This article has been written by Hemakshi Gupta pursuing a Lord of the courses (judiciary test prep) from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Accused? Guilty? Or a victim ? Are you afraid of the police? Well, why would you not be? Of course, we are scared, not because of the position they hold but because of the harm they can cause. Harm? What possible harm can the police, the guards of the society do ? They can; as we often hear about the use of the third degree on the accused, manipulation, abuse and other questionable tactics. Let’s know what this is all about. 

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Custodial violence- A situation where the accused is also a victim. This is because of the infliction of harm or torture upon the accused during the period of custody by the enforcement authorities. Though not defined under any law, it is well established by judicial precedents and by deriving it literally.

To understand this better, first we should know the meaning of custody. It means, the protective care or guardianship of someone or something. Here, it means keeping someone in prison or detaining them until they can be tried in court. This is done to limit the movement of the accused. It is of two types- police custody and judicial custody. In police custody, the suspect is put in lockup until presented to the magistrate. However, in judicial custody, the person is in the custody of the magistrate and he is put in jail. 

The second term we should understand is VIOLENCE- it is any behaviour involving harm, hurt, damage or killing someone or something. It can be via verbal, physical, psychological or sexual methods.

Physical violence- It is causing bodily harm to a person in custody. It involves beating, bashing, hanging, force-feeding, mutilation, electrocution, and many other ways that can render injuries to a person. These injuries can also result in death due to exhaustion. 

Verbal/psychological violence- This is a method of torturing a person mentally. It involves saying harsh things, manipulating, or questioning the dignity or character of a person. These give a person trauma, which breaks them as a person and renders them confessing for the things that they might not have even done. 

Sexual violence- Coercing somebody to get involved sexually without their consent. It includes rape, sodomy, etc. It humiliates a person to the extent of breaking down, as it is an attack on their dignity. 

All this is part of the third degree used by the police for interrogations and getting confessions. 

Custodial violence in India

According to a report published by the National Human Rights Commission (NHRC) of India, there were 2152 deaths reported in judicial custody and 155 related to police custody in the year 2021-22. This represents a significant increase compared to previous years and raises serious concerns about the state of human rights in the country. Gujarat has emerged as the state with the highest number of custodial deaths, accounting for a large proportion of the total cases.

The National Campaign Against Torture (NCAT), an independent human rights organization, has also released a report on custodial deaths in India. According to their findings, there were 111 custodial deaths reported in 2020. This number is particularly alarming given that the country was under a strict lockdown due to the COVID-19 pandemic, which resulted in reduced movement and fewer interactions between law enforcement officials and the public.

The high number of custodial deaths in India is a matter of grave concern and reflects systemic issues within the criminal justice system. These deaths often involve allegations of torture, ill-treatment, and denial of basic rights, such as access to medical care and legal assistance. The impunity enjoyed by perpetrators of custodial violence further perpetuates this cycle of abuse.

It is essential for the government to take immediate and concrete steps to address this alarming situation. This includes implementing effective measures to prevent custodial deaths, conducting prompt and impartial investigations into all cases of custodial violence, and ensuring accountability for those responsible. Additionally, there is a need for comprehensive reforms of the criminal justice system to ensure that it operates in a fair, transparent, and humane manner.

Civil society organisations, human rights activists, and the media have a crucial role to play in highlighting the issue of custodial deaths and advocating for change. By raising awareness and demanding accountability, they can help create a conducive environment for the realisation of human rights in India.

Causes of custodial violence

Custodial violence in India is a complex issue influenced by several interconnected factors. Some of the primary causes include:

  • Inadequate training: Law enforcement and correctional officers often lack sufficient training in handling individuals in custody, understanding their rights, and de-escalating tense situations. This can lead to misunderstandings, excessive force, and violence.
  • Stressful working conditions: The demanding and stressful nature of law enforcement and correctional work can contribute to officer burnout, frustration, and aggression, increasing the likelihood of violence against detainees.
  • Lack of accountability: Insufficient oversight and a culture of impunity within law enforcement agencies can enable officers to use excessive force without fear of consequences, perpetuating the cycle of violence.
  • Overcrowding in prisons and jails: Overcrowded facilities exacerbate tensions between inmates and officers, creating an environment where violence is more likely to occur. Limited resources and inadequate staffing further contribute to this problem.
  • Discrimination and bias: Systemic biases based on caste, religion, or ethnicity can lead to disproportionate targeting and mistreatment of certain groups by law enforcement, increasing their vulnerability to custodial violence.
  • Absence of independent oversight: The lack of effective independent oversight bodies to investigate allegations of custodial violence allows abuses to go unchecked and unpunished.
  • Public indifference and normalisation: Widespread apathy or acceptance of custodial violence as a norm can create an environment where such abuses are tolerated and even encouraged.
  • Frustration of policemen due to the unresponsive attitude of the suspect. The long duration of duties annoys them further, as they want to get the confession and be done with the job. 
  • Pressure from higher authorities to get the work done as quickly as they can. Therefore, the officers opt for violence as a way to get any information or lead. 
  • There is a lack of fear among the officials because of the loopholes available in the system. 
  • As a punitive action, the use of force is adopted. Officials feel the urge to take matters into their own hands before the trial starts and use violence as an action for punishment. 
  • Greed for money. Police officers might torture a person for extracting money. 
  • Lack of implementation of stringent rules and laws among police officials. This adds to the reason for such treatment of the persons in custody. 
  • Police training is not taken seriously, and it does not include training on humanitarian basis. Thus, the prisoners are treated as some sort of punching bag and not humans. 

There are several other reasons for the violence that takes place by the police. Such instances can also lead to the death of a person. Deaths due to violence or torture under police or judicial custody are called custodial deaths. 

Are you wondering about all this chaos and the absence of laws? Well, this is India, the world’s largest democracy and one with the world’s biggest constitution. Thus, the absence of laws can never be the case in India. There are many laws that protect the rights of the accused or suspected. 

Under the Constitution

There are several fundamental rights that protect a person:

  • Article 21 of the Indian constitution, titled “Protection of Life and Personal Liberty,” enshrines the fundamental right of every individual to life and personal liberty. This right encompasses more than mere existence; it encompasses the ability to live a life with dignity, free from unlawful interference. The essence of Article 21 is that no person can be deprived of their life or personal liberty except through a procedure established by law. This means that the government cannot arbitrarily take away a person’s life or liberty without following due process and providing adequate safeguards. The right to life under Article 21 extends to the right to live with dignity. It includes the right to basic necessities such as food, clothing, shelter, healthcare, and education. It also includes the right to a clean and healthy environment, as well as the right to be free from torture, cruel, inhuman, or degrading treatment.

The right to personal liberty under Article 21 encompasses the freedom to move freely within the territory of India, the freedom to choose one’s occupation, the freedom of speech and expression, the freedom of assembly and association, and the freedom of religion. These freedoms are essential for the development of an individual’s personality and for the realisation of a just and equitable society. Article 21 acts as a bulwark against arbitrary state action and protects individuals from unlawful encroachment on their fundamental rights. It empowers the judiciary to review the actions of the government and ensure that they are consistent with the principles of natural justice and fundamental rights.

  • Protection against excessive punishment- Article 20- provided to a citizen, foreign person who is accused. Article 20(1) states that no person shall be granted punishment greater than what is prescribed by law at the time of the offence committed. Article 20(2), states that no person can be punished more than once for the same (or one) offence. Article 20(3) states that a person can not be compelled to testify against themselves.
  • Rights for detention and trial- Article 22- provides the procedure and time instructions for holding an accused under police custody. The person should be informed of the grounds for arrest; they should be presented in front of a magistrate within 24 hours of the arrest; and they should not be tortured while in custody. 

Under the Indian Penal Code, 1860

  • Section 302- A police officer who murders an accused in custody shall be punished for the offence of murder under Section 302.
  • Section 304- A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
  • Section 306- If the victim commits suicide and it is proved to be due to the abatement of the police officer, the police officer is punished.
  • Section 330 & 331– If hurt or grievous hurt happens to an accused to extort confession, it is punishable under 330 and 331. 
  • Section 342– Police officers shall be punished for wrongful confinement.

Role of magistrate

As the Indian judicial system is in a hierarchy format, the first step into it is via Magistrate. The position of a magistrate is an important one, as he is the first ray of hope for an accused. The role of a magistrate can be well understood by knowing about his duties-

  • After FIR, direct the police officer to conduct investigation, if not already started. The report must be asked of them. To also ensure that a copy of FIR is also uploaded on the internet. 
  • The reason for the arrest of the suspect is needed by the magistrate. The grounds for arrest are submitted to the magistrate in the report. This is done to ensure that no arrest is false or out of revenge by the police against the person. It also determines if the person should continue to be in detention. 
  • The arrested person is to be presented in front of the magistrate within 24 hours. This is the start of a trial. Here, a decision for further inquiry and detention is made. 
  • The magistrate has to ensure the medical examination of the person detained. To ensure that no torture is done at the hands of the police. 
  • Audi alteram partem- the magistrate has to ensure that the accused is well represented by a lawyer to ensure a free and fair trial. If the accused does not have a lawyer to represent them in court, it is the magistrate’s duty to appoint one to the accused. 
  • In cases of custodial deaths, the magistrates have to set up an inquiry under Section 196 of the Nagrik Suraksha Sanhita, 2023. This inquiry must be done by a judicial magistrate instead of executive magistrates for a fair trial. People’s Union for Civil Liberties v. State of Maharashtra14, the Supreme Court held that the inquiry in the cases of death by police torture must be invariably conducted by the judicial magistrate, who is empowered to take cognizance of offences under Section 176 CrPC (now Section 196 of the Nagarik Suraksha Sanhita, 2023). 
  • The guidelines of NHRC (National Human Rights Commission) must be followed by the magistrate. 

The performance of these duties by the magistrates will ensure protection for the accused in custody.

A case where police officials were held liable for custodial deaths and the state was made liable for the compensation- 

The case of Rajakannu vs. State of Tamil Nadu, commonly known as the “Jai Bhim” movie case, was a significant legal battle that shed light on the issue of custodial deaths and police brutality in India. The case primarily revolved around a habeas corpus petition filed under Article 226 of the Indian Constitution, where the petitioner, Rajakannu, sought the presence of her husband, Chandran.

According to the petition, Chandran was taken into police custody on suspicion of theft but never returned home. Rajakannu alleged that the police had killed Chandran during custody, secretly disposed of his body, and filed a missing persons report to cover up the crime. The petition was accepted by the court on April 21, 1993.

The police presented their own narrative of the events, claiming that Chandran had escaped from custody. However, the court later found this version of events to be false. Through extensive investigations and arguments, the court concluded that Chandran’s death was a result of custodial torture and brutality. The police officials involved in the case were held accountable for their actions.

The court sentenced the police officials to 14 years of imprisonment, along with compensation to Rajakannu for the loss of her husband and the trauma she had endured. The case highlighted the importance of upholding the fundamental rights of citizens and ensuring that law enforcement agencies operate within the boundaries of the law.

The Rajakannu vs. State of Tamil Nadu case became a landmark judgement in the fight against custodial deaths and police excesses. It set a precedent for holding police officers responsible for their actions and emphasised the need for transparency and accountability within the criminal justice system. The case also brought national attention to the plight of marginalised communities, who often face discrimination and abuse at the hands of law enforcement officials.

Role of magistrates in preventing custodial violence

Magistrates play a crucial role in safeguarding the well-being of individuals in custody and preventing custodial violence. By exercising their authority and responsibilities, magistrates can make a significant impact on upholding the law and protecting human rights.

Here are some key ways in which magistrates can contribute to preventing custodial violence:

  1. Ensuring proper training: Magistrates can advocate for and oversee the provision of comprehensive training programmes for law enforcement and correctional officers. This training should focus on topics such as de-escalation techniques, communication skills, and the appropriate use of force. By ensuring that officers are equipped with the necessary knowledge and skills, magistrates can help to prevent situations that may lead to violence.
  2. Holding officers accountable: Magistrates have the authority to hold law enforcement and correctional officers accountable for acts of violence or misconduct. This can be done through various means, such as conducting independent investigations, reviewing incident reports, and issuing sanctions. By holding officers accountable, magistrates send a clear message that custodial violence will not be tolerated and that officers must adhere to the highest standards of conduct.
  3. Monitoring conditions of confinement: Magistrates can regularly inspect jails and prisons to assess the conditions of confinement and ensure that individuals are treated humanely and with dignity. This includes monitoring for overcrowding, inadequate access to medical care, and unsanitary living conditions. By addressing these issues and advocating for improvements, magistrates can help to create a safer and more humane environment for individuals in custody.
  4. Encouraging alternative sentencing: Magistrates can play a role in reducing the number of individuals in custody by promoting alternative sentencing options, such as community service, probation, and restorative justice programmes. This can help to alleviate overcrowding in jails and prisons, which is often a contributing factor to custodial violence. By supporting alternatives to incarceration, magistrates can contribute to a more just and effective criminal justice system.
  5. Collaborating with stakeholders: Magistrates can foster collaboration and dialogue among various stakeholders, including law enforcement agencies, correctional institutions, community organisations, and advocacy groups. By working together, these stakeholders can develop and implement comprehensive strategies to address the root causes of custodial violence, such as poverty, mental health issues, and substance abuse.
  6. Educating the public: Magistrates can play an important role in educating the public about the issue of custodial violence and the importance of preventing it. This can be done through public speaking engagements, media interviews, and social media campaigns. By raising awareness and promoting understanding, magistrates can help to build a more informed and engaged citizenry that is committed to upholding the rights of individuals in custody.

While the provided text does not explicitly list famous instances of custodial deaths in India, the gravity of the issue is implied throughout the discussion. The detailed exploration of causes, the role of magistrates in prevention, and the emphasis on accountability and oversight strongly suggest that custodial deaths are a recognised and concerning problem within the Indian legal system.

Instances of custodial deaths

Here are some well-known instances of custodial deaths that have garnered significant public attention and outrage in India:

Jayaraj and Bennicks

Jayaraj and Bennicks, a father and son duo, tragically lost their lives in Tamil Nadu, India, due to alleged police brutality. The incident occurred during the COVID-19 lockdown, when they were arrested for violating lockdown regulations. On June 19, 2020, Jayaraj, a cellphone shop owner, and his son Bennicks, a college student, were detained by police officers in the southern Indian state of Tamil Nadu. The arrest was made for violating lockdown rules, which restricted movement and gatherings to prevent the spread of the coronavirus. Witnesses reported that the police officers took Jayaraj and Bennicks to a police station, where they were allegedly subjected to severe physical abuse. The officers reportedly beat them with batons and kicked them repeatedly. The father and son were also allegedly denied medical attention, despite their pleas for help.

The abuse continued for several hours, and eventually, Jayaraj and Bennicks succumbed to their injuries. Their bodies were then taken to a local hospital, where they were declared dead on arrival.

The incident sparked outrage and protests across India. People expressed anger and demanded justice for the victims. The Tamil Nadu government ordered a judicial inquiry into the incident, and several police officers were suspended.

The judicial inquiry revealed that Jayaraj and Bennicks were subjected to custodial torture and denied basic human rights. The report concluded that the police officers responsible for their deaths should be held accountable and punished accordingly. The incident highlighted the issue of police brutality in India and raised concerns about the excessive use of force by law enforcement officials. It also emphasised the importance of respecting human rights and upholding the rule of law, even during challenging times like a pandemic.

Manmandir Kaur case

Manmandir Kaur, a young woman from Punjab, India, became a symbol of the fight against custodial violence and the struggle for justice for victims of police brutality. Her tragic death in 1993, while in police custody, sparked a landmark judgement by the Supreme Court of India, setting a precedent for the right to compensation for victims of custodial violence.

Manmandir Kaur’s story began on a fateful day in 1993, when she was arrested by the police in Punjab. The circumstances surrounding her arrest remain unclear, but it is believed she was accused of petty theft. While in police custody, Manmandir Kaur was subjected to severe torture and physical abuse. She was brutally beaten, sexually assaulted, and denied medical attention.

The news of Manmandir Kaur’s death sent shockwaves across the nation. Public outrage grew as reports of her horrific ordeal came to light. The case gained national attention, and human rights activists and lawyers took up her cause.

The Supreme Court of India took cognizance of the case and ordered a thorough investigation. The investigation revealed that Manmandir Kaur had been subjected to unimaginable cruelty and torture while in police custody. She had been beaten with batons, kicked, and sexually assaulted. The police had also denied her food and water, and she was not provided with any medical care.

In 1997, the Supreme Court delivered a landmark judgement in the Manmandir Kaur case. The Court held that the police officers responsible for Manmandir Kaur’s death were guilty of custodial violence and awarded her family compensation for her unlawful killing. The judgement also laid down important guidelines for the treatment of persons in police custody, emphasising the right to humane treatment and the prohibition of torture and other forms of custodial violence.

The Manmandir Kaur case became a turning point in the fight against custodial violence in India. It highlighted the urgent need for police reforms and raised awareness about the plight of victims of police brutality. The Supreme Court’s judgement set a precedent for holding police officers accountable for their actions and provided a ray of hope for victims of custodial violence and their families.

These are just a few examples of the many cases of custodial deaths that have been reported in India. Such incidents highlight the urgent need for reforms in the criminal justice system to prevent such tragedies and ensure the safety and well-being of all individuals in custody.

Conclusion

Violence done to a person when arrested is custodial violence. A topic of grave concern requires attention from the root cause. The cause is insensitivity towards prisoners. The officials tend to forget that prisoners are also human beings. Thus, the implementation of stricter laws and proper training of police officers is the need of the hour. These will help reduce the number of cases of custodial violence. With help from the country’s eminent judicial system, we can curb the evil of custodial violence.

References

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