Torture of suspects in police custody is a common thing to be heard of. But now the incidence of torture and deaths in police custody have increased to an alarming extent. In the month of June 2020, Jayaraj and Bennix, a father- son duo were arrested by the police in the State of Tamil Nadu and after immense torture in police custody they succumbed to their injuries and died. This caused immense outrage across the nation and demand for taking strict action against the police officers in order to provide justice to the victims increased.
Powers are granted to the police officers in order to enable them to enforce the law and protect the people against the anti- social elements. But in the lust of their power and the desire to solve a case at the earliest makes them use their power arbitrarily and illegally.
TYPES OF CUSTODIAL VIOLENCE
This kind of violence is done to break the confidence and morale of the victim. The victim is often given wrong information and is tortured mentally. The victim is compelled to perform activities or to witness actions that torture him mentally. He is often deprived of basic needs like water, food, sleep and sanitation facilities. Threats and humiliations are directed towards him or his family members or friends.
The victim is tortured to such an extent that he feels the fear of immediate death. They are often beaten violently or made to lie on ice slabs and such other methods are used to inflict pain on them. Irritants like chilli powder, table salt, etc. are applied on delicate parts on open wounds. Such kind of body torture is inflicted upon the victim in order to make him confess to the crime. Even if he has not done it he would be compelled to confess since the physical torture would be too much to bear.
Sexual violence has great social and psychological impact on the mind of the victim. It may commence with verbal abuse, targeting victim’s dignity and may result into rape and sodomy.
CONSTITUTIONAL PROTECTION TO PEOPLE IN POLICE CUSTODY
Article 22- Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
PROVISIONS IN CRIMINAL PROCEDURE CODE
Section 49- No unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
Section 57- Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.
Section 163- No inducement to be offered.
(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872.
(2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub- section shall affect the provisions of sub- section (4) of section 164.
Section 164 (4)– Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-” I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
Article 21 has been recognised as the edifice of the basic human existence. Custodial torture and death is a grave violation of Article 21 and it has been recognised by the courts in many cases.
In A.D.M. Jabalpur Vs. Shivakant Shukla, Justice H.R. Khanna rightly observed, “sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilised existence. Likewise, the principle that no one shall be deprived of his life and liberty arbitrarily without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty which existed and was in force before the coming into force of the Constitution.”
In Kharak Singh Vs. State of Uttar Pradesh, the Supreme Court expanded the connotation of the term ‘life’ and said “Iife is something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, of the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world” .
In Maneka Gandhi vs. Union of India, Justice P. N. Bhagawati. opined that “the fundamental right of life and personal liberty has many attributes and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19”. It was also held that the procedure contemplated under Article 21 is a just and fair procedure, not an arbitrary or oppressive procedures. The procedure which is reasonable and fair must now be in conformity with the rest of Article 14. In other words, the Supreme Court while considering the ambit of Article 21 in a number of cases established that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the requirements of that Article. Further any procedure contemplated by State to curtail ‘life and personal liberty’ of an individual should meet the requirement of Article 14.
In an another case of Sunil Batra v. Delhi Administration, the Supreme Court held that: “the Prison administration will be liable in a case where the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment.”
In case of Khatri vs. State of Bihar, the Supreme Court in a public Interest litigation ordered to investigate and punish the guilty Police officers who barbarically blinded about 30 prisoners by piercing their eyes with needles and pouring acid into their eyes. Further, Supreme Court condemned this barbaric torture as violative of Article 21 and awarded compensation to the victims.
In Prem Shankar Shukla v. Delhi Administration, a letter was sent by an under trial prisoners to the Supreme court to highlight the ill treatment meted out to the prisoners in the prisons of Delhi. An under trial prisoner was handcuffed and chained, he sent a telegram to the court which was treated as writ petition. The Supreme Court specifically referred Article 5 of Universal Declaration of Human Rights and Article 10 of the Covenant on Civil and Political Rights and held that handcuffing an under- trial is impermissible and is deemed to be a custodial torture and is violative of Article 21. The court examined the relevant Act, Rules and Standing orders and held that:
“Handcuffing is prima facie inhuman and therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absence of fair procedure of fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Article. 21. Thus, we must critically examine the justification offered by the State for this mode to restraint. Surely, the competing claims for securing the prisoner and protecting him personally from barbarity have to be harmonized. To prevent the escape of an undertrial is in public interest, reasonable, just and cannot, be itself, be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and fool the soul of our constitutional culture. Where then do we draw the human line and how far do the rules err in print and practice?”
In Nilabati Behra v. State of Orissa a 20 year old boy was arrested by the Orissa police for the investigation related to the offence of theft. The very next day the dead body of the boy was found lying on the railway tracks. The lacerations on his body indicated an unnatural death. The mother of the deceased sent a letter to the Supreme Court stating that her son died after being inflicted with severe injuries in the police custody.
In the instant case the court observed that prisoners and detainees are not deprived of their fundamental rights under Article 21 and that is only such restrictions as a permitted by law which can be imposed on the enjoyment of the fundamental rights of the recipes and detainees. It was further observed that “there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to procedure established by law.”
In this case Court awarded a sum of Rs. 1.5 lakhs to the mother as her son had died in police custody. The Court also referred to Article 9(5) of the International Covenant on Civil and Political Rights, which provides that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
GUIDELINES LAID DOWN IN D.K. BASU v. STATE OF WEST BENGAL
The development of custodial jurisprudence was initiated by the Supreme Court in case of D.K. Basu v. State of West Bengal 1997. The case came up before the court through a writ petition under Article 32 of the Constitution filed by an NGO. In this case the Chief Justice of India’s attention was drawn to a news published in The Telegraph regarding deaths in police lockup and in jail in the state of West Bengal. Petition requested the court to examine the custodial deaths and to develop custodial jurisprudence.
The Supreme Court issued the following guidelines to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
The court stated that the above requirements flow from Article 21 and Article 22 (1) of the constitution and need to be strictly followed.
Over the years the Supreme Court has enlarged the scope and protection of the fundamental human rights. The public interest litigation plays an important role towards increasing the access of people to the courts. It has also helped the court to address violations of fundamental human rights in India and to give suitable relief. It has also awarded compensation to the victims of violence in police custody. Since India is a welfare state the State must strive to establish just relations between the rights of the individual and responsibilities of the State. It is suggested that apart from monetary compensation, the Supreme court should give equal priority to punishing the guilty police officers in order to give out a clear message that the arbitrary use of powers would not go unchecked. The compensation should be punitive and exemplary and not nominal.