Constitutional laws in India

Prisoners- The Castaways of Society

Written by: Spiti Sarkar - Student of 4th Year Law, Symbiosis Law College
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  • Rousseaus warning Man is free, but is everywhere in chains, has predictably metamorphosed into reality. A flood of Human Rights instruments i.e. the United Nations with a grandiose charter, encapsulating a plethora of mandates , - the result being, untrammeled Human Right violations.

    Nationally, the negation of human rights values is an hourly phenomenon, the prison praxis being perfect models for meting out the third-degree treatment to Prisoners. One is compelled to question Are they really Unpeople?
    Oscar Wilde in The Ballad of Reading Gaol aptly observed:
    I know not whether laws be right,
    Or whether laws be wrong;
    All that we know who lie in gaol
    Is that the wall is strong;
    And that each day is like a year,
    A year whose days are long.

    Much about the moral fiber of a society can be learned from the way it deals with crime. It is not enough to treat criminals with as much compassion as we can, especially when this liberal spirit is carried to the excess of interfering with crime prevention as the courts have done.

    The measure of a society's stability depends upon the stalwartness, autonomy, and integrity of the police hierarchy. Ironically the law- enforcement mechanism has become the worst perpetrator of crime. The problem of custodial violence has, needless to mention, assumed dire proportions. The police force has thus gained notoriety as the single largest violator of human rights.2

    Custodial violence and torture in particular have largely undermined the credibility of the police as a law enforcement agency. Torture is all-pervasive in the police hierarchy primarily because the police feel themselves to be immune from any form of accountability.

    The Indian Scenario: Shifting Sands?
    The police machinery continue to employ regressional methods in the form of beating, denial of food, water, sleep, electric shock treatment, etc. The victims suffer mutilation or paralysis and are physically as well as mentally maimed. The plight of the lot is, - a slow and painful death.

    Police and Police Custody

    If law represents the collective conscience of society, the policemen, its principle law enforcement agent ought to be the staunchest protagonist, defender and keeper of that conscience. The police came into existence in society as the repository of the security and penal functions of the state. The term Police derived from its Latin counterpart, Political literally stands for the condition of a Polis or a State. It further connotes a system of administration or regulation, although in modern times, the usage is confined to indicate an organized body of civil officers in a place, whose particular duties are threefold (a) preservation of good order, (b) the prevention and detection of crime (c) law- enforcement.3

    The term Police poses definitional problems elsewhere but not in India. Police indicates That force empowered or operates under the Police Act of 1861 or under any enactment by the Indian Legislature. The duties of policemen in India have been defined in Sections 22,23,25,30,30A and 31of the Police Act, 1861.

    Violations of Prisoners rights assume dire proportions in custody. The trauma is equally resonant whether in Police or Judicial Custody. The Supreme Court in Nareshs4 case observed Clearly then, it is immaterial whether or not the custodial crime occurs within the premises of a police station or chowki. What matters is the control of police over the victims. Police custody thus means the placement of the victim with the police during any action.

    The Dynamism of the Apex Court

    Perusing landmark judgments in custodial jurisprudence as in Sunil Batra 5, Francis Coralie Mulin6, Rudal Shah,7
    the entire journey has been painstakingly etched to the extent that the Supreme Court in Saheli vs. Commissioner of Police8, held,
    The State is vicariously liable for tortuous acts by its servants in course of employment and the doctrine of sovereign immunity is inapplicable in cases of public wrong. In the concerned case, compensation to the tune of Rs. 75000 was awarded to the mother of a nine year old who died in police custody.

    In Nilabati Behera vs. State of Orrisa 9, the Court opined, It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law which can be imposed on the enjoyment of fundamental rights by such persons.|

    The Apex Courts activism though laudatory, has not helped effectuate much change. The scourges of custodial deaths continue unabated. The police forces have, instead of preserving the law and order situation, created a law and order situation.


    Resorting to brutality and third-degree methods are a fairly commonplace occurrence. No violation of any one of the Human Rights has been the subject of so many Conventions and Declarations as Torture. The matter subsumes utmost importance, as one of the primary causatives for the occurrence of custodial deaths is the infliction of mindless torture.

    Statistical averments reflect that while prisoners are susceptible to torture and negligence while in judicial custody, i.e. on conviction, the incidences of the same are even higher while in police custody, i.e.for completion of investigation, interrogation and the like. Under-trial prisoners (UTPs) thus are a despised, neglected lot, often dying painful deaths. The above distinction between Police and Judicial custody merits careful consideration.

    The impediment is to grapple with the time- lag between de-facto and de-jure arrest .i.e Police and Judicial custody.

    A perusal of D.K Basu vs. State of West Bengal,10 serves to amplify that the guidelines envisaged in the aforesaid case can be effectuated only as after de-jure or formal arrest.

    In Joginder Kumar 11, the Court ruled, No arrest can be made because it is lawful to do so. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuiness and bona- fides of a competent and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest.

    The Committee of Ministers of the Council of Europe echoing the above observations, noted, Custody pending trial should be ordered only if there is a reasonable suspicion that the accused has committed the alleged offence, and that he is likely to abscond, interfere with the course of justice or even commit a serious offence.

    The above observations are congruous to the prevention of abuse of authority. The police must act in conformity with the abovementioned observations; ensure that procedural irregularities, such as refusal or failure to register a F.I.R or arbitrary arrests, do not resurge.

    In D.K Basu12, the Supreme Court held, Custodial torture is a naked violation of human dignity and degradation, which destroys to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward. In all custodial crimes, what is of real concern is not only the infliction of body pain but the mental agony which a person undergoes within the police station. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.

    Torture from a Human Rights Perspective

    Torture is an aggravated form of cruel, inhuman and degrading treatment. The most authoritative definition of torture in international human rights law is encapsulated in Article 1 of the United Nations Convention Against Torture of 1984.13

    The important components of the definition are: -14 There is necessarily involved an element of purposive ness Pain and suffering must be severe It may be either physical or mental The act must be intentional It must involve direct or indirect participation of public officials.

    The element of mental suffering entered into the international standard for the first time with this definition. It must thus be noted that torture essentially contains a purposive element. Prohibition of Torture -A Non- Derogable Right

    Article 4 of the International Covenant on Civil and Political Rights15 is interpreted to mean, There may be no derogation from certain of its provisions including Article 7, which prohibits Torture and Cruel, Inhuman or Degrading Treatment or Punishment.

    Building upon the provision, Article 2(2) of the United Nations Convention against Torture stipulates16 No exceptional circumstances whatsoever whether a state of war or a threat of war, internal political stability or other public emergency may be invoked as a justification for torture and other cruel, inhuman or degrading treatment or punishment.

    Torture assumes the most grueling form, Ex: Application of electricity to elicit information or force a confession. It, is thus, reiterated that the element of purposive ness becomes all- pervasive. It is pertinent to note that Article1 (1) of the Convention Against Torture clearly stipulates that, torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    The Convention Against Torture And Other Cruel, Inhuman, Degrading Treatment Or Punishment, 1984

    The international community accorded its commitment to mitigation of torture and other forms of cruel, inhuman and degrading treatment and punishment by adopting the Declaration17 in 1975, which attained legal sanction by way of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

    The Convention merits close consideration, predominantly because India is not amongst the 123 countries ratifying the Convention. The lackadaisical approach of the Indian Government warrants a drastic change.

    Salient Features of the Convention
    The novelty of the Convention is that it provides for a Rapporteur on Torture endowed with substantial expertise. The Rapporteur acts in individual cases and reports to the Commission on the Action Initiated with regard to instances of torture.

    A Committee against Torture consisting of 10 experts of high moral standing and recognized competence in the field of human rights has been entrusted to receive reports from State Parties concerning effect given to their undertakings under the Convention. The Convention further provides that the State Parties will outlaw torture in their national legislation.

    There are specifications for the Torturer to be prosecuted in the territory of any State Party, wherever found. The Convention to reiterate the above specifies that persons alleged to have committed torture may be tried in any state party or be extradited for trial in any State Party where they have committed crimes.
    Further, no order from a superior, except under exceptional circumstances may be invoked as a justification for torture and other cruel, inhuman or degrading treatment or punishment.

    The provision for an international enquiry, if there is reliable information indicating that torture is systematically perpetrated in the territory of a State Party, heightens accountability and implementation.

    Non-ratification of the Convention has whittled down Indias commitments towards the Constitutional mandate and observance of human rights at the global arena. Further, the presence of a Rapporteur to ensure greater transparency and accountability has been underestimated.

    Concluding Observations
    The laws are in place in the form of Constitutional safeguards, vide Articles 20(3), 21,22(1). The Evidence Act renders, inadmissible a confession made before a Police officer. The Criminal Procedure Code lays down the requisites pertaining to Arrest, Search and Seizure. The Indian Police Act of 1861, under which the entire police organization derives its legitimacy, prohibits unwarranted personal violence by police officers.

    The police do function under various legal impediments and the impact can be felt at the subordinate levels, where confessions are to be extracted. Section 23 of the Police Act for instance, clearly stipulates that a police officer requires promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority. This allows the influx of political considerations, which mar the effectiveness of the police forces.

    Policing The Police

    The National Human Rights Commission has undertaken a laudatory role by providing for immediate interim relief to the next of kin of the deceased under Section 18(3) of the Protection Of Human Rights Act, 1993. The Commission has propelled to the forefront the cause of prisoners rights ravaged by public servants and in turn built up a favorable climate for the observance of human rights in the country.

    The buzzword is Policing the Police. The policing has to be done by the higher-ups in the police- hierarchy. Alternatively, a Vigilance Commissioner other Ombudsman should be instructed to blow the whistle whenever police delinquency or criminality is brought to its notice. There, thus, arises a need for an organization to guard the guards. Democracy is stable only if the police are conscientised, trained and treated as state functionaries to maintain peace by legal means.19

    Endnotes and References
    End Notes:
    1. Abhishek M. Singhvi, State Accounatbilty For Torture and Custodial Crimes, in K.P Saxsena Human Rights and The Constitution- Vision and Reality, Gyan Publishing House, Delhi, 2003 at p.106
    2 Chaman Lal, Protection of Right to Life and Personal Liberty (Article 21) and Law Enforcement, in K.P Saxsena Human Rights and The Constitution- Vision and Reality, Gyan Publishing House, Delhi, 2003 at p.130.
    3 B.N Malik, Police Through the Ages, in The Indian Police Journal- Centenary Issue, 1861-1961 at p.7
    4 SCJ 131 ARI 1990
    5 (1980) 3 SCC 488
    6 AIR 1981 SC 746
    7 (1983) 4 SCC 141
    8 AIR 1990 SC 573
    9 (1993) 2 SCC 746
    10 (1997) 1 SCC 417
    11 (1994) 4 SCC 260
    12 Supra Footnote 10
    13 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force on 26th June 1987.
    14 Andrew Mc Entee, Law and Torture, in Duncan Forest A Glimpse of Hell - Reports on Torture Worldwide, Amnesty International, United Kingdom, Cassell, 1996 at p. 3
    17 U.N General Assembly Resolution No. 3542 (XXX) of 9th Dec, 1975
    18 Dr H.M Syed, Rights Of Prisoners, in Human Rights: The New Era, Kilaso Books, 2003, p. 215
    19 Justice V.R Krishna Iyer, The Police, Human Rights: Off The Bench, Universal Publishing Co. Pvt Ltd, 2004,p.195

    The author can be reached at: [email protected]

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