UNIT-3 CUSTODIAL VIOLENCE

4.1 Introduction
4.2 Objectives
4.3 Custodial Violence and Torture

4.3.1 Custodial Violence

4 3.2 Police Custody

4.3.3 Torture

4.4 Police duty and Custodial Violance

4.4.1 Police Custodial violations

4.4.2 The Justification given by the Police

4.4.3 Death in Police Custody

4.4.4 Challenges before Police and Human Rights Norms
4.4.5 Some issues of police reforms
4.5 Torture in custody and Legal Provisions
4.5.1 Constitution of Indian and Rights for the protection of individuals under arrest or
detention
4.5.2 International Human Rights Provisions against Torture
4.5.3 Violations of ICCPR Provisions
BOX 1 Custodial Violence and Third Degree

BOX2 Supreme Court's Directives for avoidance of Custodial Crimes

BOX 3 WRIT OF HABEAS CORPUS
4.6 Summary
4.7 Terminal Questions
4.8 Answers and Hints
4.9 Referrence and Suggested Readings
 CUSTODIAL VIOLENCE

4.1 Introduction
The custody of a person is procured under the criminal law in order to advance the crimianl justice
process against him as the person concerned might be found as a suspect in some criminal offence.
The cutody might also be procured for crime prevention and due to some other reasons about which
a clear provision is given in the law. The law gives specific powers to the police in case of arrest of
a person and lays out norms which should be followed in case of arrest and detention. The human
rights of individuals under custody are of prime concern because the person under custody becomes
highly vulnerable to the abuse of power and authority of the individuals who are in the role of
criminal justice functionaries. The police comes under frequent criticism for the violations of
individual freedoms and abuse of authority and infliction of physical pain and psychological harms
to those under custody. The police is accused of violations and voilence in custody as it is not
having any authority under law to use physical force on persons under custody. Torture is an
extereme form of the use of coercive force and infliction of pain to persons under custody which
amounts to an absolute abuse of power which draws severe legal sanctions not only under domestic
law but also under the international human rights law. The Custodial Violence in case of police has
to be addressed most proactively because the police represents the State and the state represents the
society. Therefore abuse of authority by the police would amount to the breaking of law by the
government which would writ contempt of law invite anarchy. Its primarily due to this reason that
human right law addresses this issue with great responsibility This unit addresses the custodial
violence as an important area of police abuse of authority and discusses limitations to police powers
through human rights.

4.2 Objectives
After reading this Unit you would be able to-

• Define custodial violence and torture

• Evaluate the role and authority of police in arrest detention and custody

• Pointout the limitations to the powers and authority of the police

• Understand the human rights and legal provisions about custodial violence.
4.3 Custodial Violence and Torture

4.3.1 Custodial Violence

Prisoners and persons in custody have human rights and custodial violence is the confession of the
failure to do justice to living man. For a prisoner, all fundamental rights are an enforceable reality,
though restricted by the fact of imprisonment. The issue of custodial violance is given prime
importance in context of criminal justice administration becuase it concerns with the infringment of
the natural rights of ecah individual to be free. Since police custody involves infringment of the
freedom of movement there is a need to be particular that the person under custody does not get
into a situation where his other rights may also get infringed. This arises from a belief system that
the convicts are also human beings and that the purpose of imprisonment is to reform them rather
than to make them hardened criminals. No doubt, the police plays vital role in safeguarding our life,
liberty and freedoms. But the police must act properly, showing fall respect to the human rights of
the people, remembering that they are also beneath the law, not above it and can be held liable for
the violation of human rights. In fact, what the society needs is well led, well trained and well
disciplined force of police which help in protecting and promoting human rights.

4.3.2 Police Custody

Full implications of "custodial abuse," can be seen by appreciating the meaning of the term
"custody" and also noticing the difference between "arrest" and "custody" The Code of Criminal
Procedure, 1973, by section 41 prescribes the circumstances in which a police officer may arrest a
person without a warrant. However, no definition of the term "arrest" is to be found in the Code.
Even then, it can be seen that the term "arrest" has a narrower ambit when compared to the term
"custody" Nevertheless, it is will settled that the custody of the police as contemplated by section
27 of the Indian Evidence Act, need to be a formal arrest but includes such state of affairs in which
the accused can be said to have come into the hands of a police officer or can be said to have been
under some sort of surveillance or restriction.

Further more, the term "police custody" referred to in section 26 of the Indian Evidence Act can't be
construed in a strict or literal sense, as the term "police custody" would be that "as soon as an
accused or suspected person comes into the hands of a police officer, he is, in the absence of clear
and unmistakable evidence to the contrary, no longer at liberty and is therefore in custody within
the meaning of section 26 of the Evidence Act. Even indirect control over the movements of
suspects by the police would amount to police custody.
4.3.3 Torture

Torture is generally understood as systematic and deliberate infliction of acute pain in any form by
one person on another in order to accomplish a desired purpose. The law enforcement agencies and
the armed forces are generally accused of torture. According to interantional law any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted 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 an offical capacity." In addition to state-sponsored torture,
individuals or groups may inflict torture on others for similar reasons. Tortures may even derive
sadistic gratification by inflicting torture.

4.3.4 Police duty and Custodial Violance

Police have a duty to protect the legitimate interests of the community by ensuring the safety and
security of the people. In doing so, they will have to exert and enforce the authority of law strictly
in accordance with the prescribed legal directions. At the same time, in achieving this delicate task,
the police will also have to uphold the rights of all citizens including those whose conduct come to
their adverse notice as a part of that primary duty cast on them. A healthy balance is needed
between the powers of the police to investigate offences as well as to bring offenders before the law
and the safeguards necessary for the protection of the legal rights of accused or suspected persons.

The penal power of the State in the maintenance and enforcement of law ands order as well as in
the task of prevention of crime is exercised through its administrative apparatus of the police
organisation. The code of Criminal Procedure, 1973, the Indian Penal Code and the Police Act(s)
have, by law prescribed various tasks to be fulfilled by the law enforcing agencies. In order to
faithfully discharge those legal obligations the police will have to exercise the authority of law in
pursuit of the constitutionally mandated legal goals. Apparently a certain amount of use of force,
minimum necessary in each case, is taken note of and provided for in these procedural and
substantive criminal enactments and also complimentary arrangements contemplated in other penal
laws as well. However, the misuse or abuse of that authority or the perversion of the legally
accorded power by the law enforcers renders such issue beyond the pale of rule of law.

4.4 Custodial violations by Police

Custodial torture has become a common phenomenon and a routine police practice of interrogation
these days. It causes momentary public uproar but once the incident fades away from the public
everything is forgotten.

The term 'torture' with reference to police custody implies infliction of severe pain or suffering,
whether physical or mental, intentionally for the purpose of extracting from the person who is in
police custody, or a third person, information or confession or coercing or intimidating him or a
third person to divulge the truth. It does not, however, include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. Torture has not been defined in the Constitution or any
other penal laws. Torture of a human being by another human being is essentially an instrument to
impose the will of the strong over the weak by suffering. The word 'torture' today has become
synonymous with the darker side of human civilization and custodial violence including torture and
death in the lock-up strikes a blow at the rule of law.

One of the causes of custodial deaths is the tremendous pressure on the police to detect cases
whenever there is a surge in crime, and particularly heinous crime. It is the police who are singled
out for blame. Unfortunately many officers opt for rough and ready method for quick results. Sub
ordinate officers who are entrusted with the job of applying third degree methods over do it.
Custodial death often occurs not because of an intention to kill the victim, but as a result of
excessive torture or when quite unknowingly, the officer injures some weak organ of the victim.

4.4.1The Justification given by the Police

The police officials justify custodial torture as a 'necessary evil' to keep growing crime-rate under
control. They justify and support use of violence and third degree methods against apprehends
criminals on the following grounds:-

1. Professional and hardened criminals understand the language of violence only. They
would not tell the truth unless sternly dealt with.

2. When these offenders have no respect and regard for the rights of innocent persons i.e.
victims, why should the police respect their rights?

3. If police deals with offenders politely and gently, no one would ever be prosecuted for
his crime. Thus, from the practical point of view, rough and tough treatment with the
criminals is inevitable.

Whatever may be the justification for the institutionalization of custodial torture, the developing
human rights jurisprudence demands that this dangerous practice should be eliminated completely.

It is generally difficult in cases of death in police custody to secure evidence against policemen
responsible for resorting to third degree methods since they are in charge of police station records
which they do not find difficulty to manipulate. It is only in few cases that some direct evidence is
available.

4.4.2 Death in Police Custody

In its report, “Torture in India 2008: A State of Denial" - the first ever nationwide assessment on
the use of torture in India – The Asian Centre for Human Rights stated that 7,468 persons, at an
average of 1,494 persons per year or about four persons per day, have died and/or been killed in
prison and police custody during 2002 to 2007. An equal number of persons, if not more, have been
killed in the custody of the army, Central armed forces and States’ Para-military forces in
insurgency affected areas. A large number of these deaths are a result of torture.

According to Section 176 Cr.P.C, whenever any person dies in police custody a magisterial enquiry
is done. Magistrate does the inquest, holds a detailed enquiry into the cause of the death, records the
statements of the aggrieved party and the police, collects the relevant evidences and then submits its
reports to the Govt.

In Case the police is indicted in the Magisterial enquiry action under appropriate section of law like
section 302 I.P.C. (punishment or murder), section 120 B (punishment for criminal conspiracy),
section 218 I.P.C. (punishment for public servant framing incorrect record), 201 I.P.C.(punishment
for causing disappearance of evidence of offence) etc. is taken.

Even otherwise also if a prima-facie case of custodial death as a result of police torture is felt by the
Senior Police Officers, 'sue-moto' a case against the erring police personnel under appropriate
section is registered and as per the process of law these personnel are arrested, sent to jail and dealt
with.

4.4.3 Challenges before Police and Human Rights Norms

The police in India has to perform a difficult and delicate task in view of the deteriorating law and
order situation, riots, political turmoil, student unrest, terrorist activities, incrasing incidence of
bribery, corruption, tax evasion, violation of fiscallaws,,smuggling and mony-laundering.
Organised criminal gangs are gaining strong roots in the society. They use ultra-modern weaponry,
explosives and many other devices for committing crimes. Similarly, dealing with insurgent and
terrorist groups is also completely different from dealing with ordinary criminals. This category of
criminals is well-trained, hardened and equipped with ultra-modern weapons. Indeed, a resourceful
criminal can escape the clutches of lawalmost indefinitely. Moreover the Indian police still finds
itself handicapped on account of inadequate infrastructural support.

In our country we are accustomed to think in terms of 'an eye for an eye' and 'tooth for a tooth'.
Therefore, the society tactitly expects and approves of the use of violence and third degree methods
on the suspects to get the truth, more so if their personnel interest is involved. Lack of proper
motivation, overzealousness of Investigating Officers to ensure detection of cases by eliciting
confession from the accused persons and low morale of the members of the force are the main
psychological reasons behind resorting to third-degree as short cut method of detection. Human
rights norms are diagonally opposed to such justification of the pressure of detection of crime as
under no condition infringement of individual liberty and life could be finished by any authority.

4.4.4 Some issues about police reforms

Apart from the legal provisions binding the police there are certain issues of institutional reforms
and practical job oriented chnages which can have a positive impact on improving the situation and
making the police personals more sentivie and accountable to the legal norms which already bind
them. Sensitization and Human Rights Training is a very important criteria to advance in making
the police services more sensitive and huamne in their approach towards persons in custody. The
use of scientifec methods of investigation in detection of a case calls for tremendous patience,
tenacity and professional expertise, The use of scientific methods of investigation may at times be
exhausting for Investigating officers lacking proper orientation. Officers with low morale and
suffering froma sense of deprivation may at times resort to custodial violence for deriving sadistic
pleasures. Lack of infrastructural facilities in the police stations may also lead to such unfortunate
incidences. Absence of separate female lock-up in many police stations has made the detention
unsafe for arrested women. The problem is further aggravated due to absence of sufficient number
of women police officers at the police station.

4.5 Torture in custody and Legal Provisions

Custodial violence by police is a widespread problem in India. Both domestic law and international
human rights instruments impose strict parameters for police's handling of persons in custody. The
Supreme Court has been trying to protect the rights of victims through court decisions, yet torture
and ill-treatment of persons in custody continue to pose a serious problem in India. Article 21 of the
Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or
degrading treatment to any person whether he is a national or a foreigner. Any violation of this right
attracts Article 14, which enshrines right to equality and equal protection of laws. Such rights are
discussed in the International Covenant on Civil and Political Rights (ICCPR) as well. There are
three provisions which cover rights of the arrestees, namely Articles 9, 10 and 11.[2] Human
dignity is a dear value of our Constitution and international human rights instruments, not to be
bartered away for the mere apprehensions entertained by jail officials.

Torture has not been specifically defined in the Indian Constitution or specifically prohibited in
penal laws. However, the Supreme Court has held that the right not to be tortured is enshrined in
the right to life guaranteed in Article 21 of the Constitution. Sections 330 and 331 of the Indian
Penal Code (IPC) provide for punishment for "voluntarily causing hurt to extort confession or to
compel restoration of property" and section 29 of the Indian Police Act 1861 provides for
imprisonment not exceeding three months with or without hard labour for offences including
"unwarrantable personal violence to any person in his custody". However these provisions are
rarely used against police officials.

The Supreme Court also went further to award compensation to victims of custodial violence who
suffered physical and psychological torture, and ordered prosecution of police officers responsible
for such crimes.

The National Human Rights Commission, NHRC has also been making an effort to reduce the
custodial violence by issuing a guideline that any incident of custodial death or rape must be
informed to the NHRC within 24 hrs of occurrence. Furthermore, the NHRC has directed the
police, in a case of death in custody, to submit a post-mortem report, and a chemical analysis report
in order to prevent the police from distorting evidence relating to the death.
Finally it should be noted that despite earnest attempts by the Supreme Court to curb torture and
deaths in custody, these crimes are still very prevalent in India. Thus, it is crucial for individuals to
be aware of all their rights while in custody and to actively demand them. Some of the provisions
related to custodial violenec and police responsibilities could be ascertained through the tables
given in this unit.

4.5.1 Constitution of Indian and Rights for the protection of individuals under arrest or
detention
The constitution confers certain rights to individuals which help in protection against torture and
other inhuman and degrading treatments .These constitutional; provions also bind the police and
limit its abuse of powers. The following table gives brief description of these rights.

4.5.2 International Human Rights Provisions against Torture

International Provisions Banning Torture

The International Human right law is strengthen through the international treaty on torture “the
Convention Against Torture and other cruel, in human or degrading treatment or punishment is the
principle treaty setting standards for legal provisions and governmental actions against torture in
addition to these International Covenant On Civil And Political Rights(ICCPR) is the fundamental
treaty governing the civil and political rights of individual across the world and this Human Rights
treaty is of primary importance for setting standards related to banning tortures. India is a signatory
to ICCPR also guards the human rights and set sub international standards for promotion and
protection of freedom from torture “

International NGO’s like the ‘Amensty’ International the Human Rights watch Article 19,
‘Minority rights International’, ‘Liberty’ are important international NGO’s are working against
torture and abused of authority law enforcement agencies.

4.5.3 Violations of ICCPR Provisions

India is one of the few countries in the world whose constitution allows for preventive detention
during peacetime without basic safeguards to protect fundamental human rights. Yet, India has
ratified the ICCPR, which explicitly proscribes preventive detention.

Article 4 of the ICCPR permits derogation from guaranteeing certain personal liberties during a
state of emergency. However, the Indian Government has not invoked this privilege, nor could it, as
the current situation in India does not satisfy the standards set forth in Article 4. Nonetheless,
preventive detention is an executive body. This results in excluding be reviewed by an Advisory
Board, which too is an executive body. This results in excluding the judiciary from the decision-
making process and contravenes a detenu's right to 'fair and public hearing'' and to appear before an
'independent and impartial tribunal under Article 14(1) of ICCPR.

While India's laws and policies directly violate Article 9 of ICCPR, which bans arbitrarry arrest or
detention and requires the grounds of arrest to be communicated at the time of arrest, India had
made a reservation to Article 9 of ICCPR, stating that this article will only be applied in
consonance with the section of Article 22 of the Indian Constitution.

BOX 1

Custodial Violence and Third Degree

The custodial violence is also popularly known as third degree. The term third degree has not got
any legal justifications or procedural relevance but over the time this term has been used widely to
denote violent ways of interrogation and obtaining confessions.
In police interrogation, originally torture, then colloquially an intensive rough interrogation to
extract information or a confession-the term "Third Degree" brings an ironic reference to the
Masonic ritual which involves a (symbolic) severe interrogation and beating.
The classification of the qualities of objects by degree- heat & cold, moisture and dryness etc.- was
common place in the middle ages. Henry Lyte's translation of Dodoens' Niewe herball or history of
plantes, 1578 includes a description of rue: "Rue is hot and dry in the third degree."
Shakespeare went on to apply the degree classification to drink, in Twelfth Night, 1601: "For he is
in the third degree of drink: hee's drown'd:go look after him."
The present meaning involves more than classification though. 'The third degree' is well-known to
all crime-fiction enthusiasts as 'an intensive, possibly brutal, interrogation'.
In Masonic lodges there are three degrees of membership; the first is called Entered Apprentice, the
second Fellowcraft, and the third is Master Mason. When a candidate receives the third degree in a
Masonic lodge. he is subjected to some activities that involves an interogation and it is more
physically challenging than the first two degrees. It is this interrogation that was the source of the
name of the police force's interrogation technique. That is referred to in an 1900 edition of
Everybody's Magazine: "From time to time a prisoner... claims to have had the Third Degree
administered to him."
North American Freemasons in the third degree swear " I will keep a worthy brother Master
Mason's secrets invilable, when communicated to or received by me..."
In the parlance fo police questioning, the theme has developed to combat the resistance-
conditioning of the source
BOX2
Supreme Court's Directives for avoidance of Custodial Crimes
The Supreme Court has expressed its concern for custodial commission of crimes during
investigation and interrogation and laid down certain principles to be followed by concerned police
officers in its historic decision in D.K Basu v. State of West Bengal. The basic requirements to be
followed in all cases of arrest of detention till legal provisions are made in that behalf to prevent
custodial violence are as follows:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name plate with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.
2. The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by at least one witness who may either be a member of the
family of the arrestee or a respectable person of the locality from where the arrest is made. It
shall also be countersigned by the arrestee and contain time and date of arrest.
3. A person who has been arrested or detained and being held in custody in a police station or
interrogation or lock-up, shall be entitled to inform his friend/relative or a person having
interest in his welfare, as soon as practicable, that he has been arrested and is being detained
at a particular place, unless the attesting witness of the memo of arrest is himself such
friend/relative.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police.
5. The person arrested must be made aware of his right to have some one informed of his arrest
or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention giving all details, about the
friend/relative or person informed.
7. The arrested should where he so requests, be also examined at the time of arrest and major
and minor injuries, if any present on his/her body, must be recorded at that time. The
 'Inspection Memo' should be signed both by the arrestee and the police officer effecting
arrest.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hrs
during his detention in custody.
9. Copies of all documents including memo of arrest, should be sent to the nearest Magistrate
for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, thought not
throughout the interrogation.

11. A police control room should be provided at all district and State Headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest within 12 hrs of effecting the arrest and this
should be displayed on a conspicuous notice board at the police control room.
The Apex Court opined that failure to comply with the above requirements will render the
officer concerned liable to be punished or contempt of court besides the usual departmental
action against him.
The court noted that these directives would help to curb, if not totally eliminate, the use of
questionable methods during interrogation and investigation leading to custodial violence.

BOX 3
WRIT OF HABEAS CORPUS
When a person is detained and if there is some reason to suspect that he or she is unsafe in
custody or there are no legal grounds for the person's detention, one can file a petition with the
appropriate High Court or the Supreme Court of India for a 'writ of have as corpus'. A writ of
habeas corpus is an order from the court demanding that detaining officer present the detained
person before the court, and informs the court of the grounds of the confinement. If it is
revealed that there are no lawful grounds for the detainment, the detenu should be released.
Otherwise, the detention is sustained, and the regular bail procedure should be followed.
 When the detenu is presented before the court by means of the habeas corpus writ, the court can
also ascertain whether or not the detenu has been tortured or mistreated by the police or anyone
else while in detention.
A writ of habeas corpus can be filed either by the detained person or by a relative or friends on
his or her behalf. The application for a writ of habeas corpus must be accompanied by report
stating the circumstances of the imprisonment. A writ of habeas corpus need not be a formal
document. It may be a letter or telegram to the court setting out the circumstance of the
detention. The advantage of a telegram is that it is an officially timed and dated document. If the
police later claims that the person was not arrested, or were arrested at a later date, the telegram
can effectively be used as evidence of the details of the detention.
While there is no limitation period on petitioning the court for a writ of habeas corpus, the
sooner the petition is lodged, the greater is its chances of success. When filing a writ, the
petitioner should always keep a copy of the request for habeas corpus.
The habeas corpus writ has long been used a method of preventing and discovering illegal
detentions, and also as a vital checking mechanism to ensure that the detenu has not been
abused. It provides an instant determination as to the legality of an existing detention, and if
exercised, protects detenus from incommunicado and indefinite detention by unscrupulous
police officers. For these reasons, it is important to be fully aware of the existence of and
procedures relating to the exercise of the habeas corpus writ petition.

Suggested Readings
1. Basu D.D, Constitutional Law of India, New Delhi Wadhwa & Company 2003.
2. Bureau of Police Research & Development, Research Studies Compendium BPR&D New
Delhi 1970-2006.
3. Krishanmoorthy.S.Dr. Human Rights and the Indian Police, RR Publishers Banglore 1994.
4. Oxford Hand book of Human Right and Criminal Justice in India,South Asia Human Rights
Documentation Centre and Oxford Univ. Press, New Delhi 2007.
5. Paranjape.N.V, Criminology and Penology 13th edition, Central Law Publishing House
Allahbad 2008.
6. Rai Vikas Narayan, Third Degree Police, Haryana Police Academy, Karnal 2007.
7. Sharma.P.D, Police and Criminal Justice Administration in India, Uppal Publishing House,
New Delhi 1985.
8. Smith Rhona and Others, The Essentials of Human Rights, Hodder Arnold London 2005.
9. Zender.Lucia, Criminal Justice, Clarendon Law Series, Oxford University Press, Oxford
2004.

Website visited

1. Office of High Commission for Human Rights Geneva, www.ohchr.org

2. Commonwealth Human Rights Initiative website, www.chri.org

1.