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Chapter-2

Custodial Justice : Legal Framework

2.0 Introduction

The present chapter briefly provides historical development of legal systems, control and
due process model as legal framework to combat custodial crimes in police custody.

2.1 Worlds Legal Systems:

Despite the fact that crime has probably always been part of the human mankind from
time immemorial in its various forms such as interpersonal, collective or societal violence
in all parts of the world. As long as there has been violence, there have also been systems
such as religious, communal, philosophical and legal to prevent it (Etienne G. Grug et al,
2002 World Report on violence and health, Geneva, WHO). There are as many legal
systems in the world. The term legal system refers to attitudes, values and norms
regarding the nature and role of law, including rules and practices for processing and
functioning. The values and norms that underlie a legal system are sometimes referred to
as the legal tradition. It is a broad concept that implies a deeply and historically based
heritage. There are legal systems exist today like Civil Law, Common Law and Socialist
Law and Islamic Law( Global Report on Crime and Justice, 1999, p.65).
Table No. 2.1 Percent distribution of world's legal systems
System Percentage
Civil 51%
Common 20%
Islamic 3%
Civil/ Common 12%
Civil/ Islamic 6%
Civil/Socialist 5%
Common/ Islamic 3%
(Global Report on Crime and Justice1999)

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Figure 2.1 Distributions of world's legal systems

Civil
Common
Islamic
Civil/ Common
Civil/ Islamic
Civil/Socilist
Common/ Islamic

( Global Report on Crime and Justice,1999)

2.2 Criminal Justice Process:

How, why and when crime are recorded and offenders identified and processed through
the criminal justice system may depend in large part upon the processing strategy that
attaches to the prevailing legal tradition or system in a country that attaches to the
prevailing legal tradition in a country. These practices may or may not be related to the
particular legal system. In general, the choice of processing strategies which may be
linked to the countrys legal tradition can be categorized as falling into the inquisitorial
and adversarial criminal justice systems around the world. The element of administration
of criminal justice systems such as police, prosecution, court and correction are found in
most of the countries albeit their names are different ( Global Report on Crime and
Justice, 1999).

2.2.1 Element of Criminal Justice System

1. Police
2. Prosecution
3. Court
4. Correction

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2.3 Crime Control Process Model vs. Due Process Model:

The two different models used to process people through criminal justice systems are one
that emphasizes either the efficiency of action or the legitimacy of action so called the
former a Crime Control Model and the latter Due Process Model. In this context, the
civil law tradition and its inquisitorial process seems to have a particular link to the
Crime Control model, prevailing in France, West Germany and the Latin American
countries. This contrast, common law tradition and its adversarial process appear to
follow the Due Process Model, prevailed in the U.K. U.S.A., Australia, India, and other
counties (Parker, 1968, Pawar, 1993, Prasad, 2005).

According to Cole (1989) Crime Control Model assumes that freedom is so important
that every effort must be made to repress crime. The Due process Model, on the other
hand, assumes that freedom is so important that every efforts must be made to ensure that
criminal justice decisions are based on reliable information. In this way, both models
seek to guarantee social freedom. One does so by emphasizing efficient processing of
wrongdoers (Crime Control Model), while the other emphasizes invasion in citizens life
( Due Process Model). The greater threat to freedom, says the Crime Control Model, is
the criminal trying to harm us. For the Due Process Model, the greater threats to freedom
of government agents like police officers who are tying to restrict our freedom of
movement. Of course social freedom requires law abiding citizens to be free from
unjustifiable intrusion by either criminals or by police. However, it seems that nation-
states have a hard time achieving both goals simultaneously. One is emphasized at the
expense of the other, but neither can be identified as qualitative better.

Under the Crime Control Model, the most important function served by the criminal
justice system is to ensure human freedom by allowing citizens to be secure in person and
property from actions of criminals. To operate successfully, the model requires a high
rate of apprehensions and convictism following a process that emphasizes speed and
finality. It is an administrative almost managerial model. It emphasizes on speed and
finality might mean the innocent people are rushed through the system without recourse,
the crime control model or inquisitorial process excludes, as an early stage, persons

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apprehended but not likely to be guilt. This model has confidence in ability of police to
identify and release the probably innocent suspects, while ascertaining action against
the probably guilty ones. The civil law tradition follows the Crime Control Model in
the sense that its inquisitorial process relies on screening techniques to weed out suspects
who are likely innocent, while processing with speed and finality those who are likely
guilty.

In emphasizing on legitimacy of action, the Due Process Model requires many checks on
the use of official power. This model insists on formal fact finding process that results in
a more deliberate movement through the criminal justice system. The Due Process Model
seeks the truth regarding the accusers involvement in the offence. The Crime Control
Model uses the inquisitorial process to detect the truth by emphasizing the screening
process and continuing to investigate the matter, even into the trial, until truth is known.
The Due Process Model believes truth to arise from a free and open competition over
who has the correct facts. The struggle is between the state and the defendant operating as
adversaries. This contrasts with inquisitorial processs view of the state and the defendant
as equal parties seeking a similar truth.

The adversarial and inquisitorial processes differ in how they believer truth is best
determined; the two procedures give different authority to the legal actors. This is most
clearly seen in the role of investigator or police. Under the inquisitorial process judges
have considerable power and influence starting in the arrest, detention, search, seizure
and interrogation of a suspect or accused in course of investigation stage and continuing
through the trial. In this manner the judge is essentially as investigator in inquisitorial
process. However, in accusatorial process the judge shares power of investigation with
the prosecution (include police) and defence. As a result, the adversarial judge is less
like investigator and more like a referee ( UN, 1999).

Both the systems, accusatoria and inquisitorial have come under frequent criticism in
achieving the common objectives of determining the guilt and imposing penalty. The
issue which system provides more safeguards to the innocent is still unsetttled( Langbein
and Weinreb, 1978).

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The system followed in India for dispensation of criminal justice is the adversarial system
inherited from the British Colonial rulers based on common law. The system presumed
that an accused is to be innocent and the burden is on the prosecution to prove beyond
reasonable doubt that he/she is guilty. The foundation of accusatorial system is the
investigation by the police and ascertains the facts and circumstances relevant to the
crime and to collect the evidence, oral or circumstantial to prove the case in court of law.
(Report of Reform of Criminal Justice System, 2003).

2.4 Evolution and Development of Police System in India

Police in India, throughout the ages, have functioned as the principal law enforcement
agency of the State. In the early and medieval periods of civilization, the governance of a
State was entered in ruling individuals or family groups. Laws of the State were the
individual rulers felt inclined to pronounce as such from time to time. Police enforcement
of the law as propounded by the ruler practically meant regimented compliance of the
rulers demand and desires. The basic concept of governance in ancient India was of
Dharma and Danda and there were functionaries to ensure the operation of Dada. In
fact, Dandaniti was an ingredient of State craft. In the Dharma sutras proper wielding of
Danda was held to be an important duty of the King (The First Report of National
Police Commission, 1979). The basic unit of policing was the village; a village being an
aggregation of families together with their land and pastures surrounding the village.
Every village had its local court which was composed of the Headman and the elders of
the village. The courts decided minor criminal cases such as petty thefts as well a civil
disputes. The Mahabharata speaks of Gramadhipati and the Buddhist Jatakas mention
Grambhojaka. While these actually village headmen the Nagaraguthka was responsible
for arresting and executing robbers (The First Report of National Police Commission,
1979, Encyclopedia of Police in India, 1993).

The key police functionaries during the Mughal period were Faujdar and the Kotwal. A
number of village were grouped together to form a Mahal or Parganah. A number of
Parganahs formed a Sarkar and a number of Sarkars formed a subah or Province. The
Kotwal was responsible or policing the cities, towns and their suburbs. The functions of

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the Kotwals are mentioned in Ain-i-Akbari. He prevented crime and social abuses,
regulated cemeteries, burials, slaughter, houses, jails and took charge of heirless property.
He patrolled the city at night and collected intelligence from paid informers on men and
matters. The sanad of his appointment enjoyed upon him to ensure that there was no
theft in his city. In a register he maintained the addresses and professions of every
resident of the town, observed the income and expenditure of various classes of men, and
checked the accuracy of weights and measures. Preparation and distribution of
intoxicants and the professions of prostitutes were also controlled by him. Thus, his
functions were preventive, detective and regulatory.

The Faujdar was the head of the Sarkar and commanded troops to suppress rebellion and
disorder in the area mainly rural of his jurisdiction. Although he was subordinate to the
provincial Governor, he could directly communicate with the Imperial Government. He
dispersed and arrested robber gangs and took cognizance of all violent crimes. His
functions were to guard the roads in the countryside, suppress violent crimes, hunt down
bandits, prevent manufacture of fire-arms, arrest disturbance of peace and assist the
Malguzars in the collection of revenue by making demonstrations of force to overcome
opposition, where necessary. In practice the Zamindar was made responsible for peace
and security of the people in his zamindari. The Faujdar was only to ensure that the
Zamindars did their job (Report of National Police Commission, 1979, Encyclopedia of
Police in India, 1993). To reforms the then existing system, the first step taken by the
British was to relieve the Zamindari of their liability for police service and their place
was taken over by the Magistrate in the district. Although several attempts were made to
reform the police during the British Rule, the first major step was a statute thus the Police
Act,1861, was passed (5th Report of Second Administrative Reforms Commission, 2007).

2.5 Custodial Crimes in Police Custody in India : A Historical Perspective

The phenomenon of custodial crime is not a new in India. We had reference of Torture
and violence with the police in India, even since the Vedic age (2000-1400 B.C.). The
ordeals of fire, water an single combat were used. In the Epic period (1400-800 B.C.)
torture was practiced on prisoners by the police. Torture in various forms was widely

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prevalent in age of laws and philosophy (800 B.C. -320 B.C.). Kautilyas Arthasatra
speaks about various kinds of torture such as burning of limbs, tearing by wild animals,
tramping to death by elephants and bulls, cutting of limbs and mutilation etc. Manu, the
law giver of this age emphasized the necessity of torture to protect the society from the
hands of the criminals. The Buddhist period ( B.C. 300-300 A.D.) was an age of great
humanitarianism and administration of justice had become correspondingly imbued with
the humanitarian ideals. Torture in any form was strictly forbidden and special favors
were shown to prisoners, who happened to be women, aged or who had many
dependents. In Gupta Period (A.D. 320-500) if the facts against prisoners were not clearly
established by evidence, recourse was to be held to the four kinds of ordeals, trial by
ordeal fairly common. Under the Mughals, no criminal or civil code existed. Torture to
extort confession was widely spread (Ghosh and Rustomji 1993).

2.5.1 Colonial Period:

In their earlier years of rule the British found the torture used by officials including
Kotwals was prevalent resulting deaths sooner or later. The Select Committee on East
Indian Affairs (1832) found that had discussed the routine use of torture, There is
ample evidence that colonial administration was aware about excessive pain by revenue
and police officials used purposely to extort confessions, money or taxes (Rao 2004).
Torture Commission (1855) appointed by British Government for investigation of
alleged cases of torture in Madras Presidency in Its report highlighted that police torture
was quite prevalent in the Madras Presidency. Torture Commission defines the word
torture means as pain by which guilt is punished or confession extorted. The report
drawn attention to the fact that torture is a structural problem of policing, rather than
aberrant and extraordinary instances. The recommendation of the torture commission has
laid foundation to set up Police Commission, 1860.

The Police Commission, 1860 recommended the abolition of the military police as a
separate organization and the constitution of a single homogenous force of civil
constabulary under proposed Police Act, 1861. It is noteworthy to mention that present
police system in the country is based on Police Act, 1861. Subsequently, enactments of

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criminal law and procedure namely Indian Penal Code, 1860, Indian Evidence Act, 1872
and Indian Code of Criminal Procedure, 1898), had incorporated various sections such as
162,163,172 and 173 of the Code of Criminal Procedure read with sections 24 and 25 of
the Indian Evidence Act prohibited any form of torture of a person under interrogation
along with sections 330 and 331 of the Indian Penal Code which made punishable to
causing hurt or grievous hurt to extort confession or information in the custody of police.

The Indian Police Commission (1902-03) had scrutinized the performance of the police
after forty years of the working of Police Act, 1861. The Commission found that The
police force is far from efficient; it is defective in training and organization; it is
inadequately supervised ; it is generally regarded a corrupt and oppressive; and it has
utterly failed to secure the confidence and cooperation of the people The Commission
concluded that the police force throughout the country was in a most unsatisfactory
condition, that abuses were everywhere and this involves great injury to the people and
discredit to the Government and those radical reforms felt unavoidable and urgently. The
landmark recommendations by the Commission were that the educated Indians to be
recruited in the police force at higher level and law and order wings separates from
investigation wing, a cadre for Sub-Inspector of police at police station and Criminal
Investigation Department ( CID) at state levels. Presently, the police sub-inspector cadre
at the police station level based on the recommendations of Indian Police Commission.
However, in the following decades, the growth areas of freedom movements such as
Swadeshi Movement and the Home Rule agitation, Non-Cooperation and Khilafat, Civil
Disobedience and Quit India Movements, the phases of labour unrest and the emergence
of a communist backed Kishan movement and rural insurrection deposed to favour
coercive solutions rather than investigative grievances by colonial government (Arnold
1986).

2.5.2 Post-Independence Era :

After Independence, several Police Commissions were appointed by Union and State
Governments to look into the performance and methods of working of the State Police
during 1950s, 1960s, the early 1970s and 1980s1. All most all these Committees and
Commissions had revealed the tale of third degree or torture in police custody due to
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political ends, practice of corruption and lack of infrastructure support of scientific aids
and training etc. The recommendations of most of these Commissions were mainly
concerned with the details of the administrative set up, the strength of the Police Force in
different wings of the system, the relationship between Police and the Principal District
Collector, pay and allowances for the Police in different ranks, qualifications for
recruitments, setting up of training centers and the like.

Shah Commission (1978) observed the police brutality on a wide range during the
emergency from 1975 to 1977. The Commission drew attention of the Government that
the way police behaved during the emergency as they were not accountable to any public
authority. In its recommendations, the Commission told to the Government to take
measures to insulate the police from illegitimate political and executive interference.
___________________________________________________________
1. Assam Police Commission (1971)

Bihar Police Commission (1961)

Delhi Police Commission (1966-68),

Kerala Police Reorganizing Police Committee (1959)

Madhya Pradesh Police Commission (1965-66)

Maharashatra Police Commission (1964)

Punjab Police Commission (1960-61)

Rajasthan Reorganizing Police Committee(1973)

Tamilnadu Police Commission (1971),

Uttar Pradesh Police Commission (1970-71)

West Bengal Police Commission (1960-61)

First Administrative Reform Commission( 1962)

Gore Committee on Police Training (1972)

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The National Police Commission (1979-81) has examined in details the issues
pertaining to police functioning inter alias in eight reports. In its first report, the
Commission observed:

Police are frequttly criticized for their use of third degree methods during investigation
while examining suspected or accused persons. Police brutality in their handling suspect
is referred to in some context or the other in the literature on police forces in several
countries of the world, and the Indian Police is no exception. Interrogation of a person,
whether he be a witness or suspect or accused, is a difficult and delicate exercise for any
police officer and calls for enormous patience and considerable understanding of human
psychology. Unfortunately several police officers under pressure of work and driven by a
desire to achieve quick results, leave the path of patient and scientific interrogation and
resort to the use of force in different forms to pressure the witness/suspect/ accused to
disclose all the facts known to him. While law recognizes the need for use of force by the
police in the discharge of their duties on some specified occasions like the dispersal of
the a violent mob or the arrest of a violent bad character who resists the arrest, etc., the
use of force against an individual in their custody in his loneliness and helplessness is a
grossly unlawful and most degrading and despicable practice that requires to be
condemned in the strongest of terms and we do so. Noting is so documenting as the
conduct of police in practicing torture of any kind on a person in their custody.

The National Police Commission recommended that there should be mandatory judicial
inquiry in cases of deaths and rapes in police custody. The judicial inquiry should be held
by an additional Session Judge nominated for this purposes in every district by the state
government in consultation with the High Court. The nominated judge would be
designated as the District Inquiry Authority (DIA) and assisted by assessor. The DIA
shall send the report of the inquiry to the State Government. It will be mandatory on the
part of government to publish the report and decisions taken thereon within two moths of
receipt of the report. The DIA shall also serve as an independent authority to oversee the
ultimate disposal of complaints dealt with departmentally. To oversee the satisfactory
implementation of the entire scheme, a public complaints Board should be set up that
State level. At district level, surprise visits to police stations and similar units by the
senior officers would help the immediate detection of person held in custody and subject
to ill-treatment. Malpractices, if any, noticed during such visits should be met by swift
and deterrent punishment. Unfortunately, the valuable recommendations of the National
Police Commission were overlooked by the government (First Report of National Police
Commission, 1979).

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Rebeiro Committee (1998) examined the relevance of valuable recommendations of the
National Police Commission in changing environment in the country. The Committee
recommended setting up of the Police Performance and Accountability Commissions at
the State level, constitution of a District Complaint Authority to examine the complaints
from the public of the police excesses includes arbitrary arrests and detention, false
implications in criminal cases and custodial violence. Further the Committee
recommended separation of investigation functions from law and order work and
replacement of the Police Act, 1861 with a new Act etc.

Padhmanabhaiah Committee on Police Reforms (2000) was constituted to study, inter


alia, recruitment procedures for the police force, training, duties and responsibilities,
police behaviors, police investigation and prosecution. The Committee observed that
every Commissions and Committees in the past have repeatedly stressed the need for
better utilization of scientific aid in investigation and to reduction of custodial violence.
However, the state of forensic science in India and its use by police in investigation of
crime are both in a pathetic state. Therefore the Committee recommended that every
police station should be equipped with investigation kits and every sub-division should
have a mobile forensic science kits.

The Committee on Reforms of the Criminal Justice System (2003) highlighted various
issues associated to the criminal justice system in general and police system in particular.
The Committee has examined the fundamental principles of the functioning of the
Criminal Justice System such as Right to Silence, Rights of the Accused, Presumption of
Innocence and burden of proof, Justice to the victims to crimes etc in details. The
Committee observed :
Manner in which police investigation are conducted is of critical importance to the functioning of the
criminal justice system. Not only serious miscarriage of justice will result if the collection of evidence is vitiated
by error or malpractice, but successful prosecution of the guilty depends on thorough and careful search for
truth and collection of evidence, whether for or against suspect. Protection of the society being of paramount
consideration, the laws, procedures and police practices must be such as to ensure that the guilty are
apprehended and punished with utmost dispatch and in the process the innocent are not harassed. The aim of
investigation and in fact, the entire criminal justice system is to search for truth. To achieve this objective, the
investigating officers must be properly trained and supervised and necessary scientific and logical support
should be made available to them. The Committee further observed, if tortured, an accused should have the
freedom to apprise the Magistrate of the incident, when produced before him. In such cases, the magistrate can
remand him to judicial custody. This should be true of any violence or sexual offence perpetrated against an
accused person in custody. In all such cases, there must be a detailed inquiry. The Committee recommended
Audio/ video recoding of statements of witnesses, dying declarations and confessions should be authorized by
law. Interrogations Centers should be set up at the District Headquarters, in each District, where they do not
exist, and strengthened where they exist, with facilities like tape recording and or videography and photography
etc.

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However, the Committee on Reforms of Criminal Justice system (Malimath Committee)
report met with several criticism by the Amnesty International India and International
Commission of Jurists, 2003) including other human rights organizations in the country.

In recent years, the discourse of police reforms institutionalized mechanism to effectively


deal with bonafide public complaints against the police including custodial violence and
the audit of police performance, as well as police accountability towards people of the
country have discussed in the legislative, judicial and executive levels. In this regard,
Supreme Court heard a writ petition filed by two retired police officers and a non-
governmental organization demanding implementation of the National Police
Commission reports. The Apex Court passed the ruling in 2006 that is now a historic
judgment on police reforms known as the Prakash Sigh vs. Union of India (writ
petition ( civil- No. 310 of 1996(22-9-2006). The Judgement deals with three aspects of
policing -autonomy, accountability and efficiency. The court held in discharge of our
Constitutional duties and obligations having regard to the aforenoted position and issued
the following directions to the Central Government, State Governments and Union
Territories for compliance till framing of the appropriate legislations: National Security
Commission, State Security Commission, Selection and Minimum Tenure of DGP,
Minimum Tenure of I.G. of Police & Other Officers, Separation of Investigation, Police
Establishment Board and Police Complaint Authority.

In this regard, the Government of India, having visualized the long felt need to replace
the outdated Police Act 1861, set up a Police Act Drafting Committee (PADC) in
September 2005 to draft a new Police Act that could meet, inter alia, the growing
challenges to policing and to fulfill the democratic aspirations of the people. In drafting
the Model Police Act, 2006 the Committee was guided by the need to have a professional
police service in a democratic society, which is efficient, effective, responsive to the
needs of the people and accountable to the Rule of the Law. The Act provides for social
responsibilities of the police and emphasizes that the police will be governed by the
principles of impartiality and human rights norms, with special attention to protection of
weaker sections of society including minorities. It also contains a provision that the
composition of the police will reflect social diversity. The other salient features of Model

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Act include Fuctional Autonomy, Encouraging Professionalism, Accountability
Paramount, Improved Service Conditioned and Role of Protecting Internal Security In
light of New Threats.

The State Governments have started taken actions as pert of the Supreme Courts
directions and PADC drafted new Police Act. As of June 2007, Assam, Bihar, Haryana,
Himachal Pradesh, Karnataka, Kerala, Rajasthan and Tripura have enacted draft police
legislation and many states Andhra Pradesh, Chhattisgarch, Jammu and Kashmir,
Jharkhand, Orissa, Punjab, Sikkim, Tamil Nadu and West Bengal were in the process of
drafting. Goa, Gujarat, Madhya Pradesh, Marahashatra, Manipur, Mahayana, Anrunachal
Pradesh, Mizoram, Nagaland, Uttar Pradesh and Uttarakhand have not complied with the
order of the Supreme Court ( CHRI 2007; ACHR 2008). Most recently , the 5th Report
of Second Administrative Reforms Commission ( 2007) on Public Order and The
Draft Report of the National Policy on Criminal Justice System (2007) emphasized
that the issue of Custodial violence needs to look upon very seriously and dealt with
seriously and with promptitude with a view to eliminating this malaise from the system.

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2.6 Domestic Framework for Combating Custodial Crimes

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),1 International
Covenant on Civil and Political Rights ( ICCPR),2 International Covenant on Economic,
Social and Cultural Right(ICESCR),3 International Convention on the Elimination of All
forms of Racial Discrimination( ICERD)4, Convention on the Elimination of All Forms
of Discrimination against Women( CEDAW),5 Convention on the Right of the
Child(CRC)6, Convention against Torture and Other Cruel, inhuman or Degrading
Treatment and Punishment(CAT),7 and the International Convention on the protection of
the Rights of All persons against Enforced Disappearance ( CPAED)8. This apart, the UN
Declaration on Basic Principles of Justice for Victims of Crime and abuse of Power is
relevant9.

________________________________________

1. Adopted on 1948
2. Ratified on 1st November,1961
3. Ratified on 10th April,1979
4. Ratified on 3rd December,1968
5. Singed on 30th July,1981
6. Acceded on 11th December,1992
7. Singed on 8th October,1997
8. Singed on 6th Febuary,2007
9. Adopted in 1985

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2.6.1 Rights of Accused under Indian Constitution

The Constitution in its part III deals with Fundamental Rights. The prohibitions imposed
by Article 20, 21 and 22 of the Constitution are directly relevant to the criminal process.
Article 20 (1) prohibits retrospective operation of penal legislation. Article 20(2) guards
against double jeopardy for the same offence. Article20 (3) provides that no persons
accused of any offence shall be compelled to be a witness against himself. Of course,
constitution article protects against testimonial compulsion on the premise that such
compulsion may act as a subtle from of coercion on the accused.Article 21 of the
Constitution provides that no person shall be deprived of life or personal liberty except
according to procedure established by law. The expression Life and personal liberty
occurring in the Article has been interpreted to include Constitutional guarantee against
torture, assault or injury against a person arrest and custody. The following are the
illustrative decisions, in Dastagir v. State of Madres, AIR ,1960 SC 759 it was held that
Punishment which has an element of torture is unconstitutional.

In case of Inderjeet v. State of Uttar Pradesh , the Apex Court hold the view that prison
restrictions amounting to torture, pressure or infliction and going beyond what the court
authorities, are unconstitutional further it extended that an under-trial or convicted
prisoner cannot be subjected to physical or mental restraint, which is not warranted by the
punishment awarded by the Court, or which amount to human degradation(Sheela Barse
v. State of Maharashatra. AIR 1983 SC 378). Article 22(1) and 22(2) of the Constitution
are also relevant for the present purpose because one of their objects is to ensure that
certain checks exist in the law to prevent abuse of power of arrest and detention. Article
22(1) provides that no person who is arrested shall be detained in custody without being
informed as soon as may be, of the ground for such arrest ,nor shall he be, of the ground s
for such arrest, nor shall be de denied the right to consult and to be defended by legal
practiner of the choice. Article 22(2) provides that every person who is arrested and
detained in custody shall be produced before the nearest Magistrate within a period of 24
hours of such arrest, excluding the time necessary for the journey form the place of arrest
to court of the Magistrate and no such person shall be detained in custody beyond the said
period without the authority of a Magistrate.

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The Police figure as Entry 2 in State List in the Seventh Schedule of the Constitution,
thereby making State Government primarily responsible for maintaining public order. In
variably, police, which is a part of the civil administration, is at the forefront in
maintaining law and order under the framework of constitutional governance based on
principles of Sovereign Socialist Secular Democratic Republic to secure fundamental
right of its citizens. In consonance with the idea of democratic policing, a Code of
Conduct for the Police in India was adopted at the Conference of Inspectors General of
Police in 1960 and circulated to all the State Governments.

2.6.2 Code of Conduct for the Police in India (1960)1 The police must bear faithful
allegiance to the Constitution of India and respect and uphold the rights of the citizens as
guaranteed by it.
1. The police are essentially a law enforcing agency. They should not question the
propriety or necessity of any duty enacted law. They should enforce the law
firmly and impartially, without fear of favour, malice or vindictiveness.
2. The police should recognizes and respect the limitations of their powers and
functions. They should not usurp or even seem to usurp the functions of the
judiciary and sit in judgment on cases. Nor should they avenge individuals and
punish the guilty.
3. In securing the observance of law or in maintaining order, the police should use
the methods of persuasion, advice and warning. Should these fail, and the
application of force becomes inevitable, only the absolute minimum required in
the circumstances should be used.
4. The prime duty of the police is to prevent crime and disorder and the police must
recognize that the test of their efficiency is the absence of both and not the visible
evidence of police action in dealing with them.
5. The police recognize that they are members of the public, with the only difference
that in the interest of the community and on its behalf they are employed to give
full time attention to duties which are normally incumbent on every citizen to
perform.
_____
1
All India Conference of Inspectors Geneneral of Police (1959) adopted the Code of Conduct for
police in India, Ministry of Home Affairs.
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6. The police should realize that the efficient performance of their duties will be
dependent on the extent of ready cooperation they receive from the public. This,
in turn, will depend on their ability to secure public approval of their conduct and
actions and to earn and retain public respect and confidence. The extent to which
they succeeded in obtaining public cooperation will diminish proportionality the
necessity of the use of physical force or compulsion in the discharge of their
functions.

7. The police should be sympathetic and considerable to all people and should be
constantly mindful of their welfare. They should always be ready to offer
individual service and friendship and render necessary assistance to all without
regard to their wealth or social standing.

8. The police shall always place duty before self, should remain calm and good
humoured whatever be the danger or provocation and should be ready to sacrifice
their lives in protecting those of others.

9. The police should always be courteous and well-mannered; they should be


dependable and unattached; they should possess dignity and courage; and should
cultivate character and the trust of the people.

10. The police must keep their private live scrupulously clean, develop self restraint
and be truthful and honest in thought and deed, in both personal and official life,
so that the public may regard them as exemplary citizen.

11. The police should recognize that they can enhance their utility to the
Administration and the country only by maintaining a high standard of discipline,
unstinted obedience to the superiors and loyalty to the force and by keeping
themselves in a sate of constant training and preparedness.

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2.6.3 Punitive Provisions in Criminal Law & Procedure

Consistent with the constitutional guarantee, the statutory provisions are contained in
Indian Penal Code, 1860, Indian Procedure Code, 1973 and Indian Evidence Act, 1872
for protection of a person arrested in connection with the commission of an offence as
well as prevention of custodial commission of crimes in police custody.

Punitive Provisions are contained in the Indian Penal Code which seeks to prevent
violation of right of life and personal liberty of a person in custody. The definition in
section 44 of the Code which defines the expression injury as covering harm to body ,
mind and reputation or property. Section 220 provides for punishment to an officer or
authority that detains or keeps a person in confinement with the corrupt or a malicious
motive, Section 330 and 331 provide for punishment of those who inflict injury or
grievous hurt on a person to extort confession or information in regard to commission of
an offence Section 330 therefore directly makes the torture punishable under the Indian
Penal Code,1860 its Sections 330 and 331 read : Section 330 says, : whoever
voluntarily causes hurt for the purpose of extorting from the sufferer, or any person
interested in the sufferer, any confession or any information which may lead to the
detection of an offence or misconduct, or for the purpose of constraining the sufferer or
nay person interested in the sufferer to restore or to cause the restoration of any property
or valuable security or to satisfy any claim or demand, or to give information which may
lead to the restoration of any property or valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven years , and shall
also be liable to fine. According to Section 331, whoever voluntarily causes grievous
hurt for the purpose of extorting from the sufferer, or any person interested in the
sufferer, any confession or any information which may lead to the detection of an offence
or misconduct, or for the purpose of constraining the sufferer or nay person interested in
the sufferer to restore or to cause the restoration of any property or valuable security or to
satisfy any claim or demand, or to give information which may lead to the restoration of
any property or valuable security, shall be punished with imprisonment of either
description for a term which may extend to ten years , and shall also be liable to fine.
Sections 340 to 348 of the Indian Penal Code constitute a group of sections dealing with
wrongful restraint, and wrongful confinement and their aggravations. Of course, they
49
envisage that the confinement itself is illegal an ingredient prominently brought out by
the adjective wrongful. Whereas section-348 which provides for punishment to a
person who wrongfully confines any person for extorting any confession etc. The section
also punishes extortion committed to extract information leading to the detection of
offence or misconduct.

The relevance of the Code of Criminal Procedure, 1973, various contain provisions
intended to operate as a safeguard against custodial offences ranged from arbitrary arrest
detention in custody to compensation to the victims of custodial abuses. Section 50 of
the Code talks about ground of the arrest and right to bail. This section has been regarded
as mandatory, particularly in the light to constitutional guarantee, so that non-compliance
with the section renders the arrest and detention illegal (Ashen v. The State, 1987 Cri. LJ
1750).

The arrested person has right to medical examination if he or she a complaint of torture,
maltreatment under section 54 of the Code. Section 56, 57 and 58 related with the action
after arrest is made. Section 56 of the Code provides that a police officer making an arrest
without warrant shall, without unnecessary delay and subject to provisions as to bail,
send the person arrested before Magistrate having jurisdiction in the case or before the
officer in charge of a police station. By section 57, no police officer shall detain in
custody a person arrested without warrant for longer period than under all the
circumstances of the case is reasonable and such period shall not, in the absence of a
special order of a Magistrate under section 167, exceed 24 hours exclusive of the time
necessary for the journey from a place of arrest to the court of the Magistrate. Provisions
of section 57 are mandatory.

Section 58 provides that officers in charge of police stations shall report to the District
Magistrate or Sub Divisional Magistrate about cases of all persons arrested without
warrant, within the limits of the respective stations, whether such persons have been
admitted to bail or otherwise. Where the arrest of a person under the Code of Criminal
Procedure, 1973 is under a warrant, section 70-81 of the Code become applicable, of

50
which sections 75 and 76 are relevant for the present purpose. Section 75 deals with
notification of substance of warrant and Section 76 provides person arrested to be
brought before Court without delay not exceeding 24 hours exclusive of the time
necessary for the journey from the place of arrest to the nearest Magistrate Court.

An important provision in the area of police custody is contained in section 160(1) of the
Code regarding power of attendance of witnesses. This section of particular importance,
in view of the express prohibition, contained in the proviso, against summoning of
women of any age, males under fifteen years at the place other than their place of
residence. The legislative seems to have taken note of the possibility of abuse of authority
if the section is not complied with. Further taking note of the fact that a person in custody
may be subjected to subtle influence to make a confession, section 163(1) of the Code
expressly provides prohibition of inducement of threat or promise. In case when any
person dies while in custody for the police, the law requires a mandatory enquiry by the
Magistrate into the cause of death (Section 176 of Code of Criminal Proceedings 1973).

Indian Evidence Act, 1872 elaborated that wherein confessions made to Police Officers
inadmissible in evidence. Section 25 says: No confession made to police officer, shall be
proved as against a person accused of any offence.

2.6.4 Recent Legal Development :


In recent years criminal law ( substantive and procedural law) have been amended deals
with prescribes the duties of the police in arresting offenders, investigation officers and
also contains provisions for their prevention of custodial abuses and punitive provisions
to ends of justice. Rapes in police custody are normally seen as a stigma on the law
enforcing agency by the citizens. Police which is primarily agency for ensuring safety of
women, children who were downtrodden is not forgiven by the society if they themselves
get involved in rape cases in police custody. For custodial rape Indian Penal Code
amended section 376 IPC which provides special treatment under introduced a new
Section 376(2) in the Criminal Law (Amendment) Act, 1983, it says an offence of rape
committed by a police officer, a public servant, a member of Jail or Hospital staff on a

51
woman in his custody and enhances the minimum punishment in such cases to 10 years,
as against 7 years in respect of other cases of rape. The other relevant provision is that the
insertion of a new Section in Indian Evidence Act, 1872 (Section 114A). This Section
lays down that in a prosecution for rape under sub-Section (2) of Section. 376 of the
Indian Penal Code, where sexual intercourse by the accused is proved and the question is
whether it was without the consent of the women alleged to have been raped and she
states in her evidence before the Court that she did not consent, the Court shall presume
that she did not consent.

When any person dies while in custody of the police, the law requires a mandatory
enquiry by the Magistrate into the cause of death under section 176 of Code of Criminal
Procedure,1973. The recent amendment in procedural law through Code of Criminal
Procedure (Amendment) Act, 2005 which amended section-176 of Cr.P.C, 1973 and
inserted in its sub-section (1), the words where any person dies while in the custody of
the police replaced with a new sub-section, (1A) where (a) any person dies or
disappears, or (b) rape is alleged to have been committed on any women while such
person or women is in the custody of police or in any other custody authorized by the
Magistrate or the Court, under this Code in addition to the inquiry or investigation held
by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan
Magistrate, as case may be, within whose local jurisdiction the offence has been
committed.

Besides above mentioned developments it is noteworthy to mention here that a


compressive Bill has drafted and introduced in the fourteenth Lok Sabha (Lower House
of Parliament) by Shri Mohan Singh, Member of Parliament. The Custodial Crimes
(Prevention, Protection And Compensation) Bill -2006 ( Lok Sabha Bill No. 63 Of
2006, 26th July, 2006) seeks to provide prevention and protection against custodial
crimes, for compensation in cases of custodial offences, for appointment of vigilance
Commissioner and District Vigilance Commissioners for Custodial offences. However,
the Bill could not be passed by the Parliament.

52
The Code of Criminal Procedure (Amendment), Act, 2008 was recently passed by
Parliament and received has provided custodial safeguards for arrestee persons in police
custody. The salient features of the Act are the followings;
1. Curbing the power of arrest
2. Protection of women in custody
3. Victims and Witness Protection
4. Victims Compensation

Major highlight of the Act - Power of police to Arrest stands restricted. Law must
change with the needs of a changing society, and must in the process safeguard
the interest of innocent as well. With a view to protect the dignity and liberty of
its citizens, Indian Government has made some sweeping changes in the Powers
conferred on Police to arrest an accused. The amendment clearly lays down
conditions which need to be met before a person can be arrested. By doing so, the
government has given credence to the most basic Right of its citizens Right to
Live with Dignity.

New sections 41A, 41B, 41C have been introduced to provide for detailed
mandatory procedure in matters of arrest under various circumstances and also to
provide for control room in every district, state and police headquarters, etc. in
order to display the names and addresses of persons arrested along with the details
of the person making the arrest. Arrested person has also been given the Right to
meet an Advocate of his choice during interrogation, though not throughout the
interrogation.
A number of safeguards in matters of arrest of a woman have been incorporated in
the new proviso to Sec.46.
Provisions have been incorporated in Sec.54, and new Sections 55A and 60A of
the CrPC Act to provide further safeguards and mandatory provisions regarding
examination of arrested persons by Medical Officers, and taking care of their
health and safety and such allied matters.
A new proviso to Sec. 157 provides important safeguards to victims of rape.

53
Provisions have been incorporated in Sec.161 and 164 about use of audio-video
electronic means while recording the statements of the accused. Analogous
provisions have been incorporated in the new proviso added under Sec.275(1).
Detention of the accused in custody and his production before the Magistrate are
now regulated by new provisions and explanations inserted under Sec.167.
Maintenance of the Case Diary by the Police Officer will now be regulated by the
new sub-sections 1A and 1B to Section 172.
A very important provision has been made in newly inserted sub-section 1A of
Sec.173 wherein its is provided that the investigation in relation to rape of a child
may be completed within 3 months from the date on which the information was
recorded by the Officer incharge of the police station. If the offence relates to
Sec.376, 376A, 376B, 376C and 376D of the IPC, the police officer has also to
mention in the case papers whether the report of medical examination of the
woman has been attached.
Unrestricted and unlimited powers of Arrest so far enjoyed and exercised by the
Police stand restricted and conditioned, both in case of cognizable as well as non-
cognizable offences.
Newly inserted Sec.195A entitles a witness or any other person to file a complaint
in relation to an offence under Sec.195A of the Indian Penal Code.
While conducting proceedings under Sec.242 of the CrPC, the Magistrate is now
required to supply in advance to the accused, the statement of witnesses recorded
by the police during investigation.
The proceedings for sexual offences are now required to be held, as far as
practicable by a court presided over by a woman.

Newly inserted Sec. 313(5) states that the court may take the help of prosecutor
and defense counsel in preparing relevant questions, which are to be put to the
accused and the court may permit filing of written statement under Sec.313 by the
accused as sufficient compliance of the section.

54
Relating to camera trial under Sec.327(2), a new proviso has been added to state
that Camera trial shall be conducted as far as practicable by a woman judge or
magistrate.
The scope for the definition of victim has been amended so as to include the
victims guardian or legal heir in the definition itself.
Referring to amendment in Sec.24, now the court may permit the victim to engage
an advocate of his choice to assist the prosecution under this sub-section.
Newly inserted section 357A incorporates a newly introduced Victim
Compenstion Scheme in order to alleviate the sufferings of the victim and to
provide important safeguards to their Right.
Amendment to Sec.372 provides that the victim shall have a Right to Appeal
against any order passed by the court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation.

2.6.5 Law Commissions Initiatives :

The fist Law Commission of India ( LCI) was appointed in August 1955 and since then
eighteen law Commissions have been appointed and altogether, two hundred five reports
have submitted to the Government of India till date. While dealing with normative law
reform, the Law Commission of India had, on a number of occasions, examined the
powers and functions, the emerging role and the operational problems of police, and
made numerous valuable observations and recommendations, however that many of these
recommendations could not see light of the day.

In view of the importance of investigation of crime for law enforcement, the Law
Commission of India could not confine itself to reform of laws relating to investigational
procedure but had also dealt with multi-dimensional and even non-legislative issues
relating to investigation of crime by police. In its the 14th Report on Reform of Judicial
Adminstration (1958), the law Commission for the first time made an in-depth study of
the problem of faulty or slipshod investigation by the police. The Commission had
identified the principal defects in investigation and suggested a number of important non-
legislative measures to ensure efficient investigation by police.

55
These measures includes : As far as possible, the investigation of an offence should be
conducted by a single police officer, preferably a senior officer, with the assistance of
junior officers.
(i) As far as practicable, the investigating wing of the police should be separated
from that dealing with law and order.
(ii) The question of systematized training for police officers in proper methods of
investigation should receive urgent attention of the State Governments.
(iii) Necessary legal assistance should be provided to investigating officers.
(iv) It is necessary to ensure strict and effective supervision over investigations by
adopting certain measures such as frequent visits of senior police officers to
police stations and the appointment of special officers of the rank of a deputy
superintendent of police.
(v) To induce public cooperation which is extremely necessary for the police to
perform their difficult work of investigation, the law commission emphasized
the need for an orientation in the outlook of the police officers towards their
duties and their attitude towards the public.

The 48th Report of Law Commission (1972) and the 69th Report of Law Commission of
India(1977) dealt with the issue of admissibility of confessions made to senior police
officer in evidence ( a confession recorded by Superintendent of Police or higher rank
should be admissible in court of law). However, in its 185th Report of Law Commission
(2003) examined this subject in great detail and observed, It is true, the provisions of
certain special Acts dealing with terrorist or organized crime (such as TADA or the
POTA or MOCOCA-Maharashatra Control of Organized Crime Act) contain provisions
for recording confessions by and before senior officers of the level of Superintendents of
Police and for treating them as admissible, subject to certain conditions. There is good
reason for doing so. In the case of such grave offences, like terrorism, it is normal
experience that no witness will be forthcoming to give evidence against had-core
criminals. Further, these offenders belong to a class by themselves requiring special
treatment and are different from the usual type of accused. The exception made in cases
of terrorists should not, in our view, be made applicable to all accused or all types of

56
offences. That would erode seriously into Article 21 and sections 24 and 25 of the
Evidence Act and violate Article 14. Exception cannot become the rule.

In view of the growing menace of police misdeeds to women, the 84th Report of Law
Commission on Rape and Allied Offences dealt inter alia with an important issue, viz,
association of women social workers with investigation into these cases. The
Commission also suggested a number of other amendments in Code of Criminal
Procedure, 1973 to provide for adequate protection or legal remedies to women in the
matters concerned with their arrest and interrogation by police and detention under police
custody.

113th Report of Law Commission dealt with the question o extending the powers of the
police to take coercive measures during interrogation in police custody and inflicted
injury on suspects. The Commission recommended an insertion of section 114 B (1) in
the Indian Evidence Act, 1872 for 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 period when that person was in custody of the police,
the court may presume that the injury was caused by police officer having custody of that
person during the period of police custody.

In 1989, the Law Commission of India in its 135th Report on Women in Custody dealt
with women in custody and suggested a new draft to be added in the Code of Criminal
Procedure, 1973, incorporating specific safeguards for the protection of women in
custody. The 152nd Report of Law Commission of India on Custodial Crimes (1994)
observed that generally, the victims of custodial crimes are poor, women, children,
disadvantage people and weaker section of society. The poor, the downtrodden and the
ignorant with little or no political or financial power are unable to protect their interests.
Affluent members are not generally subjected to torture as the police afraid of their
resourcefulness. The 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 the informal detention they are subjected to torture, which

57
sometimes resulted in death. In event of death in custody, the body of the deceased is
disposed off stealthily or thrown to a public place making out a case of suicide or
accident. Records are manipulated to shield the police personnel. The relatives or friends
of the victim are unable to seek protection of law on account of their poverty, ignorance
and illiteracy. Even if some voluntary organizations take up their case or public interest
litigation is initiated against the erring public officers, no effective or speedy remedy is
available to them, which results in the erring officers go scot-free. This situation gives
rise to a belief that the laws protection is meant for the rich and not for the poor in the
country like India, which is governed by Rule of Law. The report went on various issues
pertaining to custodial crimes and to secure custodial justice. The report recommended
several changes in the existing laws and procedures including preventive, punitive,
compensatory and remedial measures to be inserted in the Indian Penal Code, 1860,
Indian Evidence Act, 1872 and Indian Criminal Procedure Code, 1973. The major
recommendation of the report was fixation of compensations amount (Rupees twenty five
thousand in case of bodily injury and Rupees One Lakh in case of death). Further
suggestion was that the Government may recover any amount paid by it as compensation
under this section wholly or partially as it may think proper, from the delinquent police
officers. This was an innovative approach of restorative justice based on individual
accountability suggested by the report while dealing with custodial crimes.

The 177th Report of Law Commission on Law relating to Arrest ( 2001) made certain
recommendations for safety and well being of detainee in custody of police and also
proposed to amend the Code of Criminal Procedure, 1973. A central issue facing all
criminal justice systems is to strike a balance between the extent which an accused could
be used as a source of information and his/her right against self incrimination. Right to
silence is a natural corollary of the maxim that no person can be forced to give evidence
against one own self. The right to silence is a legal protection enjoyed by an accused
person during investigation. 180th Report of the Law Commission has elaborated about
the Right to silence, The right to silence has various facets. One is that the burden is on
the State or rather the prosecution to prove that accused is guilty. Another is that an
accused is presumed to be innocent till he is proved to be guilty beyond reasonable

58
doubts. A third is the right of the accused against self incrimination, namely, the right to
be silent and that he cannot be compelled to incriminate himself. There are exceptions to
the rule. An accused can be compelled to submit to investigation by allowing his
photographs taken, voice recorded, his blood sample tested, his hair or the bodily material
used for DNA testing etc.

2.6.6 Custodial Jurisprudence : Role of Judiciary

Judiciary through various creative pronouncements evolved custodial jurisprudence in


dealing with custodial crimes in police custody. It includes arbitrary arrest & detention,
dehumanizing methods of Interrogation or torture in custody, compensation to the victims
of custodial crimes and prosecution and punishment for torturer. In a leading case of
Joginder Kumar v. State of Uttar Pradesh (1994 Cr. L.J. 4SCC 260), the Supreme Court
has examined the power of arrest by police and observed:

No arrest can be made in a routine manner on a mere allegation of commission of an offence


made against a person . it should be prudent of a police officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own interest that no arrest should be made
without a reasonable satisfaction reached after some investigation as to the genuineness and
bonafides of a complaint and a reasonable belief both as to the persons complicity and even so as
to the need to effect arrest. Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the constitutional concomitants of the
fundamental rights to personal liberty and freedom. A person is not liable to arrest merely on the
suspicion of complicity in an offence. There must be some reasonable justification in the opinion of
the officer effecting the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to person to attend the Station
House and not to leave station without permission would do.

Further the Supreme Court observed: An accused person being held in custody is entitled,
if he so requests to have one friend , relatives or other person who is known to him or
likely to take an interest in his welfare told as far as is practicable that he has been
arrested and where is being detained; The police officer shall inform the arrested person
when he is brought to the police station of this right; An entry shall be required to be
made in the Diary as to who was informed of the arrest. These protections from power
must be held to flow from Article 21 and 22 (1) and enforced strictly. It shall be the duty
of the Magistrate, before whom the arrested person is produced to satisfy himself that
these requirements have been complied with.

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In a matter relating to custodial violence and arrest of female person, the court in case of
Sheela Barse v. State of Maharashatra ( AIR 1983 SC 378) has issued the following
relevant directions as under:

Four or five police lock ups should be selected in the reasonably good localities
where only female suspects should be kept and they should be guarded by female
constables.
Female suspect should not be kept in a lock up in which male suspects are
detained.
Interrogation of female suspects should be carried out only in the presence of
female police officers/ constables.
Whenever a suspect is arrested by the police and taken to the police lock up, the
police will immediately give intimation of the fact to the nearest legal aid
committee.
Surprise visits to the police lock ups in the city should periodically be made with
a view to providing arrested person an opportunity to hear their grievances and
ascertain the conditions of police lock up.
As soon as a person is arrested, the police must immediately obtain from him/her
the name of any relative or friend who he/she would like to be informed about
his/her arrest and the police should get in touch with such relative or friend and
inform him about arrest.
The Magistrate before whom an arrested person is produced shall enquire from
the arrested person whether he has any complaint of torture or maltreatment in
police custody.

The Supreme Court widely elaborated the right against self incrimination during
interrogation in police custody in its various judgments. In Case of Nadini Satpati v. P.L.
Dhani (A.I.R. 1978 SCC 1075) the Court held that the right against self-incrimination and
right to silence of the accused. It is upheld that if there is any mode of pressure, subtle or
crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the
police in obtaining information from the accused, it becomes compelled testimony

60
violative of the right against self-incrimination. The court also held that compulsion may
be presumed in the case of custodial interrogation by the police unless certain
safeguards erasing duress are adhered to. It further observed that the police ought to
permit a lawyer to assist the accused if he can afford one. However, it did not opine that
the state is under an obligation to provide a lawyer to the accused if he is poor. It also
acknowledged the right to silence against self incrimination. The accused is not bound
to answer self incriminatory questions. But he does not have right to complete silence.
In other words non-incriminatory questions can be asked and the accused is bound to
answer where there is no clear tendency to criminative.

The highest court of the country in case of Bhagwan Singh vs. State of Punjab (AIR 1992
3 SCC 249) has observed that it may be a legitimate right of any police to interrogate or
arrest any suspect on some credible material but such an arrest must be in accordance
with the law and the interrogation does not mean inflicting injuries. It should be in it true
sense purposeful, namely, to make the investigation effective. Torturing a person and
using third degree methods are of medieval nature and they are barbaric and contrary to
law. The police would be accomplishing behind their closed doors precisely what the
demands of our legal order forbid. They must adopt some scientific methods than
resorting to physical torture. The Court further commented if the custodians of law
themselves indulge in committing crimes then no member of the society is safer and
secure.
Few cases of custodial violence reach to the court (Sokhani, 2005). Even when formal
prosecution is launched by the victim or next of kin, no direct evidence is available to
subatstainte the charge of torture resulting in death, as the police lock-up where generally
away form the public gaze (Tiwari1999). The issue was dealt by Supreme Court in cases
of Munshi Singh Gautam & Others v. State of Madhya Pradesh,(AIR 2005 SCC 631), the
Apex Court observed;

Rarely in cases of police torture or custodial death, is direct ocular


evidence available of the complicity of the police personnel, who alone
can only explain the circumstances in which a person in their custody had
died. Bound as they are by the ties of brotherhood. It is not known that
police personnel prefer to remain silent and more often than not even
prevent the truth to save their colleagues.
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The Supreme Court took reference of the 135th Report of Law Commission has
recommended that a section 114(B) should be inserted in the Indian Evidence Act, 1872,
to introduce a rebuttable resumption that injuries sustained by a person in police custody
may be presumed to have been caused by the police officer. Such a provision perhaps
will have a restraining effect on officers indulging in torture in police custody. The
Supreme Court recommended, Appropriate such changes in the law not only to curb
custodial crimes but also to see that such crimes do not go unpunished. Further, the Court
observed that courts are also required to have a change in their outlook, approach,
appreciation and attitude, particularly in cases involving custodial crime and they should
exhibit more sensitivity and adopt a realistic rather that a narrow technical approach.

In the historic judgment in D.K. Basu vs. State of West Bengal ( A.I. R. 1997 SC 610 ) the
Supreme Court initiated the development of Custodial Jurisprudence including torture
to arrestee infringement of fundamental rights, citizen entitled to receive compensation
from State, quantum of compensation would depend on peculiar fact of each case and
punishment under section 330 of Penal Code is inadequate to repair the wrong done to
citizen. The Supreme Court of India lamented on the control of police power of arrest and
issued guidelines in carry out arrest and detention by police and law enforcement
agencies in the county. They also have the force of law (Article 141 of the Constitution
states that the law declared by the Supreme Court is binding on all courts in India.). An
officer who willfully or inadvertently ignored Supreme Court directives can be tried in
court under relevant provisions of the Indian Penal Code and/ or under the Contempt of
Courts Act, 1971.

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Obligation of Police officer after arrest :( D.K. Basu Case )

1. The Police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register;

2. That the police officer carrying out the arrest of the arrestee shall prepare the
memo of the arrest at the time of the arrest and such memo shall be attested by at
least one witness, who may either be a member of the family of the arrestee or
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and the date of arrest;

3. A person who has been arrested or detained and being held in custody in police
station or interrogation centre or other lock up, shall be entitled to have one
friend or relative or other person known to him or having interest in his welfare
being informed as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of arrest
is himself such a friend or a relative of the arrestee;
4. The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the district
or town through the Legal Aid Organization in the District and the police station
of the area concerned telegraphically within a period of 8 to 12 hours after the
arrest;
5. The person arrested must be made aware of his right to have someone informed of
the arrest or detention as soon as he put under arrest or detained;
6. An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the friend of the person who
has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is;

63
7. The arrestee should, where he /she requests, be also examined at the time of
his/her arrest and major and minor injuries, if present on his /her body, must be
recorded at the time. The Inspection Memo must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every
48 hours during his detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health services of the concerned State or Union
Territory. Director, Health services should prepare such a panel for all tehsils and
districts as well.
9. Copies of all the documents including the memo of the arrest, referred to above,
should be sent to the nearest Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

11. A police control room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police central room it should be displayed on a
conspicuous notice board(The court said that failure to comply, the official liable
with departmental action, would render the defaulter to liable with punishment for
contempt of court).

Peoples Union for Civil Liberties (PUCL 2003) has conducted a study to find out the
implementation of Supreme Court guidelines in carrying out arrest and detention by
police in Bhubaneswar and Cuttak cities of Orissa State. The findings show that in spite
of the Court directive the police continue to detain people without maintaining any record
and torture them during such illegal detentions. The right of the arrestees to beproduced
before a magistrate within 24 hours of the arrest is also continues to be grossly violated.
In none of the police stations the guidelines have been displayed on the wall or on a
notice board for information and awareness of public even though the Supreme Court in
their order have specially directed for displaying the same in every police station. The in-
charges of Police Station plead that they have not been issued any specific instructions by
the higher-ups in this regard nor is there any budget allocation for that. The allocation for
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expenses on foods for detainees is ridiculously low. As reported by the Police Officials
interviewed, the approved amount for a detainee's food expenses is Rs.2/- per meal.
Government does not provide funds to the police stations for meeting minimum expenses
like printing of registers and formats to comply with the directives of the Supreme Court.
The police officers reportedly get the stationeries printed by paying from their own
pocket. Arrest registers are being maintained in all the police stations. However, some
irregularities in issuing of Inspection and Arrest memos were noticed. The registers are
maintained only from the month of May 2002. It seems that prior to this there was no
system to monitor whether the guidelines were being followed or not. There is no
separate lockup room, except in a very few police station, for the women detainees. In
some police stations it is being used as garbage room. The list of the arrested people
displayed at the Police Control Room is not updated.

It is noteworthy to mention that India being party to various UN Declaration, Convention


and Covenants is under an obligation to take effective steps to curb custodial crimes in
police custody. This obligation is also reflected in Article 51 of the Constitution of India.
In fact, Parliament has enacted laws to give effect to the International obligation as
contained in various Declarations and Conventions. In addition, the courts have also, by
their judicial innovation, ensured the effective implementation of those norms. Where the
State or its agencies failed to implement the international norms, and the State has ratified
or adopted those norms, the Supreme Court of India has intervened to issue directions for
the effective enforcement of those norms through laws. The Supreme Court of India has
interpreted domestic law in a manner so as it give effect to the implementation of the
international norms. It would be worthwhile to refer some landmark decisions. In case of
Francis Corlile Mullin V. Administrator , U.T. of Delhi ( A.I.R. 1981 SC 608) the
Supreme Court gave due recognition to the international norms while interpretating
Article 21 of the Constitution of India, when it observed :

65
any form of torture or Cruel, inhuman degrading treatment would be
offensive to human dignity and constitute an in road into this right to live
and it would, on this view, be prohibited by Article 21 unless is in
accordance with the procedure prescribed by law, but no law which
authorizes and on procedure prescribed by law, which leads to such
torture or cruel, inhuman or degrading treatment can ever stand the test
or reasonabless an non-arbitrariness it would plainly be unconstitutional
and void as being violative of Article 14and 21. It would thus be seen that
there is implicit in Article 21 the right to protection against torture or
cruel, inhuman or degrading treatment which is enunciated in Article 5 of
the Universal Declaration of Human Rights and guaranteed by Article 7
of the International Covenant on Civil and Political Right.

In Nilabati Behara vs. State of Orissa( A.I.R. 1993 SC 1960) , the Supreme Court
observed that any form of torture or cruel inhuman degrading treatment or punishment
fall within it the purview of the Constitution of India , Articles 21,32, 142 and 226
contravention of human rights and fundamental freedoms by State and its agents claim
for monetary compensatory in petition under Articles 32 and 226 in public law- same
only mode of redress available for contravention . It is acknowledged remedy. Court has
obligation to grant relief formally and finally laid down and rejected the defense of
sovereign immunity not available in case of violation of fundamental rights of torture
victims. The court judgment also referred to Article 9(5) of the International Covenant on
Civil and Political Rights, which indicates that an enforceable right to compensation is
not alien to the concept of enforcement of a guaranteed right.

2.6.7 National Human Rights Commissions Measures :

There has been growing concern in the country and abroad about issues relating to human
rights. The Parliament enacted the protection of human rights Act, 1993. According to
Section 2(d) of the Protection of Human Right Act,1993 Human Rights means
Rights relating to Life, Liberty and Dignity of an Individual guaranteed by the
Constitution and embodied in International Covenant endorsable by court in India. The
Act provides the constitution of a National Human Rights Commission, State Human
Rights Commissions and Human Rights Courts for better protection of human rights of
citizens in the country.

66
The National Human Rights Commission, since its inception, has been addressing the
problem of custodial violence including torture, rape, death and disappearance in police
custody. On 14 December 1993, the Commission issued of its instructions to the All
Chief Secretaries of all the States, asking them to direct all District Magistrates and
Superintendents of Police to report directly to the Commission any instance of death or
rape in police custody within twenty four hours of its occurrence, failure to send such
reports, it was made clear, wound lead to a presumption by the Commission that the
effort was made to suppress the facts. (Annual Report of the NHRC, 1994-95)It is not
enough for the Commission to react to curb the torture, the Commission is of the view
that the recommendations of the Indian Law Commission (ILC) made in its 113th Report
of 29th July 1985 on a reference by the Supreme Court of India, should be acted upon. In
that recommendation, the ILC suggested the insertion of a section 114 (b) in the Indian
Evidence Act, 1872, to introduce a rebuttable presumption that injuries sustained by a
person in the police custody may be presumed to have been caused by a police officer. In
the view of this commission, such a provision could well have a restraining effect on of
engaging in torture. Further, this commission supports the recommendation of the Indian
Law Commission that Section 197 of the Criminal Procedure Code be amended to
abriate the necessity of governmental sanction for the prosecution of a police officer
where a prima face case has been established, in an enquiry conducted by a session
judge, of the Commission of a custodial offence, this Commission also endorses the view
of the National Police Commission in its first Report of February 1979, that should be a
mandatory enquiry, by a session judge in each case of custodial death rape or grievous
hurt .(Annual Report of the NHRC, 1995-96)

In its endeavor to ensure that reporting on custodial death is accurate and timely, the
NHRC had recommended to the States and Union Territories that the latter videos film of
post-mortem examination an send the cassettes to the Commission, with a view to
prevent manipulated Post-mortem report helps those responsible for serious violation of
human rights. Apart this, the Commission moved further and recommended to the
Government of India that accession to UN Convention against Torture and Other cruel
inhuman or Degrading Treatment or Punishment, 1984.(NHRC, annual report,19997-98).

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At the disposal of custodial violence cases, the commission by recommending
registration of criminal cases against errant officers and payment of compensation to the
victims or next of kin. Because on overwhelming majority of complaints received by the
National Human Rights Commission concern the police, (Annual Report of NHRC -
2003-2004).
2.6.8 NHRCs Best Practices for combating custodial crimes

1. On Custodial Deaths/ Rapes


Reporing of Custodial Deaths/Rapes with 24 hours( December 14,1993)
Video Filming of Post-Mortem Examination in case of custodial death
( August 10, 1995)
Model Autopsy Forms and Additional Procedure for Inquest( March 27,1997)
2. On Visit to Police Lock-ups, Arrest and Polygraph Test
Visit of NHRCs Officers to Police Lock-ups ( August 1,1997)
Guidelines on Pre-Arrest, Arrest and Post-Arrest( November 22,1999
Guidelines on Polygraph Tests( January 11,2000)
3. On Human Rights Cell and District Complaint Authority
Establishment of Human Rights Cell in State Police Headquarters
(August 2, 1999)
Establishment of District Complaint Authority( December 24,1999)
(For deailts see National Human Rights Comissions Guidelines/Instruction (2000)

In its Annual Report (2005-2006), the Commission mentioned that Government of India
has informed that a task force of Ministry of Home Affairs, Ministry of External Affairs
and Ministry of Law and Justice, working on the process for ratification and make a
legislation to be acted upon it. NHRC played a proactive role, during the year 2003-2004,
the Commission directed its investigation Division to look into 3538 cases, as compared
with 3005 cases in the preceding year. Of these cases 2918 related to the collection of
facts( in respect of complaints alleging deaths in fake encounters, or the violation of
human rights resulting from false implication in cases, illegal detention, torture and other

68
police highhandedness) from different parts of the country. In 51 instances, however, the
Commission directed that teams of the Commission conduct inquires on the spot. These
inquiries were conducted mainly in Uttar Pradesh, Delhi, Haryana, Bihar, Punjab,
Rajasthan and Madhya Pradesh (Annual Reports of National Human Rights Commission
from 1993-04 to 2003-04).

Since its establishment in October 1993 till 2003-04, the National Human Rights
Commission ( NHRC) has directed that interim relief to the extent of Rs. 9, 91, 52, 634/-
to be paid in 603 case to the victims or next of kin of the human rights violations ranging
from Rs. 10,000 to 10,00000 under section 18(3) of the Protection of Human Rights Act,
1993 as well as criminal prosecutions have been launched against 167 person( 144
policemen and 23 civilians from 1993 till 1996-97). The Commission has received
intimations of 13,281 deaths having occurred till date in police and judicial custody.
While many of these cases were attributable to deaths due to natural causes like illness
and old age, cases of custodial deaths were brought to the notice of the Commission
resulting from illness aggravated due to medial negligence or due to violence by public
servants or even suicide. During the period of review (2005-06), the Commission
recommended payment of interim relief, in 14 cases of custodial deaths, to the kith and
kin of the victims, amounting to Rs. 8,50,000/- including 6 cases of custodial deaths in
police custody. These are besides 1,245 cases of Punjab Mass Cremation, where till the
end of October, 2006, a total amount of Rs. 23.24 cores has been recommended by way
of monetary relief to the next of kind of the deceased( NHRC Annual Report, 2005-
2006).

2.6.8 Realization of Right to Reparation of Victims of Custodial Crime

The NHRC had received a complaint from one Raj Kumar Vij of Varanasi alleging that
his son, Rakesh Kumar Vij had been subjected to severe physical torture by the Uttar
Pradesh (UP) Police. This had necessitated the hospitalization of Rakesh in order to save
his life. The complainant alleged that the police had illegally detained his son in
connection with a murder investigation. It was mentioned in the petition that the victim
was ill-treated and tortured and that electric shocks had been administered to him by

69
making him urinate on a live electric coil - in order to elicit information about the
murder. He was also not allowed to meet any family member. The torture had totally
incapacitated the victim.

The Commission subsequently received a number of petitions from various non-


governmental organisations and social activists regarding this case. Taking cognizance of
the matter, the Commission issued notice to the Director General of Police, UP. The
report received from the Senior Superintendent of Police, Varanasi stated that the victim
had sustained injuries as a result of a fall while trying to run away from police custody. It
also mentioned that Shri Rakesh Vij had a criminal record. The petitioner, when asked to
respond, refuted the police version. The Commission then directed its own Investigation
Division to inquire into the incident. The report of the Investigation Team affirmed illegal
detention and severe torture of the victim. The inquiry by the State CBCID, initiated by
the UP Government, substantiated the Investigation Team's report.

The Commission also asked the UP Government to constitute a Medical Board to assess
the extent of physical disability suffered by the victim. The Medical Board, gave a report
to the Commission, stating that the victim did not suffer from any gross structural
damage, and that most of his complaints were subjective. The report also stated that the
patient had made a good recovery and that all his medical test results were within normal
limits. The complainant, however, in a communication to the Commission, expressed his
doubts about the impartiality and trustworthiness of the medical report. He requested the
Commission to assess the authenticity of the medical report.

In view of grave apprehensions of miscarriage of justice, the Commission got the victim
examined by the Delhi Trauma and Rehabilitation Centre, which gave an entirely
different assessment. Due to the discrepancies between the two medical reports, the
Commission then directed that Shri Rakesh Vij be referred to the All India Institute of
Medical Sciences (AIIMS) for reassessment of his health status. The Commission also
directed the State Government to bear all the medical and travelling expenses of the
victim.

70
According to the report from AIIMS, the victim's spinal cord was compressed leading to
deterioration of power in his lower limbs and in his neurological functioning in lower
limbs, sensory loss of bladder and bowel movement. There were 60 to 80 per cent
chances for improvement, but only if the victim undertook high-risk surgery. He was
suffering from hearing loss and some of his teeth were missing. He was suffering from
severe Post-Traumatic Stress Disorder with no proven treatment.

The Commission was thus convinced that police officials had perpetrated custodial
violence, brutal or savage in nature, on Shri Rakesh Vij. The Commission was also of the
opinion that because of this torture, the victim had suffered trauma and stress and had
been rendered incapable of living normally for the rest of his life. This was a case of a
gross violation of human rights of a citizen resulting from barbaric acts of torture
perpetrated on him. The State was, therefore, liable to compensate Shri Rakesh Vij for
the damages suffered by him. The Commission thus directed the UP Government to pay
Shri Rakesh Vij Rs.10 lakhs by way of immediate interim relief. It was also directed to
arrange for the complete medical treatment of Shri Vij at AIIMS, New Delhi or PGI,
Lucknow, as Shri Vij preferred. The expenses of the treatment as well as the traveling
expenses of Shri Vij, along with one attendant, from his native place to the place of
medical treatment, would also be borne by the State Government.

The Commission also directed the prosecution of the police officers found responsible for
perpetrating various acts of torture on Shri Vij. As recommended by the State CBCID,
disciplinary action is to be taken against five police personnel, including the Senior
Superintendent of Police and a Superintendent of Police, Varanasi. The Commission has
also issued notice to the concerned doctors from Varanasi asking them as to why
recommendations should not be made to the State Government of UP to initiate
appropriate disciplinary action against them for giving incorrect report/findings about the
status of health and extent of physical disability and incapability suffered by Shri Rakesh
Vij.

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The Government of Uttar Pradesh reported to the Commission its acceptance of the
Commission's recommendations with regard to the prosecution of errant police officials
as also in respect of payment of compensation to the victim.

NHRC observation and comment : Under Section 13(1) of the Protection of Human
Rights Act, 1993, the Commission shall, while inquiring into complaints under this Act,
have all the powers of a Civil Court trying a suit under the Code of Civil Procedure,
1908. Section 13(2) further provides that the Commission shall have power to require any
person, subject to any privilege which may be claimed by that person under any law for
the time being in force, to furnish information on such points or matters as, in the opinion
of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and
any person so required shall be deemed to be legally bound to furnish such information
within the meaning of Section 176 and Section 177 of the Indian Penal Code.

Section 15 of the Protection of Human Rights Act, 1993 protects those who give
evidence before the Commission. It also provides for prosecution of those who give false
evidence. Medical personnel have a crucial role in unearthing vital evidence in cases of
allegations of torture and custodial violence. They have a duty to ensure that an accurate
description of the victims injuries is provided to the Commission. In this case, the
Medical Board constituted by the Government of Uttar Pradesh gave a misleading report
to the Commission on the extent of injuries suffered by Shri Rakesh Kumar Vij. The
Commission, however, got a further assessment made by the Delhi Trauma and
Rehabilitation Centre and then by the All India Institute of Medical Sciences (AIIMS).
The Commission, using the powers conferred on it by its Statute, recommended the
initiation of appropriate action against those who tried to mislead the Commission.
Article 10(1) the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment stipulates that each State Party shall ensure that education and
information regarding the Prohibition against 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. Article 10(2) further requires
each State Party to include this prohibition in the rules or instructions issued in regard to

72
the duties and functions of any such persons. In other words, medical personnel not only
have a role in the prevention of Torture but are duty bound to do so (Custodial torture
case of Rakesh Kumar Vij : Uttar Pradesh Case No. 12982/ 96-97)

Recently, the National Human Rights Commission (NHRC), in collaboration with Penal
Reform and Justice Administration (PRAJA), organized a two day seminar on Custodial
Justice on March 30-1, 2006, at Vigyan Bhawan, New Delhi. The main objective of the
Seminar was to highlight the fact that custodial torture is preventable and that it is the
responsibility of the State to protect the rights of people in custody. The main
deliberations the aforesaid seminar after the are;

The violations in police custody are reported during investigations, resulting in


deaths and physical torture.
NHRC, as a monitoring body over deaths and violence in police custody, has
emphasized scientific, professional and humane approach towards persons
detained for investigation.
The investigation need to be carried out expeditiously and in a given time frame.
The guidelines for arrest, set out in the D.K. Basu Case by the honorable Supreme
Court have emphasized time and again for compliance from appropriate state
authorities. Besides, it has urged upon senior leadership to involve themselves in
the task of investigations and custodial management of the detainees. Full use of
scientific techniques and forensic science should be made to obviate resorting to
physical torture during interrogations. Training in interrogating skills in since quo
non of all investigations by the police.
There should be zero tolerance for any violation of human rights in custody. In
cases where misconduct or guilt of police personnel is established, it should be
ensured that the penalties imposed should be commensurate with the
misconduct/guilt.
There is a strong need to bifurcate the police personnel into two separate wings :
one relating to investigation and the other for law and other duties. Accordingly,
the personnel should be trained to specialize in investigation procedures. This will
definitely help in speedy disposal of the cases.

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To imbibe above practices, training is to be taken as a continuous process of
learning and to be used with the purpose of changing the attitudes and mindset of
the police personnel ( NHRC Annual Report-2005-2006).

More recently, the National Human Rights Commission (NHRC) organized a two-day
Workshop on Detention from 11th -12th October 2008.The workshop was organized as a
part programme to commemorate the 60th Anniversary of Universal Declaration of
Human Rights in the dignity and justice for detainees Week (from 6th to 12th October,
2008), designated by the Office of the High Commissioner to pay special attention to the
conditions of detainees in prisons, police custody and other places. It also marked the
yearlong campaign to celebrate the 60 Years of UDHR. In his inaugural address NHRC
chairperson has laid down stringent reporting requirements for custodial deaths and rapes
and issued guidelines on arrest. He added that the hallmark of any society is the way it
protects and promotes rights of the citizens including person under detention. He also
highlighted the paradox of the 20th century which witnessed a large number of violations
across nations and across societies despite a plethora of human rights standards and
instruments evolved under the United Nations ( Human Rights News Letter, Vol. 15 No.
8, October, 2008). Based on the deliberations in the Workshop, the following
recommendations are made by the Commission in the context of detention in police
custody;
The Convention against Torture inter alia seeks to prohibit torture in custody.
Though India has signed the Convention against torture, it has signed the
Convention against torture, it has not yet ratified it. The Central Government must
take immediate steps in this regard.
It was also suggested that the penalty inflicted on the delinquent police official
responsible for torture should be in proportion to the degree of torture by such
officials rather than a mere reprimand or transfer.
In case of deaths in custody, as per the present practice, the police administration
is required to send the report within 24 hours of its occurrence to NHRC. In
accordance with the amendment made to Criminal Procedure Code, 1973(Section
176(1) of the Code) an inquiry by a judicial magistrate is made. There is need for

74
scrupulous implementation of procedure established under Section 176(1) of Cr.
P.C. In addition, forensic experts and laboratories must be involved as their
expertise and scientific manner of investigation can assist in providing accurate
and reliable evidence.
Government should take steps to separate the investigation wing law and order
wing, as decided in the case of Prakash Singh vs Union of India(2006, 8, SCC 1).
All sorts of unlawful detention should be severely dealt with.
In case of the detune is found unlawful detained, there is a need to have provision
for interim relief/ compensation

In view of the above, it is clear that despite innovative interventions of NHRC in the
police functioning in general and police custody in particular, incidents of custodial
crimes are increasingly. This shows that police establishment is not serious to curb
custodial violence mainly due to the impunity provided to them for such crimes. The
functioning of NHRC in dealing with custodial violence has been criticized by various
individuals experts and organizations working in the field of human rights ( Dhavan
2001,2002, 2004, ACHR, 2008, HRW, 2006)

2.7 International Framework for Combating Custodial Crimes

Custodial violence and abuse of police power are not only peculiar in India, but it is
widespread. It has been the concern of international community because the problem is
universal and the challenge is almost global. Some of the complex issues such as causes,
consequences and prevention of torture as well as reparation, restitution and rehabilitation
of victims of torture lead to global movement against torture led by United Nations. In
this context, the UN Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984) has significance at International level. The Inter-
American Convention to Prevent and Punish Torture (1987) and European Convention
for Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( 1989)
have given the momentum to the movement at the regional level. At present, 146
countries are party to the Convention against Torture ( 136 countries ratified and 10

75
signed the Convention) as well as 46 have countries ratified to its Optional Protocol and
25 signatory countries which have incorporated the legislative, judicial, administrative
and other measures contributed to the movement at domestic level. India has signed the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment on 14 October 1997 but not yet ratified it.

2. 7.1 Initiatives taken by the United Nations

The United Nations has played a key role in prevention of custodial violence including
torture and to secure custodial justice. The United Nations since its formation has been
providing standards & practices by introducing various international instruments such as
Universal Declaration of Human Rights(UDHR 1948), International Covenant on Civil
and Political Rights(ICCPR 1966), the UN Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment and Punishment(CAT 1984), the United Nations
Basic Principles for Justice for Victims of Crimes and Abuse of Power (UNBPVC 1985),
the United Nations Optional Protocol of Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment and Punishment( OPCAT 2006) and International
Convention for the Protection of All persons from enforced Disappearances(ICPED
2007), the United Nations Standard Minimum Rules for Treatment of Offenders,
1955,United Nations Code of Conduct for Law Enforcement Officials, 1979, the United
Nations Minimum Rules for Non-Custodial Measures (the Tokyo Rules), the United
Nations Body Principles for Protection of All persons from any forms of detention or
imprisonment ( Body Principles), and the United Nations Basic Principles on use of force
and firearms for Law Enforcement Officials 1991. This aside, the Principles of Medical
Ethics relevant to the Role of Health Personnel particularly physicians, in the protection
of prisoners and detainees against torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Principle of Medical Ethics), the Basic Principles for the
Treatment of Prisoners and the body of principles for the Protection of all Persons under
Any Form of Detention or Imprisonment (Body of Principles on Detention) are also
relevant to combat custodial torture in police custody( UN, 2004, 2009)

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2.7.2 United Nations Bodies and Mechanism
The United Nations (UN) has established various Committees/ bodies Special Rapporteur
etc to monitor of human rights standards at domestic level. Among them the followings
are worth mentioning:

UN Human Rights Committee


UN High Commissioner for Human Rights
UN Committee against Torture
UN Sub-Committee on Prevention of Torture
UN Special Rapporteur on Torture
UN Voluntary Fund for Victims of Torture
UN International Day for Victims of Torture on 26th June

2.7.3 UN Human Rights Committee


The Human Right Committee was established pursuant to Article 28 of the International
Covenant on Civil and Political Right to monitor implementation of the Covenant in the
State parties. The Committee is composed of 18 independent experts who are expected to
be persons of high moral character and of recognized competence of human rights. India
became a party to the International Covenant on Civil and Political Right (ICCPR) on
April 10, 1979. The Human Rights Committee, in 1997, in its scrutiny of Indias country
report expressed its concerns that:
Allegations that police and other security forces do not always respect the
rule of law and that, in particular, court orders for habeas corpus are not
always complied with, in particular in disturbed areas. It also expresses
concern about the incidence of custodial deaths, rape and torture (UN,
1997).

2.7.4 UN Special Rapporteur on Torture


Since it establishment in 1985, the UN Special Rapporteur on Tortures authority to
monitor extends to all Member State of the United Nations and to all State with observer
status, regardless of the States ratification of the Convention against Torture. The
Special Rapporteur establishes contact with Governments, asks them for information on
legislative and administrative measures taken to prevent torture, requests them to remedy

77
any consequences and asks them to respond to information alleging the actual occurrence
of torture. As mentioned earlier India is a signatory country of the Convention against
torture therefore, it has not issued an invitation to the Special Rapporteur on Torture
despite several requests to this effect (Redress, 2005, ACHR, 2008). Nevertheless, the
Special Rapporteur on Torture has commented on India, assessing the situation on the
basis of information that he has received over the years, as follows:

While the size and diversity of the country make it difficult to


characterize the intensity of the problem all over, it certainly appears that
there is a tradition of police brutality and arbitrariness in much of the
country, the degree of brutality frequently being sufficiently unrestrained
to amount to torture \, often with fatal consequences. The brutality is
sometimes linked to corruption and extortion and is often deployed in the
service of local vested interest, be they economic or official. The use of
excessive and indeed unprovoked and unjustified forces is common
especially in response to protests demanding rights. The prosecution of
those pursuing complaints against the police is a not infrequent
phenomenon. In areas characterized by armed resistance, the security
forces seem notably prone to resort to extreme and often lethal violence
even if individual abuses not carried out as part of organized military
operations may be sanctioned. In general, while not absolute, the level of
impunity among police and security forces seems sufficiently substantial
as to conduce a general sense among such officials that their excesses,
especially those committed in the line of duty, will at least be tolerated, if
not encouraged. (UN 2001).

2.7.5 International Humanitarian Law


The international treaties governing armed conflicts establish international humanitarian
law. The prohibition of torture under humanitarian law or the law of war is only a small,
but important, part of the wider protection these treaties provide for all victims of war.
The four Geneva Conventions of 1949 have been ratified by 188 States including India.

78
They establish rules for the conduct of international armed conflict and especially, for the
treatment of persons who do not, or who no longer, take part in hostilities, including the
wounded, the captured and civilians. All four conventions prohibit the infliction of torture
and other forms of ill-treatment. Two protocols of 1977, additional to the Geneva
Conventions, expand the protection and scope of these conventions. Protocol-I ratified by
153 countries covers international conflicts. Protocol-II (ratified by 145 States) covers
non-international conflicts. More important to the purpose here, however, is what is
known as Common Article 3, found in all four conventions. Common Article 3 states:
the following acts are and shall remain prohibited at any time and in any place whatsoever .violence to
life and person, in particular murder of all kinds, mutilation, cruel treatment and tortureoutrages upon
personal dignity, in particular humiliating and degrading treatment. It is noteworthy to mention

that India had ratified Geneva Convention on November 9, 1950(UN, 2004).

2.7.6 The International Criminal Court

The Rome Statute of the International Criminal Court, adopted on 17 July 1998,
established a permanent international criminal court to try individuals responsible for
genocide, crime against humanity and war crimes. The Court has jurisdiction over cases
alleging torture either as part of the crime of genocide or as a crime against humanity, if
the torture is committed as part of a widespread or systematic attack or as a war crime
under the Geneva Conventions of 1949. Torture is defined in the Rome Statute as the
Intentional infliction of sever pain or suffering, whether physical or mental, upon a
person in the custody or under the control of the accused. As of 25 September 2000, the
Rome Statute of the International Criminal Court had been signed by 113 countries and
ratified by 21 states. The court will have its headquarters in the Hague. This court has
jurisdiction only in cases in which States are unable or unwilling to prosecute individuals
responsible for the crimes described in the Rome statute. The Rome Statue declares
torture as crime against humanity. However, when the Statute of an International
Criminal Court was voted on in Rome in July 1998, India was abstained. Indias
objections to the Statute are manifold. The Indian States major concern revolves around
the role of Security Council and the inherent jurisdiction the court. In regard to both these
issues, concerns about Indias sovereignty played a major role. Later the concerns about
preserving the primacy of national juridical process were also expressed. The inclusion of

79
armed conflict not of an international character in defining war crimes constituted
another of Indias concern. The other important objections raised by India were actually
not against what was in the agreement but what was left out. The non inclusion of first
use nuclear weapons and Terrorism externally aided and abetted cross boarder terrorism
in the list of crimes were the other sore point s for India. However, ICC is a judicial
mechanism for violations of human rights including Torture. As Noorani points out,
despite being a strong democracy, India has a very dismal record in the matters of
accountability for human rights violations and impunity (Noorani 2002; Uma 2003;
Praneeth 2006).

2.7.7 Coalition of International Non-Governmental Organizations against


Torture
In line with International instruments a number of Non-Government Organizations
working for the prevention of torture and rehabilitation of victims of torture. These
organizations working under umbrella of the Coalition of International Non-
Governmental Organizations against Torture (CINAT) include International Federation
of Action by Christians for the Abolition of Torture, Association for the Prevention of
Torture, Amnesty International, International Commission of Jurists, World Organization
Against Torture, International Rehabilitation Council for Torture Victims and Redress
Trust. Many Other Health and Human Rights Professional Organizations such as
International Committee of the Red Cross, International Council of Nurses, World
Confederation of Physical Therapy, World Medical Association, World Psychiatric
Association, International Society for Health and Human Rights and Human Rights
Watch etc have undertaken various activities and efforts as monitoring, advocacy, fact
finding, documenting and research activities striving for prevention of torture and
rehabilitating the victims of torture too( CINAT, 2001). .

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2.7.8 Prevention of Torture through Monitoring

Since its inception the association of prevention of torture in 1977, has been promoted
monitoring of places of detention as an effective means for preventing torture, ill
treatment and other human rights abuses in custodial institutions. The Association for the
Prevention of Torture (APT) works through three integrated elements such as effective
legal framework, transparency of detentions institution though regular visits by
independent experts and capacity building to reform practices of detentions institutions.
The Association of Prevention Of Torture (APT) campaigns for Accession to the UN
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and
Punishment, 1984 and its optional protocol to the Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment and Punishment, 2002. On 18 December 2006,
four years after the adoption of the OPCAT by the UN General Assembly, the then 29
states parties to the Protocol elected the first members of the UN Sub committees on
Prevention of Torture. The OPCAT establishes that the UN Subcommittee will be
complemented at the local level by National Preventive Mechanism ( NPMs) that will
also undertake regular visits to places of detention. The UN subcommittee and the NPMs
aim to build a constructive dialogue with the authorities and provide recommendations on
effective measures to be taken in order to further prevent torture and ill-treatment. Finally
the UN Subcommittee cooperates, for the prevention of torture in general, with the
relevant UN organs and mechanisms as well as with the international, regional and
national institutions or organizations working towards the strengthening of the protection
of all persons against torture and ill-treatment. Hence, on the basis of the OPCAT, the
three main features that characterizes the UN subcommittee are following:
A visiting body;
An assisting and advisory body for both State Parties and National Preventive
Machanisms;
A body that integrates with existing mechanisms.

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APT is closely working with subcommittee and substantially contributed in prevention of
torture though visiting places of detention and prepared following benchmarks for
effective tool for visiting system in custodial institutions including police custody ;
The Impact of External Visiting of Police Stations on Prevention of Torture
(1999);
visits under Public International Law, Theory and Practice (2000),
Monitoring Places of Detention: a practical guide for NGOs (2002);
Roles for physicians and other health professionals (2008),
(APT 2009)
2.7.9 Prevention of Torture through Documentation
Effective investigation and documentation of alleged torture can generate reliable
evidence that torture has taken place and it is instrumental in bringing perpetrators to
justice and in ensuring torture survivors access to justice and right to reparations. In this
context, International Rehabilitation of Victims of Torture (IRCT) has been working for
implementation of the Istanbul Protocol. The Istanbul Protocol has been adopted by
United Nations, which provides the first set of internationally recognized as prevention
though documentation as well as guidelines for medial and legal experts on how to
determine whether a person has been tortured and establish independent valid evidence
that can be used in court cases against alleged tortures. Since its inception in 1999 the
Istanbul Protocol has become a crucial instrument in the global effort to end impunity for
perpetrators. . Through the project Prevention though documentation launched in
2003, the IRCT is working to promote states endorsement and implementation of the
Istanbul Protocol. The project targets Ecuador, Egypt, Georga, Kenya, Maxico, Morocco,
Philippines, Serbia, Sri Lanka and Uganda. The project is led by IRCT in partnership
with the World Medical Association, the Human Rights Foundation of Turkey, Redress
Trust, Physicians for Human Rights and a wide range of local partners. The project is
financed primarily by the European Commission with additional resources by the Foreign
Commonwealth office, the Canadian Embassy in Cairo and the Government of Spain
(IRCT, 2008).

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2.7.10 Prevention of Torture through Rehabilitation
The global human rights movement against torture has grown remakerably over the past
few years. The United Nations has created UN Voluntary fund for victims of Torture in
the year of 1981. The fund is supporting various individuals and organisisations to help
the victims to torture in rehabilitate them in the main stream of society. This fund
sponsors about 200 NGO projects assisting about 80,000 victims of torture and members
of their families in about 80 countries worldwide (UN, 2004).In this context, some of the
voluntary organizations like OMCT and IRCT utilized the UNVFVT (UN Voluntary
fund for victims of Torture) to provide psychological, medical, social, economic, legal
and other forms of humanitarian assistance to victims of torture and members of their
families.

The Organization of Medical Centre of Torture (OMCT) since 1986, has been responding
to the immediately and effectively to the urgent needs of torture victims worldwide
including India. The urgent assistance for victims programme intervenes by offering
victims under framework of UN Convention against Torture and its Article-14 says
Each State Party shall ensure in its legal system that the victim of an act of torture obtains
redress and has an enforceable right to fair and adequate compensation, including the
means for as full rehabilitation as possible. In the event of death of the victim as a result
of an act of torture, his dependents shall be entitled to compensation.

OMCT offers legal assistance to torture victims who have fled their country and are
requesting political asylum in a third country; to victims who require independent foreign
lawyers; to those who are fighting against impunity of tortures; to those who request
compensation from the relevant national or international authorities; and to victims who
wish to use the mechanisms of certain United Nations committees in order to condone
their country for the non-respect of international human right norms. OMCT also
provides social assistance to victims who are threatened by acts of torture and who must
expatriate themselves, often leaving their families behind them with no income and in
harms way. OMCT allocates temporary urgent financial assistance to these victims and
their relatives so that they may overcome these fist obstacles; and OMCT also actively

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collaborates with member organizations and rehabilitation centers in developing
countries on the medical treatment of victims so that they can helped ideally, in their own
country or in a neighboring one( OMCT 2009).

The International Rehabilitation Council for Victims of Torture comprises of 142 centers,
programmes in 72 counties around the globe including India. The centers and
programmes carried out by thousands of doctors, lawyers, social workers and volunteers
in diverse cultural and political contests, enjoying a variety of treatment methods and
approaches. Their aim is to support torture survivors right to rehabilitation by offering
medical, legal and psychosocial assistance to individuals, families and communities( (
IRCT,2006- Centers and Programmes in the global IRCT network : An Overview-
Copenhagen, IRCT). International Rehabilitation Council for Victims of Torture ( IRCT)
works closely with health professional organizations, including the World Medical
Association ( WMA), the World Confederation of Physical( WCP), the World Psychiatric
Association( WPA), the World International Council for Nurses( ICN) and Phrygians for
Human Rights( PHR). The IRCT accredited centers and programmes throughout the
world use varying approaches to provide rehabilitation services for torture survivors. The
approaches are rooted in the knowledge that torture may have different consequences and
effects as results of diverse social, political and cultural context.

2.7.11 Recent Development


In the aegis of the global movement against, International Rehabilitation Council for
Victims of Torture (IRCT) has organized a series of the International Symposium on
Torture. One of the most significant events took place in recent years, the VIII IRCT
International Symposium on Torture held in New Delhi, India from September 22-25,
1999, organized by the International Rehabilitation Council of Torture Victims (IRCT),
Copenhagen, Denmark based International rehabilitation organization in collaboration
with the Indian National Human Rights Commission (NHRC), Indian Medical
Association ( IMA) and Indian Law Institute (ILI), on Torture as a Challenge to the
Health, Legal and other Profession. Besides many significant recommendations the
symposium laid main thrust on prevention of torture.

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Prevention has two main mechanisms: we need positively to transform attitudes and
beliefs about human rights , through informing and educating at every level, and through
creating societies that are democratic just, and equitable; and we need credible deterrent,
by setting up the right legislation and enforcing accountability through national and
international courts. These were reported on and debated at every level:

At the level of national and international law


At the level of political pressure to change laws and to ensure compliance with
human rights instruments; a further deterrent politically is the adaptation of the
Statue of Role on the International Criminal Court, the constitution of
International Tribunals in the former Yugoslavia and Rwanda, and the increasing
capability of treaty bodies and other UN processes.
Through National Human Rights Institutions and NGOs, which for the first time
were well represented at this Symposium and are well positioned to provide a
powerful advocacy force; the possibility of collaborative partnerships between
Human Rights institutions and bodies such as the IRCT is likely to accelerate
progress in the prevention of torture. This has effectively opened up a new front
in collaborative work in this field.
At the level of professional education, at the basic training stage and in-service
training , inter-alia for health professional, legal professionals, the judiciary,
police, and prison services. One of the most constructive areas of endeavor, from
a preventive standpoint, an important step forward in the fight against torture was
taken with the development of the Istanbul Protocol a tool intended to be
universally applicable for legal and medical investigation and documentation of
torture ( prevention through documentation), which has drawn on expertise from
around the world. The use of Istanbul Protocol was formally endorsed by the
Symposium delegates, and this will contribute towards the widespread
implementation of highly professional procedures where torture is alleged.
Besides, there has been the increasing emphasis on human rights training of
police and security forces in several countries.
At the crucial area of social awareness of human rights issues in the general
public most importantly through the media, which in an age of communication

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play a tremendously powerful role in helping to shape public understanding and
opinion The immensely destructive role that the media can play was raised in
debate in relation to the use of the radio in fanning genocidal hatred in Rwanda; it
was seen as crucial for the media to play an informed and socially responsible role
in this area.
At the deterrent level, it is clear that substantial headway is being made against
impunity. A series of Truth and Reconciliation Commissions have begun to force
an open disclosure of crimes. National leaders are increasingly being held
accountable for human rights violations, and certain them have been indicated.
Most importantly, we have seen the beginnings of prosecutions of torturers in
three different cases the Yugoslav and Rwanda International Crime Tribunal gave
a decision the crime of torture, and found several accused guilty, including
politician, a military police commander, a camp commander, and camp guards.
The importance of this was that torture was found to violate customary
international criminal law, and the elements of torture were established, similar to
those set out in the Torture Convention. The Trial Chamber found that sexual
violence and severe physical or mental harm were acts of torture. This is
enormously important and influential jurisprudence in the fight against Torture.
At quite a different level of restitution and deterrence, increasing attention is
being given to redress to survivors. No government seems to have put in place a
wholly satisfactory solution to this problem, but there have been interesting
developments. In India, for example, following decision of the Supreme Court
and the National Human Rights Commission, the State has begun to pay
reparation to torture survivors, and on occasion to exact this payment in whole or
in part of it form the perpetrator or torturer. This gives new meaning to
accountability, and approaches a more equitable restorative justice.

The symposium deliberated various issues and concerns pertaining to the Torture and its
ramifications in India and International Perspectives. The scientific symposium was
concluded with adoption of the Delhi Declaration on Freedom from Torture- a
Programme of Action (Annual Report of NHRC 1999-2000);
The Symposium urges the following actions to be taken by the United Nations ( UN) :

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Expending consideration of an Optional Protocol to the Convention against
Torture allowing international access to all places of detention under the
jurisdiction of State Parties to the Protocol.
Expending consideration of the Proposed UN Principles for restitution,
Compensation and Rehabilitation of Victims of Grave Human Rights violations
and Fundamental Freedoms.
Expending consideration of minimum standards for forensic examination of
alleged victims of torture and the effective global dissemination of the guidelines
contained in the Istanbul Protocol.
Ensuring diligent prosecution of alleged tortures and effective protection and
redress to victims of torture and their families within the framework of the
procedure being developed for the International Criminal Court.
Providing technical assistance to the production and effective global
dissemination of relevant teaching material on torture issues for health, legal , law
enforcement, and other concerned personnel.
Providing technical assistance for recurrent international and national information
campaign with a view to creating and maintaining public awareness of the
continued practice of torture and of the need to provide effective reparation to
torture survivors and their families.
Strengthening the capacity and resource base of the UN mechanisms supporting
the fight against torture.

The Symposium further urges the following actions the national level;
Sensitization of the Political leadership to issue concerning torture.
Accession to the UN Convention against Torture where this has not taken place.
Accession to the International Criminal Court.
Expediting revision of national laws to deal comprehensively with the prosecution
of torturers and reparation to victims of torture.
Significance increase in the number and size of state contributions to the
UNVFVT (United Nations Voluntary Fund for Victims of Torture) as well as
identification of and systematic canvassing of potential supplementary donors to
the UNVFVT.
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The systematic and effective monitoring by national human rights institutions of
instances of torture, particularly of custodial violence.
Promote a culture of non-violence and the respect for human rights.
Repealing of laws providing impunity to tortures.
Special consideration to protecting women and children against torture;
Greater Involvement of all components of civil society including health, legal and
other professions as well as NGOs and media in the fight against torture.

Recently, IX IRCT International Symposium on Torture was held on Providing


Reparation, Treatment and Preventing Impunity in Berlin (Germany) on December 9-
10, 2006. Nearly, 400 health, legal and other professionals from 88 countries attended the
two days event. The symposium addressed important challenges faced by the global
movement against torture in foremost the health and legal arenas. From a health
perspective the participants explored the relationship between medical, pharmacological
and classical psychological treatments and considered the ways to enhance standards of
update evidence based medical treatment for torture survivors, suffering from anxiety
disorders, depression or post-traumatic disorders. The symposium also focused on the
need to find better ways to deal with secondary trauma and burnout and to provide care
for caregivers. From a legal perspective, best practices examples and law were discussed
with regard to addressing impunity at the national and international levels with focus on
obtaining reparations for victims of torture. The Symposium has deliberated, debated and
discussed various issues and concerns and called upon that the synergy between the
medical, psychological, social and legal sciences for the continued advancement of
prevention of torture and rehabilitation of victims of torture (Torture 2007).

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