is virtually a world-wide phenomenon
inflicted upon individuals regardless of sex, age or state of health. This worst
form of human rights violation has become a very serious and alarming problem in
Third World countries like India. Brutal atrocities perpetuated by the police,
jail authorities, armed forces and other law enforcing agencies on the
suspects/accused persons and prisoners are menacingly on the increase day by
Hardly a week passes without an incident of custodial torture or custody
death being reported in the press. Custodial torture is not confined to violent
people like saboteurs, terrorists, dacoits and other hardened criminals as
certain police officials would like to make out (even if they are hardened
criminals, do the police have right to take it upon themselves to inflict brutal
punishment assuming the role of judiciary?
Custodial torment has become so
regular nowadays that not just the police what's more, administration yet even
the individuals underestimate it as a normal police practice of cross
examination. The outcome is that the updates on such ludicrous lead cause just a
fleeting stun in the general public. When something ghastly happens, there is
open turmoil. At exactly that point the administration pays heed to the
custodial torment as the open objection leaves them with no other choice.
things considered the blameworthy cops ordinarily endure, best case scenario the
discipline of brief suspension. Once the occurrence blurs from the memory of
general society, they are again back in the administration.
Custodial Torture incidents are frequently hit the headlines and expose the
man in uniform by putting them to severe public criticism. Despite various legal
provisions as laid down in the State Police Manuals, which puts a restrictions
on police officers not to indulge in activities which are deemed as abuse of
powers and which violates the human rights, but many of the police officers have
no reverence of such laws as because they think that they could easily get away
with custodial violence, as it will be very difficult to prove such acts against
According to Amnesty Report in India
, about 415 persons died in the
custody of police and security forces, due to torture between 1st January 1985
and 1st Nov 1991. Explaining the cases of custody death, the same report pointed
out that not more than 42 magisterial enquiries were conducted, judicial
enquiries were conducted in 20 cases; criminal charges were framed in 52 cases;
police officers were arrested in 25 cases and only in 3 cases the guilty
officers were known to have been convicted by the court.
The occurrence of custodial deaths has raised concern of every citizen in India
and has shaken the democracy. The International Authorities also put substantive
pressure on the National Governments to observe the Human Rights in letter and
spirit and give it the highest importance above all. Jerome H. Skolnick
posed some basic questions on the police for preservation of democratic order
and the rule of Law.
- For what social purpose do police exist?
- What values do the police preserve in a democratic society? Are the
police to be principally an agency of social control with their Chief value
the efficient enforcement of the prohibitive norms of substantive Criminal
- Or the police to be an institution fall under the hegemony of legal
system, with the basic commitment to the rule of law, even if this
obligation may result in a reduction of social order?
- How does this dilemma of democratic society hamper the capacity of the
- Institutionally and individually to respond to legal standard of law
Only secondary data is used for the study of this paper, various books,
websites, journals, e-reports and data and materials available online,
repositories are used and assimilated and due reference and acknowledgement also
given in the last part of this article containing the reference list and the
contents of the materials as availed are duly analysed to prepare this article
and in order to categorically explain the research objectives and finally
reaching the conclusion.
Research Problem & Scope Of Study
The Major research problem and scope of the study involved in this topic are:
- How the police resort to violence on a criminal during interrogation
while keeping him under his custody and how it violates the human right?
- Why the police use third degree on a criminal?
- What are the laws which protect the rights of a person who is under
- Use of third degree method by police causing the death of the accused, a
gross violation of human right.
- How to check this menace of custodial death and protect the human right
of the suspected criminal person and accused?
Use Of Third Degree Method By Police
Third degree means a kind of torture and violence both mental and physical used
by the police man against the criminal in order to extract information /
confession from them during interrogation. Though it is fact that all confession
made to a police officer are inadmissible as evidence before the court of law,
except under certain circumstances and to certain extent it is admissible.
Police support the concept of custodial torture by the use of third degree on
the below mentioned grounds:
- Professional Criminals understand the Language of third degree only in
order to tell the truth.
- It is not an offence to use third degree method on hardened criminals,
rapist and terrorists.
- In order to prove the guilt of the accused before the Court of law, it
is essential to reveal the truth from the mouth of the culprit; hence the
use of violence in the form of third degree is very much essential.
- This acts as a preventive measure to control the crime and to instil fear
in the mind of the criminals for which they will desist from committing the
of a human being by a person under authority is essentially an
instrument to impose the will of the Strong
over the week
Torture is a wound in the soul of painful that sometimes you can almost touch
it, but it is also so intangible that there is no way to heal it. Torture is
anguish squeezing in you, chest cold as ice and heavy, as a stone paralysing as
steep and dark as the abyss. Torture is despair and fear and rage and hate. It
is a desire to kill and destroy including yourself -- Adraina P. Bartow
and abuse of police power is not only a problem of India
but is a global menace. The Universal Declaration of Human Rights 1948,
Article-5 stipulates that:
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment
Despite of such pious declaration, custodial violence still continues unabated
though every civilized nation shows its concern and takes step for its
In Jogendra Kumar Vs. State of Uttar Pradesh
, the Hon'ble Supreme Court of
India has held that, Custodial Torture is one of the brutal form of human
rights violation. The Constitution of India, The Supreme Court of India, The
National Human Rights Commission of India (NHRC) and the United Nations forbid
it. But the police all over the India Openly defy it. Therefore, there is a need
to strike a balance between the individual human rights and societal interest in
combating the crime by using a realistic approach.
According to the Asian Centre of Human Rights, in India, there are at least 4
custodial deaths per day from 2002-2007. Amnesty International in its report
of 2017-18, stated that the count of the death in judicial custody for the
said year accounted to 894 and deaths in police custody accounted to 74.
According to the report, Uma Bharti accepted that she ordered the police to
torture the rape suspects when she was the chief minister of Madhya Pradesh.
This can be seen as a reflection of the loophole in the definition of torture
under the UN Convention against torture because it allows torture by state
authorities when it is lawful and allowed by the state.
In India, an attempt was made to gather information on the cases of police's
violation of human rights of prisoners by the National Crime Record Bureau
and NHRC. The NCRB's crime in India Report 2008, showed that during 2008, 253
cases were reported throughout the country of Human Rights violation by police.
Even after this huge number of incidents was reported against the policemen, no
inquiry was done against them and they were not charged with it. The violations
included Illegal Detention
, Torture, Fake encounters etc. It was also reported
that only 14 policemen were charge-sheeted out of a big number of 253 cases and
only 8 policemen were convicted.
For effective enforcement of these fundamental rights, Hon'ble Court issued the
following guidelines: That in case of arrest of a person, the police officer
shall inform the arrested person that the grounds of his arrest as a matter of
right and also to inform any one of the known person of the arrested. And an
entry shall be required to be made in the diary as to who was being informed of
such arrest. It was further directed that, it shall be the duty of the
Magistrate, before whom the arrested person is produced, to satisfy himself that
these requirements have been complied with.
In another case the CBI Court has held that:
The two serving police personnel as accused for murder in a custodial death case
and awarded death sentence to both the police person, in a custodial torture
case while doing interrogation of the suspect leading to his death.
The CBI Court in the case noted the same as: This is a brutal and dastardly
murder by accused (number) one and two, The acts of the accused persons would
definitely adversely affect the very institution of the police department, If
the faith of the people in the institution is lost, than it will affect the law
and order, and it is a very dangerous situation.
Constitutional Protection Against Violation Of Human Rights
It has been held in a catena of judgements that just because a person is in
police custody or detained or under arrest, does not deprive of him of his basic
fundamental rights and its violation empowers the person to move the Supreme
Court under Article 32 of the Constitution of India.
Article 20 of the Constitution of India:
Article 20 primarily gives a person the rights against conviction of offences.
No one shall be punished except for violation of a law in force at the time of
commission of the offence . Article 20 also protects against double jeopardy
that means no one shall be punished twice for the same offence. This Article
most importantly protects a person from self-incrimination. The police subject a
person to brutal and continuous torture to make him confess to a crime
even if he has not committed the same.
Article 21 of the Constitution of India:
This article has been understood in the Indian judiciary to protect the right to
be free from torture. This view is held because the right to life is more than a
simple right to live an animalistic existence. The expression "life or personal
liberty" in Article 21 includes a guarantee against torture and assault even by
the State and its functionaries to a person who is taken in custody and no
sovereign immunity can be pleaded against the liability of the State arising due
to such criminal use of force over the captive person.
Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction.
These include being informed of the grounds of arrest, to be defended by a legal
practitioner of his choice, preventive detention laws and production before the
nearest Magistrate within 24 hours of arrest of the person. Thus, these
provisions are designed to ensure that a person is not subjected to any
ill-treatment that is devoid of statutory backing or surpasses prescribed
Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession made to police officer cannot be proved as against a person accused
of any offence (Sec. 25 Evidence Act) and confession caused by threats from a
person in authority in order to avoid any evil of a temporal nature would be
irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus,
even though custodial torture is not expressly prohibited by law in India, the
evidence collected by illegal means, including torture is not accepted in
Code of Criminal Procedure, 1973:
Sec. 49 of the Code protect from unnecessary restraint. Sec. 50-56 are in
consonance with Article 22 of the Constitution of India. According to it, when
an allegation of ill-treatment is made by a person in custody, the Magistrate is
then and there required to examine his body and shall place on record the result
of his examination and reasons therefore It gives them the right to bring to the
Court's notice any torture or assault they may have been subjected to and have
themselves examined by a medical practitioner on their own request A
compensatory mechanism has also been used by courts. When the Magistrate does
not follow procedure with respect to entertaining complaint of custodial
torture, it calls for interference by the High Court under Sec. 482 of the Code.
Another significant provision with respect to custodial torture leading to
deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take
place on death of an accused caused in police custody. Sections 167 and 309 of
the Code have the object of bringing the accused persons before the court and so
safeguard their rights and interests as the detention is under their
Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of
police officers who are negligent in the discharge of their duties or unfit to
perform the same.
India should ratify the UN Convention against Torture. Police reformation
and guidelines should also be formulated on educating and training officials and
they should be imbibed high qualities to respect the human rights of the
detainees. Unrestricted and regular access to independent and qualified persons
to places of detention for inspection should also be allowed.
CCTV cameras should be installed in each and every police stations and lock ups
and jails to keep close surveillance of the interrogation proceedings.
members should be allowed to make surprise visits to the jails and detention centres and lock ups to check the health of the detainees and also to protect
his human rights , prevent custodial torture and violence.
Law Commission of India's 273rd Report for implementation of United Nations
Convention against Torture : The report recommends that those accused of
committing custodial torture – be it policemen, military and paramilitary
personnel – should be criminally prosecuted instead of facing mere
administrative action establishing an effective preventive measure against
custodial violence and death. Every case of custodial death should be enquired
on the spot by highly experienced and specialized Judicial officers not below
the rank of District and Session Judge. Continuous monitoring of police activity
relating to detention and torture of suspects and detainees be made by judicial
- Amnesty International, India Torture , Rape and Death in Custody 101,
- Skolnick Jerome H Justice without trial; Law enforcement in a
- Jogendra Kumar Versus State of Uttar Pradesh (1994) (4) SCC(260).
- Vibha Sharma, '7,468 custodial deaths in 5 years: Human Rights' (Tribune
India, 27 June 2008) accessed 27 March 2019.
- Amnesty International Report 2017/18 'The State of the Worlds Human
Rights' accessed 28 March 2019
- R.N. Mangoli and Ganapati Tarase, 'A Study of Human Rights Violation by
Police in India' (2010) 3 International Journal of Criminology and
Sociological Theory < https://ijcst.journals.yorku.ca/index.php/ijcst/article/view/31097/28530
> accessed 6 April 2019.
- Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4)
- J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF
2007 (K) AND CRL. R.P.2902 OF 2007.
- D.K.Basu v. State of W.B, (1997) 1 SCC 416)