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14 - Chapter 7 PDF
14 - Chapter 7 PDF
There a is direct relationship and inter dependence between policing and human rights.
Police is one of the means by which state seeks to meet its obligations to protect 'Fundamental
Human Rights'- right to life, liberty and security of persons, right to fair trial and equal
protection of law. Thoughtless and unlawful policing on the other hand can only result in
suppression of those 'Human Rights'. It is often witnessed as paradox that human rights are
protected by law and are often at risk at the hands of law enforcers.*1021
(A) Misuse of Power of Arrest.
The law of arrest is one of balancing individual rights, liberties and privileges, on the one
hand, and individual duties, obligations and responsibilities on the other; of weighing and
balancing the rights, liberties and privileges of the single individual and those of individuals
collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of
deciding which comes first- the criminal or society, the law violator or the law abider; of meeting
the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task
of balancing individual rights against society's rights and wisely held that the exclusion rule was
bad law, that society came first, and that the criminal should not go free because the constable
blundered. Justice Cardozo observed:
"The question is whether protection for the individual
would not be gained at a disproportionate loss of protection
for society. On the one side is the social need that crime
shall be repressed. On the other, the social need that law
shall not be flouted by the insolence of office. There are
dangers in any choice. The rule of the Adams case (People
v. Adams, (1903) 176 NY 351: 68 NE 636) strikes a
balance between opposing interest. We must hold it to be
the law until those organs of government by which a
change of public policy is normally effected shall give
notice to the courts that change has come to pass."*1022
1021 D.K. Basu, IPS, Discussion on cases related to Human Rights and Custodial crime, a paper in Human Rights and
Custodial Crimes, a Central Detective Training School Kolkata Publication, at 22.
1022 People v. Defore, (1926) 242 NY 13, 24: 150 NE 585, 589.
312
prosecution of crime, an interest which at times seems to be
forgotten. Perfection is impossible; like other human
institutions criminal proceedings must be a
compromise."*1023
The paradox has been put sharply by Lewis Mayers as reported in Nandini Sathpathy-
"To strike the balance between the needs of law enforcement on the one hand and the protection
of the citizen from oppression and injustice at the hands of the law-enforcement machinery on
the other is a perennial problem of statecraft. The pendulum over the years has swung to the
right."*1024
Emphasis may shift, depending on circumstances, in balancing these interests as has been
happening in America. Since Miranda (1966) 334 US 436) there has been retreat from stress on
protection of the accused and gravitation towards society's interest in convicting law-breakers.
Currently, the trend in the American jurisdiction according to legal journals, is that 'respect for
(constitutional) principles is eroded when they leap their proper bounds to interfere with the
legitimate interests of society in enforcement of its laws. Our constitutional perspective has,
therefore, to be relative and cannot afford to be absolutist, especially when torture technology,
crime escalation and other social variables affect the application of principles in producing
humane justice. *1025
In Joginder Kumar v. State of U.P.*1026 Supreme Court considered the dynamics of
misuse of police power of arrest and opined: -
"No arrest can be made because it is lawful for the police
officer to do so. The existence of the power to arrest is one
thing. The justification for the exercise of it is quite
another. No arrest should be made without a reasonable
satisfaction reached after some investigation as to the
genuineness and bonafide of a complaint and a reasonable
belief both as to the person's complicity and even so as to
the need to effect arrest. Denying a person of his liberty is a
serious matter."
In Joginder Kumar v. State of U.P.*1027 the Supreme Court noticed that in a large number
of cases human rights violation takes place because of indiscriminate arrests. The arrestee has
right to have his friend, relative or some other known person informed about his arrest. The
1028 Id at 268.
1029 Quoted from the report of Project to Improve the Organization and Management of Law Enforcement System in
India- A Summary of Objectives, studies and recommendations (April 2001)- Edited by Anil Kumar Sinlia-
BPR&D, Govt. Of India, Ministry of Home Affairs, New Delhi.
314
the State. They either do not cooperate with the authorities to put down violence but often lend
their support to these elements.*1030
Terrorism and Civilized society cannot co-exist. Any one who seeks to talk with gun in
his hand has to be replied by a gun. According to Khushwant Singh the Gandhian method cannot
work when one is up against the phenomena of terrorism. However, the real question to which
we have find an answer is, what exactly is it that turn a law-abiding citizen in a civilized society
to give up civilized methods of protests of ventilating his grievances in legitimate ways and
instead take the law into his own lands and use the gun as an argument.*1031
Innocent persons, government officials, policemen and wealthy persons are kidnapped in
large numbers and killed. Banks are attacked and cash looted. In tribal areas, in the Northeast,
not only hundreds are being massacred almost daily in the inter-tribal wars but non-tribals living
there for generations have been killed, in large numbers and their property looted, and forced to
leave their home and hearth at gun point.*1032
One of the greatest threats to the future of democracy lies in insurgency and terrorist
activities which are becoming more and more destructive of life and property. On no account
must the "right" of a militant minority to kidnap, coerce and kill be given priority over the right
of the majority to live in peace. The Government has no alternative but to declare a war on
insurgency and terrorism for its own survival. A democratically elected Government must
uphold the rule of law and authority and must defend the life and limb of its subjects. Vacillation
in counter-terrorist measures must be avoided as it tends to undermine public confidence and
encourage terrorist to exploit rift in police and security forces.*1033
No hard and fast rule can be laid down to deal with terrorists acts. However, what is
crucial is the general impression that the terrorists cany. The attitude of the Israeli government
explains: after the Israeli authorities refusal to negotiate with the kidnappers of seven Israeli
athletes at the Munich Olympics (1972) and the consequent death of those athletes, the Israeli
Ambassador to Germany observed "Once we give in to hijacking and kidnapping, these will only
multiply. In these engagements every Israeli citizen knows that like a soldier on the battlefield,
I030S.Subramanian- Human Rights and PoliceAssociation for Advancement of Police and Security Sciences-
Hyderabad- at 59 and 142.
1031 M.G.Chitkara- Human Rights Commitment and Betrayal-APH Publishing Corporation, New Delhi at 107.
1032 S.K.Ghosh, "Terrorism: World Under Siege", 1995 Ed., p. 417.
1033 Supra note 1031 at 113.
315
he may lose his life. We shall never negotiate with kidnappers." The result of this attitude was
the virtual end of hostage-taking of Israeli citizens.*1034
A similar attitude was adopted by Mrs. Margaret Thatcher. She declared, 'We, in Britain
will not accede to the terrorists' demands. Prisoners will not be released. If hijacked aircraft lands
here, it will not be allowed to take off*1035 The USA too took a clear line. With regard to Libya,
for instance, it adopted a firm and practical approach. And the problem ended.*1036 Terrorists
cannot be equated as freedom fighters. Senator Jackson of the United States, once observed;
"The idea that one person's terrorist is another's freedom fighter cannot be sanctioned. Freedom
fighters or revolutionaries do not blow up buses containing non-combatants; terrorists murderers
do. Freedom fighters do not assassinate innocent, businessmen or hijack and hold hostage
innocent men, women and children; terrorist murderers do. It is disgrace that democracies should
allow the treasured word "freedom" to be associated with acts of terrorists. *1037
Our justice system was unable to cope with terrorism. Prosecution of offenders was out
of the question. The only way to deal with it was by a draconian law and a hunt and kill strategy
of the army and the police. At that time, all other agencies of the state moved away. The
judiciary was nowhere in the picture, after two judges are killed. The nation accepted the rough
and ready methods because there seemed to be no other way to cope with the insensate violence
of bus killings, train killings, marriage parties being shot up, and the countless day-to-day
murders.*1038
Adventurism graduates into Political extremism. Here, diametrically opposite view points
to the Democratic principles, like Power flows through the barrel of the gun are propagated and
the futility of the democratic order is sought to be demonstrated by attacking selected targets of
State like Police Stations, Mass Transport systems, VIPs etc. From this stage it moves on to
terrorism- putting people in fear of death. The political minority wishes to make the majority
accept their demands by putting fear of death in the population. Indiscriminate killings and use of
landmines, explosive devices are resorted to create panic in the public. Normal life gets affected
and people lose confidence in the capacity of the state to govern. Terrorism creates a fear
psychosis in the population and often petty criminals elements exploit this situation by indulging
in criminal activities under terrorist banner. If successful in these stages, Political violent
1034 Miss J.A.C. Gutteridge, "War and Human Rights", published in Human Rights, (1970) at 109-110.
1035 T.S.Batra, Human Rights, A critique (1979) at 23.
1036 K. Subrahmanyan M. Zuberi Raja Ramanna, Problems of Living in Nuclear Age, (1985) at 9.
1037 Id at 21.
1038 Supra note 1031 at 133.
316
movements turn into Insurgency- an organized Armed Uprising and later to Secessionism. These
are State of War and the State is engaged in hostilities and it loses administrative and political
control over some of its territories.*1039
The task of security forces has always been a delicate one. It becomes more complicated
when there is a serious threat to the nation's unity and integrity. They responded to such a
challenge admirably in Punjab only recently, and are in the midst of fighting an almost similar
battle in Jammu and Kashmir. This is besides their valiant role in containing the insurgency in
the North East. What they did in Punjab should not be treated as merely performing their
hazardous duty. They fought the nation's battle for unity and integrity, as they are in the process
of accomplishing it in the valley. They deserve the country's gratitude and sympathy. It is the
government's responsibility to go out of the way to protect their interests even if the laws are to
be amended for the purpose. Thus, one must appreciate Home Minister L.K. Advani's assertion
at a recent conference*1040 of the chiefs of the state police, intelligence agencies and central
police organizations that the police personnel who "acted firmly" against terrorist elements
should be accorded the protection of the law. This has become unavoidable for two basic
reasons. One, since the police personnel and other security forces risk their and their family
members' lives during a drive against terrorists and their sympathizers , their morale must remain
high under all circumstances. Two, they should have no fear of being bounded out by different
interest groups on extraneous considerations. Such groups did not take in the right spirit the
Home Minister's earlier statement which came in the context of the cases against 600 police
personnel for thfeir role during the days of terrorism in Punjab.*1041
The question is not whether a terrorist deserve sympathy or not. The question is that the
state is the repository of law and a repository of law can not violate the law. If a repository of
law violates the law there is an end of lawful state and beginning of lawlessness.*1042
The Terrorist And Disruptive Activities (Prevention) Act, 1987 As Amended in 1991.
The good state is not a mere police force to protect the citizens from any illegal and
wrongful act of some anti-social elements, but it has primary responsibility to prevent crime, so
as to lead the people to a happy and fuller life. If the state has good laws, its members are less
susceptible to crime and it may create an environment which would be unfavourable to crime
1039
Supra note 1030 at 59 and 142.
1040
Director General/Inspector General's Conference 2001 September 5-7, 2001, Vigyan Bhawan, New Delhi.
1041
The Tribune, Friday, Sept. 7,2001- Police powers & responsibilities- at 10.
1042
Ibid.
317
and favourable to bring peace in the society. The United Nations Conference on the Prevention
of crime and treatment of offenders, condemned the practice of killing and executing political
opponents or suspected offenders, which offences are generally carried out by armed forces, law
enforcing or other governmental agencies or, by para military or political groups, acting with the
support, tacit or otherwise, of the official forces or agencies.
In Maneka Gandhi's*1043 case, the Supreme Court of India held that an unreasonable,
unfair and arbitrary procedure is no procedure at all. And as such, the personal liberty of a citizen
cannot be curtailed even by following a procedure, which is arbitrary and whimsical. To curb
the violence and extremist activities in the society, the appropriate government legislates
different Acts at different times. Terrorist and Disruptive Activities (Prevention) Act,
1987(hereinafter cited as TADA) and Armed Forces (Assam and Manipur) Special Power Act,
1958 are some of the legislations of this type.
This TADA Act was passed to make special provisions for the prevention of and for
coping with terrorist and disruptive activities and for matters, connected therewith or incidental
thereto. This Act was originally intended to remain in force for a period of two years in 1987.
Later on it was allowed to be lapsed. In Niranjan Singh Karam Singh Punjabi*1044 the Supreme
Court held that the provisions of the Act need not be resorted to, if the nature of the activities of
the accused can be checked and controlled under the ordinary law of the land. It is only in those
cases where the law enforcing machinery finds the ordinary law to be inadequate or not
sufficiently effective for tackling the menace of terrorist and disruptive activities, that resort
should be made to the drastic provisions of the Act.
Section 3 to 6 of the TADA provide minimum punishment for 5 years imprisonment,
which may extend to life imprisonment on conviction for an offence under the Act. Section 8
authorizes court to declare forfeiture of property in certain cases on conviction of the accused.
Forfeiture of property also amounts to be violation of human rights of an individual. Therefore, it
is highly necessary for the court to consider each and every crime minutely and seriously, before
imposing any penalty of forfeiture of property.*1045
Section 15 of the Act is in quite contrast to the provisions of the Indian Evidence Act as
well as the Code of Criminal Procedure. As per that section, a confession made by a person
before a police officer, not below the rank of a Superintendent of Police, and if it is recorded by
1046 Girish Ch. Kakati Vs. Union of India, 1991(1) GLR ,265.
1047 Re Kerala Education Bill case, AIR 1958, SC 956.
319
away the important right of granting pre-arrest bail, as provided under Section 438 of the Code
of Criminal Procedure.
In Ayubkhan Kalaudar Khan Pathan*1048 the main question for consideration was with
regard to the maintainability of the writ petition in view of the provisions of TAD A. The Court
held that there is no specific provision in the TADA Act, which can take away the constitutional
rights of the parties concerned and there is also no provision under the TADA Act for taking
away the power of the High Court to decide the matter under Article 226 of the Constitution of
India.
In Usman Bhai Dawoodi Bhai Menon and Others*1049 while discussing the limit and
scope of the Act, the Supreme Court has observed that the Act is limited in its scope and effect.
The intendment is to provide special machinery to combat the growing menace of terrorism in
the country. Since the Act is a drastic measure, it should not ordinarily be resorted to unless the
government's law enforcing machinery fails to combat it through ordinary law of the land.
Although guidelines are set or, enunciated by courts in different cases for the protection of basic
Human Rights, the law enforcing agencies have invariable failed to apply the TADA Act with
the required caution. Instances are there in case of recent arrest of persons in Assam under
TADA, where most of the persons have been arrested without satisfying the requirement of
section 3 and 4 of the Act. Furthermore, the ordinary law of the country is more than sufficient to
deal with these offenders. These ordinary criminal laws had enabled the British colonial
administration to meet out even capital punishment to the Indian terrorists and freedom fighters
also.
As terrorism aims at the destruction of civil society and the unravelling of the State, it is
essential that it be firmly resisted by both. The National Human Rights Commission observed
that the police and armed forces of the country, backed by all elements of civil society, have duty
to fight and triumph over terrorism. The Commission is additionally of the view, however, that
this must be done in a manner that respects the Constitution of the Republic, the laws of the land
and the treaty commitments into which the State has solemnly entered. The Commission remains
convinced, in this connection, that transparency and accountability are essential to the handling
1048 Ayub Khan KKlian Pathan Vs. State of Gujarat, 1990 (iv) Crime 183 Gujarat.
1049 Usman Bhai Dawoodi Bhai Menon Vs. State of Gujarat A. 1988(2) SCC 271.
320
of allegations concerning human rights violations, regardless of who is charged with such
violations.*1050
The Armed Forces (Assam and Manipur) Special Powers Act, 1958.
The Armed Forces Special Powers Regulations, 1958 was initially brought into force in
1958 which was replaced by the Armed Forces (Assam and Manipur) Special Powers Act, 1958.
This Act was applied to the seven states in the North East region. It consists of seven sections.
Section 3 of the Act empowers the central government as administrator or governor to declare
any part or the entire state or union territory as disturbed area, when the governor or the
administrator is of the opinion that 'use of Armed Forces in aid of Civil Power is necessary' for
that area and whereupon, it can deploy the armed forces to that area in aid of civil power to assist
only, not to supersede.*1051
The scope and the ambit of the Act was considered by the Gauhati High Court in the case
Peoples Union for Human Rights & Organizations Vs. Union of India and Others, *1052 where
the petitioner Union had challenged the validity of the Act and contended that the said Act, being
opposed to fundamental rights, is ultravires of the Constitution of India. The petitioner further
contended that the armed forces in the name of flushing out extremists were perpetrating
atrocities on the innocent men, women, the young and the old. The government of India declared
Manipur as disturbed area and that Notification of declaration was not rescinded for a decade.
The pertinent question before the court was that whether the army authorities, under the
provision of the Armed Forces Special Power Act, 1958 can arrest a person- male or female-
without any invitation on the part of the police authority or without reference to Police authority
of the State, wherever and whenever the above Act is enforced. The court after considering the
arguments of the parties, was pleased to hold it affirmatively. However, certain restrictions were
imposed on the government by directing the central government as well as the state government
to issue instructions to the concerned officer of the army to produce the arrested persons before
the nearest police station with the least possible delay so that the police in turn may produce the
person before the magistrate within 24 hours of the arrest. Thus, the court has restricted the army
authorities from violating the human rights in the name of curbing terrorism and insurgency.
1050 Annual Report 1997-98 -National Human Rights Commission- Sardar Patel Bhawan, Sansad Marg, New Delhi
at 8
1051 Supra note 1045 at 231.
1052 Peoples Union of Human Rights & Ors. Vs. Union of India and Ors. 1991(2) GLR.1.
321
Section 5 of the Act relates to the handling over the accused to police, after arrest is being
made by the army. In Bacha Boara Vs. State of Assam,*1053 the word 'least possible delay' was
explained, which means that within the shortest possible time. But no arbitrary time-limit can be
set down, as it may not be possible in many cases to affirmatively say or precisely quantify the
period of time by reference to hours, dates or months. However, it will be possible having regard
to the circumstances of the case to say whether it was done or was not done 'with least possible
delay'. However, the Court is required to see each and every case very carefully. When an act is
done after interval of time and there is no explanation forthcoming for delay, it cannot be said to
have been done with 'least possible delay'.
In Purnima Boruah Vs. Union of India,*1054 the High Court held that violation of section
5 of the Act will not only amount to wrongful detention but also violation of constitutional and
legal rights. The Supreme Court in Khatri Vs. State of Bihar*1055 had strongly urged upon the
State and its police authorities to see that the constitutional and legal requirement to produce an
arrested person before a magistrate within 24 hours of arrest must be scrupulously observed. The
imprisonment of persons, who were detained in jail without any remand order from the
magistrate was also held to be illegal and in violation of law.
Powers of the army authorities under the Act to require attendance of women for
interrogation was discussed in Niloy Dutta Vs. District Magistrate, Sibsagar.*1036 The question
that arose for consideration in that case is of far reaching importance. It deals with the subject of
constitutional protection to women from interrogation at the police station. It was held that even
if a woman is an offender or, more a witness, no police officer can summon a woman to a police
station house for interrogation. Women can only be interrogated at a place, as the promise of
Section 160(1) of the Cr.P.C. recites- 'where the woman resides.' The court formulated to hold,
whenever army officials have to deal with women under the Act, as offenders before arrest or as
witness or otherwise and when women are to be interrogated, no women is expected to be taken
to the army camp for interrogation.
(C) Custodial Crime.
Any act on the part of the police which violates the basic dignity and liberty of an
individual guaranteed by our Constitution invokes scathing criticism from conscious and alert
1053 Bacha Bora Vs. State of Assam, 1991 (2) GLR, 119.
1054 Purnima Boruah Vs. Union of India and Ors. 1991(1) GLR, 375.
1055 Khatri Vs. Sate of Bihar, AIR 1981 SC, 928.
1056 Niloy Dutta Vs. District Magistrate Sibsagar, 1991(2) GLR, 217.
322
citizens. The Media also has become resonant with voices of protest whenever there is any
encroachment on individual liberty and violation of basic human dignity. Reasons for such
custodial crime are many. They may be attributed mainly to (a) Psychological, (b)
Infrastructural, and (c) Administrative reasons.*1057
Psychological reasons:- Reasons why members of the police commit custodial violence may
include lack of proper motivation, overzealousness of the Investigating Officers to ensure
detection of cases by eliciting confession from arrested accused persons and low morale of the
members of the Force. In discharging their duties as Investigating Officers many officers at the
police station level resort to Third Degree as short-cut method of detection. Use of scientific
methods of investigation in detecting a case calls for tremendous patience, tenacity and
professional expertise. The use of scientific method of investigation may at times be a long-
drawn process. Investigating Officers lacking proper orientation in scientific methods like to
resort to short-cut method of Third Degree for eliciting confession and for unearthing mystery or
motive behind the commission of offences. Officers with low morale and suffering from a sense
of deprivation may at times resort to custodial violence for deriving sadistic pleasure.
Police Psychopath:- Psychologists may say that some police officers do not have any guilt
feeling even during or after they shout at people with indecent expressions. When a person does
not experience guilt-feeling for doing an act forbidden by law or ethics-which ordinary people in
similar situations do experience- he is rightly called a psychopath. Are the police functionaries
psychopaths in this area of police perfrmance? Policemen did certainly have guilt feeling when
they uttered indecent expressions to other fellow beings. The explanation for the development of
psychopathic personality-disorder among the police is that they are, after their institutional
training, inducted into a sub-culture in which use of indecent language is an accepted norm of
behaviour. It is this 'permissiveness' or laxity to use indecent language during the post-
institutional training period which makes the new entrants to develop psychopathic personality -
disorders in later life. A conscious attempt on the part of everyone in the police to eradicate the
filthy environment at the cutting edge level is the only and the easy way out to change the
situation. It is a violation not only of the human rights of people handled by the police, but also
the morality of the society and professional ethics of the department.*1058
1057 R.K.Rav, Custodial Crime, Causes and Remedies- A paper published in CBI Bulletin, July 1996- CEB
Publication, Delhi, at 17-20.
1058 James Vadackumchery- Human Rights & tire Police in India-APH Publishing Corporation, Delhi- atl33-34.
323
Dichotomy in Public Expectation:- There is a palpable dichotomy in public expectation from
the police. On the one hand, it takes a high moral position vis-a-vis Third Degree but in private it
will goad the police to take recourse to Third Degree method if personal interest is involved. The
same Judicial Officer who rebukes the police in public for being high-handed will expect the
police to recover his stolen properties by any means fair or foul. This contributes to the
continued prevalence of the Third Degree as well as custodial crime.
Even enlightened members of the society expect police to take 'tough action' not
sanctioned by law against anti-social elements who are escaping conviction and getting away
scot-free because of the malfunctioning of the criminal justice system. *1059
It is important to remember that such abuses of police can flourish not only because of
official negligence or acquiescence but because, rightly or wrongly, large sections of people
under certain conditions and circumstances feel that the police, in spite of their excesses, are
carrying out a necessary and unpleasant task for preserving and protecting state and society.
Such conditions place considerable moral burdens on conscientious police officials whose
actions to check drifts of this kind are of paramount importance. A perceptive writer on police
psychology, Ben Whitaker ('Police') has observed, the public have always turned two faces
towards a policeman.' As a result of these conflicting and often incompatible demands of the
public, some policemen become stoically immune to criticism.*1060
If you ask any police officer of even 10 to 15 years of service, he will tell you how many
senior police officers,, law-makers, dispensers of justice, academicians, jurists and journalists
have lectured to him about the pernicious habit of resorting to third degree to do a little more
probing and he will also give you additional information as to how many of those august
personalities had equally persistently goaded him to take recourse to the very same evil third
degree to recover his or his relations' or friends stolen properties! There is an obvious dichotomy
in our moral and ethical preachings, especially in the matter of our attitude to third degree. Such
moral ambivalence has lent substantial cultural and sub-cultural support base for the continuance
of third degree.*1061
Technical Police Custody: Not all cases of death and injuries of accused persons should be
attributed to custodial violence. For example, when an inured accused person is sent from
hospital to the court he is technically in police custody. If he succumbs to his illness or injury
1059 Sanker Sen- Custodial Crimes- an article in SVP NPA Journal Jan-June-1994- at 8-12.
1060 Id at 8-12.
1061 Supra note 1021 at 23.
324
which might have been inflicted on him by the members of public before he was taken into
custody he would be branded as a victim of custodial violence. The public and the Media need to
be a little more discriminatory and should at least give the devil its due.
Legal hurdles like inability to keep a suspect for longer durations than a day, the
Evidence Act being weighed against the police etc., are factors which induce police to keep
suspects in 'unofficial custody'. Once a suspect is in 'unofficial custody', he ceases as such to
exist on record, for the purposes of law. What is done to him is known only to police officials
within the precincts of a police station. This helps and encourages the police to indulge in
custodial violence with impunity.*1062
Role of Media:- A social activist like Shiela Barse while discussing the issue of brutalisation of
police argued that " I have begun to feel that the police has become the new Harijan in the
Media-created caste hierarchy, the holy Patrakars and the opinion-making Brahmin seem to have
isolated the police as a new minority which must be accused and disdained but not heard or
understood".*1063
Even in the Rajiv Gandhi's assassination case wherein the top level CBI sleuths had been
involved in the investigation, a suspect in custody who had been taken in confidence by the
police escaped from the police clutches and committed suicide. This death is definitely not due to
any police torture. So, many innumerable instances like this are on record. Every such time, there
is an uproar from the public and the press suspecting foul play, to punish the guilt of the police.
The same public and the press are very much silent when they come across instances like the one
reported recently in Madras City wherein a policeman who attempted to waylay bootleggers was
beaten to death by the anti-socials. Why such a great discrimination that exists in the public
mind? In some of the recent cine films it is shown that the victim himself, not satisfied with the
police investigation in taking the due legal action against the wrong-done has taken law into his
own hands and taken vengeance on his enemies. This is stated just to impress upon you that if
the police become a silent spectator to criminal activities without properly investigating into
cases to unearth the hidden truth for evidence from the assailants by some methods or other, even
the law abiding society itself may turn violent to settle their scores with their law-breakers.
Infrastructural Facilities:- Lack of proper infrastructural facilities in the police station may lead
to such unfortunate incidents as custodial crime in a police station. Absence of separate female
326
escape punishment for want of evidence. Taking the above judgement of the Supreme Court*1064
as a case study, the Law Commission has suggested the insertion of the foliowing section in
Indian Evidence Act:-
"114B(1) In a prosecution (of a Police Officer) for an
offence constituted by an act alleged to have caused bodily
injury to a person, if there is evidence that the injury was
caused during the period when that person was in the
custody of the police, the court may presume that the injury
was caused by the police officer having custody of that
person during that period."
Status of the victim:- On many occasions rape has been committed in police custody in
different parts of the country. In most cases, the victims belong to the weaker sections of the
community including the women folk of the tribal community.*1065
National Productivity Council shows that a policeman works for 16 hours a day, 7 days a week
and has little time to regain his mental balance as the recreational facilities are non existent. Also
the esteem accorded to him is much lower than the social function expected to perform. Police
violence is directly related to the public regard for the police authority. Lowered public regard
lowers police self esteem, which results in their resorting to use of force more often. Thus
surveys show that countries like UK and Japan with high regard for the police have less police
brutality compared to countries like India and USA where it is not so.
1064 As quoted in D.K.Basu, IPS, Discussion on Cases related to Hunan Rights and Custodial crime, a paper in
Human Rights and Custodial Crimes, a Central Detective Training School Kolkata Publication, at 23.
1065 R.K.Ray, Custodial Crime; Causes and Remedies- A paper in CBI Bulletin- July 1996- CBI Publications, Delhi,
at 17-20.
1066 Quoted in Sharad Satya Chauhan, Police Brutality and Custody Deaths-Causes and Remedies- a paper in SVP
NPA Journal, Jan-June-1994, at 35-38.
327
The project team*1067 concluded that the living and working conditions were completely
inadequate and insufficient housing and other facilities for the lower ranks, both in police
stations and Police Lines(compounds). The team's visits to Police Stations and Police Lines
(compounds) confirmed the deplorable conditions. In some cases, the unavailability of clean
drinking water in the station, premises, insufficient and unhygienic sanitation, latrines, and
cooking facilities, left the policemen living under sub-human conditions. Inadequate lighting,
storage, and furniture in the police stations affected their operational efficiency. Poorly
maintained buildings of Police Stations affected their life and work. The performance of the
police force does not reflect this because of the factors mentioned above. It is to be expected that
policemen who are paid less than a living wage, who live in unsanitary conditions, who are not
provided with sufficient resources to acquire and maintain the basic tools of their trade, and who
in other ways are exploited by the system, will resort to whatever means they have at their
disposal to provide the basic necessities of life, and that this eventually becomes habitual.
Do the police use brutal methods? *1068
Yes No Can’t Say
Total 31.1% 40.1% 28,8%
Are the po ice biasec 9
Yes No
Total 63.4% 36.6%
Another argument is that the policeman has to work under pressure and many of them are
dissatisfied owing to their poor pay structure, promotion prospects, lack of leisure, low status and
many other reasons of like nature. A policeman has little or no time to regain his mental balance
as the recreational facilities are non-existent. Granting that all this is 100 percent true, yet there
cannot be any justification for human rights violations. There are any number of professions and
occupations for which the working conditions are still worse. If such people start destroying
things or violating human rights and start claiming that they do so because they are unhappy with
the working conditions, then it becomes a matter of unpardonable nature. The argument that the
deplorable working conditions of police make them to resort to a compensatory mechanism
which is nothing but violating human rights, then the only explanation for their behaviour is that
The role friction gets resolved either through aggressive frustration or through an attitude
of vigilantism which can always be conveniently rationalized as upholding the law by
dispensing justice to those whose guilt the police are sure of but who might escape through the
legal labyrinth.
In Mario Puzo's book The Godfather, there is an excellent description of the mental
processes of policemen. Hagen understood that the policeman believes in law and order in a
curiously innocent way. He believed in it more than the public he serves. Law and order is after
1070 Dr. Sharad Satya Chauhan, Police Brutality and Custody Deaths-Causes and Remedies- a paper in SVP NPA
Journal, Jan-June-1994, at 35-38.
1071 Quoted from Upendra Baxi, The Cricis in the Indian Legal System, Vikas, 1982, at 132/
330
all the magic from which he derives his power, individual power which he cherishes as heartily
all men cherish individual power. And yet there is always the smoldering resentment against the
public he serves. They are at the same time his ward and his prey. As wards they are ungrateful,
abusive and demanding. As prey they are slippery and dangerous, full of guile. As soon as one is
in the policeman's clutches the mechanism of the society the policeman defends marshals all its
resources to cheat him of his prize. The fix is put in by politicians, Judges give lenient suspended
sentences to the worst hoodlums. Governors of the States and the President of the United States
himself give frill pardons, assuming that respected lawyers have not already won his acquittal.
After a time the cop learns. Why should he not collect the fees these hoodlums are paying? He
needs it more. Why his children not go to college? Why should not his wife shop in more
expensive places? Why should not he himself get the sun with a winter in Florida? After all he
risks his life and that is no joke.*1072
Sir Winston Churchill who, when he was Home Secretary, argued, to which most of the
policemen believe-
"They are doing difficult and dangerous job the society
demands from them without understanding of what their
moral and professional problems are. The public use the
police as a scapegoat for their neurotic attitude towards
crime and own lack of social responsibility, as well as for
resentment that should more properly be aimed at the
Government. Schizophrenically we have always turned at
least two different faces towards a policeman, as we do
towards any symbolic hero-figure which our age lacks. We
expect him to be human and yet at the same time
superhuman. We welcome official protection, yet resent
official interference. We employ him to administer the law,
and yet will ask him to waive it. We resent him when he
enforces a law in our own case, yet demand his dismissal
when he does not, elsewhere. We offer him bribes, yet
denounce his corruption. We expect him to be a member of
the society, yet not to share its prejudices and values. We
admire violence, even against society itself, but condemn
force by the police on our behalf. We tell a policeman that
he is entitled to information from the public, though we
ostracize informers. We ask for crime to be eradicated, but
only by the use of 'sporting' methods. Yet we also expect
him to cut corners to fight crime, without being willing to
share responsibility for this with him. We criticize, fail to
1072 Mario Puzo, The God Fattier 1969, Pan Edition at 252.
331
support, and deceive him; yet we cannot escape depending
on him." *1073
Socio-Culture Factors.
Dignity of human beings and the well-being of all mankind have always been a part and
parcel of the cultural milieu of our ancient Indian civilization. Cruel, barbaric and inhuman
punishments were totally alien to our culture. It is important to recognize that human rights
culture cannot be imposed, it has to grow and develop from the cultural roots of the soil. *1074
Police brutality also varies, and is influenced by socio-cultural factors. In India the police
contact with the citizens takes place only in crisis situations and the police have a Dracula like
image in rural and urban areas. The use of force is related to the social distance between the
police and the members of the public. Also it is seen that in societies where reserve and physical
restraint are valued (like Japan), there is less incidence of brutality than in countries where
people believe it is cowardice to let any challenge top unmet (e.g. India, USA).*1075
Amongst many other reasons advanced to explain the fundamental reasons for the brutal
behaviour patterns of policemen, it is also pointed out that the society in general is highly cruel,
exploitative and torture ridden. There is an argument of ambivalence concerning torture when it
comes to groups other than police or prison authorities . As Prof. Baxi points out that if the
essence of torture is to apply to severe mental or physical pain, then instances and illustrations of
such impositions can be seen in practically all areas of our life in family (wives, driven to
desperate suicides by in-laws and husbands, child or wife-bashing, abuse of domestic labour), the
sue of corporal punishment in the field of education (by instances of infliction of psychic pain by
degrading treatment, cases of ragging), social structure (stratification leading to unspeakably
inhuman treatment of untouchables), agrarian economy (bounded labour system, money lender's
treatment of agricultural debtors belonging to lower strata, harshness of recovery), Industrial
relations (strong arm tactics by hirelings of the both the unions and industrialists) ethnic and
minority groups relations( forcible conversions, exploitation of tribals and women), bureaucracy
(high handed behaviour with the public as well as the juniors in rank) or health (where poor
patients are often used as objects of clinical or even surgical training, use of harmful drugs and
so on) power politics and organized crimes, all of which the police are expected to combat.*1076
1073 1. Ravi Arumugam- Custodial Violence * Deaths: Problems & Prevention- a paper published in CBI Bulletin,
December 1994, CBI Publications, Delhi at 20.
1074 Sankar Sen, PSV Prasad, AK Saxena- Custodial Deaths in India (A research Study)- SVP NPA, Hyderabad
1075 Supra note 1070 at 35-38.
1076 Upendra Baxi- The Crisis in the Indian Legal System Vikas, 1982 at 138, 139.
332
However, this can at best rationalize the issue to state that police is also one of the groups which
uses unjustified force in its dealings but fails to impress us, as two wrongs do not make a right.
Hardly can we disagree with Prof. Baxi when he says that we can even ask the police to set an
example for the rest of our social groups. But, as we may do this, this kind of criticism of society
as a whole may provide us with fresh starting points on the subject of protection of human
dignity and use of custodial torture, than mere empty commonplaces such as "we get the police
we deserve".*1077 Ultimately, the issue has to be ended on a moral plane and in that context we
can neither rationalize not justify torture on any of these grounds.
In our country, we are accustomed to think in terms of 'an eye for an eye' and 'a tooth for
a tooth'. Therefore, the society tacitly expects and approves of the use of violence on 'suspects to
get at the truth'. Complainant themselves, particularly in property offences, egg on the police to
use force or violence to 'break' a suspect. Therefore, in a society where the public are indifferent
to the use of force on fellow human beings, policemen get, as it were, social support for these
illegal acts. Thus, there is no social stigma attached to the use of custodial violence by the
police.*1078
Human rights violations give to them some times money, sometimes name, sometimes
fame, sometimes recognition, sometimes ego-satisfaction, sometimes glamour, sometimes
favours from the affluent or influential in society, sometimes rewards and earlier promotions and
everytime contempt from the general public who become the victims of police violations. No
doubt, it is a pleasure for the violators and pain for the victims. A section of the public may
always approve of human rights violations by the police, for, they also are the beneficiaries. The
police behaviour so far has been such that the people in general approve of human rights
violations by the police. As the general public are conditioned to. accept and tolerate police
violations of human rights, they are inclined to think that a police officer with an aptitude or
inclination to make maximum number of human rights violations becomes successful in the
profession. As it is, a police officer who had developed professional ethics and desirable human
habits is rated to be a misfit or casualty in service. *1079
Occupational Solidarity.
Any grievous hurt to, or murder of a policeman are sparking points for police terror. This
phenomenon is also called occupational solidarity. Members of public do not display any
1077 Id at 139-140.
1078 Supra note 1058 at 57.
1079 Supra note 1039 at 109-10.
333
feelings on such occasions and deprived of solicitude the members of police engage in acts of
violence against the rule of law.*1080
No one is above the law. This maxim does not hold fully correct in case of policemen
who are involved in custodial crimes. The police are virtually in a position to mould or 'use' the
law to suit their interests. They have occasions to manipulate the law to cover up their misdeeds.
It indeed becomes difficult to enforce the law on the enforcers of the law. In such a situation the
police develop a feeling of immunity which is a major factor promoting the police brutality
against the person held in custody.*1081
Criminalization of Society.
That criminalisation of politics has already taken place is not a debatable question. Of
late criminals and goondas have been winning elections. Credibility which is the comer stone of
any society, is the biggest casualty in Indian politics. Corrupt local lower ranked officials are an
unfortunate by product of this process. Political murders, kidnapping, and patronage, all these
coupled with the police helplessness in such cases and their anger and frustration are vented out
in other spheres which concern the common public. Misplaced loyalty towards individual, party
or ideology and not to the public and law is an important cause of the rise of police brutality.*1082
The various causes of custodial violence as summarized by in the Sardar Vallabhbhai
Patel National Police Academy Journal*1083 are as under:-
1. Policing principles:- Most policemen do it purely to stop crime and deterring the criminals.
2. Public & Media Pressures: When a crime breaks out people start expecting results from
Alladin's magic lamp. In certain cases when no headway is made the media have front page
report saying "Police still grouping in the dark".
One of the causes of custodial deaths in the tremendous pressure on the police to detect
cases whenever there is a surge in crime, particularly heinous crime. The impact of the pressure
is mostly felt at the subordinate levels who are required to deliver the goods in quick time.
Majority of police officers and men are not cruel sadists and possess a certain degree of
commitment and motivation which enable them to stand the stress and strain of their difficult and
thankless job. Of course, there are some who, in the confines of the police stations or police
barracks, do not hesitate to inflict unspeakable tortures on the arrestees. Many police officers
1080
Supra note 1070 at 35-38.
1081
G.S.Bajpai, Custodial Crime: Some Observations, a paper published in CBI Bulletin, July 1995, CBI
Publication, at 24-28.
1082
Supra note 1070 at 35-38.
1083
Ibid.
334
develop a feeling that they can get away with worst forms of custodial violence because it will be
very difficult to prove such a charge as none will come forward to give evidence. He also feels
that his superiors and subordinates will rally round him and try to whitewash his omissions or
commissions.*1084
Do the criminals deserve harsh treatments from the police? In a public-opinion survey,
84.07 percent of the sample feel that they deserve to be treated in the manner police behave with
them today. The Indian public view may appear to be against the accepted principles of police
code of conduct and also against the outlook of the people in advanced countries where civil and
human rights are better respected. Why do our people take this attitude? The main arguments put
forth by them in this regard are that the rapist, the murderer, the pick-pocket, the thief, the cheat
and so on deserve harsh treatment. Ours is a country where accusatorial system of criminal
justice prevails and in such a system, the accused gets favoured treatment from the judiciary.
Hence, the harsh treatment of criminals at police hands offers public satisfaction. People are not
quite sure that the real culprits will be punished by the present criminal justice system.*1085
3. Inadequate police remand:- Police remand is given in only certain cases and so prisoners are
given third degree treatment to get out the truth within 24 hours. While examining ways and
means of making laws more humanistic and providing safeguards against abuse of power by the
police, it is also necessary to bear in mind, at the same time, the difficult conditions under which
the police are functioning. Some of the legal impediments that hamper proper functioning of the
police are to be removed. This is needed more so at a time when the police are confronting
unprecedented problems of law and order. Detention in police custody for 24 hours before
sending the accused to court is a check on arbitrary abuse of authority by the police. But it does
create problems in investigation of complicated cases where sustained interrogation in police
custody is necessary to unearth vital clues and elicit more information. It can be mentioned in
this connection that in UK the Prevention of Terrorism Act in 1974 permit the police to arrest
without warrant for offences under the Act and detain the suspect for 48 hours and for a further 5
days with the Home Secretary's approval.*1086
Interrogation of a suspect is a battle of wits. It presupposes superior knowledge and
wisdom on the part of the interrogator. He needs, in addition to full possession of facts and
figures, enough time at his disposal. Under the law of our country, a suspect has to be produced
departmental superiors, press and public to produce quick results. In the absence of professional
expertise to solve the crime and lack of time, custodial violence presents itself as a panacea for
1HR7
the interrogator and investigating officer to obtain quick results. *
Very often the court does not grant any further police custody. If a notorious criminal is
quickly bailed out, it is difficult to trace him out again. To circumvent the law, a new procedure
is being increasingly adopted by the police whereby a suspect is being picked up and detained for
many days. No permission is sought from the court and no information is given to the relatives
regarding the whereabouts of the detainee. Even if the detainee dies, the police do not own
responsibility as there is no evidence to show that he died in police custody.*1088
4. Increase in bail grants: This is another disturbing feature hardened criminals are given
repeated bails who return to the field of crime, frustrating the police morale who then resort to
third degree violence.
5. Inadequate training: The police in India do not know of any other method of detecting crime
than theses measures. There is no formal training in the technique of interrogation, also most
stations have no modem equipment.
6. Lack of supervision and easy escape: Section 23 of the Police Act of 1861 makes torture
punishable by imprisonment for three months or by loss of pay for three months but even this is
hardly followed.
Police Sub-Culture The police subculture is the sociological side of the same coin but appears
scientific and academic rather than historical. What it amounts to is the belief that a policeman
reacts to a situation in a manner peculiar to him as a policeman and thus different and
identifiable from how other people would react to the same situation. The subculture of our
police includes brutality.
There are informal rules of police sub-culture which glorify deviance not in terms of
personal gain or aggrandizement but as a requirement for completing the police jobs. Several
studies have highlighted the unfortunate situation in police organizations which engender a belief
in newly recruited officers that what they have been taught in training school is to be quickly
336
unlearned and they must fall in line with the prevalent culture in the organization in which the
emphasis is on the end of apprehending and convicting criminals and not on the means to be
adopted to attain the objectives.*1089
The police sub-culture that existed in the pre independence period was allowed to
continue even after India become independent. The basic law, Police Act, 1861, remained
practically unchanged and there was no sincere or whole hearted attempt on the part of the
governments to redefine the role and responsibilities of the police until quite recently. Thus, the
police sub-culture that was in existence during the British regime continued to operate and in that
culture, torture of citizens was permitted and tolerated by the authorities and the general public
alike. Hence, if a change is desired, it should be with an intention to change the police sub
culture and it can be changed only if a new Police Act is enacted redefining the role and
functions of the police.*1090
Causes of custodial crimes as identified by a social scientist are:-
a) Tremendous pressure on the police to detect cases- for increase of crime, police is singled out
for blame, socio-economic factors are overlooked.
d) Provisions of Section 161, 162, 164 of Cr.P.C and Section 25, 26 & 27 of Indian Evidence
Act made police weak to deal with the criminals.
e) Granting of quick bail to the criminals and refusal of granting of police remand compels
police to take up the practice of unauthorized detention.
g) National Police Commission shows that an 10 can spare only 37% of his time for his own,
while he remains busy in VIP duty, misc. enquiries, different law and order duty, court
attendance etc. IOs take extra legal methods of torture to detect cases.
h) Unfortunate culture in police organization to forget the lesson of Training Centre and
depending on practices of his fellow men.
Tacit Public Approval: The feature of the Bhagalpur blindings, where policemen allegedly
poured acid into the eyes of the Goondas, got the support of the local people who even took out a
procession to show their support. An opinion study conducted by "The Illustrated Weekly of
India" using a 'general sample' of 863 and opinion leaders' sample of 280 spread over Bombay,
Calcutta, Madras, Gwalior, Patna and Bhagalpur found that in Bhagalpur more than two-thirds of
the general sample and 60% of the opinion leaders sample were of the opinion that the blindings
were justifiable, 73% of the outside Bihar sample felt that it would have been okay if instead of
blinding them the police had beaten up the lot. In a particular city a couple of ruffians creating
trouble in the market place were arrested by the police, put up before the court the next morning
and were bailed out by the court. At this, the people of the town protested why the police had not
beaten up the ruffians during the night when they were in police lock-up, took out a procession
and a Bandh was also observed. So, when the police are 'soft' on a criminal, allegations of
corruption are immediately made and people suspect the worst complicity between them and the
criminals.*1092
Performance Pressure: Policemen are always under pressure to produce results. Moreover,
policemen have got the trouble on both the sides. If they fail to extract information and put the
case before the court properly with irrefutable evidence he would be charged with the allegation
by the superiors that he has not pursued the case diligently. But at the same time if he uses the
third degree methods for extracting information there is a cat-call of 'police brutality'.
Sutherland*1093 rightly pointed out "police officers are in a difficult position, for in order to do
their work efficiently they must use more power than the law seeks to give them. They are
responsible for maintaining order and for catching and arresting people suspected of violating the
criminal law but they cannot meet these responsibilities under the power and authority granted to
them. At the same time, if they exceed their authority when dealing with certain suspects and
offenders they are subject to severe public criticism. They can safely exceed the legal authority
1091 Bula Bhdra, Police Culture, Human Rights And Custodial Crimes in India, a Central Detective Training School
Kolkata Publication, at 18-24.
1092 Supra note 1021 at 23.
1093 Sutherland is known a father of Criminology. He was a great social scientist who propounded theories on
criminal behaviour.
338
only when dealing with people who are not powerful politically and who are therefore, relatively
helpless."*1094
Colonial Legacy: It will be found that the use of force, a certain degree of violence or brutality
is legally built into the role of police and the present organization of police based on the Police
Act of 1861 was not intended for rendering courteous service. The question of brutality,
therefore, resolves itself in the question of unnecessary force. This is a very difficult question
indeed because how much force was necessary, how much was in excess of the necessary cannot
in most cases, be determined in retrospect which means the man on the spot usually has the final
word on it. Discussing the extent of brutality the Torture Commission quoted a minute of Sir
Thomas Munro which was recorded in 1827:
"It is no doubt too certain that many irregularities are used
in obtaining confessions, and that in some instances
atrocious acts are committed, but when we consider the
great number of prisoners apprehended, and the habits of
the people themselves, always accustomed to compulsion
where there is suspicion, how difficult it is to eradicate
such habits, and how small the proportion of cases in which
violence has been used is to the whole mass, the number of
these acts is hardly greater than was to be expected, and is
everyday diminishing." *1093
During the British Raj the police, as an instrument of the Executive, were an instrument
of oppression by the rulers; the people were meant to be oppressed, suppressed, beaten up,
tortured, lathi-charged and fired upon, particularly if they opposed the sarkar or any instrument
of it. After Independence they failed to learn that they are not merely the instruments of the
Government but also the servants of the people.
Importance of Confession:- In advanced countries much reliance is not placed on the
confession of the accused and they try to prove their cases by collecting evidence, oral,
circumstantial and scientific by a painstaking and sustained investigation so much so that in
Japan though the police have a right to interrogate the indicted accused on a voluntary basis, they
seldom do so in practice. It is rather unfortunate that in this Country the investigating police still
feel that a case in hand is solved as soon as they manage to get a confession from the accused
3. Where police get involved in partisan politics the 'boundaries' of tolerance of the officialdom
get expanded for police violence "in times of acute political tension and social disruption."
4. 'Tumultuous politics' often provides a screen for police misconduct, including violence.
1096 R.Deb- Criminal Justice- The Law Book Company (P)Ltd. AUahabad at 69.
1097 Supra note 1073 at 10-15.
1098 Supra note 1029.
340
crimes. Another significant aspect is that Indian police have nothing to offer to a criminal or the
criminal has nothing to gain if he becomes truthful. On the contrary, a criminal has chances of
gaining if he could mislead the police. In this game of deception and smart misleadings, police
officers feel tremendously inclined to third degree methods, specially when the time is short and
pressure is great and higher ups feverishly looking for some results to please their bosses.
Sometimes the complainant is influential and wants the pressure to be applied to the perpetrator.
The possibility of committing brutality is more due to external factor. The internal factors are
police ego, peer pressure, and corruption. Police ego is to establish the capability to solve the
case. The peer pressure is also responsible because a soft genteel police officer is less respected,
more derided.
Misplaced Priority:- In normal police work, law and order gets the main priority and the
prevention and detection of crime get only secondary attention. To be a successful detective, a
Police Station House Officer should have thorough knowledge of his jurisdiction, incidence and
pattern of crimes, modus operandi and other details of the criminals residing in his area, full
details of harbourers and receivers of stolen property, complete knowledge of undesirable and
anti-social elements of the area etc. To acquire this knowledge, the officer should have sufficient
time and leisure at his disposal. Unfortunately, with his pre-occupation with law and order
duties, and his frequent transfers he is not able to concentrate on this important aspect of his
work. Thus, his approach to crime work tends to be unsystematic and unscientific.*1099
Conditioning.
Public endorse the view that the society cannot be policed without violating the human
rights of people. They are inclined to think that human rights violations are a sine qua non for
good and effective law and order management and prevention of crime. The principal reason for
the development of this sort of pervert impressions among the people and the police has been
found to be that neither the police nor the people have seen how the police in some other
countries work without violating human rights. This sort of "conditioning" of the public and the
police towards the acceptance, approval and recognition of human rights violations as a part of
the police sub-culture make everyone to say "let it go on as it is" or better, "without it nothing
can be done" in India.*1100
341
The indecent expressions uttered by the police centre around words like "bastard", "son
of a prostitute", "mother-fucker", "son of a bitch", "prostitute or a woman of bad sexual
character" etc. which are hated by anybody including notorious sex-perverts in society. The
reasons for the lavish use of most sexually indecent words may be many and various. But the
most important cause, as indicated earlier, is found to be "conditioning" of the people to these
kinds of reprehensible words. By the frequent use of filthy words/language to people, the man of
the street has been "conditioned" to the fact that they need not take the police seriously if and
only if the police use abuse words against them. This false notion of the public can be wiped off
only if they are deconditioned and the deconditioning needs a change not only in the culture of
the society but also in the sub-culture of the police department where the frequent use of slangs,
indecent expressions, filthy language etc. have become a regular feature.*1101
Animal Instincts in Human Beings.
It is an accepted theory in criminology that some people drive pleasure when they cause
pain or torture to others. This can be derived when pain is caused to insects, animals or people. It
can be masochistic, sadistic and vicarious. This nature in man is universal. The pleasure one
derives in doing so depends very much upon the personality of a man/woman who inflicts pain
on others. This is the reason why some persons cause more pain to people that others. The
preachings of religion, philosophy, ethics, are, in a way, towards controlling this nature of man.
Hence, the first step towards preventing human rights by police should be to initiate steps for the
inculcation of the finer points in the professional ethics and the police code of conduct among the
police functionaries.*1102
Conducive Environment.
Personality traits of aggression in people get developed when there is conducive
environment for their development. The more the favourable environment for the development
of aggressiveness, the greater will be its development. May be due to the historical disadvantages
that the police in India have inherited from the British oppressive police system or may be that
the police after independence did not want to deviate from such oppressiveness which guarantee
certain amount of physical, psychological monetary benefits for them, the environment
prevailing in police stations or at the cutting edge level of police administration has been one
favouring the use of oppression and torture, however little or severe it may be. This has
1101 Id at 116.
1102 Idatl29.
342
doubtlessly an adverse effect upon the development of proper police personality in individuals in
the right and desirable direction which accepts and appreciates human rights, civil liberties and
dignity of a human person.*1103
Snail's pace of Criminal Justice System.
Maurice Punch in a perceptive study called "Conduct Unbecoming" has stated that the
roots of police deviance are deep-seated and multi-dimensional. It stems from, as seen in various
countries of the world, ambiguous legislation, vulnerability to legal sanctions, occupational
culture and a desire to produce quick results. In countries like India, the public expect the police
to take laws in their hands because of the working of the criminal justice system at a snail's pace.
There is demand for ruthless counter-measures in spite of the price to be paid in terms of human
rights. It is the responsibility of the police leaders to resist such pressures and check drifts of this
kind. They have to keep in mind that in any democratic society order maintained by repression is
the worst form of disorder. It establishes a linkage between social order and atrocity. *1104
Preventive Action.
In a Democratic country like ours we are bound to follow the majority, and when a
legislature has made a law, it might be open to resistance by minority. The scheme of rights is so
framed that every right is regarded as enforceable. There is no right which vests in us, which the
executive is not under an obligation to protect. If then any person prevents the exercise of a right
by a citizen, they behave unlawfully and must be restrained by the police, on the other hand, the
police and the magistrate are always found of using the preventive sections and produce the
effect that those who wish lawfully to exercise the rights vested in them are prevented, while
those who threaten unlawfully to break the peace are encouraged to believe that, if they only
make forcible enough threats they can prevail and get the authorities to curtail or suspend the
citizen's lawful rights. The executive in this country are in a very privileged and pampered
position. Law gives them extraordinary powers, and still whenever they have got to protect us in
the exercise of our lawful rights, they have recourse to preventive action and shut us. *1105
5. Political or other pressure groups exercising their influence on the police to abuse their
power.
6. Community pressures in specific unsolved cases force a tremendous public upheaval when,
for example a series of crimes or offences go undetected and an indirect impetus is thus
falling on the police to somehow detect the case even at the cost of unjustified force on
suspects.
7. Imaginary belief that in the best interests of the case and welfare of the community, such use
of force is not bad, if the intention or the object is good i.e., to solve a case or to teach a
lesson to a bad coin.
8. Horrifying or outrageous cases like gruesome murders for gain or rape, when not solved
generate an opinion in the minds of even impartial observers that lawlessness has to be
curbed at any cost and that violence can be met and curbed only by superior violence.
10. Lack of scientific approach to investigation, both during training as well as during the field
work which is compounded by inadequate emphasis on it by the police leaders.
We may tersely state that the all the above and many other apparently convincing factors
are illustrations of various explanations for the prevalence of abuse of police power including the
crude resort to third degree by the police. But they surely are not the justifications for such
lawless actions by any stretch of imagination. Reasons apart, third degree or custodial abuse
cannot and must not be countenanced. No doubt, measures to tackle some of the constraints
above can be certainly sought and acted on. Admittedly, a vast majority of policemen may not
have such a warped mental make up. Yet, the strength of a chain hinges on its weakest link and a
perverted or lawless minority amongst them can sully the reputation of the entire force and even
discredit the very system. In fact, this appears to be the truth. Why these brutalities by the police?
So many factors seem to contribute:-
1. Prolonged stress and strain of police work on policemen.
2. Very little time is left for policemen to conduct investigation of cases and for detection
because they are mostly busy in law and order, VIP duties, attendance in courts and senior
police offices.
5. Police corruption.
50 senior Indian Police Service officers of Haryana cadre were circulated a questionnaire
to solicit their opinion on the reasons/compulsions behind violation of human rights of the
person by police in custody. On the condition of anonymity and promise of secrecy these officers
345
furnished their response. These officers enumerated following reasons for violations of human
rights by police
• Pressure from public, specially against the accused of rape, eve-teasing and serious
accidents etc.
• Pressure from members of ruling political party/parties.
• Lack of knowledge on part of lower subordinates.
• Personal interest of police officer for various reasons.
• Problem of getting the police remand of accused person required for sustained interrogation.
• Hard nature of duties of police officers.
• Pressure/demand from the society.
• Ignorance of law on the part of the subordinate police officers.
• Normally criminals, especially property offenders, do not divulge any information without
use of third degree.
• Eagerness to show results.
• Threats from senior officers to show results or face consequences.
• Greed for money.
• In the interest of law and order.
• Misbehavior by the arrested person with the police.
• Personal enmity of the Investigating Officers with the person in custody.
• Psychological imbalance of police officers.
• Hypertension caused by excessive work load.
• Over populated country where human dignity is graded very low priority in the society.
• Inequality in the unequal society.
• Shortcut to investigation due to paucity of time.
• After a stage in investigation there is no option but to resort to torture to solve the mystery of
crime.
• Complete absence of training for investigators on scientific interrogation techniques.
• Self assumed professional challenge to solve all property crime and crime mystery.
During the course of this study, lower subordinates at the cutting edge level were also
interviewed for their knowledge on human rights: A questionnaire was circulated and response
received as compiled below
Out of 140 lower subordinates interviewed, 71 reported that human rights are the rights
given by the Government, 20 reported that human rights are individual rights, 38 reported that
human rights are fundamental rights and 11 others reported that human rights are rights
necessary for life.
15 out of 140 lower subordinates responded that abusing, slapping and beating a person
in custody does not amount to violation of human rights.
20 out of 140 lower subordinates responded that they were not given any lecture by any
body on the subject of human rights. 71 reported that they were imparted knowledge of human
346
rights by officers of the rank of Superintendent of Police and above. 76 responded that they were
given lecture by the officers of the rank of Deputy Superintendent of Police. 22 reported that
they were given lecture by the officers of the rank of Inspector and Station House Officer. Not
even a single lower subordinate responded that he had read any book, pamphlet or written
document on human rights.
When asked what action should be taken against known property offenders and bad
elements, 8 out of 140 responded that they should be given shoe beating in public, 46 reported
that they should be arrested after registering a criminal case and 86 others reported that legal
action should be taken against them as and when they commit crime.
One out of 140 confessed having misbehaved with persons in custody for more than 100
times in his career, 2 responded that they have misbehaved with the persons in custody for more
than 50 times, one confessed having misbehaved with the person in custody for more than 20
times, 2 confessed having misbehaved with the person in custody for more than 10 times.
Out of 140 lower subordinates interviewed, one confessed having beaten a person in
custody more than 100 times, 2 confessed having beaten a person in custody more than 50 times,
2 confessed having beaten a person in custody for more than 20 times, 3 confessed having beaten
a person in custody more than 10 times and 22 responded that they had beaten a person in
custody less than 10 times in their career.
Above response is suggestive enough to conclude that adequate training and knowledge
on the subject of human rights is not being imparted to lower subordinates at cutting edge level.
The response of Senior officers of Indian Police Service is, however, disturbing. It appears that
they have learnt the art of justifying the use of third degree methods in investigation. What is
more disturbing is the fact that those officers who took oath and expressed their faith and
allegiance to the Constitution of India on the very first day of their service career have forgotten
the basic structure of our Constitution. They need more training than their lower subordinates.
(D) Police custody Death svndrome(PCDS).
(PCDS)*1109 is the unexplainable and sudden death of the victim while in custody. While
PCDS is not a completely new phenomenon, the issue is being reevaluated by many law
enforcement agencies. These deaths occur after some amount of force was used, however, the
force, in and of itself, would ordinarily not be sufficient to cause death. In most of the reported
cases, these deaths were not attributed to deadly force by law enforcement officers and were not
347
the result of head strikes or blunt trauma. The arresting officers avoided impact weapons in an
attempt to avoid significant injury. Suspicion would be raised after the subject was discovered
dead. The following list may prove useful to police toners attempting to identify the potential
PCDS:
1. Bizarre, aggressive behaviour.
2. Violent behaviour.
3. Shouting.
4. Fear
5. Panic
6. Paranoia.
7. Violence towards others.
8. Violence towards objects, especially glass.
9. Public disturbing.
10. Dilated pupils.
11. Profuse sweating.
12. Unexpected physical strength.
13. Jumping into water.
14. Self-inflicted injuries.
15. Shivering (hypothermia).
Additionally, less obvious signs and symptoms include: delirium or psychosis, high blood
pressure incoherent or meaningless speech, and dose of drug . It is interesting to note that in the
cases cited above as well as many other cases involving PCDS, toxicol revealed the presence of
cocaine in the subjects' system.*1110
Police are not psychopaths given to murdering people. What happens in the field is when
police start applying third degree to the suspects, many of them die due to the fact that they are
generally undernourished of poor health with serious medical problems and the existence of fear
psychosis generated due to the trauma of custody and stories of police brutality.*1111
1109 Tod W. Burke and Joseph Reynolds, Police Custody and Death Syndrome, a paper published in Magazine "Law
and Order" USA, September, 1994 at 1991.
1110 Tod W. Burke and Joseph Reynolds, Police Custody and Death Syndrome, a paper published in Magazine "Law
Enforcement Technology" USA, July 1994 at 64.
1111 S. Subramanian, Prevention of Deaths in Police Custody, A paper in CBI Bulletin- January 1994, CBI
Publication, Delhi at 1-3.
348
(E) Lack of Study and Research in Policing in India;-
India is sadly lacking in this field as compared to some western nations. Such studies and
research impart respectability to police and policing by creating an intellectual dimension. They
are also the stepping stones in remodeling the police organization and redefining policing
functions to create an effective police force.*1112
(F) Falling Standards of Morality:
One cannot deny the fact that social, ethical and moral values in our society have
considerably fallen. We cannot deny the fact that police men are recruited from among our own
society. This accounts for the fact that the same is happening in other professions also, the police
are only more visible. To every young and inexperienced person there is often a conflict between
his early training with emphasis on service ideal and his developing experience at street
level.*1113
(G) Psychological Methods of Interrogation.
There has been a perceptible decline in the psychological methods of interrogation by the
police, and a corresponding rise in the violent and extra legal methods for detection of cases. The
Royal Commission of UK identified three principles for conduct of criminals investigations.
These are:-
1. The public have a right to expect a set of standards for conduct of these investigations.
2. There should be a balance between the extent and effect of the investigation powers.
3. The use of such powers in a case should be warranted by the specific circumstances and be
capable of immediate challenge and subsequent review.*1114
The police short-cut is brutality and it has become a way of life. In a house-breaking case,
the process of making enquiries from various people, from the Modus Operandi Bureau and from
the various fences of stolen property takes time; for the normal police officer it is faster to catch
the servant in the house, hammer him and if it works and, at his instance, some stolen property is
recovered well and good, otherwise tough luck for the complainant, the case goes undetected. Of
course, in India the most used short-cut is not to register the burglary at all, harass any one who
comes to the police station so that an ordinary citizen would think several times before coming to
report an offence. Brutality works even better in handling of law and order situation. And, sadly
enough, under pressure it seems to be the natural response of police, regardless of country. *1117
Whenever a serious crime like a robbery or a major burglary takes place, the area police
swoops on all possible suspects in the vicinity. They are picked from their homes and kept in the
police station over several days, not formally in a lock-up, but in some other remote room, to
escape detection. As the police is not quite comfortable keeping a man in illegal custody
(because of fear of being discovered by the judiciary or the magistracy or the media or the
human rights groups), the tendency is to get over with the whole thing quickly by the short-cut
method of third degree. The fact is that confessions do come quite easily with third degree,
except in a minuscule number of cases involving hardened criminals. *1118
Members of the weaker or poorer sections of society, are arrested informally and kept in
police custody for days together without any entry of such arrests in the police records. During
1120 Introduction to the 152nd report of the Law Commission of India on "Custodial Crimes," August 1994.
351
custody were daily wage labourers and people who come from the poor strata of the society. 26
people out of 45 were in the age group of 20-40 years.*1121
(I) Deaths in Police Lock-ups.
In 1980, Arun Shourie*1122 investigated 45 deaths in police custody in seven states. He
found, "the patterns are uniform from one death to another, from one State to another, that
generalizations are possible. The victims were invariably poor. Several of them were hauled in
on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly
large number of cases they are all accused of petty offences." In some cases investigated by him,
he observed that the bodies were so badly mauled that it was not possible to hide the crime
committed. The explanation for these deaths were, 'snake bite', heart failure on the way to the
hospital, 'sudden illness', etc. Some were said to have died of mysterious reasons, while the rest
committed suicide. The accounts of suicide given have not varried. Hanging inside the lock-up
by using a 'lungi' or a belt, jumping out of a building or in front of a bus, are some such
unbelievable account.
Deaths in Police 'Lock-ups' and in encounters' occur frequently and the fact that majority
of the victims are from weaker sections of society and these deaths are the outcome of third
degree methods and flagrant violation of human rights of the citizens, are causing concern to all
right-thinking citizens of India. They not only sully the image of India as a liberal democracy but
are also providing fuel to anti-India propaganda by vested interests. Every year, lakhs of people
are taken into custody by the Police and majority of them are suspected of having committed
property crime. They are generally from poorer sections of society, illiterate, lack financial
resources to afford legal aid and are unaware of their rights. Bulk of these arrests are made in the
cities and towns where property crime occur in good numbers. To solve property crime, Police
resort to third degree due to-
> Tacit approval of the society for the use of force against a suspect to detect the crime;
> Psychological factors including fear psychosis in the minds of suspects and to exaggerated
stories of Police brutality;
> Lack of adequate time and pressure to produce quick results which preclude the use of time-
consuming and painstaking modem methods of crime detection; and finally
3. In-service training of subordinate ranks is not being paid proper attention in States for
shaping the attitudes and conduct of policemen to stop custodial deaths.
4. The State Governments do not consider it imperative to eliminate the use of third degree
methods in police working. A large segment including certain ministers, bureaucrats and
senior police officers feel that rough treatment to criminals is desirable because since it
builds proper image of police.
5. Lack of political will and strong Public opinion are the reasons of occurrence of custodial
deaths.
6. Police Stations have become places of disrepute and highly sensitive persons taken in
custody commit suicide.
7. Some police personnel do not have adequate skills of investigation and utilize third degree
methods on persons taken in custody.
9. Most of the victims of custodial deaths are from poor background. Either they belong to
scheduled castes or tribes or other backward classes or poor from the so-called forward
classes. State does not bother about them.
11. Very often, Committees and Commissions are appointed to look over a crisis or to suppress
people is emotions over the incident. As soon as temper cools down, government also forgets
about it.
12. As long as the police are misused by vested interests for personal and political purposes, all
such Commissions and Committees on custodial violence will be meaningless.
13. Undue emphasis is given to the crime figures, Slow process of modernization of police force,
will to implement, lack of resources, poor training of personnel and lack of respect and
commitment to law of the land are some reasons for custodial deaths.
14. There is feeling of brotherhood among police at different levels. Therefore, strong action is
not taken against erring policemen.
2. Lack of public sensitization on the issue of custodial violence and the political will are also
the reasons of occurrence of custodial deaths.
6. More interference with Police functionaries who find little time for proper follow-up of cases
because of preoccupation with routine policing especially with law and order duties.
7. Indiscipline among the ranks and lack of public awareness on the issue of custodial violence.
8. The police being perceived as an agency to "Settle" political scores and secure electoral gains
fortunes is receiving political patronage down the line.
9. Inertia from higher echelons of the police and home departments who view police as a
symbol of "power."
10. Every official tries to "influence" the reports related to the custodial deaths.
1126 Id at 57.
354
11. In several parts of country, law enforcing agencies are working under stressful conditions.
Better training and equipment to handle such situations are desirable. This, along with alert
public watch dog committees will reduce the occurrence of custodial deaths.
12. Custodial deaths often take a turn and emerge as political issues against the ruling party.
Enquiry findings sometimes cause inconvenience to the ruling party. This hampers
implementation of the recommendations.
13. Politicians in general are very much concerned about the 'Morale' of police. When they find
that the recommendations of the Commissions when implemented can generate
dissatisfaction among policemen, they postpone the implementation. Policemen are capable
of "creating" a political crisis by unwarranted firing, lathi-charge etc. Therefore, the ruling
party tries to create an impression among policemen that they would support them as far as
possible. Delay in implementation of reports is one of the ways of eliciting police support.
2. Those in power do not want to take the police to task. They treat police as an instrument of
coercion.
3. The commissions and committees are a drain on the exchequer. Their wisdom is not
translated into action as their words have no binding authority.
5. It is advised that police department should take steps on its own by way of prompt
punishments in case of offences relating to lock-up deaths. Such punishment must be severe.
1127 Id at 74.
355
Response of academicians on custodial deaths as compiled by Shankar Sen*1128 is as
under: -
1. Any conviction of the police personnel due to custodial deaths must be given as wide
publicity as that of any other serious crime.
3. Police personnel are required to be trained intensively on law relating to custodial deaths and
the skills of interrogation.
4. Police stations are required to have adequate rooms for detention with some privacy for
female detainees.
5. There is no bureaucratic or political will which alone will break the nexus between criminals
and ofFicials/police/politicians.
6. The suggestions are inter-linked with various other problems like literacy levels of police at
lower cadres, pay scales, police organization, etc., which involve expense of time and energy.
8. Corrupt government, which in most cases support the culprits when they belong to the ruling
party.
10. The interests of the politicians come in the way of implementation of reports of
Committees/Commissions.
11. Some of the suggestions involve financial expenditure, which obviously is the reason for
non-implementation of such suggestions to control custodial violence.
12. Politicians in power want to use the police as a tool to show authority and to suppress their
political opponents.
13. There is greater gestation periods between formation of commissions, publication of reports
and their implementation.
15. If no action is taken against policemen responsible for custodial deaths or other excesses,
they also loose sensitivity and therefore consider themselves as "rulers" rather than servants.
1128 Ibid.
356
The views of top echelons of Police.
During the course of this study a opinionnaire on 'Custodial Deaths' was mailed to 70 IPS
officers. When asked to identify five most important reasons of occurrence of custodial deaths in
our country, the respondents identified the following:-
1. Custodial deaths occur due to the use of third degree methods by police.
2. There is lack of effective supervision by the senior police officers and the subordinate ranks
lack in proper attitudinal orientation to avoid Custodial Violence.
5. Extraneous pressures because of political forces, personal vendetta, and corruption lead to
'Custodial Deaths' in our country.
Other five low intensity reasons for the occurrence of custodial deaths identified were:-
1. Police lack confidence in the Criminal Justice System.
2. Due to pressure exerted by officers to show results, there is always a performance anxiety
among subordinate ranks to perform even by bypassing law.
3. Liberal bail provisions stress on foolproof evidence etc. are some of the provisions in the
legal system which encourage evil practices resulting in 'Custodial Deaths'.
4. Lack of professionalism and weak internal organizational democracy are also the factors
leading to Custodial Violence.
The police is assigned the basic duty of enforcing the rule of law without fear or favour.
The failure on its part to take timely action may lead to violation of human rights. In an
insurgency situation it is difficult for the policemen to keep in mind the lessons of human rights.
But the scenario is totally different when the offenders is in police custody. There can be no
excuse whatsoever for committing violation of human rights in custody. *1131 Senior officers
would do well to analyze the problems of custodial crimes by examining the following possible
remedial issues
1. Whether it is possible to list out or enumerate the difficulties and problems of the police
which lead them to commit excesses and violate human rights.
2. What appropriate remedial steps should be taken when such excesses or violations are
committed may be under conditions of stresses and strains.
3. Whether better command control could make any difference in the situation.
4. What steps could be taken to minimize and eliminate abuse of authority when victims are in
police custody:
5. How much improvement suitable training input both in basic and in-service courses can
bring about in the situation.
6. Whether the burden of proof would lie on the police in the event of death, serious injury or
rape in police custody.
7. Whether judicial enquiry should be made mandatory in cases of death, serious injury or
alleged rape in police custody.
8. Whether mechanism, such as, Citizen’s Grievance Cell be made effective to ensure proper
redress of people's complaints against police personnel.
9. Whether members of the public could sue the members of the police forces without seeking
permission of the government in situations of violations of human rights.
1130 Omstead v US 277, US 438.
1131 Supra note 1021 at 23.
358
Suggestions to Eliminate use of Third Degree Methods. *1132
Suggestions Total
Training in scientific methods to be emphasized 92.0%
Forensic scientific facilities to be made available at the police 87.1%
station level.
Judicial inquiry should be mandatory in cases of death or 80.4%
grievous hurt in police custody
Senior officers should pay surprise visits to the police stations. 74.2%
Use of such methods should result in swift and deterrent 73.8%
punishment.
It should be mandatory for the court to ask the arrested person if 69.3%
he was ill treated by the police
Performance of police officers should not be evaluated on the 65.3%
basis of number of cases solved by them.
Following remedial measures were Iso suggested in the report of BPR&D (1992) *1133 on
custodial crimes:
1. Tightening recruitment standards.
2. Improving training standards.
3. Improving the machinery for enquiring into complaints
4. Improving supervisory and leadership standards.
5. Review and implementation of reports submitted by commission/committees.
6. Review of laws.
7. Payment of compensation.
Amnesty International's 10 Point Programme;-*1134
1. Adopt an official policy to protect human rights.
2. Investigate impartially all allegations of torture.
3. Bring the perpetrators to justice.
4. Strengthen safeguards against torture.
5. Inform detainees of their rights.
6. Train the police and security forces to uphold human rights and reform the police.
7. Compensate the victims.
8. Provide torture victims with medical treatment and rehabilitation.
9. Investigate the causes and patterns of torture.
2. It would be a means to look into complaints of acts or omissions and help correctives and
would thus ensure appropriate imperatives resulting in penal actions against the erring.
3. Such a measure is perhaps the only way to seek public support and cooperation in such a
1 1oc
In the end it must also be said that society gets the police it deserves, for without social
control and vigilance as exercised through Parliament. State Legislatures and other Corporate
bodies the police with its enormous power has a tendency to go wrong and awry. 'Power tends to
corrupt and absolute power corrupts absolutely." Thus social control in the form of approval or
disapproval of police action can motivate the police to become just, fair and law-abiding. If
society firmly refuses to condone policemen's unfair, high-handed and illegal actions, much of
the transgressions of the law by the minions of law will soon become a thing of the past. *1136
Indian Evidence Act, 1914.
It is a curious anomaly that while law gives power to police officer to arrest anyone and
keep him under custody for at least 24 hours, it places unreasonable restrictions on the testimony
of the police officers. Section 161, 162 164 CrPC and Sections 25,26 and 27 of the Indian
Evidence Act should be recast to remove shackles on police testimony. Section 162 CrPC
provides that the maker of statement before the police is not to sign it. This frequently enables
the witnesses to resile from the statements they have made before the police in courts of law. In
England and in many other advanced democratic countries, statements before the police are
generally signed and considerable importance is attached to them because it is difficult to confute
Independent Watchology.
The government should allow independent bodies to regularly inspect all places where
detainees are kept. It could consider granting access to police stations by local judges to make
unannounced visits or grant such access to representatives of citizens committees. Even today,
the judges do enjoy such privileges and so do the superior officers of the department. But, what
is not seen is that seldom they do visit and if at all some superior officers do so they do not
approach the issue with an attitude of respecting human rights. They do it as a routine duty and if
they find some detainees without reasonable justifications for their custody by police, they are
released and usually no punitive or departmental action is initiated against the erring officers
unless they want to harass the erring officers/men. There is an argument that the superior
officers' attitude to such callous violations to human rights by the subordinate ranks should be
changed if one wants to stop such violations in police stations. *1138
Attitude of Courts.
As it is, the lower courts used to ask a question to the people produced before them
whether or not they were subjected to illegal detention, informal arrests or torture. Many people
usually do not tell the courts how they were tortured. The reason for this attitude is the well
founded apprehension in the suspects' mind that they would be further tortured by police in case
they reveal the ways and means by which they were tortured in police custody. It should be made
mandatory for the courts to make suo-moto inquiries about the day and date on which the
suspects were taken into custody, the place or places they were detained, the manner of keeping
them in custody, i.e. with normal dress or not, the physical conditions of the lock-up, the
hygienic aspects of the food, sufficiency of food given to them- the identity of the officers who
had taken them into custody, the manner (formal or informal) in which the arrest was made, the
circumstances of their arrest and a variety of such questions with an aim to make a judicial
1137 Sankar Sen- Human Rights- Ina Developing Society-APH publishing Corporation, Delhi- at 94.
1138 James Vadackumchery- Human Rights & the Police in India-APH Publishing Corporation, Delhi- at!35-36.
361
assessment of every aspect of torture that was likely to creep into while the suspects were
handled by the police. In case the court feels that they were subjected to torture, they should be
immediately be sent for medical examination. As it is, everything is done in a ritualistic
fashion.*1139
Training.
Training programmes have been initiated to sensitize policemen of citizens' legal rights
and safeguards. But what is further required is different training programmes for requirements of
different level. For officers of Indian Police and State Police Services, the syllabis should include
the International Covenants on Civil and Political Rights and International Covenants on Social,
Economic and Cultural Rights, other international instruments on human rights and the
constitutional and legal provisions. The officers of the junior level and for those who are at the
field should be exposed to legal and constitutional guarantees for the protection of human rights
with special reference to the Fundamental Rights and Directive Principles of State Policy.
Instead of PSI/PR, indoor staff teaching those provisions to policemen at training schools, we
can invite social science lecturer from reputed local colleges to deliver 2/3 guest lectures and we
may also organize quizzes/discussions on human rights to bring more awareness on the top.
Training films on do's and don'ts on the subject of handling of suspects/women can be exhibited
at training schools. An awareness of the early state of their career will guard the policemen
against perpetrating violence on fellow human beings in the discharge of their duties *1140
50 senior Indian Police Service officers were circulated a questionnaire to suggest
measures to eliminate the use of third degree methods from police investigations completely.
The following suggestions were offered by them
i) Law should be amended to provide enough time to the Investigating Officers to
interrogate the suspect/accused person.
iii) Judiciary should cooperate and give adequate police remand for questioning the accused
person in police custody in order to conclude the investigation as per law.
iv) Work load on police should be reduced by increasing the strength of police force in
number.
v) Number of Investigating Officers should be increased to reduce the work load on them.
vii) Criminal justice system should be strengthened to ensure that the criminals are punished
adequately.
ix) Service conditions, including salary and perques of police officers, should be improved.
xi) Undue importance given to crime statistics should be done away with.
xv) Economic development of the society should be ensured so that public learn to respect
human dignity.
xvi) More training and sensitization of police officers on the subject of human rights is
required.
xvii) Improvement in supervision of police investigation and frequent surprise check of police
lock ups are required-
xviii) The directions issued by the Supreme Court in D.K.Basu case should be implemented in
letter and spirit.
xix) Number of arrests being made by police should be reduced. Arrest should be made only
where it is absolutely necessary.
Issue 2: Should the law be amended to confer right on the suspect who is detained for
interrogation to insist for the presence of his Counsel at the time of interrogation? If
the amendment is made, will it not delay and interfere with the investigation of
crimes?
Comment 2: The presence of Counsel at the time of interrogation of the accused will hamper
investigation of crimes.
Issue 3: Should the law provide that on the arrest of a person it should be mandatory for the
police officer or any public servant holding the custody of a person to get him
medically examined before commencing the interrogation?
Comment 3: Medical examination of an arrested person before commencing interrogation is
possible in some cases, but it is not possible in most of the cases. Anyhow, it cannot
be made mandatory.
Issue 4: Whether Section 114 of the Indian Evidence Act should be amended to provide for
raising of a presumption against the police officer of the public servant in case of
any injury caused to a person in custody or resulting into death? Should the
presumption be rebuttable?
364
Comment 4: "114B(1) In a prosecution ( of a police officer) for an offence constituted by an act
alleged to have caused bodily injury to a person, if there is evidence that the injury
was caused during the period when that person was in the custody of the police, the
court may presume that the injury was caused by the police officer having custody
of that person during that period."
(2) The court, in deciding whether or not it should draw a presumption under sub
section^), shall have regard to all the relevant circumstances, including, in
particular (a) the period of custody, (b) any statement made by the victim as to how
the injuries were received, being a statement admissible in evidence, (c) the
evidence of any medical practitioner who might have examined the victim's
statement or attempted to record it.".
Issue 5: Should the law provide for an independent agency for holding enquiry into the
complaint of torture of a person in police custody or death, if so, what should be the
agency? Will it not serve the purpose if the enquiry is held by the Chief Judicial
Magistrate or Metropolitan Magistrate in case of torture and injury and by the
Session Judge of the District in case of death? Should they have the liberty to obtain
the assistance of the Criminal Investigation Department or any Police officer of
their choice?
Comment 5: Judiciary which is empowered to hold "trials" and "Commission of enquiries" in the
court room need not be dragged into enquiry into police excesses in the field.
Issue 6: Should a criminal case be registered against the delinquent Police officer or the
public servant, if a prima facie case of torture, injury, or death is found without any
further investigation and without obtaining sanction of the Government for the
prosecution of such delinquent public servants under section 197 Cr.P.C.?
Comment 6: Section 197 Cr.P.C. gives protection to Judges as well as police officials. Any
deviation from the restrictions imposed will demoralize the Judiciary and the police
force.
Issue 7: Should there be provision for the award of compensation by the Government on no
fault basis in the case of death or injury caused to a person? If so, what would be the
appropriate amount to be fixed. Should the court trying the aforesaid delinquent
officer have the power to award final compensation to the victim or the dependents
of the victim, notwithstanding their right to obtain damages in tot before civil court?
Comment 7: Award of compensation by the Government or any others on "no fault basis" in the
case of death or injury caused to a person in custody may result in "abuse" and may
amount to a mockery. The issue No.(l) is the answer.
Issue 8: Whether the law should provide for interim compensation in a case where as a
result of the enquiry, prima facie case of torture, injury or death on account of
injury caused in custody is made out?
Comment 8: Interim compensation also is not recommended. The issue No. 10 is the answer.
Issue 9: Should the law confer power on the Government to recover the amount of
compensation from the delinquent officer?
365
Comment 9: The delinquent officer will be judicially punished for any of his crimes proved in a
Court of Law. Recovering compensation from the delinquent officer will amount to
double punishment. The issue No. 10 is the answer.
Issue 10: Will the aforesaid steps not affect the functioning and morale of the police
adversely in investigating cases and further whether it will result into non
investigation of crimes which will affect public order? What measures should be
taken to avoid these situations?
Comment 10:A big "yes" to the issue. *1141
1141 I. Ravi Arumugam- Custodial Violence * Deaths: Problems & Prevention- a paper published in CBI Bulletin.
December 1994, CBI Publications, Delhi at 18-19.
1142 Quoted from Project to Improve the Organization and Management of Law Enforcement System in India- A
Summary of Objectives, studies and recommendations (April 2001)- Edited by Anil Kumar Sinha- BPR&D,
GOI,MHA, New Delhi.
1143 Ibid.
366
(O) Human Rights Issues: Popular Public Response.
The Bureau of Police Researh and Development conducted a study and published a
report. Some of the conclusions given in the report give the mind of the people. The response to
some of the questions is given below:- *1144
Arbitrary arrests and detentions are absolutely necessary to prevent and control crime.
Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 7.0% 25.5% 8.5% 25.0% 34.0%
Terrorists and hardened criminals should not be entitled to same fundamental rights as are
guaranteed to other citizens.
Convicted persons in jails should not be entitled to fundamental rights guaranteed to other
citizens.
Strongly Agree Agree Undecided Disagree Strongly
Disagree
Total 8.5% 31.0% 7.5% 33.5% 19.5%
1144 Ibid.
367
Persons in police custody should not have any right to communicate with their relations,
friends and lawyers.
police.
368
5. Provide adequate safeguards for detainees during arrest and detention in law and practice.
6. Provide adequate safeguards for interrogation.
7. Provide effective independent monitoring mechanisms to ensure implementation of
safeguards.
2. Public officials should lead by example. Any public officials found responsible for
committing acts of torture or ill-treatment whether in their private or public capacity should
be publicly condemned and prompt action taken against him.
3. The authorities in all states should institute public education programmes to educate people
about the unlawfulness of torture and ill-treatment in all their forms.
4. The Government of India should make a public commitment to end impunity for tortures as
an important signal that torture will not be tolerated.
5. Government officials should make it clear that India is committed to upholding its existing
obligations under international standards to prohibit torture. Pending ratification of the
Convention against Torture it should be clear that as a signatory to the Convention the State
1143 Words into action: Recommendations for the prevention of torture- Amnesty International, Embargoed for 31
January 2001. at 4.
1146 IdatS.
1147 Address to the Nation by the President of India, Shri K.R. Narayanana on the eve of Independence Day,
Monday, August 14, 2000.
369
is bound not to do anything which is inconsistent with the object and purpose of the
treaty.*1148
Amnesty International believes that a range of provisions which exist in the ordinary
criminal law should be reviewed with the aim of preventing rather than facilitating torture and
ill-treatment.
1. The right not to be tortured should be expliclity enshrined within the fundamental rights
chapter of the Indian Constitution. In addition, torture should be prohibited as a distinct penal
offence in Indian law. Its definition should incorporate the definition in Article 1(1) of the
United Nations Convention against Torture. All forms of cruel, inhuman and degrading
treatment or punishment should be similarly prohibited.
2. The law should lay down an active duty on the part of public officials to protect human rights
and prevent torture or ill-treatment rather than a passive one of merely abstaining from it and
should include offences of ordering, preparation, participation, encouragement and
complicity in torture. Article 5 of the United Nations Code of Conduct of Law Enforcement
Officials, which states that it is a duty to disobey any order from a superior to inflict torture
or ill-treatment, should be incorporated in relevant laws, especially the Indian Police Act.
Such a provision should be included in training of and instructions to anyone who may be
involved in the custody or treatment of detainees.
3. The Government of India should review Article 22 of the Constitution of India to bring it in
line with international standards and ensure safeguards for all detainees.
4. The Government of India should take all steps to abolish or amend laws or provisions of laws
which facilitate torture or ill-treatment including those laws which provide for preventive
detention and laws governing arrest and detention procedure.
5. Evidence elicited as a result of torture should be excluded in all trials and specially
prohibited in legislation including special legislation.
6. Protection should be provided for those refusing to carry out orders to inflict torture in
addition to the prosecution of those who gave such orders.
7. Any future challenges in the Supreme Court to special legislation which it is argued
facilitates human rights violations should not only take into account the constitutionality of
particular provisions but also their compatibility with the full body of international human
rights standards and the practical result of implementation of particular provisions.
8. The Government of India should take into account the views of the National Human Rights
Commission and others who have expressed concern that the enactment of the Prevention of
Terrorism Bill 2000 will lead to an increase in torture and ill-treatment of detainees. This
should be considered with particular reference to India's ratification of the International
Covenant on Civil and Politices Rights and its signing of Convention Against Torture (CAT)
which obliges it to refrain from taking any action which is inconsistent with the object and
purpose of the treaty.
2. Police reforms should ensure that police are able to operate independently in the interests of
the whole community and are not, as they are now, open to political and other influences
which commonly lead to abuses of the law including torture and ill-treatment.
3. The problem of overload within the criminal justice system-must be urgently addressed
recognizing that it contributes to public tolerance of violence as a means of justice and the
use of torture and ill-treatment by law enforcement officials as a means of "instant
punishment", and prevents victims of torture or ill-treatment from obtaining prompt redress.
4. Urgent attention must be given to ensuring that evidence in criminal cases is collected
through proper investigation by police and presented to the courts after careful consideration
by members of the prosecution service. It should be made clear to all within the criminal
justice system that the use of torture and ill-treatment as a means of coercing confessions
from the accused or testimony from witnesses is unlawful and that all, including police,
lawyers (including those provided through legal aid), prosecutors and judicial officers, play a
crucial role in ensuring that such actions do not form part of processes for bringing people to
trial.
1149
Id at 18.
1150
Id at 19.
1151
Id at 19.
371
5. Discussion of alternative forms of justice must ensure that there is full compliance with
international standards for fair trial and ensure the human rights of all parties. Cases in which
public officials are accused of human rights violations including torture and ill-treatment
should be pursued within the existing court system and not in courts where the aim is to
reach compromise and which often result simply in payment of a sum of money to the
victim.
6. The link between corrupt practices within the political and administrative system and the use
of threats or force often amounting to torture or ill-treatment must be acknowledged and
addressed. In particular, corrupt political influence over police and the resulting resort by
police to threats or force against individuals must be addressed by taking steps to remove the
police from such influence and initiating criminal proceedings against public officials found
to have abused their positions of authority for corrupt or malicious purposes.
Amendment in Law.
Under Section 46 of the Cr.P.C police can use unspecified and unlimited force to arrest
individuals. Sub-section 2 permits a police officer to use "all means necessary to effect the
arrest" if a person attempts to resist or evade arrest. Sub-section 3 allows police to cause the
death of a person only if a person is accused of an offence punishable with death or with
imprisonment for life. Amnesty International observes that the Cr.P.C. Amendment Bill 1994
which is once more pending consideration in Parliament seeks to broaden the category of
offenders whose arrest could lead to death (Section 46(3) Cr.P.C) to include those who are
"proclaimed offenders" under an amended section 82 which would include those accused of
murder, robbery, kidnapping, dacoity, preparing to commit dacoity and house trespass. While it
is widely acknowledged that section 46(3) has been used by police in some states, mostly notably
Andhra Pradesh, to justify extrajudicial executions of suspected members of armed groups,
Amnesty International expresses concern that its broad provisions allow for the use of torture or
ill-treatment against individuals. It is common for individuals to be beaten with lathis during
arrest and many women have had their clothes tom or stripped from them.*1152
The Supreme Court clarified that section 54 of the CrPC required that "the Magistrate
before whom an arrested person is produced shall enquire from the arrested persons whether he
has any complaint of torture or maltreatment in the police custody and inform him that he has
right under section 54 of the CrPC to be medically examined. "*1153Detainees are regularly
threatened by police not to make complaints of torture and brought before magistrates by those
same police who have been responsible for their interrogation and torture. Therefore if not
1152 Id at 30.
1153 Sheela Barse Vs State of Maharashtra (AIR 1983 SC 379).
372
specifically asked by a magistrate and placed in a safe environment where they do not fear
reprisal, detainees will not make such a complaint. In many cases, complaints of torture are
subsequently rejected by investigating authorities on the basis that the detainee did not make a
complaint to a magistrate when brought before them. Amnesty International believes that given
the current impediments to making a complaint of torture to a magistrate as stated above, this
should never be used as a justification for refuting an allegation of torture.
Role of Judicial Officers.
Judicial officers play a crucial role in ensuring that legal procedures have been followed
in arrest and detention and that abuses have not occurred. They should therefore be encouraged
to play an active role in detecting and remedying torture and action should be taken against
judicial officers found to have ignored evidence of torture. At a meeting held in Chennai in
December 1998 attended by members of the judiciary, police and non-governmental
organizations, an Amnesty International delegate was shocked to hear a district judge who had
been appointed to a human rights court in the state commenting that there was a problem in
deciding what level of violence could be used against detainees since a certain degree of torture
was necessary to obtain the truth.*1154
The argument that the police should resort to the third degree methods for doing quick
justice is not only untenable but also dangerous. As Lord Shankey observed, " It is not
admissible to do a great right but doing a little wrong." But by indulging in torture and murder,
the police are not doing a "little wrong" either. As Wickershan Commissioner (USA) pointed
out, "Third degree brutalizes the police, hardens the prisoner against society, and lowers the
esteem in which the administration of justice is held by the public.*1133
Medical Facility During Custody.
There is no arrangement for the medical treatment of detainees in police custody. Doctors
never visit police stations. Section 54 of the CrPC provides for the medical examination of
detainees on request of the accused in police custody. The Supreme Court has ruled that
detainees should be informed of this right on arrest, however, this is rarely done in practice. The
Criminal Procedure Code Amendment Bill 1994 suggested that a copy of the report of the
medical examination under this provision should be given on request to the persons or a person
nominated by him or her. The Supreme Court went further in its order in D.K. Basu vs. State of
1156 D.K. Basu v. State of West Bengal- 1977 Cr.L.J. 743 (SC) Paras 22, 36-44.
1157 Supra note 1145 at 32.
374
Right to Legal Counsel.
The right of detainees to legal counsel has been granted under Article 21 of the
Constitution and the Supreme Court in Nandini Sathpathy Vs. P.L. Dani (AIR 1978 SC 1025)
has interpreted that right to the presence of a lawyer during interrogation. At the VIII
International Symposium on Torture held in New Delhi in September, 1999, the Attorney
General of India gave a public commitment that the Nandini Sathpathy judgement would be
implemented as a means of ending torture. During a visit to Bombay in January 1994, virtually
all those interviewed by Amnesty International suggested that lawyers and relatives were
routinely denied access to persons held in police custody and lawyers told the Amnesty
International delegation that police practice in Bombay was not to allow lawyers to be present
during interrogation. *1159
Visit to Places of Detention.
The United Nations Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment provide that "places of detention shall be visited regularly by
qualified and experienced persons, appointed by, and responsible to a competent authority
distinct from the authority in charge of the administration of the place of detention or
imprisonment." That provision of this safeguard would make a significant contribution to the
prevention of torture in India given that laws are often honoured in their breach. Various
recommendations have been made in this regard in recent years in relation to visits to police
stations as well as prisons. The Supreme Court in Sanjay Suri's case*1160 stated that a "Visitors
Board (to monitor jails) should consist of a cross-section of society, people with good
background, social activists, people connected with the news media, lady social workers, jurists,
retired public officers from the judiciary as also the executive."
Investigation into Complaints of Torture.
The right of persons alleging torture to full investigation of their allegations is set out in
numerous international standards. Article 2(3) of the ICCPR sets out the right to an effective
remedy. Article 12 of the Convention against Torture requires that "Each State Party shall ensure
that its competent authorities proceed to a prompt and impartial investigation, wherever there is
reasonable ground to believe that an act of torture has been committed in any territory under its
1158 Police Reforms Committee presided over by former Home Secretary Mr. K. Padmanabhiah appointed by the
government in January 2000 which presented its report and recommendations to the government in Oct. 2000.
1159 Supra note 1145 at 37.
1160 Sanjay Suri Vs. Delhi Administration (1988 Suppl. SCC 160).
375
jurisdiction." In 1999 a Manual on the Effective Investigation and Documentation of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment (known as the Istanbul Protocol)
was presented to the High Commissioner for Human Rights. Mary Robinson by an international
expert group which took three years drafting the document. The Manual contains "Principles on
the Effective investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment" (Istanbul Principles). These Principles have been endorsed
by the UN Special Rapporteur on torture. The first principle sets out the purpose of effective
investigation and documentation of torture. These purposes are:-
i. Clarification of the facts and establishment and acknowledgement of individual and State
responsibility for victims and their families,
iii. Facilitating prosecution and/or appropriate disciplinary sanction for those indicated by
the investigation as being responsible.
Significantly, mandatory magisterial inquiries under section 176 CrPC are available only
for deaths in police custody. No such requirement exists for deaths in prison custody, or in the
custody of armed or paramilitary forces. In addition, there is no requirement in law for a
magisterial or any other sort of inquiry into allegations of torture not resulting in death. Victims
of abuse at the hands of police or other officials are often unaware of their right to complain and
have that complaint investigated. The UN Human Rights Committee in its General Comment
(2)) on Article 7 of the ICCPR has stated that:
" The right to lodge complaints against maltreatment
prohibited by Article 7 must be recognized in the domestic
law. Complaints must be investigated promptly and
impartially by competent authorities so as to make the
remedy effective. The reports of States parties should
provide specific information on the remedies available to
victims of maltreatment and the procedure that
complainants must follow, and statistics on the number of
complaints and how they have been dealt with."
Investigations into incidents of torture in areas of armed conflict in India have been
extremely rare. While in some cases of death in custody, following investigation by the NHRC,
compensation has been awarded, many allegations of torture go uninvestigated. In Jammu and
Kashmir Amnesty International has expressed concern for many years about the difficulty for
individuals to register complaints of human rights violations with police. The problems of
376
seeking redress for human rights violations in India are compounded in areas of armed conflict
by the protections from investigation and prosecution which members of the armed and
paramilitary forces, enjoy both under special legislation such as the Armed Forces (Special
Powers) Act, 1958, and statutory limitations of the NHRC which prohibit it from independently
investigating allegations of human rights violations by members of the armed or paramilitary
forces. In Manipur, attempts by the State government to institute Commissions of Inquiry into
allegations of grave human rights violations including torture have been frustrated by the actions
of the central government in arguing that state governments cannot order such inquiries into the
activities of the armed forces who are under the control of the central government.
In several cases in Manipur complaints- known as First Information Reports(FIRs) have
been filed with police and forwarded to judicial magistrates for investigation to determine
whether a trial can commence. Advocates representing the security forces concerned have then
filed review petitions challenging the right of magistrates to investigate offences alleged to have
been perpetrated by members of the security forces, on the grounds that they do not have the
jurisdiction to hear such cases. This has had the effect of stalling the legal process. The review
petitions invoke section 197 of the Cr.P.C., under which no court can take cognizance of an
offence alleged to have been committed by a public servant or members of the armed forces
while acting or purporting to act in the discharge of his official duty except with the previous
sanction of the central or state government. *1161
Inquest.
1161 Id at 4344.
1162 Id at 4344.
377
state, and who remains under judicial supervision) but the majority are carried out by executive
magistrate.
Those magisterial inquiries which are held are often inconclusive, which is inevitable
when, as happens in many cases, magistrates depend on the police to investigate allegations of
misconduct by their own forces. Inquiries into deaths in custody are often carried out by the
Crime Branch of a police force which is not independent from the rest of the force, particularly
as there are frequent transfers of officials between the two. The police are often reluctant to bring
forward evidence which might implicate their colleagues and senior officials have been known to
participate in routine cover-ups by police deaths resulting from torture. In the current context, it
is also very difficult to establish complicity in torture, even if there are witnesses. Citizens,
fearing reprisals, often do not come forward and tender evidence against police. There is no
witness protection programme existing in India. In numerous cases where witnesses have been
intimidated and in some cases themselves subjected to torture by law enforcement agents as a
means of covering up crimes.*1163
. Presumption of Guilt.
The Law Commission of India in its 113th Report advocated that Section 114(B) be
inserted in the Indian Evidence Act to introduce a rebuttable presumption that injuries sustained
by a person in police custody may be presumed to have been caused by a police officer. Despite
several Supreme Court orders and NHRC pursuing the issue, the recommendation has not been
granted statutory status.
Medical Evidence of Torture.
The role of medical evidence is crucial to the proper investigation of torture or ill-
treatment. While increasingly torture is carried out without leaving signs or with signs resolving
within days leaving no permanent traces, experienced doctors can nevertheless evaluate
testimony, accounts of post-trauma symptoms and physical and mental state and draw
conclusions from these. On the basis of a visit to Punjab in 1999, Physicians for Human Rights
(Denmark) made the following observations:-
"While there are apparently no reports of direct medical
participation in torture, most health professionals,
especially those working in public or government hospitals,
normally refuse to conduct medical examinations or
provide treatment for torture survivors. In fact, even the
few cases of orders issued from the High Court to conduct
In its 1995-96 Annual Report the NHRC commented that "The local doctor succumbs to police
pressure which leads to distortion of the facts."*1165
The other important factor is the absence of expert medical professionals who can
identify injuries inflicted through torture. This is crucial for instances of allegations of rape in
custody. Non-governmental organizations have in recent years designed simple and practical
methodologies for examining alleged victims of torture. For example CEHAT (Research Centre
of Anusandhan Trust), a Mumbai-based health organization from Bombay in the mid-1990s
produced a "rape examination kit", and more recently the Commonwealth Human Rights
Initiative has developed an autopsy kit or "Last-Aid Kit" designed to demonstrate that very little
is needed to improve post- mortem techniques and that torture need not go undetected.*1166
Impunity.
Impunity sends the message to torturers that they will get away with it. Bringing the
culprits to justice not only deters them from repeating their crimes, it also makes clear to others
that torture and ill-treatment v/ill not be tolerated. However, when the institutions responsible for
upholding the law routinely flout it when dealing with their own members, they undermine the
whole criminal justice system.
Procedural Safeguards.
Section 45 and 197 of the Cr.P.C. provide protection from prosecution to members of the
armed forces and public servants for anything done or purported to be done by them in the
discharge of their official duties, except after obtaining the consent of the Government. In the
case of section 45, this immunity can be extended to any forces charged with the maintenance of
public order if a state government so desires. The CrPC Amendment Bill 1994 which has been
1164 Ibid,
1165 Ibid.
1166 Id at 48.
379
reintroduced to Parliament to widen the scope of immunity offered by section 45 of the CrPC. It
also proposes amending section 197 to ensure that all "public servants" charged with the
maintenance of public order rather than just "members of the Forces" should be protected by
ensuring that no court should take cognizance of any offence committed while acting or
purporting to act in the discharge of official duty, except with the previous sanction of the
Central Government. The immunity provided in sections of the CrPC is reflected in state
legislation governing police actions, often in the guise of limitations of the time within which
complaints may be brought against police. For example, Section 53 of the Tamil Nadu Police
Act 1869 reads: "All actions and prosecutions against any persons which may be lawfully
brought for anything done or intended to be done, under the provisions of this Act, or under the
provisions of any other law for the time being in force conferring powers on the police shall be
commenced within three months after the act complained of shall have been committed and not
otherwise." The requirement for sanction in several laws has been employed in many cases in
which allegations of torture in custody have been brought despite strong protests which argue
that torture can never be part of'official duty'. *1167
The Supreme Court in SP Vaighianathan Vs. K. Shanmuganathan*1168 found that acts
such as beating and illegal confinement by police could not be said to have been actions taken
under provisions of the Tamil Nadu Police Act and therefore were not subject to this limitation.
This position was reiterated more recently in September 2000 by the Supreme Court when it
dismissed an appeal from two policemen who argued immunity under section 64(3) of the Kerala
Police Act which sets a period of six months from tlie date of commission of an offence.
Criminal proceedings had been initiated against them for the illegal detention and torture of a
shopkeeper in 1995.*1169
In February 1996 the Uttar Pradesh High Court declared that the Central Bureau of
Investigation (CBI), which had found evidence of illegal detention and torture, including rape, by
members of the Provincial Armed Constabulary against activists travelling to a rally in Delhi, did
not require the state government's sanction for prosecution of the police officers "who had gone
berserk ostensibly to satisfy their political bosses". However, in a judgement on several petitions
filed in appeal by the accused as well as the Union and Uttar Pradesh state governments, the
1167 Id at 50.
1168 SP Vaighianathan Vs. K. Shanmuganathan (1994 4 SCC 569)
1169 Supra note 1145 at 50.
380
Supreme Court in May 1999 termed the High Court decision on the waiving of sanction and the
granting of compensation "unsustainable" and overturned it.*1170 The case is ongoing.
Further immunity from prosecution is provided for in provisions requiring government
sanction for prosecution under special legislation in force in areas of armed conflict including the
Armed Forces Special Powers Act as well as the proposed Prevention of Terrorism Bill.
Amnesty International believes that the requirement of the consent of the central or state
government for the prosecution of officials prevents full redress for violations, and reinforces the
climate of impunity for the security forces.
Amnesty International on Amnesty to Cops in Punjab.
The comments of the Padmanabhaiah Committee which indicate a belief that police
operating in areas of armed conflict should be given legal protection against prosecution for
human rights violations needs scrutiny. In a reference to the situation in Punjab, the Committee
indicated its support for legal provisions which ensure the requirement for sanction for
prosecution but also urged'that governments should make funding arrangements for defending
cases against police and that a time limit should be prescribed by law within which cases against
police actions can be filed.*1171 In the 1980s and early 1990s hundreds of people were allegedly
tortured, extra-judicially executed or "disappeared" in Punjab during a conflict between armed
opposition groups fighting for separation from India and the Indian security forces. Both sides
indulged in grave human rights abuses. Many of those who "disappeared" are believed to have
been extra-judicially executed by police after torture. Punjab police officials have admitted using
"extra-legal" methods in fighting members of armed opposition groups and in several cases
judicial inquiries have found evidence of torture and other human rights violations. A senior
Punjab police officer was quoted as saying in 1994 "Abnormal situations needed an abnormal
approach to handle it. So, why put us in the dock. Moreover, whatever the police did, they had
the sanction of the state. We operated within the framework of the state's policy for which we are
individually being asked to pay." *1172
1170 A.K. Singh and others vs. Uttarakhand Jan Morcha and others (AIR 1999, SC 2193).
1171 Amnesty International notes that almost concurrently with the release of the report in which these comments
were made, the Supreme Court of India ruled that there should be no time bar for prosecution in cases of torture.
1172 Times of India, a daily News Paper, New Delhi, 14 November, 1994.
381
Biased Trial.
There have been persistent calls by Punjab police, with the active support of state and
central government officials for amnesties for police officers responsible for human rights
violations including torture despite the fact that this would be a violation of international law.
Trials of military personnel by military courts for ordinary crimes and human rights
violations have often not been impartial and have resulted in impunity for the offender. Court
martial proceedings are not conducted in public, nor are their judgements always made public.
The fact that court martial proceedings are held within army camps increased the pressure on and
fear felt by victims and witnesses, particularly in cases of rape and other forms of sexual abuse.
The UN Human Rights Committee has recommended that such offences be tried in ordinary
courts. The UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions
expressed concern about "trials of members of the security forces before military courts where, it
is alleged, they evade punishment because of an ill-conceived esprit de corps, which generally
results in impunity.*1173
Training to Law Enforcement Officials.
Amnesty International observes that concern that inadequate police training contributes to
custodial violence is also long-standing, but again recommended improvements have not been
implemented. Officials have similarly complained that a total lack of modem investigative
techniques contributes to police excesses. The Central Government bears a large measure of
responsibility for the misbehaviour of the police because of its long-standing failure to ensure
that adequate resources are allocated to their training and operation.
Article 10 of the Convention against Torture requires States Parties to "ensure that
education and information regarding the prohibition of torture are fully included in the training
of law enforcement personnel, civil or military, medical personnel, public officials and other
persons who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment." The UN Human Rights Committee
in its General Comment (20) on Article 7 of the ICCPR indicated that "Enforcement personnel,
medical personnel, police officers and any other persons involved in the custody or treatment of
any individual subjected to any form of arrest, detention or imprisonment must receive
appropriate instruction and training. States parties should inform the Committee of the
1173 Report of the SR, UN Doc. A/51/457, at para 125, 7 October 1996.
382
instruction and training given and the way in which the prohibition of article 7 forms an integral
part of the operational rules and ethical standards to be followed by such persons." *1174
Training programmes for law enforcement officials and others should include practical
methods to prevent torture and not just theoretical teaching of legal provisions and human rights
standards. Human rights education or ethics training should be integrated into training focussed
upon increasing the professionalism of the police. Training should acknowledge the context in
which violence has become accepted as a way of "solving" problems and that this situation
increases the use of torture.
Training should include the issue of sensitivity towards groups already discriminated
against. In selecting and training of law enforcement personnel, the qualification of respect and
sensitivity to human rights protection should be a prerequisite, kept under review and counted
towards assessment of their performance and future prospects. Human rights training including
gender sensitive training should be provided to police, the security forces, judiciary and medical
professionals, in addition to programmes already undertaken. The training should be provided to
all ranks from the highest to the lowest and should be given at periodic intervals, not just at the
start of the job.
The absolute prohibition against torture and ill-treatment should be reflected in the
training and all orders given to officials involved in arrest and custody. These officials should be
instructed that they have the right and duty to refuse to obey any order to participate in torture.
Training manuals should incorporate the following international standards:-
1. UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
2. UN Code of Conduct for Law Enforcement Officials,
3. UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions.
4. UN Body of Principles for the Protection of All Persons under Any form of Detention or
Imprisonment.
5. UN Convention against Torture, and Other Cruel Inhuman or Degrading Treatment or
Punishment.
6. UN Declaration on the Protection of All Persons from Enforced Disappearance. *117:1
Victim Compensation.
Indian government has persistently resisted all attempts to establish the right to monetary
compensation for wrongful actions by their agents and officers. They have argued that the state is
not liable for the acts of its officers when discharging "Sovereign Functions." The government
383
has argued that victims of police excesses have the opportunity to bring a civil suit for damages
or to initiate a criminal complaint. However, civil claims involve such lengthy and costly
procedures that very few use them and complaints against the police are rarely successful. *1176
Convention Against Torture.
India has ratified several international human rights treaties which incorporate prohibition
against torture including the ICCPR, the UN Convention on the Elimination of All Forms of
Discrimination against Women, the International Convention on the Elimination of All Forms of
Racial Discrimination and the Convention on the Rights of the Child. India became a signatory
to the Convention against Torture in October 1997, however, positive steps have not yet been
taken towards ratification of the Convention.*1177
Amnesty International is concerned to note indications that India intends to make a
reservation to the Convention on ratification under Article 20 and not to make declarations under
Articles 21 and 22. Amnesty International believes that this will have the effect of limiting the
effectiveness of the Convention. The Government of India should recognize the crucial role that
many human rights organizations play in detecting and publicizing incidents and patterns of
torture, pursuing justice for victims and their relatives and identifying problems in the system
which facilitate torture or prevent justice. It should effectively respond to the observations and
recommendations made by various organizations in India and include them in discussions on
how to prevent torture. Indian legislation should be promptly brought in line with the UN
Convention against Torture in order to prepare for ratification. Ratification of the Convention
against Torture should preclude reservations under Article 20 and include declarations under
Articles 21 and 22 which strengthen the role of the Committee against Torture in examining
information about torture including the Committee's ability to consider individual complaints of
torture.
The Amnesty International is of the opinion that the UN Special Rapporteur on Torture
should be invited to India and granted full access to all areas of the country to investigate
patterns of torture and ill-treatment. The Government of India should ratify the Optional Protocol
to the UN Convention on the Elimination of All Forms of Discrimination against Women at the
earliest opportunity to enable individuals to bring complaints to the Committee on the
1176 Amnesty International Report (1992), "India: Torture, Rapes and Deaths in Custody".
1177 Supra note 1145 at 63.
384
Elimination of All Forms of Discrimination against Women about violations of their rights under
the Women's Convention once they have exhausted national remedies.
The Amnesty International feels that the Government of India should play a role in
pressing for speedy adoption by the UN of the strongest possible Optional Protocol to the UN
Convention against Torture, providing for a global system of inspection visits to places of
detention as a safeguard against torture. The Government of India should make the worldwide
eradication of torture a matter of foreign policy. It should instruct its missions in other countries
to monitor the incidence of torture, to intercede with the authorities in individual cases and to
press for the necessary changes in legislation and practice.
The Amnesty International desires that the Government of India should ensure that no
one is forcibly returned to another country where he or she risks being tortured. The Government
of India should ensure that transfers of equipment and training for military, security or police use
do not facilitate torture. The Government of India should ratify the Rome Statute of the
International Criminal Court and enact the necessary national legislation to implement it
effectively. The Government of India should encourage the holding of expert meetings of human
rights activists, lawyers, medical professionals and others including international experts, on
torture and other human rights issues. *1178
1187 Sankar Sen, PSV Prasad, AK Saxena- Custodial Deaths in India (A research Study)- SVP NPA, Hyderabad.
1188 S.P.Srivastava- Police and Human Rights; The Post-Independence Scenario- a paper published in Indian Police
Journal Vol. XLV No. 1 &2, January-June 1998- BPR&D, MHA, GOI, New Delhi publication, at 92.
1189 Supra note 1187 at 32.
388
(U) Extra-ordinary Situations/Emergencv Provisions.
Abraham Lincoln said that:-
" every man thinks he has a right to live and every
Government thinks it has a right to live. Every man when
driven to a wall by a murderous assailant will override all
laws to protect himself, and this is called the great right of
self defence. So, every government when driven to the wall
by a rebellion will trample down a constitution before it
will allow itself to be destroyed. This may not be
constitutional but it is a fact."*1190
In the final text of Article 4 of the International Covenant on Civil and Political Rights it
was recorded as under:-*1191
In time of public emergency which threatens the life of the nation the existence of which
is officially proclaimed , the states parties to the present covenant may take measures derogating
from their obligations under the present covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with their obligations under
international law and do not involve discrimination solely on the ground of race, religion, sex,
language, or social origin. There are certain non-derogable rights even in emergencies and they
have got to be respected at all costs by the comity of nations. Thus, the fact that such non
derogable rights cannot be suspended even in time of public emergency for the asserted objective
of saving the life of the nation is a measure of the principle of the primordial significance of the
non-derogable rights also known as the Paris Minimum Standards: The Sixteen non-derogable
rights.*1192 Amongst the non-derogable rights those which are relevant here are:-
1. The Right of life, (Article 6).
2. Freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 7).
3. Recognition as a person before the law, (Article 6).
4. Freedom of thought, conscience and religion. (Article 18).
India is a signatory to the Universal Declaration of Human Rights and also to the two
international Covenants one on Social, Cultural and Economic Rights and the other on Civil and
1190 S. Krishnamurthy- Human Rights and the Indian Police-Payonidhi Printers, Banasankari, Bangalore, at 270-71.
1191 General Principles of the Emergency powers and the protection of the individuals.
1192 It may be however not out of place to mention here the expanding range of non-derogable rights as advanced by
various international conventions like the ECHR, ICCPR, ACHR and the consensus of international view can
be seen under what are known as the Paris Minimum Standards, which has prorogated sixteen non-derogable
rights available even under emergency situations.
389
Political Rights and thus, is under an international obligation to meet the required international
legal standards on the issue. *1193
When the security forces fighting the menace fuelled by a difficult and arduous problem
like terrorism or extremism or other emergency situations, recourse to any shortcuts in the
process of law of establishing guilt through a prescribed legal process as easy escape gives go by
to the rule of law on the ground that proving a case is difficult. Thus, even if it does prompt the
agencies of the state to assume the role of prosecutor, judge and executioner, all rolled into itself,
then it provides a fertile base for launching a state organized terror, though it may be resorted to
by the some amongst the many personnel of the state. The first casualty in this enterprise of
misadventure is the rule of law. The urge to suggest that terrorist type of violence is above the
pale of ordinary criminal activities and a pretext that routine safeguards available to a criminal
need not be extended to a terrorist smacks of totalitarian methods of dispensation and if it is
attempted in a democratic set up, then it is doomed to failure.*1194
It may be difficult to find solutions to the extremely dangerous and difficult challenges
posed by terrorists, extremists and the ilk when the battle is for the survival of the state. But, the
demands of human rights is an equally vital need and cannot be abdicated at the behest of short
term pressures or due to administrative myopia or political bankruptcy. In this context the views
of Krishna Iyer J;, *119:> that, when we witness terrorist movements multiply menacingly,
humanists the world over must refuse to lend moral support to these Satanic incarnations,
whatever their alibi and however grave their outraged sense of justice. Massacre has no
amelioration nor carnage extenuation. Public conscience must be mobilized globally in favour of
compassion and the true recognition of human rights, appear really valid.
Benthem in his utilitarian reasoning, as argued by Prof. Twining*1196 not only forces us to
think, but also encourages us to be honest. At the first look, the points of view of Benthem may
seem attractive to justify the use of force as he advances the argument of "judicious" use of
torture to justify the utilitarian ends. To cite hypothetical cases, Prof. Baxi poses a question.
When is the choice of inflicting torture a lesser social evil?*1197 In modem times, the acts of
'terrorism' provide an example such as one where a bomb is placed in a public place (say hospital
or airport) with a timing device and the person who has information concerning the location is
But in less extreme situations torture can not be, even for arguments sake, justified and
Benthem's strong disapproval on the implications of misapplication of torture are worthy of
being quoted verbatim-
"The danger will always be great, that torture if allowed in
these cases be made subservient to the establishment of
usurpation, or which comes to the something, of a
government repugnant to the interest and affections of the
great body of the people. Those whom it is found necessary
to prescribe under the names of rebels, libelers or sowers of
sedition, may in fact be the best friends and defenders of
the people, against these the hand of the government may
be too strong. But, incendiaries, assassins, highwaymen and
housebreakers are under every government, be the
government what, it may, the standing enemies of the
people, against these the hand of the government can never
be too strong." *1199
391
Human rights violations by the armed forces of the union are perhaps most debated
matters while deliberating on human rights observance. No doubt, in insurgency and terrorist
bound zones the armed forces are operating under most difficult circumstances and deserve to be
given all reasonable support and backup in their risky ventures. Yet, gross human rights
violations by the individual or group members of such units can not be kept aside or hushed up
under the pretext of sustaining morale of the operational units or such other similar assertions.
Admittedly undue and very deep scrutiny into all such cases may not be in the interest of the
integrity of such operations by the armed units and yet any blanket ban would appear to be
contradiction in terms. *1201
(V) Mistrust in Police.
Law puts the least trust in the law enforcement machinery and every action of the police
is seemingly viewed with suspicion. Many issues germane to investigation are done in clear
misbelieve of the police and inter-alia the rejection of statements made to police by the accused
was well highlighted by Chinnappa Reddy, J. who is considered a highly sensitive judge to the
I
values of individual liberty and dignity of the down trodden and well aware of the potentialities
of the abuse of police power as under:-
"There are several provisions in the Indian Evidence Act
and the Criminal Procedure Code which appear to raise
statutory presumptions against the credibility of police
officers. Section 25 of the Evidence Act renders
inadmissible in evidence any confession made by an
accused to a police officer. Mind you, there are, at present
several offences created by statutes which are investigated
by officers other than police. Excise officers, Customs
officers, Tax officers, Forest Officers, Civil Supply
officers, Food Inspectors and Drug Inspectors are some of
the officials who investigate into these statutory offences.
None of them suffer from such an embargo. The police
officer alone is picked out or rather he was picked out a
century ago for this embargo at a time when there were
practically no statutory offences and no investigating
officers other than police. Very many investigating
agencies have since been created, but the stigma is made to
stick to the police." *1202
1207 James Vadackumchery- Human Rights & the Police in India-APH Publishing Corporation, Delhi- atl20-21
394
any person with rudimentary idea of police work knows that confessing accused or an approver
has to be kept segregated from other prisoners. Where then is the scope of such a person being
beaten to death by fellow prisoners or committing suicide, and that too in presence of a watchful
guard right in front of the lock-up for all the twenty-four hours of the day? The story of being
beaten to death by fellow prisoners is thus often a ruse to cover up misdeed.*1208
(Y) Shun Police Remand.
As most of the torture for extorting confession takes place after getting the accused in
police remand. Whether it would not be desirable to completely do away with the present system
of remanding the accused to police custody under Section 167 of the CrPC after his initial
production in Court by the police. In Jayadees's case,*1209 the Kerala High Court has held that to
remand an accused to police custody for the purpose of securing a confession is to aid the police
to bring pressure on the accused for extracting information which he voluntarily is not prepared
to give or bound to give. Such a prayer for police remand has got to be rejected. Even in the days
of the British Raj a prayer for police remand was regarded as a very serious matter in that Rule
324(e) of the Bengal Police Regulations, 1943 even in those days enjoined, "An application for a
remand to police custody shall not be treated as a matter of routine and of little importance. It
shall be made to the Sub-divisional Magistrate through the Chief Police Officer at the district or
sub-divisional headquarters." However, in spite of all these guidelines provided in the case-law
and Police Regulations, the subject of remand to police custody is just being treated as a "matter
of routine and of little importance" without the prayer being made through the senior police
officers or sending the case diary to the Magistrate for scrutiny as is enjoined by the law.*1210 It
is, therefore, no wonder that so many untoward incidents have been reported from all over the
country.
In Antulay's case *1211 the Supreme Court has held that the policy of Criminal Law is that
an offence is not merely an offence committed in relation to the person who suffers harm but is
also an offence against society and the society for its orderly and peaceful development is
interested in the punishment of the offender. Now a question may, perhaps, be asked if abolition
of police remand will not hamper investigation of cases or stand in the way of bringing offenders
to book. Thus where the accused has already furnished some clues which call for further
1208 R.Deb- Criminal Justice- The Law Book Company (P)Ltd. Allahabad at 67-68.
1209 T.N.Jayadeesh v. State of Kerala, 1980 Cr.L J. 906, para 5 of the Report.
1210 In re. B.J. Reddi, 1967 Gr.LJ.1062 (AP).
1211 Antulay V. Union of India 1984 Cri. L.J. 647; AIR 1984 SC 718
395
interrogation of the accused or which require further clarification by him, a denial of police
remand would mean a denial of opportunity to complete the investigation. This certainly need
not be so. For meeting the requirements of such genuine cases, by a suitable amendment of the
law the Magistrate could be empowered to permit the Investigating Officer to further examine
the accused in Jail custody instead of the present practice of remanding him to police custody
which puts him, at times, to the risk of being tortured at the hands of an unscrupulous officer.
This opportunity to further examine the accused in Jail custody while protecting the interest of
investigation, would greatly minimize the scope for practising third degree. When the Japanese
police voluntarily forgo their right to even interrogate the accused in a large number of cases,
why would not the Indian police be able to check the temptation of having the accused back in
their custody for a second time, especially when under the proposed scheme they would get
enough opportunity to further examine the accused in jail custody?.*1212
If as a result of such further examination of the accused in jail custody (which in reality is
judicial custody) the accused makes a voluntary confession to the Investigating Officer, the latter
could then move the appropriate Judicial Magistrate to have the confession judicially recorded.
This would guard against any possible loss of evidence of this type to the prosecution. And if a
thing has to be discovered as a result of such a confession and the discovery cannot be made
without taking the help of the accused e.g. where the accused says in his confession that he
buried the property in question deep inside a big jungle or in a big field, the Investigating Officer
could then move the Magistrate for taking the accused to the place of search so that the discovery
could be effected. For such a purpose also the accused should not be remanded to police custody
but be taken to the place of search either by an officer of the prison or any other non-police
officer of sufficient rank and status. In such a case, however, the escort party will have to be
provided by the separate armed branch of the police which have nothing to do with the
investigation. The mere presence of non-investigating armed police who have also no
administrative control over the jail as an escort party would not turn such a custody into a police
custody. *1213 In other words, even of the time of effecting the discovery the accused should not
be remanded to the custody of the Investigating police. It is also important to see that such a
discovery is made in the presence of at least two independent and respectable witnesses as sub-
considerable value to the prosecution and would also save the police from a lot of criticism
wherein it is often said that such discoveries too are not always genuine. *1215 Of course, to
introduce such a procedure Sections 164 and 167 of the CrPC and Section 27 of the Evidence
Act, which now requires the accused to be in police custody to enable the discovery statement to
be admissible in evidence will have to be suitably amended. Indeed, an amendment of Section
27, Evidence Act is long overdue. In Durlay's case *1216 Rankin J. of the Calcutta High Court, as
his Lordship then was, had observed "There might be reason in saving that if a man is in custody,
what he may have said cannot be admitted in evidence, but there can be none at all in saying that
it is inadmissible in evidence against him because he is not in custody.*1217
regards the typical non-criminal as no more emotionally disorganized than the typical non
criminal. According to him criminal behaviour is a thing that an individual learns from his
contact with criminal groups as he would learn other things of life. The contacts may be in the
family itself but more often than not they are in the outside community. *1220 The reason for
these divergences of approach is to be found in the limited professional training of the two sets
of theorists. Both groups tend to overlook the complexities of criminal behaviour. Since motives
for all crimes are not identical it should be equally obvious that there cannot be one uniform
explanation for all kinds of criminal behaviour. It is, therefore, a mistake to seek a general cause
1221
Barnes & Teeters; New Horizons in Criminology, 3rd Edn. p. 116, Cavan's Criminology p. 704.
1222
Supra note 1208 at 95-96.
1223
Crime In India- 1999, National Crime Records Bureau, Ministry of Home Affairs, New Delhi, at 393-96.
1224
Ibid
1225
Ibid.
398
These punitive steps are generally taken only against the lower level functionaries as the
higher up somehow manage to escape them. It has been found out that in most of the cases,
police officer/men subjected to departmental inquiries for human rights violations get themselves
declared as not guilty. Out of several thousands of human rights violations, only a few are
inquired into and this sort of a "permissive attitude" on the part of the higher authorities for the
employment of human rights violations has been responsible for creating a feeling in some police
officers that they can resort to human rights violations without being caught or if at all caught no
being seriously inquired into or if at all inquired into not at all punished. The people who are
made victims of human rights violations also did not bother about making complaints against
police officer as they were afraid of further harassment and ill-treatment from the police. *1226
(BB) Inadequate Action for Violation of Human Rights.
During the year 1999, 199 cases of Human Rights Violations by police were reported
throughout the country. The data was, however, not available from Sikkim State. Of these only
94 cases were charge-sheeted and only 2 cases in Tamil Nadu State resulted in convictions. Uttar
Pradesh reported the maximum 47 (23.7%) of such cases followed by Tamil Nadu 42 (21.1%).
Among UTs, only 2 cases were reported form N.C.T. of Delhi. Out of 199 cases, 59 were
reported for 'Atrocities on SC/ST', 19 for 'Indignity to Women" 15 for 'Torture' etc.*1227 .
(CC) Feudal Tendency.
Feudalism based on land, money or prosperity is getting vanished, other types of feudal
lords are bom and the police are said to be such kinds of feudal lords in the changing society. As
a result, a type of feudalism based on power and authority has come into being. A sub-inspector
has become a feudal lord in his jurisdiction, a circle inspector in his circle, a deputy
superintendent in his sub-division, a superintendent of police in his district and so on as the law
has bestowed on them the power and authority to command people. If people do not respect their
command or show a hostile attitude, they saw to it that they obeyed their command however
lawful or unlawful it may be. For it, they were not hesitant to utter indecent expressions or show
aggressive behaviour. They were not reluctant to slap people on their patrol duty in mral areas,
more so in the past than it is at present, and they along with their able-bodied constables created
terror and deterrence in public. *1228
1234 Idatl20.
1235 Id atl26.
402
(KK) Quest for Conviction.
The real cause behind some of the human rights violations by police, according to the
Law Commission, is their quest for conviction. False evidence finds a place in the recorded of
every criminal case put up for trial before courts and in most cases this has a disastrous effect on
the result of the case. There is material which leads to the conclusion that evidence is fabricated
in order to get an innocent person convicted. The Commission continues, " As the idea persists
among most junior police officers that their promotion will depend upon the number of
convictions they are able to obtain, in their anxiety to obtain convictions or for other motives,
these officials not un-often deliberately concoct false evidence to connect the accused with the
crime.*1236 Majority of the older generations of investigating officers preach that without
padding or concoction, cases do not stand in courts. There is full agreement to this view by new
generation officers and for it they misuse their power and authority sometimes to the extent of
using torture to the suspect. These being the underlying factors behind "in-depth interrogation ",
some senior level police functionaries advance all sort of imaginary causes and arm chair
speculations as explanations for their frequent and indiscriminate use of third degree
methods.*1237
(LL) Suicidal Deaths in Police Custody.
"A suicide After All"- attitude is most objectionable. Why do people commit suicide?-
that part in never looked into. As a prevention for detainees committing suicide in police lock
ups, a senior police officer holding the rank of a director general police recommends: " It is
necessary for senior officers visiting the police station to see that no weapons or articles that can
facilitate escape or suicide like bamboos, ropes, tools etc. are within the reach of the lock-up." A
reading into the suggestion by the learned Director General may show that people in police lock
up commit suicide because they have accessibility to weapons or articles that can facilitate
suicides. The real cause behind their decision to commit suicide is not taken into account while
the recommendation is made; rather the means that may be adopted are taken note of. Here the
custodial aspect is taken care of and no one has bothered about the causative aspect of suicidal
attempts by the detainees. Should the law treat every suicides in custody just as a suicide or
something more than a suicide? Should the law not take notice of the precipitating and pre
disposing causes of suicidal deaths in police custody? Cannot a social investigation followed by
1236 As quoted by O.P.Tandon, Concoction of Evidence and its Effect, (Memo), Central Police Training College,
Advanced Course, Abu.
1237 Supra note 1207 atl27-28.
403
a judicial inquiry bring out the pull and push factors behind suicidal deaths in police custody? Of
course, the police manuals and departmental circulars do insist on several measures to safeguard
the interest of the detainees as well as their custody. Here too, the,, custodial aspect is taken care
of and the human rights aspect is ignored. This is an open secret and therefore, it must be insisted
that there should be a total obedience to the departmental circulars and instructions. *1238
(MM) Resistance from State.
There is resistance from all the states when violation of human rights by the police takes
places. And it was shocking to read in the press when the allegations made were investigated in
all the police cases, we saw even Government ministers saying, this was the wrong report and the
police is being in line. This is the usual excuse, so in the matters of human rights it is only when
we are in opposition that human rights become important. But those who are in government
always find human rights observance a very inconvenient thing. The danger is that once you
permit the human rights violation to be taken place under any circumstances, either on ground of
security or morality or culture you are laying down a very big trap. You are creating a condition
in which the police or security forces feel that they are immune anything. *1239
(NN) Answerability and Responsibility of Police.
Punishment or disciplinary action against the errant police officials will not be adequate
unless there is a systemic change. Insulation of the police from extraneous pressure and influence
is a must. In its submission before the Supreme Court in the Writ Petition (Writ Petition No.310
of 1996, Prakash Singh and other Vs. Union of India), the doctrine of constabulary independence
in U.K., and the observations of the Royal Commission of Police, 1962 and Lord Denning
regarding constables' responsibility and answerability to law alone were discussed. That the
police in Great Britain is answerable to law and this makes them "the least powerful, the most
accountable and the most acceptable police in the world." Police in democratic society should be
low in authority and high in accountability. *1240 Policemen are not a bunch of sadists or
psychopaths. Thousands of Policemen have given up their lives for the causes of protecting and
safeguarding the integrity of the nation and rendered invaluable, yeoman service in crime
prevention, and giving relief and succour to the people affected by natural calamities. Yet, why
are they quick to use violence against people whom they profess to serve? When we analyze the
1238 Idatl50.
1239 S. Mehartaj Begum- Human Rights in India- Issues and Perspectives- APH Publishing Corporation, New Delhi,
at 36.
1240 Sankar Sen- Police Accountability and Civilian Oversight- a paper published in SVP, NPA Journal, Volume 52
No.2 July-December,2000 at75.
404
causative factors, we find that they are constantly exposed to one side of life- a seamier side of
life. We also find that a negative role is assigned to the Police under the law, total collapse of the
Criminal Judicial System- which encourages the public tolerance for police violence to deal with
criminals coupled with the absence of a self-regulating mechanism in the policing profession.
Though not sanctioned by law, the police has been, is being used to protect the interest of the
politicians in power. This establishment of protection role forms a base and provides, indirectly,
the support of the ruling elites and makes the police disregard public accountability.*1241
(00) Biased Press: a Policeman’s Cry.
The Press do not highlight the violation of human rights by the judge who caused death
by his denial for the necessary medical aid to a person who has not committed any crime in this
country. The press do not highlight the denial of Democratic rights by the goondas to the
common man to vote. We have a list of social legislations about Child Labour, Women battering,
Dowry prohibition, Bonded Labour, Equal wages for women and men and a host of such
legislations. What is the use of unenforceable and unimplemented legislations which merely add
to the work of Police force and create innumerable conflicting situations? Though the Press and
other champions of human rights come across umpteen number of violations but prefer to keep
silent on many occasions. The press did not highlight the violation (of the judge) which resulted
in miserable death of an industrialist who had not committed any crime or found guilty of any
offence in this country. The press do not highlight the denial of Democratic rights to the common
man of their voting rights by the goondas. The press watch every action of the police and even if
one of the one thousand actions done by police every day, turn out to be violation of Human
Rights, the press go out of proportion to criticize and magnify this one violation by police. We
can not countenance a situation when human rights of only the practitioners of crimes, terrorist
actions, robbery etc. are to be protected.*1242
(PP) The Police Mindset.
Many police functionaries, in informal conversations, justify their violations of human
rights by advancing arguments that police in crisis situations works under such great pressure
that it is impossible to abide by human right's mandates. They frown on human rights advocates
and say that they won't be doing their duty if they remain tied up with human right's niceties. The
mindset that disdains human rights principles and philosophies makes police force contemptuous
1241 Dr. P.Lakshminarayanan-Wliy Target Police Only for Human Rights Violations- a paper published in Indian
Police Journal Vol. XLIH No.2 July-December, 1996- at 9.
1242 Id at 11.
405
of court strictures and continues to make it behave in a recalcitrant manner. In face of stringent
criticism, high-ups in the force routinely, though reluctantly, order departmental inquiries, and if
the charges are not pressed hard, they justify or rationalize the otherwise illegal and unlawful
acts. The result is that human rights violators in the police force get emboldened and merrily
believe that they would not be touched whatever be the accusations of human rights
organizations and bleeding heart liberal advocates of a restrained and responsible policing.*1243
(QQ) Ambivalent Public Attitude.
Given the complex nature of crime problems and the painfully slow judicial process (that
takes years to decide cases and lets off the accused on technical grounds), the public, in their
desperation, quite often approves of the police excesses if these restore tranquillity and give hell
to those dreaded terrorists, gangsters, dacoits and professional criminals, who let loose terror in
the area and victimize thousands of unresourced citizens. The policemen who confront these
criminals and kill them in real or fake encounters earn people's appreciation. The public is not
bothered whether human rights of these criminals are respected or violated. The condoning
public attitude of police highhandedness is used as an alibi for justifying police excesses. The
crowd reaction to crime problems is often used by police force as a legitimate argument to cover
up their unlawful conduct. The ambivalent public attitude in regard to human rights violations by
the police force in crisis situations derails the human rights discourse in insurgency affected
areas, in areas where the guns of the goons thunder and in areas where the activities of the
underworld have undermined people's faith in the rule of law. This is exactly what had happened
in Punjab.*1244
(RR) The Confused Police Force.
The Indian police system faces a crisis of sorts in as much as it is unable to cope up with
pressures of work, increasing demands from politicians and public, growing criticism from the
media, and an unending stream of court verdicts of human rights violations. An undermanned
and ill-equipped force is being subjected to daily denigration for its failure to arrest the awesome
crime wave, increased lawlessness and mounting Socio-political tensions. The political and
bureaucratic masters want quick results on the law and order front and direct the police to show
instantaneous effects. They demand the police to keep the alarming law & order situations in
disturbed areas seemingly under control, or else face the consequences- transfers, suspensions
1243 S.P.Srivastava- Police and Human Rights; The Post-Independence Scenario- a paper published in Indian Police
Journal Vol. XLV No. 1 &2, January-June 1998- BPR&D, MHA, GOI, New Delhi publication, at 92.
1244 Id at 93.
406
and punishment posting. Faced with such orders, the police keep the crime figures low by non
registering the cases and resorting to quick-fix solutions to local crime situation by resorting to
indiscriminate arrests and other oppressive and unlawful activities. It is here, and in so doing,
they are roundly criticized for committing a variety of human rights violations. They confront a
dilemma of choosing between being lawful and lawless in carrying out the wishes of their
masters. The force becomes confused and uncertain about its role, status and future. The easiest
and the most expedient course of action left with the police is to misuse the powers vested in
them. Under the compelling conditions of work, they resort to short-cut methods of arrests,
interrogations and investigations. This is how they stumble on peoples right to life and liberty
and other constitutional and legal safeguards falling under the ambit of human rights. Many
policemen at the lower levels who indeed do the fire fighting work are not fully aware of the
implications of implementing the human rights mandates in the performance of their daily
duty.*1245
(SS) Policing the Police.
"Policing the Police" is a new buzzword in all discourses on human rights violations
these days. Those who believe that the courts hold the key and the judicial verdicts will set the
police right must remember that had that been true, the Indian Police would have been
effectively inoculated against the virus of human rights violation since there exists a plethora of
fretting and frowning court verdicts. These judgements have made little impact, save
punishing/penalizing a few derelict police officials whose excesses and atrocities have been
challenged in the courts of law. It is a matter of common knowledge that many of the directions
of the courts which prohibit the use of demeaning and dehumanizing methods of arrest,
investigation, interrogation, handcuffing, custodial violence etc. have been more honoured in
breach than in observance. The incidents of human rights violations by the police continue as
ever before. The lesson is loud and clear the courts cannot effectively police the police. The task
can only be done by the high-ups in the police hierarchy. *1246
said Julio Francis Ribeiro, the former Director General of Police, Punjab.
1245
Id at 93.
1246
Id at 95.
1247
J.F.Ribveiro, 'Bullet for Bullet' 1998 Viking Publications, as quoted by Anupam Gupta, " Point of Law". A
column in The Tribune, Monday, August 27,2001 at page 11
407
"Terrorists operate by causing terror— a "quantum of terror
beyond the imagination of people living out-side the area
of their operations. Innocent people are gunned down at the
most unexpected spots, at the most unexpected times, with
the sole intention of causing panic. A man- eater attacks at
random. No body knows who will be the next victim.
Hence, every body in its vicinity lives in fear. Terrorism
operated on the same principle. Ordinary citizens, even
children, can be struck down only because they happen to
be convenient targets." *1248
1248
Ibid.
1249
Ibid.
408
Forces Special Power Act, 1958 were enacted to deal with the menace of terrorism. Police and
Para-Military forces had to resort to extra-ordinary operations to tackle terrorism and to ensure
safety and security of the people.
When one has gun in his hand, he is bound to commit error. The error may be in his
judgment to appreciate and fight the threat correctly as well as for reasons other than merit.
There are allegations that Police, Para-Military Forces and the Army are committing atrocities
and violating human rights of individuals in the insurgency and terrorist affected areas . Similar
allegations were leveled against the Punjab Police when they were involved in the fight against
terrorism in Punjab in the last two decades of the last century. The National Fluman Rights
Commission, the Supreme Court and the High Court were approached by individuals and by
Human Rights Organizations for conducting enquiries against the highhandedness of the Punjab
Police during their fight against terrorism in Punjab. As a result of these enquiries, 600 police
personnel up to the rank of Superintendent of Police are facing trial for alleged human rights
violations during militancy in Punjab. As many as 35 of them are lodged in different Jails while
15 are undergoing imprisonment for such violations.
Frustrated by the enquiries and investigations being conducted against the policemen
alleged to have violated human rights of the individuals, the policemen raised a demand
through their association called Zinda Shaheed Police Officers' Welfare Association to grant
them 'general amnesty' for their alleged actions and operations which they had undertaken on the
orders of their superior officers in their fight against terrorism. *1251
Shri L.K.Advani, the Union Home Minister of India advocated for general amnesty to
policemen accused of violating human rights in Punjab within the legal and constitutional frame
work of the country. Addressing the Directors General of Police & Inspectors General of Police
on Sept. 5, 2001, in their Annual Conference, the Home Minister said,
"suitable changes in the law were required to protect
security personnel, acting without malafide against terrorist
elements, were being hounded out for extraneous reasons."
*1252
The Punjab Police officials, who were facing the charges of human rights violations in an
extra-ordinary move decided to return their Gallantry Medals to the President of India in protest
1250 Ibid.
1251 The Tribune, Chandigarh, Monday, Sep. 3, 2001 at I
1252 The Tribune, Chandigarh, Thursday, Sep.6,2001 at 1
409
against their allegedly malicious prosecution. *1253 The Zinda Shaheed Police Officers'
Welfare Association decided to file a Writ Petition in the Supreme Court for the registration of
cases against the then Director General of Police, Punjab, Mr. K.P.S. Gill and those senior police
and civil officers for ordering and certifying the encounters conducted by junior police officials
as genuine during the decade-long terrorism in Punjab, for which they are facing trial in different
courts. The Association alleged that the junior police officers had fought the proxy war on
behalf of the nation. Senior police officers were never booked for the same act which had landed
the junior officers behind bar without any fault of theirs. *1254
The cops facing enquiries said,
Centre and Pentagon in New York on 11th September, a new debate has started to review the
stand of international community regarding means to handle terrorism throughout the world. The
general atmosphere is against those who perpetrate terror or support the terrorists by any means.
United State of America had declared the attack on World Trade Centre a war. Every
thing is legal in war. How far the forces involved in fighting terrorism through out the world can
be pardoned for violating of human rights of the public is to be discussed and debated at length.
From the on going debate on this issue new principles of 'Terrorist Jurisprudence* would
emerg in the 21st century. Until such time ' Terrorist Jurisprudence' takes a concrete and definite
legal shape, the auther feels that the stand of the Chinese Government taken on the issue appears
to be rational and appropriate.
• Ail fight against terrorism, including international terrorism should be fought within the legal
and constitutional frame work of the law of the land and international law.
• Innocent people should not be put to harm in fight against terrorism.
• International treaties and law should be followed in dealing with international terrorism.