Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.--Adriana P. Bartow

Abstract
Custodial violence primarily means violence in the judicial and the police custody, involving the victim subject to rape, torture, and even death. Custodial violence is a clear violation of Human rights, which include all types of physical and mental torture inflicted upon the victim. It is widely accepted as one of the cruelest forms of human rights abuse. Various torture methods like beating on the spine, beating the bare sole of the feet, denying medical treatment, burning with the lighted cigarette, forcible extraction of teeth, forcibly lying victim nude on ice slabs, submersion in water, still applied by the police and other agencies.

Such is the heinous nature of this crime, despite being forbidden by many institutions like the Supreme Court of India, National Human Rights Commission, and United Nations, police across the country defy these institutions. According to the recent annual report by the National campaign against torture, there were numerous cases of custodial death in the year 2019, over 1700 people died in custody. Estimating 5 deaths every day in the year.[1]

Police authorities are considered the custodians of law and are entrusted by the nation's people to protect their rights. But when these men who are ushered with the power to regulate their civil life, turn to degrade the power they hold, the trust of the common people get crushed. The present work focuses on the issues of this heinous crime, causes, and legal perspective on custodial torture committed by mainly police officers.

Introduction
The term custodial Violence has not been defined under any law. It is a combination of two words 'custody' and 'violence'. The word custody denotes guardianship and protection, it does not hold any evil symptoms even when applied to arrest or imprisonment under judicial and penal safekeeping.[2] The term violence in literal sense is the behavior of inflicting injuries to a person or property by the use of unjustified force.

Indian movies portray the police torture as entertainment, where the protagonist of the story encounters a villain, consequently encourages the crime of custodial violence or we can say it makes crime seems less grave or serious to the society.

Custodial violence is a widespread unaccounted ailment and rarely prosecuted. It escalates the state of lawlessness in many parts of the country. In a recent report by National Crime Record Bureau, a total of 591 cases of death were recorded in police/judicial custody between 2010 and 2015, cited with the reasons of death as suicide, death during hospitalization, or natural death through illness. [3]

According to reports by NCRB, around 265 deaths were recorded with zero conviction by the state between the period of 2016 and 2018.[4] Violence serves as the easiest and cheap method of investigation and as a tool for oppression. Police officers are notorious for using third-degree torture techniques as means of investigation to get a confession or any information.

This show of 'instant justice' demonstrated by the police, a civil force of state vested with authority and duty to maintain law and order in society by themselves, ruins the pillars of social order and justice in our society. This gives an impression of courts and lawyers being mere accessories and the power of imparting justice vested in the hands of unauthorized vigilantes.

The court in Joginder Kumar Vs. State of Uttar Pradesh[5] considered several ways of the misuse of the power of arrest by police and opined:
"No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another...There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified."

Concept of custodial violence
Types and Forms:
Section 167 of the CrPC talks about two types of Custody i.e police custody and judicial custody. Therefore we can divide Custodial violence into two types namely:
Violence in police custody
This type of violence occurs when police torture the accused to sustain interrogation and find the truth. There are hardly any safeguards to ensure the person in the custody will have timely access to his lawyer or record of his detention, or a proper medical examination.

Violence in judicial custody
This type of violence can usually be seen in prisons or detention centres where the violence is acted out by the inmate gangs who have unrestricted power to commit ill acts. Innocent prisoners get caught in the clutches of these gangs and beaten up if they don't show allegiance to them. This kind of violence pushes the victim to commit suicide.

Forms of custodial violence

1. Psychological
   It attacks the mental composure and stability of the person by the methods like injecting false information, threats, humiliation, or depriving the victim of water, food, sleep, and toilet.
    
2. Physical
   It involves causing disfiguration and exhaustion also, causing the victim torture to such degree that the victim feels fear of instant death.
    
3. Sexual
   The violence of sexual nature impacts the mind of the victim socially and psychologically. It targets the victim's dignity.

Human Rights and Custodial Violence
The highest form of fundamental rights is human dignity, respected even by our Constitution which is considered to be the most prestigious statute book of our nation. Article 21 of the Indian constitution guarantees an individual the right to life with dignity and personal liberty. Whenever an individual is taken into custody it becomes the legal property of the state, wearing the cloak of legal guardian. All the institutions working under the state are at obligation to guard them. This notion has been blurred by the activity called custodial violence, the trait against human rights and dignity that brings out the perverse desire to commit such an act when there is almost no possibility of retaliation.

The recent incident that shook the nation and invited the rage of the nation, is the case of P.jeyaraj and J. bennix, father, and son were inhabitants of the Santhakulam in Tuticorin, Tamil Nadu, they were arrested and taken into custody by the local police under the accusation of opening the shop beyond the limit of curfew hours.[6] They were beaten brutally by the police officers and were succumbed to death in the local government hospital. This is the case of gross human rights violation.

The Code of Criminal Procedure, 1973, and Constitution of India, 1950 ensure the detained individual some rights as an arrestee:

1. Right to know the ground of arrest
2. Right to be presented before the magistrate within 24 hours
3. Right to be released on bail
4. Right to a fair and speedy trial
5. Right to get a medical examination before and after detention.

With the persistent inhumane cases of violence and torture under custody, it's apparent that India should protect violence by police. India is one of the five countries that are yet to ratify the 1987 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).[7]

Supreme Court cases on the matter

1. In the case Rudul Shah v. State of Bihar[8] the petitioner Rudul Shah was kept illegally in jail for 14 years, the writ of habeas corpus was filed and his immediate release was demanded. The court realized for the first time that if by any state any individual's constitutional rights have been violated, then the individual will get compensation.
    
2.  In the case of D.K Basu v. State of West Bengal [9] the apex court recognized custodial violence and police torture and said 'custodial violence is an attack on the human dignity.' Court also said after having many recommendations and policies still the cases of torture and deaths in police custody are increasing. So the court issued a list of 11 guidelines that every police officer has to follow while arresting someone.
   
   Along with that court also gave some constitutional and statutory safeguards, here as follows:
   
   1. Whichever police officer is handling the interrogation or arrest should carry their name tag in which their name and designation must be seen clearly. Police have to maintain a register of those officials who are handling the case or interrogation.
   2. Police officer arresting someone has to maintain an arrest memo in which all the details related to arrest should be there like the signature of any witness person, time, date, and place of arrest.
   3. The arrested person's relatives or friends must be informed about the arrest and the place where he has been detained and a diary of the same is to be maintained.
   4. All the major and minor injuries of the arrestee have to note down in the form of an Inspection Memo. It has to be duly signed by both officer and arrestee and the arrestee will get a copy of the inspection memo.
   5. The arrestee should be medically examined every 48 hours after that copies of all these documents  medical report, inspection memo, arrest memo will be sent to the magistrate for their records. And while at the time of interrogation an arrested person can meet with his lawyer.
   6. There should be a police control room in every district and state headquarter.
       
3. The Court in Nilabati Behera v. State of Orissa[10] Observed that every prisoner and the arrestee has the right to enjoy all the fundamental rights and the police have to ensure that they don't deprive the right to life of the prisoner mentioned under article 21. The petitioner Suman Behera was arrested by the police and the very next day her body was found on a railway track with multiple injuries, she was awarded a compensation of Rs 1.5 lakh.

National and International legal framework
Growing incidents of abuse of power by public officials are not only peculiar to the country, but it is widespread worldwide. Thus, it has been a concern of the international community to come up with an effective and solid legal framework. The United Nations Convention Against Torture (UNCAT) prohibits torture globally by monitoring the governments to make them accountable.

India became a signatory back in 1997 almost after a decade after the convention was adopted in 1984.[11] As the convention was adopted by the UN General Assembly in 1984 defines torture as an intentional act that causes severe pain and suffering, inflicted on a person to extract information or a confession.

During World War II, custodial torture needed special attention, UN General Assembly inserted the Universal Declaration of Human Rights, 1948 article 5 states:
No one shall be subjected to a cruel or inhumane or degrading treatment or punishment.

Remedies against custodial torture can be approached in two ways, one is a legal regime that provides constitutional safeguard through article 20, 21 & 22, sections 25 and 26 Indian Evidence Act (1872), and section 76 of the procedural law, Code of Criminal Procedure (1973), contains provisions that protect the legal rights of a person in custody. Section 330, 331, & 348 of IPC provides punishment for causing injury to the person in custody. The second is judicial precedents, where the Supreme Court has on many occasions adopted many important judgments to review the criminal justice system. And have supplemented the constitutional and statutory provisions.

It is pertinent to mention that provisions of rape under section 376 IPC have gone under changes after the Mathura rape case[12], section 376(2) was inserted which specifically talks about the rape committed in the custody and penalizes such act of crime.

Conclusion
Police are the machinery that safeguards society from crime and injustice, but when this irreplaceable entity, which is necessary to maintain law and order does otherwise and violates the public's fundamental rights. The justice we all seek is annulled ultimately. In the recent custodial death case of P. Jeyaraj and J. Bennix, both the victim would be alive today if the magistrate has applied his mind and didn't act lackadaisically while accepting the plea for remand. Therefore police are just one part of the problem.

The question here arises that how would people of the country follow the rules and regulations where legal authorities themselves are negligent?
Further are some of my solutions and suggestions to the system:
The wrongdoer law enforcement authorities like police officials should be held accountable to their crimes, and penal punishment should be imposed on them instead of just futile administrative actions.

Proper training and sensitization must be provided to promote legal principles among public authorities. In fact, in the recent report of Common Cause and CSDC by Lokniti 12% of police personnel have never received any human rights training.[13]

There is a need for amendment of section 197 of CrPC which mandates the government's approval if one intends to file a case against a police official.

Strict implementation of the Guidelines issued under D K Basu judgment (1997) (refer to page 6)

To ensure police accountability, a national-level independent complaint authority should be formed as suggested by the Prakash Singh judgment on police reform 2006.

References:

1. National Campaign Against Torture : Annual report on torture 2019
2. P. Ramanatha Aiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992) : Wadhwa & Company Nagpur, India
3. https://ncrb.gov.in/hi
4. Ibid
5. Joginder Kumar v. State Of Uttar Pradesh [(1994) 4 SCC 260
6. Available at: https://theprint.in/opinion/dont-just-question-police-for-custodial-killings-of-jayaraj-bennix-courts-also-responsible/451971/
7. India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
8. Rudul Shah v. State of Bihar 1983 AIR 1086, 1983 SCR (3) 508
9. D.K. Basu v. State of West Bengal, (1997) (1) SCC 416
10. Smt. Nilabati vs. State of Orissa AIR 1993 SC 1960
11. Aston J, 'International Legal Framework In Prohibition Of Torture And Custodial Violence' [2020] Torture Behind Bars
12. Tukaram v. State of Maharashtra, (1979) 2 SCC 143
13. Sh. V.S.K. Kaumudi, et al, Special issue on the occupational stress and mental health issue among uniformed personnel, Vol. 66, no. 3, IPJ, 6, 90 (2019)

End-Notes:

1. National Campaign Against Torture : Annual report on torture 2019
2. P. Ramanatha Aiyer , The Encyclopedic Law Dictionary with Legal Maxim [1992], Wadhwa & Company Nagpur, India;
3. https://ncrb.gov.in/hi
4. Ibid;
5. Joginder Kumar v. State Of Uttar Pradesh [1994] 4 SCC 260;
6. Maneesh Chhibber, 'Don't just question the police for custodial killings of Jayaraj-Bennix. Courts are also responsible' The Print ( 1 July 2020)
7. India: Annual Report on Torture 2019, < http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf>
8. Rudul Shah v. State of Bihar [1983] AIR 1086, [1983] SCR [3] 508
9. D.K. Basu v. State of West Bengal, [1997] [1] SCC 416
10. Smt. Nilabati vs. State of Orissa AIR [1993] SC 1960
11. Joshua N. Aston, 'International Legal Framework In Prohibition Of Torture And Custodial Violence' [2020] Torture Behind Bars.
12. Tukaram v. State of Maharashtra, [ 1979] 2 SCC 143
13. Sh. V.S.K. Kaumudi, et al, Special issue on the occupational stress and mental health issue among uniformed personnel, [2019] 66(3), IPJ , 6, 90

Award Winning Article Is Written By: Mr.Gaurav Gautam - BA.LL.B. (Hons.) II Year - ICFAI University, Dehradun
Email: [email protected], Ph no: +8176094262

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