custodial justice is dual. Primarily the Code contains provisions aiming to function as a protection to the Accused against Custodial torture. Secondly, the various provisions of the Code conferring powers on law agencies need to be kept in mind, in so far as they create possibilities of abuse of authority.
The question that emerges is how far the provisions of the Code need to be broadened concerning custodial violence so that the entire procedure inclusive of investigation, trial, punishment, and remedial measures about such violence are dealt with inappropriately as per the Code.
The Judicial has played a very important role over the years in providing pro-active justice in cases of custodial violence. A few of the significant judgments are as follows:
1. In D.K.Basu v. The State of West Bengal- [xix]The landmark Judgment
The Supreme Court laid down certain guidelines to be followed by the police:
The police personnel carrying out the arrest and interrogation should have visible and clear identification tags of their names and designations. [xx]
The police personnel must prepare a memo of arrest at the time of arrest which has to be attested by a witness and countersigned by the arrestee. [xxi]
The arrestee shall be entitled to inform one of his friends or relatives. [xxii]
The time, place of arrest, and venue of custody must be notified by the police.
An entry has to be made in the diary at the detention place regarding the arrest and the names and particulars of the officials in whose custody the person is should be mentioned.
The arrestee should be examined for major or minor bodily injuries at the time of the arrest.
The arrestee is to be subjected to a medical practitioner every forty-eight hours during his detention by a doctor approved by the Director, Health Services of the concerned State or Union Territory.
Copy of all the documents including the memo of arrest to be sent to the Magistrate.
The arrestee is to be permitted to meet his lawyer during interrogation though not throughout the interrogation. [xxiii]
Information regarding the arrest and place of custody shall be communicated by the police causing arrest within twelve hours of effecting the arrest. This has to be displayed on a conspicuous notice board. [xxiv]
2. In Rudal Shah v. State of Bihar and anr. [xxv], the Supreme Court directed the State to pay compensation to the person illegally detained for 14 years.
3. In Saheli (A Women’s Resource Centre) v. Commissioner of Police, Delhi[xxvi], the Court ordered a compensation of Rs. 75,000/- to the mother whose child was beaten to death by the police in custody.
4. In The State of Maharashtra v. Ravikant S. Patil [xxvii], the Court directed the Inspector of Police Shri Prakash Chavan to pay compensation to the family of the deceased who was brutally murdered in the police custody.
5. In Bhim Singh v. The State of Jammu and Kashmir [xxviii], the Court ordered the State to pay Bhim Singh, a Member of Legislative Assembly of Jammu and Kashmir to pay a compensation of Rs. 50,000/- for illegally detaining him from attending the Parliamentary sessions.
6. In Tukaram v. The State of Maharashtra [xxix], this was a highly criticized judgment relating to the custodial rape of a tribal girl by two policemen. There was a huge public outcry after the Court acquitted the accused and held that there was no locus standi in favor of the girl. This eventually led the government to amend the law against rape in India. a major addition was brought in the Indian Evidence Act, 1872 i.e., Section 114A- which states that if the victim says she did not consent to the sexual intercourse the Court shall presume that she did not consent as a rebuttable presumption.
SUGGESTIONS AND RECOMMENDATIONS
The following points can be taken into consideration to deal with such offenses:
a. A redressal mechanism consisting of the grievance cell in every police circle, a complaint board in all districts, and a State Security Commission at every state level has to be introduced.
b. A Custodial Justice Officer must be appointed to look after the welfare of the persons taken into custody.
c. District Human Rights Cells to be constituted at all districts to have immediate access to people who are suspected to be detained illegally by the police.
d. The recruitment policy of the government in selecting police officials should be based according to the latest scientific developments and should be fair. Candidates with criminal backgrounds should not be selected.
e. The focus has to be laid on training these officials on knowledge of skills and to develop a helping and kind attitude towards the public.
f. The Police Training Academy and Schools should initiate human rights education and training programs on custody management to police officials.
g. Regular gender sensitization and orientation courses are to be conducted.
h. Women detainees to be interrogated by women police officers only.
i. Workshops explaining the ill-impacts of using third-degree torture should be conducted.
j. Police officers should attend novel programs like ‘Police Community Relations’ which can help them in establishing constant contact and healthy relationship with the public.
k. The existing laws lay down only a passive duty on the part of the police personnel to abstain from torture. Instead, the laws have to be made stringent so that all chances of human rights violations in the custody are reduced and the efforts to minimize it to the maximum possible extent be at least thereby made.
l. The law relating to the burden of proof should be re-examined to establish and prove custodial violence.
m. Compensation has to be awarded to the victims of custodial crimes.
n. Police officials can adopt simple, foolproof, and scientific methods to solve cases instead of causing violence.
o. There is a need to make a conscious effort by all the internal and external bodies towards bringing much-needed attitudinal changes in the police and other governmental agencies.
p. The functioning of lower rank officers to be supervised and continuously monitored by the superior officers.
q. The government should ensure strict supervision over all police personnel authorized to arrest and detain suspected or accused persons.
r. The district administration should encourage local NGOs and Media for research, documentation, and monitoring custodial crimes including rehabilitation of victims creating a more open environment and human rights culture at the police stations.
s. Students of social work, law, and medical science to be encouraged in their fieldwork to participate and play an important role in the administration.
t. No pressure should be exerted on the doctors conducting post-mortem examinations so that free, frank, and honest inquiries of the cases related to the custodial deaths or rapes are ensured.
u. Political interference in the investigation of custodial crimes should not be tolerated.
v. Human rights Court can be established in every State for faster delivery of justice in custodial violence cases.
w. Free legal aid to be provided to detainees or arrestees unable to afford an Advocate of his own choice.
x. For ensuring transparency in police work and to protect the human rights of the person in custody the criteria of maintaining secrecy and restrictions imposed on the circulation of literature relating to police are to be redefined.
y. Custody officers are to be appointed to ensure the safety of inmates.
z. A Mobile Judicial Unit can be set up in all talukas and districts so that every arrest made is reported through wireless messages within the prescribed time.
Thus, unless strong measures are taken to eradicate the grassroots problem, the foundations of the Indian Criminal Justice Delivery System would tremble and the civilization itself would lead towards a total disaster resulting in anarchy and authoritarianism synonymous with barbarism. If this continues, gradually common men would lose faith in the judiciary. Therefore, it’s high time all the wings of society and the government machinery come together to yearn for a peaceful and just nation. As Mahatma Gandhi has rightly said, “Peace will not come out of a clash of arms but out of justice lived and done!”
[i] OXFORD ENGLISH MINI DICTIONARY 588 (Georgia Hole & Sara Hawker, 6th Ed. 2004). [ii][ii] Nithya Ramakrishnan, In Custody: Law, Impunity, and Prisoner abuse in South Asia, 5 (Sage Publication Ltd. 2013). [iii] A.I.R. (1981) S.C.928 (India). [iv] Pachaun S.K, Prisoners and Human Rights, 1st Ed, 52 (1992). [v] Saxena A.K. Et.Al, Custodial Deaths in India: A Research Study, 1st Ed, (1994). [vi]Vadackumcheiy J, Custodial Violence and Death Problems and Prevention, Amnesty International Publication, London (2000). [vii]Arun Shourie, 1980 Quoted in K.G.Kannabiram, Creeping decay in institutions of democracy, THE ECONOMIC AND POLITICAL WEEKLY, (Aug. 1992). [viii] A.I.R. (1978) S.C.1675 (India). [ix] A.I.R. (1993) S.C. (1960) (India). [x] (1995) (1) S.C.C. 623 (India). [xi] (2001) Cri. 3570 At P.3576 (Jhar) (India). [xii] (2001) Cr. L.J 742 At P.743 (India). [xiii] Data Collected from Reports of Asian Centre for Human Rights, (2009). [xiv] Complaint of Asian Centre for Human Rights withthe NHRC, File No. 5/23/2003-2004-WC. [xv] (1995) Supp (2) S.C.C. 572 (India). [xvi] (2011) 6 S.C.C. 189 (India). [xvii] (2014) 10 S.C.C. 635 (India). [xviii] Asian Centre for Human Rights, Torture in India, P.1, (2011) [xix] A.I.R. (1997) S.C. 610 (India). [xx] The Code of Criminal Procedure, 1973, No.2, § 41B (a), Acts of Parliament,1973 (India). [xxi] The Code of Criminal Procedure, 1973, No.2, § 41B (b), Acts of Parliament,1973 (India). [xxii] The Code of Criminal Procedure, 1973, No.2, § 41B (c), Acts of Parliament,1973 (India). [xxiii] The Code of Criminal Procedure, 1973, No.2, § 41B (c), Acts of Parliament,1973 (India). [xxiv] The Code of Criminal Procedure, 1973, No.2, § 41D, Acts of Parliament,1973 (India). [xxv] A.I.R. (1983) S.C. 1086 (India). [xxvi] A.I.R. (1990) S.C. 513 (India). [xxvii] (1991) (2) S.C.C. 373 (India). [xxviii] (1985) (4) S.C.C. 677 (India). [xxix] (1979) 2 S.C.C. 143 (India).