Torture and violence by police in custody have been a big issue for a long time. The numbers of such incidents have increased over the years in many parts of the world and India. It is a fact that police resort to third-degree methods for obtaining confessions and statements from the accused. Such methods often result in serious injuries and even death. It is also a fact that unable to bear such torture and humiliation, the victims are forced to commit suicide. After the brutal killing of George Floyd in the USA and the custodial death of Jayaraj and Benix in Tamil Nadu, India, there has been large scale anger over the issue and demands for reforms in policing and bringing in adequate mechanisms, making the culpable officers accountable for their misdeeds.
Custodial deaths in India
Data shows that between 2001 to 2018, 1,727 persons have died in police custody (including those in judicial remand) and those who have been arrested but not yet produced before the court. On average, 96 persons die in custody every year. According to the India Annual Report on Torture 2019, there were a total of 1,731 custodial deaths in India. Out of those, 1,606 people died under judicial custody and 125 people died under police custody. This works out to almost five such deaths daily. The report highlights the most common forms of torture which include electric shock, hammering nails in the body, applying chilly power on different parts of the body, branding with a hot iron, inserting rods in the parts of the body, forcing legs apart, hanging upside down and merciless beating, etc. These are some of the horrific treatments the person who dies in custody often goes through. Most of these people belong to the oppressed classes who are not economically and socially empowered to fight the atrocities of the police.
Legal provisions against custodial torture in India
Protection against Conviction or Enhanced Punishment under Ex-Post Facto Law: Article 20(1) of the Constitution of India provides that, no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to any greater penalty than that which might have been inflicted under the law in force at the time of the commission of an offence. Thus, the article prohibits the framing of ex-post-facto criminal laws and also prohibits the infliction of any penalty greater than that which can be inflicted under the law in force at the time of the commission of the offence. In a nutshell, the article prohibits the creation of a new offence with a retrospective effect. Protection against Double Jeopardy: Article 20(2) of the Constitution states that no person shall be prosecuted and punished for the same offence more than once.
Right not to be a witness against himself: Article 20(3) of the Constitution provides that no accused person will be compelled to be a witness against himself. This is very important as it acts as a safeguard in obtaining evidence from the accused through coercion and torture. Interestingly under Section 179 of IPC, every person is legally bound to state the truth on any subject to a public servant. Section 161 of the Code of Criminal Procedure, 1973 also enables the police to examine the accused during an investigation. But on the other hand, if any pressure, subtle or crude, mental or physical, direct or indirect, yet substantial, is applied by the police for obtaining information from an accused it becomes ‘compelled testimony’, and violates Article 20(3).
Section 348 of Indian Penal Code, 1860, among others, lays down provisions relating to wrongful confinement and prohibits such confinement for extorting any confession or information for detecting any offence or misconduct. Such wrongful confinement has been made a punishable offence with imprisonment up to three years is also liable for fine.
Similarly Sections 25 and 26 of the Indian Evidence Act, 1872 provide safeguards to the accused on the same lines. Section 25 states that no confession made to a police officer can be used to prove any offence against him. Section 26 makes all confessions made during custody inadmissible unless made in the immediate presence of a Magistrate. However, Section 27 of the act provides an exception to Section 25 to the extent that a statement made in custody may be admissible if it leads to the discovery of some new fact. In this regard, the Supreme Court has however pointed out that the accused, if forced to give a confession under this section, can use his privilege against self-incrimination contained in Article 20(3) of the Constitution. However, this is a debated issue and many legal experts claim that such protection does not exist in practice, as it is extremely difficult for the accused to prove that his confession was extracted through compulsion.
Right to be Informed of the Ground of Arrest:
Article 22(1) of the Constitution of India gives the arrestee the right to receive information on the grounds of his arrest and also gives him the right to consult a legal practitioner of his choice to defend him. Section 50 of the Code of Criminal Procedure, 197, provides a similar right to the arrested person and also gives him the right to seek bail.
Section 49 of the Code of Criminal Procedure, 1973 is also a safeguard against custodial excesses. It states that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.
Section 50A of the Code of Criminal Procedure, 1973 makes it incumbent upon the police to give required information relating to the arrest of a person, including the place of arrest to his friends, relatives, or any such person nominated by the arrestee.
Section 55A of the Code of Criminal Procedure, 1973 makes it mandatory for the person under whose custody, the accused is detained to care of the health and safety.
Section 75 of the Code of Criminal Procedure, 1973 provides for disclosing the substance of the warrant to the arrested person and even showing it to him, if required.
Torture continues to remain a preferred tool in the hands of the law-enforcing authorities to extract information and confessions or to oppress the marginalized sections of society. The Police force in India, enjoy great impunity and all Governments prefer not to set precedence by handing out exemplary punishments to the culpable officers for the simple reason that the running of any Government depends greatly on the law-enforcing authorities. They are the arms of the Government who act as its troubleshooter and also provide invaluable service to their political masters. Hence, no government would like to displease them. However, the Executive fails to realize that the real source of power emanates from the people, and the police, paramilitary, and army, are nothing but public servants. But instead of serving the people, they often resort to torture and violence. Unless this changes, it is highly unlikely that the incidence of torture in custody will not come down in our country.