This article has been written by Kriti Agrawal and Priti Poddar.
The law enforcement agencies are considered as the guardian of the human and legal rights of the citizens. But, there are times when these guardians become the nightmares of an individual. It is often observed that violation of human rights is done during interrogation in police custody. This paper focuses on the rights of an arrestee in police or judicial custody, the techniques of police interrogation, custodial violence, and landmark judgments regarding the protection of human rights during interrogation. It also underlines the need for legal assistance during interrogation to avoid any such violation of rights.
“All men are born free but everywhere they’re in chains.”- Rousseau
The term “Human Rights” means basic rights which are considered to be fundamental for an individual’s physical, mental, and spiritual development. They are fundamental principles of humanity, and these rights are enjoyed by every human being simply by the virtue of being born as a human. These rights belong to every person in the world from his birth until his death.
Human rights are based on the concepts of dignity, equality, fairness, independence, and respect. They aspire to protect humans from severe political, social and legal abuses. For example, the right to free trial when charged with a crime, right to education, the right to practice and propagate any religion, etc.
According to Black’s law dictionary, “police” refers to a government agency tasked with maintaining public order, ensuring public safety, and detecting and controlling criminal activity.
Police interrogation is a part of the police investigation. It means the police officer’s right to question directly or indirectly the accused when he is brought under the police custody in either cognizable offence or non-cognizable offence.
Police interrogation and protection of human rights are two sides of the same coin. The police are the principal law enforcement agency in a country that is responsible for performing functions and duties in order to maintain decorum in society. Their actions should be in accordance with human rights in the country. Nevertheless, it is often seen that there is a gross misuse and the abuse of power which results in the violation of not only constitutional but also the human rights of the accused.
During the period of police interrogation, the police officers make various attempts to extract information from the accused which would further help the police officers to solve the case or lead their way to the actual offender of the case. While doing so, there are times the police officers use excessive force to extract such information which result in the violation of his rights. Moreover, forcing the accused to make a confession against his own will is inappropriate in any democratic country. So, in order to avoid this, the Indian criminal justice system has provided provisions in its substantive and procedural law to protect the accused during interrogation, not only for interrogation but up to the completion of trial. In addition to this, the constitution of India protects the human rights of the accused in the form of Fundamental Rights.
Article 20 and 21 of the Constitution of India acts as a ray of sunshine to the lives of arrested accused, under trial accused and convicts. The treatment provided to these people has to be humanly and, in the manner, prescribed by law and not subject to cruelty or barbarism. The procedure adopted by the police officers must be therefore, just, fair and reasonable.
Originally, the people had rights because of the mere fact that they were born in a family. In 539, B.C. Cyrus the Great conquered the city of Babylon and freed all the slaves and also declared people had the right to choose their own religion. This statement of Cyrus became the first human right declaration in history. The most important advancement of human rights includes:
- The Magna Carta (1215) which gave new rights to the common people and made the king subject to the new law.
- The Petition of Right (1628) set out the rights of the people.
- The United States Declaration of Independence (1776) which announced the right to life and liberty and happiness.
- The Declaration of the Rights of Man and of the Citizen (1789) was a document in France that stated that all people are equal before the law.
- The Universal Declaration of Human Rights (1948) was the very first document which listed 30 rights to which every individual is entitled in the world.
India was part of the drafting committee of UDHR in 1948 and has been its member since then.
In ancient Roman law, torture was used against slaves for confessions. This torture was used only against the slaves. In 1975, the English magistrate began advising the prisoners that the statement given during pre-trial hearings had to be voluntary as they were admissible during trials. In the 18th century, it was observed that if the statement were rejected by the magistrate then the guilty defendants were more likely to walk free which was to be avoided as far as possible.
Many people have died as a result of police brutality since the beginning of the nineteenth century, when there was no International Organization. There was a perception that being detained by the police would result in unimaginable consequences.
With the establishment of London’s first Municipal Force under the command of Sir Robert Peel in the 1800s, the idea of a police force as an organized body was born. Prior to this, policing was a volunteer job in which people volunteered to patrol the streets on a weekly basis.
Following the establishment of international safeguards, police officers were required to follow a set procedure when interrogating detainees. The notion of Human Rights was grasped, and it became a well-established principle that force could only be used for lawful purposes.
Techniques of police interrogation
The most common techniques of interrogation used by police in India is by torturing the arrested person to confession or intimidating him into signing the confession.
However, there are various techniques and the list of the most common interrogation techniques are as follows:
- Misinformation Baiting: If the arrested person claims to have no knowledge of the offence then the police officer intentionally describes him with incorrect details of the incidence. Such as use of the wrong location or vehicle, swapping of male or female, etc.
- Alteration of a good police officer and a bad police officer: This is a timeworn tactic, where a team of police officers work as a bad police officer and good police officer alternatively. The bad officer shouts and makes an attempt to intimate the arrested person and sometimes they are very rough. The good officer talks politely and try to convince the arrested person to say whatever he knows.
- Goofing off: The officers try to convince the accused person that he was not the person to be blamed for the offence and if he co-operates with the police then there are chances of him being acquitted.
- Casual conversation: There are times when the police officers start the conversation with a casual chit chat or small friendly conversation. This helps the accused to be comfortable before the police and slowly and steadily he confesses his offence, if any.
- Separation from family: In cases where a family is brought for police interrogation, all the family members are kept separate from each other. Then the police officers use the technique of misinformation batting to extract information from each family member individually.
- Threatening or bullying: This is the commonly practiced method in most of the police interrogation. The police try to frighten the arrested by applying severe charges upon him. Most of the time, he breaks down the arrested into accepting his crime.
- Expression of acceptance: The police officer while interrogating may make verbal or non-verbal signatories so that the arrested person feels good and that encourages him to speak up. Verbal signatories include compliments such as- “That’s good”, “Yes, go on” and non-verbal includes smiling, nodding, little shake of the head, etc.
Principles of human rights and police interrogation
There is no specific or definite principle of police interrogation, however, they are based on various international conventions. These are some deep-rooted principles that the police have to follow while handling interrogation. The motive behind such a principle is that even if the police officers are doing a state-authorized action, it should in no way violate the fundamental and human rights of the accused. Such principles are made to promote fundamental freedom and human rights which cannot be violated in any circumstance.
The key principle of police interrogation with respect to human rights has been safeguarded under the Constitution of India, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. The investigation of any case begins with the filing of FIR and continues until the last stage of a trial. Just as the police officers have the power to investigate the case within the scope of the rights granted to them under the Code of Criminal Procedure, 1973, similarly the accused has been granted certain rights before, during and post police interrogation.
The principles of police interrogation are as follows:
- The accused subjected to a police interrogation has his basic rights to life and liberty. The police officers under any circumstance cannot take away these basic rights from the accused. Obtained from Article 3 of the Universal Declaration of Human Rights (UDHR), it is also preserved in the Constitution of India under article 20 and 21.
- Article 20 of the Constitution of India, which is based on the concept of Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) says that a person who has been subject to interrogation cannot be deprived of his life arbitrarily. The officers must have subjective satisfaction, to proceed with police interrogations.
- During interrogation, the accused shall not be subjected to any inhuman punishment or torture which violates his fundamental or human rights.
- Article 14 of the Constitution of India states that every person has the Right of Equality before the law, equal protection of the law and no authority can take that away from the accused subjected to interrogation.
- There are also standard guidelines for the treatment of the accused in police custody, including not torturing him/her and following the due process established by law at every stage.
Rights of the arrested person
Before police interrogation
- Right to inform a relative of the accused of his arrest.
- Right to know the grounds of arrest.
- Right to be informed about bail if the offence is bailable.
- Right to be produced before the magistrate within 24 hours of arrest.
- Right against detention for more than 24 hours.
- Right to consult a lawyer.
- Right to get legal aid.
During police interrogation
- Right to legal assistance during interrogation.
- Right against unnecessary restraint.
- Right to be medically examined.
- Right against self-incrimination.
- Confession made before police inadmissible in court.
Interrogation: Legal v. illegal
“It has always been a mystery to me how man can feel honored by the humiliation of their fellow beings. ” – Mahatma Gandhi
There exists a very thin line between legal and illegal interrogation. Various parameters have been set up by many countries to make sure that basic human rights are not hampered while interrogating the accused. In India, the arrested person has been given both constitutional and human rights:
- The arrested person has the right to meet an advocate during interrogation so that he is aware of all the legal remedies available to him. However, he cannot take legal guidance throughout the interrogation.
- The arrested person has the right to a medical checkup by a medical officer before and after the interrogation to insure that he has not been subject to any brutal act by the police officers. If the arrested person is a woman then she is to be examined by a registered female medical officer only.
- The person so arrested cannot be treated by the police officer for more than 24 hours and must be presented before the magistrate within this provided time period. In case the police officers are unable to do so, they have to immediately release him from custody and it would be considered as a case of wrongful confinement, an offence under the Indian Penal Code, 1860. It is to be noted that these 24 hours exclude the travelling time that is the time taken by the police officer to present the accused before the court or vice-versa.
The concept of violation of human rights in India can be simply understood as the violation of fundamental rights of an individual causing mental, physical or sexual abuse and deprivation of life and dignity, the most common and usual form of such violation in police custody are police brutality, torture, custodial death, etc.
Custodial violence has not been defined anywhere in the Indian statutes. It means any form of violence that happens in custody that is not justified by the law of the land, whether legal or not. Custodial violence means police torture or some form of detention. It includes illegal detention, wrongful arrest, use of third-degree on the suspects based on the insufficient ground, depriving them of sleep or food, forceful confession, misuse of powers regarding hand-cuffing or depriving the arrested person from meeting his family, using grubby language, etc. Among them, the most prominent form of custodial violence by the police officers under the pretext of interrogation or investigation is use of third-degree methods.
Essential of custodial violence:
- The infliction of serious mental or physical pain or suffering,
- With the permission or acquiescence of the authorities of the state.
- To achieve a particular goal, such as knowledge-gathering, retribution, or coercion.
Custodial violence in the form of rape, death or third-degree torture of the arrested person is unquestionably the most common incident in all the countries. Despite many judicial decisions, domestic statutory provisions, and even international obligations, countries have failed to protect the rights of those arrested.
Section 167 of the Code of Criminal Procedure, 1973 mentions two types of custody which are judicial and police. Custodial violence is prevalent in both the type of custody. Sections 330, 331, and 348 of the Indian Penal Code; Sections 25 and 26 of the Indian Evidence Act; Section 76 of the Code of Criminal Procedure, 1973; and Section 29 of the Police Act, 1861 were all passed to prevent police officers from torturing suspects in order to obtain confessions or prove guilt. Nevertheless, Section 25 and 26 of the Indian Evidence Act, 1872 specifically mention that if any confession is made to the police officers then such confessions are inadmissible in the court as a shred of evidence unless and until the confessions are made voluntarily. The motive behind this was to prevent the use of such confessions made by the accused as incriminating evidence against them.
In the landmark case of D.K. Basu v. State of West Bengal headed by a two Judges bench of the Honorable Supreme Court held that custodial death is one of the worst forms of crime in a civilized society governed by Rule of Law. The bench also mentioned that being in custody does not take away a person’s fundamental rights granted to him under Article 21 of the Constitution of India.
- On the International Day in Support of Torture Victims, the NCAT (National Campaign Against Torture) published “India: Annual Report on Torture 2019,” which included details on deaths caused by custodial abuse.
- The reports showed that about 1731 deaths took place out of 1606 deaths happened in judicial custody while 125 deaths in police custody.
The state-wise data for deaths in police custody are:
State/ Union territory
Tamil Nadu and Punjab
Delhi and Orissa
Chhattisgarh, Maharashtra and Rajasthan
Andhra Pradesh and Haryana
Kerala, Karnataka and West Bengal
Jammu and Kashmir, Uttarakhand and Manipur
Assam, Himachal Pradesh, Telangana and Tripura
- Out of the 125 deaths in police custody, 93 deaths were due to said torture, 24 died in suspicious circumstances (in which the police said 16 died due to suicide while 7 others died due to illness and 1 due to injuries) and the reason for rest 5 deaths is still unknown.
- The report also mentioned that 75 out of 125 people were poor and of minority community. (Dalits and tribal community were13, Muslims were15, tribal community were 13, pretty crimes were 35, farmers were 3, security were 2, drivers were 2, laborer was 1, refugee was 1 and rag picker was 1)
- At least four women died under police custody.
Joginder Singh v. State of UP
In this case, the Supreme Court had laid down the following guidelines:
- If an accused person is held in custody, he has the right to have one friend, relative, or another person who is familiar with him or likely to be concerned about his welfare informed of his arrest and where he is being held, as far as possible.
- When the arrested person is brought to the police station, the officer must inform him of his rights.
- In the diary, an entry shall be made as to who was informed of his arrest. These power safeguards must be held to flow from Articles 21 and 22(1) of the Constitution of India, which must be strictly enforced.
D.K Basu v. State of West Bengal
In this case, the Supreme Court has given certain provisions, which are:
- The officers who make the arrest and handle the interrogation should wear correct, visible, and legible identification and name tags with their designations. The personal information of all police officers who handle the interrogation must be documented in a register.
- At the time of the arrest, the arresting officer must write an arrest memo, which must be attested by at least one witness, who may be a member of the arrested person’s family or a reputable person from the area where the arrest is made. It must be countersigned by the accused person and include the time and date of the arrest.
- The police must notify the next friend or near relative or any other person who knows or has an interest in the welfare of his being arrested.
- If the arrested person’s next friend or close relative lives outside the district or town, he must be telegraphically aware of the time, place of detention, and custody location by the Legal Aid Organization in the district and the police department in the area concerned within 8-12 hours of the arrest.
- The arrested person must be aware of his right to have someone informed of his arrest or detention as soon as possible.
- An entry regarding the arrest of the person must be made in the diary at the place of detention, which must also reveal the name of the arrestee’s next friend who has been informed of the arrest, as well as the name and details of the police official in whose custody the arrestee is.
- If the arrestee demands it, he should be checked at the time of his arrest, and any major or minor injuries found on his/her body should be recorded. The arrestee and the police officer must sign the ‘Inspection Memo,’ and a copy must be given to the arrestee.
- During his detention or arrest in custody, the arrestee should be examined every 48 hours by a trained doctor from a panel of approved doctors nominated by the Director, Health Services of the State or Union Territory. The director should put together a panel like this for all tehsils and districts.
- For the Area Magistrate’s records, copies of all documents, including the arrest memo, should be submitted.
- During interrogation, the arrestee may be allowed to meet with his lawyer, but not throughout the interrogation.
- At all districts and state headquarters, a police control room should be established, where information about the arrest and the arrested person’s place of custody should be conveyed by the officer who made the arrest within 12 hours of the arrest, and displayed on a prominent notice board at the police control room.
Kathi Kalu Ogad v. the State of Bombay
In this, the court held that if a person is only obliged to undergo a medical examination in accordance with the provisions of Section 53 of Code of Criminal Procedures, 1973, he cannot be said to have been forced “to be a witness” against himself.
Munshi Singh Gautam v. the State of M.P.
The Court in this case focused on the false claims of people who claimed that police tortured them while they were in custody. The court ruled that such cases must be thoroughly investigated in order to determine whether they are genuine or merely a ruse by the accused to obtain benefits from them.
Sube Singh v. State of Haryana and Others
In this case, the court established a list of questions that must be answered in the event of a death or torture in custody:
- Whether the violation of Article 21 is clear and unmistakable;
- Whether the violation is severe enough to shock the court’s conscience;
- Whether the alleged custodial torture resulted in death; and
- Whether the alleged custodial torture is supported by any medical reports, visible marks, scars, or disability.
If the court determines that there is no witness available in the case of torture in custody and the person is a witness, and the claim is not backed by any medical report, the court will not award compensation.
It is amazing and difficult to digest the fact that the persons who are responsible for the security of law and order abuse their powers and become the reason for the violation of the rights of an arrested person.
The rights whether constitutional or human, provided to the accused for his protection in police custody, are generally violated during the police interrogation in criminal matters. The newer interpretation of Article 21 of the Constitution of India regarding the rights of the arrested person has proven to be a progressive step towards the protection of human rights during police interrogation.
Nevertheless, it is not hidden that the right of legal assistance or representation during police interrogation is rarely in reality. On the contrary, the right to legal assistance during police interrogation is granted under Section 41D and 303 of the Code of Criminal Procedure, 1973. Reasons may be lack of awareness of such rights or denial by the police authorities or waving of the rights to be represented during interrogations.
Major focus should be on the concept of “no interrogation without proper legal representation”. This concept would drastically reduce the arbitrary abuse of power by the police officers.
The practical execution of the rights of an arrested person is the need of the hour. The police violence in the disguise of police interrogation is a serious concern in the “modern” democracy. However, by improving the policing standards, upgrading its recruitment, training and leadership standards, the living conditions of the police officers and most essentially increasing the salary of the investigating officers will certainly help in curtailing such threats.
- Code of Criminal Procedure, 1973
- Book- RV Kelkar’s Code of Criminal Procedure
- Black’s Law dictionary
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