Custodial violence has become a very important topic in our society. In 2019, there were more than 1700 Custodial Deaths. After the death of George Floyd in US and the custodial death of Jeyaraj and Fenix at Sathankulam Police Station in Tamil Nadu raised a lot of questions and concerns about the matter which escalated to a debate about the 3rd degree torture by police. The death of George Floyd in the US resulted in heavy protest and as a result of that protest, the Congress introduced a police reform bill and it is discussed to maintain a national database that records all misconduct with the police.
Prevention of Torture Bill
In India, 10 years ago, there have been discussions about the Anti Torture Bill (2010) which was almost same as police reform bill. So, the Anti Torture Bill (2010) has been discussed in parliament many times but has not been passed yet. Globally, laws regarding Anti Torture were discussed for the first time by United Nations Convention Against Torture 1975. Now, India is a member of the UN, so to apply any law by the UN in India, our parliament has to make a law for it. So, to make UN Convention Against Torture 1975 a law, a Prevention Of Torture Bill 2010 was presented to Lok sabha.
According to this bill, if any public servant commits a torture, then there are punishments which are prescribed in this bill. This bill explains the word “Torture” very broadly and explains that if any public servant tortures any individual or any third party for deriving any information or any confession by hurting that individual grievously or tortures his life or limb mentally or physically, then all these things will be considered as “Torture” and against this act, there is a punishment of 10 years given.
Rajya Sabha Select Committee Suggestions for the Anti Torture Bill
After this bill gets passed by Lok Sabha, it comes to Rajya Sabha. For further consideration, it passes the bill to Rajya Sabha Select Committee Suggestions. The Committee provides some suggestions for this bill like the definition of torture should be expanded which means much that many other meanings of torture should be included in the definition so that there is a wide definition of torture. The Committee also suggested torturing women or children should have severe punishments. This means that if any woman or child has been tortured, then the punishment should be stricter. They also suggested setting up an independent authority which can investigate all the activities and provide all the needed compensations to the victims.
So, after including all these suggestions, this bill was presented many times in Rajya Sabha but this bill has not been passed by Rajya Sabha yet. In 2017, the Law Commission said that they are seriously considering the bill. But before passing this bill, there should be several changes that will be required in Indian Penal Code, Indian Evidence act and Criminal Procedure Act.
Major Judgments by the Supreme Court on Police Violence and Custodial Deaths
In the case of Rudul Shah v. State of Bihar, 1983 the petitioner, Rudul Shah was kept illegally in jail for 14 years. The writ of habeas corpus was filed and his immediate release was demanded. In this case, the Supreme Court realized that if the constitutional right of any individual is being violated by the state, then that individual will get compensation.
In the case of Saheli v. Commissioner of Police, 1989 the police along with zamindar misbehaved with the rented mother and the 9 year old child. Due to this, the 9 year old child dies. The Supreme Court gave two options to Delhi administration which was either to make the police officer responsible for the incident or to recover the amount. In this case, the Supreme Court compensated the mother by awarding Rs 75,000.
In the case of Nilabati Behera v. State of Orissa, 1993 Suman Behera was arrested by police and the very next day her body was found on a railway track with multiple injuries. In this case, the petitioner was awarded a compensation of Rs 1,55,000. So by seeing all these cases, we get to know that while awarding compensations, the Supreme Court doesn’t follow any specific criteria. The amount of compensation gets decided based on different situations of the case. The Supreme Court said that it is the state’s responsibility to give the compensation and not the responsibility of the police officer.
In the case of Joginder Singh v. State of UP, 1994 the Supreme Court said that if any arrest is done without any justification, then it will be an illegal act. The Supreme Court said that police officers have the power to arrest but just for using this power they can’t arrest. There must be a just reason for arresting any individual.
In the case of D.k. Basu v. State of West Bengal, 1997 the Supreme Court recognized custodial violence and police torture and said that custodial violence is an attack on human dignity. The court said that after having many recommendations and policies, the cases of torture and deaths in police custody are increasing. Therefore, there are a total of 11 guidelines that have been provided which every police officer should follow when making an arrest. These regulations and powers are available to everyone arrested in the country.
Guidelines to be followed by Policemen while arrest
The first guideline states that the Police Personnel should carry clear identification and name tags with their designations and police have to maintain a register of those officials who are handling the case or interrogation.
The second guideline states about Arrest Memo. If a police officer makes an arrest, he should keep an arrest memo, which should contain all the details of the arrest, such as the witness’s signature, time, date and place of arrest.
The third guideline states that another person knows about his arrest. This means that the arrested persons’ relatives or friends must be informed about the arrest of that person and where he has been detained must be informed as well and they have to maintain an official diary in which all the records have to be mentioned like which officer is handling the case and who has been informed.
The fourth guideline states about Inspection Memo. This should be taken into account if the arrestee suffered a major or minor injury. Inspection memo would be signed by both police officer and arrestee and arrestee will get a copy of inspection memo.
The fifth guideline states about Medical Examination. After the person is arrested, there should be a medical checkup every 48 hours. After this, the copy of all the documents including the medical report, inspection memo and arrest memo will be sent to the magistrate for their records. While at the time of interrogation, the arrested person can meet his lawyer. Each district and state headquarters should have a police control room, so that they can get all the information related to the arrest within 12 hours of the arrest and the Police Control Room Board will display all this information.
Therefore, even after the judgments of Sheela Barse v. State of Maharashtra and D.K Basu v. State of West Bengal in which the guidelines have been given, there is still a steady rise in cases of Custodial Violence. If the torchbearers of the law use torture, then it cannot be acceptable at all.