The Supreme Court recently convicted two police officers for mercilessly beating a man leading to his eventual death back in 1985, also directed them to pay Rs. 3,50,000/-, to each of the legal heirs of the deceased.[i] Custodial torture has become a common phenomenon and a regular practice of interrogation by police, which of course causes momentary public uproar, but eventually the incident fades away and everything is forgotten, Custodial death of P Jayaraj and Bennicks in Tamil Nadu in the year 2019 is relevant example for it.

The National Crime Records Bureau, abbreviated to NCRB, is an Indian government agency, NCRB, which collects and processes crime statistics at the National level, which along with crime data also releases statistics of Custodial Deaths, and as per the 2020 report, NCRB reported 76 deaths to have occurred in police custody in the year 2020.[ii]

Custodial Violence Meaning:

Dictionary defines custody as the legal right or duty to take care of somebody, the state of being guarded or kept in prison temporarily, especially by the police. Police custody doesn't necessarily mean formal arrest. It may also include some kind of surveillance and restriction on the movement of the person concerned by the police [iii].

Violence in layman's language basically means 'cruelty', 'atrocity', and 'hurt' knowingly causing great physical or mental pain with an intent to punish or to decipher information or to forcibly make someone confess to something. The dictionary meaning of violence is behaviour that harms or damages physically and where a great force or energy is used. It is an intentional use of physical force, against oneself, another person, against a group or community, that either results in physical or psychological injury, and can also lead to death.

Custodial violence means any kind of violence attributed in the custody be it legal or not, which is not sanctioned by the law. Violence may be minute or extreme for example abusing, emotional or physical violence, beating, rape or even death. The nature of custody can be judicial, police or custody taken by institutions which are obliged to take care of the occupant like hospitals, homes etc.

Custodial violence means torture in police or another kind of custody. No Violence other than torture has been subjected to so many conventions and Declarations, all aiming at total banning of it in all forms; in spite of the commitments made to eliminate custodial torture, the very fact remains that the torture is more widespread now than ever before.

During interrogation by Police, the suspects are subjected to merciless beatings with lathis, rifle butts, and whips. Many are kicked, trampled, and kicked on the ground. A few are even stripped and electric shocks are applied to their body, including their private parts. Hairs are pulled out. The interrogation room of the police station becomes no less than a virtual hell filled with screams of damned shots, and abuse of the tormentors. Thus, torture becomes an independent tool for creating terror in the mind of person [iv]

Historical Perspective of Custodial Violence:

The ancient Indian lawgiver, Manu in his Code refers to the police system and marks it as prevalent for the prevention and detection of crime. There are some hints of the existence of an indirect form of police system in B.C.600-300[v] Similar hints also can be seen within the Yagnavalkyasmriti 100-300 A.D, the Naradasmriti (100-400 A.D) and the Katayanasmriti (400-600 A.D).

Within the garb of policing, violence was committed on the captured people. Kautilya's Arthsashtra speaks about various kinds of torture such as burning of limbs, tearing by wild animals, trampling to death by elephants and bulls, cutting of limbs and mutilation etc. Manu stressed on the necessity of torture to protect society from the hands of criminals.[vi] In the Gupta period (320A.D.-500 A.D.) if facts against a prisoner were not clearly established by evidence, then recourse to four kinds of ordeals was administrated. Trial by ordeals was fairly common.[vii]

Under Mughal's period as there was no written criminal or criminal code and only Shariat Law was in practice, torture was the means to extort confessions from the criminal. During the regime of Marathas, many varieties of tortures were employed. Amputating the hands and feet, ears, noses, pouring melted lead into the throat, crushing the bones of the hands and feet with mallets, driving iron nails into the hands, feet, and bosom. These and many similar tortures were practiced to establish the guilt of the captured person.[viii]

During the British period, the britishers brought order from chaos and ended barbaric social customs, also built the judiciary, the police, jail and codified laws for their own benefit and convenience. The Police were agents of imperial brutality, wherein people were tortured in order to obtain a confession for the crimes committed and the police system worked with an aim to create a sense of fear in the general public.

The British Government in order to investigate the cases of torture in Madras appointed the Torture Commission of 1855, which reported that police torture was quite prevalent, which attracted the attention of the fact that torture was a structural problem of Police Authorities.

After Independence, several Police Commissions were appointed by Union and State Governments to look into the performance and methods of working of the State Police during the 1950s, 1960s, the early 1970s and 1980s[ix]. Almost all these Committees and Commissions have revealed the tale of third-degree or torture in police custody due to political ends, practice of corruption and lack of infrastructure support, of scientific aids and training etc.

The recommendations given by these Commissions were mostly concerned with the details of the administrative set up, the power of the Police Force in different wings of the system, the relationship between Police and the District Collectors, allowances and pay scales for different ranks of the Police, requirement qualifications, setting up of training centers.

Shah Commission (1978) had observed a wide range of police brutality during the emergency from 1975 to 1977. The Commission drew the attention of the Government the way police behaved during the emergency as they were not accountable to any public authority. In its recommendations, the Commission told the Government to take measures to insulate the police from illegitimate political and executive interference.

Causes of Custodial Violence:

On close analysis of the cases pertaining to custodial violence, it is apparent that the victims suffer badly in lock-ups, and there are cases where they even succumb to death and the fact that even in the human rights era torture is increasing is haunting there's a wide range of causes and reasons for Custodial violence, which are the matter of concern:

1. Psychology of Officials:

   The Police in India while performing their duty have to deal with a lot of pressure, which is either generated directly from the government or from the influential people indirectly. While the process of investigation of a crime is a difficult and delicate task, which needs a scientific approach and requires a great amount of patience, persistence and also professional expertise.
   
   Police officers are unable to handle the pressure, they end up resorting to physical force upon the accused and adopt a third-degree method to obtain a confession and motive of the victim for commission of the offence. Police often try to justify their actions, stating such a method is used for serving a higher cause of solving a case.
   
   The inquisitiveness of investigation officers to ensure detection of cases by eliciting a confession from an accused or arrested person, lack of proper motivation, and low morale of the members of the force in discharging their duties as Investigating Officers at the police station resort to third-degree as a short-cut method of detection [x].
    

2. Procedural flaws:

   under Criminal law police can detain a person legally and keep him in custody only for 24 hours, beyond that period, police requires court's permission to keep him in custody, and it is usual practice that court shows reluctance in granting remand to police, because of this procedural flaw in criminal justice system, there lies an opportunity for hardened criminals to get bail and escape the clutches of police and tracing out the evidence becomes a difficult task for the officials, as such to counter such situations, police resorts to their own laws and to obtain confession from the accused they detain him without court's permission or informing the relatives, now in this case even if the accused dies police refuses to take any responsibility as there would be no evidence to show he died in Police Custody.
    

3. Lack of Female Officers:

   Sexual harassment, molestation or rape of women in custody are also in great numbers in India, wherein the female accused are left alone in the custody of constables and duty officers at odd hours, and with the absence of lady police officers at the Police Station the possibility of violence against the victim increases. Lack of infrastructure like separate lock-ups for women can also be the reason for an unsafe environment for women prisoners. While Delhi High Court had made rules with respect to separate accommodation of female prisoners and their privacy[xi], but on the ground, there is total ignorance of said rules.
    

4. Corrupt Officials:

   There is systematic corruption in the police and within the political and judicial agencies which aggravates the problem and ensures that violence attributed by police on accused goes unpunished, It is the most common cause of Custodial Violence, there is the use of torture by the officials to extort money from innocent persons, the victims of this crime primarily are from the disenfranchised, poverty-stricken, lower caste and illiterate sections of the society, who lack awareness of their legal rights remedies and the police gives false assurances that they would let them free to extract, in case the accused fails to fill the pockets of Police they resort to violence.
    

5. Crime justification by Officials:

   Senior police officers, bureaucrats and politicians justify this as a necessary evil, with an objective to control the increasing crime rate. Though there are some enlightened police officials who not only openly condemn but make their best efforts to curb custodial torture.
   
   But the police force in general laughs away the very idea of giving up the third-degree methods and justifies its use on the following grounds [xii]:
   
   1. The police force is facing the problem of inadequate strength compared to the increasing rate of crimes. Their tasks are enormous which goes beyond the duties of enforcing law and order situations. They hardly find adequate time for correct investigation and detection of crime. So the adoption of third-degree methods becomes inevitable.
   2. Hardened and professional criminals understand the language of violence only. Third degree method remains the only possible way to extract truth.
   3. The officials find no harm in using barbaric methods against criminals like terrorists and dacoits as even they use the same vicious methods against the society.
   4. They believe that Criminals do not have any rights, and questions as to why should the police respect rights of criminals when they do not respect the rights of innocent people.
   5. According to the Police legal procedure is always in favour of the criminals and it's the police who have to work under heavy legal odds. They have to establish the crime in court beyond doubt, which leads to the solving of the case by any means.
   6. There is virtually no facility for the scientific investigation and detection of crime in most of the police stations. So the police has to rely on third-degree methods.
   7. Detection of the crime and conviction in the court is considered by society as the proof of the efficiency of a police officer.
   8. People expect the police to control crime but do not cooperate. They rarely give witness against the criminals. So the police have to extract information about the crime from the criminal concerned which is seldom voluntary.[xiii]

Supreme Court's view on Custodial Violence

The Supreme court has expressed its concern for custodial violence by police during investigation and in Nandini Satpathy V. P.L. Dani clearly held that an investigator should possess the qualities of patience and perseverance and must avoid the use of third degree as it has become outlawed.[xiv]

The apex Court had laid down principles which were to be followed by the Police officers in the landmark case of D.K. Basu v. State of West Bengal, The Court opined that failure to comply with the requirements will render the officer concerned liable to be punished for contempt of court besides the usual departmental action against him and condemned the tortuous methods adopted by the police and also observed:
"Torture has not been defined in the Constitution or any other penal laws, torture on a human by any another human being is essentially an mechanism to force the will of the 'strong' over the weak'. The word 'torture' today has become synonymous with the darker side of human civilization and custodial violence including torture and death in the lock-up strikes a blow at the rule of law."[xv]

With increase in the cases of torture police custody and non-availability of direct evidence for punishing culprits, as the cases were being vexed, the investigation of such matters were conducted by the police themselves or by the members of their fraternity, who try to evade the relevant evidences and also try to misguide the courts by their fabricated story the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam directed the CBI to register and investigate the case of custodial death by holding that:
It is futile to expect an independent and wholly objective investigation by the state police. Even otherwise, the people will have little confidence in the investigation, no matter how honest and objective the investigation is.[xvi]

Again in Mrs. Paramit Kaur v. State of Punjab, where serious allegations were leveled against the officers of the police, it was held that it would be better and in the interest of justice to hand over the investigation to an independent authority[xvii].

The supreme court in State of UP v. Ram Sagar Yadav, taking into consideration the procedural lacuna that barring few exceptions, the burden of proof lies on the prosecution the number of acquittals of custodian offenders increasing, as it is the police officers alone who can give evidence regarding the circumstances of custodial atrocities and, as stated above, police often tries to foil the relevant evidence and misleads the courts and goes scot free.

The court observed that:
The law as to the burden of proof in such cases may be reexamined by the legislature so that handmaids of law and order do not use their power and opportunities for oppressing the innocent citizens who look to them for protection[xviii]. Subsequently considering the supreme court's recommendation Law Commission of India in its 113 Report [xix] recommended amendment evidence law by incorporating a new section, section 114-B, that if there is evidence to exhibit that the injury caused to a person, had been inflicted during police custody, "the Court may presume that the such injury was inflicted by the police officer having custody of that person". Which was included in Indian Evidence (Amendment) Bill, 2016, passed by the Lok Sabha unfortunately has not yet been approved by the Rajya Sabha.

The apex court in the case Nilabati Behera V. State of Orissa the court observed "every prisoner and arrestees are having their fundamental rights according to article 21 of the Indian Constitution. They have the equal rights to enjoy all the basics of fundamental rights and the police are bound to obey the law and to protect their fundamental rights by ensuring that the citizens in custody aren't deprived of their right to life."[xx]

And recently the supreme court of India in the case of Pravat Chandra Mohanty vs The State of Odisha on 11 February, 2021 observed: "The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished.

When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern.The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society. The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society"[xxi]

Steps to eradicate Custodial violence:

Creating awareness of human rights:

Apart from the knowledge of criminal law i.e., Indian Penal Code and Criminal Procedure Code, the Police officials of all levels including the Jail personnel should also be taught tenants of constitutional and human rights of individuals, there should be a compulsory course on Fundamental Rights, International Bill of Human Rights and other instruments which focuses on rights of prisoners.

Change in investigating method:

Use of scientific aid in investigation: The Police officials are always overburdened with a pile of cases, the lower rank officers who have no training or aptitude to conduct investigation are handed over the job of investigation and these officers resolve to third-degree methods resulting in various kinds of torture, as such there should be training provided to subordinate staff as well to use scientific methods of investigation. In all, even the Police should use scientific aids in investigations like forensic science laboratories, lie detectors and computers. The investigation technique should be based on the psychology of the criminals and the services of the psychologists should be hired to do the needful.

Medical tests:

There shall be medical, physiological and physical tests conducted on investigation officers and assessments made to ensure that they are mentally and physically fit for conducting investigations.

Installation of Cameras in Police Station:

As directed by the Supreme Court in Paramvir Singh Saini Vs. Baljit Singh & Others SLP [xxii]. CCTV cameras shall be installed which shall cover all the entry and exit points of the Police Stations. The CCTV cameras shall cover the entire structure of the police station, including lockups and interrogation rooms and no blind spots shall be left.

Change in Evidence Act:

There shall be change in the evidence act and as recommended State of Uttar Pradesh v. Ram Sagar Yadav, the Law Commissions 113 Report and the Indian Evidence (Amendment) Bill, 2016[xxiii], section 114B of Indian Evidence Act shall be introduced, according to which the burden of placing evidence and witness falls on police in cases of custodial violence and provides a rebuttable presumption that the injuries sustained by a person in police custody are caused by the police, which would make sure that the accused are treated humanely and in accordance with law.

Conclusion:
Custodial violence is the worst crime in any civilized society violating human rights of individuals, it is blatant abuse of power which is not only peculiar in India but has become matter of concern in international sphere as well, murder of George Perry Floyd Jr., who was an African-American man murdered by a police officer in Minneapolis, receiving global massive uproar and criticism against the use of excessive force by police officers.

These acts of police violate human dignity, third degree torture, custodial deaths, rape, molestation have become part of police investigations, these investigations shall be conducted in a humanitarian manner and lawful means are to be adopted the protector of people's rights shall not misuse their powers and harass the people in their custody. Any individual shall not be deprived of his or her right of living with human dignity even if he is confined in police custody whether legal or illegal.

End-Notes:

1. Pravat Chandra Mohanty vs The State of Odisha on 11 February, 2021 Author: Ashok Bhushan Bench: Ashok Bhushan, R. Subhash Reddy
2. NCRB Report TABLE 16A.2, Deaths in Police Custody / Lockup (Persons in Remand) 2020
3. Gurdial Singh v. Emperor, AIR 1932 Lah. 609, p. 611.
4. S.K Awasthi, Law relating to protection of Human Rights p.875(2000)
5. Surendernath Sen, Administrative System of Marathas (1925) p.511
6. Chapter-2, The Problem of Custodial Violence a Critical study. p.26 http://hdl.handle.net/10603/75380
7. S.K.Ghosh, Torture and Rape in Police Custody: An Analysis (1993) p.15
8. The Problem of Custodial Violence a Critical study. P.29 http://hdl.handle.net/10603/75380
9. Kamlesh Kumar, Unpublished PhD, Custodial Crimes in Police Custody: Causes, Consequences and Preventive Measures, Tata Institute of Social Sciences (2011) p.39.
10. Commissioners of investigation Report, "Alleged cases of torture in Madras Presidency", p.455 Cr. LJ (1999)
11. Court Rule File, Judicial Lock-ups, Chapter 27, available at: http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P64J90AA.PDF
12. Custodial Torture In Law And Practice With Reference To India by R.S. Saini, 36 JILI (1994) 166, SSC Online
13. ibid
14. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : AIR 1978 SC 1025
15. AIR 1997 SC 3017 ( decided on 18th Dec., 1996
16. 1995 Supp (3) SCC 736
17. JT (1995) 8 SC 418
18. (1985) 1 SCC 552 : AIR 1985 SC 416 at 421.
19. https://lawcommissionofindia.nic.in/101-169/Report113.pdf
20. (1993) 2 SCC 746 at 767
21. Pravat Chandra Mohanty vs The State Of Odisha on 11 February, 2021
    Author: Ashok Bhushan, Bench: Ashok Bhushan, R. Subhash Reddy
22. SLP (Criminal) No. 3543 of 2020 on 16 July, 2020
23. Ibid at 17 & 18