Custodial torture - A naked violation of human rights

Kh. Tarunkumar *

Custodial violence and abuse of power of law by the enforcing machineries like police is not only peculiar but it is widespread in this democratic country. It has been the concern of international community as the problem is universal and challenge is almost global. The Article 5 of the Universal declaration of Human Rights, 1948 clearly states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

Further, Article 7 of the International Covenant On Civil and Political Rights, 1966 also states in a similar way - "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" Article 9(1) of the said covenant also says that "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

India has already ratified the aforesaid declaration and covenant. Despite such ratification, the custodial crimes continues unabated. In all custodial crimes what is of real importance is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police lock up.

Article 21 of the Indian Constitution Provides ­

"No person shall be deprived of his life or personal liberty except according to procedure established by law." Personal liberty, thus is a cherished right under the Constitution. The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State and its law enforcing machineries. Article 22 guarantees protection against arrest and detention and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.

Article 22(2) states that person arrested and detained in police custody shall be produced before the nearest Magistrate within a period of 24 hrs. of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Section 50 of the Criminal Procedure Code, 1973 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence.

Inspite of the constitutional and other provisions for safeguarding the life and liberty of the public growing incidence of torture and deaths in police custody has been a disturbing factor. Incidents of violation of human rights take place durirg the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts technique of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. There are various newspaper reports of torture, asuault, rape and death in the police custody or other law enforcing machineries. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of rule of law and the administration of criminal justice system.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to soIve the crime. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No democratic society can permit it.

In the case of Nilabati Behra V. State of Orissa reported in (1993) 2 SCC 746, the Hon'ble Supreme Court of India has held that: " It is axiomatic that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the state to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in custody. The precious rights guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody except according to procedure established by law... ... The duty of care on the part of the State is strict and admits no exceptions. The wrongdoer is accountable and State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law."

In order to prevent and check the misuse of power by the police and other investigating agencies, the Supreme Court of India has laid down 11 (eleven) requirements and directions to be followed in all cases of arrest or detention in the landmark case of D.K. Basu - Vs - State of West Bengal reported in (1997) 1 SCC 416. The following points are also included "The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tag with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

That, the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest ............

The arrestee should be subjected to medical examination by a trained doctor every 48 hrs. during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director Health Services should prepare such a panel for all tehsils and districts as well.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation... ...:...

A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer carring out the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

The Hon'ble Apex Court further warned that failure to comply with the aforesaid 11 (eleven) requirements shall apart from rendering the official concerned liable for departmental action also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country having territorial jurisdiction over the matter.

In the said case of D.K. Basu, the Hon'ble Supreme Court of India further held that custodial death is perhaps one of the worst crimes in a civlised society governed by the rule of law. If the functionaries of the government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and everyman would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen.

In Rudul Shah - Vs - State of Bihar reported in (1983) 4 SCC 141, the Hon'ble Supreme Court of India has held that the supreme Court under Article 32 of the Constitution of India can grant compensation for the deprivation of personal liberty though ordinary process of Court may be available to enforce the right and money claim could be granted by the Court. Accordingly compensation was awarded. This view was reiterated in Nilabeti Behera Vs. State of Orissa reported in (1993) 2 SCC 746 and the Supreme Court awarded monetary compensation for custodial death lifting the State immunity from the purview of public law.

In D.K. Basu case also, the Supreme Court held that grant of compensation in proceedings under Article 21, in an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. It is therefore settled law that in public law the claim for compensation is a remedy available under Article 32 or 226 of the Constitution of India for the enforcement of the fundamental rights. The defence of sovereign immunity is in applicable and alien to the concept of guarantee of fundamental rights.

Attention is required to be given to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Scientific methods of investigation also requires to be introduced. To deal with such a situation, a balanced approach is needed to meet the ends of justice. The endeavour should be to achieve balanced level of functioning where police respect human rights, adhere to law and take confidence building measures and at the same time, deal with organised crimes, terrorism, white collared crime, deteriorating law and order situation etc.