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Chapter-6

HUMAN RIGHTS- PROBLEMS AND CHALLENGES IN INDIA.

There a is direct relationship and inter dependence between policing and human rights.
Police is one of the means by which state seeks to meet its obligations to protect 'Fundamental
Human Rights'- right to life, liberty and security of persons, right to fair trial and equal
protection of law. Thoughtless and unlawful policing on the other hand can only result in
suppression of those 'Human Rights'. It is often witnessed as paradox that human rights are
protected by law and are often at risk at the hands of law enforcers.*1021
(A) Misuse of Power of Arrest.
The law of arrest is one of balancing individual rights, liberties and privileges, on the one
hand, and individual duties, obligations and responsibilities on the other; of weighing and
balancing the rights, liberties and privileges of the single individual and those of individuals
collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of
deciding which comes first- the criminal or society, the law violator or the law abider; of meeting
the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task
of balancing individual rights against society's rights and wisely held that the exclusion rule was
bad law, that society came first, and that the criminal should not go free because the constable
blundered. Justice Cardozo observed:
"The question is whether protection for the individual
would not be gained at a disproportionate loss of protection
for society. On the one side is the social need that crime
shall be repressed. On the other, the social need that law
shall not be flouted by the insolence of office. There are
dangers in any choice. The rule of the Adams case (People
v. Adams, (1903) 176 NY 351: 68 NE 636) strikes a
balance between opposing interest. We must hold it to be
the law until those organs of government by which a
change of public policy is normally effected shall give
notice to the courts that change has come to pass."*1022

To the same effect learned Judge Hand observed:-


" The protection of the individual from oppression and
abuse by the police and other enforcing officers is indeed a
major interest in a free society; but so is the effective

1021 D.K. Basu, IPS, Discussion on cases related to Human Rights and Custodial crime, a paper in Human Rights and
Custodial Crimes, a Central Detective Training School Kolkata Publication, at 22.
1022 People v. Defore, (1926) 242 NY 13, 24: 150 NE 585, 589.
312
prosecution of crime, an interest which at times seems to be
forgotten. Perfection is impossible; like other human
institutions criminal proceedings must be a
compromise."*1023
The paradox has been put sharply by Lewis Mayers as reported in Nandini Sathpathy-
"To strike the balance between the needs of law enforcement on the one hand and the protection
of the citizen from oppression and injustice at the hands of the law-enforcement machinery on
the other is a perennial problem of statecraft. The pendulum over the years has swung to the
right."*1024
Emphasis may shift, depending on circumstances, in balancing these interests as has been
happening in America. Since Miranda (1966) 334 US 436) there has been retreat from stress on
protection of the accused and gravitation towards society's interest in convicting law-breakers.
Currently, the trend in the American jurisdiction according to legal journals, is that 'respect for
(constitutional) principles is eroded when they leap their proper bounds to interfere with the
legitimate interests of society in enforcement of its laws. Our constitutional perspective has,
therefore, to be relative and cannot afford to be absolutist, especially when torture technology,
crime escalation and other social variables affect the application of principles in producing
humane justice. *1025
In Joginder Kumar v. State of U.P.*1026 Supreme Court considered the dynamics of
misuse of police power of arrest and opined: -
"No arrest can be made because it is lawful for the police
officer to do so. The existence of the power to arrest is one
thing. The justification for the exercise of it is quite
another. No arrest should be made without a reasonable
satisfaction reached after some investigation as to the
genuineness and bonafide of a complaint and a reasonable
belief both as to the person's complicity and even so as to
the need to effect arrest. Denying a person of his liberty is a
serious matter."

In Joginder Kumar v. State of U.P.*1027 the Supreme Court noticed that in a large number
of cases human rights violation takes place because of indiscriminate arrests. The arrestee has
right to have his friend, relative or some other known person informed about his arrest. The

1023 Re Fried, 161 F 2d 453,465 (2d Cir. 1947.


1024 Smt. Nandini Sathpatliy v. P.L.Dani AIR 1978 SC 1025 atp. 1032.
1025 Couch v. United States (1972) 409 US 322, 336.
1026 Joginder Kumar v. State of U.P. 1(1994) 4 SCC 260:1994 SCC(Cri) 1172.
1027 Ibid.
313
police officer must make an entry in his diary about the person who was so informed. It was
further directed that the Magistrate must be satisfied about compliance with these requirements
in all cases of arrest.*1028 In view of the human rights, proper balancing of individual rights and
liberties with society's rights and individual's obligation and responsibilities towards the society
is needed.
Reasons for misuse of powers by police.*1029
Reasons Total
Political Interference 78.7%
Lack of Resources 73.3%
Lack of Public Cooperation 70.2%
Legal Handicaps 68.0%
Pressure for Quick Results 61.8%
Lack of Professional Training 60.0%
Apathy to the use of scientific methods and 59.6%
facilities.
Adverse Working/living Conditions 58.2%
Lack of Sensitivity Towards Human Rights 52.4%
Wrong Recruitment 49.3%
Inadequate Supervision. 48.9%
Corrupt Motives 35.1%
Constant Exposure to the Underworld 32.9%

(B) Problems and Challenges of Terrorism/Political Violence.


Custodial violence is common in the sphere of crime investigation to extract
information/confession about crime and to recover property etc., it also occurs in maintenance of
order situations particularly while dealing with political violence like terrorism, extremism etc.
Unable to face the pressure from political extremists and in the absence of legal remedies to
neutralize them, police often indulge in elimination of adversaries through illegal methods.
Political violence manifests first in the shape of Adventurism- Hostage Taking, Hi-jacking of
Aircrafts, Destruction of political targets etc. When this happens, the State reacts with ferocity
and unleashes excessive force to demonstrate its upper hand in the situation. Innocent people
unconnected with the political violent movement suffer a great deal and develop and hatred for

1028 Id at 268.
1029 Quoted from the report of Project to Improve the Organization and Management of Law Enforcement System in
India- A Summary of Objectives, studies and recommendations (April 2001)- Edited by Anil Kumar Sinlia-
BPR&D, Govt. Of India, Ministry of Home Affairs, New Delhi.
314
the State. They either do not cooperate with the authorities to put down violence but often lend
their support to these elements.*1030
Terrorism and Civilized society cannot co-exist. Any one who seeks to talk with gun in
his hand has to be replied by a gun. According to Khushwant Singh the Gandhian method cannot
work when one is up against the phenomena of terrorism. However, the real question to which
we have find an answer is, what exactly is it that turn a law-abiding citizen in a civilized society
to give up civilized methods of protests of ventilating his grievances in legitimate ways and
instead take the law into his own lands and use the gun as an argument.*1031
Innocent persons, government officials, policemen and wealthy persons are kidnapped in
large numbers and killed. Banks are attacked and cash looted. In tribal areas, in the Northeast,
not only hundreds are being massacred almost daily in the inter-tribal wars but non-tribals living
there for generations have been killed, in large numbers and their property looted, and forced to
leave their home and hearth at gun point.*1032
One of the greatest threats to the future of democracy lies in insurgency and terrorist
activities which are becoming more and more destructive of life and property. On no account
must the "right" of a militant minority to kidnap, coerce and kill be given priority over the right
of the majority to live in peace. The Government has no alternative but to declare a war on
insurgency and terrorism for its own survival. A democratically elected Government must
uphold the rule of law and authority and must defend the life and limb of its subjects. Vacillation
in counter-terrorist measures must be avoided as it tends to undermine public confidence and
encourage terrorist to exploit rift in police and security forces.*1033
No hard and fast rule can be laid down to deal with terrorists acts. However, what is
crucial is the general impression that the terrorists cany. The attitude of the Israeli government
explains: after the Israeli authorities refusal to negotiate with the kidnappers of seven Israeli
athletes at the Munich Olympics (1972) and the consequent death of those athletes, the Israeli
Ambassador to Germany observed "Once we give in to hijacking and kidnapping, these will only
multiply. In these engagements every Israeli citizen knows that like a soldier on the battlefield,

I030S.Subramanian- Human Rights and PoliceAssociation for Advancement of Police and Security Sciences-
Hyderabad- at 59 and 142.
1031 M.G.Chitkara- Human Rights Commitment and Betrayal-APH Publishing Corporation, New Delhi at 107.
1032 S.K.Ghosh, "Terrorism: World Under Siege", 1995 Ed., p. 417.
1033 Supra note 1031 at 113.
315
he may lose his life. We shall never negotiate with kidnappers." The result of this attitude was
the virtual end of hostage-taking of Israeli citizens.*1034
A similar attitude was adopted by Mrs. Margaret Thatcher. She declared, 'We, in Britain
will not accede to the terrorists' demands. Prisoners will not be released. If hijacked aircraft lands
here, it will not be allowed to take off*1035 The USA too took a clear line. With regard to Libya,
for instance, it adopted a firm and practical approach. And the problem ended.*1036 Terrorists
cannot be equated as freedom fighters. Senator Jackson of the United States, once observed;
"The idea that one person's terrorist is another's freedom fighter cannot be sanctioned. Freedom
fighters or revolutionaries do not blow up buses containing non-combatants; terrorists murderers
do. Freedom fighters do not assassinate innocent, businessmen or hijack and hold hostage
innocent men, women and children; terrorist murderers do. It is disgrace that democracies should
allow the treasured word "freedom" to be associated with acts of terrorists. *1037

Our justice system was unable to cope with terrorism. Prosecution of offenders was out
of the question. The only way to deal with it was by a draconian law and a hunt and kill strategy
of the army and the police. At that time, all other agencies of the state moved away. The
judiciary was nowhere in the picture, after two judges are killed. The nation accepted the rough
and ready methods because there seemed to be no other way to cope with the insensate violence
of bus killings, train killings, marriage parties being shot up, and the countless day-to-day
murders.*1038
Adventurism graduates into Political extremism. Here, diametrically opposite view points
to the Democratic principles, like Power flows through the barrel of the gun are propagated and
the futility of the democratic order is sought to be demonstrated by attacking selected targets of
State like Police Stations, Mass Transport systems, VIPs etc. From this stage it moves on to
terrorism- putting people in fear of death. The political minority wishes to make the majority
accept their demands by putting fear of death in the population. Indiscriminate killings and use of
landmines, explosive devices are resorted to create panic in the public. Normal life gets affected
and people lose confidence in the capacity of the state to govern. Terrorism creates a fear
psychosis in the population and often petty criminals elements exploit this situation by indulging
in criminal activities under terrorist banner. If successful in these stages, Political violent

1034 Miss J.A.C. Gutteridge, "War and Human Rights", published in Human Rights, (1970) at 109-110.
1035 T.S.Batra, Human Rights, A critique (1979) at 23.
1036 K. Subrahmanyan M. Zuberi Raja Ramanna, Problems of Living in Nuclear Age, (1985) at 9.
1037 Id at 21.
1038 Supra note 1031 at 133.
316
movements turn into Insurgency- an organized Armed Uprising and later to Secessionism. These
are State of War and the State is engaged in hostilities and it loses administrative and political
control over some of its territories.*1039
The task of security forces has always been a delicate one. It becomes more complicated
when there is a serious threat to the nation's unity and integrity. They responded to such a
challenge admirably in Punjab only recently, and are in the midst of fighting an almost similar
battle in Jammu and Kashmir. This is besides their valiant role in containing the insurgency in
the North East. What they did in Punjab should not be treated as merely performing their
hazardous duty. They fought the nation's battle for unity and integrity, as they are in the process
of accomplishing it in the valley. They deserve the country's gratitude and sympathy. It is the
government's responsibility to go out of the way to protect their interests even if the laws are to
be amended for the purpose. Thus, one must appreciate Home Minister L.K. Advani's assertion
at a recent conference*1040 of the chiefs of the state police, intelligence agencies and central
police organizations that the police personnel who "acted firmly" against terrorist elements
should be accorded the protection of the law. This has become unavoidable for two basic
reasons. One, since the police personnel and other security forces risk their and their family
members' lives during a drive against terrorists and their sympathizers , their morale must remain
high under all circumstances. Two, they should have no fear of being bounded out by different
interest groups on extraneous considerations. Such groups did not take in the right spirit the
Home Minister's earlier statement which came in the context of the cases against 600 police
personnel for thfeir role during the days of terrorism in Punjab.*1041
The question is not whether a terrorist deserve sympathy or not. The question is that the
state is the repository of law and a repository of law can not violate the law. If a repository of
law violates the law there is an end of lawful state and beginning of lawlessness.*1042
The Terrorist And Disruptive Activities (Prevention) Act, 1987 As Amended in 1991.
The good state is not a mere police force to protect the citizens from any illegal and
wrongful act of some anti-social elements, but it has primary responsibility to prevent crime, so
as to lead the people to a happy and fuller life. If the state has good laws, its members are less
susceptible to crime and it may create an environment which would be unfavourable to crime

1039
Supra note 1030 at 59 and 142.
1040
Director General/Inspector General's Conference 2001 September 5-7, 2001, Vigyan Bhawan, New Delhi.
1041
The Tribune, Friday, Sept. 7,2001- Police powers & responsibilities- at 10.
1042
Ibid.
317
and favourable to bring peace in the society. The United Nations Conference on the Prevention
of crime and treatment of offenders, condemned the practice of killing and executing political
opponents or suspected offenders, which offences are generally carried out by armed forces, law
enforcing or other governmental agencies or, by para military or political groups, acting with the
support, tacit or otherwise, of the official forces or agencies.
In Maneka Gandhi's*1043 case, the Supreme Court of India held that an unreasonable,
unfair and arbitrary procedure is no procedure at all. And as such, the personal liberty of a citizen
cannot be curtailed even by following a procedure, which is arbitrary and whimsical. To curb
the violence and extremist activities in the society, the appropriate government legislates
different Acts at different times. Terrorist and Disruptive Activities (Prevention) Act,
1987(hereinafter cited as TADA) and Armed Forces (Assam and Manipur) Special Power Act,
1958 are some of the legislations of this type.
This TADA Act was passed to make special provisions for the prevention of and for
coping with terrorist and disruptive activities and for matters, connected therewith or incidental
thereto. This Act was originally intended to remain in force for a period of two years in 1987.
Later on it was allowed to be lapsed. In Niranjan Singh Karam Singh Punjabi*1044 the Supreme
Court held that the provisions of the Act need not be resorted to, if the nature of the activities of
the accused can be checked and controlled under the ordinary law of the land. It is only in those
cases where the law enforcing machinery finds the ordinary law to be inadequate or not
sufficiently effective for tackling the menace of terrorist and disruptive activities, that resort
should be made to the drastic provisions of the Act.
Section 3 to 6 of the TADA provide minimum punishment for 5 years imprisonment,
which may extend to life imprisonment on conviction for an offence under the Act. Section 8
authorizes court to declare forfeiture of property in certain cases on conviction of the accused.
Forfeiture of property also amounts to be violation of human rights of an individual. Therefore, it
is highly necessary for the court to consider each and every crime minutely and seriously, before
imposing any penalty of forfeiture of property.*1045
Section 15 of the Act is in quite contrast to the provisions of the Indian Evidence Act as
well as the Code of Criminal Procedure. As per that section, a confession made by a person
before a police officer, not below the rank of a Superintendent of Police, and if it is recorded by

1043 Maneka Gandhi V. Union of India, AIR, 1977, SC at 597 to 622


1044 Niranjan Singh Karan Singh Punjabi Vs. Jitendra Bhimraj Bijja AIR 1990 SC 1962.
1045 N. Sanajaoba- Human Rights, Principles, Practices & Abuses- Omsons Publication, New Delhi at 227-28.
318
such police officer either in writing or by any mechanical device, shall be admissible in the trial
of such person. Section 25 of the Indian Evidence Act, 1872, states that, no confession made to
any police officer shall be proved against, a person accused of any offence. Section 26 of the said
Act states that, no confession made by any person while he is in the custody of a police officer,
unless it be made in the immediate presence of a magistrate, shall be proved as against such
person. These provisions are there, in the Evidence Act, probably to negate the scope of
extracting any confessional statement by using third degree method, in violation of basic Human
Rights of an accused. In section 19 of the Act, the jurisdiction of the High Court has been
excluded in case of appeal or revision, which provides that no appeal nor revision shall lie to any
court except to the Supreme Court from any judgement, sentence or final order of a designated
Court.
In Girish Ch. Kakati*1046 the Gauhati High Court, has considered, whether the High
Court can grant any relief in a case arising out of arrest of a person on the accusation of having
committed an offence under TAD A. Referring to the decision of the Supreme Court*1047 in
respect of jurisdiction of the High Court under Article 226, the Court was pleased to observe that
where a statutory provision bars the jurisdiction of courts generally, it will not bar the
jurisdiction of the High Court under Article 226 of the Constitution of India. It was held that the
provisions of TAD A does not take away the remedies available to a person under Article 226 of
the Constitution.
Section 29(3) of the above mentioned Act provides for the recording of confessional
statements of the accused. In this case, section 164 of the Code of Criminal Procedure is
applicable, subject to certain modifications, as stated in the Act. Proviso to section 164(1) of the
Criminal Procedure Code specifically states that no confession shall be recorded even by a police
officer, on whom any power of magistrate has been conferred. However, on the other hand, we
have noticed that a confession before any police officer, not below the rank of S.P. is admissible
in evidence under section 15 of the TAD A Act. Thus, the sections 15 and 20 of the TAD A are
quite contradictory in nature. Section 20(4) provides that the magistrate or judge has the power
to authorize detention of the accused in such a custody as such the magistrate or, judge thinks fit
for a period not exceeding sixty days in the whole, and on his satisfaction, he may also authorize
further extension of detention upto one year but not on police custody. Section 20(7) has taken

1046 Girish Ch. Kakati Vs. Union of India, 1991(1) GLR ,265.
1047 Re Kerala Education Bill case, AIR 1958, SC 956.
319
away the important right of granting pre-arrest bail, as provided under Section 438 of the Code
of Criminal Procedure.
In Ayubkhan Kalaudar Khan Pathan*1048 the main question for consideration was with
regard to the maintainability of the writ petition in view of the provisions of TAD A. The Court
held that there is no specific provision in the TADA Act, which can take away the constitutional
rights of the parties concerned and there is also no provision under the TADA Act for taking
away the power of the High Court to decide the matter under Article 226 of the Constitution of
India.
In Usman Bhai Dawoodi Bhai Menon and Others*1049 while discussing the limit and
scope of the Act, the Supreme Court has observed that the Act is limited in its scope and effect.
The intendment is to provide special machinery to combat the growing menace of terrorism in
the country. Since the Act is a drastic measure, it should not ordinarily be resorted to unless the
government's law enforcing machinery fails to combat it through ordinary law of the land.
Although guidelines are set or, enunciated by courts in different cases for the protection of basic
Human Rights, the law enforcing agencies have invariable failed to apply the TADA Act with
the required caution. Instances are there in case of recent arrest of persons in Assam under
TADA, where most of the persons have been arrested without satisfying the requirement of
section 3 and 4 of the Act. Furthermore, the ordinary law of the country is more than sufficient to
deal with these offenders. These ordinary criminal laws had enabled the British colonial
administration to meet out even capital punishment to the Indian terrorists and freedom fighters
also.
As terrorism aims at the destruction of civil society and the unravelling of the State, it is
essential that it be firmly resisted by both. The National Human Rights Commission observed
that the police and armed forces of the country, backed by all elements of civil society, have duty
to fight and triumph over terrorism. The Commission is additionally of the view, however, that
this must be done in a manner that respects the Constitution of the Republic, the laws of the land
and the treaty commitments into which the State has solemnly entered. The Commission remains
convinced, in this connection, that transparency and accountability are essential to the handling

1048 Ayub Khan KKlian Pathan Vs. State of Gujarat, 1990 (iv) Crime 183 Gujarat.
1049 Usman Bhai Dawoodi Bhai Menon Vs. State of Gujarat A. 1988(2) SCC 271.
320
of allegations concerning human rights violations, regardless of who is charged with such
violations.*1050
The Armed Forces (Assam and Manipur) Special Powers Act, 1958.
The Armed Forces Special Powers Regulations, 1958 was initially brought into force in
1958 which was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958.
This Act was applied to the seven states in the North East region. It consists of seven sections.
Section 3 of the Act empowers the central government as administrator or governor to declare
any part or the entire state or union territory as disturbed area, when the governor or the
administrator is of the opinion that 'use of Armed Forces in aid of Civil Power is necessary' for
that area and whereupon, it can deploy the armed forces to that area in aid of civil power to assist
only, not to supersede.*1051
The scope and the ambit of the Act was considered by the Gauhati High Court in the case
Peoples Union for Human Rights & Organizations Vs. Union of India and Others, *1052 where
the petitioner Union had challenged the validity of the Act and contended that the said Act, being
opposed to fundamental rights, is ultravires of the Constitution of India. The petitioner further
contended that the armed forces in the name of flushing out extremists were perpetrating
atrocities on the innocent men, women, the young and the old. The government of India declared
Manipur as disturbed area and that Notification of declaration was not rescinded for a decade.
The pertinent question before the court was that whether the army authorities, under the
provision of the Armed Forces Special Power Act, 1958 can arrest a person- male or female-
without any invitation on the part of the police authority or without reference to Police authority
of the State, wherever and whenever the above Act is enforced. The court after considering the
arguments of the parties, was pleased to hold it affirmatively. However, certain restrictions were
imposed on the government by directing the central government as well as the state government
to issue instructions to the concerned officer of the army to produce the arrested persons before
the nearest police station with the least possible delay so that the police in turn may produce the
person before the magistrate within 24 hours of the arrest. Thus, the court has restricted the army
authorities from violating the human rights in the name of curbing terrorism and insurgency.

1050 Annual Report 1997-98 -National Human Rights Commission- Sardar Patel Bhawan, Sansad Marg, New Delhi
at 8
1051 Supra note 1045 at 231.
1052 Peoples Union of Human Rights & Ors. Vs. Union of India and Ors. 1991(2) GLR.1.
321
Section 5 of the Act relates to the handling over the accused to police, after arrest is being
made by the army. In Bacha Boara Vs. State of Assam,*1053 the word 'least possible delay' was
explained, which means that within the shortest possible time. But no arbitrary time-limit can be
set down, as it may not be possible in many cases to affirmatively say or precisely quantify the
period of time by reference to hours, dates or months. However, it will be possible having regard
to the circumstances of the case to say whether it was done or was not done 'with least possible
delay'. However, the Court is required to see each and every case very carefully. When an act is
done after interval of time and there is no explanation forthcoming for delay, it cannot be said to
have been done with 'least possible delay'.
In Purnima Boruah Vs. Union of India,*1054 the High Court held that violation of section
5 of the Act will not only amount to wrongful detention but also violation of constitutional and
legal rights. The Supreme Court in Khatri Vs. State of Bihar*1055 had strongly urged upon the
State and its police authorities to see that the constitutional and legal requirement to produce an
arrested person before a magistrate within 24 hours of arrest must be scrupulously observed. The
imprisonment of persons, who were detained in jail without any remand order from the
magistrate was also held to be illegal and in violation of law.
Powers of the army authorities under the Act to require attendance of women for
interrogation was discussed in Niloy Dutta Vs. District Magistrate, Sibsagar.*1036 The question
that arose for consideration in that case is of far reaching importance. It deals with the subject of
constitutional protection to women from interrogation at the police station. It was held that even
if a woman is an offender or, more a witness, no police officer can summon a woman to a police
station house for interrogation. Women can only be interrogated at a place, as the promise of
Section 160(1) of the Cr.P.C. recites- 'where the woman resides.' The court formulated to hold,
whenever army officials have to deal with women under the Act, as offenders before arrest or as
witness or otherwise and when women are to be interrogated, no women is expected to be taken
to the army camp for interrogation.
(C) Custodial Crime.
Any act on the part of the police which violates the basic dignity and liberty of an
individual guaranteed by our Constitution invokes scathing criticism from conscious and alert

1053 Bacha Bora Vs. State of Assam, 1991 (2) GLR, 119.
1054 Purnima Boruah Vs. Union of India and Ors. 1991(1) GLR, 375.
1055 Khatri Vs. Sate of Bihar, AIR 1981 SC, 928.
1056 Niloy Dutta Vs. District Magistrate Sibsagar, 1991(2) GLR, 217.
322
citizens. The Media also has become resonant with voices of protest whenever there is any
encroachment on individual liberty and violation of basic human dignity. Reasons for such
custodial crime are many. They may be attributed mainly to (a) Psychological, (b)
Infrastructural, and (c) Administrative reasons.*1057
Psychological reasons:- Reasons why members of the police commit custodial violence may
include lack of proper motivation, overzealousness of the Investigating Officers to ensure
detection of cases by eliciting confession from arrested accused persons and low morale of the
members of the Force. In discharging their duties as Investigating Officers many officers at the
police station level resort to Third Degree as short-cut method of detection. Use of scientific
methods of investigation in detecting a case calls for tremendous patience, tenacity and
professional expertise. The use of scientific method of investigation may at times be a long-
drawn process. Investigating Officers lacking proper orientation in scientific methods like to
resort to short-cut method of Third Degree for eliciting confession and for unearthing mystery or
motive behind the commission of offences. Officers with low morale and suffering from a sense
of deprivation may at times resort to custodial violence for deriving sadistic pleasure.
Police Psychopath:- Psychologists may say that some police officers do not have any guilt
feeling even during or after they shout at people with indecent expressions. When a person does
not experience guilt-feeling for doing an act forbidden by law or ethics-which ordinary people in
similar situations do experience- he is rightly called a psychopath. Are the police functionaries
psychopaths in this area of police perfrmance? Policemen did certainly have guilt feeling when
they uttered indecent expressions to other fellow beings. The explanation for the development of
psychopathic personality-disorder among the police is that they are, after their institutional
training, inducted into a sub-culture in which use of indecent language is an accepted norm of
behaviour. It is this 'permissiveness' or laxity to use indecent language during the post-
institutional training period which makes the new entrants to develop psychopathic personality -
disorders in later life. A conscious attempt on the part of everyone in the police to eradicate the
filthy environment at the cutting edge level is the only and the easy way out to change the
situation. It is a violation not only of the human rights of people handled by the police, but also
the morality of the society and professional ethics of the department.*1058

1057 R.K.Rav, Custodial Crime, Causes and Remedies- A paper published in CBI Bulletin, July 1996- CEB
Publication, Delhi, at 17-20.
1058 James Vadackumchery- Human Rights & tire Police in India-APH Publishing Corporation, Delhi- atl33-34.
323
Dichotomy in Public Expectation:- There is a palpable dichotomy in public expectation from
the police. On the one hand, it takes a high moral position vis-a-vis Third Degree but in private it
will goad the police to take recourse to Third Degree method if personal interest is involved. The
same Judicial Officer who rebukes the police in public for being high-handed will expect the
police to recover his stolen properties by any means fair or foul. This contributes to the
continued prevalence of the Third Degree as well as custodial crime.
Even enlightened members of the society expect police to take 'tough action' not
sanctioned by law against anti-social elements who are escaping conviction and getting away
scot-free because of the malfunctioning of the criminal justice system. *1059
It is important to remember that such abuses of police can flourish not only because of
official negligence or acquiescence but because, rightly or wrongly, large sections of people
under certain conditions and circumstances feel that the police, in spite of their excesses, are
carrying out a necessary and unpleasant task for preserving and protecting state and society.
Such conditions place considerable moral burdens on conscientious police officials whose
actions to check drifts of this kind are of paramount importance. A perceptive writer on police
psychology, Ben Whitaker ('Police') has observed, the public have always turned two faces
towards a policeman.' As a result of these conflicting and often incompatible demands of the
public, some policemen become stoically immune to criticism.*1060
If you ask any police officer of even 10 to 15 years of service, he will tell you how many
senior police officers,, law-makers, dispensers of justice, academicians, jurists and journalists
have lectured to him about the pernicious habit of resorting to third degree to do a little more
probing and he will also give you additional information as to how many of those august
personalities had equally persistently goaded him to take recourse to the very same evil third
degree to recover his or his relations' or friends stolen properties! There is an obvious dichotomy
in our moral and ethical preachings, especially in the matter of our attitude to third degree. Such
moral ambivalence has lent substantial cultural and sub-cultural support base for the continuance
of third degree.*1061
Technical Police Custody: Not all cases of death and injuries of accused persons should be
attributed to custodial violence. For example, when an inured accused person is sent from
hospital to the court he is technically in police custody. If he succumbs to his illness or injury

1059 Sanker Sen- Custodial Crimes- an article in SVP NPA Journal Jan-June-1994- at 8-12.
1060 Id at 8-12.
1061 Supra note 1021 at 23.
324
which might have been inflicted on him by the members of public before he was taken into
custody he would be branded as a victim of custodial violence. The public and the Media need to
be a little more discriminatory and should at least give the devil its due.
Legal hurdles like inability to keep a suspect for longer durations than a day, the
Evidence Act being weighed against the police etc., are factors which induce police to keep
suspects in 'unofficial custody'. Once a suspect is in 'unofficial custody', he ceases as such to
exist on record, for the purposes of law. What is done to him is known only to police officials
within the precincts of a police station. This helps and encourages the police to indulge in
custodial violence with impunity.*1062
Role of Media:- A social activist like Shiela Barse while discussing the issue of brutalisation of
police argued that " I have begun to feel that the police has become the new Harijan in the
Media-created caste hierarchy, the holy Patrakars and the opinion-making Brahmin seem to have
isolated the police as a new minority which must be accused and disdained but not heard or
understood".*1063
Even in the Rajiv Gandhi's assassination case wherein the top level CBI sleuths had been
involved in the investigation, a suspect in custody who had been taken in confidence by the
police escaped from the police clutches and committed suicide. This death is definitely not due to
any police torture. So, many innumerable instances like this are on record. Every such time, there
is an uproar from the public and the press suspecting foul play, to punish the guilt of the police.
The same public and the press are very much silent when they come across instances like the one
reported recently in Madras City wherein a policeman who attempted to waylay bootleggers was
beaten to death by the anti-socials. Why such a great discrimination that exists in the public
mind? In some of the recent cine films it is shown that the victim himself, not satisfied with the
police investigation in taking the due legal action against the wrong-done has taken law into his
own hands and taken vengeance on his enemies. This is stated just to impress upon you that if
the police become a silent spectator to criminal activities without properly investigating into
cases to unearth the hidden truth for evidence from the assailants by some methods or other, even
the law abiding society itself may turn violent to settle their scores with their law-breakers.
Infrastructural Facilities:- Lack of proper infrastructural facilities in the police station may lead
to such unfortunate incidents as custodial crime in a police station. Absence of separate female

1062 Supra note 1030 at 59.


1063 Sunday, 27th October, 1981 as quoted R.K. Ray in a paper, Custodial crime, Published in CBI Bulletin, July
1996, CBI Publication, Delhi at 17-20.
325
lock-up in many police stations has made it unsafe for women accused persons for detention at
the police station after their arrest. The problem is aggravated no doubt due to absence of
sufficient number of lady police officers and lady constables at the police station. In most cases,
sexual harassment in the form of molestation or rape in the custody are committed on women
accused persons who are left alone in the custody of sentry constables and duty officers at odd
hours of day and night.
Administrative Reasons:- Absence of proper supervision on the functioning of the officers at
the police station level may instigate commission of custodial violence. Officers at the police
station level feel that their activities are not being monitored by the superiors or supervisory
officers. They take the liberty of working recklessly indulging in perpetration of custodial
crimes. To keep them under proper restraint, is one of the duties of the supervisory officers.
Surprise visit by the superiors at the police stations, may help reducing such reckless tendency on
the part of the officers at the police station level can be ensured only by effective supervision.
Imposition of proper punishment on erring officers by the departmental superiors can go a long
way in enforcing norms of the discipline among subordinate ranks.
Burden of Proof:- It was found out that though in quite a few cases allegations were grossly
exaggerated in many instances blame or aspersion was not unfounded in a few cases, policemen
responsible for such atrocities had been awarded suitable punishment while in other cases,
responsible officers could not be prosecuted for lack of evidence. As a matter of fact, in case of
custodial torture and violence it is difficult to muster evidence as the witnesses in presence of
whom such unlawful acts are perpetrated are in most cases policemen who out of a sense of
brotherhood refrain from giving evidence against fellow policemen responsible for such case.
The Supreme Court has emphasized the extremely peculiar character of a situation where
a Police Officer alone and none else can give evidence regarding the circumstances in which a
person in police custody comes to receive injuries. This situation naturally, the court held, results
in paucity of evidence and probable escape of the guilty persons. It was for this reason that the
Supreme Court called for a re-examination of the law of burden of proof. The Supreme Court
was anxious that police officers who commit atrocities on persons in police custody do not

326
escape punishment for want of evidence. Taking the above judgement of the Supreme Court*1064

as a case study, the Law Commission has suggested the insertion of the foliowing section in
Indian Evidence Act:-
"114B(1) In a prosecution (of a Police Officer) for an
offence constituted by an act alleged to have caused bodily
injury to a person, if there is evidence that the injury was
caused during the period when that person was in the
custody of the police, the court may presume that the injury
was caused by the police officer having custody of that
person during that period."

(2) The court, in deciding whether or not it should draw a


presumption under sub-section (1) shall have regard to all
the relevant circumstances, including in particular (a) the
period of custody, (b) any statement made by the victim as
to how the injuries were received, being a statement
admissible in.evidence, (c) the evidence of any medical
practitioner who might have examined the victim's
statement or attempted to record it."

Status of the victim:- On many occasions rape has been committed in police custody in
different parts of the country. In most cases, the victims belong to the weaker sections of the
community including the women folk of the tribal community.*1065

Poor Living Conditions.


The common policemen's working conditions are deplorable, the hours of duty are long
and irregular. They live in houses which are unfit for human dwelling. A study*1066 by the

National Productivity Council shows that a policeman works for 16 hours a day, 7 days a week
and has little time to regain his mental balance as the recreational facilities are non existent. Also
the esteem accorded to him is much lower than the social function expected to perform. Police
violence is directly related to the public regard for the police authority. Lowered public regard
lowers police self esteem, which results in their resorting to use of force more often. Thus
surveys show that countries like UK and Japan with high regard for the police have less police
brutality compared to countries like India and USA where it is not so.

1064 As quoted in D.K.Basu, IPS, Discussion on Cases related to Hunan Rights and Custodial crime, a paper in
Human Rights and Custodial Crimes, a Central Detective Training School Kolkata Publication, at 23.
1065 R.K.Ray, Custodial Crime; Causes and Remedies- A paper in CBI Bulletin- July 1996- CBI Publications, Delhi,
at 17-20.
1066 Quoted in Sharad Satya Chauhan, Police Brutality and Custody Deaths-Causes and Remedies- a paper in SVP
NPA Journal, Jan-June-1994, at 35-38.
327
The project team*1067 concluded that the living and working conditions were completely
inadequate and insufficient housing and other facilities for the lower ranks, both in police
stations and Police Lines(compounds). The team's visits to Police Stations and Police Lines
(compounds) confirmed the deplorable conditions. In some cases, the unavailability of clean
drinking water in the station, premises, insufficient and unhygienic sanitation, latrines, and
cooking facilities, left the policemen living under sub-human conditions. Inadequate lighting,
storage, and furniture in the police stations affected their operational efficiency. Poorly
maintained buildings of Police Stations affected their life and work. The performance of the
police force does not reflect this because of the factors mentioned above. It is to be expected that
policemen who are paid less than a living wage, who live in unsanitary conditions, who are not
provided with sufficient resources to acquire and maintain the basic tools of their trade, and who
in other ways are exploited by the system, will resort to whatever means they have at their
disposal to provide the basic necessities of life, and that this eventually becomes habitual.
Do the police use brutal methods? *1068
Yes No Can’t Say
Total 31.1% 40.1% 28,8%
Are the po ice biasec 9
Yes No
Total 63.4% 36.6%

Another argument is that the policeman has to work under pressure and many of them are
dissatisfied owing to their poor pay structure, promotion prospects, lack of leisure, low status and
many other reasons of like nature. A policeman has little or no time to regain his mental balance
as the recreational facilities are non-existent. Granting that all this is 100 percent true, yet there
cannot be any justification for human rights violations. There are any number of professions and
occupations for which the working conditions are still worse. If such people start destroying
things or violating human rights and start claiming that they do so because they are unhappy with
the working conditions, then it becomes a matter of unpardonable nature. The argument that the
deplorable working conditions of police make them to resort to a compensatory mechanism
which is nothing but violating human rights, then the only explanation for their behaviour is that

Supra note 1029 at 7-10.


Ibid
328
they do so because they think that they can afford doing so under the colour of their uniform and
in the pretext of exercising their power or authority.*1069
A questionnaire was circulated to 140 lower subordinates of Police Department during
the course of this study to know about their living conditions and to co-relate their living
conditions with their violent behaviour with the person in their custody.
26 out of 140 lower subordinates answered that they were residing in barracks of the
Police Stations, 25 reported that they were living in barracks of Police Lines, 22 reported that
they were residing in Police Colonies and 67 answered that they were living in hired
accommodation. The number of policemen reported to be residing in hired accommodation
appears to be incorrect. One senior police officer expressed doubt on this number and said that
this number might show the number of policemen claiming house rent allowance falsely but
actually they are residing in police barracks.
21 out of 140 lower subordinates interviewed reported that they are returning to their
homes daily to live with their families whereas others do not get an opportunity to visit their
families daily.
22 out of 140 lower subordinates interviewed responded that they will not keep their
families with them even if government accommodation is provided to them at the place of their
postings because the family members are looking after their old parents and family property in
their native villages.
Almost all the policemen have no hobby. 13 out of 140 lower subordinates interviewed
responded that they spent spare time in talking with friends. Not even a single policeman
answered that he is in the habit of watching cinema when he is free from duty. Nobody is
interested in walking or exercising after duty hours. Only 39 responded that they have a casual
glance at the daily news papers or books when they get time and 82 out of 140 responded that
they have no time to pursue any hobby. The policemen always appear to be suffering from lack
of time syndrome.
A policeman generally is not God fearing. Only 16 out of 140 lower subordinates
interviewed visit Temple, Mosque or Gurdwara for worshiping occasionally. Not even a single
policeman interviewed reported that he was a regular visitor to the places of worship. Only 22
reported that they had a chance to read a religious book in their life. 85 reported that they were
worshiping in their houses, which appears to be a myth. Regular visit to the places of worship

1069 Supra note 1058 atl26-27.


329
and fear of God make a person good human being and bring him close to divinity. Religion has
sobering effect on a person and dehumanization starts once you are detached from the moral
authority of the religion.
A policeman is preached by his seniors and he tends to believe by remaining in service
for over the years that khakhi in itself is a complete religion and a man in khakhi requires no
religious authority of any kind to guide his behaviour. Who will teach them that family and
societal contacts and religion are necessary for a normal human being to make him respect the
social and moral standard of behaviour in a civilized society ?
Role Ambiguity.
Most of the professions have clear guidelines for work whereas a policeman does not
know the type of situation he will be in or its aftermath. This is compounded by the fact that
various demands are made on the police by various diverse elements of our society most of
which are conflicting. They are also expected to take contradictory and inconsistent actions.*1070
An ostensible conflict appears glaring between the role model of the police from the point
of view of its crime control objective vis-a-vis and the due process approach which does not
theoretically advance the structure of the police functioning but in practice retard it. That crisis
was highlighted by Dr. Upendra Baxi as under:-
"When they act forcefully in defence of the state, they are
reviled as mindless sadists, fascists and pigs. If they fail to
offer stem resistance to public disorder, others brand them
as weak and ineffective. Many policemen also believe that
mere routine tasks of crime flighting are rendered
unnecessarily difficult because the law has become a
lottery, a game of chance in which the odds favour the law
breaker."*1071

The role friction gets resolved either through aggressive frustration or through an attitude
of vigilantism which can always be conveniently rationalized as upholding the law by
dispensing justice to those whose guilt the police are sure of but who might escape through the
legal labyrinth.
In Mario Puzo's book The Godfather, there is an excellent description of the mental
processes of policemen. Hagen understood that the policeman believes in law and order in a
curiously innocent way. He believed in it more than the public he serves. Law and order is after

1070 Dr. Sharad Satya Chauhan, Police Brutality and Custody Deaths-Causes and Remedies- a paper in SVP NPA
Journal, Jan-June-1994, at 35-38.
1071 Quoted from Upendra Baxi, The Cricis in the Indian Legal System, Vikas, 1982, at 132/
330
all the magic from which he derives his power, individual power which he cherishes as heartily
all men cherish individual power. And yet there is always the smoldering resentment against the
public he serves. They are at the same time his ward and his prey. As wards they are ungrateful,
abusive and demanding. As prey they are slippery and dangerous, full of guile. As soon as one is
in the policeman's clutches the mechanism of the society the policeman defends marshals all its
resources to cheat him of his prize. The fix is put in by politicians, Judges give lenient suspended
sentences to the worst hoodlums. Governors of the States and the President of the United States
himself give frill pardons, assuming that respected lawyers have not already won his acquittal.
After a time the cop learns. Why should he not collect the fees these hoodlums are paying? He
needs it more. Why his children not go to college? Why should not his wife shop in more
expensive places? Why should not he himself get the sun with a winter in Florida? After all he
risks his life and that is no joke.*1072
Sir Winston Churchill who, when he was Home Secretary, argued, to which most of the
policemen believe-
"They are doing difficult and dangerous job the society
demands from them without understanding of what their
moral and professional problems are. The public use the
police as a scapegoat for their neurotic attitude towards
crime and own lack of social responsibility, as well as for
resentment that should more properly be aimed at the
Government. Schizophrenically we have always turned at
least two different faces towards a policeman, as we do
towards any symbolic hero-figure which our age lacks. We
expect him to be human and yet at the same time
superhuman. We welcome official protection, yet resent
official interference. We employ him to administer the law,
and yet will ask him to waive it. We resent him when he
enforces a law in our own case, yet demand his dismissal
when he does not, elsewhere. We offer him bribes, yet
denounce his corruption. We expect him to be a member of
the society, yet not to share its prejudices and values. We
admire violence, even against society itself, but condemn
force by the police on our behalf. We tell a policeman that
he is entitled to information from the public, though we
ostracize informers. We ask for crime to be eradicated, but
only by the use of 'sporting' methods. Yet we also expect
him to cut corners to fight crime, without being willing to
share responsibility for this with him. We criticize, fail to

1072 Mario Puzo, The God Fattier 1969, Pan Edition at 252.
331
support, and deceive him; yet we cannot escape depending
on him." *1073

Socio-Culture Factors.
Dignity of human beings and the well-being of all mankind have always been a part and
parcel of the cultural milieu of our ancient Indian civilization. Cruel, barbaric and inhuman
punishments were totally alien to our culture. It is important to recognize that human rights
culture cannot be imposed, it has to grow and develop from the cultural roots of the soil. *1074

Police brutality also varies, and is influenced by socio-cultural factors. In India the police
contact with the citizens takes place only in crisis situations and the police have a Dracula like
image in rural and urban areas. The use of force is related to the social distance between the
police and the members of the public. Also it is seen that in societies where reserve and physical
restraint are valued (like Japan), there is less incidence of brutality than in countries where
people believe it is cowardice to let any challenge top unmet (e.g. India, USA).*1075
Amongst many other reasons advanced to explain the fundamental reasons for the brutal
behaviour patterns of policemen, it is also pointed out that the society in general is highly cruel,
exploitative and torture ridden. There is an argument of ambivalence concerning torture when it
comes to groups other than police or prison authorities . As Prof. Baxi points out that if the
essence of torture is to apply to severe mental or physical pain, then instances and illustrations of
such impositions can be seen in practically all areas of our life in family (wives, driven to
desperate suicides by in-laws and husbands, child or wife-bashing, abuse of domestic labour), the
sue of corporal punishment in the field of education (by instances of infliction of psychic pain by
degrading treatment, cases of ragging), social structure (stratification leading to unspeakably
inhuman treatment of untouchables), agrarian economy (bounded labour system, money lender's
treatment of agricultural debtors belonging to lower strata, harshness of recovery), Industrial
relations (strong arm tactics by hirelings of the both the unions and industrialists) ethnic and
minority groups relations( forcible conversions, exploitation of tribals and women), bureaucracy
(high handed behaviour with the public as well as the juniors in rank) or health (where poor
patients are often used as objects of clinical or even surgical training, use of harmful drugs and
so on) power politics and organized crimes, all of which the police are expected to combat.*1076

1073 1. Ravi Arumugam- Custodial Violence * Deaths: Problems & Prevention- a paper published in CBI Bulletin,
December 1994, CBI Publications, Delhi at 20.
1074 Sankar Sen, PSV Prasad, AK Saxena- Custodial Deaths in India (A research Study)- SVP NPA, Hyderabad
1075 Supra note 1070 at 35-38.
1076 Upendra Baxi- The Crisis in the Indian Legal System Vikas, 1982 at 138, 139.
332
However, this can at best rationalize the issue to state that police is also one of the groups which
uses unjustified force in its dealings but fails to impress us, as two wrongs do not make a right.
Hardly can we disagree with Prof. Baxi when he says that we can even ask the police to set an
example for the rest of our social groups. But, as we may do this, this kind of criticism of society
as a whole may provide us with fresh starting points on the subject of protection of human
dignity and use of custodial torture, than mere empty commonplaces such as "we get the police
we deserve".*1077 Ultimately, the issue has to be ended on a moral plane and in that context we
can neither rationalize not justify torture on any of these grounds.
In our country, we are accustomed to think in terms of 'an eye for an eye' and 'a tooth for
a tooth'. Therefore, the society tacitly expects and approves of the use of violence on 'suspects to
get at the truth'. Complainant themselves, particularly in property offences, egg on the police to
use force or violence to 'break' a suspect. Therefore, in a society where the public are indifferent
to the use of force on fellow human beings, policemen get, as it were, social support for these
illegal acts. Thus, there is no social stigma attached to the use of custodial violence by the
police.*1078
Human rights violations give to them some times money, sometimes name, sometimes
fame, sometimes recognition, sometimes ego-satisfaction, sometimes glamour, sometimes
favours from the affluent or influential in society, sometimes rewards and earlier promotions and
everytime contempt from the general public who become the victims of police violations. No
doubt, it is a pleasure for the violators and pain for the victims. A section of the public may
always approve of human rights violations by the police, for, they also are the beneficiaries. The
police behaviour so far has been such that the people in general approve of human rights
violations by the police. As the general public are conditioned to. accept and tolerate police
violations of human rights, they are inclined to think that a police officer with an aptitude or
inclination to make maximum number of human rights violations becomes successful in the
profession. As it is, a police officer who had developed professional ethics and desirable human
habits is rated to be a misfit or casualty in service. *1079

Occupational Solidarity.
Any grievous hurt to, or murder of a policeman are sparking points for police terror. This
phenomenon is also called occupational solidarity. Members of public do not display any

1077 Id at 139-140.
1078 Supra note 1058 at 57.
1079 Supra note 1039 at 109-10.
333
feelings on such occasions and deprived of solicitude the members of police engage in acts of
violence against the rule of law.*1080
No one is above the law. This maxim does not hold fully correct in case of policemen
who are involved in custodial crimes. The police are virtually in a position to mould or 'use' the
law to suit their interests. They have occasions to manipulate the law to cover up their misdeeds.
It indeed becomes difficult to enforce the law on the enforcers of the law. In such a situation the
police develop a feeling of immunity which is a major factor promoting the police brutality
against the person held in custody.*1081
Criminalization of Society.
That criminalisation of politics has already taken place is not a debatable question. Of
late criminals and goondas have been winning elections. Credibility which is the comer stone of
any society, is the biggest casualty in Indian politics. Corrupt local lower ranked officials are an
unfortunate by product of this process. Political murders, kidnapping, and patronage, all these
coupled with the police helplessness in such cases and their anger and frustration are vented out
in other spheres which concern the common public. Misplaced loyalty towards individual, party
or ideology and not to the public and law is an important cause of the rise of police brutality.*1082
The various causes of custodial violence as summarized by in the Sardar Vallabhbhai
Patel National Police Academy Journal*1083 are as under:-
1. Policing principles:- Most policemen do it purely to stop crime and deterring the criminals.
2. Public & Media Pressures: When a crime breaks out people start expecting results from
Alladin's magic lamp. In certain cases when no headway is made the media have front page
report saying "Police still grouping in the dark".
One of the causes of custodial deaths in the tremendous pressure on the police to detect
cases whenever there is a surge in crime, particularly heinous crime. The impact of the pressure
is mostly felt at the subordinate levels who are required to deliver the goods in quick time.
Majority of police officers and men are not cruel sadists and possess a certain degree of
commitment and motivation which enable them to stand the stress and strain of their difficult and
thankless job. Of course, there are some who, in the confines of the police stations or police
barracks, do not hesitate to inflict unspeakable tortures on the arrestees. Many police officers

1080
Supra note 1070 at 35-38.
1081
G.S.Bajpai, Custodial Crime: Some Observations, a paper published in CBI Bulletin, July 1995, CBI
Publication, at 24-28.
1082
Supra note 1070 at 35-38.
1083
Ibid.
334
develop a feeling that they can get away with worst forms of custodial violence because it will be
very difficult to prove such a charge as none will come forward to give evidence. He also feels
that his superiors and subordinates will rally round him and try to whitewash his omissions or
commissions.*1084
Do the criminals deserve harsh treatments from the police? In a public-opinion survey,
84.07 percent of the sample feel that they deserve to be treated in the manner police behave with
them today. The Indian public view may appear to be against the accepted principles of police
code of conduct and also against the outlook of the people in advanced countries where civil and
human rights are better respected. Why do our people take this attitude? The main arguments put
forth by them in this regard are that the rapist, the murderer, the pick-pocket, the thief, the cheat
and so on deserve harsh treatment. Ours is a country where accusatorial system of criminal
justice prevails and in such a system, the accused gets favoured treatment from the judiciary.
Hence, the harsh treatment of criminals at police hands offers public satisfaction. People are not
quite sure that the real culprits will be punished by the present criminal justice system.*1085
3. Inadequate police remand:- Police remand is given in only certain cases and so prisoners are
given third degree treatment to get out the truth within 24 hours. While examining ways and
means of making laws more humanistic and providing safeguards against abuse of power by the
police, it is also necessary to bear in mind, at the same time, the difficult conditions under which
the police are functioning. Some of the legal impediments that hamper proper functioning of the
police are to be removed. This is needed more so at a time when the police are confronting
unprecedented problems of law and order. Detention in police custody for 24 hours before
sending the accused to court is a check on arbitrary abuse of authority by the police. But it does
create problems in investigation of complicated cases where sustained interrogation in police
custody is necessary to unearth vital clues and elicit more information. It can be mentioned in
this connection that in UK the Prevention of Terrorism Act in 1974 permit the police to arrest
without warrant for offences under the Act and detain the suspect for 48 hours and for a further 5
days with the Home Secretary's approval.*1086
Interrogation of a suspect is a battle of wits. It presupposes superior knowledge and
wisdom on the part of the interrogator. He needs, in addition to full possession of facts and
figures, enough time at his disposal. Under the law of our country, a suspect has to be produced

1084 Supra note 1074 at 8-12.


1085 Supra note 1069 atl 16-18.
1086 Supra note 1074 at 8-12.
335
in the court within 24 hours. Courts are reluctant to grant police remand. Thus, the interrogator is
forced to work against time. He is prepared to adopt any short-cut method to gain time. In
sensational cases, subordinate police officers are subjected to tremendous pressure from their
\

departmental superiors, press and public to produce quick results. In the absence of professional
expertise to solve the crime and lack of time, custodial violence presents itself as a panacea for
1HR7
the interrogator and investigating officer to obtain quick results. *
Very often the court does not grant any further police custody. If a notorious criminal is
quickly bailed out, it is difficult to trace him out again. To circumvent the law, a new procedure
is being increasingly adopted by the police whereby a suspect is being picked up and detained for
many days. No permission is sought from the court and no information is given to the relatives
regarding the whereabouts of the detainee. Even if the detainee dies, the police do not own
responsibility as there is no evidence to show that he died in police custody.*1088
4. Increase in bail grants: This is another disturbing feature hardened criminals are given
repeated bails who return to the field of crime, frustrating the police morale who then resort to
third degree violence.
5. Inadequate training: The police in India do not know of any other method of detecting crime
than theses measures. There is no formal training in the technique of interrogation, also most
stations have no modem equipment.
6. Lack of supervision and easy escape: Section 23 of the Police Act of 1861 makes torture
punishable by imprisonment for three months or by loss of pay for three months but even this is
hardly followed.
Police Sub-Culture The police subculture is the sociological side of the same coin but appears
scientific and academic rather than historical. What it amounts to is the belief that a policeman
reacts to a situation in a manner peculiar to him as a policeman and thus different and
identifiable from how other people would react to the same situation. The subculture of our
police includes brutality.
There are informal rules of police sub-culture which glorify deviance not in terms of
personal gain or aggrandizement but as a requirement for completing the police jobs. Several
studies have highlighted the unfortunate situation in police organizations which engender a belief
in newly recruited officers that what they have been taught in training school is to be quickly

1087 Supra note 1030 at 58-59.


1088 Supra note 1074 at 8-12.

336
unlearned and they must fall in line with the prevalent culture in the organization in which the
emphasis is on the end of apprehending and convicting criminals and not on the means to be
adopted to attain the objectives.*1089
The police sub-culture that existed in the pre independence period was allowed to
continue even after India become independent. The basic law, Police Act, 1861, remained
practically unchanged and there was no sincere or whole hearted attempt on the part of the
governments to redefine the role and responsibilities of the police until quite recently. Thus, the
police sub-culture that was in existence during the British regime continued to operate and in that
culture, torture of citizens was permitted and tolerated by the authorities and the general public
alike. Hence, if a change is desired, it should be with an intention to change the police sub­
culture and it can be changed only if a new Police Act is enacted redefining the role and
functions of the police.*1090
Causes of custodial crimes as identified by a social scientist are:-
a) Tremendous pressure on the police to detect cases- for increase of crime, police is singled out
for blame, socio-economic factors are overlooked.

b) Minimum resources at disposal.

c) Impact of pressure felt most at subordinate level.

d) Provisions of Section 161, 162, 164 of Cr.P.C and Section 25, 26 & 27 of Indian Evidence
Act made police weak to deal with the criminals.

e) Granting of quick bail to the criminals and refusal of granting of police remand compels
police to take up the practice of unauthorized detention.

f) People in general also expects police to act brutally at times.

g) National Police Commission shows that an 10 can spare only 37% of his time for his own,
while he remains busy in VIP duty, misc. enquiries, different law and order duty, court
attendance etc. IOs take extra legal methods of torture to detect cases.

h) Unfortunate culture in police organization to forget the lesson of Training Centre and
depending on practices of his fellow men.

1089 Supra note 1074 at 8-12.


1090 Supra note 1069 atl20.
337
i) Personal enmity, caste consideration, religion, political consideration and at times pecuniary
benefits prompts policemen to custodial crimes and hardly those are done for investigation of
cases. *5*1091
$

Tacit Public Approval: The feature of the Bhagalpur blindings, where policemen allegedly
poured acid into the eyes of the Goondas, got the support of the local people who even took out a
procession to show their support. An opinion study conducted by "The Illustrated Weekly of
India" using a 'general sample' of 863 and opinion leaders' sample of 280 spread over Bombay,
Calcutta, Madras, Gwalior, Patna and Bhagalpur found that in Bhagalpur more than two-thirds of
the general sample and 60% of the opinion leaders sample were of the opinion that the blindings
were justifiable, 73% of the outside Bihar sample felt that it would have been okay if instead of
blinding them the police had beaten up the lot. In a particular city a couple of ruffians creating
trouble in the market place were arrested by the police, put up before the court the next morning
and were bailed out by the court. At this, the people of the town protested why the police had not
beaten up the ruffians during the night when they were in police lock-up, took out a procession
and a Bandh was also observed. So, when the police are 'soft' on a criminal, allegations of
corruption are immediately made and people suspect the worst complicity between them and the
criminals.*1092
Performance Pressure: Policemen are always under pressure to produce results. Moreover,
policemen have got the trouble on both the sides. If they fail to extract information and put the
case before the court properly with irrefutable evidence he would be charged with the allegation
by the superiors that he has not pursued the case diligently. But at the same time if he uses the
third degree methods for extracting information there is a cat-call of 'police brutality'.
Sutherland*1093 rightly pointed out "police officers are in a difficult position, for in order to do
their work efficiently they must use more power than the law seeks to give them. They are
responsible for maintaining order and for catching and arresting people suspected of violating the
criminal law but they cannot meet these responsibilities under the power and authority granted to
them. At the same time, if they exceed their authority when dealing with certain suspects and
offenders they are subject to severe public criticism. They can safely exceed the legal authority

1091 Bula Bhdra, Police Culture, Human Rights And Custodial Crimes in India, a Central Detective Training School
Kolkata Publication, at 18-24.
1092 Supra note 1021 at 23.
1093 Sutherland is known a father of Criminology. He was a great social scientist who propounded theories on
criminal behaviour.
338
only when dealing with people who are not powerful politically and who are therefore, relatively
helpless."*1094
Colonial Legacy: It will be found that the use of force, a certain degree of violence or brutality
is legally built into the role of police and the present organization of police based on the Police
Act of 1861 was not intended for rendering courteous service. The question of brutality,
therefore, resolves itself in the question of unnecessary force. This is a very difficult question
indeed because how much force was necessary, how much was in excess of the necessary cannot
in most cases, be determined in retrospect which means the man on the spot usually has the final
word on it. Discussing the extent of brutality the Torture Commission quoted a minute of Sir
Thomas Munro which was recorded in 1827:
"It is no doubt too certain that many irregularities are used
in obtaining confessions, and that in some instances
atrocious acts are committed, but when we consider the
great number of prisoners apprehended, and the habits of
the people themselves, always accustomed to compulsion
where there is suspicion, how difficult it is to eradicate
such habits, and how small the proportion of cases in which
violence has been used is to the whole mass, the number of
these acts is hardly greater than was to be expected, and is
everyday diminishing." *1093

During the British Raj the police, as an instrument of the Executive, were an instrument
of oppression by the rulers; the people were meant to be oppressed, suppressed, beaten up,
tortured, lathi-charged and fired upon, particularly if they opposed the sarkar or any instrument
of it. After Independence they failed to learn that they are not merely the instruments of the
Government but also the servants of the people.
Importance of Confession:- In advanced countries much reliance is not placed on the
confession of the accused and they try to prove their cases by collecting evidence, oral,
circumstantial and scientific by a painstaking and sustained investigation so much so that in
Japan though the police have a right to interrogate the indicted accused on a voluntary basis, they
seldom do so in practice. It is rather unfortunate that in this Country the investigating police still
feel that a case in hand is solved as soon as they manage to get a confession from the accused

1094 Supra note 1021.


1095 Supra note 1021 at 23.
339
and hence is the tendency to extort a confession by adopting torturous methods of
investigation.*1096
External Factors;- Many external factor affects and influences the conduct and behaviour of
policemen;*1097
1. Police being the most expressing organ of Government, there is a tendency on the part of the
police to get firmly identified with Government policies;
2. Where a police force is partisan, there are greater chances of its resorting to violence which
would vary according to "particular political influence and Government objectives."

3. Where police get involved in partisan politics the 'boundaries' of tolerance of the officialdom
get expanded for police violence "in times of acute political tension and social disruption."

4. 'Tumultuous politics' often provides a screen for police misconduct, including violence.

Survey on Use of third degree methods:*1098


Do the police use third degree methods during interrogation?
Yes No.
Total 60.9% 39.1%

Reasons for use of third degree methods:


Reasons Total
Lack of skill in investigation 69.3%
Pressure of Work 65.7%
Desire for Quick Results 65.7%
Faith in effectiveness 62.0%
Lack of Forensic Science Facilities 61.3%
Lack of Faith in Scientific Methods 56.2%
Deficiencies in Law 55.5%
Unreasonable Public Demands & Expectations 55.5%
Unwillingness to put Sustained Efforts 35.0%

Price for Miracle/Peer Pressure.


The real pressure on a police officer is when his performance is evaluated on certain
unmanageable tasks assigned to him or her to be performed \yithin a limited time which is almost
impossible to accomplish. If police officers are supposed to perform miracle then there is price
for every miracle. In dacoity, robbery, and other such crimes, encounters are the price for
miracles the same way as the third degree methods involving torture are for solving the property

1096 R.Deb- Criminal Justice- The Law Book Company (P)Ltd. AUahabad at 69.
1097 Supra note 1073 at 10-15.
1098 Supra note 1029.

340
crimes. Another significant aspect is that Indian police have nothing to offer to a criminal or the
criminal has nothing to gain if he becomes truthful. On the contrary, a criminal has chances of
gaining if he could mislead the police. In this game of deception and smart misleadings, police
officers feel tremendously inclined to third degree methods, specially when the time is short and
pressure is great and higher ups feverishly looking for some results to please their bosses.
Sometimes the complainant is influential and wants the pressure to be applied to the perpetrator.
The possibility of committing brutality is more due to external factor. The internal factors are
police ego, peer pressure, and corruption. Police ego is to establish the capability to solve the
case. The peer pressure is also responsible because a soft genteel police officer is less respected,
more derided.
Misplaced Priority:- In normal police work, law and order gets the main priority and the
prevention and detection of crime get only secondary attention. To be a successful detective, a
Police Station House Officer should have thorough knowledge of his jurisdiction, incidence and
pattern of crimes, modus operandi and other details of the criminals residing in his area, full
details of harbourers and receivers of stolen property, complete knowledge of undesirable and
anti-social elements of the area etc. To acquire this knowledge, the officer should have sufficient
time and leisure at his disposal. Unfortunately, with his pre-occupation with law and order
duties, and his frequent transfers he is not able to concentrate on this important aspect of his
work. Thus, his approach to crime work tends to be unsystematic and unscientific.*1099
Conditioning.
Public endorse the view that the society cannot be policed without violating the human
rights of people. They are inclined to think that human rights violations are a sine qua non for
good and effective law and order management and prevention of crime. The principal reason for
the development of this sort of pervert impressions among the people and the police has been
found to be that neither the police nor the people have seen how the police in some other
countries work without violating human rights. This sort of "conditioning" of the public and the
police towards the acceptance, approval and recognition of human rights violations as a part of
the police sub-culture make everyone to say "let it go on as it is" or better, "without it nothing
can be done" in India.*1100

1099 Supra note 1030 at 58.


1100 Supra note 1058 at 115.

341
The indecent expressions uttered by the police centre around words like "bastard", "son
of a prostitute", "mother-fucker", "son of a bitch", "prostitute or a woman of bad sexual
character" etc. which are hated by anybody including notorious sex-perverts in society. The
reasons for the lavish use of most sexually indecent words may be many and various. But the
most important cause, as indicated earlier, is found to be "conditioning" of the people to these
kinds of reprehensible words. By the frequent use of filthy words/language to people, the man of
the street has been "conditioned" to the fact that they need not take the police seriously if and
only if the police use abuse words against them. This false notion of the public can be wiped off
only if they are deconditioned and the deconditioning needs a change not only in the culture of
the society but also in the sub-culture of the police department where the frequent use of slangs,
indecent expressions, filthy language etc. have become a regular feature.*1101
Animal Instincts in Human Beings.
It is an accepted theory in criminology that some people drive pleasure when they cause
pain or torture to others. This can be derived when pain is caused to insects, animals or people. It
can be masochistic, sadistic and vicarious. This nature in man is universal. The pleasure one
derives in doing so depends very much upon the personality of a man/woman who inflicts pain
on others. This is the reason why some persons cause more pain to people that others. The
preachings of religion, philosophy, ethics, are, in a way, towards controlling this nature of man.
Hence, the first step towards preventing human rights by police should be to initiate steps for the
inculcation of the finer points in the professional ethics and the police code of conduct among the
police functionaries.*1102
Conducive Environment.
Personality traits of aggression in people get developed when there is conducive
environment for their development. The more the favourable environment for the development
of aggressiveness, the greater will be its development. May be due to the historical disadvantages
that the police in India have inherited from the British oppressive police system or may be that
the police after independence did not want to deviate from such oppressiveness which guarantee
certain amount of physical, psychological monetary benefits for them, the environment
prevailing in police stations or at the cutting edge level of police administration has been one
favouring the use of oppression and torture, however little or severe it may be. This has

1101 Id at 116.
1102 Idatl29.

342
doubtlessly an adverse effect upon the development of proper police personality in individuals in
the right and desirable direction which accepts and appreciates human rights, civil liberties and
dignity of a human person.*1103
Snail's pace of Criminal Justice System.
Maurice Punch in a perceptive study called "Conduct Unbecoming" has stated that the
roots of police deviance are deep-seated and multi-dimensional. It stems from, as seen in various
countries of the world, ambiguous legislation, vulnerability to legal sanctions, occupational
culture and a desire to produce quick results. In countries like India, the public expect the police
to take laws in their hands because of the working of the criminal justice system at a snail's pace.
There is demand for ruthless counter-measures in spite of the price to be paid in terms of human
rights. It is the responsibility of the police leaders to resist such pressures and check drifts of this
kind. They have to keep in mind that in any democratic society order maintained by repression is
the worst form of disorder. It establishes a linkage between social order and atrocity. *1104

Preventive Action.
In a Democratic country like ours we are bound to follow the majority, and when a
legislature has made a law, it might be open to resistance by minority. The scheme of rights is so
framed that every right is regarded as enforceable. There is no right which vests in us, which the
executive is not under an obligation to protect. If then any person prevents the exercise of a right
by a citizen, they behave unlawfully and must be restrained by the police, on the other hand, the
police and the magistrate are always found of using the preventive sections and produce the
effect that those who wish lawfully to exercise the rights vested in them are prevented, while
those who threaten unlawfully to break the peace are encouraged to believe that, if they only
make forcible enough threats they can prevail and get the authorities to curtail or suspend the
citizen's lawful rights. The executive in this country are in a very privileged and pampered
position. Law gives them extraordinary powers, and still whenever they have got to protect us in
the exercise of our lawful rights, they have recourse to preventive action and shut us. *1105

Role of a Social Reformer.


It is really a paradox that a country which has given birth to thousands and thousands of
Saints, have to seek to achieve social reforms through punitive measures enforced by the Police

1103 Id, at 130.


1104 Sankar Sen- Police Accountability and Civilian Oversight- a paper published in SVP, NPA Journal, Volume 52
No.2 July-December,2000 at75.
1105 Dr. P.Laksluninarayanan-Why Target Police Only for Human Rights Violations- a paper published in Indian
Police Journal Vol. XLIII No.2 July-December, 1996- at 10.
343
instead of through education and persuasion. Our legislatures churned out laws at an alarming
rate and entrusted the enforcement of these legislations to the Police force. Many of these
legislations, though noble in aims, have not been accepted by the public and the Police as well..
As the police are required to enforce all such laws/legislations, a situation of conflict with the
public is created.*1106
Summary
It is not merely an urge to detect a case that prompts a policeman to resort to physical
abuse on the arrested.*1107 Reasons like corruption, perverted mind, sub-culture, having no fear
of consequences (as there is a tacit and silent acceptance by political leadership as well as
administrative elders) encourage or give a sense of recklessness in the minds of some of the
police personnel. In fact, important amongst the other well known reasons for the perpetuation of
a vice like the third degree or other custodial abuses by the police are worthy of mention.*1108
1. Challenge to the ego of the investigator of his ability to solve the case at any cost.
2. Corruption and urge to misuse such occasions towards selfish ends.
3. Police sub-culture.
4. Imaginary perception that police have got to be crude and brutal in all their actions to be
effective and to produce results. This mistaken belief on the part of the police is cemented
further by an equally erroneous presumption on the part of the public that such a coarse
conduct of the police is conducive for efficiency of the system and is tolerated as an evil
necessity. At times such a style is even urged as a desirable trait to keep the law breakers in
check.

5. Political or other pressure groups exercising their influence on the police to abuse their
power.

6. Community pressures in specific unsolved cases force a tremendous public upheaval when,
for example a series of crimes or offences go undetected and an indirect impetus is thus
falling on the police to somehow detect the case even at the cost of unjustified force on
suspects.

7. Imaginary belief that in the best interests of the case and welfare of the community, such use
of force is not bad, if the intention or the object is good i.e., to solve a case or to teach a
lesson to a bad coin.

8. Horrifying or outrageous cases like gruesome murders for gain or rape, when not solved
generate an opinion in the minds of even impartial observers that lawlessness has to be
curbed at any cost and that violence can be met and curbed only by superior violence.

1106 Ibid-at 10-11.


1107 Dr. S. Krishnamurtliy- Human Rights and the Indian Police-Payonidlii Printers, Banasankari, Bangalore, at 314.
1108 Substantiated by other reports of BPR&D on Police Corruption.
344
9. Overload of work on the investigating staff.

10. Lack of scientific approach to investigation, both during training as well as during the field
work which is compounded by inadequate emphasis on it by the police leaders.

11. Lack of the much needed resources at the field level.


12. Poor treatment of the subordinate police officers by their respective superiors- an
organizational shortcoming of a glaring nature which resembles a cascading evil in-effect. It
is alleged that a constable or an Investigating Officer is himself denied the normal self-
respect. Thus, he cannot give, what he himself does not have or get.

13. Lack of openness in the police working.

14. Pressure of work and other similar reasons.

We may tersely state that the all the above and many other apparently convincing factors
are illustrations of various explanations for the prevalence of abuse of police power including the
crude resort to third degree by the police. But they surely are not the justifications for such
lawless actions by any stretch of imagination. Reasons apart, third degree or custodial abuse
cannot and must not be countenanced. No doubt, measures to tackle some of the constraints
above can be certainly sought and acted on. Admittedly, a vast majority of policemen may not
have such a warped mental make up. Yet, the strength of a chain hinges on its weakest link and a
perverted or lawless minority amongst them can sully the reputation of the entire force and even
discredit the very system. In fact, this appears to be the truth. Why these brutalities by the police?
So many factors seem to contribute:-
1. Prolonged stress and strain of police work on policemen.

2. Very little time is left for policemen to conduct investigation of cases and for detection
because they are mostly busy in law and order, VIP duties, attendance in courts and senior
police offices.

3. Third degree methods are supposed to be a "short cut."

4. Political and official pressure.

5. Police corruption.

Policemen's point of view :

50 senior Indian Police Service officers of Haryana cadre were circulated a questionnaire
to solicit their opinion on the reasons/compulsions behind violation of human rights of the
person by police in custody. On the condition of anonymity and promise of secrecy these officers
345
furnished their response. These officers enumerated following reasons for violations of human
rights by police
• Pressure from public, specially against the accused of rape, eve-teasing and serious
accidents etc.
• Pressure from members of ruling political party/parties.
• Lack of knowledge on part of lower subordinates.
• Personal interest of police officer for various reasons.
• Problem of getting the police remand of accused person required for sustained interrogation.
• Hard nature of duties of police officers.
• Pressure/demand from the society.
• Ignorance of law on the part of the subordinate police officers.
• Normally criminals, especially property offenders, do not divulge any information without
use of third degree.
• Eagerness to show results.
• Threats from senior officers to show results or face consequences.
• Greed for money.
• In the interest of law and order.
• Misbehavior by the arrested person with the police.
• Personal enmity of the Investigating Officers with the person in custody.
• Psychological imbalance of police officers.
• Hypertension caused by excessive work load.
• Over populated country where human dignity is graded very low priority in the society.
• Inequality in the unequal society.
• Shortcut to investigation due to paucity of time.
• After a stage in investigation there is no option but to resort to torture to solve the mystery of
crime.
• Complete absence of training for investigators on scientific interrogation techniques.
• Self assumed professional challenge to solve all property crime and crime mystery.

During the course of this study, lower subordinates at the cutting edge level were also
interviewed for their knowledge on human rights: A questionnaire was circulated and response
received as compiled below
Out of 140 lower subordinates interviewed, 71 reported that human rights are the rights
given by the Government, 20 reported that human rights are individual rights, 38 reported that
human rights are fundamental rights and 11 others reported that human rights are rights
necessary for life.
15 out of 140 lower subordinates responded that abusing, slapping and beating a person
in custody does not amount to violation of human rights.
20 out of 140 lower subordinates responded that they were not given any lecture by any
body on the subject of human rights. 71 reported that they were imparted knowledge of human
346
rights by officers of the rank of Superintendent of Police and above. 76 responded that they were
given lecture by the officers of the rank of Deputy Superintendent of Police. 22 reported that
they were given lecture by the officers of the rank of Inspector and Station House Officer. Not
even a single lower subordinate responded that he had read any book, pamphlet or written
document on human rights.
When asked what action should be taken against known property offenders and bad
elements, 8 out of 140 responded that they should be given shoe beating in public, 46 reported
that they should be arrested after registering a criminal case and 86 others reported that legal
action should be taken against them as and when they commit crime.
One out of 140 confessed having misbehaved with persons in custody for more than 100
times in his career, 2 responded that they have misbehaved with the persons in custody for more
than 50 times, one confessed having misbehaved with the person in custody for more than 20
times, 2 confessed having misbehaved with the person in custody for more than 10 times.
Out of 140 lower subordinates interviewed, one confessed having beaten a person in
custody more than 100 times, 2 confessed having beaten a person in custody more than 50 times,
2 confessed having beaten a person in custody for more than 20 times, 3 confessed having beaten
a person in custody more than 10 times and 22 responded that they had beaten a person in
custody less than 10 times in their career.
Above response is suggestive enough to conclude that adequate training and knowledge
on the subject of human rights is not being imparted to lower subordinates at cutting edge level.
The response of Senior officers of Indian Police Service is, however, disturbing. It appears that
they have learnt the art of justifying the use of third degree methods in investigation. What is
more disturbing is the fact that those officers who took oath and expressed their faith and
allegiance to the Constitution of India on the very first day of their service career have forgotten
the basic structure of our Constitution. They need more training than their lower subordinates.
(D) Police custody Death svndrome(PCDS).
(PCDS)*1109 is the unexplainable and sudden death of the victim while in custody. While
PCDS is not a completely new phenomenon, the issue is being reevaluated by many law
enforcement agencies. These deaths occur after some amount of force was used, however, the
force, in and of itself, would ordinarily not be sufficient to cause death. In most of the reported
cases, these deaths were not attributed to deadly force by law enforcement officers and were not

347
the result of head strikes or blunt trauma. The arresting officers avoided impact weapons in an
attempt to avoid significant injury. Suspicion would be raised after the subject was discovered
dead. The following list may prove useful to police toners attempting to identify the potential
PCDS:
1. Bizarre, aggressive behaviour.
2. Violent behaviour.
3. Shouting.
4. Fear
5. Panic
6. Paranoia.
7. Violence towards others.
8. Violence towards objects, especially glass.
9. Public disturbing.
10. Dilated pupils.
11. Profuse sweating.
12. Unexpected physical strength.
13. Jumping into water.
14. Self-inflicted injuries.
15. Shivering (hypothermia).
Additionally, less obvious signs and symptoms include: delirium or psychosis, high blood
pressure incoherent or meaningless speech, and dose of drug . It is interesting to note that in the
cases cited above as well as many other cases involving PCDS, toxicol revealed the presence of
cocaine in the subjects' system.*1110
Police are not psychopaths given to murdering people. What happens in the field is when
police start applying third degree to the suspects, many of them die due to the fact that they are
generally undernourished of poor health with serious medical problems and the existence of fear
psychosis generated due to the trauma of custody and stories of police brutality.*1111

1109 Tod W. Burke and Joseph Reynolds, Police Custody and Death Syndrome, a paper published in Magazine "Law
and Order" USA, September, 1994 at 1991.
1110 Tod W. Burke and Joseph Reynolds, Police Custody and Death Syndrome, a paper published in Magazine "Law
Enforcement Technology" USA, July 1994 at 64.
1111 S. Subramanian, Prevention of Deaths in Police Custody, A paper in CBI Bulletin- January 1994, CBI
Publication, Delhi at 1-3.
348
(E) Lack of Study and Research in Policing in India;-
India is sadly lacking in this field as compared to some western nations. Such studies and
research impart respectability to police and policing by creating an intellectual dimension. They
are also the stepping stones in remodeling the police organization and redefining policing
functions to create an effective police force.*1112
(F) Falling Standards of Morality:
One cannot deny the fact that social, ethical and moral values in our society have
considerably fallen. We cannot deny the fact that police men are recruited from among our own
society. This accounts for the fact that the same is happening in other professions also, the police
are only more visible. To every young and inexperienced person there is often a conflict between
his early training with emphasis on service ideal and his developing experience at street
level.*1113
(G) Psychological Methods of Interrogation.
There has been a perceptible decline in the psychological methods of interrogation by the
police, and a corresponding rise in the violent and extra legal methods for detection of cases. The
Royal Commission of UK identified three principles for conduct of criminals investigations.
These are:-
1. The public have a right to expect a set of standards for conduct of these investigations.
2. There should be a balance between the extent and effect of the investigation powers.
3. The use of such powers in a case should be warranted by the specific circumstances and be
capable of immediate challenge and subsequent review.*1114

Short Cut to Investigation.


The National Police Commission found that an investigating officer is able to devote only
37% of his time in investigational work. The result is farewell to open and painstaking
investigation and dependence on short-cut extra legal methods and torture. *111:>
There are three interlinked factors which are putting the patience and restraint of the
police to a difficult test. One such factor is the increasing case load. The second factor is the time
constraint. The police are forced to work against time in the course of their work. The officials
are under tremendous pressure to produce results so as to maintain the crime chart of their police
station stable. The legitimate limit of keeping a suspect under custody for the purpose of

1112 Supra note 1075 at 35-38.


1113 Ibid.
1114 Supra note 1075 at 35-38.
1115 Supra note 1086 at 8-12.
349
interrogation is often found to be too inadequate to produce any result for the satisfaction of their
superior officers and public. To produce quick results the only method that is left with the police
is to use torture and force. The third interlinked factor is that of greater emphasis on statistics of
criminal cases solved by the police. Consequently, the police adopt all possible tactics to see that
the confession is extracted and the case is charge sheeted. *1116

The police short-cut is brutality and it has become a way of life. In a house-breaking case,
the process of making enquiries from various people, from the Modus Operandi Bureau and from
the various fences of stolen property takes time; for the normal police officer it is faster to catch
the servant in the house, hammer him and if it works and, at his instance, some stolen property is
recovered well and good, otherwise tough luck for the complainant, the case goes undetected. Of
course, in India the most used short-cut is not to register the burglary at all, harass any one who
comes to the police station so that an ordinary citizen would think several times before coming to
report an offence. Brutality works even better in handling of law and order situation. And, sadly
enough, under pressure it seems to be the natural response of police, regardless of country. *1117

Whenever a serious crime like a robbery or a major burglary takes place, the area police
swoops on all possible suspects in the vicinity. They are picked from their homes and kept in the
police station over several days, not formally in a lock-up, but in some other remote room, to
escape detection. As the police is not quite comfortable keeping a man in illegal custody
(because of fear of being discovered by the judiciary or the magistracy or the media or the
human rights groups), the tendency is to get over with the whole thing quickly by the short-cut
method of third degree. The fact is that confessions do come quite easily with third degree,
except in a minuscule number of cases involving hardened criminals. *1118

(H) Victims of Police Violence.


It is a fact that the victims of custodial violence mostly are people coming from poor and
backward sections of the society with little political or financial power to back them. Personal
enmity, caste and political considerations, and at times pecuniary benefits become important
considerations for custodial deaths rather than investigation of cases. *1119

Members of the weaker or poorer sections of society, are arrested informally and kept in
police custody for days together without any entry of such arrests in the police records. During

1116 Supra note 1087.


1117 Supra note 1073 at 15-16.
1118 Police Reforms Committee presided over by former Home Secretary Mr. K. Padmanabhiah appointed by the
government in January 2000.
1119 Supra note 1059 at 8-12.
350
the informal detention they are subjected to torture, which at times results in death. In the event
of death in custody, the body of the deceased is disposed of stealthily or thrown to a public place
making out a case of suicide or accident. Records are manipulated to shield the police personnel.
The relatives or friends of the victim are unable to seek protection of law on account of their
poverty, ignorance and illiteracy. But even if some voluntary organizations take up their case or
public interest litigation is initiated against the erring public officers no effective or speedy
remedy is available to them, as a result of which erring public officers go scot-free. This situation
gives rise to a belief that the laws' protection is meant for the rich and not for the poor. If the
incidents of custodial crimes are not controlled or eliminated, the Constitution, the law, and the
State would have no meaning to the people which may ultimately lead to anarchy de-stabilizing
the society.*1120
The Law Commission recommended that confessions made to a police officer of the rank
of deputy superintendent of police and above should be made admissible in evidence provided
that the investigation has been carried out by such an officer himself. This recommendation of
the Law Commission seems to be funny, for the simple reason that the deputy superintendents of
police are not generally the Station House Officers who are empowered to investigate crimes in
majority of criminal cases. Hence, conferring of this powers to a category of officers who do not
have much to do with crime investigation does not serve any purpose. In a South Indian State, 45
people died in police custody during the period from 1980 to 1993 (June) and all of them died in
police stations or while they were taken to hospitals after the torture in police stations. Actions
for torturing people in custody were taken against 58 police personnel. Out of them 50 were
constables and head constables. 1 was an ASI, 6 were Sis and 1 was a Circle Inspector of Police.
This shows that the deputy superintendents of police normally do not figure as the accused in
custody deaths. The most revealing aspects of these custody deaths were that the deceased were
not involved in very heinous crimes. 13 people were taken into custody in connection with theft
cases, 5 were just suspects in crime, 8 were caught while they were quarrelling on some issues,
one was caught while he was witnessing a card-play, and finally one was tortured and killed as a
result of arguing with the constables. Again 3 people were handled by the police on their
suspicion that they were involved in illicit ganza trafficking, and another for causing' arson in a
bazzar, 3 were caught in connection with murder cases. Majority of these who died to police

1120 Introduction to the 152nd report of the Law Commission of India on "Custodial Crimes," August 1994.
351
custody were daily wage labourers and people who come from the poor strata of the society. 26
people out of 45 were in the age group of 20-40 years.*1121
(I) Deaths in Police Lock-ups.
In 1980, Arun Shourie*1122 investigated 45 deaths in police custody in seven states. He
found, "the patterns are uniform from one death to another, from one State to another, that
generalizations are possible. The victims were invariably poor. Several of them were hauled in
on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly
large number of cases they are all accused of petty offences." In some cases investigated by him,
he observed that the bodies were so badly mauled that it was not possible to hide the crime
committed. The explanation for these deaths were, 'snake bite', heart failure on the way to the
hospital, 'sudden illness', etc. Some were said to have died of mysterious reasons, while the rest
committed suicide. The accounts of suicide given have not varried. Hanging inside the lock-up
by using a 'lungi' or a belt, jumping out of a building or in front of a bus, are some such
unbelievable account.
Deaths in Police 'Lock-ups' and in encounters' occur frequently and the fact that majority
of the victims are from weaker sections of society and these deaths are the outcome of third
degree methods and flagrant violation of human rights of the citizens, are causing concern to all
right-thinking citizens of India. They not only sully the image of India as a liberal democracy but
are also providing fuel to anti-India propaganda by vested interests. Every year, lakhs of people
are taken into custody by the Police and majority of them are suspected of having committed
property crime. They are generally from poorer sections of society, illiterate, lack financial
resources to afford legal aid and are unaware of their rights. Bulk of these arrests are made in the
cities and towns where property crime occur in good numbers. To solve property crime, Police
resort to third degree due to-
> Tacit approval of the society for the use of force against a suspect to detect the crime;

> Psychological factors including fear psychosis in the minds of suspects and to exaggerated
stories of Police brutality;

> Lack of adequate time and pressure to produce quick results which preclude the use of time-
consuming and painstaking modem methods of crime detection; and finally

1121 Supra note 1058 atl24.


1122 Arun Shourie 1980 quoted in K.G. Kannabiram "Creeping Decay in Institutions of Democracy". The Economic
and Political Weekly, August 1992.
352
> Legal impediments which deny Police adequate time to interrogate the suspect.*1123
In a study by BPR&D (1992)1124 on Custodial Crimes, following causative factors were
identified for occurrence of custodial deaths in our country-
Sadism in Police.
Unrealistic public expectations about crime control.
Failure of Criminal Justice System.
Inadequacy of strength and resources in police.
Inadequacy of laws.
Lack of scientific temper and non-availability of facilities,
Response of senior police officers regarding custodial deaths as obtained by Sh. Shankar
Sen *1125is summarized as below:-
1. The custodial deaths are because of unwillingness on the part of Senior Officers to take the
problem seriously. There is a general feeling that custodial deaths are very few when
compared to large volume of arrests.

2. There seems to be lethargy on the part of bureaucracy.

3. In-service training of subordinate ranks is not being paid proper attention in States for
shaping the attitudes and conduct of policemen to stop custodial deaths.

4. The State Governments do not consider it imperative to eliminate the use of third degree
methods in police working. A large segment including certain ministers, bureaucrats and
senior police officers feel that rough treatment to criminals is desirable because since it
builds proper image of police.

5. Lack of political will and strong Public opinion are the reasons of occurrence of custodial
deaths.

6. Police Stations have become places of disrepute and highly sensitive persons taken in
custody commit suicide.

7. Some police personnel do not have adequate skills of investigation and utilize third degree
methods on persons taken in custody.

8. Non-implementation of suggestions made by several Commissions and Committees is also


one of the reasons of custodial violence.

9. Most of the victims of custodial deaths are from poor background. Either they belong to
scheduled castes or tribes or other backward classes or poor from the so-called forward
classes. State does not bother about them.

1123 Supra note 1081 at 24-28.


1124 Custodial Crimes- Ways and Means to Meet The Malady- BPR&D, GOI, 1993.
1125 Supra note 1074 at 57.
353
10. No pressure groups working on behalf of the victims of custodial deaths, to compel the
government to implement the suggestions made by the committees and commissions to
control the custodial violence.

11. Very often, Committees and Commissions are appointed to look over a crisis or to suppress
people is emotions over the incident. As soon as temper cools down, government also forgets
about it.

12. As long as the police are misused by vested interests for personal and political purposes, all
such Commissions and Committees on custodial violence will be meaningless.

13. Undue emphasis is given to the crime figures, Slow process of modernization of police force,
will to implement, lack of resources, poor training of personnel and lack of respect and
commitment to law of the land are some reasons for custodial deaths.

14. There is feeling of brotherhood among police at different levels. Therefore, strong action is
not taken against erring policemen.

Response of Indian Administrative Services Officers on custodial deaths as compiled by


Shankar Sen is as under:-*1126
1. The person who dies in custody, invariably is a poor person with no backward and forward
linkages. His death is more of statistics and never raises eyebrows.

2. Lack of public sensitization on the issue of custodial violence and the political will are also
the reasons of occurrence of custodial deaths.

3. Non-exposure of lower level police personnel to the committees and commissions


recommendations on stopping custodial violence is one of the most important reasons.
4. The various enquiry reports are not acted upon for prevention of custodial deaths.

5. Lack of training and resources to conduct scientific investigation.

6. More interference with Police functionaries who find little time for proper follow-up of cases
because of preoccupation with routine policing especially with law and order duties.
7. Indiscipline among the ranks and lack of public awareness on the issue of custodial violence.

8. The police being perceived as an agency to "Settle" political scores and secure electoral gains
fortunes is receiving political patronage down the line.

9. Inertia from higher echelons of the police and home departments who view police as a
symbol of "power."

10. Every official tries to "influence" the reports related to the custodial deaths.

1126 Id at 57.
354
11. In several parts of country, law enforcing agencies are working under stressful conditions.
Better training and equipment to handle such situations are desirable. This, along with alert
public watch dog committees will reduce the occurrence of custodial deaths.

12. Custodial deaths often take a turn and emerge as political issues against the ruling party.
Enquiry findings sometimes cause inconvenience to the ruling party. This hampers
implementation of the recommendations.

13. Politicians in general are very much concerned about the 'Morale' of police. When they find
that the recommendations of the Commissions when implemented can generate
dissatisfaction among policemen, they postpone the implementation. Policemen are capable
of "creating" a political crisis by unwarranted firing, lathi-charge etc. Therefore, the ruling
party tries to create an impression among policemen that they would support them as far as
possible. Delay in implementation of reports is one of the ways of eliciting police support.

Response of Judicial Officers on custodial deaths as compiled by Shankar Sen*1127is as


under-
1. The Government is not serious about the problem of custodial deaths in our country.

2. Those in power do not want to take the police to task. They treat police as an instrument of
coercion.

3. The commissions and committees are a drain on the exchequer. Their wisdom is not
translated into action as their words have no binding authority.

4. Some other reasons cited by the Judicial Officers were-


• Political interference.
• Lacunae in procedural laws.
• Reluctance of law enforcing agencies.
• Lack of political will
• Lack of publicity to Commission/Committee reports.
• Failures in creating awareness on account of which the debate on the issue is inadequate.
• Access to reports of Commissions and Committees.
• Public opinion is not strong enough.
• Lack of sufficiently trained police functionaries.

5. It is advised that police department should take steps on its own by way of prompt
punishments in case of offences relating to lock-up deaths. Such punishment must be severe.

6. Most of the Commissions are appointed only as an "eye wash."

7. Implementation of suggetions should be given wide publicity.

8. Third degree methods during interrogation should be avoided.

1127 Id at 74.
355
Response of academicians on custodial deaths as compiled by Shankar Sen*1128 is as
under: -
1. Any conviction of the police personnel due to custodial deaths must be given as wide
publicity as that of any other serious crime.

2. Findings of enquiries, whether judicial or magisterial, require to be implemented at the


earliest and the culprits brought to book.

3. Police personnel are required to be trained intensively on law relating to custodial deaths and
the skills of interrogation.

4. Police stations are required to have adequate rooms for detention with some privacy for
female detainees.

5. There is no bureaucratic or political will which alone will break the nexus between criminals
and ofFicials/police/politicians.

6. The suggestions are inter-linked with various other problems like literacy levels of police at
lower cadres, pay scales, police organization, etc., which involve expense of time and energy.

7. General lack of visionary zeal in the decision-makers at all levels.

8. Corrupt government, which in most cases support the culprits when they belong to the ruling
party.

9. Corruption among the policemen at middle and lower levels.

10. The interests of the politicians come in the way of implementation of reports of
Committees/Commissions.

11. Some of the suggestions involve financial expenditure, which obviously is the reason for
non-implementation of such suggestions to control custodial violence.

12. Politicians in power want to use the police as a tool to show authority and to suppress their
political opponents.

13. There is greater gestation periods between formation of commissions, publication of reports
and their implementation.

14. The task of investigation should be entrusted to trained police personnel.

15. If no action is taken against policemen responsible for custodial deaths or other excesses,
they also loose sensitivity and therefore consider themselves as "rulers" rather than servants.

1128 Ibid.
356
The views of top echelons of Police.
During the course of this study a opinionnaire on 'Custodial Deaths' was mailed to 70 IPS
officers. When asked to identify five most important reasons of occurrence of custodial deaths in
our country, the respondents identified the following:-
1. Custodial deaths occur due to the use of third degree methods by police.

2. There is lack of effective supervision by the senior police officers and the subordinate ranks
lack in proper attitudinal orientation to avoid Custodial Violence.

3. Training is inadequate in the areas of Scientific investigation and interrogation.

4. The police are insensitive to people and therefore prone to be brutal.

5. Extraneous pressures because of political forces, personal vendetta, and corruption lead to
'Custodial Deaths' in our country.

Other five low intensity reasons for the occurrence of custodial deaths identified were:-
1. Police lack confidence in the Criminal Justice System.

2. Due to pressure exerted by officers to show results, there is always a performance anxiety
among subordinate ranks to perform even by bypassing law.

3. Liberal bail provisions stress on foolproof evidence etc. are some of the provisions in the
legal system which encourage evil practices resulting in 'Custodial Deaths'.

4. Lack of professionalism and weak internal organizational democracy are also the factors
leading to Custodial Violence.

(J) Police Encounters:


'Encounters' occur due to the legal problems faced by the police. Notwithstanding the
presence of much publicized 'Draconian Laws' on the Statute book, it is a dismal fact that our
courts have not been able to deal with terrorists severely. No sane citizen will place himself in
jeopardy by giving evidence against terrorists in a Court of Law. They cannot be saved by the
police from reprisals. Police cannot produce the intelligence at their disposal as evidence, as
much of it will be hearsay and inadmissible in evidence. The pressure to put down political
violence and terrorism by the State authorities and the public, drive the police to take recourse to
'encounters' to gain respite from the pressures of the state, public and the terrorists.*1129

1129 Supra note 1111 at 1-3


357
(K) Philosophy of Solution to the Problems:
Brandies of American Supreme Court in Olmstead v. US *1130 has very rightly remarked-
" The Police reflect the State and the state the society. If the
government becomes a law breaker, it breeds contempt for
the law, it invites every man to become law unto himself, it
invites anarchy." Thus, in democratic societies the police
are charged with enforcing the criminal law and a host of
regulatory laws designed to make society orderly and safe.
To achieve these ends, the police have been vested with
authority and powers not available to ordinary citizens. In
fact, the police are the only civilian occupation provided
with the legal and physical means to enforce the law,
including the use of state sanctioned force, when and if
necessary. The power of the police is unrivaled in civil
society and it is because of this the democracies place great
emphasis on overseeing and controlling police action."

The police is assigned the basic duty of enforcing the rule of law without fear or favour.
The failure on its part to take timely action may lead to violation of human rights. In an
insurgency situation it is difficult for the policemen to keep in mind the lessons of human rights.
But the scenario is totally different when the offenders is in police custody. There can be no
excuse whatsoever for committing violation of human rights in custody. *1131 Senior officers
would do well to analyze the problems of custodial crimes by examining the following possible
remedial issues
1. Whether it is possible to list out or enumerate the difficulties and problems of the police
which lead them to commit excesses and violate human rights.
2. What appropriate remedial steps should be taken when such excesses or violations are
committed may be under conditions of stresses and strains.
3. Whether better command control could make any difference in the situation.
4. What steps could be taken to minimize and eliminate abuse of authority when victims are in
police custody:
5. How much improvement suitable training input both in basic and in-service courses can
bring about in the situation.
6. Whether the burden of proof would lie on the police in the event of death, serious injury or
rape in police custody.
7. Whether judicial enquiry should be made mandatory in cases of death, serious injury or
alleged rape in police custody.
8. Whether mechanism, such as, Citizen’s Grievance Cell be made effective to ensure proper
redress of people's complaints against police personnel.
9. Whether members of the public could sue the members of the police forces without seeking
permission of the government in situations of violations of human rights.
1130 Omstead v US 277, US 438.
1131 Supra note 1021 at 23.
358
Suggestions to Eliminate use of Third Degree Methods. *1132

Suggestions Total
Training in scientific methods to be emphasized 92.0%
Forensic scientific facilities to be made available at the police 87.1%
station level.
Judicial inquiry should be mandatory in cases of death or 80.4%
grievous hurt in police custody
Senior officers should pay surprise visits to the police stations. 74.2%
Use of such methods should result in swift and deterrent 73.8%
punishment.
It should be mandatory for the court to ask the arrested person if 69.3%
he was ill treated by the police
Performance of police officers should not be evaluated on the 65.3%
basis of number of cases solved by them.

Following remedial measures were Iso suggested in the report of BPR&D (1992) *1133 on
custodial crimes:
1. Tightening recruitment standards.
2. Improving training standards.
3. Improving the machinery for enquiring into complaints
4. Improving supervisory and leadership standards.
5. Review and implementation of reports submitted by commission/committees.
6. Review of laws.
7. Payment of compensation.
Amnesty International's 10 Point Programme;-*1134
1. Adopt an official policy to protect human rights.
2. Investigate impartially all allegations of torture.
3. Bring the perpetrators to justice.
4. Strengthen safeguards against torture.
5. Inform detainees of their rights.
6. Train the police and security forces to uphold human rights and reform the police.
7. Compensate the victims.
8. Provide torture victims with medical treatment and rehabilitation.
9. Investigate the causes and patterns of torture.

1132 Supra note 1029.


1133 Custodial Crimes- Ways and Means to Meet the Malady- BPR&D, GOI, MHA, New Delhi 1993.
1134 Amnesty International Report (1992)), "India: Torture, Rapes and Deaths in Custody".
359
10. Strengthen India's international human rights commitment.
The third National Police Commission had made a pointed observation commending all
the above alternatives on a comprehensive canvass and stressed the importance of ensuring
higher levels of observance of human rights in police work, by a system of contemporaneous
control by day-to-day supervision with in the police network itself. Such a system is to be backed
up by an enforceable Code of Conduct which would be an effective answer to the challenge. To
convey most briefly the arguments of the Commission, we can point out that a good system of
police organizational impulse to respond to public complaints should ensure that:-
1. It would be method of providing an internal check and balance to the power that is wielded
by the personnel.

2. It would be a means to look into complaints of acts or omissions and help correctives and
would thus ensure appropriate imperatives resulting in penal actions against the erring.

3. Such a measure is perhaps the only way to seek public support and cooperation in such a
1 1oc

crucial area like the policing the community.*

In the end it must also be said that society gets the police it deserves, for without social
control and vigilance as exercised through Parliament. State Legislatures and other Corporate
bodies the police with its enormous power has a tendency to go wrong and awry. 'Power tends to
corrupt and absolute power corrupts absolutely." Thus social control in the form of approval or
disapproval of police action can motivate the police to become just, fair and law-abiding. If
society firmly refuses to condone policemen's unfair, high-handed and illegal actions, much of
the transgressions of the law by the minions of law will soon become a thing of the past. *1136
Indian Evidence Act, 1914.
It is a curious anomaly that while law gives power to police officer to arrest anyone and
keep him under custody for at least 24 hours, it places unreasonable restrictions on the testimony
of the police officers. Section 161, 162 164 CrPC and Sections 25,26 and 27 of the Indian
Evidence Act should be recast to remove shackles on police testimony. Section 162 CrPC
provides that the maker of statement before the police is not to sign it. This frequently enables
the witnesses to resile from the statements they have made before the police in courts of law. In
England and in many other advanced democratic countries, statements before the police are
generally signed and considerable importance is attached to them because it is difficult to confute

1135 Supra note 1107 at 304.


1136 Supra note 1096 at 73.
360
such statements. Of course, judges, should always have discretionary powers to exclude evidence
which, they think, has been unfairly or coercively obtained. Lord Devlin in 'Criminal Prosecution
in England1 has very aptly observed that "since the police force cannot be excluded altogether
from the field of investigation, and since the worst thing of all is to have an irresponsible police
force, is it not better to leave the police in sole charge of enquiry and to ensure that they act
under a sense of responsibility to the Court for what they do? *1137

Independent Watchology.
The government should allow independent bodies to regularly inspect all places where
detainees are kept. It could consider granting access to police stations by local judges to make
unannounced visits or grant such access to representatives of citizens committees. Even today,
the judges do enjoy such privileges and so do the superior officers of the department. But, what
is not seen is that seldom they do visit and if at all some superior officers do so they do not
approach the issue with an attitude of respecting human rights. They do it as a routine duty and if
they find some detainees without reasonable justifications for their custody by police, they are
released and usually no punitive or departmental action is initiated against the erring officers
unless they want to harass the erring officers/men. There is an argument that the superior
officers' attitude to such callous violations to human rights by the subordinate ranks should be
changed if one wants to stop such violations in police stations. *1138

Attitude of Courts.
As it is, the lower courts used to ask a question to the people produced before them
whether or not they were subjected to illegal detention, informal arrests or torture. Many people
usually do not tell the courts how they were tortured. The reason for this attitude is the well
founded apprehension in the suspects' mind that they would be further tortured by police in case
they reveal the ways and means by which they were tortured in police custody. It should be made
mandatory for the courts to make suo-moto inquiries about the day and date on which the
suspects were taken into custody, the place or places they were detained, the manner of keeping
them in custody, i.e. with normal dress or not, the physical conditions of the lock-up, the
hygienic aspects of the food, sufficiency of food given to them- the identity of the officers who
had taken them into custody, the manner (formal or informal) in which the arrest was made, the
circumstances of their arrest and a variety of such questions with an aim to make a judicial

1137 Sankar Sen- Human Rights- Ina Developing Society-APH publishing Corporation, Delhi- at 94.
1138 James Vadackumchery- Human Rights & the Police in India-APH Publishing Corporation, Delhi- at!35-36.

361
assessment of every aspect of torture that was likely to creep into while the suspects were
handled by the police. In case the court feels that they were subjected to torture, they should be
immediately be sent for medical examination. As it is, everything is done in a ritualistic
fashion.*1139
Training.
Training programmes have been initiated to sensitize policemen of citizens' legal rights
and safeguards. But what is further required is different training programmes for requirements of
different level. For officers of Indian Police and State Police Services, the syllabis should include
the International Covenants on Civil and Political Rights and International Covenants on Social,
Economic and Cultural Rights, other international instruments on human rights and the
constitutional and legal provisions. The officers of the junior level and for those who are at the
field should be exposed to legal and constitutional guarantees for the protection of human rights
with special reference to the Fundamental Rights and Directive Principles of State Policy.
Instead of PSI/PR, indoor staff teaching those provisions to policemen at training schools, we
can invite social science lecturer from reputed local colleges to deliver 2/3 guest lectures and we
may also organize quizzes/discussions on human rights to bring more awareness on the top.
Training films on do's and don'ts on the subject of handling of suspects/women can be exhibited
at training schools. An awareness of the early state of their career will guard the policemen
against perpetrating violence on fellow human beings in the discharge of their duties *1140
50 senior Indian Police Service officers were circulated a questionnaire to suggest
measures to eliminate the use of third degree methods from police investigations completely.
The following suggestions were offered by them
i) Law should be amended to provide enough time to the Investigating Officers to
interrogate the suspect/accused person.

ii) Investigating Officers should be trained in scientific method of investigation.

iii) Judiciary should cooperate and give adequate police remand for questioning the accused
person in police custody in order to conclude the investigation as per law.

iv) Work load on police should be reduced by increasing the strength of police force in
number.
v) Number of Investigating Officers should be increased to reduce the work load on them.

1139 Ibid- atl41.


1140 Sridevi Goel- Humanizing the Criminal Justice System- a Paper published in SVP NPA Journal Vol. 49 No.l
January-June 1997, at 15.
362
vi) Public should be educated to make them aware of their rights.

vii) Criminal justice system should be strengthened to ensure that the criminals are punished
adequately.

viii) Illegal detention by the police should be stopped.

ix) Service conditions, including salary and perques of police officers, should be improved.

x) Minimum qualification for the Investigating officers should be a degree in Law.

xi) Undue importance given to crime statistics should be done away with.

xii) Living conditions of policemen, especially of the lower subordinates, should be


improved.

xiii) Recruitment process of the policemen should be fair and impartial.

xiv) Use of scientific aids to investigation should be encouraged.

xv) Economic development of the society should be ensured so that public learn to respect
human dignity.

xvi) More training and sensitization of police officers on the subject of human rights is
required.

xvii) Improvement in supervision of police investigation and frequent surprise check of police
lock ups are required-

xviii) The directions issued by the Supreme Court in D.K.Basu case should be implemented in
letter and spirit.

xix) Number of arrests being made by police should be reduced. Arrest should be made only
where it is absolutely necessary.

(L) Maintenance of Law and Order/ Right of Private Defence.


In Indian Penal Code, in chapter IV, "right of private defence against person and
property" has been conferred on a common man. At times, the police also resort to compulsory
violence by making a lathi-charge or by opening fire to quell a riot. This violence is legally
justified under "maintenance of law and order" or under "right of private defence" etc. When a
culprit is caught by the public, he is invariably beaten by everybody in the crowd. Definitely, the
right of private defence is exceeded by the public and none including the press complains of this
torture. When it is done by a member of the police force in the course of investigation to extract
information in his lawful discharge of duty, his action is questioned. A criminal is not a normal
363
man and he is beyond any means of ethics. How could we expect him to co-operate with the
police and tell information against his own interest in a case wherein he is the accused liable to
be punished. In foreign countries, the methods used to unearth the hidden facts from a hardcore
criminal might be more scientific and sophisticated; but in our country the methods used are
crude in nature to suit our economic, democratic and illiterate social ethos. Indian Evidence Act,
Section 25 says that " No,, confession made to a police officer shall be proved as against a
person accused of any offence:. This clearly shows as to how a policeman is regarded in our
country. Until this suspicious concept is removed from the law book, the police may harp on
getting some evidence for the "hard nut to crack" criminals under Section 27 Indian Evidence
Act. In their unintentional attempt to gather evidence under Section 27 Indian Evidence Act, they
are forced to use violence to extract information in a case.
(M) Police Mentality: A Response:
There are so many issues raised in the working paper of the Law Commission of India
and the following are the comments of police officers collectively. Some of the important points
raised. This response indicates the mental frame work of the policemen of cutting edge level who
matter in the ultimate analysis.
Issue 1: Should the police continue to have unrestricted power to arrest any person at any
time and at any place without any order or permission from the Magistrate or any
other court?
Comment 1: The power of arrest as exists may continue.

Issue 2: Should the law be amended to confer right on the suspect who is detained for
interrogation to insist for the presence of his Counsel at the time of interrogation? If
the amendment is made, will it not delay and interfere with the investigation of
crimes?
Comment 2: The presence of Counsel at the time of interrogation of the accused will hamper
investigation of crimes.

Issue 3: Should the law provide that on the arrest of a person it should be mandatory for the
police officer or any public servant holding the custody of a person to get him
medically examined before commencing the interrogation?
Comment 3: Medical examination of an arrested person before commencing interrogation is
possible in some cases, but it is not possible in most of the cases. Anyhow, it cannot
be made mandatory.

Issue 4: Whether Section 114 of the Indian Evidence Act should be amended to provide for
raising of a presumption against the police officer of the public servant in case of
any injury caused to a person in custody or resulting into death? Should the
presumption be rebuttable?

364
Comment 4: "114B(1) In a prosecution ( of a police officer) for an offence constituted by an act
alleged to have caused bodily injury to a person, if there is evidence that the injury
was caused during the period when that person was in the custody of the police, the
court may presume that the injury was caused by the police officer having custody
of that person during that period."

(2) The court, in deciding whether or not it should draw a presumption under sub­
section^), shall have regard to all the relevant circumstances, including, in
particular (a) the period of custody, (b) any statement made by the victim as to how
the injuries were received, being a statement admissible in evidence, (c) the
evidence of any medical practitioner who might have examined the victim's
statement or attempted to record it.".

Issue 5: Should the law provide for an independent agency for holding enquiry into the
complaint of torture of a person in police custody or death, if so, what should be the
agency? Will it not serve the purpose if the enquiry is held by the Chief Judicial
Magistrate or Metropolitan Magistrate in case of torture and injury and by the
Session Judge of the District in case of death? Should they have the liberty to obtain
the assistance of the Criminal Investigation Department or any Police officer of
their choice?
Comment 5: Judiciary which is empowered to hold "trials" and "Commission of enquiries" in the
court room need not be dragged into enquiry into police excesses in the field.

Issue 6: Should a criminal case be registered against the delinquent Police officer or the
public servant, if a prima facie case of torture, injury, or death is found without any
further investigation and without obtaining sanction of the Government for the
prosecution of such delinquent public servants under section 197 Cr.P.C.?
Comment 6: Section 197 Cr.P.C. gives protection to Judges as well as police officials. Any
deviation from the restrictions imposed will demoralize the Judiciary and the police
force.

Issue 7: Should there be provision for the award of compensation by the Government on no
fault basis in the case of death or injury caused to a person? If so, what would be the
appropriate amount to be fixed. Should the court trying the aforesaid delinquent
officer have the power to award final compensation to the victim or the dependents
of the victim, notwithstanding their right to obtain damages in tot before civil court?
Comment 7: Award of compensation by the Government or any others on "no fault basis" in the
case of death or injury caused to a person in custody may result in "abuse" and may
amount to a mockery. The issue No.(l) is the answer.

Issue 8: Whether the law should provide for interim compensation in a case where as a
result of the enquiry, prima facie case of torture, injury or death on account of
injury caused in custody is made out?
Comment 8: Interim compensation also is not recommended. The issue No. 10 is the answer.

Issue 9: Should the law confer power on the Government to recover the amount of
compensation from the delinquent officer?

365
Comment 9: The delinquent officer will be judicially punished for any of his crimes proved in a
Court of Law. Recovering compensation from the delinquent officer will amount to
double punishment. The issue No. 10 is the answer.

Issue 10: Will the aforesaid steps not affect the functioning and morale of the police
adversely in investigating cases and further whether it will result into non­
investigation of crimes which will affect public order? What measures should be
taken to avoid these situations?
Comment 10:A big "yes" to the issue. *1141

(N) Reasons for poor police performance.


The general public impression is that the overall performance of the police is not up to
the mark. The survey attempted to find from the public as to what they considered to be the most
likely reasons for poor performance. *1142
Reasons Total
Political and other Interference 72.3%
Lack of Adequate Resources 48.7%
Lack of Public Support 48.6%
Recruitment of Wrong Type of People 45.5%
Inadequate Supervision 42.4%
Poor Service Conditions 38.8%
Poor Training 32.3%
Low Status in Community 27.4%
Poor Salary 28.4%

Police Get public Support:*1143

Always Sometimes Never


Total 10.7% 28.4% 60.9%
Reasons for Lack of Public Support:
Reasons Total
Involvement in police and court proceedings. 72.5%
Lack of confidence in police and courts 70.5%
Lack of fairness and impartiality on police part 69.6%
Fear of reprisal from criminals 56.9%
Discourteous treatment by Police 44.5%
Police corruption 32.4%

1141 I. Ravi Arumugam- Custodial Violence * Deaths: Problems & Prevention- a paper published in CBI Bulletin.
December 1994, CBI Publications, Delhi at 18-19.
1142 Quoted from Project to Improve the Organization and Management of Law Enforcement System in India- A
Summary of Objectives, studies and recommendations (April 2001)- Edited by Anil Kumar Sinha- BPR&D,
GOI,MHA, New Delhi.
1143 Ibid.
366
(O) Human Rights Issues: Popular Public Response.
The Bureau of Police Researh and Development conducted a study and published a
report. Some of the conclusions given in the report give the mind of the people. The response to
some of the questions is given below:- *1144

The police should be allowed to occasionally use third degree methods.


Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 6.5% 44.0% 9.5% 19.0% 21.0%

Arbitrary arrests and detentions are absolutely necessary to prevent and control crime.
Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 7.0% 25.5% 8.5% 25.0% 34.0%

Terrorists and hardened criminals should not be entitled to same fundamental rights as are
guaranteed to other citizens.

Strongly Agree Agree Undecided Disagree Strongly


Disagree
Total 21.5% 23.9% 9.5% 29.0% 17.0%

Liquidation of hardcore criminals in fake encounters is necessary.


Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 6.0% 28.5% 17.5% 28.0% 20.0%

Courts should not release hardcore criminals on bail.


Strongly Agree Agree Undecided ) Disagree Strongly
Disagree
Total 55.0% 32.5% 1.0% 8.0% 3.5%
Bail and not jail should be the rule and not the exception.
Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 8.0% 51.0% 11.5% 17.5% 12.0%

Convicted persons in jails should not be entitled to fundamental rights guaranteed to other
citizens.
Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 8.5% 31.0% 7.5% 33.5% 19.5%

1144 Ibid.
367
Persons in police custody should not have any right to communicate with their relations,
friends and lawyers.

police.

Strongly Agree Agree Undecided Disagree Strongly


Disagree
Total 25.5% 27.0% 7.0% 30.0% 10.5%
(P) Amnesty International on Human Rights in India.
As part of Amnesty International's global campaign against torture, the organization is
publishing a set of recommendations for the prevention of torture in India. Amnesty
International observed that corruption and extortion, lack of investigative expertise, a confession-
oriented approach to interrogation, demands for instant punishment in the context of a crippled
criminal justice system, the belief that punitive action will not be taken against tortures, and
discriminatory attitudes are all reasons why torture and ill-treatment by law enforcement officials
continues throughout the country. Discriminatory attitudes amongst law enforcement officials
continue to mean that the most socially and economically vulnerable members of society are
particularly vulnerable to torture and ill-treatment. These include women who are not only
targeted directly but as a means of punishing their male relatives, dalits' and adivasis' who often
bear the brunt of social discrimination in the form of physical violence and children who are easy
prey. *1145
Amnesty International in its report poses following problems and challenges before the
Indian Government:
1. Condemn and never tolerate torture.
2. Address discrimination.
3. Prohibit torture and ill-treatment in law and amend or repeal legislation which facilitates it.
4. Address institutional problems which facilitate torture.

368
5. Provide adequate safeguards for detainees during arrest and detention in law and practice.
6. Provide adequate safeguards for interrogation.
7. Provide effective independent monitoring mechanisms to ensure implementation of
safeguards.

8. Ensure investigations into torture.


9. Ensure adequate procedures for medical examination of torture victims.
10. Bring to justice those responsible for torture.
11. Provide reparation to victims of torture.
12. Strengthen and support the National Human Rights Commission and other statutory bodies.
13. Provide effective human rights training to police and security forces.
14. Increase cooperation with national and international bodies in the fight to end torture. *1146
Crime and violence and the links between criminals, politicians and important people in
society, has become almost an unholy alliance. At every social and political level there is crying
need to speak out against crimes and violence of all kinds, but even such rhetoric is absent in
India today. *1147 Amnesty International desired to seek following commitment from state
governments during the course of its campaign:
1. Officials at all levels of the administration in India should condemn all forms of torture and
ill-treatment whenever they occur. They must make clear to all law enforcement officials,
public officials, members of the judiciary and members of civil society that torture will never
be tolerated. Talk of degrees of torture or torture of certain groups of "hardened criminals" or
"terrorists" as being "acceptable" should be condemned promptly and publicly.

2. Public officials should lead by example. Any public officials found responsible for
committing acts of torture or ill-treatment whether in their private or public capacity should
be publicly condemned and prompt action taken against him.

3. The authorities in all states should institute public education programmes to educate people
about the unlawfulness of torture and ill-treatment in all their forms.

4. The Government of India should make a public commitment to end impunity for tortures as
an important signal that torture will not be tolerated.
5. Government officials should make it clear that India is committed to upholding its existing
obligations under international standards to prohibit torture. Pending ratification of the
Convention against Torture it should be clear that as a signatory to the Convention the State

1143 Words into action: Recommendations for the prevention of torture- Amnesty International, Embargoed for 31
January 2001. at 4.
1146 IdatS.
1147 Address to the Nation by the President of India, Shri K.R. Narayanana on the eve of Independence Day,
Monday, August 14, 2000.
369
is bound not to do anything which is inconsistent with the object and purpose of the
treaty.*1148
Amnesty International believes that a range of provisions which exist in the ordinary
criminal law should be reviewed with the aim of preventing rather than facilitating torture and
ill-treatment.
1. The right not to be tortured should be expliclity enshrined within the fundamental rights
chapter of the Indian Constitution. In addition, torture should be prohibited as a distinct penal
offence in Indian law. Its definition should incorporate the definition in Article 1(1) of the
United Nations Convention against Torture. All forms of cruel, inhuman and degrading
treatment or punishment should be similarly prohibited.

2. The law should lay down an active duty on the part of public officials to protect human rights
and prevent torture or ill-treatment rather than a passive one of merely abstaining from it and
should include offences of ordering, preparation, participation, encouragement and
complicity in torture. Article 5 of the United Nations Code of Conduct of Law Enforcement
Officials, which states that it is a duty to disobey any order from a superior to inflict torture
or ill-treatment, should be incorporated in relevant laws, especially the Indian Police Act.
Such a provision should be included in training of and instructions to anyone who may be
involved in the custody or treatment of detainees.

3. The Government of India should review Article 22 of the Constitution of India to bring it in
line with international standards and ensure safeguards for all detainees.

4. The Government of India should take all steps to abolish or amend laws or provisions of laws
which facilitate torture or ill-treatment including those laws which provide for preventive
detention and laws governing arrest and detention procedure.

5. Evidence elicited as a result of torture should be excluded in all trials and specially
prohibited in legislation including special legislation.

6. Protection should be provided for those refusing to carry out orders to inflict torture in
addition to the prosecution of those who gave such orders.

7. Any future challenges in the Supreme Court to special legislation which it is argued
facilitates human rights violations should not only take into account the constitutionality of
particular provisions but also their compatibility with the full body of international human
rights standards and the practical result of implementation of particular provisions.

8. The Government of India should take into account the views of the National Human Rights
Commission and others who have expressed concern that the enactment of the Prevention of
Terrorism Bill 2000 will lead to an increase in torture and ill-treatment of detainees. This
should be considered with particular reference to India's ratification of the International
Covenant on Civil and Politices Rights and its signing of Convention Against Torture (CAT)
which obliges it to refrain from taking any action which is inconsistent with the object and
purpose of the treaty.

1148 Supra note 1145 at 8


370
9. The Government should review all laws which prevent or seriously inhibit prosecution of
those responsible for torture and thereby facilitate the continuing use of torture and should
abolish any provisions which do so including Section 6 of the Armed Forces Special Powers
Act, Section 22 of the Jammu and Kashmir Public Safety Act and Sections 45 and 197 of the
Code of Criminal Procedure.*1149

Amnesty International acknowledges that law enforcement officials have to operate


within the context of the whole criminal justice system, civil society and the prevailing political
system and that the responsibility for the continuing practice of torture and ill-treatment does not
solely lie with them. Only a holistic approach to the interrelated components of the criminal
justice system will be able to address the underlying pattern of human rights violations within
that system and the failure system and the failure to bring perpetrators to justice.*1130
Police Reform:
Amnesty International *1151 believes that:-
1. Police reforms should specifically address the problem of human rights violations in
custodial situations and structural problems which have been identified as facilitating torture
and ill-treatment and other human rights violations. They should also incorporate
international human rights standards, particularly those relating to arrest and detention
procedures and safeguards against discrimination. They should incorporate a code of ethics
for police officers.

2. Police reforms should ensure that police are able to operate independently in the interests of
the whole community and are not, as they are now, open to political and other influences
which commonly lead to abuses of the law including torture and ill-treatment.

3. The problem of overload within the criminal justice system-must be urgently addressed
recognizing that it contributes to public tolerance of violence as a means of justice and the
use of torture and ill-treatment by law enforcement officials as a means of "instant
punishment", and prevents victims of torture or ill-treatment from obtaining prompt redress.

4. Urgent attention must be given to ensuring that evidence in criminal cases is collected
through proper investigation by police and presented to the courts after careful consideration
by members of the prosecution service. It should be made clear to all within the criminal
justice system that the use of torture and ill-treatment as a means of coercing confessions
from the accused or testimony from witnesses is unlawful and that all, including police,
lawyers (including those provided through legal aid), prosecutors and judicial officers, play a
crucial role in ensuring that such actions do not form part of processes for bringing people to
trial.

1149
Id at 18.
1150
Id at 19.
1151
Id at 19.
371
5. Discussion of alternative forms of justice must ensure that there is full compliance with
international standards for fair trial and ensure the human rights of all parties. Cases in which
public officials are accused of human rights violations including torture and ill-treatment
should be pursued within the existing court system and not in courts where the aim is to
reach compromise and which often result simply in payment of a sum of money to the
victim.

6. The link between corrupt practices within the political and administrative system and the use
of threats or force often amounting to torture or ill-treatment must be acknowledged and
addressed. In particular, corrupt political influence over police and the resulting resort by
police to threats or force against individuals must be addressed by taking steps to remove the
police from such influence and initiating criminal proceedings against public officials found
to have abused their positions of authority for corrupt or malicious purposes.

Amendment in Law.
Under Section 46 of the Cr.P.C police can use unspecified and unlimited force to arrest
individuals. Sub-section 2 permits a police officer to use "all means necessary to effect the
arrest" if a person attempts to resist or evade arrest. Sub-section 3 allows police to cause the
death of a person only if a person is accused of an offence punishable with death or with
imprisonment for life. Amnesty International observes that the Cr.P.C. Amendment Bill 1994
which is once more pending consideration in Parliament seeks to broaden the category of
offenders whose arrest could lead to death (Section 46(3) Cr.P.C) to include those who are
"proclaimed offenders" under an amended section 82 which would include those accused of
murder, robbery, kidnapping, dacoity, preparing to commit dacoity and house trespass. While it
is widely acknowledged that section 46(3) has been used by police in some states, mostly notably
Andhra Pradesh, to justify extrajudicial executions of suspected members of armed groups,
Amnesty International expresses concern that its broad provisions allow for the use of torture or
ill-treatment against individuals. It is common for individuals to be beaten with lathis during
arrest and many women have had their clothes tom or stripped from them.*1152
The Supreme Court clarified that section 54 of the CrPC required that "the Magistrate
before whom an arrested person is produced shall enquire from the arrested persons whether he
has any complaint of torture or maltreatment in the police custody and inform him that he has
right under section 54 of the CrPC to be medically examined. "*1153Detainees are regularly
threatened by police not to make complaints of torture and brought before magistrates by those
same police who have been responsible for their interrogation and torture. Therefore if not

1152 Id at 30.
1153 Sheela Barse Vs State of Maharashtra (AIR 1983 SC 379).
372
specifically asked by a magistrate and placed in a safe environment where they do not fear
reprisal, detainees will not make such a complaint. In many cases, complaints of torture are
subsequently rejected by investigating authorities on the basis that the detainee did not make a
complaint to a magistrate when brought before them. Amnesty International believes that given
the current impediments to making a complaint of torture to a magistrate as stated above, this
should never be used as a justification for refuting an allegation of torture.
Role of Judicial Officers.
Judicial officers play a crucial role in ensuring that legal procedures have been followed
in arrest and detention and that abuses have not occurred. They should therefore be encouraged
to play an active role in detecting and remedying torture and action should be taken against
judicial officers found to have ignored evidence of torture. At a meeting held in Chennai in
December 1998 attended by members of the judiciary, police and non-governmental
organizations, an Amnesty International delegate was shocked to hear a district judge who had
been appointed to a human rights court in the state commenting that there was a problem in
deciding what level of violence could be used against detainees since a certain degree of torture
was necessary to obtain the truth.*1154
The argument that the police should resort to the third degree methods for doing quick
justice is not only untenable but also dangerous. As Lord Shankey observed, " It is not
admissible to do a great right but doing a little wrong." But by indulging in torture and murder,
the police are not doing a "little wrong" either. As Wickershan Commissioner (USA) pointed
out, "Third degree brutalizes the police, hardens the prisoner against society, and lowers the
esteem in which the administration of justice is held by the public.*1133
Medical Facility During Custody.
There is no arrangement for the medical treatment of detainees in police custody. Doctors
never visit police stations. Section 54 of the CrPC provides for the medical examination of
detainees on request of the accused in police custody. The Supreme Court has ruled that
detainees should be informed of this right on arrest, however, this is rarely done in practice. The
Criminal Procedure Code Amendment Bill 1994 suggested that a copy of the report of the
medical examination under this provision should be given on request to the persons or a person
nominated by him or her. The Supreme Court went further in its order in D.K. Basu vs. State of

1154 Supra note 1145 at 31.


1155 National Commission on Law observance and enforcement, report of lawlessness in Law Enforcement (1931)
P-5
373
West Bengal*1156 when it said that the report of the medical examination should be sent to the
concerned magistrate.*1157
Approach of Investigating Officers.
A confession-oriented approach to investigations coupled with public pressure on police
to fight crime is a real problem says Amnesty International.*1158 Although section 25 of the
Indian Evidence Act makes it clear that confessions made to police officers cannot be used in
evidence against accused, section 27 of the Act (confessions leading to finding of corroborating
evidence) means that confessions are still of use to police. If a crime is 'solved' on the basis of
illegal extraction of evidence, that evidence is still admissible. Section 162 of the CrPC prohibits
the use of a statement of an accused recorded by a police officer and prohibits the police officer
from obtaining the signature of a person on the statements made by the accused. Despite this, it
is common practice for police to force detainees to sign statements or blank sheets of paper.
Section 164 of the CrPC states that magistrates are required to ensure that a confession is made
voluntarily and Sections 330 and 331 of the IPC provides for punishment for "voluntarily
causing hurt" or "grievous hurt" to "extort confession or to compel restoration of property" but
these provisions are rarely used against police officers. Amnesty International understands from
lawyers that Public Prosecutors rarely question the version of events provided by police or the
evidence put forward by them making it easy at trial for defence lawyers to refute charges. This
is cited as a reason why there are so many acquittals on the basis of insufficient evidence. In
India there are few regulations about the conduct of police interrogation- a fact that has recently
been acknowledged in an official study of police practice:
"Formal training in the skills of interrogation is hardly
imparted to policemen, apart from a few odd lectures
during training. As a result, a policeman learns the skills on
the job, largely by improvisation and by watching his
senior peers successfully extracting confessions by the
rough and ready method of torture. Since they have no real
experience of scientific and painstaking interrogation and
since time is anyhow at a premium with the police, they
tend to gloss over the merits of sustained interrogation in
favour of the quick results that torture brings"

1156 D.K. Basu v. State of West Bengal- 1977 Cr.L.J. 743 (SC) Paras 22, 36-44.
1157 Supra note 1145 at 32.

374
Right to Legal Counsel.
The right of detainees to legal counsel has been granted under Article 21 of the
Constitution and the Supreme Court in Nandini Sathpathy Vs. P.L. Dani (AIR 1978 SC 1025)
has interpreted that right to the presence of a lawyer during interrogation. At the VIII
International Symposium on Torture held in New Delhi in September, 1999, the Attorney
General of India gave a public commitment that the Nandini Sathpathy judgement would be
implemented as a means of ending torture. During a visit to Bombay in January 1994, virtually
all those interviewed by Amnesty International suggested that lawyers and relatives were
routinely denied access to persons held in police custody and lawyers told the Amnesty
International delegation that police practice in Bombay was not to allow lawyers to be present
during interrogation. *1159
Visit to Places of Detention.
The United Nations Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment provide that "places of detention shall be visited regularly by
qualified and experienced persons, appointed by, and responsible to a competent authority
distinct from the authority in charge of the administration of the place of detention or
imprisonment." That provision of this safeguard would make a significant contribution to the
prevention of torture in India given that laws are often honoured in their breach. Various
recommendations have been made in this regard in recent years in relation to visits to police
stations as well as prisons. The Supreme Court in Sanjay Suri's case*1160 stated that a "Visitors
Board (to monitor jails) should consist of a cross-section of society, people with good
background, social activists, people connected with the news media, lady social workers, jurists,
retired public officers from the judiciary as also the executive."
Investigation into Complaints of Torture.
The right of persons alleging torture to full investigation of their allegations is set out in
numerous international standards. Article 2(3) of the ICCPR sets out the right to an effective
remedy. Article 12 of the Convention against Torture requires that "Each State Party shall ensure
that its competent authorities proceed to a prompt and impartial investigation, wherever there is
reasonable ground to believe that an act of torture has been committed in any territory under its

1158 Police Reforms Committee presided over by former Home Secretary Mr. K. Padmanabhiah appointed by the
government in January 2000 which presented its report and recommendations to the government in Oct. 2000.
1159 Supra note 1145 at 37.
1160 Sanjay Suri Vs. Delhi Administration (1988 Suppl. SCC 160).
375
jurisdiction." In 1999 a Manual on the Effective Investigation and Documentation of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment (known as the Istanbul Protocol)
was presented to the High Commissioner for Human Rights. Mary Robinson by an international
expert group which took three years drafting the document. The Manual contains "Principles on
the Effective investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment" (Istanbul Principles). These Principles have been endorsed
by the UN Special Rapporteur on torture. The first principle sets out the purpose of effective
investigation and documentation of torture. These purposes are:-
i. Clarification of the facts and establishment and acknowledgement of individual and State
responsibility for victims and their families,

ii. Identification of measures needed to prevent recurrence;

iii. Facilitating prosecution and/or appropriate disciplinary sanction for those indicated by
the investigation as being responsible.

Significantly, mandatory magisterial inquiries under section 176 CrPC are available only
for deaths in police custody. No such requirement exists for deaths in prison custody, or in the
custody of armed or paramilitary forces. In addition, there is no requirement in law for a
magisterial or any other sort of inquiry into allegations of torture not resulting in death. Victims
of abuse at the hands of police or other officials are often unaware of their right to complain and
have that complaint investigated. The UN Human Rights Committee in its General Comment
(2)) on Article 7 of the ICCPR has stated that:
" The right to lodge complaints against maltreatment
prohibited by Article 7 must be recognized in the domestic
law. Complaints must be investigated promptly and
impartially by competent authorities so as to make the
remedy effective. The reports of States parties should
provide specific information on the remedies available to
victims of maltreatment and the procedure that
complainants must follow, and statistics on the number of
complaints and how they have been dealt with."

Investigations into incidents of torture in areas of armed conflict in India have been
extremely rare. While in some cases of death in custody, following investigation by the NHRC,
compensation has been awarded, many allegations of torture go uninvestigated. In Jammu and
Kashmir Amnesty International has expressed concern for many years about the difficulty for
individuals to register complaints of human rights violations with police. The problems of
376
seeking redress for human rights violations in India are compounded in areas of armed conflict
by the protections from investigation and prosecution which members of the armed and
paramilitary forces, enjoy both under special legislation such as the Armed Forces (Special
Powers) Act, 1958, and statutory limitations of the NHRC which prohibit it from independently
investigating allegations of human rights violations by members of the armed or paramilitary
forces. In Manipur, attempts by the State government to institute Commissions of Inquiry into
allegations of grave human rights violations including torture have been frustrated by the actions
of the central government in arguing that state governments cannot order such inquiries into the
activities of the armed forces who are under the control of the central government.
In several cases in Manipur complaints- known as First Information Reports(FIRs) have
been filed with police and forwarded to judicial magistrates for investigation to determine
whether a trial can commence. Advocates representing the security forces concerned have then
filed review petitions challenging the right of magistrates to investigate offences alleged to have
been perpetrated by members of the security forces, on the grounds that they do not have the
jurisdiction to hear such cases. This has had the effect of stalling the legal process. The review
petitions invoke section 197 of the Cr.P.C., under which no court can take cognizance of an
offence alleged to have been committed by a public servant or members of the armed forces
while acting or purporting to act in the discharge of his official duty except with the previous
sanction of the central or state government. *1161
Inquest.

Although a magisterial inquiry is a legal requirement whenever a person dies in the


custody of police, the security forces or prison authorities, such inquiries are often not held.
Amnesty International found that inquiries by a magistrate were held in only 42 of the 415 cases
of deaths in custody it has documented since 1985.*1162
Investigations into deaths in custody are mandatory in India under section 176 of the
Cr.P.C. Such inquiries are not always held, and are more likely to take place when a death in
custody leads to a public outcry. They can be conducted either by an executive magistrate
(appointed by the state government and remaining subject to executive control) or a judicial
magistrate (judicial official, independent of the executive, appointed by the High Court of the

1161 Id at 4344.
1162 Id at 4344.
377
state, and who remains under judicial supervision) but the majority are carried out by executive
magistrate.
Those magisterial inquiries which are held are often inconclusive, which is inevitable
when, as happens in many cases, magistrates depend on the police to investigate allegations of
misconduct by their own forces. Inquiries into deaths in custody are often carried out by the
Crime Branch of a police force which is not independent from the rest of the force, particularly
as there are frequent transfers of officials between the two. The police are often reluctant to bring
forward evidence which might implicate their colleagues and senior officials have been known to
participate in routine cover-ups by police deaths resulting from torture. In the current context, it
is also very difficult to establish complicity in torture, even if there are witnesses. Citizens,
fearing reprisals, often do not come forward and tender evidence against police. There is no
witness protection programme existing in India. In numerous cases where witnesses have been
intimidated and in some cases themselves subjected to torture by law enforcement agents as a
means of covering up crimes.*1163
. Presumption of Guilt.
The Law Commission of India in its 113th Report advocated that Section 114(B) be
inserted in the Indian Evidence Act to introduce a rebuttable presumption that injuries sustained
by a person in police custody may be presumed to have been caused by a police officer. Despite
several Supreme Court orders and NHRC pursuing the issue, the recommendation has not been
granted statutory status.
Medical Evidence of Torture.
The role of medical evidence is crucial to the proper investigation of torture or ill-
treatment. While increasingly torture is carried out without leaving signs or with signs resolving
within days leaving no permanent traces, experienced doctors can nevertheless evaluate
testimony, accounts of post-trauma symptoms and physical and mental state and draw
conclusions from these. On the basis of a visit to Punjab in 1999, Physicians for Human Rights
(Denmark) made the following observations:-
"While there are apparently no reports of direct medical
participation in torture, most health professionals,
especially those working in public or government hospitals,
normally refuse to conduct medical examinations or
provide treatment for torture survivors. In fact, even the
few cases of orders issued from the High Court to conduct

1163 Ibid, at 47.


378
medical examinations of torture survivors have often been
refused. The examinations conducted tend to be superficial
and careless, resulting in mis- or under-reporting. This
finding was confirmed both by a member of the Punjab
Human Rights Commission and officials of the Forensic
Medical Department at the Government Hospital Medical
College. According to many of those interviewed
(including above officials) physicians often willingly
prepare 'tailor made forensic reports' for the police and
refuse treatment for torture survivors".*1164

In its 1995-96 Annual Report the NHRC commented that "The local doctor succumbs to police
pressure which leads to distortion of the facts."*1165
The other important factor is the absence of expert medical professionals who can
identify injuries inflicted through torture. This is crucial for instances of allegations of rape in
custody. Non-governmental organizations have in recent years designed simple and practical
methodologies for examining alleged victims of torture. For example CEHAT (Research Centre
of Anusandhan Trust), a Mumbai-based health organization from Bombay in the mid-1990s
produced a "rape examination kit", and more recently the Commonwealth Human Rights
Initiative has developed an autopsy kit or "Last-Aid Kit" designed to demonstrate that very little
is needed to improve post- mortem techniques and that torture need not go undetected.*1166
Impunity.
Impunity sends the message to torturers that they will get away with it. Bringing the
culprits to justice not only deters them from repeating their crimes, it also makes clear to others
that torture and ill-treatment v/ill not be tolerated. However, when the institutions responsible for
upholding the law routinely flout it when dealing with their own members, they undermine the
whole criminal justice system.
Procedural Safeguards.
Section 45 and 197 of the Cr.P.C. provide protection from prosecution to members of the
armed forces and public servants for anything done or purported to be done by them in the
discharge of their official duties, except after obtaining the consent of the Government. In the
case of section 45, this immunity can be extended to any forces charged with the maintenance of
public order if a state government so desires. The CrPC Amendment Bill 1994 which has been

1164 Ibid,
1165 Ibid.
1166 Id at 48.

379
reintroduced to Parliament to widen the scope of immunity offered by section 45 of the CrPC. It
also proposes amending section 197 to ensure that all "public servants" charged with the
maintenance of public order rather than just "members of the Forces" should be protected by
ensuring that no court should take cognizance of any offence committed while acting or
purporting to act in the discharge of official duty, except with the previous sanction of the
Central Government. The immunity provided in sections of the CrPC is reflected in state
legislation governing police actions, often in the guise of limitations of the time within which
complaints may be brought against police. For example, Section 53 of the Tamil Nadu Police
Act 1869 reads: "All actions and prosecutions against any persons which may be lawfully
brought for anything done or intended to be done, under the provisions of this Act, or under the
provisions of any other law for the time being in force conferring powers on the police shall be
commenced within three months after the act complained of shall have been committed and not
otherwise." The requirement for sanction in several laws has been employed in many cases in
which allegations of torture in custody have been brought despite strong protests which argue
that torture can never be part of'official duty'. *1167
The Supreme Court in SP Vaighianathan Vs. K. Shanmuganathan*1168 found that acts
such as beating and illegal confinement by police could not be said to have been actions taken
under provisions of the Tamil Nadu Police Act and therefore were not subject to this limitation.
This position was reiterated more recently in September 2000 by the Supreme Court when it
dismissed an appeal from two policemen who argued immunity under section 64(3) of the Kerala
Police Act which sets a period of six months from tlie date of commission of an offence.
Criminal proceedings had been initiated against them for the illegal detention and torture of a
shopkeeper in 1995.*1169
In February 1996 the Uttar Pradesh High Court declared that the Central Bureau of
Investigation (CBI), which had found evidence of illegal detention and torture, including rape, by
members of the Provincial Armed Constabulary against activists travelling to a rally in Delhi, did
not require the state government's sanction for prosecution of the police officers "who had gone
berserk ostensibly to satisfy their political bosses". However, in a judgement on several petitions
filed in appeal by the accused as well as the Union and Uttar Pradesh state governments, the

1167 Id at 50.
1168 SP Vaighianathan Vs. K. Shanmuganathan (1994 4 SCC 569)
1169 Supra note 1145 at 50.
380
Supreme Court in May 1999 termed the High Court decision on the waiving of sanction and the
granting of compensation "unsustainable" and overturned it.*1170 The case is ongoing.
Further immunity from prosecution is provided for in provisions requiring government
sanction for prosecution under special legislation in force in areas of armed conflict including the
Armed Forces Special Powers Act as well as the proposed Prevention of Terrorism Bill.
Amnesty International believes that the requirement of the consent of the central or state
government for the prosecution of officials prevents full redress for violations, and reinforces the
climate of impunity for the security forces.
Amnesty International on Amnesty to Cops in Punjab.
The comments of the Padmanabhaiah Committee which indicate a belief that police
operating in areas of armed conflict should be given legal protection against prosecution for
human rights violations needs scrutiny. In a reference to the situation in Punjab, the Committee
indicated its support for legal provisions which ensure the requirement for sanction for
prosecution but also urged'that governments should make funding arrangements for defending
cases against police and that a time limit should be prescribed by law within which cases against
police actions can be filed.*1171 In the 1980s and early 1990s hundreds of people were allegedly
tortured, extra-judicially executed or "disappeared" in Punjab during a conflict between armed
opposition groups fighting for separation from India and the Indian security forces. Both sides
indulged in grave human rights abuses. Many of those who "disappeared" are believed to have
been extra-judicially executed by police after torture. Punjab police officials have admitted using
"extra-legal" methods in fighting members of armed opposition groups and in several cases
judicial inquiries have found evidence of torture and other human rights violations. A senior
Punjab police officer was quoted as saying in 1994 "Abnormal situations needed an abnormal
approach to handle it. So, why put us in the dock. Moreover, whatever the police did, they had
the sanction of the state. We operated within the framework of the state's policy for which we are
individually being asked to pay." *1172

1170 A.K. Singh and others vs. Uttarakhand Jan Morcha and others (AIR 1999, SC 2193).
1171 Amnesty International notes that almost concurrently with the release of the report in which these comments
were made, the Supreme Court of India ruled that there should be no time bar for prosecution in cases of torture.
1172 Times of India, a daily News Paper, New Delhi, 14 November, 1994.
381
Biased Trial.
There have been persistent calls by Punjab police, with the active support of state and
central government officials for amnesties for police officers responsible for human rights
violations including torture despite the fact that this would be a violation of international law.
Trials of military personnel by military courts for ordinary crimes and human rights
violations have often not been impartial and have resulted in impunity for the offender. Court
martial proceedings are not conducted in public, nor are their judgements always made public.
The fact that court martial proceedings are held within army camps increased the pressure on and
fear felt by victims and witnesses, particularly in cases of rape and other forms of sexual abuse.
The UN Human Rights Committee has recommended that such offences be tried in ordinary
courts. The UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions
expressed concern about "trials of members of the security forces before military courts where, it
is alleged, they evade punishment because of an ill-conceived esprit de corps, which generally
results in impunity.*1173
Training to Law Enforcement Officials.
Amnesty International observes that concern that inadequate police training contributes to
custodial violence is also long-standing, but again recommended improvements have not been
implemented. Officials have similarly complained that a total lack of modem investigative
techniques contributes to police excesses. The Central Government bears a large measure of
responsibility for the misbehaviour of the police because of its long-standing failure to ensure
that adequate resources are allocated to their training and operation.
Article 10 of the Convention against Torture requires States Parties to "ensure that
education and information regarding the prohibition of torture are fully included in the training
of law enforcement personnel, civil or military, medical personnel, public officials and other
persons who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment." The UN Human Rights Committee
in its General Comment (20) on Article 7 of the ICCPR indicated that "Enforcement personnel,
medical personnel, police officers and any other persons involved in the custody or treatment of
any individual subjected to any form of arrest, detention or imprisonment must receive
appropriate instruction and training. States parties should inform the Committee of the

1173 Report of the SR, UN Doc. A/51/457, at para 125, 7 October 1996.
382
instruction and training given and the way in which the prohibition of article 7 forms an integral
part of the operational rules and ethical standards to be followed by such persons." *1174
Training programmes for law enforcement officials and others should include practical
methods to prevent torture and not just theoretical teaching of legal provisions and human rights
standards. Human rights education or ethics training should be integrated into training focussed
upon increasing the professionalism of the police. Training should acknowledge the context in
which violence has become accepted as a way of "solving" problems and that this situation
increases the use of torture.
Training should include the issue of sensitivity towards groups already discriminated
against. In selecting and training of law enforcement personnel, the qualification of respect and
sensitivity to human rights protection should be a prerequisite, kept under review and counted
towards assessment of their performance and future prospects. Human rights training including
gender sensitive training should be provided to police, the security forces, judiciary and medical
professionals, in addition to programmes already undertaken. The training should be provided to
all ranks from the highest to the lowest and should be given at periodic intervals, not just at the
start of the job.
The absolute prohibition against torture and ill-treatment should be reflected in the
training and all orders given to officials involved in arrest and custody. These officials should be
instructed that they have the right and duty to refuse to obey any order to participate in torture.
Training manuals should incorporate the following international standards:-
1. UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
2. UN Code of Conduct for Law Enforcement Officials,
3. UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions.
4. UN Body of Principles for the Protection of All Persons under Any form of Detention or
Imprisonment.
5. UN Convention against Torture, and Other Cruel Inhuman or Degrading Treatment or
Punishment.
6. UN Declaration on the Protection of All Persons from Enforced Disappearance. *117:1
Victim Compensation.
Indian government has persistently resisted all attempts to establish the right to monetary
compensation for wrongful actions by their agents and officers. They have argued that the state is
not liable for the acts of its officers when discharging "Sovereign Functions." The government

1174 Supra note 1145 at 61.


1175 Id at 62.

383
has argued that victims of police excesses have the opportunity to bring a civil suit for damages
or to initiate a criminal complaint. However, civil claims involve such lengthy and costly
procedures that very few use them and complaints against the police are rarely successful. *1176
Convention Against Torture.
India has ratified several international human rights treaties which incorporate prohibition
against torture including the ICCPR, the UN Convention on the Elimination of All Forms of
Discrimination against Women, the International Convention on the Elimination of All Forms of
Racial Discrimination and the Convention on the Rights of the Child. India became a signatory
to the Convention against Torture in October 1997, however, positive steps have not yet been
taken towards ratification of the Convention.*1177
Amnesty International is concerned to note indications that India intends to make a
reservation to the Convention on ratification under Article 20 and not to make declarations under
Articles 21 and 22. Amnesty International believes that this will have the effect of limiting the
effectiveness of the Convention. The Government of India should recognize the crucial role that
many human rights organizations play in detecting and publicizing incidents and patterns of
torture, pursuing justice for victims and their relatives and identifying problems in the system
which facilitate torture or prevent justice. It should effectively respond to the observations and
recommendations made by various organizations in India and include them in discussions on
how to prevent torture. Indian legislation should be promptly brought in line with the UN
Convention against Torture in order to prepare for ratification. Ratification of the Convention
against Torture should preclude reservations under Article 20 and include declarations under
Articles 21 and 22 which strengthen the role of the Committee against Torture in examining
information about torture including the Committee's ability to consider individual complaints of
torture.
The Amnesty International is of the opinion that the UN Special Rapporteur on Torture
should be invited to India and granted full access to all areas of the country to investigate
patterns of torture and ill-treatment. The Government of India should ratify the Optional Protocol
to the UN Convention on the Elimination of All Forms of Discrimination against Women at the
earliest opportunity to enable individuals to bring complaints to the Committee on the

1176 Amnesty International Report (1992), "India: Torture, Rapes and Deaths in Custody".
1177 Supra note 1145 at 63.

384
Elimination of All Forms of Discrimination against Women about violations of their rights under
the Women's Convention once they have exhausted national remedies.
The Amnesty International feels that the Government of India should play a role in
pressing for speedy adoption by the UN of the strongest possible Optional Protocol to the UN
Convention against Torture, providing for a global system of inspection visits to places of
detention as a safeguard against torture. The Government of India should make the worldwide
eradication of torture a matter of foreign policy. It should instruct its missions in other countries
to monitor the incidence of torture, to intercede with the authorities in individual cases and to
press for the necessary changes in legislation and practice.
The Amnesty International desires that the Government of India should ensure that no
one is forcibly returned to another country where he or she risks being tortured. The Government
of India should ensure that transfers of equipment and training for military, security or police use
do not facilitate torture. The Government of India should ratify the Rome Statute of the
International Criminal Court and enact the necessary national legislation to implement it
effectively. The Government of India should encourage the holding of expert meetings of human
rights activists, lawyers, medical professionals and others including international experts, on
torture and other human rights issues. *1178

(Q) Legitimization of Official Coercion.


Why the police must act in a coercive fashion. First, it is given in the nature of the
services they supply. More than any other agency, as the police are so acutely aware, they are
available and required to deal with citizen claims for assistance. The police were designed to
respond to citizen demands and requirements for service as much because this represented
prevention or deterrence of the sources of crime as because the police were intended to act
symbolically as one citizen would to another in time of need. The symbolic centrality of police
action as standing for the collective concern of people, one for another, cannot and should not be
underestimated. Law has grown up as a means of formalizing the conditions under which the
police must act and cannot act but does not provide the basis on which they do or should act. The
almost random accretion of skills, tools, technology, and intelligence (information and
communication) systems associated with urban policing must be seen in the context of the
police’s virtual inability to exclude human difficulties from their stated purview. The law should
be seen as one important source of the coercive right, but one only.

1178 Supra note 1145 at 63-64.


385
Policing can be seen as (1) being a representation of coercive potential and its enactment,
the application of force to everyday affairs; (2) being backed by law and convention institutional
structure in the community; and (3) reflecting the interests of those who control and define
situations requiring the application of authority.. In modem societies, these interests refer not
only to the ostensive legal-political structure of a community but to the patterns of influence
upon decision making that are bound in segmented class societies. There is little question that
public policy is everywhere shaped by economic elites and disproportionately reflects their
political and social interest. The police, an instrumentality of public policy, are no exception
(Runchelman,1974).*1179 Policing cannot be other than a reflection of those interests that define
the nature of the legitimacy on which they draw. This is not to say that the police cannot exceed
this authority in a variety of ways, but the direction of the excess is patterned by the interest of
the community reflected in the law and defined by political elites. *1180
(R) Weak Magistracy.
On occasions, the magistracy which is set up as a bulwark against the onslaught of
arbitrary or unlawful execution of law and expected to function with independence and judicial
restraint, was found seriously wanting, and willing to succum to the whims of the centers of
power. Even the cream of the talent of the country in the administrative field often collapsed at
the slightest pressure.*1181
(S) Politicking by Police.
Employing the police to the advantage of any political party is a sure source of subverting
the rule of law. The Government must seriously consider the feasibility and the desirability of
insulating the Police from the politics of the country and employing it scrupulously on duties for
which alone it is by law intended. The policemen must also be made to realize that politicking by
them is outside the sphere of their domain.*1182
Those in high places are more than the administrators of Government bureau. They are
the custodians of a nation’s ideals, of the beliefs it cherishes, of its permanent hopes, of the faith
which makes the nation out of a mere aggregation of individuals. They are unfaithful to their

1179 Runchelman, L., Police Politics, Cambridge, Mass, Ballinger, 1974.


1180 Clark, J.P. & R. Sykes, Some Determinants of Police Organization and Practice in a Modem Industrial
Democracy, InD. Glaser, ed. Handbook of Criminology, Chicago, Rand-McNally, 1974, pp-455-494.
1181 Shall Commission, Interim Report-II, part of para 15.15.
1182 Id para 15.16
386
trust when by word and example they promote a spirit that is complacent, evasive and
acquisitive.*
Political offender is not necessarily anti-social. In political unrest, one is an offender only
because he wanted to disturb the political order in the State for political causes. Again, as history
testifies political criminal of one particular age may be the most respectable person of other age
as Martyr or, Saint or, Hero. What was unlawful and illegal till yesterday may become lawful
and legal today, with the political changes taking place in a country. The excessive interference
of politicians in executive functions of the government has weakened the morale of the
administrators as well as of the police, with the result that there was spontaneous growth in crime
rate.*1184
Projecting Own Image.
When a policeman indulges in third degree methods he only degrades himself to the level
of the criminal and perhaps he compares even less favourably with the criminal in his custody.
For, his crime in trying to obtain a confession by torturous methods, coming as it does from an
educated person and a person charged with the sacred duty of upholding law and the
Constitution, becomes more reprehensible than the misguided act of the criminal. Section 29 of
the Police Act of 1881 and Article 20(3) of the Constitution of India clearly forbid such a course
of action. Expediency and protection of society are but poor arguments in favours of such an out­
moded and barbaric system. *1185 Indeed, such high-sounding expressions like "protection of
society" or " the need to bring an offender to book" are extremely foolish arguments to advance
for breaking the law of the land. As a matter of fact when a police officer indulges in such
malpractices, he does so only for the purposes of projecting his own image as a successful
detective or as a confession-getter before his superiors. He does so to artificially swell his
figures of detection and thereby tries to enhance the prospects of future betterment of his career.
(T) Ouid-Pro-quo.
The Andhra Pradesh Civil Liberties Committee has been maintaining a record of all
custodial deaths and wherever possible has been participating in the enquiries. Kannabiran*1186
(1992) has reported on the victims of custodial deaths and number of lock-up deaths in Andhra

1183 Ibid, para 15.19.


1184 N. Sanajaoba- Human Rights, Principles, Practices & Abuses- Omsons Publication, New Delhi at 231-34.
1185 R.Deb: Principles of Criminology, Criminal Law and Investigation M/s S.C.Sarkar * Sons (P) Ltd. I-C, BanMm
Chatteijee St., Cal-700073,2nd Ed., Vol.l, p. 35-136.
1186 Kannabiran K.G. "Creeping Decay In Institutions of Democracy". The Economic and Political Weekly, Aug.
1992.
387
Pradesh during 1984-90. Out of 121 custodial deaths, in 31 cases judicial enquiry has been
ordered. The result of the judicial enquiry is of no consequence. What should be shocking is
where murders are committed by the members of the police force, they are being enquired into
by Executive Magistrates under Section 176 or by a Commission of Enquiry which puts this
class of public servants above law. This unconstitutional practice is by repetition legitimized by
the state. The Commission of Enquiry Act is not intended to be a substitute for criminal
prosecution. The government is obviously afraid of subjecting the police to the ordinary legal
processes because they may refuse to carry out illegal orders. Work to rule by the police force
might mean enforcement of the constitutional guarantees and that may threaten the longevity of
the government. *1187
Growing political interference in the day-to-day working of police has turned the force
into becoming the agents of the party in power. The pressures which the ruling political parties
exert on the police to show quick results at all costs have contributed to the practice of torturing
the political opponents. The politicians in power use the force to harass their adversaries and
frame cooked-up charges against them. The interdependence of political authority and police
creates a situation of quid pro quo under which the political masters are unable to question the
human rights violation by the police. Once the politicians and the police become partners, the
former are compelled to overlook the misbehaviour of the latter. Given this situation the
departure from expected norms of conduct go unnoticed, or at best swept under the carpet. In
today's political scenario, the policemen are judged not by honest hard work but on
considerations of kow-towing the persons in authority.*1188
Immunity.
The main reason why torture continues to be practised on such a wide scale throughout
India is that the police feel themselves to be immune- they are frilly aware that they will not be
held accountable, even if they kill the victim and even if the truth is revealed. Institutional factors
which contribute to the persistence of torture include:- the negative public image and bad
working conditions of the police, the inadequate training and facilities available to them, the high
degree of political involvement in directing their activities and the failure of government to
accept responsibility for ensuring that the police operate within the limits of law.*1189

1187 Sankar Sen, PSV Prasad, AK Saxena- Custodial Deaths in India (A research Study)- SVP NPA, Hyderabad.
1188 S.P.Srivastava- Police and Human Rights; The Post-Independence Scenario- a paper published in Indian Police
Journal Vol. XLV No. 1 &2, January-June 1998- BPR&D, MHA, GOI, New Delhi publication, at 92.
1189 Supra note 1187 at 32.
388
(U) Extra-ordinary Situations/Emergencv Provisions.
Abraham Lincoln said that:-
" every man thinks he has a right to live and every
Government thinks it has a right to live. Every man when
driven to a wall by a murderous assailant will override all
laws to protect himself, and this is called the great right of
self defence. So, every government when driven to the wall
by a rebellion will trample down a constitution before it
will allow itself to be destroyed. This may not be
constitutional but it is a fact."*1190

In the final text of Article 4 of the International Covenant on Civil and Political Rights it
was recorded as under:-*1191
In time of public emergency which threatens the life of the nation the existence of which
is officially proclaimed , the states parties to the present covenant may take measures derogating
from their obligations under the present covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with their obligations under
international law and do not involve discrimination solely on the ground of race, religion, sex,
language, or social origin. There are certain non-derogable rights even in emergencies and they
have got to be respected at all costs by the comity of nations. Thus, the fact that such non­
derogable rights cannot be suspended even in time of public emergency for the asserted objective
of saving the life of the nation is a measure of the principle of the primordial significance of the
non-derogable rights also known as the Paris Minimum Standards: The Sixteen non-derogable
rights.*1192 Amongst the non-derogable rights those which are relevant here are:-
1. The Right of life, (Article 6).
2. Freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 7).
3. Recognition as a person before the law, (Article 6).
4. Freedom of thought, conscience and religion. (Article 18).
India is a signatory to the Universal Declaration of Human Rights and also to the two
international Covenants one on Social, Cultural and Economic Rights and the other on Civil and

1190 S. Krishnamurthy- Human Rights and the Indian Police-Payonidhi Printers, Banasankari, Bangalore, at 270-71.
1191 General Principles of the Emergency powers and the protection of the individuals.
1192 It may be however not out of place to mention here the expanding range of non-derogable rights as advanced by
various international conventions like the ECHR, ICCPR, ACHR and the consensus of international view can
be seen under what are known as the Paris Minimum Standards, which has prorogated sixteen non-derogable
rights available even under emergency situations.
389
Political Rights and thus, is under an international obligation to meet the required international
legal standards on the issue. *1193

When the security forces fighting the menace fuelled by a difficult and arduous problem
like terrorism or extremism or other emergency situations, recourse to any shortcuts in the
process of law of establishing guilt through a prescribed legal process as easy escape gives go by
to the rule of law on the ground that proving a case is difficult. Thus, even if it does prompt the
agencies of the state to assume the role of prosecutor, judge and executioner, all rolled into itself,
then it provides a fertile base for launching a state organized terror, though it may be resorted to
by the some amongst the many personnel of the state. The first casualty in this enterprise of
misadventure is the rule of law. The urge to suggest that terrorist type of violence is above the
pale of ordinary criminal activities and a pretext that routine safeguards available to a criminal
need not be extended to a terrorist smacks of totalitarian methods of dispensation and if it is
attempted in a democratic set up, then it is doomed to failure.*1194
It may be difficult to find solutions to the extremely dangerous and difficult challenges
posed by terrorists, extremists and the ilk when the battle is for the survival of the state. But, the
demands of human rights is an equally vital need and cannot be abdicated at the behest of short
term pressures or due to administrative myopia or political bankruptcy. In this context the views
of Krishna Iyer J;, *119:> that, when we witness terrorist movements multiply menacingly,
humanists the world over must refuse to lend moral support to these Satanic incarnations,
whatever their alibi and however grave their outraged sense of justice. Massacre has no
amelioration nor carnage extenuation. Public conscience must be mobilized globally in favour of
compassion and the true recognition of human rights, appear really valid.
Benthem in his utilitarian reasoning, as argued by Prof. Twining*1196 not only forces us to
think, but also encourages us to be honest. At the first look, the points of view of Benthem may
seem attractive to justify the use of force as he advances the argument of "judicious" use of
torture to justify the utilitarian ends. To cite hypothetical cases, Prof. Baxi poses a question.
When is the choice of inflicting torture a lesser social evil?*1197 In modem times, the acts of
'terrorism' provide an example such as one where a bomb is placed in a public place (say hospital
or airport) with a timing device and the person who has information concerning the location is

1193 Supra note 1190 at 270-71.


1194 Id at 287-88.
1195 Krishna Iyer, V.R. in his article Dream of reality in Seminar Magazine, issue No. 405, May 1993 at 39.
1196 Tweinning W.L. and P.E. Twinning; "Benthem on Torture" in Benthem and legal theory (1973 M.H, James ed).
1197 Upendra Baxi, Crisis of the Indian Legal System, Vikas 1981, p. 241.
390
taken in custody, assume, with Professor Twinning further that all the Benthamite conditions of
judicious application of torture (certainly as to victim, reasonableness of belief that if torture the
victim shall yield that information, reasonable grounds for belief that the person shall not yield
that information otherwise than through torture, reasons for believing that timely information
will effectively save infliction of pain on vast number of innocent people, and that application of
torture will not have worse consequences than the detonation of that bomb) are met. In this
situation, based on well known device of argument for the extreme case, moral absolutism will,
for a majority of people, have to yield to a purely utilitarian form of justification of torture. *1198

But in less extreme situations torture can not be, even for arguments sake, justified and
Benthem's strong disapproval on the implications of misapplication of torture are worthy of
being quoted verbatim-
"The danger will always be great, that torture if allowed in
these cases be made subservient to the establishment of
usurpation, or which comes to the something, of a
government repugnant to the interest and affections of the
great body of the people. Those whom it is found necessary
to prescribe under the names of rebels, libelers or sowers of
sedition, may in fact be the best friends and defenders of
the people, against these the hand of the government may
be too strong. But, incendiaries, assassins, highwaymen and
housebreakers are under every government, be the
government what, it may, the standing enemies of the
people, against these the hand of the government can never
be too strong." *1199

As observed by Prof. Twinning, institutionalization of torture may lead to the creation of


a guild of professional torturers whose continued existence will constitute a serious threat to the
society and even in an extreme case, justifying its use would open the door for a steady erosion
of resistance to it in less extreme cases, until its regular use is accepted unthinkingly and
ordinary people become conditioned to accept it as commonplace and tolerable. The society has
to shut its face against the urge to use brutal force by the police or any other governmental
agency and solutions for this may have to be sought at different levels and on a collective
basis.*1200

1198 Supra note 1190 at 289-91.


1199 Supra note 1196 at 81-86.
1200 Id at 81-86.

391
Human rights violations by the armed forces of the union are perhaps most debated
matters while deliberating on human rights observance. No doubt, in insurgency and terrorist
bound zones the armed forces are operating under most difficult circumstances and deserve to be
given all reasonable support and backup in their risky ventures. Yet, gross human rights
violations by the individual or group members of such units can not be kept aside or hushed up
under the pretext of sustaining morale of the operational units or such other similar assertions.
Admittedly undue and very deep scrutiny into all such cases may not be in the interest of the
integrity of such operations by the armed units and yet any blanket ban would appear to be
contradiction in terms. *1201
(V) Mistrust in Police.
Law puts the least trust in the law enforcement machinery and every action of the police
is seemingly viewed with suspicion. Many issues germane to investigation are done in clear
misbelieve of the police and inter-alia the rejection of statements made to police by the accused
was well highlighted by Chinnappa Reddy, J. who is considered a highly sensitive judge to the
I

values of individual liberty and dignity of the down trodden and well aware of the potentialities
of the abuse of police power as under:-
"There are several provisions in the Indian Evidence Act
and the Criminal Procedure Code which appear to raise
statutory presumptions against the credibility of police
officers. Section 25 of the Evidence Act renders
inadmissible in evidence any confession made by an
accused to a police officer. Mind you, there are, at present
several offences created by statutes which are investigated
by officers other than police. Excise officers, Customs
officers, Tax officers, Forest Officers, Civil Supply
officers, Food Inspectors and Drug Inspectors are some of
the officials who investigate into these statutory offences.
None of them suffer from such an embargo. The police
officer alone is picked out or rather he was picked out a
century ago for this embargo at a time when there were
practically no statutory offences and no investigating
officers other than police. Very many investigating
agencies have since been created, but the stigma is made to
stick to the police." *1202

1201 Supra note 1190 at 304


1202 A.R.C. Working Group 1967; 52 as quoted by Dr. S. Krishnamurthy in Human Rights and the Indian Police,
Payonidhi Printers, Bangalore, at 311.
392
Exception to section 27 of the Indian Evidence Act is heavily resorted to. The courts also
find that abuse of this provision is rampant and unless the section 25 and 27 of the Indian
Evidence Act are not altered the situation may persist.*1203
We act the police we deserve.
(W) Police Thinking.
"Should we legalize third degree?*1204 Shelia Barse, a very well known social activist of
Bombay interviewed a large number of policemen and ventured to identify the factors that
influence the thinking and deeds of the policemen. The survey also attempted to ascertain the
logic of those who believe in the utility of the vice and those who try to rationalize their resort to
the accursed perversion. A series of responses were listed out and commented on. These view
points were ranging from a desperate and helpless plea of no alternative means for detection of
offences to public pressure to teach lessons to bullies who would otherwise hold community to
ransom. Several other perceived reasonings by many policeman who responded to the survey
fails to evoke the answers to a question as to the legal or moral force that can condone the vice.
The argument that law enforcement is itself a coercive act of state may no doubt share a tinge of
truth but that is not the whole truth. A view that the Criminal Justice System is becoming
increasingly ineffective and that erosion of public faith has to be arrested and thus the arm
twisting would at least legitimize the efficacy of the police would seem to emphasize an
exaggerated self importance of some of the policemen about their role functions. Such
misconceptions merit to be corrected comprehensively. *1205
Corruption.
The corruption motivates for torture. Why should anyone give money to the police? More
the expectations of torture more are the offers of money. Those who do not have money to offer
get tortured to show that police mercy is discretionary. Police brutalities apparently are part of
the system- the system that brutalizes society and is damned by the society in return. *1206
In the present state of affairs, the police are even bribed, encouraged and pressurized to
use third degree methods during interrogation and they doubtlessly fetch quick results from such
an approach. Doubtlessly, the public who are aggrieved because their property has been stolen or

1203 41st Report of Law Commission, 1969, 373-382.


1204 Should we legalize third degree? Opinion poll conducted amongst the police personnel of Bombay city by
Sheela Barse- replies and summary circulated as seminar papers on Human Rights, National Police Academy,
Hyderabad, 1992, November.
1205 Supra note 1190 at 313.
1206 M.P.Singh-Police Problems and Dilemmas in India- Mittal Publications, New Delhi- at 299-300.
393
house broken or a girl molested desire retribution and punishment, when third degree has
brought results and relief to the aggrieved, he tacitly approves such an approach. But, when the
third degree method has resulted in more harm that what is due to the victim resulting in loss of
limb or grievous hurt or even death, the public comes heavily against the police action and more
often than not, the issue is made political and the opposition cashes on it. Here the public adopts
a policy of convenience. It is to be mentioned here that the police use third degree on their own
risk and quite often they do it for the often clamoured objective of apprehending the criminal or
getting a confession from him. *1207
(X) Duty to Protect the accused.
It is duty of the police to protect all persons in their custody. Regulation 328 of Police
Regulations, Bengal, 1943 enjoins that the officer-in-charge of a police station or post shall be
personally liable for the safe custody of all prisoners brought to the station or post. Before
admitting a prisoner he shall carefully examine the person of the prisoner, if necessary by calling
independent witnesses from the locality to see if there are injuries on the person of the accused at
the time of admission in the lock-up. If in course of such examination injuries are found on the
person of the accused, a full description thereof shall be entered in the station diary in presence
of witnesses so that no allegation of torture can be founded on the basis of injuries received
before the prisoner came into the hands of the Police. The Regulation further says that the officer
in charge shall see that only strictly necessary clothing is allowed to be taken inside the lock-up
and there are no weapons, articles or other things in or near the lock-up which may facilitate
escape or suicide. And Regulation 329 (a) requires him to tell off a guard so that the lock-up is
guarded at all times of the day and night on shift duty system. Other Police Regulations too have
similar rules for the safe custody and protection of prisoners in the lock-up. Any willful breach
of these rules as well as offering of any unwarrantable personal violence to a person in custody
are made punishable with fine or imprisonment under Section 29 of the Police Act, 1861. Most
States in India have either adopted this Central Act or have made similar provisions in their own
State Police Acts. It is thus, seen that if these provisions of the Police Rules and the laws in force
are strictly followed, there would hardly be any case of a prisoner being beaten to death by
fellow prisoners or a prisoner committing suicide or a prisoner dying unattended to in the lock­
up from injuries received days earlier and which injuries might not have been listed at all in
presence of independent witnesses in the General Diary as is required by the rules. Moreover,

1207 James Vadackumchery- Human Rights & the Police in India-APH Publishing Corporation, Delhi- atl20-21
394
any person with rudimentary idea of police work knows that confessing accused or an approver
has to be kept segregated from other prisoners. Where then is the scope of such a person being
beaten to death by fellow prisoners or committing suicide, and that too in presence of a watchful
guard right in front of the lock-up for all the twenty-four hours of the day? The story of being
beaten to death by fellow prisoners is thus often a ruse to cover up misdeed.*1208
(Y) Shun Police Remand.
As most of the torture for extorting confession takes place after getting the accused in
police remand. Whether it would not be desirable to completely do away with the present system
of remanding the accused to police custody under Section 167 of the CrPC after his initial
production in Court by the police. In Jayadees's case,*1209 the Kerala High Court has held that to
remand an accused to police custody for the purpose of securing a confession is to aid the police
to bring pressure on the accused for extracting information which he voluntarily is not prepared
to give or bound to give. Such a prayer for police remand has got to be rejected. Even in the days
of the British Raj a prayer for police remand was regarded as a very serious matter in that Rule
324(e) of the Bengal Police Regulations, 1943 even in those days enjoined, "An application for a
remand to police custody shall not be treated as a matter of routine and of little importance. It
shall be made to the Sub-divisional Magistrate through the Chief Police Officer at the district or
sub-divisional headquarters." However, in spite of all these guidelines provided in the case-law
and Police Regulations, the subject of remand to police custody is just being treated as a "matter
of routine and of little importance" without the prayer being made through the senior police
officers or sending the case diary to the Magistrate for scrutiny as is enjoined by the law.*1210 It
is, therefore, no wonder that so many untoward incidents have been reported from all over the
country.
In Antulay's case *1211 the Supreme Court has held that the policy of Criminal Law is that
an offence is not merely an offence committed in relation to the person who suffers harm but is
also an offence against society and the society for its orderly and peaceful development is
interested in the punishment of the offender. Now a question may, perhaps, be asked if abolition
of police remand will not hamper investigation of cases or stand in the way of bringing offenders
to book. Thus where the accused has already furnished some clues which call for further

1208 R.Deb- Criminal Justice- The Law Book Company (P)Ltd. Allahabad at 67-68.
1209 T.N.Jayadeesh v. State of Kerala, 1980 Cr.L J. 906, para 5 of the Report.
1210 In re. B.J. Reddi, 1967 Gr.LJ.1062 (AP).
1211 Antulay V. Union of India 1984 Cri. L.J. 647; AIR 1984 SC 718
395
interrogation of the accused or which require further clarification by him, a denial of police
remand would mean a denial of opportunity to complete the investigation. This certainly need
not be so. For meeting the requirements of such genuine cases, by a suitable amendment of the
law the Magistrate could be empowered to permit the Investigating Officer to further examine
the accused in Jail custody instead of the present practice of remanding him to police custody
which puts him, at times, to the risk of being tortured at the hands of an unscrupulous officer.
This opportunity to further examine the accused in Jail custody while protecting the interest of
investigation, would greatly minimize the scope for practising third degree. When the Japanese
police voluntarily forgo their right to even interrogate the accused in a large number of cases,
why would not the Indian police be able to check the temptation of having the accused back in
their custody for a second time, especially when under the proposed scheme they would get
enough opportunity to further examine the accused in jail custody?.*1212
If as a result of such further examination of the accused in jail custody (which in reality is
judicial custody) the accused makes a voluntary confession to the Investigating Officer, the latter
could then move the appropriate Judicial Magistrate to have the confession judicially recorded.
This would guard against any possible loss of evidence of this type to the prosecution. And if a
thing has to be discovered as a result of such a confession and the discovery cannot be made
without taking the help of the accused e.g. where the accused says in his confession that he
buried the property in question deep inside a big jungle or in a big field, the Investigating Officer
could then move the Magistrate for taking the accused to the place of search so that the discovery
could be effected. For such a purpose also the accused should not be remanded to police custody
but be taken to the place of search either by an officer of the prison or any other non-police
officer of sufficient rank and status. In such a case, however, the escort party will have to be
provided by the separate armed branch of the police which have nothing to do with the
investigation. The mere presence of non-investigating armed police who have also no
administrative control over the jail as an escort party would not turn such a custody into a police
custody. *1213 In other words, even of the time of effecting the discovery the accused should not
be remanded to the custody of the Investigating police. It is also important to see that such a
discovery is made in the presence of at least two independent and respectable witnesses as sub-

1212 Supra note 1208 at 70-71.


1213 Kurungalanga Luxman v. State 1964(1) Cri L.J.464 (Orissa); M. Mallick v. State, 1967 Cri LJ 232 AIR 1967
Orissa 24, Rajakhima v. State of Saurashtra 1956 Cri LJ 426 AIR 1956 SC 217, Brij Mohan v. State. 1984
Cr.L.J. 1261(Delhi).
396
section (4) of Section 100 CrPC applies with equal force even to a search conducted in pursuance
of a discovery statement.*1214 If discovery is made under such circumstances, it would then be of

considerable value to the prosecution and would also save the police from a lot of criticism
wherein it is often said that such discoveries too are not always genuine. *1215 Of course, to

introduce such a procedure Sections 164 and 167 of the CrPC and Section 27 of the Evidence
Act, which now requires the accused to be in police custody to enable the discovery statement to
be admissible in evidence will have to be suitably amended. Indeed, an amendment of Section
27, Evidence Act is long overdue. In Durlay's case *1216 Rankin J. of the Calcutta High Court, as

his Lordship then was, had observed "There might be reason in saving that if a man is in custody,
what he may have said cannot be admitted in evidence, but there can be none at all in saying that
it is inadmissible in evidence against him because he is not in custody.*1217

(Z) Study of Criminal Behaviour: A Challenge.


Assuming that criminality inheres in the very nature of man the question that baffles us
is why only some people become criminals and others do not; and this holds good even in the
most starkly delinquent of the delinquency area.*1218 What could be the explanation for this

phenomenon? The psychologists would regard crime as the outward expression of


maladjustment of the criminal on account of unfulfilled inner drives and unresolved emotional
conflicts during the early stages of psycho-sexual development. *1219 The sociologist, however,

regards the typical non-criminal as no more emotionally disorganized than the typical non­
criminal. According to him criminal behaviour is a thing that an individual learns from his
contact with criminal groups as he would learn other things of life. The contacts may be in the
family itself but more often than not they are in the outside community. *1220 The reason for

these divergences of approach is to be found in the limited professional training of the two sets
of theorists. Both groups tend to overlook the complexities of criminal behaviour. Since motives
for all crimes are not identical it should be equally obvious that there cannot be one uniform
explanation for all kinds of criminal behaviour. It is, therefore, a mistake to seek a general cause

1214 Prem Chand V. State of Punjab. 1984 Cri LJ 1131 (P&H).


1215 Sekharanv. State of Kerala 1979 CriLJ 337, 1980 Cri LJ 31, T.N.Jayadeesh v. State of Kerala, 1980 Cri LJ 906
(Ker).
1216 Durlay v. State of West Bengal 36 Cal WN 373; 1932-33 CriLJ 546.
1217 Chapter 4 Syn. 4, ante entitled "Remand to police custody."
1218 Cavan; Criminology, Second Edition 1955, p. 95,102,106-107 (USA).
1219 Dudych Psychology for Law Enforcement Officers, 1955 P. 284-285 (USA).
1220 Cavan, Criminology, p. 122 Sutherland and Cressy, Principles of Criminology, 6th Edn. 1965, p, 58,74-80.
397
for criminal behaviour.*1221 Rather, one should expect to explain criminal behaviour by several
processes which is the result achieved by psychiatrists, psycho-analysts biologists and
sociologists. Psychological, hereditary or biological limitations may cause predisposition
towards certain types of anti-social behaviour but society provides the necessary environment in
which these predisposing factors come into contract with precipitating social factors'and
ultimately result in criminal behaviour. Criminal behaviour is thus a bio-psycho-social
phenomenon. *1222
(AA) Action Against Police for Misconduct:-
During the year 1999, 74,322 complaints were received at All India level. Inquiries were
instituted in as many as 11,743 cases. Out of these, in 513 cases, judicial inquiry was ordered. In
285 cases, magisterial inquiry was conducted, in 10,945 cases regular departmental inquiry was
initiated. Thus in over 15 percent complaints, suitable inquiry was instituted. The total number of
cases that were either not substantiated or not found true amounted to 41,663 cases, which
amount to 56.1 percent of the reported complaints.*1223
During the year 1999 as many as 1751 Police Personnel were sent for trial, after
investigation and framing of charges. Trials were completed for 626 police personnel. Cases
were either withdrawn or disposed of otherwise in 241 cases. During this period, 556 police
personnel were acquitted and 70 police personnel were convicted in the trials completed by the
courts.*1224
The magnitude of Departmental actions taken by the States/UTs against the erring police
personnel indicate the tight disciplinary control being exercised by the concerned authorities,
possibly to achieve the desired deterrent effect against the police personnel. Against 10,945
cases, which attracted departmental inquiry, disciplinary actions were initiated against 19,138
police personnel. For 2,545 policemen, the cases were either withdrawn or other-wise disposed
of. Departmental trials were completed against 7,577 personnel. During this period, minor
punishments were given to 24,644 personnel, and major punishments were awarded against
11,002 police personnel. On the basis of these enquiries, 829 police personnel were either
dismissed or removed from service at All India level.*1225

1221
Barnes & Teeters; New Horizons in Criminology, 3rd Edn. p. 116, Cavan's Criminology p. 704.
1222
Supra note 1208 at 95-96.
1223
Crime In India- 1999, National Crime Records Bureau, Ministry of Home Affairs, New Delhi, at 393-96.
1224
Ibid
1225
Ibid.
398
These punitive steps are generally taken only against the lower level functionaries as the
higher up somehow manage to escape them. It has been found out that in most of the cases,
police officer/men subjected to departmental inquiries for human rights violations get themselves
declared as not guilty. Out of several thousands of human rights violations, only a few are
inquired into and this sort of a "permissive attitude" on the part of the higher authorities for the
employment of human rights violations has been responsible for creating a feeling in some police
officers that they can resort to human rights violations without being caught or if at all caught no
being seriously inquired into or if at all inquired into not at all punished. The people who are
made victims of human rights violations also did not bother about making complaints against
police officer as they were afraid of further harassment and ill-treatment from the police. *1226
(BB) Inadequate Action for Violation of Human Rights.
During the year 1999, 199 cases of Human Rights Violations by police were reported
throughout the country. The data was, however, not available from Sikkim State. Of these only
94 cases were charge-sheeted and only 2 cases in Tamil Nadu State resulted in convictions. Uttar
Pradesh reported the maximum 47 (23.7%) of such cases followed by Tamil Nadu 42 (21.1%).
Among UTs, only 2 cases were reported form N.C.T. of Delhi. Out of 199 cases, 59 were
reported for 'Atrocities on SC/ST', 19 for 'Indignity to Women" 15 for 'Torture' etc.*1227 .
(CC) Feudal Tendency.
Feudalism based on land, money or prosperity is getting vanished, other types of feudal
lords are bom and the police are said to be such kinds of feudal lords in the changing society. As
a result, a type of feudalism based on power and authority has come into being. A sub-inspector
has become a feudal lord in his jurisdiction, a circle inspector in his circle, a deputy
superintendent in his sub-division, a superintendent of police in his district and so on as the law
has bestowed on them the power and authority to command people. If people do not respect their
command or show a hostile attitude, they saw to it that they obeyed their command however
lawful or unlawful it may be. For it, they were not hesitant to utter indecent expressions or show
aggressive behaviour. They were not reluctant to slap people on their patrol duty in mral areas,
more so in the past than it is at present, and they along with their able-bodied constables created
terror and deterrence in public. *1228

1226 Supra note 1207 atl 15.


1227 Crime In India- 1999, National Crime Records Bureau, Ministry of Home Affairs, New Delhi, at 393-96.
1228 Supra note 1207 at 111.
399
(DD) Public Belief.
The people in general believed that the police had the statutory authority to shout at any
body, call filthy words against anybody, beat people on road, slap a man who shows a hostile
attitude to the pseudo-authority, take them in custody in an informal way, register false cases,
subject them to humiliation and torture. Thus, during a period of time, there developed a sub­
culture in the society which tolerated everything the police did with and without authority, four
decades ago, a policeman was beaten by a member of the public in a village. The police party
which came there afterwards in a police vehicle started beating everybody whom they saw in that
village so much so that the entire male population of the village had to flee away for their
physical safety and security. The people thought that the police had the authority to do it in the
way they did during that time. About three decades ago, the police used to get hold of anybody-
even going to the houses of people at any time even during night hours- and bring them to police
stations. Old people who had the experience of the police say that the scar left their soul and
body by roughing up by police hands during that time was more cruel than the eye-for-eye and
tooth-for-tooth principles of retribution. People during that period thought that the police had
really the power and authority to take anybody, no matter he is a criminal, suspect or innocent,
and do anything including torture with him. *1229
(EE) His Master's Servant.
In British India and afterwards for a long time, the members of the police were
unqualified, under-qualified or ill-qualified. Muscle power ruled their acts and activities. These
unqualified i.e. education upto 4th class plus the physical drill during their training period as a
constable- personnel thought that they were in the government sendee "not on their merits, but
on the grace of their superiors" and this type of mental attitude of the constables to their
superiors made them to adopt a "servant-master" relationship with their departmental higher-ups.
The result has been that these policemen were treated by their supervisors just like the feudal
lords treated their servants. The orderly system, the addressing methods and words ('masters' to
officers) the body language when orders were given signifying a servant-master relationship,
etc., were examples in point to show that the human rights of the lower level functionaries were
denied by the higher levels. The policemen as a compensation-mechanism, resorted the same
types of treatment they received within the department to the members of the public to whom
they thought that they were the lords by virtue of their authority, uniform and power. Thus, the

1229 Id atl 11-12.


400
policeman started calling abusive names against the public and used to ill-treat the people
whenever that was possible. *1230

(FF) Paucity of funds.


The police say at times, forced to purchase food for those who are detained in police
custody by spending money from their pockets or from the pockets of others who come to police
stations for getting services. The bills and vouchers kept in police stations and the number of
people detained during a period of time in police custody will show how much money has been
spent for the purchase of food for the people kept in police custody. "Detainees Afterall" attitude
is taken so much so that some well-meaning police officers state frankly, to reiterate, that a
certain number of people kept in police lock-ups do commit suicide as they cannot withstand the
tension and hunger pangs caused by starvation in lock-ups.*1231
(GG) No Option Svnrome.
Many police officers are aware of the danger of the detainees likelihood of committing
suicide and therefore they purposefully ask them to remove their clothes so that chances of
committing suicide by hanging is reduced. Surely, it is degrading treatment, but there is no
option- this is what some police officers say when they are asked to speak about causes behind
undressing the detainees while they are in police lock-ups. Removing the clothes or allowing the
detainees to remain in lock-ups in their underclothings or loin clothes or thorths has become a
sort of punishments as well for the people handled by the police.*1232
(HH) Incompetent Investigators.
Many of the police officers do not know investigation work and only a few know how to
interrogate a suspect in a crime. Investigation work is painstaking and not rewarding. It is
laborious and not worth paying. Nevertheless, one cannot survive in the department without
investigating crimes. Hence, they investigate the crime in a way they want often by resorting to
shortcut methods. They want quick result by the quickest way possible and using inhuman
methods is found to yield results in a speedier way. They are interested to protect their own
rights, privileges and prestige more than protecting the rights of the detainees.*1233

1230 Id atl 12-13.


1231 Id atl20
1232 Ibid.
1233 Id atl 16-18.
401
(II) Retribution.
The impulsive reaction to crime-doers has been retributive in nature. In spite of it, crime
co-existed with retribution. Hence, if retributive element is taken out of law enforcement, crime
is likely to be increased. From the present trend of acquittals of criminal cases, one may safely
conclude that criminals do escape without being punished. Hence the people in large number
want the police to employ cruel methods to criminals and suspects in crimes. In response to a
question, 48.02 percent of the interviewed from the general public expressed their view that they
were in favour of the use of third degree methods and that too only in absolutely necessary cases.
This faulty approach of the people make the police feel "satisfied" and "guilt free" when they use
third degree methods.*1234
(JJ) Self Assumed Role of Crime Fighter.
Police functionaries justify their violations of human right by advancing arguments that
they do it for detection of crimes particularly the detection of property offences. This gives a lot
of consolation for those who listen to the argument, for, they think that the inhuman methods are
resorted afterall only to property offenders who really deserve to be treated harshly particularly
when they are recidivists and hardened criminals. What is the rate of detection? Figures relating
to 1991 shows that property worth Rs. 595.37 crores was stolen during the year and property
worth Rs. 170.12 Crores was recovered. Greatest loss of property worth Rs. 257.89 crores was
recorded under the crime head "theft." Only in one-third of the cases in which property was
stolen, recovery could be effected. It may be recalled here that torture method is used more to
people who have not involved in committing crimes, rather it is used more against people who
have been brought to police stations for matters unconnected with the commission of crimes. If
this is the ground reality, then it appears that there is no meaning in advancing arguments to
show that third degree method is used more frequently for detection purpose. In spite of the
alleged use of third degree methods, the rate of detection is very poor in many States. There are
States in which detection come below 20 percent or very much lower than the national average.
Hence, the argument brought out here becomes just a face- cover for the otherwise unjustifiable
acts by the police. *1235

1234 Idatl20.
1235 Id atl26.

402
(KK) Quest for Conviction.
The real cause behind some of the human rights violations by police, according to the
Law Commission, is their quest for conviction. False evidence finds a place in the recorded of
every criminal case put up for trial before courts and in most cases this has a disastrous effect on
the result of the case. There is material which leads to the conclusion that evidence is fabricated
in order to get an innocent person convicted. The Commission continues, " As the idea persists
among most junior police officers that their promotion will depend upon the number of
convictions they are able to obtain, in their anxiety to obtain convictions or for other motives,
these officials not un-often deliberately concoct false evidence to connect the accused with the
crime.*1236 Majority of the older generations of investigating officers preach that without
padding or concoction, cases do not stand in courts. There is full agreement to this view by new
generation officers and for it they misuse their power and authority sometimes to the extent of
using torture to the suspect. These being the underlying factors behind "in-depth interrogation ",
some senior level police functionaries advance all sort of imaginary causes and arm chair
speculations as explanations for their frequent and indiscriminate use of third degree
methods.*1237
(LL) Suicidal Deaths in Police Custody.
"A suicide After All"- attitude is most objectionable. Why do people commit suicide?-
that part in never looked into. As a prevention for detainees committing suicide in police lock­
ups, a senior police officer holding the rank of a director general police recommends: " It is
necessary for senior officers visiting the police station to see that no weapons or articles that can
facilitate escape or suicide like bamboos, ropes, tools etc. are within the reach of the lock-up." A
reading into the suggestion by the learned Director General may show that people in police lock­
up commit suicide because they have accessibility to weapons or articles that can facilitate
suicides. The real cause behind their decision to commit suicide is not taken into account while
the recommendation is made; rather the means that may be adopted are taken note of. Here the
custodial aspect is taken care of and no one has bothered about the causative aspect of suicidal
attempts by the detainees. Should the law treat every suicides in custody just as a suicide or
something more than a suicide? Should the law not take notice of the precipitating and pre­
disposing causes of suicidal deaths in police custody? Cannot a social investigation followed by

1236 As quoted by O.P.Tandon, Concoction of Evidence and its Effect, (Memo), Central Police Training College,
Advanced Course, Abu.
1237 Supra note 1207 atl27-28.
403
a judicial inquiry bring out the pull and push factors behind suicidal deaths in police custody? Of
course, the police manuals and departmental circulars do insist on several measures to safeguard
the interest of the detainees as well as their custody. Here too, the,, custodial aspect is taken care
of and the human rights aspect is ignored. This is an open secret and therefore, it must be insisted
that there should be a total obedience to the departmental circulars and instructions. *1238
(MM) Resistance from State.
There is resistance from all the states when violation of human rights by the police takes
places. And it was shocking to read in the press when the allegations made were investigated in
all the police cases, we saw even Government ministers saying, this was the wrong report and the
police is being in line. This is the usual excuse, so in the matters of human rights it is only when
we are in opposition that human rights become important. But those who are in government
always find human rights observance a very inconvenient thing. The danger is that once you
permit the human rights violation to be taken place under any circumstances, either on ground of
security or morality or culture you are laying down a very big trap. You are creating a condition
in which the police or security forces feel that they are immune anything. *1239
(NN) Answerability and Responsibility of Police.
Punishment or disciplinary action against the errant police officials will not be adequate
unless there is a systemic change. Insulation of the police from extraneous pressure and influence
is a must. In its submission before the Supreme Court in the Writ Petition (Writ Petition No.310
of 1996, Prakash Singh and other Vs. Union of India), the doctrine of constabulary independence
in U.K., and the observations of the Royal Commission of Police, 1962 and Lord Denning
regarding constables' responsibility and answerability to law alone were discussed. That the
police in Great Britain is answerable to law and this makes them "the least powerful, the most
accountable and the most acceptable police in the world." Police in democratic society should be
low in authority and high in accountability. *1240 Policemen are not a bunch of sadists or
psychopaths. Thousands of Policemen have given up their lives for the causes of protecting and
safeguarding the integrity of the nation and rendered invaluable, yeoman service in crime
prevention, and giving relief and succour to the people affected by natural calamities. Yet, why
are they quick to use violence against people whom they profess to serve? When we analyze the

1238 Idatl50.
1239 S. Mehartaj Begum- Human Rights in India- Issues and Perspectives- APH Publishing Corporation, New Delhi,
at 36.
1240 Sankar Sen- Police Accountability and Civilian Oversight- a paper published in SVP, NPA Journal, Volume 52
No.2 July-December,2000 at75.
404
causative factors, we find that they are constantly exposed to one side of life- a seamier side of
life. We also find that a negative role is assigned to the Police under the law, total collapse of the
Criminal Judicial System- which encourages the public tolerance for police violence to deal with
criminals coupled with the absence of a self-regulating mechanism in the policing profession.
Though not sanctioned by law, the police has been, is being used to protect the interest of the
politicians in power. This establishment of protection role forms a base and provides, indirectly,
the support of the ruling elites and makes the police disregard public accountability.*1241
(00) Biased Press: a Policeman’s Cry.
The Press do not highlight the violation of human rights by the judge who caused death
by his denial for the necessary medical aid to a person who has not committed any crime in this
country. The press do not highlight the denial of Democratic rights by the goondas to the
common man to vote. We have a list of social legislations about Child Labour, Women battering,
Dowry prohibition, Bonded Labour, Equal wages for women and men and a host of such
legislations. What is the use of unenforceable and unimplemented legislations which merely add
to the work of Police force and create innumerable conflicting situations? Though the Press and
other champions of human rights come across umpteen number of violations but prefer to keep
silent on many occasions. The press did not highlight the violation (of the judge) which resulted
in miserable death of an industrialist who had not committed any crime or found guilty of any
offence in this country. The press do not highlight the denial of Democratic rights to the common
man of their voting rights by the goondas. The press watch every action of the police and even if
one of the one thousand actions done by police every day, turn out to be violation of Human
Rights, the press go out of proportion to criticize and magnify this one violation by police. We
can not countenance a situation when human rights of only the practitioners of crimes, terrorist
actions, robbery etc. are to be protected.*1242
(PP) The Police Mindset.
Many police functionaries, in informal conversations, justify their violations of human
rights by advancing arguments that police in crisis situations works under such great pressure
that it is impossible to abide by human right's mandates. They frown on human rights advocates
and say that they won't be doing their duty if they remain tied up with human right's niceties. The
mindset that disdains human rights principles and philosophies makes police force contemptuous

1241 Dr. P.Lakshminarayanan-Wliy Target Police Only for Human Rights Violations- a paper published in Indian
Police Journal Vol. XLIH No.2 July-December, 1996- at 9.
1242 Id at 11.
405
of court strictures and continues to make it behave in a recalcitrant manner. In face of stringent
criticism, high-ups in the force routinely, though reluctantly, order departmental inquiries, and if
the charges are not pressed hard, they justify or rationalize the otherwise illegal and unlawful
acts. The result is that human rights violators in the police force get emboldened and merrily
believe that they would not be touched whatever be the accusations of human rights
organizations and bleeding heart liberal advocates of a restrained and responsible policing.*1243
(QQ) Ambivalent Public Attitude.
Given the complex nature of crime problems and the painfully slow judicial process (that
takes years to decide cases and lets off the accused on technical grounds), the public, in their
desperation, quite often approves of the police excesses if these restore tranquillity and give hell
to those dreaded terrorists, gangsters, dacoits and professional criminals, who let loose terror in
the area and victimize thousands of unresourced citizens. The policemen who confront these
criminals and kill them in real or fake encounters earn people's appreciation. The public is not
bothered whether human rights of these criminals are respected or violated. The condoning
public attitude of police highhandedness is used as an alibi for justifying police excesses. The
crowd reaction to crime problems is often used by police force as a legitimate argument to cover
up their unlawful conduct. The ambivalent public attitude in regard to human rights violations by
the police force in crisis situations derails the human rights discourse in insurgency affected
areas, in areas where the guns of the goons thunder and in areas where the activities of the
underworld have undermined people's faith in the rule of law. This is exactly what had happened
in Punjab.*1244
(RR) The Confused Police Force.
The Indian police system faces a crisis of sorts in as much as it is unable to cope up with
pressures of work, increasing demands from politicians and public, growing criticism from the
media, and an unending stream of court verdicts of human rights violations. An undermanned
and ill-equipped force is being subjected to daily denigration for its failure to arrest the awesome
crime wave, increased lawlessness and mounting Socio-political tensions. The political and
bureaucratic masters want quick results on the law and order front and direct the police to show
instantaneous effects. They demand the police to keep the alarming law & order situations in
disturbed areas seemingly under control, or else face the consequences- transfers, suspensions

1243 S.P.Srivastava- Police and Human Rights; The Post-Independence Scenario- a paper published in Indian Police
Journal Vol. XLV No. 1 &2, January-June 1998- BPR&D, MHA, GOI, New Delhi publication, at 92.
1244 Id at 93.
406
and punishment posting. Faced with such orders, the police keep the crime figures low by non­
registering the cases and resorting to quick-fix solutions to local crime situation by resorting to
indiscriminate arrests and other oppressive and unlawful activities. It is here, and in so doing,
they are roundly criticized for committing a variety of human rights violations. They confront a
dilemma of choosing between being lawful and lawless in carrying out the wishes of their
masters. The force becomes confused and uncertain about its role, status and future. The easiest
and the most expedient course of action left with the police is to misuse the powers vested in
them. Under the compelling conditions of work, they resort to short-cut methods of arrests,
interrogations and investigations. This is how they stumble on peoples right to life and liberty
and other constitutional and legal safeguards falling under the ambit of human rights. Many
policemen at the lower levels who indeed do the fire fighting work are not fully aware of the
implications of implementing the human rights mandates in the performance of their daily
duty.*1245
(SS) Policing the Police.
"Policing the Police" is a new buzzword in all discourses on human rights violations
these days. Those who believe that the courts hold the key and the judicial verdicts will set the
police right must remember that had that been true, the Indian Police would have been
effectively inoculated against the virus of human rights violation since there exists a plethora of
fretting and frowning court verdicts. These judgements have made little impact, save
punishing/penalizing a few derelict police officials whose excesses and atrocities have been
challenged in the courts of law. It is a matter of common knowledge that many of the directions
of the courts which prohibit the use of demeaning and dehumanizing methods of arrest,
investigation, interrogation, handcuffing, custodial violence etc. have been more honoured in
breach than in observance. The incidents of human rights violations by the police continue as
ever before. The lesson is loud and clear the courts cannot effectively police the police. The task
can only be done by the high-ups in the police hierarchy. *1246

(TT) Terrorism and general amnesty to terrorism fighters: A New Debate.

" To understand terrorism, one has to experience it," *1247

said Julio Francis Ribeiro, the former Director General of Police, Punjab.
1245
Id at 93.
1246
Id at 95.
1247
J.F.Ribveiro, 'Bullet for Bullet' 1998 Viking Publications, as quoted by Anupam Gupta, " Point of Law". A
column in The Tribune, Monday, August 27,2001 at page 11
407
"Terrorists operate by causing terror— a "quantum of terror
beyond the imagination of people living out-side the area
of their operations. Innocent people are gunned down at the
most unexpected spots, at the most unexpected times, with
the sole intention of causing panic. A man- eater attacks at
random. No body knows who will be the next victim.
Hence, every body in its vicinity lives in fear. Terrorism
operated on the same principle. Ordinary citizens, even
children, can be struck down only because they happen to
be convenient targets." *1248

Anupam Gupta, an awakened Advocate describing the


situation in Punjab during terrorism day as- " Most people
had lost faith in the courts. They wanted the terrorists to be
liquidated by the police. It was the plea of desperate people,
in search of desperate solutions to an extreme situation.
Many Judges did not want the cases to come to the courts.
This is because the judges or their sons or other male
relatives were killed if they dared to reject bail applications.
Judges appointed specially to try terrorist offences were,
for much of their time, on leave or engaged in influencing
their superiors to shift out of such risky jobs. This was the
state of affairs of the criminal justice system and judicial
independence during the terrorism day in Punjab."*1249

"Politicians, responsible for causing the problem in the


first place, refrained from visiting villages and terrorist-
affected areas out of fear. Terrorists had reduced
politicians, the political process, bureaucracy,
administrative process, judiciary, and the judicial process to
irrelevancy. Every body was challenged. Every body
feared for their lives and for the lives of their progeny.
They demanded police guards and escorts even for their
children. A siege mentality prevailed. The police were
hard-pressed to meet all the demands. In this atmosphere,
those with guns ruled. Only the terrorists and the police had
guns. Hence, only they mattered. Judges, bureaucrats,
politicians can anyone who has lived through those
turbulent times deny, his hand on his heart, the truth of
these words ? *1250

Terrorism is an extra-ordinary situation. Whether State requires extra-ordinary means and


measures to fight terrorism is a debatable issue. In India extra-ordinary measures in the form of
Terrorist and Disruptive Activities Act 1988, Punjab Disturbed Area Act, 1989 and Armed

1248
Ibid.
1249
Ibid.

408
Forces Special Power Act, 1958 were enacted to deal with the menace of terrorism. Police and
Para-Military forces had to resort to extra-ordinary operations to tackle terrorism and to ensure
safety and security of the people.
When one has gun in his hand, he is bound to commit error. The error may be in his
judgment to appreciate and fight the threat correctly as well as for reasons other than merit.
There are allegations that Police, Para-Military Forces and the Army are committing atrocities
and violating human rights of individuals in the insurgency and terrorist affected areas . Similar
allegations were leveled against the Punjab Police when they were involved in the fight against
terrorism in Punjab in the last two decades of the last century. The National Fluman Rights
Commission, the Supreme Court and the High Court were approached by individuals and by
Human Rights Organizations for conducting enquiries against the highhandedness of the Punjab
Police during their fight against terrorism in Punjab. As a result of these enquiries, 600 police
personnel up to the rank of Superintendent of Police are facing trial for alleged human rights
violations during militancy in Punjab. As many as 35 of them are lodged in different Jails while
15 are undergoing imprisonment for such violations.
Frustrated by the enquiries and investigations being conducted against the policemen
alleged to have violated human rights of the individuals, the policemen raised a demand
through their association called Zinda Shaheed Police Officers' Welfare Association to grant
them 'general amnesty' for their alleged actions and operations which they had undertaken on the
orders of their superior officers in their fight against terrorism. *1251
Shri L.K.Advani, the Union Home Minister of India advocated for general amnesty to
policemen accused of violating human rights in Punjab within the legal and constitutional frame­
work of the country. Addressing the Directors General of Police & Inspectors General of Police
on Sept. 5, 2001, in their Annual Conference, the Home Minister said,
"suitable changes in the law were required to protect
security personnel, acting without malafide against terrorist
elements, were being hounded out for extraneous reasons."
*1252

The Punjab Police officials, who were facing the charges of human rights violations in an
extra-ordinary move decided to return their Gallantry Medals to the President of India in protest

1250 Ibid.
1251 The Tribune, Chandigarh, Monday, Sep. 3, 2001 at I
1252 The Tribune, Chandigarh, Thursday, Sep.6,2001 at 1
409
against their allegedly malicious prosecution. *1253 The Zinda Shaheed Police Officers'
Welfare Association decided to file a Writ Petition in the Supreme Court for the registration of
cases against the then Director General of Police, Punjab, Mr. K.P.S. Gill and those senior police
and civil officers for ordering and certifying the encounters conducted by junior police officials
as genuine during the decade-long terrorism in Punjab, for which they are facing trial in different
courts. The Association alleged that the junior police officers had fought the proxy war on
behalf of the nation. Senior police officers were never booked for the same act which had landed
the junior officers behind bar without any fault of theirs. *1254
The cops facing enquiries said,

"Just look at the irony of the state of affairs in Punjab.


While the State Government is welcoming dreaded
terrorists, including Khalistan Commando Force (KCF)
chief Wassan Singh Zaffarwal, with open arms, the cops
who fought them are facing legal battles" *1255

Bhai Ranjit Singh, former Akal Takht Jathedar said,

"there cannot be different paradigms set for the police


officials and the general public under the law of the land in
the democratic set up where the 'equality before law' is the
main principle." *1256
The policemen facing trial feel that the permission for prosecution given under section
197 Cr.P.C and not under the Punjab Disturbed Area Act, 1989 is sufficient and therefore,
amnesty should be granted to them. They perhaps, have forget mentioning in their arguments that
extra-ordinary situation require extra-ordinary measures and only extra-ordinary people can take
on challenges head on to tackle extra-ordinary situations. Shri Om Parkash Jindal, a member of
Legislative Assembly Haryana, announced from a public stage that police should gun down 50-
60 notorious bad elements in order to restore peace and law & order in the State. *1257 Senator
John Meckon of America after the terrorist attack on World Trade Centre at New York on 11th
September, 2001 said:-
" We are after you. God can bestow mercy on you, not we." *1258

1253 The Tribune, Chandigarh, Monday, Sep.3, 2001 at 1


1254The Tribune, Chandigarh, Monday, Sep.3, 2001 at 1
1255 The Hindustan Times, Chandigarh Sep. 3,2001 at 1
1256 The Indian Express, Chandigarh, August 24,2001
1257 Dainik Tribune Chandigarh, September, 4,2001
1258 The Indian Express, Chandigarh September 18,2001
George W. Bush, the President of United States of America said that United States
wanted Osama Bin Laden, the suspected mastermind of Sept. 11 terrorist attack on New York
and Washington, brought to justice, 'dead or alive' *1259 After the terrorists attack at World Trade

Centre and Pentagon in New York on 11th September, a new debate has started to review the
stand of international community regarding means to handle terrorism throughout the world. The
general atmosphere is against those who perpetrate terror or support the terrorists by any means.
United State of America had declared the attack on World Trade Centre a war. Every
thing is legal in war. How far the forces involved in fighting terrorism through out the world can
be pardoned for violating of human rights of the public is to be discussed and debated at length.
From the on going debate on this issue new principles of 'Terrorist Jurisprudence* would
emerg in the 21st century. Until such time ' Terrorist Jurisprudence' takes a concrete and definite
legal shape, the auther feels that the stand of the Chinese Government taken on the issue appears
to be rational and appropriate.
• Ail fight against terrorism, including international terrorism should be fought within the legal
and constitutional frame work of the law of the land and international law.
• Innocent people should not be put to harm in fight against terrorism.
• International treaties and law should be followed in dealing with international terrorism.

1259 The Tribune, Chandigarh, Sep. 19,2001


411