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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

The Custodial Violence in India

Meaning of Custodial Violence

The term ‘Custodial’ providing protection, care, supervision, or guarding. And the term ‘Violence’ means action which causes destruction, pain, or suffering. The primary meaning of the term ‘Custodial Violence’ is torturing, the violence of an individual, or a group of persons while in the custody of the police or judiciary. Custodial violence generally results in the death of the victim or leaves the victim with a traumatic experience. Custodial violence is the torturing of an individual by the police officials. As per the reported statistics, there were more than 1700 custodial deaths in India.
Background 

After the death of Geoge Floyd in the U.S. and the death of Jayaraj & Fenix in Tamil Nadu, India has raised concerns about custodial death. Moreover, regarding the third-degree torture of police, a debate has arisen. The death of George Floyd in the United States led to protests which resulted in the introduction of the Police Reform Bill by Congress. Along with the Bill, a discussion has been conducted on the setting up of a National Database which would register the misconduct of police officials.

In the year 2010, Anti-Torture Bill was proposed and discussed at the Parliament but failed to become legislation to date.

Prevention of Torture Bill

The first initiative to form an anti-torture law was taken by the United Nations namely, U.N. Convention Against Torture, 1975. India is a member of the United Nations and is a signatory, for application of any law by the United Nations in India, the Parliament has to make legislation for it.

To make U.N. Convention Against Torture, 1975 a law in India, the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha.

Prevention of Torture Bill, 2010 contained the punishments to be awarded to the public servant for committing the act of torturing. This bill explains the word ‘Torture’ simply and broadly and states that if a public servant with the purpose to derive information or confession, grievously hurts, or tortures mentally or physically, life, limb, health, of an individual, or third person, then it will be regarded as torture. And, the punishment awarded for torture is 10 years of imprisonment. This bill was successfully passed by the Lok Sabha. The Rajya Sabha sent this bill to the Rajya Sabha Select Committee Suggestions for further consideration.

The Rajya Sabha Select Committee Suggestions provides with certain suggestions such as firstly, expanding of the definition of the term ‘Torture’; secondly, if torture is inflicted on women and children then the punishments should be made severe; lastly, to set up an independent authority to investigate all the activities and provide victims with their reasonable compensation.

After including all the suggestions in the bill, the bill was again presented in the Rajya Sabha but it yet failed to pass repeatedly.

In 2017, the Law Commission stated that they are considering this bill seriously but to enforce this bill as legislation, changes have to be made in the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act.
Major Judgements by the Supreme Court on Police Violence or Custodial Deaths

The Hon’ble Supreme Court of India has pronounced several judgments where they have criminalized police brutality and suggested that police officers may be punished with the death penalty for these gruesome acts.

Rudul Shah vs. State of Bihar, 1983

In this case, the petitioner, Rudul Shah was illegally imprisoned for 14 years. A writ of habeas corpus was filed demanding his immediate release.
The Supreme Court held that if by the wrongful act of the state any right of an individual is violated, then that individual will receive compensation.

Saheli vs. Commissioner of Police, 1989

In this case, the police official in connivance with the landlord misbehaves with the tenant mother and her minor of 9 years due to which the minor dies.
The Supreme Court awarded the mother with Rs. 75,000/- compensation and gave the option to the Delhi Administration to recover the amount from the police official.

Nilabati Behera vs. State of Orissa, 1993

In this case, Suman Behera was arrested by the police officials, and the very next day of her arrest her body was found at the tracks of a railway station with multiple injuries.
The Supreme Court awarded the petitioner with a compensation of Rs. 1,55,000/- and also stated that providing compensation is the responsibility of the state and not the police officers.

Joginder Singh vs. State of Uttar Pradesh, 1994

In this case, the Supreme Court held that if an arrest or detention takes place with a justification then it would be illegal. It further stated that police officers have powers to arrest but just to use this power they cannot arrest an individual, to arrest an individual a reasonable justification has to be given.

D.K. Basu vs. State of West Bengal, 1997

In this case, the Supreme Court recognised custodial violence, and police torture and stated that custodial violence is an attack on the dignity of a human being. The Court further stated that even after enacting recommendations and policies, torture and death in police custody is increasing at an increasing rate. Thus, the Supreme Court gave 11 guidelines to be followed while arresting a person. The 11 Guidelines issued by the Supreme Court in D.K. Basu v. State of West Bengal consists of various rights that are available to every arrested person in India.

Guidelines to be followed by policemen while arresting

  • The Police Personnel who is handling the investigation or arrest should carry clear identification and name tags with their designations.
  • The Police Personnel should also maintain a register that would record all the information related to the officials who are handling the investigation, or arrest.
  • The Police Personnel who is arresting an individual should maintain an arrest memo that would contain all the details related to an arrest such as the signature of a witness, time of arrest, date of arrest, and place of arrest. 
  • Any relative or friend of the individual who has been arrested should be informed about the arrest and detainment of that individual.
  • An official diary also has to be maintained which would record information related to the handler of the investigation, or arrest, and who is informed about the arrest, etc.
  • While arresting an individual, if the arrestee has any major or minor injuries, it would be written in the inspection memo. 
  • The inspection memo has to be signed by both the police officer and the arrestee and the arrestee would be provided with a copy of the inspection memo. 
  • After an individual is arrested, every 48 hours a medical examination will be conducted. 
  • A copy of all the documents such as an inspection memo, arrest memo, and medical examination report will be sent to the magistrate for their record. 
  • During interrogation, the arrestee can meet and consult their lawyers. 
  • Every district or state headquarter shall have a police control room, where all the information related to an arrest should reach within 12 hours of an arrest. 

Conclusion

Hence, the glorification of police brutality is a usual sight on the Indian television series and Bollywood movies. High power action movies, specifically based on Police brutality, have earned Rs. 200 Crore on box office, thus normalizing the trend of custodial violence. In this article we discussed three important things, firstly, a discussion around the Prevention of Torture Bill, 2010 in India; secondly, important Supreme Court Judgments against Custodial violence and Police Torture; lastly, guidelines issued in D.K. Basu v. State of West Bengal which is to be followed by every police official while performing arrest.

References

This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies

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