Custodial Violence: A crime against Humanity

Written By: Dhimaan Dutta

What is Custodial Violence?

Custodial violence refers to acts of violence committed while in the custody of the police or the courts. Rape and torture are two more kinds of incarceration violence, in addition to death. Custody violence is not a new occurrence. Sections 330, 331, and 348 of the Indian Penal Code; Sections 25 and 26 of the Indian Evidence Act; Section 76 of the Criminal Procedure Code; and Section 29 of the Police Act, 1861 were created to prevent police officers from using torture to elicit confessions and other information. It is crucial to emphasize that, despite these legal safeguards, there is still custodial violence. Table 1 shows the number of fatalities in custody reported to the National Human Rights Commission by state governments (NHRC).

It’s worth noting that, under the NHRC’s December 1993 rules, every instance of incarcerated death or rape must be notified to the Commission by state governments within 24 hours of occurrence. A post-mortem report, a videography report on the post-mortem examination, an inquest report, and a magisterial inquiry into fatalities caused by sickness or old age should be followed by information on custodial deaths.

Medical malpractice, inter-prison violence, and suicide account for the remaining 20% of deaths. Torture, sickness, suicide, and accidents are the leading causes of mortality in police custody. The number of people who die in judicial custody is exactly proportional to the number of people who are incarcerated at any one time. Overcrowding is one of the major issues confronting Indian jails today, as highlighted in the May 2004 issue of Human Touch. Overcrowding causes inadequacies in essential services like medical facilities, food quality, and others, all of which have a negative impact on the inmates.

Year	Police custody	Judicial Custody	Others	Total
1994-95	111	51	9	171
1995-1996	136	308	0	444
1996-1997	188	700	0	888
1997-1998	191	807	0	998
1998-1999	180	1106	0	1286
1999-2000	177	916	0	1093
2000-2001	127	910	2	1039
2001-2002	165	1140	2	1307

Section 36(1) of the Protection of Human Rights Act, 1993, dealing with “matters not subject to the Commission’s jurisdiction,” needs to be amended, since this section is utilized by state governments to circumvent the NHRC. Constant vigilance by organizations such as the National Human Rights Commission and other non-governmental organizations working to protect and promote human rights, combined with effective custodial management, would be able to address the country’s problem of incarcerated death, rape, and torture.

An increasing problem of incarceration violence, in India

India’s Police System’s Evolution and Development

Throughout history, India’s police force has served as the country’s primary law enforcement agency. The governance of a state was entrusted to ruling individuals or family groups during the early and medieval periods of civilization. Individual rulers felt compelled to pronounce laws of the state as such from time to time. The ruler’s law was practically enforced by the police, which entailed disciplined conformity with the ruler’s demands and wishes. In ancient India, the primary notion of government was Dharma and Danda, and there were officials to guarantee that ‘Danda’ ran smoothly. Every village had its own local court, which was made up of the village’s elders and the Headman.

Minor criminal cases, such as petty thefts, as well as civil disputes, were decided by the courts. Gramadhipati is mentioned in the Mahabharata, and Grambhojaka is mentioned in Buddhist Jatakas. While these were actually village chiefs, the Nagaraguthka was in charge of apprehending and killing robbers (The First Report of National Police Commission, 1979, Encyclopedia of Police in India, 1993). During the Mughal period, the Faujdar and the Kotwal were the most important police officers. A Mahal or Parganah is a collection of villages that have been grouped together. A Sarkar was formed by a group of Parganahs, and a subah or Province was formed by a group of Sarkars. The Kotwal was in charge of policing cities, towns, and their surrounding areas.

The Kotwals’ functions are mentioned in Ain-i-Akbari. He was in charge of the heirless property, cemeteries, burials, slaughter, houses, and jails, as well as preventing crime and social abuses. He patrolled the city at night and gathered information on men and matters from paid informants. The sand of his position required him to ensure that his city was free of theft. He kept track of the addresses and occupations of every town resident in a register, kept track of the income and expenditure of various classes of men, and double-checked the accuracy of weights and measures. He was also in charge of intoxicant preparation and distribution, as well as the professions of prostitutes.

As a result, his roles were a preventative, detective, and regulatory. The Faujdar was the head of the Sarkar and was in charge of putting down rebellion and disorder in his mostly rural jurisdiction. He could communicate directly with the Imperial Government despite being subordinate to the provincial Governor. He dispersed robber gangs and arrested them, as well as taking responsibility for all violent crimes. His responsibilities included guarding country roads, suppressing violent crime, hunting down bandits, preventing the manufacture of firearms, arresting disturbances of the peace, and assisting the Malguzars in the collection of revenue by using force to overcome opposition when necessary. In practice, the Zamindar was made responsible for the people of his zamindari’s peace and security.

The only job of the Faujdar was to make sure the Zamindars did their job (Report of National Police Commission, 1979, Encyclopedia of Police in India, 1993). To reform the existing system, the British took the first step by relieving the Zamindari of their responsibility for police service, which was taken over by the district magistrate. Several attempts to reform the police were made during British rule, but the first major step was the passage of a statute, which was the Police Act of 1861. (5th Report of Second Administrative Reforms Commission, 2007).

What causes Custodial Violence?

Despite the fact that every segment of society is concerned about prison violence, it has continued unabated over the years. It appears to be increasing every year, despite the fact that literacy has increased and people have become more aware of their rights and responsibilities. The police are the main branch of the criminal justice system that deals with people in custody. As a result, it will be necessary to investigate the ailments that govern this agency and result in abuse of those who are in their custody. In this section, we try to figure out what is at the root of the problem of incarceration violence. It is necessary to research the conditions in which police officers work and their methods of dealing with suspects in order to achieve this. Custodial violence has several root causes, which can be classified as follows: –

Work pressure
Desire for Money
Violent Retaliation
Re-enforcement with a positive attitude
Subculture of the Police
Insufficient training

Work Pressure

Due to the deteriorating law and order situation, riots, political upheaval, student unrest, terrorist activities, and an increase in bribery, corruption, tax evasion, fiscal law violations, smuggling, and money laundering, India’s police force has a difficult and sensitive task ahead of them. Organized criminal gangs are becoming more entrenched in society. They utilize cutting-edge weapons, explosives, and a variety of other technologies to commit crimes while leaving no trace of their actions. Dealing with rebel and terrorist groups differs significantly from dealing with ordinary criminals.

This type of criminal is well-trained, hardened, and armed with cutting-edge technology. A regular cup with a tiny revolver or even a pistol that was given to him is always no match for them. Indeed, a cunning criminal may virtually indefinitely evade the law’s grasp. The Indian police force is currently hampered not by a lack of numbers, but by a lack of infrastructural facilities such as modern weaponry and equipment, transportation and communication networks, and, most importantly, need-based training, which is critical to making it a more efficient and effective law enforcement tool. This can be seen in a very famous movie “The state v/s Jolly LLB 2”.

Under the law, an accused or suspect may be held in police custody for a maximum of 24 hours. In the meanwhile, much information has to be obtained from the suspect, particularly in cases involving property, on which the prosecution’s success is highly dependent. After several days of unreported and unlawful incarceration, the investigating officer documents the arrest whenever it is possible. As a result of the pressure to obtain as much information as possible in the shortest amount of time, the investigating officer is forced to employ shortcut methods.

2. Desire for Money

This is the most heinous cause for incarceration torture, and it appears to be on the rise. A lot of police officers employ force to collect money from suspects and innocent people at the police station level. The legal position and the type of evidence aid in the process of making SHO very strong and giving what he does a sense of finality, giving him the unforeseen authority to make the money and avoid the monitoring process. The FIR is extremely important to the courts, and the type of FIR that is drafted depends on the officer on duty.

He may always threaten to incriminate an honest man, even beat him up, or simply keep him waiting around the police station until he offers him money when he’s investigating a dacoity case. Supervision occurs after the event, and while it can seek to penalize the offending officer, it seldom effectively reverse the wrongdoing or retrieve degraded evidence. Everyone prioritizes money, and everyone wants money, and this is the mental state of our primitive to greater civilization. For this reason, the police system established chains from the ministry to the police. Today’s police apparatus serves as a source of revenue for officers and ministers. Each police station has a fee, and any officer who is willing to pay that fee will be assigned to that station.

3. Violent Retaliation

There are a few good-hearted but misinformed cops who feel that the offender should not get away with it. They truly feel that there are no other means of managing criminals than a good thrashing. According to the U. P. Police Commission from 1970 to 1971, “The usage of the third-degree technique stems from erroneous beliefs. There is a segment of the public and the police force, albeit a small one, that believes in the usefulness of third-degree tactics alone in dealing with criminals, particularly hardened offenders.

They claim that a prison sentence is no longer a deterrence to offenders. They are content there, especially now that conditions within the cells have begun to outperform that outside, and the only thing they fear is a police beating. It is not uncommon to hear rotaries opposed to third-degree procedures asking for the employment of ‘police methods’ to resolve a case in which they are personally involved.” Because the criminal justice system’s overall tone is punitive, a subsystem that is supposed to serve the public cannot do so. The nature of the police function becomes punitive as a result of the system’s limitations, and many police officers regard their violence as an extension of the organization’s punitive purpose.

4. Re-enforcement with a positive attitude

Results must be produced regardless of the restrictions. As things are, a police officer, say a sub Inspector, who is harsh, exclusively employs shortcuts, and is dishonest in his methods, gets results. The creation of the result relieves pressure on his superiors, even winning plaudits from all quarters, with the consequence that all of his faults are forgiven and must be pardoned. Inevitably, and sometimes early, such a cop climbs through the ranks.

This not only confirms his employment of third-degree tactics in his own eyes but also in the eyes of his peers and subordinates. When a police officer’s competence at the third degree is widely recognized, other officers who are presented with a difficult circumstance or case may seek his aid. Then, like a top performer, he ‘tackles’ the suspect and gets results, earning a reward in the process. Constant positive reinforcement of the third-degree approach when it yields results is a major source of violence among police officers in detention. Positive reinforcement of police violence occurs as a result of the fact that it achieves outcomes, and it produces them quickly, at least faster than it would otherwise.

5. Subculture of the Police

The social side of the same coin is the police subculture. It boils down to the notion that a police officer reacts to a circumstance in a way that is unique to him as a police officer and hence distinct from how other individuals would react to the same scenario. Our police force’s subculture involves the employment of third-degree techniques. Alienation, cynicism, societal law-esteem, a sense of being a pariah, contradictory expectations placed on cops, and inconsistent evaluations of their performance all contribute to the police subculture’s strength.

In this situation, a police officer finds solace among other members of his community with whom he identifies, leading to group solidarity, which in turn provides a sense of security against the dangers of his job, as well as a foundation for self-esteem and social affiliation despite his irregular work hours. As a result, a group culture emerges, requiring more conformity to threats, tortures, and other forms of coercion rather than rules, laws, and commands.

6. Insufficient training

Due to a lack of adequate training for police officers, third-degree tactics are frequently used. Constables’ training is woefully inadequate, and there is a general lack of emphasis on the need of maintaining one’s cool, being courteous and respectful to the people, and avoiding brutality or excessive harshness, all of which contribute to violence.

One of the goals of training, according to the Gore Committee on Police Training in 1972, should be to instill the appropriate attitude toward the public, which includes never forgetting that the civil servant is the servant, not the master of the society. Unfortunately, no sufficient training with the above-mentioned goal has been offered to police officers to date. Police officers should receive adequate training, which should include a separate course in which they learn about human rights and how to safeguard them rather than infringe on them.

Indian Constitution in view with Custodial Violence

Arrest, imprisonment, custodial torture, and other offenses in custody are all covered under India’s legal system, which is both constitutional and statutory. A person who injures, tortures, or kills a person in custody is punished by the substantive law (Indian Penal Code, 1861). Several laws in the procedural legislation (Criminal Procedural Code, 1973, and Indian Evidence Act, 1872) protect a person in custody’s legal rights. Significant court declarations have complemented the Constitutional and applicable statute provisions on the issue.

Furthermore, the Protection of Human Rights Act of 1993 establishes the National and State Human Rights Commissions, as well as Human Rights Courts, to better safeguard a person in custody’s human rights. India has ratified, acceded to, and signed international declarations, covenants, conventions, and treaties such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Economic, Social, and Cultural Rights (ICESCR), International Covenant on Economic, Social, and Cultural Rights (ICE ( CEDAW), The Convention on the Rights of the Child (CRC), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the International Convention on the Protection of the Rights of All Persons against Enforced Disappearance (ICDE) are all treaties that prohibit torture and other cruel, inhuman or degrading treatment or punishment (CPAED).

Apart from that, the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power is important. Article 21 of India’s Constitution states that no one’s life or personal liberty may be taken away from them unless they follow a legal procedure. The right to life is a basic human right. Personal liberty is protected by Article 22 of the Constitution, which states that an arrested individual must be notified of the circumstances of his detention and must be brought before a magistrate within 24 hours of his arrest. “The most prized treasure of man is liberty.” Our constitution guarantees citizens’ right to life and liberty, as well as protection from or against arrest.

The protection of a citizen’s life and liberty includes the person arrested, because the person arrested is also an Indian citizen who is protected by Article 21 of the Indian constitution, and if his life and liberty are to be curtailed at all, it must be in accordance with Article 21 of the Indian constitution, which states that “no person shall be deprived of his life or personal liberty except in accordance with Article 21 of the Indian constitution.” As the Supreme Court of the United States demonstrated in Kharak Singh v. State of Uttar Pradesh, the term “personal liberty” does not refer exclusively to physical constraint or confinement to jail. Fundamental Rights are addressed in Part III of the Constitution. Articles 20, 21, and 22 of the Constitution contain restrictions that are directly applicable to the criminal justice system. Article 20 (1) forbids the application of criminal legislation retroactively.

Double jeopardy for the same offense is prohibited under Article 20(2). No individual accused of a crime may be forced to testify against himself, according to Article 20(3). Of course, the constitution prohibits testimonial compulsion on the grounds that it may be used as a form of coercion against the accused. Article 21 of the Constitution states that no one can be deprived of their life or personal liberty unless they follow a legal procedure. The phrase “life and personal liberty” in the Article has been construed to encompass the constitutional right against torture, assault, or injury to a person in detention. The following are some examples of illustrative decisions: in Dastagir v. State of Madres, it was determined that torture-like punishment is illegal.

In the case of Inderjeet v. State of Uttar Pradesh, the Supreme Court held that prison restrictions that amount to torture, pressure, or infliction and go beyond what the court authorities allow are unconstitutional. It also stated that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint that is not warranted by the punishment imposed by the Court, or that is imposed without the permission of the Court. Articles 22(1) and 22(2) of the Constitution are particularly important for this discussion since one of their goals is to guarantee that certain checks and balances are in place in the legislation to avoid the misuse of arrest and detention powers.

Article 22(1) states that no person who is arrested should be held in custody without first being notified of the reason for his or her detention as quickly as possible, nor may he be denied the right to consult with and be represented by a lawyer of his or her choice. Article 22(2) states that anyone arrested and detained in custody must be brought before the nearest Magistrate within 24 hours of their arrest, excluding the time required to travel from the place of arrest to the Magistrate’s court, and that no one may be held in custody beyond that time without the permission of a Magistrate.

The “Police” are included as Entry 2 in the State List in the Constitution’s Seventh Schedule, making the State Government principally responsible for preserving public order. Variously, the police force, which is part of the civil administration, is in charge of preserving peace and order within the framework of constitutional government based on the ideals of the “Sovereign Socialist Secular Democratic Republic” to protect people’ fundamental rights. A Code of Conduct for the Police in India was approved by the Conference of Inspectors General of Police in 1960 and distributed to all state governments, in keeping with the notion of democratic policing.

Cessation

Custodial violence and fatalities are not a new occurrence. It has been in our civilization for millennia. Despite many attempts in recent years, torture and inhumane treatment remain widespread in India, depriving thousands of people of their basic dignity. Custodial torture has grown so widespread in recent years that not just the police and bureaucracy, but also the general public, accept it as a standard police interrogation practice. As a result, news of such heinous behavior only produces a brief shock in society. When a person dies in custody, there is a public outcry that either fades away with time or is at least subdued by the formation of an investigating committee.

Under some circumstances, all countries’ laws allow police to use force. This authority is essential to its function and cannot be called into doubt. It’s part of the job description for cops. Despite laws that protect a person’s life and liberty, and despite numerous reports issued by various committees from time to time, why are there still instances of incarceration brutality, torture, and death? We understand that police officer operate under a great deal of stress and that other distraction exists, but the police have no authority to inflict cruelty on a vulnerable individual in their possession while neglecting the “canons of law.”

In a democratic society like India, the people, not the police, are the true masters, as they have sovereign authority. The police are just representatives of the government, which is ultimately responsible to the people. Murderers, armed robbers, chronic criminals, and terrorists must all be protected by the police in order for society to be a safe place to live. Apprehension of a gang of dacoits, arrest of an accused who aggressively resists arrest, and so on are examples of circumstances in which police must use force.

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