INTRODUCTION

“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is
also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold
as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and
fear and rage and hate. It is a desire to kill and destroy including yourself”
………..Adriana P. Bartow
The quality of nation’s civilization can be largely measured by the respect of the protection of
human rights. The theme of human rights is a universal concern and it cut across all ideological,
political and cultural boundaries. It is for this reason that linkages between institutions elating to
the protection of human rights between the countries are very important.
After the World War, the world community for the first time
realized the need to establish some institutional mechanism to protect and preserve the rights of
man. Soon after the coming into force the UN charter of human rights on 1948, the general
Assembly of the United Nations adopted and proclaimed the universal deceleration of human
rights. Then after this other convention as International convention of civil and political rights
along with optional protocol and International Convention of Economic, Social and Cultural
rights along with optional protocol came into existence.
These conventions were made to protect the interest of the common
people. Right to live is one most important right enshrined in our constitution in article 21. To
protect the people from being tortured by state or any other nation the Convention Against
Torture came into existence. The basic definition of torture as written in the convention against
torture in article 1 is “any act by which severe pain or suffering whether physical or mental is
intentionally inflicted on a person for such purpose as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or cohering him or a third person or for any
reason based on discrimination or any kind when pain or suffering is inflicted or at the
instigation off all with the consent or acquiescence of a public official or other person acting in
an official capacity. It doesn’t include pain or suffering arising from inherent in or incidental to
lawful sanctions.”
There are many types of torture and mainly they are inflicted in police custody to
extract information from a person. Torture includes systematic beatings, being deprived from
sleep for several days, being subjected to electronic shock etc. My status report focuses on
various forms of torture their causes implication and effects. The title of my status report is
“Violence triumphs over custody”
I Premature death of persons in custody is always tragic. The legal authorities are
bound by the law to provide adequate necessary amenities to ensure the health and safety of
persons in their custody, including timely medical assistance, and treating the inmates in a
humane manner. Majority of the cases studied died due to natural causes, which is in accordance
with global scenario. A study in Ontario showed 41% natural deaths whereas a study in
California showed that natural causes constituted 62% of the custodial deaths] Suicidal cases
were more in the west as compared to our country.
India has made the most sincere effort for the protection of human rights by
drafting chapters on Human Rights (Part III and IV) of Indian Constitution. However there is an
idea gap between theory and practice. The denial of fundamental freedom and human rights by
the states creates the situation of political and social unrest within the country. Violation of
human rights is a global phenomenon. But the disparity in Indian Society between rich & poor,
educated & illiterate people creates the problem. The illiterate and the poor people are more
prone to suffer the atrocities and inhuman treatment at the hands of richer ones. In India one of
the most common forms of torture is custodial violence.
The violations are committed under the shields of “uniform” and “authority”
between four walls of police station. Lock up and prison, where victims are totally helpless
.Some of the common feature of violations of human rights are torture of arrested persons, the
disappearance of suspects who ought to have been in regular police custody, deaths in fake
encounters and at police stations, and under trials denied in jails for years without trials.
Extensive societal violence against women: female bondage and prostitution, trafficking in
women, child prostitution: trafficking and infanticide: discrimination and violence against
indigenous people and other communal violence. Of these, 95% were males and 5% were
females; Sixty three percent cases were reported from the Punjab zone, 27% from Haryana,
7% from Chandigarh, 2% from Uttar Pradesh and 1% from Himachal Pradesh. Eighty nine
percent deaths were attributed to natural causes, while 11% cases were due to unnatural
causes, mostly suicides.
Custodial deaths I report on India shows eleven percent of the natural deaths
were HIV positive; however history regarding their disease status was not available. Majority of
the deaths were due to pulmonary involvement, mostly Tuberculosis. Two cases were HBV
positive. Proper history was not available in the suicides/ homicides. However, it has come to
light that of the suicides, 3 were due to fall, two were of poisoning and one was of hanging. All
these cases of suicide, point to negligence on the part of person who was in charge of their
custody at that relevant point of time. Aluminum phosphide with ethyl alcohol was detected in
both the cases of poisoning. How the inmates were able to procure poison and alcohol inside the
jail premises was not known. It is these kind of cases which raises suspicion of foul play by the
jail authorities. It was observed that proper records pertaining to their medical illnesses, medical
treatment, history of any addiction, etc were not available. Many cases had a history of opium
and alcohol addiction. Some may have contracted illness during confinement while many cases
had pre-existing illnesses. In a few of the cases, allegations of negligence were made against jail
authorities, including non deliverance of timely medical assistance.
The police is required by law to investigate the cases impartially and as per
law. The police get corruption money to deviate from this impartiality in investigation of cases
and the accused, if he is not rich and powerful, is always on the wrong side of the deviation from
impartially. “The chairman of NHRC said that 60% of the arrest made by police is
unnecessary and unjustifiable. Even in heinous offences, rate of acquittal is more than 80%
(TOI 14.03.99)”. Here the custodial violence is required to extract false confessions, planted
recoveries, stock witnesses, planting of fake evidences etc. to make the case against the accused.
Generally the accused is not treated as per law by the police. To stop them from making
complaint to higher authority or to the courts, it is required to break the will of the accused.
There also, custodial violence is a handy tool in the hand of police. Through custodial violence,
fear can be breaded in the mind of the accused and his family members so that no complaint is
filed against the erring police officers. Not surprisingly, in a miniscule small number of cases
any complaint is filed against erring policemen in our country when the stories of custodial
violence are an open secret.
Another point we should keep in mind that it is only the poor and less fortunate
persons against which custodial violence is used. Barring some exceptions, it is never used
against rich and powerful persons or noted criminals. Stories appear every day how big criminals
are living in luxury in judicial custody in various parts our country. Politicians prefer to stay in
plush guest- houses when in judicial custody, all that the governments have to do is to declare
that guest house a prison for a temporary period. Everybody knows that king-pins of stamp paper
scam were staying is plus flat in up market Mumbai, while staying in the custody of the police.
Then the question comes, why is it used only against poor and petty criminals? One obvious
reason is that they are not in a position to protect themselves (protection from whom!), which is
true also but reasons are much deeper.
Though international laws criminalize custodial violence, it
enjoys unprecedented license in India. The methods of custodial violence adopted by
government officers involve gross forms of inhumanity. The allegations of incompetence,
corruption, brutalization, and being a violator rather than an enforcer of the rule of law, have all
been voiced before against the police force. But the deteriorating law and order situation and an
increasing sense of insecurity in the country have lent a new edge to these allegations. Statistics
of torture and deaths in police custody are not available because they are mostly suppressed and
only a few cases are brought to light by the press. Journalists are scared to report cases of torture
and custodial deaths because in several cases they have been attacked man handled and even
kidnapped by policemen. If the police have become vicious it is primarily because the
government has rarely considered it necessary to eliminate the practice of “ extensive violations”
of human rights of which as the national police commission noted the government is guilty. Rape
is common form of torture. According to Delhi police 14 cases of rapes were reported involving
20 polices officers at 12 police stations between 1st January and 11feburary .Gang rapes of
women are common where villages are raided by police or army. An editorial in the statesman
commented saying “police abuse women to carry out a proxy war against what their men folk
stand for”

The present system of administrative and political supervision over the police
suffers from many distortions. The amendment in Criminal Procedure Code in 1973, the so-
called magisterial control has lost its original motivation after the separation of the Executive
from the Judiciary. Complete control has now passed on to political rulers. Hence there is an
urgent need to examine the issue in depth to develop criminal jurisprudence and also to make the
police officers accountable for their acts and omissions.