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Rights and Laws Available During Police Custody

The issue of police brutality was recently brought back to light following the death of George Floyd in the United States. Soon, many across the world took to social media to highlight the problems of custodial torture prevalent in their countries.

This wave also brought out the story of Jayaraj and Fenix from Tamil Nadu, India, a father-son duo that was assaulted in police custody that eventually led to their deaths. They were arrested for having kept their shop open beyond the permitted hours and reportedly subjected to brutal torture including sexual violence, for a crime that did not even require an arrest, to begin with.

Law on Torture in India

India does not have a separate law on torture. It has signed the UN Convention Against and Other Cruel, Inhuman or Degrading Treatment or Punishment, but not ratified the same into domestic law. There was an attempt to ratify this Convention in 2010 by way of the Prevention of Torture Bill, 2010, but this Bill lapsed on account of the Parliament is dissolved.

Alternatively, there are certain penal provisions and procedural safeguards provided in the Indian Penal Code and the Criminal Procedure Code that deal with instances of torture. Indian Courts have also on occasion provided guidelines that are aimed at preventing custodial violence.

Steps to Ensure Prevention of Torture

When Arrested/Being Arrested by Police. If you have been arrested or about to be arrested, you need to know the following procedural compliances that the police must follow:

  • The police must identify themselves and bear accurate, visible and clear identification and name tags with their designations on it.
  • The police must afford you an opportunity to call your lawyer. If you can’t afford a lawyer, you can ask the Court to appoint you when from the State Legal Service Authority.
  • The police must allow you to contact your friend or family member to inform them of the arrest taking place.
  • The police must clearly inform you of the reasons for your arrest. If the arrest is for a non-cognizable offence, they must produce a warrant for your arrest signed by a judge.
  • The police must include all details of your arrest such as time and place in the memo of the arrest. You will be required to sign this memo for the arrest. Please read it carefully before signing it and insist on getting a signed copy for yourself as well.
  • If you are eligible for bail, the police must inform you of the requirements for the same.
  • As soon as the arrest is made, the police must inform the nearest Police Control Room and provide the reasons for the arrest.
  • The police MUST produce you before a Magistrate within 24 hours of the arrest.
  • You have the right to be examined for major and minor injuries on your body by a trained doctor and the police must comply with this. This examination has to be done every 48 hours if you are in their custody. This physical examination has to be recorded in the Inspection Memo and signed by the police officer. This is done to prevent violence by police while you are in their custody.

In Case of Custodial Violence

Indian law does not have specific provisions for custodial violence at the behest of the police. If you or any person you know has been subjected to violence by the police while being in their custody, your recourse under the law is to proceed like you would with any other criminal case of torture.

  • In the Case of Custodial Rape/Death/Disappearance

If a person has died or disappeared after being taken into police custody or a woman is raped by a policeman in custody, the law requires the Judicial Magistrate to conduct a parallel inquiry, apart from the one already being conducted by the police.

In case of death of a person in custody, the magistrate must have the body be sent to the civil surgeon for a post mortem within 24 hours of death. If this is not done, the Judicial Magistrate must record his reasons for not doing so. This parallel Magisterial inquiry is considered to be very important as it acts as a fail-safe in cases of evidence and/or witness tampering. The NHRC has also provided a set of guidelines to be followed to ensure proper compliance of this parallel inquiry.

The rape of a woman by a police officer is seen as an aggravated offense that carries a stricter punishment in the Indian Penal Code. In order to prevent custodial rape, it is important to know that the law forbids the arrest of women between sunset and sunrise. Such night arrest can only be made in exceptional cases, provided express permission of the Magistrate is taken and the arrest is made by a woman police official.

Conclusion

Therefore, we can conclude by saying that human rights are available to each individual, even when he is a civilian or a criminal. The prison bars cannot keep out the basic rights of an individual. It has also been established that the prisoner while in the custody of police in India is entitled to ‘Right against custodial torture’ under ‘Article 21’ of the constitution. However, looking at the current scenario in India and reports of the National Human Right Commission and other NGO’s such as amnesty international, etc, it is clear that this right of prisoners are still violated in Indian prisons on a daily basis even when the politicians deny it.

The Indian government is a signatory to the “United Nations Convention against Torture” has failed to perform its obligation to protect this right of individuals including prisoners. Every month a new case is being reported in India relating to death in police custody because of police torture. The Indian government till now has not ratified the “United Nations convention against torture” and even after the introduction of ‘Prevention of Torture Bill, 2017’ in the Indian parliament, no such legislation was passed. This shows the voluntary delay of the Indian government to ratify the convention, the main cause of which is to prevent themselves to be answerable to the united nations for the torture cases.

Thus, it could be concluded that to stop the use of torture in India, the Indian government needs to ratify the UN convention and pass the ‘Prevention of Torture bill’ that was first introduced in 2010. It further needs to amend the rules and “Police Act of 1861”, to stop the police to be a major violator of individuals right against custodial torture. Only this is the way, the use of torture can be prevented in India.

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