Context : The Supreme Court has asked for government’s response pertaining to implementation of Section 176(1A) of the CrPc, which calls for a mandatory judicial inquiry related to incidents of death, disappearance, rape etc in police and judicial custody.
State of Custodial Violence in India:
- With the custodial deaths of Taslim and Gufran(April, 2019) in Bihar, and Pradeep Tomar in Uttar Pradesh ,the issue presses for a redressal at the earliest.
- Custodial deaths have been on the increase in recent years.
- The NHRC has recorded 24,043 custodial deaths/rapes from the time Section 176(1A) has come into existence till date.
- As per NCRB reports, custodial violence increased by 9% in 2017.
- judicial inquiry has not been conducted in about 80% of the recorded cases of Custodial death/rapes.
- The Central Bureau of Investigation also resorts to torture as a method of investigation.
- Policemen responsible for custodial deaths are hardly brought to justice, for instance, in 2015,the police registered cases against fellow police officers in only 33 of the 97 custodial deaths.
- Last year, a Delhi court sentenced five U.P. policemen to 10 years of rigorous imprisonment for torturing a man to death in custody in 2006.
- India is a signatory to UN convention against Torture, but it hasn’tt ratified it yet.
- In 2010, Prevention of Torture Bill was introduced in Parliament but it got it lapsed with the 15th Lok Sabha getting dissolved in 2014.
Types of Custodial Violence:
- Physiological Violence: It includes mental torture by means of depriving him/her of basic needs such as food,sleep. It also includes threats and humiliations to break the confidence and morale of the victim.
- Physical Violence: In its ambit methods are employed to wreak physical assault on the victim.
- Sexual Violence: Sexual violence is employed through rape/sodomy and is generally directed towards social and psychological harassment of the victims.
Protections Under Indian Laws:
- Article 20 of the constitution is directly relevant to the criminal process.
- Article 20(1) - Prohibits the retrospective operation of penal legislation.
- Article 20(2) - It guards against double jeopardy for the same offense.
- Article 20(3) - It provides protection against self-incrimination.
- Article 21: Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by law.
Supreme Court rulings
- The Apex Court earlier declared that any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live.
- D.K. Basu v. State of West Bengal - Under this case, the Supreme court of India observed in this widely publicized death in police custody that using torture to impermissible and offensive to Article 21.
- Munshi Singh Gautam and others v. the State ofMP - It ruled that the dehumanising torture, assault in alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.
- Prakash Singh v. Union of India, 2006 - It ruled a slew of reforms to be undertaken for overhauling of the Police system.
- Among other reforms, it ruled that every State should have a Police Complaints Authority where any citizen can lodge a complaint against policemen for any act of misdemeanour.
Under the Code Of Criminal Procedure, 1973
- Section 49: Section 49 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
- Section 57: Section 57 provides that no police officer shall detain in custody a person arrested without a warrant for a longer period.
- Section 41: It was amended in 2009 to include safeguards so that arrests and detentions for interrogation have reasonable grounds and also protection through legal representation is ensured.
SOPs by Agencies
- The Central Vigilance Commission has published a Standard Operating Procedure which in turn has laid guidelines to be followed for interrogation of accused officials.
Issues in Implementation
- The provision of Police Complaints Authority(Praksh Singh case) has been implemented by a handful of states only such as Kerala, Jharkhand, Haryana, Punjab and Maharashtra.
Implications of Custodial Violence
- It is a major issue of human rights concern and one of the root obstacles to democracy and the development of human well being in contemporary societies.
- Given the poor state of prisons in India, it faces a tough challenge in extradition of criminals from various countries accused of diverse offences such as economic offences,criminal conspiracy, sexual offences, etc.
The practice of custodial violence in developing countries like India, is, however, more difficult and complex. A large number of cases of police brutality take place not because of individual aberration, but because of systematic compulsions.
Law Commission’s (273rd Report) Recommendations
- The commission recommended to broaden the definition of torture
- It calls for including acts of inflicting injury, either intentionally or involuntarily, or even an attempt to cause physical, mental or psychological injury.
- It suggested the burden of proof to be put on the police.
- Life term for cops found guilty of custodial violence.
- Amendment to CrPc in order to provide compensation for the victims of torture.
- Also recommended for Ratification of the UN Convention against torture and a new Anti-torture Law.
Jammu Kashmir Coalition of Civil Society Recommendations
- Age-old third-degree torture should be done away with.
- More scientific methods of investigation.
Reforms in Police System
- Adoption of an effective mechanism for police will enable the police supervisory structures to reduce torture.
- Police reforms to include ethical Policing.
- Improvisation in recruitment process, Training and sensitisation of Police forces.
- Overhauling of the Criminal Justice System.
- Proper interrogation techniques coupled with use of scientific methods
- Implementation in letter and spirit of SC judicial ruling in Prakash Singh case.
- Judicial inquiry followed by exemplary punishment to the policemen who are found responsible for custodial deaths.
- Capacity building of Prisons
- Novel concepts like Open prison must be employed.
- Immediate release of undertrials.
- Reporting of deaths to NHRC within 24 hours.
- Implementation of Justice Amitava Roy Committee, Malimath Committee & Mulla Committee recommendations.