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Written By : VISHAD SRIVASTAVA
A relook of the constitutional provisions beginning from the Preamble and in chapters on fundamental rights, directive principles of State policy, fundamental duties and others providing formation of democratic government at the Centre and the State would make it evident that our Constitution in theory and practice is a testament of the people of India to protect and promote all fundamental human freedoms with dignity of every individual, purely as a human being regardless of his social and economic status. The Preamble contains the solemn resolve of people of India to protect all essential human freedoms of individuals. The provision of the Constitution echoes the Universal Declaration of Human Rights of 1948 which was in existence when the Constitution of India was being framed. The right to life, liberty, equality and dignity form the bedrock of our constitutional structure. Directive principles are guidelines for the State to take measures to improve quality of human life such as, ensuring humane conditions for the working class, social security measures for old, sick and handicapped, compulsory primary education and maintaining institutions for public health and many other activities for social upliftment and happiness of mankind. Article 21 of the Constitution guarantees right to life to every person and not only to every citizen of India. That right cannot be deprived of except in accordance with law which should be reasonable, just and constitutionally valid. By giving an expansive meaning to Article 21, various human rights culled from Universal Declaration of Human Rights, and treaties and conventions issued thereunder, have been read into Article 21 like right to livelihood, right to shelter, right to food, right to portable drinking water, right to access to health services, right to legal aid, right to privacy, right to protection against sexual harassment, right to be protected against police torture, custodial violence, handcuffing and illegal arrest. Speedy and fair trial has also been read as part of right to life guaranteed under Article 21.
MEANING OF THE TERM CUSTODIAL VIOLENCE
Custodial violence is the term which is made up of 2 terms custody and violence. Here the word custody means – A person who is under the control of the court or is in the physical hold of an officer with coercive power is in “custody” for the purpose of Section 439 CrPC. Explanation given in Black’s Law Dictionary, to the term ‘custody’ relied upon by Supreme Court viz.: “it is a very elastic and may mean actual imprisonment or physical detention.Within statute requiring that petitioner be ‘in custody’ to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be ‘in custody’ for purposes of habeas corpus proceedings”. Another term which is used here is Violence and that means a mechanism which is used to assert one’s will over another in order to prove or feel a sense of power or superiority. It is generally perpetuated by those in power against the powerless. Violence therefore operates as a means to reinforce subordination. When a person is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by Judicial Orders, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. This word is of elastic semantics but its core meaning is that the law has taken control of the person. Pre-conviction custody is known as under trial custody which is chiefly of two types- police and judicial. In police custody, the suspect is detained in the police lock-up by the investigating agency during the period of investigation which can’t be more than 24 hrs. Any detention beyond this period has to be with the permission of the magistrate and in total it can’t exceed 15 days. In judicial custody there is incarceration of the suspect which is authorized by a magistrate pending investigation or trial in a jail which is distinct from a police lock-up. The investigating agency can have access to such convict in the judicial custody only with the special orders of the court only. There is no statutory upper limit to under trial judicial custody save a provision which is commonly known as ‘default bail’. There are other kinds of custody as well such as protective custody, deportation camps for foreigners whose presence has been declared to be illegal and military custody. The juveniles are housed by a special order in protection homes. For destitute women also, protection homes have been established. Under the Mental Health Act, persons may be committed to mental hospitals. Military custody is subject to the law of armed forces where only military personnel can be taken into custody and not the civilians by them. The paramilitary forces, when they exercise powers of arrest are required by law to hand over the arrested persons to the police.
PROVISIONS REGARDING CUSTODIAL VIOLENCE
Custodial violence primarily refers to violence in police custody and judicial custody. Besides death, rape and torture are two other forms of custodial violence. Custodial violence is not a recent phenomenon. Sections 330, 331 & 348 of IPC; Sections 25 & 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 were enacted to curb the tendency of policemen to resort to torture to extract confessions etc.
Provision in IPC- The sections which are involved in the matter related to custodial violence are section 330, 331 and 348. Here section 330 state that Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and section 331 deal with the same issue but this section talks about grevious hurt but section 348 talks about the wrongful confinement of persons to extort confession or compel restoration of property. In the landmark case related to section 330 and 331 is Kartar Singh vs State of Punjab where Constitution bench give the judgement that In cases of “Police brutality and utter atrocities committed is breaches of humanitarian law and total negation of constitutional guranteees and human decency. Human Rights constitute the basic right and constitution of India expressely confers to safeguard it and this goes without saying that if the officers incharge of custody does any act where the degree of barbarism is not imaginable then they have to face perpetual judicial scrutiny oders. Nowadays use of third degree has become the common part played by the police official but we condemn this act of barbarism. To safeguard we have made the provison for section 24 of the evidence and as well as sections 330and 331 of Indian Penal Code. Article 21 which state about right to life and personal liberty and in this Article 21 there is right against torture and assault by the state. Therefore this court advice the police to maintain the balnce between the arrest of person and getting a person punished for his grave mistake.”
Provision in evidence act- Section 25 of Evidence act state that No confession made to a police officer, shall be proved as against a person accused of any offence. The important case law which flows for the right against custodial violence is In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores.Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession. In Aghnoo Nagesia v. State of Bihar the Supreme Court held that “if the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25.” Section 27 provides as to how much of information received from an accused may be proved. For the application of S. 27, the statement of the accused is required to be split into its components and the admissible part of it is to be separated. Only those portions which were immediate cause of discovery would be admissible in evidence. In State of Bombay v. Kathi Kalu Oghad, the Supreme Court held that: Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under S. 27. These will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that S. 27 necessarily infringes Art. 20(3) cannot be accepted.
PROVISION IN CONSTITUTION
Art. 20(3) provides that a person accused of any offence shall not be compelled to become a witness against himself. The accused has a right to maintain silence and not to disclose his defence before the trial. Test results of polygraph and brain finger printing tests have been held to be testimonial compulsions and thus have been held to be barred by Art. 20(3). Moreover recoveries under S. 27 of the Indian Evidence Act, 1872 are not permitted to be procured through torture. Art. 21 provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The Supreme Court has consistently held that custodial torture violates right to life enshrined in Art. 21 of the Constitution. It is settled legal proposition that Art. 21 may also supplement various requirements laid down in Art. 20.
In Sunil Batra v. Delhi Admn. the Supreme Court in crystal clear words held that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.”
Art. 22(1) & (2) provide for protection against arrest and detention in certain cases. It prohibits detention of any person in custody without being informed the grounds for his arrest nor he shall be denied the right to consult and to be defended by a legal practitioner of his choice. “Every person who is arrested and detained in custody shall be produced before the nearest judicial magistrate within a period of twenty-four hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” Similarly, a criminal trial which may result in depriving a person of not only personal liberty but also his right to life has to be unbiased and without any prejudice for or against the accused. It has also been held that a punishment which is too cruel or torturous is unconstitutional. Informing about grounds of arrest is mandatory under Art. 22(1) Right to consult and to be defended by legal practitioner of his choice is also mandatory. More so, production of the accused before the nearest magistrate is a mandatory constitutional requirement.
India signed the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [adopted by General Assembly of the UN on 10-12-1984 (Resolution No. 39/46)] (known as the UN Convention against Torture, in short “CAT”) on 14-10-1997 however, so far it has not been ratified. India has expressed its reservations against certain provisions contained in the Convention, such as inquiry by the CAT (Art. 20); State complaints (Art. 21) and individual complaints (Art. 22).
(i) Observation of certain organisations
The International Commission of Jurists, and other organisations have urged India to adopt the reforms suggested by the Convention. The Universal Periodic Review is an interactive process carried out after every four years. Under this framework, the Human Rights Record of UN member States is reviewed. India has also been requested to ratify the Torture Convention by some State parties during the Universal Periodic Review of Human Rights.
The Working Group on Human Rights in India has called for intervention by the Government against torture.
(ii) Government’s stand
The Central Government initially took the stand that under the Indian Penal Code, 1860 torture is a punishable offence. Later on, it was decided to go for standalone legislation and the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha to give effect to the provisions of the Convention. The Bill was passed by the Lok Sabha on 6-5-2010. Rajya Sabha referred the Bill to a Select Committee which had proposed amendments to the Bill to make it more compliant with the torture Convention. However, the Bill lapsed with dissolution of the 15th Lok Sabha. India is not agreeable to repeal the Armed Forces (Special Powers) Act, 1958 (Afspa).
In Ashwini Kumar v. Union of India a Civil Writ Petition filed by Dr Ashwani Kumar, the petitioner submitted before the Supreme Court that “India faces problems in extradition of criminals from foreign countries because of this (having no law against torture). It’s in our own national interest to have such a law.” The petitioner sought directions to the Government to have a legal framework and proper guidelines in terms of the CAT to prevent torture, cruelty, inhuman or degrading treatment to jail inmates. In 2012 the UN Special Rapporteur presented his Report on Death Penalty and Prohibition of Torture in the United Nations General Assembly. The report noted that while death penalty is not violative of the prohibition of torture and cruel, inhuman and degrading treatment, certain aspects related to it such as certain methods of execution and the incident of being on a death row may be covered under this convention. However, it must be noted that such a view on Torture and death penalty is applicable to only those countries which carry out under the guise of lawful sanctions, barbaric execution (e.g death by stoning) which clearly have traits of torture. Human rights concerns for death penalty and torture are often cited as grounds for refusing extradition requests. Countries that have abolished death penalty often need diplomatic assurances that rights of the person to be extradited shall not be breached. If it appears that death penalty may be given, or there are grounds for believing that if the person is extradited he may be tortured or subjected to cruel, inhuman and degrading treatment or denied any of the rights guaranteed to him by various international law instruments such as Iccpr and Undhr. It would hardly be conducive to the object of the convention when a State party surrenders a suspect or fugitive knowingly to another State party where he will be in real danger of being subjected to torture, it would run contrary to the spirit and intention of the Convention itself, to expose a person to the real risk of torture or cruel, inhuman and degrading treatment. It has also been held that as such prolonged duration of a death row inmate and the “ ever present and mounting anguish of awaiting execution of death penalty” would amount to torture.The prohibition of torture is a part of customary international law and is a part of jus cogens. Inclusion of extradition prohibitions in the Torture Convention enjoins more States to ensure accountability worldwide for acts of torture. The Convention has not created an international crime which had not previously existed but provided an international system under which the torturer — international criminal, could find no safe haven.
In Shatrughan Chauhan v. Union of India the Supreme Court while discussing the scope of torture in the execution of death sentence observed:
“undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Art. 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.” The Court, in response to the Solicitor General’s statement that the Law Commission of India was examining the issue, observed: “So many matters are pending before the Law Commission. It should be taken up as a matter which requires extreme urgency.” Accordingly, the Central Government vide its letter dated 8-7-2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.
Law and order means that the police is empowered to maintain order in the society but it must derive its power from the statutes under which it has been formed. It should not take law into its own hands. It gets its power from the law and in turn has to exercise the same lawfully only and not unlawfully. Police has to balance between the rights of the accused, victim and the witnesses. Police has to subscribe to the ‘rule of law’ which is paramount to any democracy of the world. In democracy, charter of police is expanded and included to regulate activities of people under social legislation. While democracy speaks of freedoms, police curtails them which result into the conflicts between the people and the police. Like a clergyman a policeman is expected to be better than his fellow citizens. He is the law in action and the gatekeeper of the criminal justice system. He enjoys discretionary powers in the field whether to set the law in motion or not. He should possess and display the best of human values.
Edited By : GAURAV AGARWAL