POLICE CUSTODY AND HUMAN RIGHTS VIOLATIONS IN INDIA
The police system in any country is considered to be a protector of the citizens. However, this institution has been a grave violator of human rights globally as well as in India. The police officials in India are burdened with immense pressure from the authorities and the masses to deliver results in an expedient and efficient manner. However, the lack of resources and technology prevents them from effectively carrying out their duties and function without abusing their powers. There has been a normalization of violence perpetrated by the police on accused/suspects by society. The basic human rights of these individuals are often compromised even after having protection being given by the legal jurisprudence. The abuse of power by the police is often unaddressed by the legal system due to the lack of implementation and safeguard of the rights provided to suspects/accused. There is a need to re-evaluate the treatment and rights of such individuals. Be it accused or suspects, human rights violations cannot be tolerated and supported in any country.
Bennix and Jayaraj were beaten up brutally by the police officials of Tamil Nadu in 2020 and succumbed to the injury within a few days. They were alleged to have violated the rules of lockdown imposed in the state. Reports stated that they had been sexually assaulted and tortured in the police station. This is just one instance of police brutality which has resulted in the failure of protecting the right to life, dignity, and other constitutional safeguards of individuals by the police. In the past decade, the NHRC data suggests that about 17,146 deaths have been reported in police and judicial custody till March 2020. Honourable Chief Justice, NV Ramana recently stated that “threat to human rights and bodily integrity are the highest in police stations.” He highlighted the importance of awareness of the constitutional rights to legal aid and awareness of the rights of accused to ensure that the excessive actions of the police is kept in check. 
The right against torture is enshrined in several human rights instruments, and prohibition of torture is recognized as a part of jus cogens wherein several conventions provide for no limitations/exceptions for such rights. India has signed/ratified several instruments including the “Universal Declaration of Human Rights, 1948” (hereinafter referred to as UDHR), “International Covenant on Civil and Political Rights, 1966”, among others, which seek to protect such rights. Article 1 of the UDHR “All humans beings are born free and equal in dignity and rights.” Moreover, Article 5 of UDHR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Another International Convention is the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984” (hereinafter referred to as UNCAT), which was signed by India in 1997.
The Police is a crucial state machinery with the primary function of protection of society from internal aggression and to establish peace. However, more often than not, in India, the police resort to the use of excessive force and third-degree methods, which cause violation of the human rights of citizens during custody.
II. INDIAN LEGAL FRAMEWORK FOR PROTECTION OF HUMAN RIGHTS DURING POLICE CUSTODY
The Indian legal framework contains various provisions for safeguarding the human rights of individuals in police custody. “The Constitution of India” safeguards the human rights of all individuals, including suspects/prisoners/accused. Article 21 of the Constitution guarantees the right to life and personal liberty of an individual, except as per “procedure established by law.” The courts have recognized several violations of the human rights of individuals by the police. In the case of Raghbir Singh v Haryana, the court stated that police torture is a shameful act by the guardian of the society and it infringes and hinders human rights guaranteed to all individuals under Article 21 of the Constitution. Moreover, in D.K. Basu v WB, the court stated that in a civilized and democratic society which is governed by the rule of law, “Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise.” An act of torture by the functionaries of a State “flouts the basic rights of citizens,” and the powers of the executive had to be limited by the law. 
Article 22(1) of the Constitution provides for an arrested person to be informed of his grounds of arrest prior to detention and has the right to a legal practitioner of his choice, and Article 22(2) provides that an arrested person who is detained must be produced within twenty-four hours before the nearest Magistrate. Article 20(1) of the Constitution imposes a restriction, providing that no greater penalty shall be imposed than as provided under the law in force at the time the offence was committed, i.e., ex-post-facto law. Article 20(2) prohibits double jeopardy. Article 20(3) guarantees the right against self-incrimination. Article 32 and 226 of the Constitution allows filing a writ of Habeas Corpus against illegal detention. 
“Criminal Procedure Code, 1973” (CrPC) states the procedure to be followed by the police officials to protect the rights of arrested persons. Some important sections containing such procedures are S. 49, 50, 55(A), 56, 58, 75, 76 & 163, 176(1). The “Indian Penal Code, 1860” (IPC) is a substantive law under Section.330, 331 & 348 protects the rights of an individual against acts of cruel treatment by police officials and acts of torture. The Tuka Ram And Anr v State Of Maharashtra case (Mathura Rape case)  is a horrific instance of custodial rape where two police officers were accused of committing sexual assault. Mathura had gone to the police Desai Gunj Police Station for a particular case with a few other persons and was asked by the police officers to stay back and committed sexual assault on her. Unfortunately, the Supreme Court acquitted the accused due to the apparent absence of resistance by Mathura (the victim), the absence of injuries and her being “habitual to sexual intercourse” which was based on the two-finger test. The verdict received a lot of backlash and finally led to an amendment in the IPC, wherein Section.376(2)(a) penalizes custodial rape, that is committed by police officials and shifts the burden on proof to the accused. Further women could no longer be called to the police stations after sunset or before sunrise. This case highlighted the blatant abuse of power by the police forces and the need to safeguard the rights of victims, especially considering the power imbalance.
The Indian Evidence Act identifies the fact that a suspect/arrestee may give a confession to a police official under duress or by being coerced considering the relationship between the two entities and safeguards the interests of such individuals under Sections 24, 25, 26 & 27. The Police Act, 1861, under Section 29, provides for punishment in a case where a police official performs an act of violence to a person who is in his custody.  The “National Human Rights Commission” was constituted under “The Protection of Human Rights Act, 1993” (hereinafter referred to as ‘PHRA’). The act provides for the establishment of an independent commission that would have all the powers of a civil court and which dealt with the protection of Human Rights, in accordance with the “Paris Principle.” The Commission has the power to visit institutions like jail, protection care for juveniles, etc. In an attempt to curb acts of torture during custody, the Committee has laid down several guidelines, including that in cases of custodial rape and death, the Commission has to be informed within 24 hours and performance of follow-up procedures, including post-mortem, Magisterial Inquest Reports, etc.
III. JUDICIAL PRONOUNCEMENTS DEALING WITH VIOLATION OF HUMAN RIGHTS DURING POLICE CUSTODY
A landmark case in the jurisprudence of safeguarding human rights of individuals during police custody was DK Basu v. WB. Here, a PIL was filed by DK Basu owing to the issues of death and custodial torture and arbitrary arrests by the police. The Court issued eleven guidelines for procedures of detention and arrest which included - mandating the identification and designation of police officers making the arrest and handing interrogations, preparing a memo of the arrest which must be signed by a minimum of two independent witnesses and countersigned by the arrestee, informing the relatives of the accused arrest, making the arrestee aware of his rights such as the right to legal representation of his/her choice during interrogations, requiring medical examination of the accused within 48 hours of the arrest, mandating the records of all documents to be sent to the local magistrate, and lastly requiring the establishment of police control rooms in all states and districts, which would communicate information about the arrest of persons within 12 hours.
Further, in 2015, the Apex court further expanded the guidelines and issued nine more guidelines including- the setting up of “State Human Rights Commissions” (hereinafter referred to as ‘SHRC’) in the states of Mizoram, Delhi, Meghalaya, and others within a six month; mandated the vacancies of all SHRCs to be filled up within three month, the installation of CCTV cameras by the State Governments in all prisons and also in police stations, in a phased manner wherever there were increasing cases of human rights violations, the appointment of a minimum of two women constables must be considered by the State Governments in all police stations such appointment is considered essential considering the number of women who are taken for interrogation. Some of these guidelines issued by the apex court in 1997 and 2015 have been incorporates in the Cr.P.C under Sections 41B, 41C, 46, 50, 55A, 57, etc. Though most of the 1997 guidelines have been incorporated as a part of the legislative framework under the Cr.P.C., the majority of guidelines issued in 2015 lack any legislative backing and are also not implemented properly.
In Francis Mullin v. Administrator, the Supreme Court stated that “....any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with the procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.” In Gauri v. U.P., three police officials were charged of offences leading to the death of Ram Tiwari while in police custody. The prosecution’s case was that the police officers had beaten up the deceased and caused 28 injuries which resulted in his death. One of the officers had deliberately recorded a false entry, showing the arrest on the date after the actual date of arrest. The apex court in the appeal convicted all the police officers and stated that in cases of death occurring in police custody, it is often difficult to provide evidence against the police officials since they are the ones in-charge of the records in the police station, and hence can engage in manipulations. Further it was noted that it is well known that police officers often give inaccurate accounts in order to help a colleague escape conviction. It was emphasized that these cases clearly show the misuse of the uniform and authority of the police, and must be curbed in a manner so as to deter such behaviour. 
In Munshi v. M.P., the court stated that often due to the “ties of brotherhood,” police officials tend to remain silent and even pervert the truth to protect their colleagues. Often, adherence to the principle of “proof beyond reasonable doubt” leads to miscarriage of justice owing to the ground realities. To preserve the foundation of the criminal justice system, the court stated that it is essential to use stern measures to keep a check on such acts, which would otherwise lead to anarchy and authoritarianism by the “men in khakhi.” It was therefore considered essential for courts to handle such cases in a realistic and sensitive manner in order to maintain the efficacy of the state machinery. In Sheela Barse v. Maharashtra, the court provided guidelines with respect to the arrest of women. It was stated that the presence of a female police officer was essential during the interrogation of a female, that the District Judge could make periodical visits to police lock-ups to inquire about the conditions of lock-up and to ensure that the requirements of the law are being fulfilled.
The case of Sube Singh v. Haryana recognized certain reasons for the use of torture and police brutality in the Indian scenario and provided certain recommendations which may lead to ameliorating the situation. In India, there exists a dearth of personnel, lack of training of police personals in scientific methods of investigation, lack of modern technology and equipment, and lack of training of police personals to be sensitive and respect the human rights of suspects/prisoners/accused. The police are often expected by the public to deliver results in a speedy manner, and the realities of the time-consuming processes of scientific investigation are forgotten. This causes enormous pressure on the police to catch the offenders, leading to them resorting to third-degree methods. The court emphasized the need for a change in the attitude of the police and the public; Public support, government support, and the availability of required resources and training are required to abide by the rule of law and safeguard the human rights of all individuals. In Rabia v. NCT Delhi, the court held that one of the main reasons for the continued existence of custodial violence at such a large scale in India is that the police feel guarded by immunity and presume that they will not be held accountable for their acts of torture/death. Thus the court recognized that there is a need for both remedial and preventive methods to be used to remove such occurrences. 
The Bhagalpur Blinding case was one of the first cases where the question of monetary compensation was dealt with by the Supreme Court. It was stated by Bhagwati J. that “Article 21 would be reduced to nullity, ‘a mere rope of sand’ if State is not held liable to pay compensation for infringing Article 21.” Further, the law regarding compensation was crystalized in the case Nilabti Behera v. Orissa. J.S. Verma J. stated the principle that Articles 32 and 226 make available the remedy of compensation in public law based on strict liability in case of contravention of fundamental rights. Moreover, sovereign immunity does not apply for such acts as a defence. 
Despite all these cases attempting to protect the rights of the accused and prevent human rights violation by the police forces, the increasing trend of rising cases of such violations are an indication of the requirement of more stringent and substantial safeguards. In 2020, advocate AM Singhvi sought revival of the DK Basu case for issuance of fresh guidelines which emphasis the need for a more expansive institutional framework and a uniform and robust system. The instances of violations of these guidelines and the legislative provisions as given in the next section illustrate the blatant disregard by police official who often exceed their authority. Though these judicial pronouncements and guidelines have significantly increased awareness, monitoring, transparency and policing, there is a need for significant changes considering the contemporary events of increasing violations.
IV. INSTANCES OF VIOLATIONS OF HUMAN RIGHTS DURING POLICE CUSTODY
There have been several instances where the police authorities have paid no regard to the guidelines of the Courts and provisions of law. A clear example of this is the case of B. Janardhan who was picked up from his house by the police officers who were dressed in civilian clothes and failed to identify themselves. The police failed to abide by any of several arrest procedures given in the Cr.P.C. and the D.K. Basu guidelines, and Janardhan was detained illegally, tortured in police custody for two days. Even after the family filed complaints of missing person, they did not receive any information from the police. Two days later four policemen who were dressed in civilian clothes had brough back Janardhan to his house for a short period where he were handcuffed and repeatedly beaten by the officers. The police had also confiscated belongings of the family including a gold ring, a chain, etc. Later in the evening, the family came to know of Janardhan’s death through a news broadcast which said that he died due to a heart attack. However, the family alleged that there were several injuries on Janardhan’s body. The police officials also stated that Janardhan had been arrested on the morning of the death itself and not two days earlier and alleged that he was accused of theft. After several protests the police chief admitted that the officers had bypassed several rules, regulations and were negligent. Finally the NHRC recommended that a compensation of Rs. 5,00,000 must be paid by the government to Janardhan’s kin but did not recommend any penalty or prosecution of the police officials.
In another case Julfar Shaikh and Imanual Shaikh who were on a taxi, were stopped by two constables dressed in plain clothes and brought them to the Dharavi police station. The police had not informed any family member of the arrest. However, they family members heard of the arrest from their relatives that day itself and informed their lawyer. The lawyer went to the Court the next day assuming that the accused would be presented within 24 hours, however, there was no record of the arrest. Further, the police had stated the incorrect date of arrest to show that they had abided by the procedural requirements. Julfar and Imanuel Shaikh were abused and tortured in police custody. This led to Julfar’s death which the police officers stated was due to a heart attack. In the autopsy, 21 injuries were found but even then the medical report said that those injuries were “not sufficient to cause death individually or collectively”. After appeal, in an investigation by CBI, it was found that Julfar died due to physical abuse and intense trauma. In the report from assistant commissioner of the police from CID who was investigating this case, the police officers were only charged for causing voluntary hurt inspite of the testimonies by other police officers that Julfar was beaten with “fists and the “truth seeking” belt”, and were also hung by a rope and assaulted. This case illustrates that besides the procedural violations, the police and medical officials often engage in distorting facts, covering up the reality and giving false reports in order to save the violators who then run scot-free due to the absence of proof.
Police officials also often fail to safeguard and abide by the laws with respect to juveniles. In a case, a 15-yr old boy along with two others were taken by the police; The police had detained them illegally and beaten them with sticks and belts; Law mandates that a child be placed under a “special juvenile police unit,” however here he was kept in an adult lock-up; The officers also sexually abused them to extract confessions; One of them also died during custody due to police torture. A CJM said that often police use torture prior to the court’s remand to police custody due to the mandatory medical check-ups; Moreover, it is difficult to determine whether the injuries were a result of police brutality. Often police resort to the explanation of injuries as being that the accused was trying to escape/abscond, and the accused also remain silent due to the fear of being sent to police custody.  In 2012, Shyamu Singh was arrested, tortured and died in police custody. Ramu Singh, an accused and his brother Shyamu were arrested by the police. They claimed that the two brothers were identical twins and hence arrested both of them to confirm who the accused was. They were brutally assaulted by the officers which led to deterioration in Shyamu’s condition. Due to the fear of Shyamu’s death, the police took him to the hospital, where he succumbed to his injuries. The police however claimed that he had committed suicide. An FIR was filed against the seven officers who tortured Shyamu to death. An executive magistrate conducted the initial inquiry of the death instead of a judicial magistrate as required by law under Section 176(1A) of the Cr.P.C. After several transfers and appeals of the case, the final report exonerated all of the accused.
The rights given in the Constitution, CrPC, Evidence Act, etc., are essential to prevent abuse of power by the police and protect human rights guaranteed to all citizens. However, the above instances clearly indicate that these provisions are not abided by the authorities and are massively misused. Moreover, other authorities such as medical officials, CID, judges, etc., often seek to protect the police personnel, which leaves the victims in a helpless state. There is, thus, an urgent requirement to strengthen the legal framework and enforcement mechanisms to curb such violations.
V. CRITICAL ANALYSIS AND RECOMMENDATIONS
In 1985, a recommendation was given by the Law Commission of India (hereinafter referred to as LCI) that the Indian Evidence Act should be amended, adding Section. 114B, to provide that courts may presume an injury to be caused by the officer having custody of a person if a person has any bodily injury which he/she is in police custody. This recommendation was made after the case of UP v. Ram Yadav, which recognized the realities of strict requirements of burden of proof which could hinder justice for the first time. This amendment has, however, not been recognized yet, thus not recognizing the ground realities and denying human rights to suspects/accused/prisoners. There exists a lack of accountability and transparency in acts of police brutality. Civil society groups play a vital role and can hold the authorities accountable for their acts to end the culture of torture and impunity. The court in Sube Singh v Haryana recognized the importance of using modern methods of recording such as video-recording, etc., in the filing and investigation stages to avoiding manipulations in FIRs, Post-Mortem Reports, witness statements, etc., to ensure transparency. A former director-general of the police, N. Ramachandran stated that in India the police officers, especially junior-level police often extract confessions using methods of torture, rather than using forensic evidence. Under-staffing of forensic laboratories and a backlog of cases need to be addressed. Thus, such resources need to be made available with provisions for adequate training.
The National Crime Record Bureau(NCRB) does not maintain records of cases of custodial torture. This is one of the reasons given by the Government for being ignorant of the existence of torture in police custody. The NHRC deals with cases of custodial torture.  In the NHRC report 2017-18, the commission received intimations of 148 deaths during police custody.  The institutionary of the police lack proper working conditions. Police officials in the greed of promotions and raise often resort to methods of torture. There is a need for proper resources to be made available to the police and lessen the interference of political parties who may force the police to use wrong investigation techniques for delivering to the public. According to a report by Amnesty International, Uma Bharti said that she had ordered that rape suspects be tortured when she was the Chief Minister; A team visited a jail and reported that prisoners were routinely beaten. 
Several provisions provide immunities to public servants. Section 197 of CrPC provides that cognizance of offences cannot be taken by courts against any public servant while he/she is acting on duty and is alleged to commit any offence, without prior sanction of the Government. The Supreme Court in several cases including P.P. Unnikrishnan vs. Puttiyottil and Subramanian Swamy vs. Manmohan Singh, held that for protection under Section 197, the act must have a reasonable connection with the discharge of the official duty. Public servants are granted such protection to ensure that they can perform their duty without having the fear of malicious prosecution. However, since these protections are an exception to article 14, it must be construed narrowly. Despite such rulings, the authorities often ignore the limits set by the courts. Amendment in this section which provides for the definition of “official duty” in consonance with the limits set by the Supreme Court must be made wherein “official duty” does not include custodial torture, extrajudicial killings, etc. According to the “Paris Principle,” independence of NHRI/NCHR (as in India) is essential.  The NHRC is controlled by the “Ministry of Home Affairs,” the department responsible for overseeing law enforcement officers and police. This raises questions regarding the independence and efficiency of the committee. There exists a conflict of interest as the NHRC personals are appointed and receive a salary from the government. Moreover, there is a problem of inaccessibility of NHRC since most of its functioning is in Delhi.
India had signed the UNCAT in 1997 but has not yet ratified it. The “Prevention of Torture Bill” (hereinafter referred to as the PTB, 2010) was passed by the Lok Sabha in 2010 but was referred to a Select Committee by the Rajya Sabha. This bill lapsed subsequently. In 2016, a writ petition was filed by Dr. Ashwin Kumar seeking the legal framework to be amended in terms of the UNCAT. Due to this petition, the Central Government asked the LCI to submit a report on the issue of ratification of the Convention. “The Prevention of Torture Bill, 2017”(hereinafter referred to as the PTB, 2017) was submitted by the LCI and is under consideration. It is essential for India to ratify the UNCAT as it is hampering its anti-corruption and counter-terror measures coupled with the absolute need at the domestic level. 
There are several drawbacks in the PTB, 2017 including that the bill places a very high standard for physical violence, and the provisions are vague and open to interpretation as it does not provide definitions for “danger to life, limb or health” and “grievous hurt.” Unlike the PTB, 2010, the bill does not account for class discrimination among victims on the basis of race, religion, sex, considering the Indian society. The bill does not provide for a compensation formula to be used for compensating victims and does not provide for rehabilitation measures too; It also does not contain provisions for an independent investigation.  The statutory limitation of 6 months in the PTB, 2017, to file a complaint could be highly detrimental. Thus, even if this bill is subsequently passed, it is not an adequate reflection of the UNCAT and lacks securing an effective safeguard against acts of violation of human rights.
In several cases of violation of human rights/custodial deaths, the NHRC has given directions of providing compensation to the victim/next kin. However, often, the officers perpetrating such acts are only suspended temporarily, and conviction rates are very low. Thus, there is a need for punishing such evils of society, without which such violations would continue to exist owing to the supposed immunity. The requirement of setting up of CCTV cameras as directed by the apex court in 2015 has not seen much implementation. The state and central governments must file report regarding the progress of installing CCTV cameras across police stations and set targets and timelines for the completion of installation of CCTV across all police stations in the country. This would enable gathering evidence in custodial violence cases and also deter the officials from engaging in acts of custodial violence. Currently, three states namely, Mizoram, Arunachal Pradesh and Nagaland have not set up a SHRC at all. Further, many states do not have adequate members required for the functioning of the SHRCs. It is essential that each of these bodies are governed, adequately staffed and operate according to the PHRA. Further, under Section 30 of the PHRA, human rights courts must be set up.
Compliance with the D.K. Basu and other guidelines issued by the courts is essential. Apart from laws and guidelines to regulate actions of the police forces, there is a need for compassionate and informed citizenry. Off late, custodial violence instead of receiving a push back from the citizens, has been accepted and offered public support. This denies the accused fair trial as guaranteed by the Constitution. In such a case, it is crucial that the State Governments take on awareness drives and display the rights, remedies and the limitations of powers of police in public spaces. Further, the elected representatives must discourage and condemn violations by the officials while making public statements.
I believe that the problems of violations of Human rights during police custody have been normalized and accepted in Indian society. The immense burden on the authorities to deliver results in a speedy manner without having access to sufficient resources to carry out the procedures effectively is a major reason for resorting to such acts. The society and instrumentalities of the government consider the use of torture/police brutality as an effective means to reach the desired results, even after having legal provisions and the judgements delivered by the Apex Court emphasizing the importance of safeguarding human rights of all citizens there existing silent acceptance and condoning such acts by the state machinery. Emphasis has been laid by various institutions recommending India to ratify the UNCAT. However, the government seems to disregard the realities and cruelties faced by individuals with the use of torture by authorities who are meant to protect and safeguard society against such evils. Provision of adequate resources, training of police officers in using modern technology, sensitizing them towards human rights is essential. There is an urgent need for a special act criminalizing the use of torture during custody and stringent enforcement mechanism. Periodic visits by independent authorities, accountability, and transparency in police procedures have to be maintained for victims to redress their issues. The independence of NHRC and providing them with adequate powers and resources to monitor and curb such acts is crucial for victims to feel encouraged in reporting such acts. Lastly, I believe that counselling and rehabilitation of victims of such violations are vital. The notions of society have to be changed, and it has to be recognized that human rights are not exclusively available, and prisoners/accused/suspects are needed to be protected against such violations.
[The author is a fifth year BBA. LL.B. student at O.P. Jindal Global University]
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