Custodial violence is a very grim and unfortunate reality in India. According to a report by National Campaign against Torture (NCAT), out of 125 deaths in police custody, 93 (74.4%) died due to torture or violence as alleged by victims’ family members. Although there are many legal provisions against violence in custody, in reality, the police have unfettered power over those who are in custody or imprisoned. Instances of prosecution and conviction of police officers for custodial violence is extremely less compared to the number of deaths that happen due to police brutality. In a National Crimes Report Bureau (NCRB) it is seen that in the year 2018, there have been 89 registered cases of human rights violation against the police which include torture and custodial death, and the number of police officers convicted is 0. According to the same source, only 3 out of 70 custodial deaths have been attributed to police brutality, and the rest are mostly reported as suicides or deaths in the hospital during treatment. The number itself speaks of the necessity for an outside body or committee who must investigate each custodial death.
Whether to extract a confession, or out of a sense of duty to discipline the arrested/imprisoned, or as a punishment, or out of sheer frustration and a heady feeling of power, whatever the reason might be, inflicting torture and violence on those who are in custody is a norm and happen routinely as a matter of fact.
Article 21 of the Indian Constitution protects the Right to life and Right to Personal Liberty’. The Supreme Court of India in the landmark judgment of Sunil Batra vs Delhi Administrationhas held that the Fundamental Right of Article 21 is available even to prisoners. The mere reason of being convicted does not deprive them of basic human rights even though he may not have the right Right to move freely. It was held in Kharak Singh vs State of Uttar Pradesh that Right to life means more than mere animal existence. In Maneka Gandhi vs Union of India, it was established that a person would not be deprived of the RightRight to personal liberty except by “due procedure of law.” Therefore violence by police, while the prisoner is in custody, is a direct violation of Article 21 as established by the Supreme Court of India. Whatever the crime of a person might be, the police cannot take it upon themselves to punish the individual. It is only by due process of law that punishment can be meted out to a convict.
Custodial violence is also a way to cover up the inefficiency of the police when they torture an innocent person to confess either under pressure to solve the case or out of inability or unwillingness to catch the real perpetrator of the crime as narrated by M. Chandra Kumar, a survivor of police brutality who had been tortured into confessing to a crime he did not commit.
Custodial rape is another form of violence that has come to the fore in many cases like in Tukaram vs State of Maharashtra, popularly known as the ‘Mathura rape case’. The policemen responsible for custodial rape were not convicted, but it was this case that eventually led the legislature to amend rape laws.
In the landmark judgment of D. K. Basu vs State of West Bengal, the Supreme Court of India said that “custodial death is perhaps one of the worst crimes in a civilized society” and use of torture is held to be impermissible and violative of the fundamental RightRight to life enshrined in Article 21. Many guidelines were also formed to prevent custodial violence including upholding of Article 22(2) which say that every arrested person will be produced before the nearest magistrate within twenty-four hours of arrest, which is also enshrined in S.57 of The Code of Criminal Procedure, 1973 (Cr.P.C.). S. 41 of Cr.P.C. was amended in 2009 to include safeguards like the procedure of arrest and duties of the officer making an arrest. Even in The Indian Evidence Act, 1872, the possibility of torture in police custody is recognized in Ss.24, 25 and 26 which lay down provisions regarding confession made by an accused. It is mentioned that no confession made to a police officer will be admissible in Court (S.25). To stop the malpractice of extracting confession by force certain provisions which deal specifically about the custodial crime is also available in The Indian Penal Code (IPC) such as S. 330 (Voluntarily causing hurt to extort confession, or to compel restoration of property), S. 331 (Voluntarily causing grievous hurt to extort confession, or to compel restoration of property), S. 376(2) (Custodial Rape) and S. 348 (Wrongful confinement to extort confession, or compel restoration of property).
Despite there being statutory laws in place that should have been a deterrent to custodial violence, the reality remains that custodial violence is still rampant to this day. The reason could be the lack of transparency in prisons, excessive power in the hands of police officers, little or no inspection or scrutiny of police custody and inaction against guilty police officers. According to the National Human Rights Commission (NHRC), suppression of cases and manipulation of reports play a huge role in the failure to end custodial violence.
It is imperative to put a lid on custodial violence. This black dot on India’s human rights landscape needs to be removed. Strong legislation that will hold police officers accountable and impartial inquiry into each alleged case of violence is necessary. Also, it is important to educate and sensitize the police about their responsibilities and have strict enforcement of guidelines.
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