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  • Writer's pictureIRALR


This article has been authored by Khushboo Sharma, a Second Year Student of National Law Institute University (NLIU), Bhopal


When the demand for police reforms are sweeping the world, the brutality of killing Jayraj and Bennix is a poignant sign of how the disproportionate use of force has become a norm in India, leading to the horrific loss of lives. While the drafters of the Constitution guaranteed several human rights including the most important freedom to life and liberty, we had a remarkable shift from a history of oppression and horror towards one recognizing the weak and empowering them. However, they refused to uproot the hidden oppressive mentality still persisting in the system and continue with the outdated laws such as Police Act, 1861.

This article briefly discusses flaws in the legislative and disciplinary mechanism found in context with custodial violence. It further discusses the contravention of human rights as a consequence of such incidents and concludes by providing suggestions that could be taken note of by the respective authorities.

Thwarted Governmental Mechanism

The arbitrary use of power by the police authorities in the name of justice has always been in questioned. The Hon’ble Supreme Court has always been sensitive about the brutal and inhuman attitude of the police for long. In Re Inhuman Conditions in 1382 prisons v. State of Assam, it was observed that despite repeated pronouncements of the Supreme Court and respective High Courts there seems to be no letup in the custodial death and the tragic incidents of police brutality are still transpiring in various parts of the country. Moreover, it becomes difficult to cumulate evidence, as manifestly in cases of police brutality direct witness of police personnel are rarely available. This is because the ties of brotherhood amongst the police personnel persuade them to remain silent and further prevent them to disclose the evidence. It is needless to state that in D.K. Basu v. State of West Bengal the court recommended that the burden of proof in such cases must shift in a manner that it lays on the police or the investigation authority to prove that the death caused was not a consequence of any torture caused by the police.

It is pertinent to note here that to address the above-mentioned issue, the Indian legal system provides a mechanism of parallel magisterial inquiry under Section 176(1A) of the Code of Criminal Procedure (CRPC) inserted after the 2005 amendment, which mandates the Judicial Magistrate to hold an inquiry in addition to the inquiry or investigation held by the police in cases of death, disappearance, and rape in police custody. Too much despair, even after 15 years the benefits from the amended sections are not utilised, only in rarest of the rare case i.e. only with the public outrage and the higher court’s intervention, it is implemented. According to the Crime in India report of NCRB only in 20% of the total cases of custodial violence, the states have exercised the mandatory judicial inquiry as prescribed under Section 176(1A) of C.R.P.C which is an appalling figure. This implies that in a proportion of cases detained persons dies even before they are produced before the magistrate.

In addition to this, two forms of custody i.e. police custody and judicial custody are provided under Section 167 of CRPC. The reading of this section stipulates that the police custody cannot surpass the period of 24 hours. This signifies that either the police officials must complete the investigation within the given period; or obtain an authorisation from the magistrate to detain the accused for extended period, provided such time frame of detention cannot not exceed more than 15 days. Moreover, such detention can only be exercised if the accused has been produced before the magistrate.

This envisages that after the detention the accused becomes the subject matter of the state and the state must guard and protect the basic human rights of the individual. But the situation in India seems to be the other way round. Instead of acting as a guardian to them, they tend to do the opposite.

The police officials who are responsible for the murder of the father and son paid no heed to the above-mentioned procedure. They were arrested without a warrant for a non-cognizable offence and in addition to this; no examination was conducted by the authorised magistrate in respect of the injuries suffered by the accused. This is just one instance of the plethora that are reported including the brutal rape of a 13 year old by the cops. Moreover, it has been observed that according to the survey conducted by the Centre for the Study of developing Society, less than 25% of Indians have faith in the police system. This implies that the current regime has framed an despicable image in the minds of the civilians that instead of looking at the police authorities as their guardians, they even fear the idea of police stations.

Human Rights Violation

While exercising as a guardian to the detained persons, it is the duty of the police officials that the basic human rights of such prisoners are protected. However, the officials tend to abuse their power and use it arbitrarily and capriciously which in some occasions leads to deaths, rapes, and other brutal crimes. The recent brutal beating, assault, and murder of the father and son in Tamil Nadu has proved to be another such incident which has not only violated the above-stated provisions but also the human rights envisaged in the constitution. In K.S.R Dev. v. State of Rajasthan it was stated that the fundamental rights as envisaged under Article 14, Article 19, and Article 21 of the Constitution does not end even in imprisoned. Thus, the state must ensure its duty of treating prisoners with humanity.

India falls short when compared with its international counterparts on the issue of police brutality. Recently, a statement was issued by the Executive committee of Commonwealth Human Rights Initiative (CHRI) wherein the committee showed by stating that such instances as that witnessed in Jayraj and Bennix case is clear evidence of a fragmented criminal justice system. It further urged the Indian government to ratify the United Nations Convention Against Torture, 1985 to which India is already a signatory. Similarly, India has failed to comply with its obligations with Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, 1966 which stipulates that no one should be subjected to cruel, inhuman, or degrading punishments.

Way Forward

Looking at the aforementioned, it can be assessed that the existing legislative lacuna involved have had a catastrophic effect on upholding the human rights. It is evident that the State Machinery has systematically facilitated the police personnel to follow such illegal procedures and not taking proper measures for implementation. Moreover, even after signing the UN Convention Against Torture (UNCAT), India is amongst one of those five countries which has failed to ratify it. This is an alarming itself, and still there is a compelling need for the court’s intervention to provide guidelines on account of the occasions witnessed under the irrational state machinery. It is the need of the hour that the primitive Police Act, 1861 must be revised and should be formulated in such a manner to ensure justice and eradicate the use of coercive powers by the police authorities.

Likewise, to ensure transparency in the system the presence of an advocate should be made compulsory while the investigation process and an independent commission must be set up to investigate the issues of custodial violence. An attempt was also made by the Supreme Court in Prakash Singh v. Union of India wherein the court issued six major guidelines regarding the implementation of police reform based on the recommendations of the NPC and directed the Central and State Governments to implement them.

In an interview Former IPS officer Prakash Singh showed his concern stating that the dominant reason of non-implementation of these reforms is the collusive merger of the strongest formations i.e. political class and bureaucracy which tend to control the process at their discretion. These bureaucrats provides police personnel with discretionary power which is actually for their own benefits, this can be used for extents such as framing someone under false charges or escaping charges made against themselves etc. This makes it difficult for the technology and other advancement to function efficiently. The instances of such criminal political nexus was aptly put into words by the political scientist Milan Vaishav in his book “When Crime pays: Money and Muscle in Indian Politics.[i]” He traces the origin of such nexus to the Zamindari regime wherein the strongmen used to exercise its supremacy to resolve their dispute and the extension of the same was seen during the Indira Gandhi regime.

Moreover, shockingly Supreme Court did not issue a notice of contempt against those authorities who have failed to comply with the guidelines issued in the case of Prakash Singh. There have been instances wherein the court summoned the chief secretaries for defiance of its orders. The interference of SC in executive matters depicts the weak government ownership over the police administration. Thus, the directions issued by the court in Prakash Singh case should be followed to limit unjustified government interference to carry out professional and unbiased policing.

Besides, if the accused dies due to any circumstances under the police custody, video recording of the post mortem examinations should be made compulsory allowing no police officials to enter while examination. This report should later be examined by the independent commission set up by the courts and the State human rights commission. The recommendations as given by the Law Commission in 113th Report and the 273rd Report to insert Section 114B in the Indian Evidence Act must be taken into a note which provides that the court may presume that the injury caused to the accused was caused by the police personnel and as a consequence, it would bound the police officials to take necessary measures that no such incident takes place in future as then it would be upon them to prove their innocence. However, the recommendations of the committee could not find its way to the legislation as of now.

The above analysis shows that the causes of custodial violence could be numerous but the most crucial aspect is the legislative fallacy in the Indian structure. It has not only encouraged the disproportionate use of coercive power by the police authorities but also scepticism in those who believed in the rule of law. Human rights are the fundamentals for the existence of a person and the instances of custodial deaths cast serious doubts on the legislative and functioning police hierarchy of the system which threatens such fundamentals. It is the need of the hour that the suggestions envisaged above must be taken note of and active steps should be taken by the judiciary to eradicate the barbarous and invalidly legitimised conduct of the police authorities.

[i] Milan Vaishnav, ‘When Crime pays: Money and Muscle in Criminal Politics’(1st ed., 2017)

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