Custodial Torture- quis  custodist  custodes Author By: Teesta mishra Co-Author Laiba Ahsan | Volume II Issue II |

On an average, there were about five custodial deaths per day during 1^st April, 2017and 28^th February, 2018 in India.

• Asian Centre for Human Rights, as on 26^th June, 2018.

Who will police the police has become an increasing concern in the present epoch. While a man moves to the police to find a remedy for any wrong done to him, where would he go if the police station itself becomes a house to iniquity?

Every day, newspapers are marred with incidents that range from hurting to killing a person in police custody. Violence does not restrict itself to the hands of criminals; it has also become a weapon of the protectors of the rights of the citizens. Ironically, police often resort to committing one crime to solve another. Police, defying their basic responsibility of protection of citizens, has started exploiting the power granted to it for the purpose. The torture inflicted is inclusive of all forms of physical and mental torture that a person can be subjected to. Cases of rapes, deaths and other brutal measures have been reported at various instances, but many a times, the cases do not even catch the light of the day. When the security of larger public is at stake, the police finds itself well justified in engaging in inhumane activities to extract information from the accused, thereby, leading to violation of not only fundamental rights, but also human rights at large. 

An effective police system is the substratum on which the entireedifices of constitutional will, maintenance of law and orderand enforcement process of social legislation rest. This paper aims to discuss theperil of custodial torture by delving into the history of custodial torture, deliberating the laws governing it and lastly, driving at some reformative measures about the same.

1. INTRODUCTION

However paradoxical as it may sound, it is a universal phenomenon that Police have been criticized and condemned for committing acts which are just contrary to their cherished ideal duties. The basic cause of such an unfortunate situation is that the powers which are given to the Police to carry out their legitimate and essential functions are capable of being abused by them to torture their fellow beings, to destroy lives and property, and oppress and intimidate the weak^[1].

This paper intends to examine the issue of custodial atrocities through its history, causes and the safeguards provided for the same under the national and international instruments. It will also delve into the approach of judiciary towards this issue and how it has attempted to resolve it through several landmark cases over time.

As there can be no proper discussion on Custodial Torture without understanding the meanings of “Custody”, “Violence” and “Torture”, there is a need to gain a better clarity of these words.

Custody commences from the time restrictions are imposed on the movement of the accused and he is kept under detention by the authorities. It includes situations where the detenu is called in the police station for interrogation^[2]. Custody may amount to arrest in some cases but not necessarily in all. Hence, actual arrest, detention or confinement is not a requirement.

In Niranjan Singh v. PrabhakarRajaramKharoteff^[3], the Supreme Court, while dealing with the meaning of ‘custody’ within the purview of Section 439 of Cr.P.C., observed:

“No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody …This word is of elastic semantics but its core meaning is that the law has taken control of the person.”

As per Section 167 (1) Cr. P.C., ‘police custody’ can be granted for a maximum period of fifteen days only. Police custody basically means police remand for the purpose of interrogation.

The term ‘violence’ is the state or quality of being violent, excessive unrestrained or unjustified force, outrage perforate injury. ‘Violence’ has been defined as the use of force by one person over another so as to cause injury to him. The injury may be physical, mental or otherwise.

Torture usually denotes intense suffering, physical, mental or psychological, aimed at forcing someone to do or say something against his or her will. It goes under the names of “sustained interrogation”, “questioning” or “examining”. Whatever the name, brutalization and violence are the most apparent results. Torture has been considered as the most barbarous act against humanity as it constitutes the very denial of the essence of human rights.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)[4]defines torture as:

“Torture means any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include painor suffering arising only from, inherent in or incidental to lawful sanctions.”

1. HISTORICAL ACCOUNT

The inhumane practice of custodial torture is not an invention of the modern era, albeit it can be traced to the earliest of civilizations. Any civilization with a policing body has not been remitted from its brunt. Manu emphasized the necessity of torture to protect the society from the hands of criminals and saw no wrong in it. Kautilya’sArthsashtra mentions various tortures being inflicted on the committers of grave offences, exempting pregnant women. Practices such as burning one of the joints of a finger after the accused has been made to drink rice gruel, heating his body for a day after he has been made to drink oil, causing him to lie on coarse green grass for a night in winter were common.^[5]

The torture of Roman times has been regarded as subtending three classes or degrees of suffering. First-degree torture typically took the forms of whipping and beating but did not mutilate the body. The most prevalent modern example is bastinado, a technique of beating or whipping the soles of the bare feet. Second-degree torture consisted almost entirely of crushing devices and procedures, including screw presses or “bone vises” that crushed thumbs, toes, knees, feet, even teeth and skulls in a wide variety of ways. A wide array of “boots”-machines designed to slowly crush feet-are representative. Finally, third-degree tortures savagely mutilated the body in numerous dreadful ways, incorporating spikes, blades, boiling oil, and controlled fire. The serrated iron tongue shredder; the red-hot copper basin for destroying eyesight (abacination) and the stocks that forcibly held the prisoner’s naked feet, glistening with lard, directly over red-hot coals (foot roasting) until the skin and foot muscles were burnt black and the bones fell to ashes are examples of torture in the third degree.[6] In the Middle Ages, torture was included in the proceedings of the Catholic Church in the ‘Spanish Inquisition’, which employed it to obtain confessions.^[7]

In the Elizabethan era, warrants of torture were legally issued. The development of Humanism in 17th century philosophy marked the end of deliberate use of torture and it was legally denounced in the English Bill of Rights of 1689. The Age of Enlightenment in the Western World further developed the idea of universal human rights. At the time, reformers urged the abolition of torture on practical and moral grounds, and in adopting their recommendations, governments emphasized their progressivism and humanity. Nineteenth-century scholars took these explanations of abolition of torture at face value, and interpreted the abolition of torture as evidence of humankind’s progress towards a more enlightened and humane future.^[8]

However, the two world wars marred the human race with the most sickening occurrences of mass torture atrocities. In Europe, torture rose with the rise in Fascism and Nazi regime. The Cold War led the conservative governments to use to crack down communist insurgencies in Latin America. In World War II, U.S. soldiers simply massacred Japanese soldiers who attempted to surrender.

The horrors of these wars made the world leaders, under the leadership of Eleanor Roosevelt, come together to sign the Universal Declaration of Human Rights. It was adopted by the third General Assembly of the United Nations on 10 December, 1948 in Paris. None of the 56 members of the United Nations voted against the charter, however, South Africa, Saudi Arabia and the Soviet Union abstained.  It was only after the Second World War that torture, just like other modes of violation of human rights, figured prominently and became a matter of international concern. The prohibition of torture is found in a number of International Human Rights and humanitarian treaties and is also regarded as a principle of general international law.

In tune with the International protocol, India has, over the years, developed laws which criminalize custodial torture.

• WHY IS TORTURE RESORTED TO?

To understand the entire issue of Custodial Torture, one has to be aware of the various reasons that make the Police Authorities resort to the most inhuman ways to extract relevant information from someone.

Police can legally detain a person in custody only for 24 hours. Beyond that, custody requires permission of the court. Also, the court often shows its reluctance in granting any further police remand. Besides, because of procedural flaws in the criminal justice system, sometimes, hardened criminals are bailed out quickly and thereafter they escape and ultimately get away scot free and unpunished. Tracing them again becomes a very difficult task. To counter such a situation, police adopts a new unwritten procedure, not sanctioned by law, whereby a crime suspect is picked up and detained many days without informing his relatives and without seeking permission of the Court.^[9] Some of the reasons to consider torture as a method to solve cases by the Police are:

1. Overburdening of the Police

As is clear after several studies on the subject, the Police workforce in India is far less in India than the required number. As in the case of the judiciary, pendency in police is governed by lack of resources. As of 2017, there are only 144 police officers for every 100,000 citizens (the commonly used measure of police strength), making India’s police force one of the weakest in the world.

The police force is overworked, underpaid and exhausted. Hence, they resort to all means possible for quickly solving the cases and hence violence becomes the easiest method. A very important reason for continuing brutal behaviour by the Police is pressure. The sources of pressure are several, but basically they relate to performance or output beyond the narrow confines of police role, in spite of constraints on adequate role performance. Policemen have to deal with crime and disorder, not on bits of paper, but in the raw, directly.

Another factor which leads to custodial torture is the intimidation from various quarters under which the police works. When some ghastly crime takes place, there is a constant strain from the seniors to apprehend the criminals quickly. Under such pressure, the policemen often tend to use third degree methods to get the quick result at the risk of magisterial enquiry, transfer, dismissal from the service.

2. Inadequate Training

The utterly inadequate training given to constables, the general absence of any attention to the necessity for keeping temper, being civil and respectful to the public, avoiding brutality or unnecessary harshness, are the factors that lead to violence. The Indian police today finds itself handicapped not only in its numerical strength, but also its inadequate infrastructural facilities, like modern weaponry and equipment, transport and communication network and, more importantly, need-based training which is of paramountimportance to make it more efficient and effective instrument of law enforcement. There is virtually no facility for scientific investigation and detection of crime in most of the police stations. Moreover, the lack of sensitisation programs has made police negate all the feelings towards the accused.

Unfortunately, till date, no adequate training with the objective of increasing efficiency has been provided to police. While the present training teaches them to be a police officer, no knowledge of respecting human dignity and rights is imparted.

3. Lack of fear amongst officials

Due to improper implementation of laws, or the strong position held by the police officials, the police officers do not have any fear of strict actions against them. This instils confidence in them, as they know that a political influence would save them from any trouble.The police officials are under a persistent thought that the only way to derive information during interrogation is to resort to aggression and violent methods. They are under an impression that the hard skinned criminals and big offenders can be dealt only with violence. Therefore, in their minds, they legitimise the gruesome act of violence.

4. Underlying Social Conditions

The life of a police official is often impoverished, with an inadequate pay scale and a job devoid of reputation. The police sub-culture is strengthened by alienation, cynicism, low esteem in society, a degree of pariah feeling, conflicting demands made of policeman, inconsistent judgment of their work, all forcing them into a corner. In this situation, a policeman finds succour among others of his community with whom he identifies, leading to group solidarity, which in turn provides a sense of security against the hazards of his occupation, and a basis for a medium of self-esteem and some social affiliation in spite of the irregular hours of his work. This develops the culture of group that demands greater conformance tothreat, torture, rather than rules, regulations, orders etc. Detection of the crime and conviction in the court is considered by the society as the proof of efficiency and hence, to prove their worth, they take every measure possible, sometimes even the most inhuman ones.

5. Other factors

Apart from the aforementioned reasons, sexual weakness, sadism or sexual tendencies of the concerned police officer can be a few other reasons. Male police personnel may have a tendency of attraction towards opposite sex prisoners. For satisfaction of this lust, he may use force and commit rape in the custody or he may use his official position to obtain consent for sexual intercourse. This was acknowledged in the famous Mathura gang rape case.^[10] Post this, the Indian Penal Code was amended to provide for stringent punishment for those officers, who use their official position to obtain consent of female prisoners in custody for having sexual intercourse with them. The third degree methods are also applied for ‘teaching a lesson’ or ‘vomiting out anger’. It is that stage, where professional competence of the individual policeman surrenders before a situation and then he almost goes out ofhis mind.

1. CUSTODIAL TORTURE AND INDIAN LAWS

 “Police” figure as Entry 2 in State List in the Seventh Schedule of the Constitution[11], thereby making State Government primarily responsible for maintaining public order.The legal framework in India, both constitutional and statutory, contains provisions relating to safeguards about arrest, detention, torture and other crimes in custody. The substantive law (Indian Penal Code, 1860) provides punishment of a person causing injury, torture or death on the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in custody. The Constitutional and the relevant statutory provisions on the subject have been supplemented by the significant judicial pronouncements from time to time. In addition, the Protection of Human Rights Act, 1993 provides institutions of the National and State Human Rights Commissions as well as Human Rights Courts for better protection of human rights of a person in custody. The right against custodial violence arises from Article 21 of the Constitution. Besides, Article 20(3) clearly mandates that any person accused of an offence shall not be compelled to be a witness against himself. Article 22 guarantees protection against arrest and detention in certain cases and lays down that an arrested person shall not be detained in custody unless he is, as soon as may be, informed of the grounds of detention.

Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life is a fundamental right. Right to life does not mean just bare animal existence; it means a life full of dignity necessary for human existence. In the case of Kharak Singh V. State of U.P.^[12], it was held that the expression personal liberty is not limited to bodily restraint or confinement to prison only. Personal liberty is taken care of by Article 22 which provides that the arrested person should be informed about the grounds of his arrest and should be produced within 24 hours of his arrest before magistrate. Liberty is the most cherished possession of man. Article 22(1) and 22(2) of the Constitution are also relevant for the present purpose because one of their objectives is to ensure that certain checks exist in the law to prevent abuse of power of arrest and detention.

Custodial Torture has been talked about in Sections 330, 331 & 348 of IPC[13]; Sections 25 & 26 of the Indian Evidence Act[14]; Section 76 of Cr.P.C[15] and Section 29 of the Police Act[16]. These acts were enacted to curb the tendency of policemen to resort to torture to extract confessions or any other purpose.However, in spite of the Constitutional and Statutory provisions contained in the Criminal Procedure Code and the Indian Penal Code aimed at safeguarding personal liberty and life of a citizen, the growing incidences of torture and deaths in police custody is disturbing. The saviours of public have become their biggest dread in the name of job and duty. Reading in the newspapers on a daily basis, one can easily notice that the worst violations of human rights take place during the course of investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods, including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as “prolonged interrogations”. Creating a law in this regard is incomplete if there are no checks on its proper implementation. To maintain and restore the lost faith in the system, it has to be ensured that the basic rights of citizens are not subdued by those in power and authority.

1. INTERNATIONAL ASPECT

India has ratified, acceded and signed the International Declarations, Covenants, Conventions and treaties such as Universal Declaration of Human Rights(UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All forms of Racial Discrimination( ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Right of the Child (CRC), Convention against Torture and Other Cruel, inhuman or Degrading Treatment and Punishment (CAT), and the International Convention on the Protection of the Rights of All persons against Enforced Disappearance (CPAED).

Article 5 of the Universal Declaration of Human Rights holds that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”This sentiment is similarly expressed in Article 7 of the International Covenant on Political and Civil Rights^[17].Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, states are directed under Article 3[18], not to ‘promote or tolerate’ any form of torture, even in exceptional circumstances, such as state of war or a threat of war or internal political instability or emergency. Article 4[19] clearly mandates the State parties to take effective measures to prevent all forms of torture and Article 6[20] casts an obligation on the States to keep a systematic review of the interrogation methods and practices as well as arrangements for the custodial cases.

The absolute prohibition of torture and ill-treatment is underlined by its non-derogable status in human rights law.[21] There are no circumstances in which states can set aside or restrict this obligation, even in times of war or other emergency threatening the life of the nation, which would justify the suspension or limitation of some other rights. States are also restricted from making derogations which may put individuals at risk of torture or ill-treatment – for example, by allowing excessive periods of incommunicado detention or denying a detainee prompt access to a court.^[22] This prohibition operates irrespective of circumstances or attributes, such as the status of the victim or, if he or she is a criminal suspect, upon the crimes that the victim is suspected of having committed.^[23]

Some fundamental safeguards under ICCPR are:

1. Bringing prisoners before a judicial authority

According to Article 9(3)[24], the requirement to bring detainees before a judicial or other competent authority after arrest is a key safeguard for the human rights of prisoners. It is a means of ensuring that detentions are lawful and necessary. It is a safeguard against torture, a judge can see if there are any noticeable signs of ill-treatment and can hear any allegations by the prisoner. It is a means of providing supervision of detention through judicial control, removing the absolute power over a prisoner which officials might otherwise wield.

1. Access to Legal Aid

The right to legal counsel is one of the key norms for a fair trial under International Human Rights standards. Article 14(3) of the ICCPR[25]includes the rights of accused to defend themselves through counsels of their own choice, the right of an accused person to have adequate time and facilities fora confidential communication with counsel and the right to free legal assistance for those who lack the means to pay for it.

Despite signing and ratifying several human rights treaties in the International sphere, India has been reluctant to allow external scrutiny of its performance. It has neither ratified the Torture Convention nor the Optional Protocol to the International Convention on Civil and Political Rights. Significantly, the Prevention of Torture Bill is yet to be passed by Parliament.

1. JUDICIAL TAKE ON CUSTODIAL TORTURE

Custodial violence and abuse of police power have emerged as a major issue of human rights concern and one of the root obstacles to democracy and development of human well-being in contemporary society. Judiciary, time and again, has made clear that Custodial torture is one of the gravest problems being faced by developing countries. Where the crime rate is relatively high, and the government is laden with corruption, one can easily imagine Police officers misusing their powers. Being the custodian and protector of fundamental rights, the Judiciary has the duty to ensure the rights of its citizens.

In the landmark case of D.K. Basu v. State of West Bengal^[26], the Apex Court in the widely publicized death in police custody ruled that using torture is impermissible and offensive to Article 21. The Court noted the ubiquity of torture and third-degree methods in police investigations and lamented the ‘growing incidence of torture and deaths in police custody’. The Supreme Court, in this case, also came up with requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures. The Court devised 11-point requirementthat was to be sent to all police stations so that a clearer understanding of importance of human rights can be developed in the minds of police officials.

Sunil Batra I^[27] is an important milestone in the field of prison justice and prisoners’ rights. The Court held that the prisoners are entitled to all fundamental rights consistent with their incarceration and the legal regime of prison is subject to constraints of legality and constitutionality. The Supreme Court, in NandiniSatpathy v. P.L. Dani,^[28]clearly held that an investigator should possess the qualities of patience and perseverance and must avoid the use of third degree as it has become outlawed.

The issues of Custodial Torture and the role of judiciary in protecting the prisoner’s rights were again dealt with by the Supreme Court in Sunil Batra II.^[29] Sunil Batra moved to the Supreme Court to complain against the jail warden’s brutal assault on a fellow prisoner, Prem Chand. In its judgment, the Court reiterated that prisoners are persons in the eye of law and prison is a part of Indian Territory where rule of law prevails. It not only struck down handcuffing of undertrials except as a last resort and for reasons recorded in writing, but also suggested many other prison reforms. In the case of Inderjeet v. State of Uttar Pradesh,^[30] the Apex Court held the view that prison restrictions amounting to torture, pressure or infliction and going beyond what the court authorises, are unconstitutional. Further, it extended that an undertrial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amounts to human degradation.

Sheela Barse^[31] is a relevant case, as through it, the Supreme Court gave certain directions to the police to improve the conditions of the police lock-ups and to minimise the possibility of police excesses on the suspects. Although the case mainly deals with the question of the treatment of women in police lock-ups, its directions provide protection to both female as well as male inmates in the police custody. State of U.P. v Ram Sagar Yadav^[32]is yet another case through which the Supreme Court recommended a change in the law of evidence so that the policemen guilty of custodial torture could not escape from conviction due to the absence of evidence.

Considering arrest and detention to be incalculable harm to the reputation and self-esteem of an individual, the Supreme Court, inJoginder Kumar v. State of U.P^[33] held that except in heinous offences, an arrest must be avoided. Speaking about the absolute duty of the State to protect its citizens, the Apex Court, in NilabatiBehera v. State of Orissa^[34] held that the duty on the part of the state is strict and admits of no exceptions. The wrongdoer is accountable and the state is responsible if the person in police custody is deprived of his right to life, except according to the procedure established by law. Thus, it is a sacred duty of the police authorities to ensure that the citizen in custody is not deprived of his right to life, as an arrested person is not denuded of his fundamental rights under Article 21 of the Constitution.

• CONCLUDING SUGGESTIONS

Policing is one of the most essential mechanisms in maintaining law and order in a country and its proper governance. The implementation of laws requires an unbiased and earnest contribution by the police system. To ensure the establishment and maintenance of a healthy democracy, it is quite important for the rights of the citizens to be of paramount importance.

Manner in which police investigations are conducted is of critical importance to the functioning of the criminal justice system. It is for implementing and supervising authorities to ensure that these guidelines are strictly complied with and the irresponsible and inhuman police behaviour is done away with. It is of utmost necessity to sensitize the police personnel by giving them proper and scientific training so that they do not resort to third degreemethod of torture to elicit and extract confessions. Upholding the rights of the accused persons, the Supreme Court in DBM Patnaik case^[35], observed:

“Convicts are not by mere reason of conviction, denuded of all their fundamental rights which they otherwise possess”, and “no iron curtain could be drawn between the prisoner and the Constitution”.

As per a National Human Rights Commission Report (2008), a person in police custody is under the care of the State and it is the responsibility of the State to ensure the protection of his or her basic human rights.The National Police Commission, in its Fourth Report (1980) took note of the fact that the atrocities take place within the four walls, therefore, producing evidence is difficult, thereby, making conviction a rare phenomenon. According to the 152nd Report (1994), Custodial Crimes took into consideration the provisions of the Indian Penal Code, Criminal Procedural law and checked their constitutionality with respect to fundamental rights offered. In its 268th Report, the Commission recommended insertion of Section 41(1A) and amendment to 41B, Cr.P.C., requiring the police officer to intimate the rights of the person arrested, for bail and liberalising the process of bail.

While some of these recommendations have been followed in subsequent legislations, some of them are yet to be recognized.After due deliberation on the subject, certain lacunas have been discovered. The solutions to them may be in various forms, some being:

1. Separation of departments of investigation and detention

There should be two different teams or departments of officers. One, who carry out the investigation procedure and the other, who should take care of the people detained. This would ensure the well-being of the detenues, as the detention team would keep a check on the investigators. A single team for all activities increases the workload on the police officers and increases the chances of resorting to violence and torture and problem solving mechanism, and hence that needs to be rectified.

1. Increasing the investigating time

In the existing system of policing, the police personnel are getting only 30% of their time on investigation duties. Due to the shortage of time, they resort to the short-cut method of torture. Therefore, it is very essential that investigative work should be de-linked from law and order functions and other duties so as to enable the police to get sufficient time for investigative duty. They should be free from any pressure and be allowed sufficient time gap to solve the cases with due care and concern.

1. Training of police personnel and workshops to sensitize

Police officers need to be trained about the fundamental rights and how police are a guardian of the rights of the citizens. As more and more terrorist acts and hate crimes are being committed these days, the officials fail to see these accused as humans, rather all they see in them is villainy. Therefore, it is necessary to instil the spirit of law in these officials. They shadow their wrongful acts behind greater cause of saving numerous human lives, failing to realize that many a times an innocent has to bear the brunt. Workshops should be conducted for proper training; more humane ways of investigation should be introduced. The cases of atrocities should be narrated so that others could learn from the example of one, and moreover, they should have a broader perspective of understanding while interrogating.

1. Compensation schemes

In the court’s ruling in Rudal Shah v. State of Bihar^[36], the Supreme Court talked about the government’s liability for the wrongs done by the government officials and the victim’s right to compensation. In this case, while awarding Rs. 35,000 as compensation for the victim’s illegal detention in jail, the Court observed that the State must accept the responsibility for the behaviour of its employees.Monetary compensation is the latest recourse by the Court, wherein the loss occurred to the victim is calculated on monetary basis.

1. Usage of advanced technology.

The Police officers need to be familiarised with the latest technological advancements in proper workshops so that the discrepancies can be reduced. Computerization, video recording, and modern methods of record maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating with regard to First Information Reports, mahazars, inquest proceedings, post-mortem reports and statements of witnesses etc. and to bring in transparency in action. The investigating authorities should also be well equipped so as to extract information, thereby, reducing the need to solely rely on the accused for it.

A nation which denies the existence of basic human rights, fear tends to be the order of the day- fear of imprisonment, fear of torture, of death, of isolation and of humiliation. Unbridled powers confined in the hands of officers can be detrimental to the interest of citizens. There is a need for a balance between the powers handed over to the police for their proper functioning andkeeping a check on the misuse of those powers. The practice of third degree torture not only deprives the accused of their rights, but also raises alarming questions on the morals of our policing agencies. There is an urgency for the police reforms to take place which cannot brook any further postponement. Once the necessary action is taken, the police will function under a lot more constraints. It will also help with correcting the dislocation of police functioning and stop the erosion of police morals. A place where humans are valued, human rights need to be respected everywhere, even in prisons and for everyone, even the deviants.

^[1] Md. MohibulHaque, “Police Atrocities in India”, 10, The Third Concept (March 1996).

^[2]Joginder Kumar v. State of UP, AIR 1994 SC 1349.

^[3]Niranjan Singh v. PrabhakarRajaramKharoteff, (1980) SC 785; Sunita Devi v. State of Bihar, (2005) SC 498.

[4]Article 1, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

^[5]Translated into English by R Shamasastry; Chapter VIII, Book IV.

[6]Janne Pölönen, “Plebeians and Repression of Crime in the Roman Empire: From Torture of Convicts to Torture of Suspects”, Ecole des Hautes Etudes en Sciences Sociales, Paris.

^[7]Curtice, Martin, “Article 3 of the Human Rights Act 1988: implications for clinical practice” 14 APT 389 (2008).

^[8] Christopher J. Einolf, The Fall and Rise of Torture: A Comparative and Historical Analysis, Sociological Theory, Vol. 25, No. 2, 101-121, (2007).

^[9]S.R. Majumdar, Lawlessness in Enforcement, Police Research and Development, 54, (2005).

^[10]Tukaram v. State of Maharashtra, (1979)SCR (1) 810.

[11]India Const. art. 246.

^[12]Kharak Singh v. State of U.P., (1964) SCR (1) 322.

[13] Indian Penal Code, Act No. 45 of 1860,

[14]Indian Evidence Act, 1872, Act No.1,Acts of Parliament, 1872 (India).

[15] TheCode of Criminal Procedure, 1974, Act No.2, Acts of Parliament, 1974 (India).

[16] The Police Act, 1861, Act No.5, (India).

^[17] Article 7, International Covenant on Civil and Political Rights (ICCPR), 1976.

[18]Article 3, Convention Against Torture, 1984:

“1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

[19]Article 4, Convention Against Torture, 1984:

“1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

[20]Article 6, Convention Against Torture, 1984:

“1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.”

[21]As per ICCPR, 1976, only 4 rights are non derogable-the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude and the right to be free from retroactive application of penal laws.

^[22] Human Rights Committee General Comment No. 29, States of Emergency (art. 4).

^[23] Article 2, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[24]Article 9(3), International Covenant on Civil and Political Rights (ICCPR),1976:

“Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”

[25] Article 14, International Covenant on Civil and Political Rights (ICCPR), 1976:

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

 (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

^[26] D.K. Basu v. State of W.B., (1997) 1 SCC 416.

^[27] Sunil Batra v. Delhi Administration, (1980) 1579 SCR (2) 557.

^[28]NandiniSatpathy v. P.L. Dani, (1978) 1025 SC 1025.

^[29]Sunil Batra v. Delhi Administration, (1980) 1579 SCR (2) 557.

^[30]Inderjeet v. State of Uttar Pradesh, (1979) 1867 SCR (1) 255.

^[31]Sheela Barse v. State of Maharashtra, (1983) S.C.378 80.

^[32]State of U.P. v Ram Sagar Yadav, (1985) SCR (2) 621.

^[33]Joginder Kumar v. State of U.P, (1994) SCC (4) 260.

^[34]NilabatiBehera v. State of Orissa, (1993) 2 SCC 746 at 767.

^[35] D. Bhuvan Mohan Patnaik & Ors.v. State of Andhra Pradesh &Ors., (1975) SCR (2) 24.

^[36]Rudal Shah v. State of Bihar, (1983) SCR (3) 508.