In the landmark judgment D.K. Basu v. State of West Bengal, the Supreme Court held that custodial torture is a naked violation of human rights, dignity and degradation, which destroys, to a very large extent the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward-flag of humility much must on such occasions fly half-mast. In this respect, the Supreme Court further observed that the police with their wide powers are apt to use strong arm against those who happen to fall under their secluded jurisdiction. That tendency and the temptation must in the larger interest of justice be nipped in the bud.
Human dignity is a clear value of our constitution not to be bartered away for mere apprehension entertained by jail officials, declared Justice Krishna Iyer. Similarly, torture and ill treatment of women suspects in police lock ups has been held to be violative of Article 21 of the Constitution. The court gave detailed instruction to the concerned authorities for providing security and safety in police lock up and particularly to women suspects. Female suspects should be kept in separate police lock ups and not in the same in which male accused are detained and should be guarded by female constables. The Court directed the Inspector General of Prisons and State Board of Legal Aid Advice Committee to provide legal assistance to the poor and indigent accused (male and female) whether they are under trial or convicted prisoners. The courts have recently viewed third degree methods and custodial deaths in police custody as a serious violation of human rights and constitutional provisions of right to life and liberty.7 In the case of Smt. Nilabati Behara v. State of Orissa, the Supreme Court held the liability of custodial deaths and held that compensations for contravention of human rights and fundamental rights guaranteed in the constitution, is an acknowledged remedy for protection of such rights, and directed the State to pay Rs. 1.5 lakh compensation to the petitioner for custodial death of his son aged 22 years. The right to protection against torture, which is enunciated in Article 5 of the Universal Declaration9 and guaranteed by Article 7 of the International Covenant on Civil and Political Rights10 (1976), has been read into the Constitution by the Supreme Court and various High courts.
The Government of India has signed the UN Convention against torture and other cruel, inhuman or degrading punishment (1987) on the recommendation of the National Human Rights Commission.12 The Indian legislation has also prohibited the use of custodial violence in unmistakable terms. Under sections 330 and 331 of the Indian Penal Code (IPC), 1860, it is an offence to voluntary cause hurt or grievous hurt to extort confession or to compel restoration of property. The punishment is also very severe. In case an offence committed under section 330, IPC. It is either description for a term which may extend to seven years and also fine. In case offence is committed is covered under section 331, IPC. The imprisonment is up toten years Rigorous Imprisonment and fine. The Code of Criminal Procedure, 1973 has empowered the Magistrate to enquire into the matter where any person dies while in police custody. Section 176 of the Code is relevant. The Indian Evidence Act (1872)13 also prohibits use of confession made before a police officer or in police custody and the one obtained through inducement, threat or promise, in criminal trials. These provisions are embodied in sections 24, 25, and 26 of the Evidence Act, 1872. In case of an accused is involved in Prevention of Terrorism Act, 2002, this confession before Superintendent of police may be admissible if certain safeguards are followed. The Constitution of India gives the fundamental right to the citizen not to be compelled to be a witness against himself. Article 20 (3) of the Constitution says that no person accused of any offence shall be compelled to be a witness against himself. Further section 315 of the Code of Criminal Procedure, 1973, in proviso (a) provides that an accused shall not be called as a witness except on his own request in writing. Proviso (b) further safeguards his interest by providing that his failure to give evidence shall not be made subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged with him at the same trial. Minimum punishment of ten years is provided under Section 376 (2) of the Penal Code for rapes committed in police custody on a woman or within the limits of police station to which he is appointed or in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him.
The Indian Police Act 186115, under which the entire police organisation in India derives its legitimacy and policemen have powers to function and it prohibits unwarranted personal violence by the police officers to any person in police custody. There are punitive procedures both administrative and judicial, in case of complaints of custodial violence against police officers. On January 18, 1996 the Supreme Court convicted and sentenced a senior IPS officer of Haryana, to imprisonment for 18 months for a perjury and contempt of court in case of illegal detention and abduction of two children from Agra in 1992. Besides, in another case on 9th May 1996, the Supreme Court sentenced another senior IPS officer of Assam to three months for covering up unnatural death of an under trial prisoner three years ago. In another case reported in Times of India, May 14, 1996, acting on the CBI report, the S.C. ordered the State of Punjab to pay Rs.10 lakhs compensation to the parents for abduction and murder of an Advocate, his wife and two years old child and falsely implicating an innocent person, and also pay Rs. 2 lakhs to the latter as compensation for the suffering caused to him due to false implication and remaining in jail since 1993.In spite of the above violations of human rights and constitution and the sentence and convictions passed by the Supreme Court and other courts, there is no let up in illegal detentions of innocent people in police stations and torture camps, use of third degree methods during interrogation of suspects leading to custodial deaths in police custody. According to the statistics released by the National Human Rights commission for the year 2003-2004 (NHRC, 2005),16 there were 162 deaths in police custody and 1300 deaths in judicial custody besides one death in the custody of Para-military forces making a total of 1463 as against a total of 1340 such deaths in 2002-2003, (183 in police custody and 1157 in judicial custody). It was observed that there has been a decrease in the deaths reported to the Commission in police custody and an increase in deaths in judicial custody when compared to the previous year. The number of deaths in judicial custody has to be viewed in the context of the total number of prison inmates during the given period and most of the deaths being due to illness and natural causes. Approximately 80 % deaths in Judicial Custody are found to be due to natural causes. Uttar Pradesh topped the list of custodial deaths with 217 deaths 18 in police and 199 in judicial custody. The National Human Rights Commission recommended compensation to the victims family recovering from errant police officials besides other legal action