Ishaan Singh and Kartikeya Misra
Introduction
The Indian government has finally brought in a much-needed revamp to replace the century-old criminal laws. The Bharatiya Nyaya Sanhita(“BNS”), Bharatiya Nagrik Suraksha Sanhita(“BNSS”) & Bharatiya Sakshya Adhiniyam (“BSA”) have replaced the Indian Penal Code of 1860(“IPC”), Criminal Procedure Code of 1973 (“CrPC”) and Indian Evidence Act of 1872(“IEA”) respectively. BNSS has been named “Nagrik Surakhsa Sanhita”(Citizen Security Code) to emphatically state its welfare-oriented pro-citizen objective. However, there is a very concerning provision in BNSS which deserves serious consideration. BNSS has increased the maximum limit for granting Police Custody from 15 days to 90 days. This article discusses in light of the implications of this increase in police custody and a dire need to relook this increase in police custody with insights from general criminal laws around the globe.
At the outset, it must be explicitly understood that pre-trial detention of all kinds clash with the fundamental human rights[1] of the accused. Although both the Police and Judicial Custody are types of pre-trial detentions, the latter provides more safeguards than the former.
In Police Custody, a person remains in a lockup inside the police station, i.e. directly under the detention of police functionaries. The primary purpose[2] of police custody is mainly to divulge any information from the accused that firmly links them to the crime and facilitate the arrest of their associates. It includes interrogating the accused to disclose the identities of their accomplices and co-perpetrators.
When the police receive information under section 154,[3] CrPC, they proceed to arrest the suspect to prevent the commission or further commission of offence.
The suspected person, upon arrest, must be produced before the concerned judicial magistrate within 24 hours. This mandate is in accordance with article 22(2)[4] of the Constitution and section 57[5] of CrPC.
During these 24 hours, the person is said to be in the custody of police, wherein the person is kept in a jail in the police station (custody of police) and the police could interrogate the person.
Judicial Custody on the other hand is relatively less impinging vis-a-vis the fundamental rights. If the police is not able to complete the investigation within 24 hours, they can ask for extension of police custody(upto 15 days) under section 167[6] which is granted at the discretion of the judicial magistrate, if not granted the accused then goes under Judicial custody.
Under judicial custody, a person is kept in Prison, where there are various safeguards and state machinery acting in vigilance. Additionally, in the case of judicial custody, the police cannot interrogate the accused without permission from the magistrate.
Reasons for skepticism towards prolonged Police custody
Placing individuals in police custody heightens the risk of custodial violence and torture,[7] infringing upon the arrested person's fundamental rights protected against state-inflicted torture and assault under Article 21,[8] as established in the DK Basu case.[9]
This extended detention also amplifies the potential for the police to manipulate evidence, compromising the accused's right to a fair trial. This is particularly concerning in instances where the accused belongs to a socially disadvantaged class and cannot afford legal representation.[10]
Prolonged police custody elevates the susceptibility of the accused to coerced confessions and the fabrication of evidence.[11] A notable example involves the use of torture to coerce individuals into signing blank documents, subsequently employed by the police to concoct 'disclosure statements.' These statements often include details about the location of a deceased body or other items pertinent to the crime, creating the illusion that the police discovered them based on the accused's statement and make them admissible u/s 27 of Indian Evidence Act.[12] The Supreme Court in the case of Nathu[13] categorically held that prolonged Police Custody can even lead to the court considering the statements being made involuntary unless proven cogently.
Statistically, this scepticism is proven right as India has seen a tremendous 75% increase[14] in deaths in police custody in the last two years. During the period from April 2022 to December 2022, NHRC India dealt with 236 cases of deaths in police custody.[15] Earlier in 2017 also, the Death Penalty Report(DPR) had painted a grim scenario of the prevailing circumstances, there were 1575 deaths in police custody between 2001-2016 with 74 in the year 2017. 74 out of the death row convicts, said they made confessions due to torture.[16] Thus, justifying the judicial hesitancy as well as the reason for the limit of 15 days of police custody in CRPC.
Locked Minds: The Psychological Toll of Police Custody
When any person is kept in police custody, various factors contribute to the agony faced by the arrested person[17] which includes disconnect from the family & society, loss of autonomy, lack of purpose, boredom and uncertainty of surroundings. This psychological effect often goes unrecognised and doesn’t receive the attention it deserves.
The most significant factor affecting any person psychologically in police custody is the unpredictability in the lockups. An arrested person is under a constant threat of physical harassment by the police authorities which causes stress. This also exacerbates the existing mental health disorders or lead to the development of post-traumatic stress[18] symptoms like anxiety, depression, avoidance, hypersensitivity, hypervigilance, suicidality, flashbacks, and difficulty with emotional regulation.
Due to the lack of training, police officers are not sensitised to the health issues of the persons in custody. Moreover, there is a lack of facilities and proper records of medical history for any medical intervention in lockups unlike jails which have proper guidelines and staff for looking into these aspects and this information relating to medical records can be crucial for preventing deaths[19] in custody. Hence, extended police custody can have a very detrimental effect on the mental health of accused persons due to the lack of any recourse.
Unravelling the Changes in BNSS? What do they Translate to?
Sec 167[20] of the CRPC talks about aspects related to the grant of Police and Judicial Custody. Sec 167(2)(a)[21] limited the police custody through the use of the words “the Magistrate may authorize the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days”. In comparison, Sec 187 (3)[22] of BNSS has dropped the words “otherwise than in custody of police,” implicating that police custody can be extended beyond the period of 15 days upto 60 or 90 days depending on the offence. This is a serious blow to the rights of the accused and excessive on the constitutional front. Given that the courts have already been doubting statements or evidences given after prolonged Police Custody presently, the increase of Police custody by around 6 times from the current limit poses serious questions[23] as to their pro-investigation approach.
Globally Grasped: Unveiling the Varied Timelines of Police Custody
There has been a huge consensus on limiting the Pre-Trial detention[24] around the globe and several countries have progressed towards a reduced time period of Pre-Trial detention let alone police custody. It is important to look upto what are the global standards of Police Custody. As a result, we have chosen 3 commonwealth countries of which 2 rank high in the WJP rule of Law Index,[25] namely the United Kingdom (rank 15), Australia(rank 13) and on the other hand, South Africa(Rank 56), which has a very progressive constitutional framework, is both a commonwealth country and peer from Global South to compare the statutory period of Police Custody.
Duration of Pre-Trial Detention in UK
In UK the police has to charge a person in 24 hours[26] or release the person, this period of 24 hours can be extended upto 36 or 96 hours depending on the seriousness of the offence. Moreover, in cases of terrorism police have to charge the alleged offender and present them before the court within 14 days of arrest. Interestingly, after a person is further remanded into custody the person is kept in prison only.[27]
Duration of Pre-Trial Detention in South Africa
In the jurisdiction of South Africa, the constitution of South Africa itself stipulates certain rights regarding any arrested, detained or accused person in section 35[28] of their constitution and section 50[29] of Criminal Procedure Act 1977 further elaborates on the specific procedure to be followed post-arrest. Both sections explicitly state that any person who has been arrested must be produced before the magistrate within 48 hours and any arrested person cannot be detained for more than 48 hours in police custody except for some given circumstances.
After being brought over to the magistrate, the Undertrials are either given bail or transported to prison to await trial.[30]
Duration of Pre-Trial Detention in Australia
In Australia, the provisions of pre-trial detention are different for different states. However, the maximum cap on such detention is almost similar.
In Queensland,[31] any person who is arrested with or without a warrant can be brought to a watch house (similar to a police lockup/custody). Section 78 of the Summary Offences Act states that any person can be kept there for 8 hours maximum out of which he can be questioned for maximum 4 hours.
In New South Wales[32] (a state in Australia), the police cannot hold any person without any charge for more than 4 hours. Further the maximum duration of police custody can be extended upto 12 hours after the permission of a magistrate except in cases where the accused is held for terrorist activities where it can be extended for 14 days.[33] After the arrest has been made, the police are required to present the arrestee before the magistrate as soon as possible reasonably, after which, if the magistrate feels that charges are being made out, they send the accused to prison or give them bail.
In West Australia, the police cannot keep the arrested person in their custody for more than six hours,[34] unless they get approval from a senior officer, after which they can keep the arrested person for another 6 hours[35] making a total of 12 hours maximum. After these 12 hours, the police can seek remand from the magistrate for further detention upto 8 hours[36] more.
In North Australia, The police can detain any person for 4 hours without charge under section 133 AB(2)[37] of Police Administration Act 1978.
In Tasmania, sec 4(6)[38] of the Criminal Law (Detention and Interrogation) Act 1995 specifies the detention of a person, by a police officer “on reasonable grounds” with a maximum duration of 8 hours which can be extended by 4 hours and cannot exceed a total of 12 hours.
In South Australia, Under section 78[39] of the summary offences Act of 1953, the Custody period is of 4 hours which can be extended on the order of the magistrate but cannot go beyond a total of 8 hours.
Thus in Australia, the maximum time any police officer has for their custody is 12 hours.
Country | Maximum Limit of Police Custody (general Law) |
India(under CrPC) | 15 Days |
India(under BNSS) | 90 Days |
United Kingdom | 96 Hours |
Australia | 12 Hours |
South Africa | 48 Hours |
Way Forward: Is simple extension of custody the answer?
Although the argument of ease in investigation has been pointed out, the challenges posed by increased police custody certainly question the ‘Suraksha’ aspect of the code. The solution lies somewhere in the middle. There can easily be a change in this unnecessary addition or elongation of the police custody. The legitimacy of the challenges in the investigation does not justify the enormous increase in continuous police custody.
As has been amply discussed through case examples of various countries having strikingly short time of police custody are faring well on the overall rule of law aspect. Therefore, Section 187(3) shall either be amended or even if it remains, it should remain a dead letter. Moreover, the new changes introduced under BNSS in Section 187(2) allow the police custody to be given in the total detention of 60- or 90-day period for 40 & 60 days respectively, but with a maximum limit of 15 days. This implies that the 15 days of police custody can be made flexible, allowing police custody in the first 40 days for non-cognizable offences and 60 days for cognizable offences in patches of, 2-3 days but limited to 15 days overall.
In this way, the police will be aided in investigation at times required and reducing the risk of elongated police custody of accused, as has been the view of the Supreme Court recently in doubting Kulkarni verdict.[40]
Other way round, there must be proper guidelines on issuing order by the magistrate such as-
1. The order given by such magistrate to extend to police custody beyond 15 days should explicitly specify the exceptional circumstances.
2. The orders should explicitly entangle sound application of judicial mind.
3. Moreover, there can be a list of offences in which the extension as provided by 187(3) is available, provided that the notified offences be based on their ‘gravity’ or ‘nature’ so as to rationally require a period above 15 days. For example- Mob lynching which is an offence under BNS, may require intensive long investigation hence the sec 187(3) could be made applicable for that specific section only or such other offences.
In the era of advanced technology and going digital, where Chief Justice DY Chandrachud[41] himself stated the need to involve evolving technologies in administration of justice is the need of the hour, we must look at the different alternatives available to us to avoid police custody. Recently, the law commission has also published a report on registration of Online FIRs. The strongest reason why police need the police custody of any accused is to interrogate the arrested person for the purpose of investigation and the biggest reason why the human rights activist and the magistrates wary from allowing police custody is the threat of the safety and security of such arrested person from custodial violence and deaths. The intersection of technology can be explored (like the Video Conferencing Technology available today) to aid in the interrogation and other aspects of the investigation, reducing apprehensions about the safety of accused persons.
Conclusion
The scope of increase in police custody beyond the period of 15 days under BNSS opens a Pandora's box for the protection of the rights of the accused as well as enhances the scope of the physical, social & mental turmoil. The global overview of the duration of pre-trial detention reveals the trend of a very short period of police custody globally, highlighting the need to keep the duration minimal to avoid any apprehension or violation of the fundamental and human rights of the arrested person. There is a dire need to remedy the changes in sec 187(3) which might lead to misuse of powers and great agony to those who come in the unfortunate sway of it. Thus, there must be the inclusion of guidelines clarifying the usage of such extension, and judicious usage of the provision with the inclusion of technology to balance the investigative needs and the rights of accused persons.
(The authors are students of Dr. Ram Manohar Lohiya National Law University, Lucknow.)
[1] EXCESSIVE PRETRIAL DETENTION (no date) Human rights watch: Excessive pretrial detention. Available at: https://www.hrw.org/legacy/advocacy/prisons/pretrial.htm - :~:.
[2] NewIndianXpress (2014) Purpose of police custody, The New Indian Express. Available at: https://www.newindianexpress.com/opinions/2014/dec/12/Purpose-of-Police-Custody-693223.html (Accessed: 08 January 2024).
[3] Criminal Procedure Code, §154, No. 2 of 1974, Act of Parliament, (India).
[4] India Const. art. 22 cl.2.
[5] Criminal Procedure Code, §57, No. 2 of 1974, Act of Parliament (India).
[6] Criminal Procedure Code, §167, No. 2 of 1974, Act of Parliament (India).
[7] Campaign against torture. Available at: http://uncat.org/wpcontent/uploads/2021/03/IndiaTortureReport2020.pdf (Accessed: 08 January 2024).
[8] India Const. art. 21.
[9] DK Basu v. State of West Bengal, (1997) 1 SCC 416.
[10] Muralidhar, S. (2022) ‘Appearing in court in India: Challenges in representing the marginalised’, CASTE / A Global Journal on Social Exclusion, 3(2), pp. 421–441, 426.
[11] Admin, p39a (2023) Criminal law bills 2023 decoded #15: Custody of arrested persons during investigation, P39A Criminal Law Blog. Available at: https://p39ablog.com/2023/11/criminal-law-bills-2023-decoded-15-custody-of-arrested-persons-during-investigation/#_ftn15 (Accessed: 08 January 2024).
[12] Indian Evidence Act, §27, No. 1 of 1872, Act of Parliament (India).
[13] Nathu v. State Of Uttar Pradesh, AIR 1956 SC 56.
[14] Deaths in police custody rose sharply over last three years, Rajya Sabha told (no date) The Wire. Available at: https://thewire.in/rights/india-custodial-deaths-data-rajya-sabha-2023 (Accessed: 08 January 2024).
[15] Ministry of Home Affairs. Available at: https://www.mha.gov.in/sites/default/files/AnnualReportEngLish_11102023.pdf (Accessed: 08 January 2024).
[16] Forcing confession by torture rampant in country, first of its kind report reveals (2017) India Today. Available at: https://www.indiatoday.in/mail-today/story/torture-confession-accused-police-judiciary-1104081-2017-12-09 (Accessed: 08 January 2024).
[17] Mental health and prisons - prison policy initiative. Available at: https://static.prisonpolicy.org/scans/mh_in_prison.pdf (Accessed: 08 January 2024).
[18] Exhibit 1.3-4DSM-5 Diagnostic Criteria for PTSD. Available at: https://www.ncbi.nlm.nih.gov/books/NBK207191/box/part1_ch3.box16/ (Accessed: 08 January 2024).
[19] Adam D. Vaughan et al. (2017) In custody deaths of men related to mental illness and substance use: A cross-sectional analysis of administrative records in Ontario, Canada, Journal of Forensic and Legal Medicine. Available at: https://www.sciencedirect.com/science/article/abs/pii/S1752928X17300240 (Accessed: 08 January 2024).
[20] Criminal Procedure Code, §167, No. 2 of 1974, Act of Parliament (India).
[21] Criminal Procedure Code, §167(2)(a), No. 2 of 1974, Act of Parliament (India).
[22] The Bharatiya Nagrik Surakha Sanhita, §187(2)(a), No. 174 of 2023, Act of Parliament (India).
[23] Rao, M. (2020) Indian police use violence as a shortcut to justice. it’s the poorest who bear the scars, CNN. Available at: https://www.cnn.com/2020/12/02/india/police-brutality-india-dst-intl-hnk (Accessed: 10 January 2024).
[24] Foundation, T.R. (no date) Tackling Human Rights Violations of pre-trial detainees through a call for international standards, www.trust.org. Available at: https://www.trust.org/i/?id=afc5bb6c-3d26-40c2-8a42-887a3a95a7cb#:~:text. (Accessed: 10 January 2024).
[25] Worldjusticeproject.org. Available at: https://worldjusticeproject.org/rule-of-law-index/downloads/WJPInsights2023.pdf (Accessed: 10 January 2024).
[26] Service, G.D. (2015) Being arrested: Your rights, GOV.UK. Available at: https://www.gov.uk/arrested-your-rights/how-long-you-can-be-held-in-custody#:~:text=The%20police%20can%20hold%20you%20for%20up%20to%2024%20hours%20before%20they%20have%20to%20charge%20you%20with%20a%20crime%20or%20release%20you. (Accessed: 10 January 2024).
[27] Custody and bail (2021) nidirect. Available at: https://www.nidirect.gov.uk/articles/custody-and-bail (Accessed: 10 January 2024).
[28] S. Afr. Const., 1996 §35.
[29] Criminal Procedure Act 51 0f 1977 § 51 (S. Afr.).
[30] Prison Conditions In South Africa: VII. POLICE LOCKUPS. Available at: https://www.hrw.org/legacy/reports/1994/southafrica/9.htm#_ftn77 (Accessed: 10 January 2024).
[31] Being held in police custody (no date) Legal Aid Queensland. Available at: https://www.legalaid.qld.gov.au/Find-legal-information/Criminal-justice/Police-and-your-rights/Being-held-in-police-custody#:~:text=If%20you%27ve%20been%20arrested,to%20the%20court%20for%20bail (Accessed: 10 January 2024).
[32] In case of arrest (no date) Prison Insider. Available at: https://www.prison-insider.com/en/australie-57921be2f134f/en-cas-d-arrestation-57921923dd025#:~:text=In%20New%20South%20Wales%2C%20police%20may%20hold%20an%20individual%20up%20to%20a%20maximum%20of%204%20hours (Accessed: 10 January 2024).
[33] Terrorism (police powers) act 2002 no 115 (no date) New South Wales - Parliamentary Councel’s Office. Available at: https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2002-115#:~:text=(2)%C2%A0%20The%20total%20maximum%20period%20of%20investigative%20detention%20cannot%20exceed%2014%20days%20after%20the%20terrorism%20suspect%20was%20arrested. (Accessed: 10 January 2024).
[34] Criminal Investigation Act 2006 (WA) s 140(3) (Austl.).
[35] Criminal Investigation Act 2006 (WA) s 140(4)(b) (Austl.).
[36] Criminal Investigation Act 2006 (WA) s 140(6)(b) (Austl.).
[37] Police Administration Act 1978 (NT) s 133AB(2) (Austl.).
[38] Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 4(6) (Austl.).
[39] summary offfences Act of 1953 (SA) s 78 (Austl.).
[40] CBI v. Anupam J. Kulkarni, 1992 SCR (3) 158.
[41] Ridhi (2023) ‘need to adopt innovative and technological solutions with the ever changing, Dynamic World’: CJI Chandrachud, SCC Blog. Available at: https://www.scconline.com/blog/post/2023/02/06/need-to-adopt-innovative-and-technological-solutions-with-ever-changing-dynamic-world-cji-chandrachud-legal-news-legal-research-updates/#:~:text=World%E2%80%9D%3A%20Cji%20Chandrachud-,%E2%80%9CNeed%20to%20adopt%20innovative%20and%20technological%20solutions%20with%20the%20ever%20changing%2C%20dynamic%20World%E2%80%9D%3A%20CJI%20Chandrachud,-Justice%20Chandrachud%20referred (Accessed: 10 January 2024).