The term custodial violence refers to any torture or violence inflicted upon people who are under police custody, judicial custody or under military custody. The problem of custodial violence is not something which has emanated during the current times. This malaise has affected the human society historically too. The British raj which governed India also tried to curb it. They did so by enacting legislations which penalised acts of custodial excesses. The examples of such legislations are- Section 76 of the CrPC and Section 29 of the Police Act 1861.

There are many such legislations that have been enacted to curb custodial violence, nevertheless the legislations do not seem to ameliorate the problem. Custodial torture has become a common occurrence these days. The reports of the NCRB is a proof of this contention. Police officials are generally the people that are frequently caught perpetrating this torture. The victims of the violence generally come from the lower strata of the society. They are generally tribals, people from schedule caste and people from economically weaker sections of society.

The reports of such incidents generally stir up a huge outcry among the people from the civil society or the people who come from the privileged sections of the country. To placate these emotions the officials involved in these activities are briefly suspended and once the memory of the incident fades away those officials again come back in the service.

What Constitutes Custodial Violence

Violence or torture can be assumed to mean intensely hurting someone physically or mentally. When this torture or violence is intended to coax someone to do or say something against his/her will it becomes custodial violence. The victim of this torture generally breaks down and in order to stop the assault and pain admits to whatever crime the assaulter is telling him to accept. The accused is detained at a very remote place out of the reach of family members, friends, acquaintances and any legal assistance. Such activities are not owned up by the perpetrators. They term it as interrogation or sustained interrogation.

The practice of torturing a person and then coaxing him to admit to a wrongdoing is not a new phenomenon. This practice had been a standard operating protocol till the second world war. Instances of such torture have been made public as far as in the Vietnam war. After the adoption of the Universal Declaration of Human Rights (which envisages to prohibit the instances of torture and other inhuman brutalisation) these crimes became a matter of international concern.

The UN General Assembly adopted a convention against torture only in 1984. The convention contains a definition of the term torture. The convention says that any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in the official capacity. It does not include pain or suffering arising only from inherent in or incidental to lawful sanctions. The definition that the convention offers has a very wide purview (evident from the language of the convention).

India has only signed the convention and not yet ratified it therefore it does not have a coercive force on India. This convention is as good as nothing in India. India in itself does not have a torture restricting law and is yet to criminalise custodial violence. So, in conclusion with respect to India, the incidents of custodial violence cannot be termed as custodial violence because it does not have a legal grounding.

The Rights Of Accused Individuals

The prisoners of India or the people languishing in jails in India do possess some rights. These are fundamental and cannot be violated owing to their nature. The fundamental rights that the constitution of India envisages to grant to all people are available to these prisoners too. These rights are specified under articles 19, 20, 21, 22, 32 and 226 of the Indian constitution.

The preceding discussion talks about the constitutional rights that the prisoners possess. They also possess some other legal rights under the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act 1861. The Indian Supreme court has helped a lot in expanding the scope of these right by giving them liberal interpretations through judicial activism.

Some of the rights are:

1. Right to Life:
   The right to life has been described by the Supreme Court as the heart of all the human rights that are available to everybody. This basic right is granted to prisoners or accused people. The right envisages that no person shall be deprived of life and liberty except in the case of procedure established by law. This right has been provided to every citizen which includes the prisoners as well. This right can be enforced against the state which includes law enforcement agencies like the police force.
    
2. Right against self-incrimination:
   The acts of custodial torture or custodial violence are premised upon making the accused accept that he had committed a wrongdoing. The perpetrators of these acts generally employ all the necessary means at his/her disposal to make the accused accept the wrongdoing. The accused has the right to refuse to answer all self-incriminatory statements. The presumption of innocence is a right that that is the basis of Indian Jurisprudence. This essential right is provided to persons that are accused under the Indian Evidence Act 1872.
    
3. Right to be informed of the grounds of the arrest:
   This right is also guranteed to accused persons under the International Covenant on Civil and Political Rights. Under the Indian system which is governed by the Indian Constitution the persons that are arrested (the existence of a warrant is immaterial) possess the right to be informed about the reasons of his/her arrest and the official authority who is performing the arrest is bound by law to inform the person whom he is arresting about the reasons of his/her arrest. The article 22(1) of the Indian Constitution explicitly states that No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest.
    
4. Right to consult a legal practitioner:
   The right is enshrined in Article 22(1) of the constitution. It states:
   No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice.
   
   The protection that this right provides starts as soon as the accused is taken into custody for the purpose of furthering the investigation in relation to his/her case. In the case of Nandini Satpati v PL Dani the Supreme Court extended the ambit of this right. The court held that during the course of interrogation under the police custody the accused has the right to have his lawyer by his side.

The Role Of Law Enforcement Agency In Perpetrating Custodial Violence

The basic duty of any police force in a country is to enforce the law of the land and nab the wrongdoers. This duty demands that the police force has the liberty to use force under certain circumstances. This liberty is inalienable to the job of a policeman and can hardly be contested. Just think about a scenario where the police while controlling a robbery situation tries to have a dialogue in order to convince them to put an end to the robbery instead of using lathis or guns. The whole edifice of a peaceful or safe society will come down crashing. Thus, having the liberty to use force when required is essential to the job of being a policeman.

The liberty that has been granted to the police so that they could tackle the requirements of their profession shouldn’t be confused with brutality. They have the liberty to use violence when the situation becomes grave and not otherwise. Such acts are a blot on the democratic system that India prides itself of.

The cases where police have employed excessive use of force and brutality are numerous. The NCRB data regarding the arrests of police personnel in cases of custodial deaths are available only from 2017. During this period of time only 144 cases have been registered while 255 deaths were recorded. 84 police personnel have been arrested and 56 have been charge-sheeted since 2017. A total of 1004 of custodial deaths have taken place during the past decade and only four police personnel have been convicted.

According to the national crime records bureau data between 2001 and 2018, only 26 policemen have been convicted of custodial violence in spite of 1727 deaths being recorded. 70 deaths in 2018 have been reported of custodial violence, of which only 4.3% were attributed to injuries during custody due to physical assault by the police.

The data that has been discussed in the previous paragraph paints a grim picture of the situation of the custodial deaths in India. The reasons of such abysmal records can be the absence of a strong legislation which restricts the occurrence of such events. The structure of the police system in India is also a problem. The whole of the prison system reeks of opaqueness and a vibe of anti-transparency. Access to prisons is not provided without prior permission, India is also unable to push for more prison reforms which means that prisons remain affected by poor conditions, overcrowding, acute manpower shortages and other such inefficiencies.

Not following the International Standards against custodial torture is also one of the reasons that can be attributed to the abysmal records that India has related to custodial violence. India is a signatory of the United Nations Convention against Torture in 1997 but still hasn’t ratified the it yet.

Suggestions

1. India should ratify the UN convention against torture. This will make the Indian government liable to enact laws punishing acts of custodial violence.
2. India should push for police as well as prison reforms so that the prison system that is plagued by opaqueness achieves some transparency.
3. India should implement the 273rd report of the Law Commission of India that advocates for criminally prosecuting people accused of custodial torture like- policemen, military or the paramilitary personnel.

References:

1. Saini R.S., Custodial Torture In Law And Practice With Reference To India, Journal of Indian Law Institute, 36 pg. 166-192.
2. Raja Bagga, Existing data on custodial deaths in India fails to give a full picture, Scroll.in https://scroll.in/article/978919/existing-data-on-custodial-deaths-in-india-fails-to-give-a-full-picture#:~:text=NCRB%20data%20on%20arrests%20of,56%20have%20been%20charge%2Dsheeted. (last visited 16th February 2021).
3. NRCB https://ncrb.gov.in/en (last visited 16th February 2021).
4. Noorani A. G., Access to Prisons and Custodial Torture, Economic and Political Weekly, 40 pg. 4497-4498.
5. Torture, Rape And Deaths In Custody, Amnesty International < https://www.amnesty.org/en/documents/asa20/006/1992/en/> (last visited 16th February 2021).

Written By: Chinmay Harsh Karn, B.A. LL.B. (Hons.) - Alliance School of Law, Alliance University Bangalore