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CUSTODIAL VIOLENCE

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                           CUSTODIAL VIOLENCE

  Author: Bhupesh Sharma, a student of Department of Law Kurukshetra University

INTRODUCTION

In current scenario custodial violence is a term which we all keep hearing here and there. Any layman with limited knowledge of law is capable of make out that it means something negative. First of all, we need to understand what is the exact meaning of custodial violence? and why it remains in news so often? Custodial violence is the term given to the inhuman treatment of persons in custody by the police officials but this act isn’t something new, as it has been in existence for a very long time. custodial violence has not been defined under any other law. It includes wrongful arrest, illegal detention, physical, mental and sexual violence, etc. it also effects the criminal justice system adversely. now, there is need to understand why haven’t we been able to solve this problem? What are the different forms of custodial violence? Till now, what steps have been taken by our country to solve this problem? In order to get the answers of these questions, we have to refer this article.

WHAT IS CUSTODIAL VIOLENCE

In order to understand the meaning of custodial violence let’s understand the meaning of custody and violence separately,

As per the Chambers Dictionary, the condition of being held by the police, arrest, or imprisonment is called ‘custody’. Violence means the use of force by one person over another in order to cause injury to him. The injury may be physical, mental, or otherwise. 

Custodial violence basically refers to violence in police or in judicial custody. it means torturing or inflicting violence on a person or group of persons while in the custody of the police or judiciary. As per the Law commission of India, crime by a public servant against arrested or detained person who is in the custody amounts to custodial violence. Custodial violence usually results in the death of the victim or trauma to the victim. It is vital to note that the term custodial violence has not been defined specifically in any law but it includes illegal detention, wrongful arrest, extorting information under pressure, physical, mental and sexual violence.

During the period of 2001-2018, 1727 persons died in the police custody however, only 26 police officials were convicted for those deaths.

Some of the statistics released by the National Human Rights Commission are as follows:

  1. 151 people died in police custody in the year 2021 as per NHRC. 
  2. 1,569 deaths in judicial custody were recorded in the year 2020 as per NHRC.
  3. Other instances of torture of women, custodial rape of women and gang rape were also reported

TYPES OF CUSTODIAL VIOLENCE

Various types of custodial violence are listed below:

  1. Physical Violence: The most common type of violence is physical violence which is done by the police on the prisoners. Physical violence always leads to bodily harm, exhaustion and always there exists a fear of death.
  2. Psychological Violence; it is also an instance of the custodial violence which is related to mental aspect of a person. It may be done by not providing the basic necessities like food, water sleep, etc. humiliations and threats to the close ones the prisoner would lead them to suffer from mental agony.
  3. Sexual Violence: Any sexual act or attempt to commit any sexual act by coercion or force is known as sexual violence. It also includes verbal sexual abuse or humiliation of one’s dignity. It may also leave a long-lasting psychological impact on the prisoner’s mind.
  4. Denial of Medical Care: it is an another type custodial violence where the authorities deliberately withhold the necessary medical facilities available to the prisioners and as a result leading to physical deterioration and exacerbation of existing illness.
  5. Other forms of Custodial Violence: custodial violence may also include forced confessions, forced stress position, forced labour and other inhuman treatment.

CAUSES OF CUSTODIAL VIOLENCE

Major causes of custodial violence in India are as follows:

  1. Absence of Anti Torture law: The absence of anti-torture law in the country is the major reason that give rise to the custodial violence. There is no separate offence that criminalize the torture in India yet.
  2. Lack of Public awareness: lack of the awareness among the public about their rights gives the police official more confidence to carry on their coercive acts.
  3. Improper training: Lack of the proper training among the police personnels is another major cause of custodial violence. No proper training has been given to them about the rights of the people.
  4. Loopholes in the system: there are many loopholes the system and because of those loopholes, police personnels do not have any fear of being caught so, they continue with their violent means to extract information from the prisoners.
  5. Overburdened with the responsibilities: there is huge burden on the shoulders of the police officials that’s why sometimes, they are forced to solve the case quickly and under this pressure some officials resort to the violent methods to extract information from the prisoner. There is no proportionate ratio between the crime rate and the manpower.
  6. Judicial Delays:  There are numerous cases of judicial delays and due to these police get more time to interrogate and this sometimes leads to assault and torture.
  7. Societal Pressure: Sometimes Police resort to the violent actions to calm the sentiments of the general public affected by the acts done by the person in custody.

NEED TO CURB THE CUSTODIAL VIOLENCE

There is a need to curb the custodial violence in India to upheld the principles of international standard for Human rights as India is a signatory to it. It may also result in international fugitives because in the absence of safeguard to custodial violence, the extradition of offenders becomes difficult for India. Vijay Mallaya is a suitable example of it.

Moreover, it may also lead to psychological issues sometimes. Intolerance by the Police officials towards their psychological needs and issues might lead to sadism, sexual violence, social hatred, etc.

Custodial violence deprives a person from his most important right that is right to fair treatment by law as guaranteed under Article 14 of the Indian Constitution. It also tarnishes the old image of the Police that makes the Police someone to be feared rather than respected.

To curb the custodial violence is also important that it uphold the procedure established by the law. It will enforce the fact that no one is above the law and punishment can be given only by the procedure established by the law.

RECENT INSTANCES OF CUSTODIAL VIOLENCE

  1. Most recent instance of custodial violence happened in the State of Tamil Nadu in 2020. Jayaraj and his son Fenix were picked up by the police for inquiry into the alleged violation of the Indian Government’s COVID-19 lockdown rules. They were also sexually assaulted and tortured by the police because of which they died. The torture continued for 7 hours and the police officials took turns in beating the two. They were stripped naked which further added to the brutality.
  2. Recently, a gangster named Vikas Dubey was arrested by the police for killing eight police personnel in Kanpur. When he had been transported the next day, the vehicle carrying him met with an accident and accordingly overturned. It was alleged by the police that while a policeman was fixing a flat tire, Dubey has snatched his gun and tried to flee. This incident provoked the police and he had to be shot. There have been several clues which indicate that this was staged and that it was another case of custodial violence.
  3.  In another case, five policemen were booked for torturing a man suspected of a crime in the state of Uttar Pradesh. The police officials reportedly inserted a stick inside his rectum and gave him multiple electric shocks. When they come to know that they had arrested the wrong person, they paid him Rs. 100 and let him go. 

LAWS RELATED TO CUSTODIAL VIOLENCE IN INDIA

In India various provisions are available to curb the custodial violence in the criminal law as well as in the Constitution.

Legal Provisions:

Indian Penal Code,1860

  1. Section 330 Provides that whoever causes hurt to extract information or confession which may lead to detection of offence shall be liable to be punished with imprisonment which may extend to 7 years and a fine.
  2. Section 331 Provides the same as in section 330 about grievous hurt but with imprisonment which may extend to 10 years and a fine.
  3. Section 348 prohibits the wrongful confinement and any such confinement for extorting any confession or information for detecting crime. Such offence is punishable with imprisonment of up to three years and also liable to a fine.
  4. Section 220: this section provides the punishment for an officer who maliciously confines any person as imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Code of Criminal Procedure,1973

  1. Section 41: this section was amended by the amendment act of 2008 to provides the safeguards against the abuse of power by the police under 41A,41B,41C and 41D so, the proper procedure must be followed for arrest and it must be done on the basis of reasonable grounds. The family members and the friends must be informed of the arrest and the legal representative must be provided.
  2. Section 163:  this section prohibits the investigating officers from inducing, threatening, or promising under section 24 of the Indian Evidence Act. 
  3. Section 164{4}: this section provides that confession must be recorded and signed in a proper manner and also with the confirmation by the magistrate that confession has been recorded voluntarily.
  4. Section 49: this section provides that more restraint than required to prevent him to escape is not to be imposed by the competent authority.

Indian Evidence Act, 1872

  1. Section 25: This section provides that no confession made to the police officer can be used to prove the offence against the accused.
  2. Section 26: This section provides that any confession made during the custody is not admissible unless it is made in the presence of a magistrate.

Police act, 1861

  1. Section 29: This section provides that if a Police officer inflicts violence on any person in custody, he shall be liable for imprisonment up to 3 years or penalty up to pay of 3 months or both.

Provisions in the Constitution

  1. Article 20{1}: As per Article 20{1} of the Constitution, no person shall be convicted of any offence except for the violation of law in force at the time of the commission of the offence.
  2. Article 20{2}: Article 20{2} provides that no person shall be punished twice for the same offence.
  3. Article 20{3}: As per Article 20{3}, no person shall be compelled to be witness against himself.
  4. Article 21: this article provides that no person shall be deprived of life and his personal liberty. This ambit of this article is so wide. It provides the protection against any kind of assault, injury and torture.
  5. Article 22:  Article 22(1) provides that no person shall be arrested without being informed about the grounds of arrest nor shall he be denied access to a lawyer. Article 22(2) provides that every person who has been arrested must be produced before the magistrate within 24 hours of the arrest excluding the time taken for the journey from the police station to the magistrate.
  6. Article 39A: Article 39A provides for the establishment of NALSA and contains the provision for free legal aid to the poor persons.

INTERNATIONAL CONVENTIONS FOR HUMAN RIGHTS

  1. United Nation Charter,1945: this charter states that Prisoners must be treated with dignity. It was  it states that despite of the fact that they are prisoners, their fundamental rights and human rights are laid down in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
  2. International Human Rights Law,1948: International Human Rights law,1948 protects the people from torture and other enforced disappearances.
  3. The Nelson Mandela Rules,2015: These rules have been adopted by the UN General Assembly in 2015 so the prisoners will be treated with inherent dignity and protected from the other ill treatment.

Conclusion

Despite of the fact that there are various legislation provisions given in the Indian codes, the problem of custodial violence still exists. There is a need for the proper implementation of the legal reforms to curb the instances of custodial violence.

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