Custodial Violence means torture in police custody. However, the word “torture” has not been defined in the Constitution or in other Penal Laws of India. The custodial violence by police over the victim is essentially an instrument to impose the will of the “strong” over the “weak” by suffering. It is a serious violation of human dignity which can destroy, to a very large extent, the personality of any individual.
Custodial Violence ruins the victim both physically and mentally. They remain in a state of perpetual fear and horror whenever they remember the atrocities they survived in the custody of policy. Haunted by the trauma they are probably never able to lead a normal life again.
Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the Executive should not only be derived from law but also that they should be limited by law. These violations are committed under the shields of “uniform” and “authority” between the four walls of a police station, lock-up and prison, where the victims are totally helpless. The quality of a nation’s civilization can be largely measured by the methods it uses in enforcing criminal law. It is further aggravated by the fact that persons who are supposed to be protectors of citizens, themselves commit violations of human rights by practicing custodial violence.
The devotional and ethical services rendered by the police, as a social service institution is undoubtedly laudable, but due to certain unscrupulous activities of a handful of policemen, the esteemed image of police are tarnished. Public criticism varies from its alleged overzealousness and brutalization at one end of the spectrum, to ineffectiveness in controlling crime and criminals at the other-not surprising in the face of mounting evidence of violence and crime.
Not surprisingly, the police tend to be the handmaiden of the political rulers of the day Instead of being an instrument to enforce the rule of law; it is increasingly seen as a pliable tool in the hands of unscrupulous politicians. The Indian Police has a long tradition of being a partisan instrument in the hands of the rulers since colonial times. At the heart of the problem is the fact that a section of police officers instead of fighting crime and criminals decided to join them, because doing so was more profitable and less risky. The criminalisation of politics has affected police performance more than the performance of any other State institution.
Though international laws criminalize custodial violence, it enjoys unprecedented license in India. The methods of custodial violence adopted by government officers involve gross forms of inhumanity. The allegations of incompetence, corruption, brutalization, and being a violator rather than an enforcer of the rule of law, have all been voiced before against the police force. But the deteriorating law and order situation and an increasing sense of insecurity in the country have lent a new edge to these allegations.
The present system of administrative and political supervision over the police suffers from many distortions. The amendment in Criminal Procedure Code in 1973, the so-called magisterial control has lost its original motivation after the separation of the Executive from the Judiciary. complete control has now passed on to political rulers.
Hence there is an urgent need to examine the issue in depth to develop criminal jurisprudence and also to make the police officers accountable for their acts and omissions.
Curbing Custodial Violence
The existing mechanisms of accountability need to be refined and enlarged to ensure that the police do not resort to custodial violence. There is need for strengthening the social, political and administrative mechanisms as well as for the creation of new ones to enforce individual as well as organizational accountability in the police.
In the conceptual dimension too, there are many shortcomings. The prime one already identified is the Indian Police Act 1861. A committee was constituted under the chairmanship of Soli Sorabji comprising eminent jurists, experienced civil servants and distinguished police officers to replace the Police Act of 1861 with a law that reflects the changing role and responsibilities of the police and the emerging challenges before it. The action on the Model Police Act 2006 drafted by the committee has fallen prey to dalliance between the Centre and the States. The new Police Act espionage a vision in which the police serve to protect rather than impede freedoms, uphold democratic processes, respect democratic institutions, promote access to justice.
Transparency of action and accountability are two possible safeguards to prevent any abuse of the power to arrest a citizen. In D.K. Basu’s case, the Supreme Court laid down certain requirements to be followed in all cases of arrest or detention. These must be strictly followed by all agencies.
The importance of curbing custodial violence gains momentum in light of the blatant abuse suffered by innocent victims at the hands of civil and defence forces. One way of curbing custodial violence is to make such activity on the part of police officers a crime punishable either judicially or departmentally. Section 7 of the Police Act 1861 empowers the higher police officers to “dismiss, suspend or reduce any officer of the subordinate ranks whom they shall think remiss or negligent in discharge of his duty or unfit for the same.” But experience shows that this sanction has not proved effective.
In RamSagar’s case, the Apex Court asserted, “…we would like to interfere upon the government, the need to amend the law appropriately so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reasons of paucity or absence of evidence…..”
To convert the police into a friendly and accountable force, it is essential that its role be completely transformed. Instead of a willing tool in the hands of the rulers, it has to become a servant of the law charged with the responsibility of protection of life and property of citizens. And it cannot
perform this role by taking recourse to third-degree torture or other methods of custodial violence. Policemen must treat their job as a profession and not as an instrument of exercising power.
Only a well-trained, well-equipped and a motivated police force will be able to perform this role. The effective performance of this role will require not only structural changes in police organization, but also major reworking of the laws, procedures and police rules. Flowing from this is the need for training. The proverbial bane of long duty hours, extensive paper work and shortage of strength are no doubt impediments which hyphenate the culture of short term routine rather than building capabilities. E-policing is a natural corollary of e-governance. Avoiding duplication is another measure to curb custodial violence. Vigilance departments in various public and private organizations can be empowered for initial FIR, which can be followed up once prima facie case has been established.
Despite the fact that we have detailed provisions to protect and safeguard the human rights of the people, we see that a steady process of devaluation of human dignity and personality is irresistibly advancing and brutal betrayal of those basic rights, which are enshrined in International Bill of Human Rights, becomes a common scenario. The errant behaviour of police betrays scant respect for life and liberty of innocent citizens and becomes a matter of grave concern.
Increasing and excessive workload of the police is, no doubt, a major factor contributing to this situation. Third degree is generally believed to be a short-cut method of investigation by the police. Inability to cope with the rising crime rate and hierarchical pressures from above to produce quick results often force police to practice third-degree methods. Those subjected to such violent methods often breakdown and confess to crimes they may not have committed.
There is positive trend of the judicial policy for compensating victims of custodial violence. But increasing use of compensation remedy may also give an impression that the State is ready to compensate if it can purchase the right to continue to inflict Constitutional deprivations on its citizens. The question remains about the prosecution of those officials who have committed the crime.
There are numerous provisions in the Constitution of India and also in other laws, but unfortunately most of the provisions have remained paper tigers without teeth. It is generally the poor, disadvantaged & weaker sections of the society who are victims of custodial crimes because there is no one to care for them & to protect them. Unless the law of the land is upheld against the guilty law enforcement personnel, custodial violence will continue to rise.
However, there is a new emerging world legal order. The Indian experiment in enacting the protection of Human Rights Act is a hopeful start. The human rights jurisprudence is gaining judicial reverence in India especially where life and liberty are violated by state violence. Let us hope that in coming years, custodial violence would decline until altogether eliminated. It is therefore, for the government and the legislature to give a serious thought to the recommendations of the Law Commission (113th Report) and National Human Rights Commission (1998) and bring about appropriate changes in the law both to curb custodial violence & also to ensure that the guilty may not escape unpunished. If human dignity survives, the future has hope.