Let my voice be heard about the statistics of police brutality till date. So
everyone is certainly aware of George Floyd's death due to police brutality. As
a consequence, US is introducing Police Reform Bill against custodial torture &
National Database for Police Misconduct to record their unrighteous as well as
unlawful act against the citizens of US. If we talk about India, you will be
stunned to know the statistics magnifying the custodial violence in the country.
According to National Crime Records Bureau, Custodial Violence has led to 1022
deaths in the year 2006-2016 while the year 2019 alone holds more than 1007
deaths & many more unreported cases so far on account of torture, rape, foul
play, etc. in a custody.
And only 5% policemen have been convicted against their
brutality. We are familiar about custodial death of father-son duo in Tamil Nadu
recently. During these tough times amid covid-19, the horrific incident took
place i.e. the demise of Jayaraj & Bennicks, due to police barbarity as they
were sexually ill-treated in a police custody.
There are acts like Indian Police Act, 1861 (not amended so far) and
several sections of IPC i.e. Section 188 (disobedience to order duly promulgated
by public servant), Section 388 (extortion by threat of accusation), Section 506
(punishment for criminal intimidation). But having such laws benefitted the
justice for victims so far against custodial violence? Moreover, what legal
actions could be taken by the State against the torture by
Senior police officers? These retrospective laws need to be incorporated.
Several amendments will be required in Indian Penal Code, Criminal Procedure
Code and Indian Evidence Act. Indian Police Act, 1861 should have fresh
directions & to be amended mentioning the executive powers & limitations of the
police officers & the punishment or suspension to be held against them if
violated the law.
Introduction to Anti-Torture Bill:
Let me talk about the steps taken or not taken or still taking up against
Custodial violence in India. United Nations Convention Against Torture (UNCAT)
was adopted by United Nation General Assembly in 1984 that aims to prevent
torture, cruelty, inhumane & indignity acts against citizens by police officers.
Since India being the member of UN, signed UNCAT in 1997 but not ratified the
concerned laws yet. For adoption of their laws, Indian Parliament has to enact a
In 2010, Anti-Torture Bill ( a draft law) was passed in Lok Sabha for
protection of human dignity which defines the word 'Torture' comprehensively.
However, the bill is not passed yet by Rajya Sabha. Discussions are still afoot
for the bill to be enacted. Suggestions were made by Rajya Sabha Select
Committee Suggestions in favor of UNCAT such as expansion of definition of the
, severe punishments for torturing women and children, an
individual body or authority to be setup to investigate the matters of Custodial
Violence. In 2017, Law Commission stated that they’re genuinely considering the
bill. But the bill has not ratified as yet.
Now, Time is the only witness when
the bill against custodial violence will come up. Punishment is broadly
prescribed in the bill of the prevention of torture. Indian Parliament should
enact the bill soon that will stand up against Custodial violence.
Some cases of Police Brutality:
- In the case Rudul Sah v. State of Bihar (1983), Rudul Sah was illegally
detained for 14 years. Later the writ was issued, he got released and the
compensation was given to him.
- In the case Saheli Kumar v. Commissioner of Police (1989), A Police
officer along with a landlord, molested the lady tenant & murdered her 9-year
old son. For this, the Supreme Court had awarded the compensation to her.
- In both these cases, the compensation was awarded to the petitioners but
no legal actions were taken against the concerned policemen.
Right to live is considered a fundamental right. But with no dignity,
life is worthless. Human lives is worthwhile when they holds their dignity &
rights & freedoms. Awarding compensation, what justice made to these fellows?
Could they get their years spent imprisoned without any offence back?
Article 22 of Indian Constitution says no person who is arrested shall
be detained in custody without any reason or being informed to other person of
his relation. However, in Joginder Kumar V. State of UP (1994)
, the Senior
Superintendent of Police called the petitioner who was an advocate, for making
enquiries in a case. But later apprehended him without any reasonable
justification. The police exceeded the limitations of powers provided to him &
also violated the fundamental rights of the petitioner by law.
In the case D.K. Basu v. State of West Bengal (1998)
increasing number of Custodial violence & to prevent the powers of arrest, the
guidelines were issued by Supreme Court to be followed by every police officers.
These guidelines are:
- Clear mark of identification of the police officer
- Memo of arrest to be prepared and to be attested by at least one witness
from the family or a respectable person of the locality.
- Any member of the family or any person having interest in detained
person to be informed about the arrest made.
- Time, place of arrest & venue of custody of the detained person must be
notified by the police.
- Person arrested should be informed of his rights.
- Diary entry about the arrest should be made by police officer.
- Body of the arrestee to be examined, if he so requests.
- Medical examination of the arrestee by a trained doctor
- All the documents related to arrest to be sent to Magistrate.
- Arrestee must be allowed to meet his lawyer.
- Police control room to be established in every district. Details of the
arrest to be sent to control room and should be displayed on a conspicuous
notice board of the control room.
Despite having such guidelines & rights to the detenu, the number of cases
of Custodial violence doesn’t stop counting. The arrestee is entitled to consult
a lawyer to defense himself. However, in the case of the father-son duo that
I’ve mentioned earlier, an advocate went to meet them in the police station but
he was denied access.
Recently 13-year old girl was raped & got pregnant by a Police cop in
Odisha. Many detainees are shot dead by encounter killings. Prior to the
prosecution, such accused detainees are declared convicted & have been denied a
fair trial by the police officers. Do they have the powers to decide who the
criminal is? Furthermore, no charge sheet or merely any, has been filed so far
against the concerned officers.
Interpretation of Custodial violence in depth:
Surprisingly, people supports police brutality when it comes to a person
who is alleged of an offence. In the rape case of Dr. Priyanka Reddy, the four
accused were shot dead by encounter. The Police Commissioner encountered the
four accused denying the trial which was even held by fast track courts.
may have prevailed but the rights of the accused were snatched along with their
lives. People around the country supported this encounter proudly. It is all
about the mentality of the public. People holds the thinking that the criminal
deserves the cruelty by police. Nonetheless, public outrage can be seen when an
innocent is being tortured or is arrested for minor offences. But by law,
Everyone is entitled to get the defense & the fair trial, whether he is guilty
Article 21(3) of Indian Constitution states no person accused of any
offence shall be compelled to be a witness against himself. The accused person
is prevented against incriminating himself under duress. The police cannot force
the accused person to confess his offence by torturing him in a custody. The
accused person is entitled to get the defense before the court.
All of us know about Nirbhaya case in which four rapists were hanged to
death this year. Just so you know, Ram Singh who was accused of the rape other
than the four in the same case was found dead in his cell in Tihar Jail. What
happened to him? Who killed him? Who is truly responsible for his demise? Ok,
let it be. But did the people even care of him? No, because he was criminal in
Role of Magistrate:
Now if Prison the Anti-Torture Bill is implemented then what? Look,
adopting the laws alone will not be effective for eliminating Custodial torture.
We need plenty of changes in our society. Even the role of Magistrate is quite
substantial. “Prison restrictions amounting to torture, pressure or infliction,
beyond that awarded by the court must pass the test of scrutiny with reference
to Article 21”; Sheela Barse v. State of Maharashtra
, AIR 1983 SC 378.
As per section 176(1A) of CrPC, every custodial violence must be
investigated by a Judicial Magistrate. But merely any cases of Custodial
violence have been entertained by Judicial Magistrate. No police were arrested
so far against any offences of Custodial violence. At most, some police officers
have been suspended which is a usual response by the State as it is not
effecting the increasing number of Custodial violence.
The absence of evidence
in Custodial violence prevents the victim to get the justice. If any case get
produced before the court, the witness often backs out under threats of the
concerned police in the case. Magistrate shall offer the protection to such
witnesses to give evidence before the Court against police officers.
According to Article 22, every person who is arrested & detained in
custody shall be produced before the Magistrate within 24 hours. Therefore, it
is the role of Magistrate to not only look upon the matters but also the medical
examination of the detainees. When accused is inspected, Magistrate should be
aware that there are no injuries or trails in the body of the accused meted out
by police. Section 167 widely explains the procedure of investigation by
Magistrate even in the cases of preventive detention. Magistrate should be clung
to their duties.
Need for elimination of Custodial violence:
A police force should be divided into law & order. They must be confined to
their powers. They should not act beyond their authority. People at large must
be aware about their rights & limitations of the powers of police. Custodial
violence should not be performed no matter what.
Fake encounters, custodial
torture, conviction without trial, punishment without being heard, detained
without any reasonable justification, misconceptions of the powers of police in
the minds of people, leads to human indignity. Due to this, the importance of
legislation gets eroded. As far as the security of the society is concerned or
in case of preventive detention or if the truth needs to be revealed out in the
offences, the special & effective probe by Special authority must be held for
the matter. Police officials must take every steps with prior permission of the
State in the concerned matters. It is also observed by the Court that the
polygraph/Brain fingerprinting test amounts to torture and it violates right
against self-incrimination. So it should be prohibited unless the consent is
given by the person who is being tested or ordered by the Court.
The Supreme Court delivered a historic order in 2006 on police reforms. It
stated, among other things, that every State should have a Police Complaints
Authority where any citizen can lodge a complaint against policemen for any act
of misdemeanour. However, only a few States such as Kerala, Jharkhand, Haryana,
Punjab and Maharashtra in India have implemented the order. Other states have
not taken the matter seriously.
The Court has to be vigilant to ensure liberty & human dignity of the
detained person. There should be an individual body or authority who would
investigate the cases of Custodial violence & could take legal actions against
such police officers provided that the methods of third degree torture be
avoided by them to ascertain the truth of the accused or the victim.
Have you watched the movie Shahid
? If not, do watch it. There’s a
dialogue in this movie. “If you want to change the system, be the part of it.”
And we, the aspiring law students or lawyers being the part of it, will
certainly going to change it. Till then the concern is what provisions will be
introducing to eradicate the Custodial violence in the upcoming cases.