Custodial Violence: An infringement of Human Rights by Somesh Vaidya @LexCliq

Abstract
Custodial violence refers to violence in court and police custody, in which the victim is subjected to rape, torture, and even death. Custodial violence, which includes all forms of physical and mental abuse perpetrated on the victim, is a blatant violation of human rights. It is generally regarded as one of the most heinous kinds of human rights violations. Torture techniques such as pounding on the spine, beating the naked soles of the feet, refusing medical care, scorching with a lit cigarette, forced extraction of teeth, forcing laying victim nude on ice slabs, and submersion in water are still used by police and other authorities.

Because of the terrible nature of this crime, police throughout the nation defy numerous institutions, including the Supreme Court of India, the National Human Rights Commission, and the United Nations. According to the National Campaign Against Torture’s most recent annual report, there were many instances of custodial mortality in 2019, with over 1700 individuals dying in prison. Every day of the year, 5 people are estimated to die. [1]

Police officers are seen as the guardians of the law, and the people of the country entrust them with the protection of their rights. However, when these individuals, who have been entrusted with the authority to govern their daily life, begin to degrade the power they have, the confidence of the ordinary people is shattered. The current study focuses on the problems surrounding this horrific crime, its origins, and the legal viewpoint on custodial torture perpetrated mostly by police personnel.

Introduction
The word “custodial” refers to a person who is in charge of There is no legal definition of violence. It is a mash-up of the terms ‘custody’ and ‘violence.’ Even when used to arrest or incarceration under judicial or criminal care, the term custody implies guardianship and protection; it does not have any negative connotations. [2] In its most literal definition, violence is the act of inflicting harm on another person or property via the use of unjustifiable force.

Indian films depict police torture as entertainment, where the protagonist of the narrative meets a villain, which promotes the crime of custodial brutality or, to put it another way, makes crime seem less severe or serious to society.

Custodial violence is a common but unreported ailment that is seldom punished. It worsens the anarchy in many areas of the nation. According to a recent study by the National Crime Record Bureau, 591 instances of death in police/judicial custody were documented between 2010 and 2015, with the causes of death listed as suicide, death while hospitalisation, or natural death due to disease. [3]

According to NCRB statistics, between 2016 and 2018, the state reported about 265 fatalities with zero convictions.

[4] Violence is the simplest and cheapest form of inquiry, as well as a weapon for tyranny. Police officers are known for employing third-degree torture methods to get a confession or any information.

This display of ‘instant justice’ by the police, a civil body of state endowed with authority and responsibility to enforce law and order in society on their own, undermines the foundations of social order and justice in our society. This creates the appearance that courts and attorneys are just accessories, and that the authority to administer justice is in the hands of unlicensed vigilantes.

In Joginder Kumar vs. State of Uttar Pradesh[5,] the court examined various methods of police arrest abuse and concluded: “There would be no arrests since it is legal for the police officer to do so. It is one thing to have the ability to arrest someone. The reason for doing so is very different… There must be some reasonable basis in the officer’s judgement that such an arrest is necessary and warranted.”

The concept of incarceration violence
Forms and types:
Section 167 of the CrPC distinguishes between two kinds of custody: police custody and judicial custody. As a result, we may categorise custodial violence into two types:
In police detention, there has been violence.
This kind of violence happens when police torture suspects in order to prolong questioning and uncover the truth. There are few protections in place to guarantee that the individual in custody has prompt access to his counsel, a record of his incarceration, and a thorough medical checkup.

In judicial detention, there has been violence.
This kind of violence is often observed in prisons or detention centers, where it is carried out by prisoner gangs with unlimited authority to execute heinous crimes. Innocent captives are captured by these gangs and assaulted if they do not demonstrate loyalty to them. The victim is pushed to commit suicide as a result of this kind of assault.

Forms of incarceration violence
Psychological
It targets a person’s mental stability and composure by using tactics such as misleading information, threats, humiliation, or denying the victim of water, food, sleep, and toilet.

Physical
It entails inflicting disfigurement and fatigue, as well as torturing the victim to the point that the victim fears immediate death.

Sexual
Sexual assault has a social and psychological effect on the victim’s psyche. It is aimed at the victim’s dignity.

Human Rights and Detention Violence
Human dignity is the greatest kind of basic right, and it is protected even by our Constitution, which is regarded as our country’s most famous law book. Article 21 of the Indian constitution gives a person the right to a dignified life and personal liberty. When a person is taken into custody, he or she becomes the legal property of the state, assuming the guise of legal guardian. All state-run organisations have a responsibility to protect them. This concept has been muddled by the activity known as custodial violence, a characteristic against human rights and dignity that comes forth the twisted urge to do such an act when retribution is practically impossible.

The latest event that rocked the country and incited national anger is the case of P.jeyaraj and J. bennix, father and son residents of Santhakulam in Tuticorin, Tamil Nadu, who were detained and brought into the prison by local police on the charge of operating the store beyond curfew hours.

[6] They were severely assaulted by the police officers and died at the local government hospital. This is an instance of flagrant violation of human rights.

As an arrestee, the Code of Criminal Procedure, 1973, and the Constitution of India, 1950, provide the detained person the following rights:

  1. The right to know the reason for an arrest
  2. The right to appear before a magistrate within 24 hours
  3. The ability to be freed on bail
  4. The right to a fair and expeditious trial
  5. The right to a medical examination before to and after imprisonment.

With the ongoing horrific instances of police brutality and torture in detention, it is clear that India should safeguard police violence. India is one of five nations that have yet to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was adopted in 1987. (UNCAT). [7]

Cases from the United States Supreme Court on the subject

1. The petitioner Rudul Shah was unlawfully imprisoned for 14 years in the case Rudul Shah v. State of Bihar[8], thus a writ of habeas corpus was issued and his immediate release was requested. For the first time, the court recognised that if any state violates a person’s constitutional rights, the individual would be compensated.

 2. The Supreme Court acknowledged custodial violence and police torture in the case of D.K Basu v. State of West Bengal [9], saying     that “custodial violence is an assault on human dignity.” The court also said that despite many recommendations and regulations, instances of torture and fatalities in police custody continue to rise. As a result, the court established a set of 11 rules that every police officer must follow while making an arrest.

Along with that, the court provided the following constitutional and legislative safeguards:

  • Whoever is conducting the questioning or arrest should wear a name tag with their name and designation plainly visible. The officers in charge of the investigation or questioning must be included in a record kept by the police. When a police officer arrests someone, he or
  • she must save an arrest note with all the facts of the arrest, such as the signature of any witnesses, the time, date, and location of the arrest.
  • The accused person’s family or friends must be notified about his arrest and the location where he is being held, and a journal must be kept.
  • All of the arrestee’s major and minor injuries must be documented in the form of an Inspection Memo. It must be signed by both the officer and the arrestee, and the arrestee will get a copy of the inspection note.
  • Every 48 hours, the arrestee should be medically checked, and copies of all papers, including the medical report, inspection note, and arrest memo, should be submitted to the magistrate for their records. A detained individual may also meet with his counsel during questioning.
  • Every district and state headquarters should have a police control room.

3. In Nilabati Behera v. State of Orissa[10], the Court ruled that It was observed that every prisoner and arrestee has the right to enjoy all basic rights, and the police must guarantee that they do not violate the prisoner’s right to life, as stated in article 21. Suman Behera, the petitioner, was detained by police, and the following day her corpse was discovered on a railway track with numerous injuries; she has granted Rs 1.5 lakh in compensation.

Legal frameworks at the national and international levels
Growing instances of abuse of power by public officials are not just unique to the nation but are also prevalent globally. As a result, the international community has been concerned with developing an effective and robust legal framework. The United Nations Convention Against Torture (UNCAT) outlaws torture on a worldwide scale by holding countries responsible.

India became a signatory nearly a decade after the convention was established in 1984, in 1997.

[11] Torture, as defined by the UN General Assembly in 1984, is a deliberate act that causes extreme pain and suffering perpetrated on a person in order to obtain information or a confession.

Custodial torture required particular attention during World War II, thus the UN General Assembly added the Universal Declaration of Human Rights, 1948, article 5 states: No one should be subjected to cruel, inhumane, or degrading treatment or punishment.

The remedies for custodial torture can be approached in two ways. The first is through a legal regime that provides constitutional safeguards through articles 20, 21, and 22 of the Indian Evidence Act (1872), and section 76 of the procedural law, Code of Criminal Procedure (1973), which contains provisions that protect a person in custody’s legal rights. Sections 330, 331, and 348 of the IPC allow for punishment for inflicting bodily harm to a person in detention. The second source of information is court precedents, which the Supreme Court has used on many occasions to examine the criminal justice system. Furthermore, they have reinforced the constitutional and legislative provisions.

It is worth noting that the terms of rape under Section 376 IPC have changed since the Mathura rape case[12], with the addition of Section 376(2), which explicitly refers to rape committed in prison and penalises such an act of crime.

Conclusion
The police are the machinery that protects society from crime and injustice, but when this essential institution, which is required to preserve law and order, fails to do so and breaches the public’s basic rights. Finally, the justice we all want is overturned. In the recent prison death case of P. Jeyaraj and J. Bennix, both victims would be alive today if the magistrate had used his intellect and not acted rashly while granting the remand plea. As a result, the police are just one component of the issue.

Article by Somesh Vaidya

References:

  1. National Campaign Against Torture : Annual report on torture 2019
  2. P. Ramanatha Aiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992) : Wadhwa & Company Nagpur, India
  3. https://ncrb.gov.in/hi
  4. Ibid
  5. Joginder Kumar v. State Of Uttar Pradesh [(1994) 4 SCC 260
  6. Available at: https://theprint.in/opinion/dont-just-question-police-for-custodial-killings-of-jayaraj-bennix-courts-also-responsible/451971/
  7. India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
  8. Rudul Shah v. State of Bihar 1983 AIR 1086, 1983 SCR (3) 508
  9. D.K. Basu v. State of West Bengal, (1997) (1) SCC 416
  10. Smt. Nilabati vs. State of Orissa AIR 1993 SC 1960
  11. Aston J, ‘International Legal Framework In Prohibition Of Torture And Custodial Violence’ [2020] Torture Behind Bars
  12. Tukaram v. State of Maharashtra, (1979) 2 SCC 143
  13. Sh. V.S.K. Kaumudi, et al, Special issue on the occupational stress and mental health issue among uniformed personnel, Vol. 66, no. 3, IPJ, 6, 90 (2019)

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