In spite of the fact that every segment of the society feels concerned about custodial violence, over the years it has remained unabated. It seems to be on rise every year, in spite of the fact that rate of literacy has increased and the people have become aware about their rights and duties. The main arm of the criminal justice system that deals with people in custody is police. It will, therefore, be necessary to find out ailments, which govern this agency resulting into abuse of those who are in their custody. In this section, an attempt is made to find out as to what lies at the root of the problem of custodial violence. For this it is essential to study the conditions under which police works and to find out their mode of operation in dealing with the accused persons. The basic causes for Custodial violence can be grouped in the following categories: –
1. Work Pressure
The police in India has to perform a difficult and delicate task in view of the deteriorating law and order situation, riots, political turmoil, student unrest, terrorist activities, increasing incidence of bribery, corruption, tax evasion , violation of fiscal laws, smuggling and money-laundering. Organised criminal gangs are gaining strong roots in the society. They use ultra-modern weaponry, explosives and many other devices of committing crimes without leaving any evidence of their crime many a time. Similarly, dealing with insurgent and terrorist groups is also completely different from dealing with ordinary criminals. This category of criminals is well-trained, hardened and equipped with ultra-modern weapons. An ordinary policeman carrying a small revolver or even a gun ordinarily provided to him is invariably no match to them. Indeed, a resourceful criminal can escape the clutches of law almost indefinitely. The Indian police today finds itself handicapped not in its numerical strength but its inadequate infrastructural facilities like modern weaponry and equipment, transport and communication network and, more importantly, need-based training which is of paramount importance to make it more efficient and effective instrument of law enforcement.
A very important reason for continuing brutal behaviour by the Police is pressure. The sources of pressure are several, but basically they relate to performance or output beyond the narrow confines of police role, in spite of constraints on adequate role performance. Policemen have to deal with crime and disorder not on bits of paper but in the raw, directly. This generates lot of pressure, both from the people and the government. In addition to the constraints of the system are the constraints arising out of its actual operation. The outcome of Police efforts as they lead to deterioration of evidence and thereby reduces the chance of conviction in a court of law. Medical and legal reports are often received very late. TIP’s (Test Identification Parade) are often delayed considerably, before which the accused are bailed out, thus defeating the purpose of holding such a parade. In our accusatorial system, a person is presumed innocent unless his guilt is proved beyond reasonable doubts and thus, the degree of proof, which is required on part of prosecution, to secure conviction is exceedingly high. Thus, in a trial the chances of conviction are roughly one out of four. But results have to be achieved as quickly as possible or else the officer is transferred. So a shortcut is required to achieve result and for them, the UP Police Commission 1970-71 observed,
“An accused or suspect may be kept under Police custody for a maximum period of 24 hours as per law. In the meanwhile, a great deal of information remains to be elicited from the suspect especially in offences involving property, on recovery of which the success of prosecution greatly depends. Whenever the investigating officer finds it practicable, he records arrest after quite a few days of unrecorded and illegal detention. Thus the pressure of securing maximum information in the available time implies the investigating officer to use shortcut methods.”
2. Greed for Money
This is the most hateful reason for custodial torture and one that seems to be on the increase. At the level of Police Station, a number of Policeman use brutality to extract money from suspects and innocent persons. The legal situation and the nature of evidence facilitate the process of making SHO very powerful and giving what he does an air of finality, which gives him the unintended power to extract money and escape the corrective process of supervision. The courts give enormous importance to the FIR and what kind of FIR is actually written depends on the policeman on duty. Investigating a dacoity case, he can always threaten to implicate an honest man, even beat him up or simply keep him hanging about the police station until he gives him money. Supervision takes place after the fact and while an attempt can be made to punish the policeman concerned, it can seldom undo the wrong done, recover the evidence that has deteriorated. Each and every person gives the priority of money, they want money anyway, and this is mental condition of our primitive to higher society. For that in Police system made chains from minister to police. Now a day police machinery a means for producing money for officers and minister. In each police station have some cost, if any police ready to pay such amount they got the post at that particular location.
3. Punitive Violence
There are few honest but misguided policemen who believe in not letting the criminal get away with it. It is genuinely believed by them that except for a sound beating, there is no other way of controlling criminals. U. P. Police Commission 1970- 71, stated,
“The reason for use of third degree method is born out of wrong convictions. There is cross-section of the people and the police and a sizeable one at that, which believes in the efficacy of third degree methods alone in dealing with criminals, particularly hardened ones. They say that a jail term is no more a deterrent to the criminals. They remain happy there, particularly as conditions inside the jails have begun to score over conditions outside and the only thing they are scared is a beating by the police. It is not unusual to find rotaries against third degree methods pleading for use of ‘police methods’ for working out a case in which they happen to be interested.”
The whole tenor of the criminal justice system is punitive, hence a subsystem of it expected to be of service to the people cannot so operate. On account of the constraints of the system, the nature of the police function also becomes punitive, and many policemen see their brutality as extension of the punitive role of the organisation.
4. Positive re- enforcement
No matter what the constraints are, results have to be produced. As things are, a policeman, say a sub Inspector, who is brutal, who operates only on short cuts and is unscrupulous about the means he uses, produces results. The production of result ease the pressure on his superiors, even wins the acclaim of all and sundry, with the result that all his sins are and have to be forgiven. In due course and sometimes earlier, such a policeman rises in his hierarchy. This reinforces his use of third degree methods not only in his own eyes but also in the perceptions of his peer group and his subordinates. Sometimes the expertise at third degree of some policeman receives such wide appreciation that other policeman confronted by an intractable situation or a case, requests for his assistance. He then goes like a superior performer ‘tackles’ the suspect and produces results, gathering a reward in the bargain. This constant positive reinforcement of third degree method when it produces results is a very important cause of violence by Police in custody. Thus, positive reinforcement of Police violence takes place because it produces results and produces them fast, at least quicker than otherwise.
5. Police Sub- culture
The police sub-culture is the sociological side of the same coin. 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 sub-culture of our police includes use of third degree methods. The police sub -culture is strengthened by alienation, cynicism, law-esteem in society, a degree of pariah feeling, conflicting demands made of policeman, inconsistent judgment of their work, all forcing them into a corner. In this situation a policeman finds succour among others of his community with whom he identifies, leading to group solidarity, which in turn provides a sense of security against the hazards of his occupation, and a basis for a medium of self-esteem and some social affiliation in spite of the irregular hours of his work. Thus develops the culture of group that which demands greater conformance to threats, tortures, rather than rules, regulations, orders etc. However can one explain the fact that a young man of good family, trained in a reasonably good manner, starts behaving, within a few years only and particularly if he is in an operational rank such as that of sub inspector, in a brutal manner, true to the stereotype of his profession in general and rank in particular.
6. Lack of Proper Training
Lack of proper training to the Police officials, often result in use of third degree methods. The utterly inadequate training given to constables, the general absence of any attention to the necessity for keeping temper, being civil and respectful to the public, avoiding brutality or unnecessary harshness, are the factors that which leads to violence. Gore committee on Police Training 1972, was of is the view that one of the objectives of training should be to inculcate the right attitude towards the public which consists is never forgetting that the civil servant is the servant and not the master of the community. However, unfortunately, till date no adequate training with the objective mentioned, has yet been provided to police. Police should be given proper training which should include a separate course to impart them knowledge about the human rights and that they are here to protect the human rights and not to infringe them.
7. Other factors
Apart from the reasons mentioned above, the other reasons for custodial torture can be sexual weakness, sadism etc. Male police personnel may have a tendency of attraction towards opposite sex prisoner. For satisfaction of this lust he may use force and commit rape in the custody or he may use his official position to obtain consent for sexual intercourse. An amendment has been made in the IPC, 1860 to provide for stringent punishment for those officers, who use their official position to obtain consent of female prisoner in the custody for having sexual intercourse with them. The third degree methods are also applied for ‘teaching a lesson’ or ‘vomiting out anger’. It is the stage, where professional competence of the individual policeman surrenders before a situation and then he almost goes out of his mind. This can be averted if the policeman could keep their cool, not be overcome or torn by emotions, maintain a philosophical detachment and as a parallel requirement, have sufficient professional skill.
Another reason of custodial violence can be the social factor. In our country, we are accustomed to think in terms of ‘an eye for an eye’ and ‘tooth for tooth’. Therefore, the Society tacitly expects and approves the use of violence on suspects to get the truth. Complainants themselves urge 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 gets, as it were, social support for these illegal acts.
a) The third degree is a short act to quick results. As per the report of National Police Commission, an investigating officer is able to devote only 37% of his time in investigation while the rest of his time is consumed in law and order duty, VIP and security duty, court attendance and other miscellaneous duties. The result is naturally short cut and extra legal.
b) Lack of knowledge of application and experience of scientific methods in crime investigation and interrogation of accused. Inadequate training etc.
c) Sometimes society expects police to take tough action not sanctioned by law against criminals. Use of third degree is their service right and accepted part of profession.
d) Political and bureaucratic influence and interference, collusion with rich and influential people and dancing to their tune.
e) They feel immune to the fact that whatever they will do won’t be questioned.
f) Disproportionate ratio between crime rate and manpower.
g) Lack of effective supervision and inspection of Police Station by superior officers.
h) Delay in trial gives more time to interrogate.
i) Erring police officials go unpunished due to lack of evidence.
j) Psychological aberrations of the custodian – sadism, sexual weakness, social hatred, etc.
k) Lack of time for investigation.
l) Inability to keep a person for longer duration in custody for interrogation than 24 hours are such factors which induce police to keep suspect in ‘unofficial custody’ which ultimately encourage the police to indulge in custodial violence.
m) Long duration of work and deplorable conditions of work. A study carried out by National Productivity Council had shown that a policeman has to work sixteen hours a day and seven days a week.
Custodial Violence and Indian Constitution
The legal framework in India both constitutional and statutory contains provisions relating to safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law (Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in custody. The Constitutional and the relevant statutory provisions on the subject have been supplemented by the significant judicial pronouncements. In addition, the Protection of Human Right Act, 1993 provides institutions of the National and State Human Rights Commissions as well as Human Rights Courts for better protection of human rights of a person in custody. India has ratified, acceded and singed the International Declarations, Covenants, Conventions and treaties such as Universal Declaration of Human Rights( UDHR), International Covenant on Civil and Political Rights ( ICCPR), International Covenant on Economic, Social and Cultural Right (ICESCR), International Convention on the Elimination of All forms of Racial Discrimination( ICERD), Convention on the Elimination of All Forms of Discrimination against Women( CEDAW), Convention on the Right of the Child (CRC), Convention against Torture and Other Cruel, inhuman or Degrading Treatment and Punishment (CAT), and the International Convention on the protection of the Rights of All persons against Enforced Disappearance (CPAED). This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime and abuse of Power is relevant.