Custodial Violence & Torture in India

The advent of Custodial Violence and torture in custody has increased in its crisis according to the ‘India Annual Report on Torture 2019’ stated a total of 1,731 custodial deaths in India. Out of those – 1,606 died under judicial and 125 under police custody[1]. The problem of custodial death and torture in custody is already prevalent in several states date back several years came into the spotlight in the recent case of ‘Custodial Torture ‘of a father-son duo, Jayaraj and his son Bennicks (Fenix) who were held in custody and were brutally torture for breaking the lockdown guidelines

by keeping their cellphone shop open during the business hours in Tamil Nadu. The incident clearly highlighted the fact that those in charge of law enforcement often disregard the rule of law.

But before going further let us understand – Custodial Violence. In legal language the term ‘Custody’ is defined as any point in time when an individual’s freedom of movement has been denied by law enforcement agencies at the time of arrest and prosecution[2]. Criminals and detainees taken into custody are often subject to third – degree torture and

violence in police custody to obtain confessions and statements. Such methods used by law enforcement agencies often led to injuries and deaths. There is no particular definition of Custodial Violence under the law but besides death,

rape and torture also comes under the form of custodial violence.

The term ‘ torture’ is defined as an act by which severe pain and suffering either in physical or mental form is intentionally inflicted on a person for obtaining from him, or a third person, information or confession, punishing him for an act he or a third person has committed or is suspected of having committed , or forcing him or a third person for any reason based on discrimination of any kind , and such act is done by the consent of public official or a person acting in legal capacity[3]. The act of violence and torture are now practice as a routine procedure to extract information from the accuse.

Contents  hide 

1 Legal Remedies & Case law –

2 Conclusion

3 References Used

4 Related

Legal Remedies & Case law –

Article 21 of the Indian Constitution does not specifically say about the custodial torture and violence but states that –

No person shall be deprive of life or personal liberty except according to the procedure establish by the law. Even the convicts under trials, or prisoners under custody cannot be denied their basic rights.

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be deriver from law but also that the same should be limit by law. It is commit under the shield of uniform and authority in the four walls of a police station or lock-up,

the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a

matter of deep concern in a free society.”[ DK BASU V STATE OF BENGAL (1997) 1 SCC (416)[4]

The landmark judgment which plays a significant role in the prevention of police violence and torture against the prisoners and detainee in police custody (police lockups at the police station is – DK BASU V STATE OF WEST BENGAL[5]. This case led to the ‘Custodial Jurisprudence’ in India’

The Supreme Court issued a list of 11 guidelines also known as – “DK BASU Guidelines” which needs to be strictly followed in all ‘Cases of Arrest’.

1. The Police personnel should carry clear identifications and name tags with their designations. A record must be maintain in the register for all those carrying out the interrogations.
2. Arrest Memo should be maintain and memo should be verify by at least one witness, who may be a member of the family of the arrestee or a respectable member of the locality from where the arrest is make. The date and time of the arrest should be note and the countersignature of the arrestee should be take.
3. A person who has been arrest and is being held in custody shall be entitle to have one friend or relative or other person known to him or having an interest in his welfare being inform, about the arrest unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee
4. The time, place of arrest, and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest
5. The person arrest must be made aware of this right to have someone inform of his arrest as soon he is put under arrest.
6. An entry should be make in the diary at the place of the arrest regarding the name of the arrestee, his friend who has been inform about the arrest along with the details of the names and particulars of the police officials in whose custody the arrestee is
7. If the arrestee request a medical checkup of any existing major and minor injuries present on his/ her body at the time of arrest must be recorded in the form of an Inspection Memo, signed by both the police officer and the arrestee. A copy of the same should be hand over to the arrestee.
8. The arrestee should undergo a medical examination every 48 hours while in custody by a trained doctor from the panel of the approved doctors appointed by the Director, Health Services of the State or Union Territory concerned. Such a panel should be prepare in all tehsils and districts by the Director.
9. Copies of all the documents must be send to Magistrate for registration.
10. The arrestee must be allow to meet his lawyer during interrogation, though not during the interrogation
11. A police control room must be set up in all districts and state headquarters. The officer causing the arrest should communicate all the information within 12 hours of arrest regarding the arrest of the person and the place of his custody.

Guidelines were issue to bring transparency and accountability at the time of arrest and detention.

Conclusion

Hon’ble Justice Krishna Iyer brought a very fundamental but very significant question before us – ‘Who will police the police’[6]?  Torturing an accuse or detainee is a violation of the powers gives to the police. Police who are suppose

to be the protectors of the citizens and the law do not have the right to take the law into their hands. Custodial death is one of the worst crimes and a naked violation of human dignity. Its high time now that strict laws and measures should be take to stop the counter-violence by the police.

References Used

1 DK BASU V STATE OF BENGAL (1997) 1 SCC (416)https://indiankanoon.org/doc/501198/

2 SanchitaKadam, Revisiting DK BASU: The most relevant judgement of all time. https://cjp.org.in/revisiting-dk-basu-the-most-relevant-judgment-of-all-time/

3 Summary DK BASU V STATE OF BENGALhttps://www.casemine.com/judgement/in/5609ace1e4b014971140fee9

4 Abhishek Singhvi, Implementation of  DK Basu judgment can protect against Custodial Torture, Death https://indianexpress.com/article/opinion/columns/tamil-nadu-police-custodial-deaths-torture-guarding-the-guardians-6484025/

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[1]Press Release – India records daily five deaths in custody, Uttar Pradesh tops deaths in police custody in 2019, National Campaign against Torture ( February 1, 2021) 

http://www.uncat.org/press-release/press-release-india-records-daily-five-deaths-in-custody-uttar-pradesh-tops-deaths-in-police-custody-durin

[2]§ Sai Vikranth Deshpande, Custodial violence in India, The Lex-Warrier: Online Law Journal (2019) 3, pp. 173 – 179, ISSN (O): 2319-8338Custodial-violence-in-India.pdf (lex-Warrier. in)

[3]United Nations Convention against Torture – Wikipedia

[4]DK BASU V STATE OF BENGAL (1997) 1 SCC 416

[5] (1997)1 SCC (416)

[6]Aadhyaa Khanna and Chetan Chawla, The Enshrinement of Custodial Violence in India, Bar and Bench ( February 1,

2021) The enshrinement of custodial violence in India (barandbench.com)