Custodial Violence in India | 13th Nov. 2020

What is Custodial Violence?

• Custodial violence primarily refers to violence in police custody and judicial custody. It may be mental or physical in nature.

• Rape and torture are the two common manifestations of custodial violence which may turn out to be fatal and cause death.

State of custodial violence in India:

• According to the data published by The National Crime Records Bureau (NCRB), between 2001 and 2018, a total of 1,727 persons have died in police custody including those in judicial remand and those who have been arrested but not yet produced before the court.
• 75% of the people who died in police custody were tortured.
• Low conviction rate: Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. And only 344 policemen were convicted in those cases.

Challenges in curbing custodial violence

• Absence of strong legislation: India is yet to criminalize custodial violence. The available safeguards have proved insufficient to deal with issues of custodial violence.

State of prisons:

• There is a lack of facilities for medical, sanitation, security, and food in the prison.
• Further, a disproportionate ratio between crime rate and manpower makes the enforcement of laws difficult.
• India has failed to bring adequate prison reforms to curb the existence of police subculture and punitive violence.

Non-ratification of UN Convention against torture:

• The United Nations convention against torture in 1997 was signed by India but the country did not ratify it.
• While signing only indicates the country’s intention to meet the obligations set out in the treaty, Ratification, on the other hand, entails bringing in-laws and mechanisms to fulfill the commitments.
• Politicization of police: The Police Act, 1861 which governs the Indian police system has no explicit provisions on the superintendence and general control and directions of police. This leaves the executive with a lot of power to control the law enforcement authorities as per vested interests.

• Provisions available to deal with custodial violence. Lack of police accountability: The Prakash Singh guidelines of 2006 had recommended the constitution of an independent complaints authority to inquire into police misconduct. However, this has not been implemented by many states.

Poor witness protection regime:

• Investigations related to custodial killings often run into delays due to a lack of witnesses.
• The lack of strength in the institutional system to protect the witnesses result in the intimidation of the families of witnesses and thus, they turn hostile.
• Though a witness protection bill was introduced in 2015, it’s yet to get a place in the statute books.

Constitutional safeguards:

• Article 20: Right to protection against the conviction of offenses.
• Article 21: Right to life and liberty.
• Article 22: Right to protection against arrest and detention in certain circumstances:
  • Being informed of the grounds of arrest.
  • To be defended by a legal practitioner of his choice.
  • Production in the nearest magistrate within 24 hours of the arrest.

Statutory safeguards :

• Indian evidence act, 1872: Section 25 mentions that a confession to a police officer cannot be proved as against a person accused of any offense.
• Code of criminal procedure, 1973 (amendment in 2008): Section 46 and 49 of the code protect those under custody, from torture, who are not accused of an offense punishable with death or life imprisonment.
• Indian police act, 1861: Section 7 and 29 of the Act provide for dismissal, penalty, or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.
• Indian penal code: Section 330, 331, and 348 were enacted to curb the tendency of policemen to resort to torture to extract confessions.
• Judicial Pronouncements regarding custodial violence
• K. Basu v. State of West Bengal, 1987: Under this case, the Supreme Court of India observed that using torture is impermissible and offensive to Article 21.
• Munshi Singh Gautam and others vs the State of Madhya Pradesh: The Supreme Court ruled that the dehumanizing torture, assault in alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.
• Rama Murthy v. State of Karnataka (1996): The SC while upholding fundamental rights of prisoners identified ‘Torture and ill-treatment’ in prisons as an area that needs reform.
• Nilabati Behera v. State of Orissa: It ensured that the state could no longer escape liability in public law and had to be compelled to pay compensation.

Way forward

• Death due to custodial violence is a heinous act. India, being a flourishing democracy can undertake the following measures to address the issue:
• Dk Basu guidelines: Implementing the 11-point guidelines mentioned in the DK Basu case by the Supreme Court.
• Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
• Implementing Prison reforms: Prison reforms are required for ensuring humane conditions and security for the people in custody.
• CCTV cameras should be installed in police stations and in interrogation rooms.
• Introduction of a monetary body to keep an eye on the activities in the prison.

Police reforms:

• The adoption of an effective mechanism for police will enable police supervisory structures to reduce torture.
• Police reforms to include ethical policing.
• Implementing the recommendations of the Prakash Singh guidelines in letter and spirit.
• The need for the hour is that the government should ratify the United Nations Convention against Torture, which was also recommended by the Law Commission in its 273rd report.