By Nickkita Shome
The word ‘Custodial Violence’ comprises two words- ‘Violence’ and ‘Custody’. Violence is defined as extremely forceful actions intended to hurt people or are likely to cause damage. It is often used as synonymous with Torture which specifies that to cause significant physical or mental pain to someone intentionally. On the other hand, custody means the state of being kept in prison, especially while waiting to go to court for trial. According to S.167 of the Code of Criminal Procedure, there are two kinds of custody- Police Custody and Judicial Custody. Police custody is when a person is kept in lockup. However, he cannot be kept in there for more than twenty-four hours. On the contrary, judicial custody is when a person is held under detention which a magistrate authorizes.
Thus, the term custodial violence implies the violence done by police to the person who is there in their custody. It is a kind of violence that is prohibited by the law of the land. Such violence may be subtle or extreme, like abusing, emotional or physical violence, thrashing and beating, rape, or even death. While there is no law under custodial violence, still a definition has been proposed under the Custodial Crimes (Prevention, Protection, and Compensation) Bill, 2006, which states- “An offence caused against any arrested person or a person in custody when that person was in the custody of a police officer or a public servant who has power under any law to arrest and detain a person in custody during that period.”
Prevention of Torture Bill: -
The death of George Floyd in the US and the recent custodial death of Jeyraj and Fenix at Santhakulam Police Station raised a lot of concerns about the matter of custodial violence. Moreover, it has also given air to have a new debate around the third-degree torture of police.
The death of George Floyd in the US resulted in heavy protest, and as a result of the protest, Congress decided to pass a police reform bill. Along with this, it was discussed to maintain a National Database which will register all police misconducts. But this bill has not turned into law yet. Likewise, In India, an anti-torture bill is being discussed in Parliament since 2010 but has not been passed yet.
Globally, a decision to make law on anti-torture was first discussed in UN Convention Against Torture in 1975. India is a signatory member of the UN. Thus, if any UN law has to be applied in India, then our Parliament has to make a law for it. Consequently, to make the UN Convention Against Torture 1975 a law, a bill was presented in Lok Sabha named as Prevention of Torture Bill, 2010. In this bill, punishments have been prescribed against those public servants who commit torture.
This bill explained the word ‘Torture’ very broadly and simply by saying that if any public servant tortures any individual for deriving information or his confession and if he hurts the individual grievously or tortures his life, limb or, health, mentally or physically, then all these things will be considered as torture. Against their act, there will be a punishment of 10 years.
After being passed by Lok Sabha, it comes to Rajya Sabha. And for further consideration, the Rajya Sabha passes the bill to Rajya Sabha Select Committee for suggestions. Committee provides some suggestions for the bill and says that the points like the definition of torture should be expanded. Secondly, if any woman or child has been tortured, then the punishment should be stricter, and thirdly, they suggested setting up an Independent Authority which can investigate all the activities. After including all these suggestions, this bill was presented repeated times in Rajya Sabha, but till now, this bill has not been passed as a law.
In 2017, Law Commission said that they are seriously considering the bill. Still, before passing the bill, there should be changes done in the Indian Penal Code, Indian Evidence Act, and Criminal Procedure Code.
Despite that, according to the Annual Report on Torture, 2019- the number of custodial deaths during 2019 was over 5 persons per day. Out of which, 93 persons(74.4 %) died during police custody due to alleged torture/ foul play. 24 persons(19.2%) died under suspicious circumstances in which police claimed that they committed suicide (16 persons), died of illness(7 persons) and death due to injury after slipping from police station bathroom(1 person) and the reason for the custodial death of five(4%) persons were unknown.
However, this is 2021. Still, the bill which was supposed to pass in 2010 has not turned into any act.
Major Judgments by Supreme Court on Police Violence and Custodial Deaths: -
§ CASE 1: Rudul Shah V. State of Bihar, 1983
In this case, the petitioner Rudul Shah was kept illegally in jail for 14 years. Habeas Corpus writ was filed, and his immediate release was demanded. In this case, for the very first time, Supreme Court realized that if by any state, any individuals’ rights are being violated, then the individual will get compensation.
§ CASE 2 : Saheli V. Commission of Police, 1990
In this case, police, along with the zamindar, misbehaved with the rented mother and her nine-year-old child, and due to which the nine-year-old child dies. Supreme Court, in this case, compensated the mother by awarding seventy-five thousand rupees. This case is critical because in this case, Supreme Court gave the option to Delhi Administration to recover the amount by the police officer who is responsible for the incident.
§ CASE 3: Nilabati Behra V. State of Orissa, 1993
In this case, Suman Behera was arrested by police, and the very next day, her body was found on a railway track with multiple injuries. In this case, the petitioner was awarded compensation of one lakh and fifty-five thousand.
So, in the last two cases, we got to know that while awarding compensation, Supreme Court does not follow any specific criteria. According to the situation of the case, the compensation is decided. However, in these cases, Supreme Court said that it is the state’s responsibility to give compensation, not police officers.
§ CASE 4: Joginder Singh V. State of UP, 1994
In this case, Supreme Court said that if an arrest is made without any justification, then it will be an illegal act. Supreme Court said that police officer has the power to arrest, but just for using this power, they cannot arrest. There must be a reasonable justification for arresting someone.
§ CASE 5: D.K. Basu V. State of West Bengal, 1997
In this case, Supreme Court recognized custodial violence and police torture and said custodial violence is an attack on human dignity. Thus, the court said after having many recommendations and policies; still, the cases of torture and deaths in police custody are increasing. So, they introduced eleven guidelines that every police officer has to follow while arresting someone. These guidelines and rights are available to every arrested person in the country.
Guidelines to be followed by policemen while arresting someone: -
1. Whichever police person is handling the interrogation or arrest, they should carry their name tag in which their name and designation must be seen clearly.
2. Police have to maintain a register of those officials who are handling the case or interrogation.
3. If any police officer is arresting someone, they have to maintain an arrest memo. All the details related to arrest should be there, like the signature of any witness person, time, date, and place of arrest.
4. The arrested person’s relative or friends must be informed about the arrest of that person and where he has been detained this also be informed.
5. They also have to maintain an official diary in which all the records have to be mentioned, like which officer is handling the case, and which family members or relatives have been informed, and particularly when.
6. If the arrestee has any major or minor injuries, then it should be noted down. Both officer and arrestee would sign the inspection memo, and the arrestee will get a copy of the inspection memo.
7. After the arrest of the person, he should be medically examined every forty-eight hours.
8. After this, all these documents- medical report, inspection memo, arrest memo, a copy of all these documents will be sent to the magistrate for their records.
9. While at the time of interrogation, the arrested person can meet with his lawyer.
10. There should be a Police Control Room in every district and a state headquarter in which all information related to the arrest should be sent.
11. The people in the police control room and the district headquarter should receive the pieces of information within twelve hours of the arrest, and the Police Control Room board will display all this information in the court if it is required.
Even after these guidelines, given above, are followed, yet the cases of Custodial Violence are still rising, as in the recent case of Jeyraj and Fenix.
Considering everything, it can be concluded that there is a massive lack of control and accountability concerning violence in the police system. Moreover, the Indian criminal justice system must give prominence to human rights, even if they are prisoners. Secondly, all the relevant agencies, right from the magistrate, the bar, and the medical practitioners to the police in higher authorities, must follow their mandate meticulously. Though we are thankful to the entire police department for their contribution to maintaining law and order in society, adequate checks and balances need to be put in place so that the custodial crime rates decrease.
2. Constitution of India – Article 21-No person shall be deprived of his life and personal liberty except according to procedure established by law.
Rudul Sah v. State of Bihar, (1983) 4 SCC 141  Saheli v. Commissioner of Police; AIR 1990 SC 1417  Smt. Nilabati Behera Alias Lalit Vs. State of Orissa and Ors.; 1993 SCR (2) 581  Joginder Kumar vs State Of U.P; 1994 SCC (4) 260  D.K. Basu v. State of West Bengal; (AIR 1997 SC 610)
Author: Nickkita Shome
BA-LLB, 2nd Semester.