Imagine a man who is wrongfully detained by the police with no way to contact his/her family or consult a lawyer to save him and is subjected to hours of extended periods of harsh questioning and physical abuse. However, these stories were not uncommon in India especially during the 1980s, when cases of custodial violence were a disturbing reality. It was during this time when D.K Basu, A human rights activist, decided to take a stand for the victims. He wrote a letter to the apex court, bringing their attention to the rising cases of deaths and torture in police custody. What began as a letter soon became a landmark case DK BASU V. STATE OF BENGAL(1997). This case changed the way India approached human rights and police accountability, establishing the guidelines to protect those people who were most vulnerable to such cases.
WHAT IS CUSTODIAL VIOLENCE?
Violence is defined as an act that inflicts physical harm, injury, or psychological distress, often through the use of force or abuse. It can be used for various purposes, such as obtaining information, forcing confessions, or punishing people, and sometimes it can result in death when the torture inflicted becomes intolerable. Custody, though it is not specifically defined in law, refers to the legal responsibility or control over an individual, typically under the care of authorities, where their freedom is restricted.
Custodial violence is violence that occurs within police or judicial custody under the name of government authorities, violates legal protections and can range from verbal abuse and mental torment to severe physical assault, sexual abuse, or death.
Constitutional and Legal Protections Against Custodial Violence
Custodial violence infringes on our various constitutional provisions that guarantee the protection of human dignity and personal liberty. Article 21 of the Indian constitution, guarantees the right to life and liberty. Custodial violence directly violates this right.
- Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Protection against arrest and detention in certain cases (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
The Hon’ble Supreme Court, in the landmark case of D.K.Basu Vs State of West Bengal, has laid down certain guidelines that need to be followed while arresting a person.
The principles laid down are:
- Identification of Police: Police must show their name and badge to the person while arresting and there should be a record of all police officers involved in that interrogation.
- Memo of arrest: Police must create a written record that includes details like date, time, and place of arrest while arresting a person. This memo must be signed by the witness and the arrested person to prove that it is accurate.
- Informing friends: the police must inform a family or friend of the person arrested as soon as possible. If the witness who signed the memo was a relative, then there is no need to inform.
- Notification to legal aid: If family/friends Living outside the area then police must inform the legal aid organization within 8 to 12 hours.
- Right to inform someone: The arrested person Must be informed of their right to have someone told about their arrest right away.
- Diary Entry: the police must keep a detention diary about the arrest of a person, including the name of the person who was informed and the name of the police officers involved.
- Medical Examination: If the arrested person is injured, they should be examined and details of these injuries should be recorded in an inspection memo which should be signed by the arrestee and arresting officer.
- Medical Check-up During Detention: The arrested person must be examined by the doctor during Detention, every 48 hours to check their health.
- Sending Documents to Magistrate: Copies of all the documents related to the arrest and memo of arrest should be sent to the Magistrate for their records.
- Meeting with Lawyer: The arrested person Is allowed to meet her lawyer During questioning but not all the time.
These guidelines are meant to ensure the rights of arrested persons and to make sure that the process is transparent and fair.
Legal Framework: Indian Penal Code and Evidence Act Provisions
Indian laws, specifically the Indian Penal Code (IPC) and the Indian Evidence Act have established mechanisms for dealing with custodial violence applied by police, for which such personnel are liable to punishments.
Section 330 and 331 of the IPC: Provide punishment for injuring or grievously injuring a person to extract a confession.
Section 348 of the IPC: Prescribes punishment for wrongful confinement for enforcing confession or restoration of property.
Indian Evidence Act, Section 25: Prohibits the admissibility of confessions made by any person also before a police officer because of torture and bans torture in getting confessions.
However, the fundamental constitutional protections, as well as the legal clauses, do not suffice to check the custodial violence arising from the non-application of the law, unaccountability, and systemic failures. Custodial violence is often investigated by the same police officers raising the chances of biased results. Section 197 of CrPC holds that prosecution against police officers can only take place after getting pre-sanction from the government thus inhibiting accountability.
Medical examinations in custody are influenced by police officers in such a way as to not facilitate proper writing of injuries suffered by the detained persons in their reports.
Global Context and India’s Obligations Under International Law
Custodial torture is prohibited under several international treaties and conventions which India has signed and ratified. Some of them include:
Universal Declaration of Human Rights (1948): In Article 5, torture or cruel, inhuman or degrading treatment or punishment is prohibited.
International Covenant on Civil and Political Rights: It prohibits torture and cruel treatment in Article 7 and orders the humane treatment of individuals deprived of their liberty in Article 10.
Convention Against Torture: India has signed this UN Convention, but since it has not ratified it, its scope for domestic applicability for ensuring the criminal prosecution of torture is quite limited.
Conclusion
Custodial violence in India continues to be a serious human rights issue. The constitution, laws, and the D.K. Basu guidelines have provisions that protect against torture and abuse in custody, but these continue to exist and indicate the need for systemic reform. Enforcing the laws that already exist, independent monitoring of compliance with international standards, and making sure human rights are protected are the main measures to guarantee that the Indian criminal justice system respects human rights.
Author(s) Name: Lisha Nirala (University Of Delhi, Faculty of Law, Law Centre- 2)
