Police play a vital role in the Indian criminal system as it acts as a mediator between the judiciary and the citizen. This fact can not be denied that a policeman is a watchguard of our fundamental rights but what if he turns hostile and manipulates those rights. Who will be responsible for it, then? Who will provide us with the desired remedy? These questions remained unanswered since time immemorial and as a consequence of every such inhumane act of custodial violence, people are losing faith in justice delivering system. Custodial violence primarily refers to violence in police and judicial custody.
The word ‘custody’ implies guardianship and protection. Section 167 of the Criminal Procedure Code, 1973 [Hereinafter “CrPC”] speaks about the kinds of custody i.e., the police custody and the judicial custody. Custodial violence affronts human dignity in all ways and hence imposes a threat to justice. Rule of law demands that the power of the executive shall not only be derived from the law but also be limited by the law. Custodial violence is a brutal act committed within the four walls of the lockup where the victim being totally helpless.
Nowadays, countries all over the world have cases of custodial violence which includes custodial torture, assault, rape and death and other third-degree harassment. These issues portray a sadistic image of misuse of powers by the officials. Prisoners are also humans and they do have a right, a right to life, a right to safe environment, a right against unlawful detention, and a right to protest. There have been incidents of custodial death and torture in India which always raises concern towards public interest and attracts media attention. There is no authentic statistics of such grave violence as most of these acts go unrecorded. Section 330, 331 and 348 of the IPC, section 76 of the CrPC, section 25 and 26 of the Indian Evidence Act, and section 29 of the Police Act, 1861 were enacted in order to deal with these brutal acts. Even after enactment of various such provisions, the gravity of custodial violence didn’t decrease which can be deduced from the NHRC reports every year. Highlighting the history of custodial violence it is in existence in our society for ages. According to Kautilya’s Arthashastra, the prisoners were punished by burning off their limbs, mutilation and offering them to wild animals. Manu, the first lawmaker emphasized the need for torture for saving the society from culprits. In Gupta empire, torturing of prisoners was a form of punishment. In ancient India the policies of Dharma and Danda were operational. In the Shariat era, the thief’s hands were cut off and other such kinds of retribution. Also, the British Raj in India is infamous for acts termed as custodial violence for extracting confessions.
The issue of custodial violence is not peculiar to our country but it is a universal problem. The Universal Declaration of Human Rights in 1948 which guaranteed certain basic human rights mentioned in Article 5 that no on one shall be subject to brutality and any other kind of inhuman act or punishment. Though after such steps for eradication of these crimes, they continued in our society. In the case of D.K. Basu V. State of Bengal [1], the Court exhaustively considered the question of custodial violence and held that the monetary compensation will be awarded on breach of the fundamental right given under Article 21. In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble [2], the Court warned against the genuine claims and ordered to carefully examine the allegations of custodial violence. In Sheela Barse v. The State of Maharashtra [3], the letter of a journalist regarding the custodial violence with women prisoners in Bombay was submitted in the Court. The Court treated the letter as a writ petition and gave directions accordingly.
There are many root causes which are leading to surging in a number of such acts by the functionaries of government. Some of them are work pressure, the greed of money, punitive violence, lack of proper training etc.
Conclusion:
We cannot deny the fact that custodial violence is prevailing in our Indian society for ages. Many provisions are crafted and a lot more initiatives are taken in order to curb with this. Whenever any such incident of custodial violence takes place there is a moment uproar in the society which ends up at accepting such act as a part of the police or judicial interrogation. Despite framing of innumerable legislations and several enquiry committees for dealing with custodial death, rape, and torture there is no major outcome. We do accept that police officials have work pressure as they are one of the main functionaries of government in whom a major sovereign power is vested but they certainly have no right to inflict brutality ignoring the procedure established by law.
[1] D.K. Basu V. State of Bengal, (1997) 1 SCC 416.
[2] Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, Appeal (crl.) 857 of 1996.
[3] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
This article is written by
Manisha Arora of
Damodaram SanjivayyaNational Law University
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