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Introduction

Complaints of custodial violence are increasing day by day. Police in the pressure of
media and public are using hazardous tortures and harassing methods to know the
truth. Custodial violence is prevalent all over the world. The methods change with
place to place. The problem is also prevalent in India. In police custody the torture is
that much torturous that the prisoners chose the path of suicide. In India suicides in
custody of police increase with alarming rate. The police become arrogant to the
limit that they do not file FIR against the police personnel. They, by doing this are
supporting the wrongs. The police is not taking action on the complaint of the
relatives of the exploited prisoners. Some of the convicted persons in cases are
innocent too. They are the sufferer of vengeance of police officers. But the rising
consciousness of the community, role of press, human rights activists, NGOs have
resulted in increasing the attention to the custodial violence that also results in
custodial deaths. These have the great role in saving the human rights of the
prisoners.

In recent years, third degree torture and deaths have become an intrinsic part of
police investigations and the injury inflicted on the prisoners is sometimes
unbearable. Ofc course there is no doubt that police that police has contributed a lot
towards the maintenance of public peace and order, in safeguarding the life and
liberty and freedoms of its citizens but this does not give them the license to inflict
injuries to the people in their custody and violate their fundamental rights.

In this project we will discuss what is the Custodial Violence or Custodial Torture?
What are the cause of Custodial Violence? Why Custodial Violence? What are the
guidelines issued by supreme court on Custodial violence? International
Conventions on torture. What is the say of National Human Rights Commission on
Custodial Violence.
Custodial Violence and Human Rights

Custodial violence

Custodial violence refers to the violence in police custody and judicial custody.
Besides death, rape and torture are two other forms of custodial violence.

As per the oxford dictionary Torture means the action or practice of inflicting severe
pain on someone as a punishment or in order to force them to do or say something.1

Torture is a brutal act which has an adverse impact on the body and mind of the
victim. It has been prevalent in world since ancient times in diverse forms through
not limited to sleepless nights, electric tremors, beatings, hanging by limbs, forceful
bogus executions and sexual attack especially rape to create a fear, extract
confessions, pose power. Practicing torture in any form made a living being an
animal. The torture affects the mentality of a person. The mentality of the human
being changed with the drastic effect. The persons outlook toward the whole world is
changed to a degraded state.

The term custody is neither defined in procedural laws nor in the substantive laws.
But it means protective care.2 According to the dictionary meaning custody is the
legal right or duty to take care of somebody. It is the state of being guarded or kept
in prison temporarily, especially by the police. Police custody does not necessarily
mean formal arrest. It may also include some kind of surveillance and restriction on
the movement of the concerned by the police. Custody means a state of affair in
which the accused be said to have come into the hands of the police or have been
under some form of police surveillance or restriction. When a judge grants custody
over an offender to the correctional authority, he is at once declaring that the
correctional authority has power over the offender and that this must be used to
promote the health of the offender. The word custody implies guardianship and
protective care. Even when applied to indicate arrest or incarceration, it does not
carry any sinister symptoms of violence during custody. No civilized law postulates
custodial cruelty – an inhuman trait that springs out of a perverse desire to cause
suffering when there is no possibility of any retaliation, a senseless exhibition of

1
www.oxforddictionaries .com, visited on 10 august 2018.
2
www.oxforddictionaries.com visited on 10 august 2018
superiority and physical power over the one who is overpowered or a collective
wrath of hypocritical thinking.

Custodial violence means any kind of violence occurring in the custody whether
legal or not, which is not warranted by the law of the land. Violence may be subtle or
extreme like abusing, emotional or physical violence, thrashing and beating, rape or
even death. The nature of custody may be judicial, police or under any institution
obliged to take care of the inmates like hospitals, homes etc. or may be in the hands
of terrorist organizations or armed groups or insurgents etc. Custodial violence
means torture in police or other kind of custody.

Human Rights

The expression ‘Human Rights’ has not been specifically defined in any declaration
or covenant of the United Nations or covenant of the united nations or in the
constitution of India. But these are generally understood as the rights which are
inherent in our nature and without which we can’t live as human beings. We get
these rights by merely being born as human beings. Recognition of these natural
rights of human beings is as ancient as the human civilization. The human rights
trace back to the Magna Carta (1215-AD), The petition of Rights (1672 AD) and the
Bill of Rights (1672 AD) and the Bill of Rights of Man (1789) by the French national
assembly influenced the framing of the constitution of the United states of America
and in the 19 century these rights became the basic principles of the constitutional
law of modern civilized states.

The Universal Declaration of Human Rights was unanimously adopted and


proclaimed by the united nations General Assembly on December 10, 1948. For
giving legal form to the provisions, the Universal, Social and Cultural Rights came
into force on January 3, 1976 and the International Covenant on Civil and political
Rights came into force in March 23, 1976. India was on of the signatories of the
Universal Declaration of Human Rights and acceded to the two international
covenants by depositing the Instrument of Accession on April 10, 1979. 3

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Article on concept of custodial violence (www.shodhganga.inflibnet.ac.in) visited on 11 August 2018
Why custodial violence?

From media to public, everyone is aware of the inhumane treatment done to


prisoners by the police personnel. each happening has its cause. So, custodial
torture is also done with some specific reasons. We cannot assume a person can
ill treat other without any reason. This problem of custodial violence is increasing
day by day, it is not abating after much concern by the international communities.

The rate of literacy is increasing and people are becoming aware of their rights day
by day. But the main arm which deals with prisoners in custody is police. If the
police is not understanding the condition of prisoners then how can the problem
of custodial violence can be solved? Some cause of custodial violence are given
below4

1.Work Pressure

The police in India has to perform a difficult task in view of the deteriorating law
and order situation, riots, political turmoil, student unrest, terrorist activities,
increasing incidence of bribery, corruption, tax evasion, violation of fiscal laws,
smuggling and money laundering. A very important reason for continuing brutal
behavior by the police is pressure. The sources of pressure are several basically
they relate to performance or output beyond the narrow confines of police role,
despite constraints on adequate role performance.

2.Greed for Money

This Is the most hateful reason for custodial torture and one that seems to be on
the increase. At the level of police station. A number of policeman use brutality to
extract money from suspects and innocent persons. The legal situation and the
nature of evidence facilitate the process of making SHO very powerful and giving
what he does an air of finality, which gives him the unintended power to extract
money and escape the corrective process of supervision. The courts give the
enormous importance to the fir and what kind of fir is written depends on
policeman on duty. Investigating a dacoity case, he can always threaten to
implicate an honest man, even beat him up or simply keep him hanging about the
police station until he gives him money. Supervision takes place after the fact and
while an attempt can be made to punish the police man concerned, it can seldom
undo the wrong done, recover the evidence that has deteriorated. Each and every
person gives the priority of money they want money anyway and this is mental
condition of our primitive to higher society. For that in police system made chains
from minister to police. now a day police machinery a means for producing money

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www.legalservicesIndia .com custodial violence in india
for officers and minister. In each police station have some cost, if any police ready
to pay such amount they got the post at that particular location.

3.Punitive Violence

There are few honest but misguided policemen who believe in not letting the
criminal get away it. It is genuinely believed by them that except for a sound
beating, there is no other way of controlling criminals.

The using for third degree treatment is born out of wrong convictions. There is
cross section of the people and the police and a sizeable one at that, which
believes in the efficacy of third degree methods alone in dealing with criminals,
particularly hardened ones they say that a jail term is no more a deterrent to the
criminals. They remain happy there, particularly as conditions outside and the only
thing they are scared of beating by the police. It is not unusual to find rotaries
against third degree methods pleading for use of police methods for working out a
case in which they happen to be interested.

The whole tenor of the criminal justice system is punitive, hence a subsystem of it
expected to be of service to the people cannot so operate. On account of the
constraints of the system, the nature of the police function also becomes punitive,
and many policemen see their brutality as extension of the punitive role of the
organization.

4.Lack of Proper Training

Lack of proper training to the police officials, often result in use of third degree
methods. The utterly inadequate training given to constables, the general absence
of any attention to the necessity for keeping temper, being civil and respectful of
the public, avoiding brutality or unnecessary harshness, are the factors that which
leads to violence. Gore committee on police training 1972, was of is the view that
one of the objectives of training should be to inculcate the right attitude towards the
public which consists is never forgetting that the civil servant is the servant and not
the master of the community. However, till date no adequate training with the
objective mentioned, has yet been provided to the police. Police should given
proper training which should include a separate course to impart them knowledge
about the human rights and that they are here to protect the human rights and not
the infringe them.

5.There are some other factors such as political and bureaucratic influence and
interference, collusion with rich and influential people and dancing to their tune.

6. They feel immune to the fact that whatever they will do wont be questioned.
7.Lack of effective supervision and inspection of police station by superiors
officers.

8. Delay in trial gives more time to interrogate.

9.Lack of time for the investigation. This make police officer uder pressure and that
leads to frustration.

What all Human Rights are available to prisoners.

Prisoners are also entitled to rights to some extent as a normal human being when
they are behind the prison. These rights are provided under the Constitution of India,
the Prisons Act, 1894 etc. Prisoners are persons and have some rights and do not
lose their basic constitutional rights. In the case of State of A.P. v. Challa
Ramkrishna Reddy 5 it was held that a prisoner is entitled to all his fundamental
rights unless his liberty has been constitutionally curtailed. The Supreme Court has
emphasized that a prisoner, whether a convict, under-trial or detenu, does not cease
to be a human being and, while lodged in jail, he enjoys all his fundamental rights
guaranteed by the Constitution of India including the right to life guaranteed by the
Constitution. Even a person is convicted and deprived of his liberty in accordance
with the procedure established by law; a prisoner still retains the residue of
constitutional rights.

Prisoner’s Rights under the Constitution of India

Constitution of India does not expressly provide the provisions related to the
prisoners’ rights but in the Articles 14, 19 and 21 there are some landmark cases
which have been decided. These cases will be talked in case study .
Article 14 of the Constitution of India says that the State shall not deny to any person
equality before law or the equal protection of laws within the territory of India. Thus
Article 14 contemplated that like should be treated alike, and also provided the
concept of reasonable classification. This article is very useful guide and basis for
the prison authorities to determine various categories of prisoners and their
classifications with the object of reformation.

Article 19 of the Constitution of India guarantees six freedoms to the all citizens of
India. Among these freedoms certain freedoms cannot enjoyed by the prisoners
because of the very nature of these freedoms. But the “freedom of speech and
expression” and “freedom to become member of an association”

Article 21 of the Constitution of India says that No person shall be deprived of his life
or personal liberty except according to procedure established by law. This Article
stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the
Indian Constitution it is clear that it is available not only for free people but also to
those people behind the prison. Following are the rights of prisoners which are
implicitly provided under the Article 21 of the Constitution of India:

 Right of inmates of protective homes,


 Right to free legal aid,
 Right to speedy trial,
 Right against cruel and unusual punishment,
 Right to fair trial,
 Right against custodial violence and death in police lock-ups or
encounters,
 Right to live with human dignity,

Apart from these rights of prisoners Constitution of India also provides following
rights to the prisoners:

 Right to meet friends and consult lawyer,


 Rights against solitary confinement, handcuffing & bar fetters and
protection from torture,
 Right to reasonable wages in prison.6

Prisoner’s Rights under the Prisons Act, 1894

Prisons Act, of 1894 is the first legislation regarding prison regulation in India. This
Act mainly focus on reformation of prisoners in connection with the rights of
prisoners. Following Sections of the Prisons Act, 1894 are related with the
reformation of prisoners:

 Accommodation and sanitary conditions for prisoners,


 Provision for the shelter and safe custody of the excess number of
prisoners who cannot be safely kept in any prison,
 Provisions relating to the examination of prisoners by qualified Medical
Officer,
 Provisions relating to separation of prisoners, containing female and male
prisoners, civil and criminal prisoners and convicted and undertrial
prisoners,
 Provisions relating to treatment of undertrials, civil prisoners, parole and
temporary release of prisoners. 7

Above mentioned are the decisions of our Indian courts. These are the rights which
are given to prisoners. It shows our Constitution is no biased and it explicitly or
implicitly provide the human rights to the prisoners too. Indian Judiciary also have
sympathy with the criminals because of the ill treatment done by the police to the
prisoners. Because as we know that criminals were not born, they are made due to
unnatural happenings. Circumstances made them criminals. The Judges focuses on
the reformation of criminals especially who have done this act for first time.
Sometime the inhumane treatment done by the police official to the innocent person
made them criminals. They are also human after that they are criminal.

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These following are the summay of caese decided by honourable supreme court www.legaldesire.com
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www.legaldesire.com rights available to prisoners.
International laws and conventions on torture
Convention against Torture and other cruel, inhuman or degrading treatment or
punishment (1984):

Torture is widely spread across all continents but the methods adopted by the police
personnel are different .Some common forms of physical and psychological torture
are: isolation, falanga (blows of the soles of the feet ) ,electric shocks, suffocation(for
instance, victim head forced into water filled with excrements, pulling out teeth ,
burning by cigarettes or red hot iron bars, amputation or pulled off other parts of
body, pulling off nails, Sexual torture, mock execution, letting detained torture each
other, pharmacological torture. Torture is done to criminals, innocent persons
trapped by law enforcement agencies, spies, prisoners of wars, refugees, opposition
leaders, journalists, ethnic minority leaders and others, including their family
members, both adult and children. Torture is performed for putting pressure on their
parents or force them to beg. Torture is also used often as a political weapon8.

The Universal Declaration of Human rights under Article 5 and International


Covenant on Civil and Political Rights under Article 7 had provided that no one
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment, but neither the term torture is defined therein or it was elaborated that
the torture and other inhuman ir degrading treatment or punishment shall be
prevented .The General Assembly on December 9,1975 adopted a Declaration on
the protection of All persons from being subjected to Torture and other cruel,
inhuman or degrading treatment or punishment. In order to make more effective
the struggle against torture a Convention was adopted by General Assembly, on
December 10,1984 which is known as The Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment. The Convention came into
force on June 26,1987 when it was ratified by 20 states. As on February 3, 2016,
the convention had 158 states parties.

Definition of Torture according to international convention

The term torture has been defined under Article 1 of the convention as ‘any act by
which sever pain or suffering, whether physical or mental, is intentionally inflicted

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International law and human rights Dr.H.O. Agrawal
on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or, other person acting in official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions. Torture is
an atrocious violation of human dignity. It dehumanizes both the victim and the
perpetrator. It is a crime against humanity.9

NHRC And Protection Against Custodial Violence

The National Human Rights Commission is an expression of India’s concern for


the protection and promotion of human rights. It came into being on 12 October,
1993. The NHRC of India is an autonomous public body constituted under the
Protection of Human Rights Ordinance of 28 September 1993. It was given a
statutory basis by the Protection of Human Rights Act, 1993. The NHRC is the
national human rights institution, responsible for the protection and promotion of
human rights, defined by the Act as ‘rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants’. ‘Human Rights’ means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the constitution or embodied in
the International covenants and enforceable by courts in India. All human beings
are born free and equal in dignity and rights known as Human rights, as commonly
understood, are the rights that every human being is entitled to enjoy freely
irrespective of his religion, race, caste, sex and nationality, etc. Human right means
different things to different people. Human Rights are not static. New rights are
recognized and enforced from time to time. Only persons fully conversant with the
latest development about the expanding horizons of Human Rights can promote
their awareness better than others. NHRC performs functions like proactively or
reactively inquiring into violations of human rights or negligence in the prevention
of such violation by a public servant; by leave of the court, to intervene in court
proceeding relating to human rights to visit any jail or other institution under the
control of the State Government, where persons are detained or lodged for
purposes of treatment, reformation or protection, for the study of the living
conditions of the inmates and make recommendations; review the safeguards
provided by or under the Constitution or any law for the time being in force for the
protection of human rights and recommend measures for their effective

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Convention against Torture and other cruel, inhuman or degrading treatment or punishment (1984)
implementation; review the factors, including acts of terrorism that inhibit the
enjoyment of human rights and recommend appropriate remedial measures; to
study treaties 73 and other international instruments on human rights and make
recommendations for their effective implementation; undertake and promote
research in the field of human rights; engage in human rights education among
various sections of society and promote awareness of the safeguards available for
the protection of these rights through publications, the media, seminars and other
available means; encourage the efforts of NGOs and institutions working in the
field of human rights; such other function as it may consider it necessary for the
protection of human rights. Under the NHRC, the data collection system on human
rights has been streamlined and now it is mandatory for all district magistrates and
deputy superintendent of police to report directly to the NHRC about the custodial
deaths whether natural or unnatural. NHRC is playing a positive role in bringing to
light the cases of custodial crimes, punishing the offenders and for giving
compensation to the victims and their families. Death due to torture in custody is
murder which should be punishable as such offence under the Indian Penal Code.
Corruption, irresponsibility, groups and snobbery are the building blocks of
custodial crimes. Wrongful detention without formal arrest, negligence with regard
to medication and food for the suspects while in custody are the main motives of
mental torture to persons in custody. The right not to be tortured is non-negotiable.
It is important to guard people from excesses by the State. If upgrading technique
is needed to ensure law and order, it cannot find its solution in degrading human
beings.10

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Shodhganga.com NHRC on Custodial Violence.
Conclusion

Human rights and custodial torture are both the antonyms of each other. The police
has the responsibility of the person who is in their custody. How one can think to
exploit a person, who is in their hands, whose responsibility is given to them. How
we can assume the situation one who has taken the oath of the safety of others is
the one who is exploiting them. Police understands that their torture would lead to
know the reason of committing the crime. The torture by the police is very grievous
in nature. The police must have trained with psychological and sociological methods
to understand the criminals and their behavior. The police must understand the
circumstances which made the human being to a serious killer. No one is born with
the Tag of criminal, these are the conditions which lead a man to become a criminal.
There are persons who are doing a crime for the first time in life, these persons can
be saved by the police. The police can be a light which shows them the right path.
One must have the patience to know the truth. The police should not use the 3 rd
degree torture. They should ask from the criminal by using scientific methods. The
violence should also be used but in a limited amount. Without the orders of the court
the police must not use other lethal treatment with the criminals. The time is now that
the government should made some stringent laws to curb these tortures by the
police to the criminals. They are also human being and they also must be treated as
human beings.