Custodial Violence

Custodial violence is a grave concern that demands attention due to its significant impact on human rights, justice and society. It refers to the abuse, torture or violence inflicted upon individuals in the custody of law enforcement authorities.

Preventing custodial violence is of paramount importance to uphold fundamental human rights, ensure the rule of law and maintain public trust in the criminal justice system. Such violence not only violates the dignity and well-being of individuals but also erodes faith in institutions.

This necessitates robust legal safeguards, awareness campaigns and accountability mechanisms to combat custodial violence and promote a just and humane society.

What is Custodial Violence?

The term “violence” encompasses actions that involve torture, harm, abuse or the use of physical force to cause injury. At times, this harm inflicted through violence may extend to psychological suffering. According to the dictionary definition, violence is described as behaviour that inflicts physical harm or damage upon an individual with a significant degree of force or energy.

This torment, involving the infliction of intense pain upon the body or mind, serves various purposes such as extracting information, coercing confessions for alleged offences or merely punishing an individual. When such torture becomes intolerable, it can culminate in custodial death.

The concept of “custody” lacks a specific definition in substantive and procedural laws; however, it can be generally understood as guardianship and protective care. Dictionary-wise, custody refers to the legal responsibility or right to look after someone. In the context at hand, it denotes being under the guardianship, typically of prison authorities, during which an individual’s freedom of movement is restricted.

Custody encompasses both police custody and judicial custody. “Custodial” pertains to any form of violence or torture that occurs within the confines of police or judicial custody, which is in direct violation of the prevailing laws. This violence can range from mild forms such as verbal abuse and mental torment to severe acts like physical beatings, sexual assault or even resulting in death.

Nature of Custodial Violence

Custodial violence encompasses various forms of torture intentionally inflicted on an individual. The internationally recognised definition of torture specifies:

“Torture refers to any deliberate act that causes severe physical or mental pain or suffering to a person. This act is carried out to obtain information from the individual for a third party, punish the individual for their actions or those of a third party, intimidate or coercing the individual or a third party or for any reason based on discrimination of any kind. Such pain or suffering is inflicted by or  with the consent or acquiescence of, a public official or other individual acting in an official capacity.”

Custodial violence can be categorised into three primary types: physical, psychological and sexual torture.

Physical Torture

Physical torture involves various methods, including but not limited to punching, slapping, beating, forcing the body into uncomfortable positions, stretching limbs, suspension, restricting movement, burning with cigarettes or caustic substances, cutting with sharp objects, electric shocks, mutilation of body parts, exposure to chemicals in wounds, dental torture and starvation.

Psychological Torture

Psychological torture inflicts mental anguish on a person and includes tactics such as threats to harm or kill the victim or their relatives or friends, forcing the victim to witness or hear the torture of others, compelling the victim to harm others, violating their religious beliefs and subjecting them to humiliation.

Sexual Torture

Custodial rape constitutes another form of torture endured by victims. It is defined as rape committed within state-owned institutions such as prisons or jails by individuals in charge of these institutions. Other forms of sexual torture encompass sexual harassment, forced impregnation and virginity testing.

Causes of Custodial Violence

Custodial violence can be attributed to various underlying factors, including:

Work Stress

Police authorities frequently operate under immense stress, managing numerous cases simultaneously and facing pressure to resolve a certain volume of cases within specific timeframes. In the justice system, an accused individual is presumed innocent until proven guilty beyond a reasonable doubt.

Proving guilt requires collecting evidence against the accused, which can create pressure on police officers. Fear of failure, which may result in transfer or disciplinary actions, can lead some officers to resort to torture as a means to extract confessions within the limited 24-hour custody period.

They may employ shortcuts during investigations to obtain critical information swiftly.

Punitive Action by Police

Some police officials believe that stern punishment is the only way to deter criminals from committing further crimes.

They argue that prisons no longer serve as a deterrent and they endorse the use of aggressive interrogation techniques, especially for serious offences like murder and rape, believing that such treatment is deserved.

Quest for Quick Results

According to a report from the National Police Commission, police officers spend a substantial portion of their time on various duties, including VIP security, law and order maintenance, court appearances and other responsibilities, leaving them with limited time for investigations.

This time constraint can lead to the use of violence as a shortcut to expedite the investigative process and compensate for the lack of time.

Extortion

Some corrupt police officers misuse their authority to extort money from innocent individuals by threatening to implicate them in criminal cases, such as dacoity. The importance given to First Information Reports (FIRs) in court proceedings allows officers to manipulate information in the FIR.

In cases of non-compliance, they may resort to threats, physical violence and torture until the victim agrees to pay a bribe.

Inadequate Training

Many police officials lack proper training, including knowledge of scientific crime investigation techniques and proper interrogation methods. This deficiency in skills can result in the inappropriate use of force against accused individuals.

It is imperative to provide training that emphasises polite and respectful conduct towards the public while discouraging unnecessary brutality and harassment. Additionally, human rights education should be integrated to promote respect for fundamental rights.

Lack of Supervision

Inadequate supervision of police investigations by higher-ranking officers can create a sense of impunity among personnel. Officers may believe they can act without consequence and that their actions will go unquestioned, leading to potential abuse of power and custodial crimes.

Psychological Issues

The personality and mental state of a police officer can significantly influence their behaviour during investigations. Officers with sadistic tendencies may inflict pain on victims for personal satisfaction, while individuals with deviant inclinations may abuse their authority to sexually exploit victims.

Consequences of Custodial Violence

Custodial violence inflicts a range of devastating consequences on its victims, affecting them physically, psychologically, economically and socially:

Physical Consequences

Victims of custodial violence often experience physical trauma, including pain in various parts of the body and swelling. These physical effects can hinder their ability to perform daily tasks and responsibilities. In middle-class families, these physical consequences can lead to significant financial difficulties as the victim may be unable to work and earn a livelihood.

Psychological Consequences

Custodial violence can leave lasting psychological scars on victims. Signs and symptoms of post-traumatic stress disorder (PTSD) may manifest, including depression, anxiety, flashbacks, nightmares, sleep disturbances, phobias and a pervasive sense of fear. These psychological effects can disrupt the victim’s ability to lead a normal life and maintain mental well-being.

Economic Consequences

Victims of custodial violence are burdened with various expenses related to attending inquiries and investigations, seeking legal representation and fighting their cases for compensation. These financial obligations can place significant strain on the victim’s economic well-being, potentially leading to financial hardship and debt.

Social Consequences

Custodial violence often results in the victim and their family being stigmatised and re-victimised by society. They may face alienation and be unjustly treated as criminals, which can lead to social ostracisation. As a result, victims may withdraw from social gatherings and interactions, exacerbating feelings of isolation and depression.

Indian Laws Dealing with Custodial Violence

Indian lawmakers have recognised the importance of safeguarding citizens’ rights and curbing custodial violence. Several constitutional provisions and statutory laws are in place to ensure accountability and protect individuals in police custody:

Article 20(1) of the Constitution

This article prohibits the conviction of a person for an offence that was not a violation of the law at the time of its commission.

It prevents authorities from imposing penalties greater than those applicable under the law at the time of the offence.

Article 20(2) of the Constitution

This article ensures that no person can be prosecuted and punished multiple times for the same offence, protecting individuals from double jeopardy.

Article 20(3) of the Constitution

Article 20(3) prevents authorities from compelling an individual to be a witness against themselves, safeguarding against self-incrimination.

Article 21 of the Constitution

Article 21 guarantees the right to life and personal liberty, stating that no person can be deprived of these except following established legal procedures.

It protects against torture, assault or injury.

Article 22 of the Constitution

Article 22(1) ensures that individuals are informed about the grounds of their arrest and have access to legal representation.

Article 22(2) mandates that arrested individuals be produced before a magistrate within 24 hours, excluding travel time.

Code of Criminal Procedure (CrPC) 1973

Section 41A, 41B, 41C and 41D were added in 2009 to ensure reasonable grounds for arrest and detention, informing family members, friends and the public about the arrest and allowing legal representation for the arrested person.

Section 163 of CrPC prohibits the use of inducements, threats or promises by investigating officers.

Section 164(4) requires confessions to be recorded and confirmed by a magistrate.

Section 49 restricts the use of force beyond what is necessary to prevent escape.

Indian Penal Code (IPC) 1860

Section 220 of the IPC provides for the punishment of an officer who maliciously confines any person.

Sections 330 and 331 address the infliction of hurt to extract information or confession, with varying penalties.

Section 348 prohibits wrongful confinement for extracting information or confessions.

Indian Evidence Act 1872

Section 25 prohibits the use of confessions made to police officers as evidence.

Section 26 deems confessions made during custody inadmissible unless made in the presence of a magistrate.

Police Act 1861

Section 29 of this act imposes penalties, including fines and imprisonment, on police personnel who inflict violence on individuals in their custody.

Landmark Cases Relating to Custodial Violence in India

The landmark cases on Custodial Violence are:

Nilabati Behera vs. State of Orissa, 1993

• Facts: Suman Behera, the petitioner’s son, was arrested by the police and found dead on the railway tracks with multiple injuries the next day. The police claimed he had escaped from the police station.
• Issues: Whether the victim suffered injuries due to custodial violence and whether the police were liable for the death.
• Judgement: The Supreme Court in Nilabati Behera case found that injuries were inflicted while the victim was in custody, indicating custodial violence. Compensation of Rs. 1,55,000 was awarded, with the court stating that the state, not the police, was responsible for providing compensation.

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

DK Basu case recognised custodial violence and police brutality, emphasising that it is an attack on human dignity. The court laid down 11 guidelines to be followed during arrests to protect the rights of arrested individuals.

Some of the key guidelines included:

• Police personnel must wear name tags with their designations.
• An arrest memo must be prepared, signed by the arrestee and attested by a family member or respectable person from the locality.
• Arrestees have the right to inform a friend or relative about their arrest.
• Major and minor injuries must be recorded at the time of arrest and signed by both the arrestee and the police officer.
• Arrestees may meet their lawyer during interrogation.

Joginder Kumar vs. State of Uttar Pradesh, 1994

Facts: The petitioner, an advocate, was illegally detained after being called for questioning by the police and his family was misled about his whereabouts.

Issue: Whether the police were guilty of illegally arresting the petitioner.

Judgement: The Supreme Court in Joginder Kumar vs. State of Uttar Pradesh held that arresting someone without justification is illegal and that police powers should not be misused for illegal purposes.

Rudul Shah vs. State of Bihar, 1983

Facts: Rudul Shah was detained in prison for over 14 years after his acquittal. A writ of habeas corpus was filed demanding his immediate release and seeking compensation.

Issue: Whether the detention of the petitioner was justified and if compensation should be awarded.

Judgement: The Supreme Court in Rudul Shah v State of Bihar held that the detention was unjustified. It emphasised that if an individual’s fundamental right to liberty is violated by the State, the individual is entitled to compensation. The Government of Bihar was ordered to pay Rs. 30,000 in addition to Rs. 5,000 already paid.

Measures for Prevention of Custodial Violence in the Police Process

Preventing custodial violence is a critical step towards safeguarding the rights and dignity of individuals in police custody. Several measures can be taken to prevent such incidents and ensure accountability:

Creating Awareness

Spreading awareness about prisoners’ rights and human rights within society is essential. Public education programs, media campaigns and NGOs can play a vital role in educating people about their rights and the laws in place to protect them.

Media Involvement

The media can be a powerful tool for disseminating information about laws and human rights. It can help bridge the gap in knowledge, especially among illiterate individuals.

Involvement of Students and NGOs

Students and non-governmental organisations (NGOs) should conduct awareness campaigns in various locations to inform citizens about their rights and the legal provisions enacted for their protection. These efforts can reach a wide audience and raise awareness effectively.

Police Training

Law enforcement agencies and security forces should prioritise human rights training for their personnel. Training programs should focus on instilling respect for human rights and a commitment to upholding them. This training can lead to a change in the mindset and approach of police officers towards investigations.

Supervision

Superior officers should regularly supervise and monitor police officials involved in investigations to prevent custodial violence. Accountability measures should be in place to ensure that officers adhere to human rights standards.

Use of Scientific Techniques

Implementing modern techniques such as video cameras for constant surveillance of detainees and electronic record-keeping can prevent manipulation of data related to cases, including First Information Reports (FIRs).

Speedy Action

Complaints of custodial violence against the police should be promptly investigated by impartial agencies like the Central Bureau of Investigation (CBI) or Human Rights Commissions. Legal actions, including prosecutions, should be initiated as necessary.

Regular Counselling

Police officers often face significant physical and psychological stress, which can impact their personal lives and relationships. The state should provide counselling and mental health support to ensure officers do not suffer psychological impairment due to professional stress.

Other Preventive Measures

• Adopting an official policy to protect the human rights of prisoners.
• Investigating all allegations of torture impartially and without bias.
• Holding officers accountable for their actions and pursuing criminal charges in cases of custodial violence.
• Dismissing officers involved in such crimes and forfeiting their monetary benefits.
• Ensuring detainees are fully informed about their rights.
• Investigating the root causes of torture and implementing preventive measures.
• Strengthening India’s commitment to international conventions against torture.
• Enhancing safeguards against torture in the legal framework.

Conclusion

Custodial violence refers to the use of excessive force, torture or abuse by law enforcement authorities, such as police or prison personnel, against individuals who are in their custody or under their control. It involves physical, psychological or sexual harm inflicted on detainees, often with the intent of extracting confessions, punishing or intimidating them.

Custodial violence is a violation of human rights and legal protections, as it infringes upon the individual’s right to life, dignity and freedom from torture. Preventing custodial violence is crucial for ensuring justice, upholding the rule of law and safeguarding the well-being of those in custody.