Custodial violence is a dark reality in our democratic country governed by “Rule of Law”. There are many instances when it has been examined that how torture is inflicted or who are the guilty persons or who get what compensation in cases of custodial violence. However, very few attempts have been made as to analyse the reasons of custodial violence. This paper is a humble attempt to analyse the reasons of custodial violence, and in this process will attempt to question some myths propounded by the unexamined realty.
It is said that, torture is essentially an instrument to impose the “will of the strong over the weak”. However, the above statement merely states the obvious. It is obvious that only a strong can torture the weak and not vice-versa. The core issue is what is the “will” which the strong (read the police) want to impose over the weak (read the people). If we understand this “will” which is being imposed, then we understand the causes of custodial violence.
One of our former Union Law Minister said once that you cannot interrogate the criminal over a cup of tea! This is another mythical logic. It is propounded to explain that custodial violence is required to know the truth and collect evidence to prosecute a criminal. Its contention is that some amount of violence is required to get the information out of the criminal. If this logic is true, why not apply it to the highest echelon to our polity. Let us interrogate the top politicians and I am sure many gory tell of criminality will come out in open. We can interrogate the top bureaucrats and many innovative ways of corruption and partisanship will come out. And if this is done corruption and criminality will be eliminated from the top and there will be no crime! In any case our Public representatives and Public servants are interested only in public service and they will be willing to offer themselves for interrogation and custodial violence in the interest of the society……… Why don’t we to that?
The logic is, in itself, very dangerous and whenever it will be applied, it will certainly be misused and abused. Any form of violence, arbitrariness and injustice shall always be abused against the poor and helpless persons. Thus it becomes very important, particularly for the masses and common persons (aam aadmi) to reject any such justification on the very face of it. And why only the truth, violence can get anything out of ordinary mortals, even the most blatant falsehood. Let us see this case, which have been reported in the name of K.V. Rajendran v/s Inspector of Police (2001 CriLJ 4092 Mad). In this particular case, a lecturer was picked up by the Revenue Divisional Officer during night time. The RDO suspected that the lecturer had complained against him to the higher authority about smuggling of teakwood. He was mercilessly beaten by the officer in presence of Tahsildar, revenue official and police. He was forced to sign a false confession. Top officials were in collusion with the perpetrator of crime or were inactive. Several of them made false statements. Just look at this interrogation and confessional statement. It may be noted that our legislatures are liberal in conferring power of interrogation and recording of statements on various officials. These statements are admissible in the court of evidence on the judicial reasoning that revenue officials are not police officers. It is one substantial piece of evidence, merely on the basis of which conviction can be made? Distraction! Let us return to custodial violence. Through custodial violence what is extracted is not the truth but something, which the interrogator wants to hear. The wish of the interrogator is the “will” which the strong wants to impose on the weak.
We have to understand that custodial violence have nothing to do with justice, truth or order in the society. It is most rampant in societies most opposed to the tenets of law and justice, most opposed to all basic principles of civilized society. And that is the reason Hon’ble Supreme Court in D.K. Basu’s case described custodial violence as the worst form of crime in a civilized society. Then also it continues: without punishment.
Another point we should keep in mind that it is only the poor and less fortunate persons against which custodial violence is used. Barring some exceptions, it is never used against rich and powerful persons or noted criminals. Stories appear every day how big criminals are living in luxury in judicial custody in various parts ou our country. Politicians prefer to stay in plush guest- houses when in judicial custody, all that the government have to do is to declare that guest house a prison for a temporary period. Everybody knows that king-pins of stamp paper scam were staying is plus flat in upmarket mumbai, while staying in the custody of the police. Then the question comes, why is it used only against poor and petty criminals? One obvious reason is that they are not in a position to protect themselves (protection from whom!), which is true also but reasons are much deeper.
With due respect to certain honest and hardworking police officers (I am sure they do exist), it is not an exaggeration to say that our police force is corrupt to the core. And we all know that when we deal with a constable on the road or senior officers in the Police Station. Asian age reported on 10-7-2000 that police force is the most corrupt organisation in the government. Certain police officers are known to support and promote crime. A senior police officer said once that more police station will lead to more crime. The Hindu (02.01.1998) reported that in U.P. 100 policemen were dismissed, 183 suspended and action was initiated against 576 policemen for alleged nexus with criminals. I feel it is only a tip of the iceberg. And it is difficult to count how many police officers are facing charges of heinous crimes like murder, rape and decoity. “ A woman police officer was threatening and offering money to a rape victim to end the case, inquiry ordered (TOI, 01.09.2004)”. Remember the logic of the state for poor conviction ratio – “witnesses turn hostile”. And if not every police officers, certainly every police station is guilty of crime of custodial violence, corruption, extortion in the name of hafta etc. Then comes the fundamental question- “to what extent the police is interested in curbing the crime?”
At a shallow level, the corruption in police is based on fear of police. If people will not fear police, nobody will give hafta or illegal gratification to the police. Without fear it is difficult to extort money from the accused. The custodial violence is the tactics through which the police maintain its fear among the persons, so as to get money through corruption. “ High Court ordered action against an SHO for illegal confinement and harassment of certain dealers who refused to pay hafta to police ( HT, 07.04.2000)”. See another instance, “ when a shopkeeper refused to pay hafta to the police, he was abused, handcuffed and assaulted (TOI, 11.04.2000)”. History tell us that the ruling class have always extracted money from the poor class either through beggar, nazrana etc. since the ages. Incidentally even in democratic India corruption have been justified as ubiquitous, speed money, grease of the governance machinery etc. Corruption is the modern form through which the ruling class or their agents extract money/resources from the poor working class.
The police is required by law to investigate the cases impartially and as per law. The police get corruption money to deviate from this impartiality in investigation of cases and the accused, if he is not rich and powerful, is always on the wrong side of the deviation from impartially. “The chairman of NHRC said that 60% of the arrest made by police is unnecessary and unjustifiable. Even in heinous offences, rate of acquittal is more than 80% (TOI 14.03.99)”. Here the custodial violence is required to extract false confessions, planted recoveries, stock witnesses, planting of fake evidences etc. to make the case against the accused. Generally the accused is not treated as per law by the police. To stop them from making complaint to higher authority or to the courts, it is required to break the will of the accused. There also, custodial violence is a handy tool in the hand of police. Through custodial violence, fear can be breaded in the mind of the accused and his family members so that no complaint is filed against the erring police officers. Not surprisingly, in a miniscule small number of cases any complaint is filed against erring policemen in our country when the stories of custodial violence is an open secret.
All the struggle injustice is carried on by the human spirit and human will power. Since the police is inherently against the accused, particularly when he is poor, it is necessary to insult and humiliate him in order to break his spirit and will power. Such humiliation technique is also useful against persons who are political opponent or who dare to challenge the injustice in the system. Various humiliation techniques like forcing the person to sit on ground, stripping, forcing to do menial job, parading in public etc. are applied apart from custodial violence in order to break the human spirit of the victim.
Governance in democracy is based on popular will. Nevertheless, violence is known to have been used to sustain governance when the government of the day is not sustaining on popular will. The excesses during the time of emergency is a point to be noted. Higher amount of violence in terrorist infected areas are also based on this doctrine. The fear of police has to be maintained for this purpose. This explains the apathy of the government in tackling the problem of custodial violence with iron hand.
Courts, particularly the higher judiciary and National Human Rights Commission have taken certain concrete steps to end this inhuman practice. However their steps are inadequate to say the least. The approach is subordinate judiciary is not very encouraging. In a case the High Court of Delhi directed that whenever an accused brought before the magistrate it is his duty to ask from the accused whether he has been ill-treated in the custody. We don’t see that happening in the subordinate judiciary. One of a magistrate never allowed an accused to sit in his court, and this discrimination against the accused may be hailed by some as strictness! In another place accused were not allowed to enter the courtroom with their shoes on, and the magistrates watched this discrimination with judicial equanimity…………Political freedom has come to us but we still continue with the colonial practices of humiliating the natives before the pillars of colonialism. In any case we continue to have the same Police Act, same procedures and same mindset. Regarding rights in subordinate judiciary, I would like to quote a member of district judiciary, “ being part of district judiciary since a decade, I know it is a fact that hardly 10% of the trial judiciary is familiar with the provisions of the Constitution. I know judges who have not seen the text of the Constitution”(Combat Law, December-January 2004). Do I need to say more?
Even the higher judiciary and NHRC have not come on the instances of custodial violence in the proper perspective. The emphasis is more on granting compensation or interim relief rather than treating the incident as attack on rule of law. In case of torture of one person (Case No. 3069/30/1999-2000 of NHRC) the commission ordered compensation of 10,000 and departmental enquiry. However registration of FIR for causing hurt in custody (Sec 331 IPC, 10 years RI), causing malicious prosecution (offences against public justice), manipulation of official record etc was not recommended even when the investigation pointed towards to these facts. Whenever investigation points towards commission of these offences FIR must be recorded, the heinous crime of custodial violence can neither be checked nor adequately punished through departmental enquiry and transfer. Similarly in case no. 21883/24/98-99 of NHRC no such direction was issued by the NHRC. In these cases I feel the compensation ordered out of public money paid by the ordinary tax-payers is neither desirable nor morally defensible. The state has only a vicarious liability in these cases, primary liability is that of the perpetrator of crime and he must pay through civil and criminal liability.
I apologise for offering suggestions but my readers must forgive me for my incorrigibility in this regard. In case of grave violation the NHRC should come out directly in favour of the victim. It can file FIR on behalf of the victim. It can file criminal complaint on behalf of the victims. It can take help from legal aid committees to support it in theses cases. It can enroll volunteers (advocates, retired judges, public spirited citizens etc.) in various part of the country to help the commission in its noble task entrusted on it by the representatives of people. Public wrong must be resisted by the will and strength of the people. Probably we have started expecting a great deal from the NHRC. Higher public expectation should always be seen as a greatest compliment to an organisation serving the public. Bravo.
Can state end this form of inhuman practice? Do the state have a political will to curb it? The answer is simple. The state doesn’t do anything right or wrong, it does only what is inevitable. What is required is individual empowerment. It can be done only through NGO or association of persons condemning this form of violence, which attacks the very root of rule of law on which our civilized society is based. The only thing which is required is “freedom from fear” so that every violation of law is reported fearlessly, complained fearlessly, pleaded fearlessly and condemned fearlessly.
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on firstname.lastname@example.org , Web: www.rajeshkumar.co.in