Introduction
Investigating crimes is arguably one of the greatest responsibilities conferred on the police force. Effective investigations are vital for the maintenance of public order, protection of the victims, and apprehension of those guilty of committing the offenses. This power, however, is neither unlimited nor unrestricted. In a constitutional democracy where the rule of law prevails, every exercise of police power must be legal, fair, and dignified. Being accused of crime does not make an individual automatically forfeit his basic rights. Fairness of the process of investigation is a critical aspect of the criminal justice process.
Police torture has become a major issue in relation to human rights in India. Issues of illegal detention, torture of the individuals held in custody, extraction of false confessions, intimidation, threats, verbal abuses, and custodial deaths have been the subject matter of many judicial inquiries, reports from the human rights organizations and civil society. All such acts of torture violate the very essence of the law enforcement and also breach the promise made in the Constitution about life and liberty of the citizens. Given the vulnerable position of individuals held in police custody, a number of legal safeguards have been provided.
The passage of the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA) statutes has brought about the modernisation of the criminal justice system in India without deviating from the basic tenets of arrest, investigation, and evidence. The above-mentioned laws, along with Articles 14, 20, 21, and 22 of the Constitution and important decisions of the Supreme Court of India, ensure that the investigating officer performs his duties within the legally allowed framework. In addition, these laws provide victims of custodial abuse multiple options for filing complaints in relation to custodial abuse such as criminal proceedings, constitutional remedy, departmental proceedings, and human rights interventions.
This article provides an analysis of the legal aspects of custodial abuse, rights of the accused persons and obligations of the investigating officers, and legal procedures for reporting and proving mental and/or physical abuse in police custody.
Meaning and Scope of Custodial Harassment
Custodial harassment is defined as any form of physical, mental, emotional, or psychological torture inflicted on someone under the custody or control of the police or law enforcement agencies. While the Indian laws have not specifically stated custodial harassment in the criminal laws of the country, it has been repeatedly held through various judicial pronouncements that any kind of torture of a person by the police during his arrest, detention, or investigation would constitute custodial harassment.
Custody does not necessarily mean confinement in a police station. The restriction of someone’s freedom by the law enforcement agencies amounts to custody. Therefore, the moment someone is detained due to a criminal investigation, his constitutional rights come into play.
Physical torture is the most obvious form of custodial harassment. This could range from beating, kicking, slapping, using excessive force, giving electric shocks, or using third degree methods for extracting information or confession.
Just as serious is psychological torture, which involves no obvious physical injuries but inflicts emotional wounds that last for life. Threats to relatives, questioning for long periods of time without proper breaks and rest, sleeplessness, lack of food or any medical treatment, verbal abuses, caste-based abuses, and techniques used to extract confession amount to psychological torture. It is a well-established principle in courts that torture is not limited to physical pain only and can be psychological as well.
Custodial torture includes unlawful detention exceeding the permissible period of custody as per the law, denying legal assistance to the detainee, failure to inform the relatives about the arrest, fabricating evidence, and forcing a suspect to sign anything without knowing what he or she signs.
Constitutional Safeguards Against Custodial Abuse
The Constitution of India provides a strong mechanism to protect people from being arrested arbitrarily or subjected to violence in custody. Such constitutional protections extend to everyone, regardless of the offense alleged.
According to Article 21 of the Indian constitution, no individual shall be deprived of life or liberty except in accordance with procedure established by law. Interpretations of the Indian Supreme Court have further widened the ambit of such a constitutional guarantee. The Supreme Court in Maneka Gandhi v. Union of India ruled that the procedure referred to under Article 21 must be just, fair, and reasonable. Any investigation carried out in a manner of violence, coercion, or arbitrariness does not meet the standards set forth by the Constitution.
Right to life guaranteed by Article 21 of the Indian Constitution is much more than right to physical existence alone. Right to life under the provision means the right to lead a dignified life with bodily integrity, right to medical aid, right to legal aid, and protection against torture or cruel treatment.
Article 20(3) ensures the right of an accused not to be subject to forced self-incrimination through ensuring that no person accused of an offense can be compelled to be a witness against himself. This right becomes especially important during interrogation by the police. Confessions obtained under duress, intimidation or any other means violate the constitutionally guaranteed rights and are looked upon with a great deal of suspicion by the courts.
Article 22 provides additional safeguards through ensuring that every arrested person be informed as to the reasons for the arrest and be allowed to seek and be represented by legal counsel of his choice, as well as being presented before the nearest magistrate within twenty-four hours of his arrest. These provisions provide judicial oversight of police activities and eliminate the danger of unlawful or prolonged detention.
Article 14 ensures that all people have the same rights before the law and equal protection under the laws. The police derive their power from the law, thus, any arbitrary and discriminatory actions on their part violate the constitutional principles of equality.
In summary, these clauses ensure that the constitutional rights of a person do not cease once he/she is arrested. Neither being deprived of freedom nor liberty gives the State the right to strip one of his/her dignity.
Custodial Harassment as a Human Rights Concern
It has been observed that the ban on torture is seen as an important feature of international human rights law. The provision of Article 5 of the Universal Declaration of Human Rights provides for the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment. There are similar provisions contained in the ICCPR to which India is a party.
Though the country has ratified the UNCAT, there is no special legislation against torture within the domestic legal framework of the country. However, the Supreme Court of India has taken into account the norms of international human rights law when interpreting the meaning of Articles 21 and 22 of the Constitution. In cases where domestic law was ambiguous, relevant international conventions in accordance with constitutional norms were taken into account to provide greater security from custodial harassment.
It has been observed that international human rights law takes into account non-physical torture such as prolonged isolation, threats, insults, lack of sleep, etc. All these could result in the infliction of great mental suffering and are therefore considered to be inhuman or cruel treatment.
Nevertheless, the difficulty is ensuring that policing and individual rights do not come into conflict. Investigators should have the ability to do their job, but no amount of need for evidence collection can ever legitimize the use of any means that go against the Constitution.
Statutory Safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023
Besides the constitutional provisions ensuring the protection of arrested individuals, there are the procedural safeguards enshrined in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The main aim of these procedural safeguards is to ensure transparency in arrest and investigations and, at the same time, avoid arbitrary actions by the police. According to the BNSS, an investigation will be effective if carried out in the legal manner.
Informing the accused of the ground of arrest is one of the most essential safeguards provided for by the BNSS. It is not merely procedural but the base of a proper criminal procedure since an accused cannot defend himself against the arrest and detention if he is not aware of its grounds.
According to the BNSS, information about the arrest must be provided to a relative, friend, or some other individual designated by the accused. It helps avoid any secret arrests and allows relatives to find a lawyer as soon as possible. Another measure, such as the recording of arrest data, increases the accountability of actions and ensures their control by the court.
Medical examination is another key protection mechanism. When an arrestee has been subjected to bodily injury or any kind of custodial violence, then a medical examination of the accused becomes very essential in recording his state of health. Medical records play a two-pronged role. First, it helps protect the accused from any harm done to him and also protects the investigating officials from false claims when there is no truth behind these allegations at all. The courts take into account medical reports made at the same time when deciding on cases of custodial violence.
The BNSS further makes it incumbent upon the arresting authority to produce the arrestee before the jurisdictional magistrate within twenty-four hours of his arrest, leaving out travel time. Judicial scrutiny acts as one of the strongest protective mechanisms against custodial abuse since through it an independent body can look into the question of the legitimacy of the arrest and of course the health of the arrestee. Any allegations of assault, intimidation or even illegality in detaining the person can be looked into.
Protection under the Bharatiya Nyaya Sanhita, 2023
Although the BNS, 2023, does not make any specific provision for “custodial torture” as an offence, the police officer continues to be criminally responsible for the offences committed in the course of discharging his/her official duty. If there is an act committed in consequence of which voluntary causing hurt, grievous hurt, wrongful confinement, criminal intimidation, assault, or death takes place, the officer concerned can be proceeded against for committing a criminal offence in accordance with the law.
The law does not grant immunity just because the offence has been committed by the public servant during investigation. Rather, abuse of official power amounts to a serious violation of the public trust. It has been held by many courts that the public servants who exercise coercive power should be subject to strict scrutiny because the actions have an impact on the liberty of the citizenry.
If custodial abuse causes serious harm or leads to death, then there can be criminal responsibility along with departmental action and other remedies under the Constitution of India.
Protection under the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) serves as a valuable instrument to prevent custodial abuses through its provisions regarding the admissibility of evidence. It adheres to the well-settled rule that confessions which have been induced, threatened, coerced, or extorted are unreliable evidences.
The courts evaluate whether the conditions surrounding the making of the confession point out that the confession is involuntary. Such elements as long detention, bodily injuries, allegations of torture, absence of legal assistance, and mental pressure might suggest that the confession is not made voluntarily. Thus, the investigating agencies are motivated to rely on scientific inquiry, forensic evidences, electronic records, and documentary evidence, but not coercive questioning.
Such evidence system represents the constitutional principle that the truth is to be ascertained only by lawful inquiry and not by forced confessions.
Rights of an Accused During Arrest and Investigation
The law also takes into account that the accused still has a number of enforceable rights in the course of the investigation. Such rights are crucial for ensuring a balance between effective law enforcement and maintaining individual freedom.
First and foremost, it is the right to representation. An arrested person has a right to be advised and represented by his/her lawyer. Having access to legal counsel helps the accused to learn about procedural guarantees, raise issues of arbitrary arrest, and request prompt judicial review in case of abuse.
It is worth noting that an accused has a number of other guarantees, one of which is the guarantee of protection from compulsory self-incrimination. While investigating officers have the right to interrogate the accused in the course of the investigation, it is illegal to force the accused to make a confession through physical torture, threat, intimidation, or psychological pressure.
Right to receive medical treatment is no less important. Any time injuries occur during arrest or detention, the accused has the right to seek immediate medical attention. Often times, medical records made on time play a crucial role in cases where there are allegations of torture during custody. Willful denial of medical treatment not only causes further agony to the accused but constitutes a violation of Article 21 of the Constitution in its own right.
In addition, the accused also enjoys the right to contact his or her family members and contest any case of illegal detention before the competent court of law. Any time the police does not adhere to the statutory provisions in relation to the arrest or production before the Magistrate, the detention could be termed illegal by the courts.
All of these rights serve to ensure that an accused person is not subjected to arbitrary action by the State while criminal proceedings are still going on.
Rights and Duties of Investigating Officers
When talking about custodial harassment, attention is usually paid to the rights of the suspect. At the same time, one should not overlook the legal power and obligations of the investigating officer. The role of police officers in the prevention of disorder, collection of evidence and bringing offenders to court is important to consider. Investigation is a key element in the administration of criminal justice.
An investigating officer is empowered to arrest persons provided the statutory conditions are met, interrogate them, gather documentary and forensic evidence, examine witnesses and apply other investigatory measures provided for by the law. However, each use of such power must be proportionate, necessary and in line with constitutional safeguards.
The primary obligation of an investigating officer is unbiased and objective investigation. Investigation aims at establishing the truth and not at any cost securing a conviction. Consequently, it is necessary to collect all kinds of evidence and refrain from making up evidence and obtaining confessions.
The investigating police officers have a legal responsibility of ensuring that there are accurate custody records prepared, arrest memorandums prepared and the accused brought before the magistrate within the required time period. This ensures transparency of the process and avoids charges of misconduct.
Observation of the dignity of humans is yet another important element of policing. All accused persons, whether their crime be small or grave, deserve fair treatment and courteous behavior. Use of unnecessary force, abusive language, humiliation, discrimination or intimidation is unacceptable within any criminal justice system which is ruled by the rule of law.
Scientific investigations are becoming very common with modern policing. The investigation of crimes through forensic science, cyber forensics, digital evidence and electronic surveillance has become common practice. The use of objective evidence not only makes the criminal case stronger but also decreases the need for the use of coercive interrogation techniques. Therefore, the protection of human rights and investigations can be considered complementary goals.
Even though there are constitutional rights and statutory rights, cases of custodial harassment are still being reported. In most cases, the problem does not stem from the lack of legal measures but in the capacity of the victim to report such violations and prove their claims using credible evidence. The following part thus seeks to analyze the legal mechanisms that can be used to report custodial harassment, the process of proving psychological and physical abuse before judicial tribunals, and the important role played by the Supreme Court.
Reporting Custodial Harassment: Available Legal Remedies
Although there are many constitutional and statutory provisions ensuring adequate protection to citizens, reports regarding custodial torture are generally few because of fear of reprisals, lack of legal knowledge and the disparity in power between the accused and the police department. But there are several ways in which Indian laws have remedied the situation of custodial abuse.
The very first step is to disclose the act before the magistrate when the accused is brought before the court. This production of the accused before the magistrate is not just a procedural step but a judicial safeguard against illegal detentions and custodial torture. In case the accused has been assaulted, intimidated, illegally detained or mentally tortured, all these facts should be disclosed before the magistrate. The accused can even pray for a medical test, legal protection or judicial directions. All these will form part of the judicial records and thus will strengthen future legal actions.
In case the misconduct of the police officers constitutes an offence, a complaint can be filed in order to get the case registered as a criminal case against the offending policemen. According to the facts of the case, criminal liability may be incurred for offences such as voluntarily causing hurt, grievous hurt, wrongful confinement, criminal intimidation, and other offences under the Bharatiya Nyaya Sanhita, 2023. Being an official does not preclude the policeman from being prosecuted in cases of abuse of power.
Departmental actions also form an essential tool of keeping the policemen accountable. In case of complaints against the investigating officers, they can be brought before the Superintendent of Police or other competent disciplinary authorities for departmental inquiries. In case the accusations are found to be valid, the possible punishment may range from suspension, withholding of promotions, downgrading to lower ranks, forced retirement, or termination of services.
Further, the victims can resort to the National Human Rights Commission (NHRC) or State Human Rights Commission, depending upon where the violation occurs. They are competent to conduct an inquiry into the complaints that relate to custodial violence, illegal detention, and custodial deaths. They can call for reports from the State governments, make recommendations on compensation, oversee the investigations and reforms at institutions. Though the recommendations are usually in advisory form, they hold a lot of weight and usually end up affecting actions administratively or even judicially.
The remedies under the Constitution of India are among the most powerful remedies against violations of fundamental rights. The High Courts can exercise jurisdiction under Article 226, while the Supreme Court has powers under Article 32 of the Constitution to issue writs, order independent investigations, award compensation and take any other steps that are deemed necessary for protecting constitutional rights.
Proving Mental or Physical Custodial Abuse
The effectiveness of legal processes related to custodial harassment mostly depends on the level of evidence that is submitted to the court. As most custodial abuse incidents happen in police custody, there are usually no eyewitnesses. Therefore, the court must depend on medical, documentary, electronic, and testimonial evidence in order to make a decision.
Medical evidence plays a key role in any case related to physical abuse. First, medical examination immediately after an incident is necessary in order to record injuries before they disappear. Any bruises, broken bones, injuries, burns, cuts, and internal injuries registered by medical experts usually serve as strong evidence in criminal trials or constitutional proceedings. Delay in medical examination makes the value of the claim lower since physical injuries usually get healed gradually.
Photographic and video proof of injuries would help substantiate the case. In the age of technology, photographic evidence recorded soon after discharge from custody will help corroborate medical evidence and aid the court in assessing the gravity of the complaint. CCTV recordings of police stations, whereever available, have also emerged as a crucial source of evidence in assessing the manner in which the investigation is being conducted.
Psychological torture is much harder to prove, as mental abuse rarely leads to physical symptoms. However, psychiatric and psychological assessments, counselling sessions, and behavioral changes can help courts assess the effect of intimidation, humiliation, threats or coercive questioning on the individual’s state of mind. Indian courts are slowly accepting that psychological torture can be just as damaging as physical abuse and must get similar protection under the law.
Documentation can also provide corroboration for allegations of mistreatment in custody. Arrest forms, station diaries, custody logs, medical files, telephone calls, communications via computer, and forensic analyses are often useful to help courts piece together the chronology of events. Discrepancies in any documentation regarding the time and manner of the detention can provide grounds for the charge of unlawful detention.
Evidence from witnesses such as relatives, attorneys, medical professionals, or even other detainees who have witnessed the condition of the victim following his/her release from detention can also corroborate allegations of abuse in detention. Courts tend to look at the sum total of evidence rather than require that there be eye-witnesses to the abuse, acknowledging the covert nature of mistreatment in custody.
Landmark Judicial Pronouncements
Indian judiciary has brought about a transformation in enhancing safeguards against custodial violence through a number of judgments delivered by the Supreme Court, which has widened the ambit of constitutional protection and laid down the standards for procedure in respect of the conduct of the police.
In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down detailed guidelines on the procedures to be followed while arresting and detaining an individual, including preparing the arrest memo, informing any relative or friend of the arrested person, conducting medical examination, maintaining custody record, among other things. Most of these safeguards are now part of the statute book.
In Joginder Kumar v. State of Uttar Pradesh (1994), the Supreme Court ruled that just because the police have the power to arrest, it does not mean that every case should warrant arrest. Liberty is a constitutional value and any arrest without necessity is an abuse of police powers.
The judgment in Nilabati Behera v. State of Orissa (1993) made it clear that there was a constitutional duty to provide compensation in the case of deaths in police custody or violations of fundamental rights. The court held that public law compensation is different from private law compensation and works as a device for securing the constitutionally guaranteed fundamental rights.
In Sheela Barse v. State of Maharashtra (1983), the Supreme Court underscored the vulnerability of individuals, especially women, in the police custody and emphasized on taking some steps to ensure their proper treatment while in police custody. This judgment played a significant role in developing procedures for safeguarding the rights of persons in custody.
In Arnesh Kumar v. State of Bihar (2014), the Supreme Court reiterated its stand against regularization of arrests and made it compulsory to follow the relevant laws before depriving anyone of his/her personal liberty. Though this judgment is confined to the offenses punishable with imprisonment up to seven years, it is based on sound constitutional principles.
Moreover, in Paramvir Singh Saini v. Baljit Singh (2020), the Court has mandated the installation of CCTV cameras in police stations and other investigating agencies. It was stated that surveillance by electronic means ensures transparency, prevents custodial torture, and helps in settling disputes arising in regard to conduct of police.
Strengthening Police Accountability
Prevention of custodial torture is not tantamount to curtailment of the lawful powers of the police. On the contrary, what is needed is to exercise those powers in a responsible manner and according to the dictates of constitutional jurisprudence. Accountability increases faith in the police and adds to the credibility of criminal investigations.
Consistent human rights training, better forensic facilities, scientific approach towards investigation, digital recording of arrests, use of body cams, good supervision, and prompt disciplinary action by departments against any lapses on the part of the concerned officers are the key tools to reduce the incidence of custodial torture. Alongside, it is important to raise public consciousness about the rights of the arrestees.
The use of technology like CCTV, custody register in digital form, electronic recording of interrogations has helped considerably in improving transparency. Such techniques help to protect both the accused as well as the investigating officers, giving objective evidence on events that occur during police custody.
Conclusion
Custodial harassment is amongst the most serious infringements on the rule of law, as it is detrimental to the balance enshrined in the Constitution, between effective policing and the preservation of individual liberty. The Indian Constitution, Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, Bharatiya Sakshya Adhiniyam, 2023, and jurisprudence of the Supreme Court in totality emphasize the right of each and every accused person to dignity and fair play.
The legislative scheme relating to arrest and investigation does not seek merely to curtail the arbitrary exercise of police powers, but also to provide accountability for investigating officers through judicial review, medical evidence, criminal prosecution, departmental proceedings, and constitutional remedies. On the other hand, the investigating officers have a valid role to play in the investigation of crimes, and their power should be recognized within the framework of law.
Not only the punishment of the offender, but a just and proper criminal justice system would be one that is committed to maintaining the constitutionality in all stages of the investigation process. It is very important to maintain the rights of the accused along with allowing the police to conduct themselves within the law to ensure trust in the legal process.
Frequently Asked Questions (FAQs)
- What is meant by custodial harassment?
Any sort of physical, mental, or psychological misconduct against a person while he/she is in judicial and police custody is known as custodial harassment. Physical assault, torture, intimidating, unlawful detainment, threat, verbal misconduct, denial of treatment, and many other actions which constitute violations of a person’s fundamental and human rights are considered custodial harassment.
- Can a police officer physically assault an accused in the process of interrogation?
No. According to Indian law, investigating officers are prohibited from subjecting an accused to physical assault or torture to gain information or confession out of him/her, and this kind of conduct is against Article 20(3) and 21 of the Constitution and is punishable.
- How can a person protect himself from custodial harassment?
If a person faces custodial harassment, he/she should immediately bring it to the notice of the Magistrate while being produced in the Court, get a medical test done, take the help of a legal practitioner, preserve documentary and medical evidence, and lodge a complaint before the competent police authority/Human Rights Commission/constitutional court.
- In what ways can custodial harassment be proved in a court of law?
Custodial harassment can be proven by means of medical reports, injury photographs, surveillance videos, custody records, arrest memorandums, witness statements, forensics, electronic records, and psychiatric reports in instances of psychological torture.
- Is there a possibility of compensation in case of custodial violence?
Yes. The courts have upheld that the victims of custodial violence or their families can be compensated for the violation of their fundamental rights. This compensation is in addition to any legal actions or disciplinary actions taken against the offenders.
Author: Adv.Neha Bhoir
LLM (Business Laws), BALLB(Gold Medalist),Diploma in Cyber Law