CHAPTER 1

INTRODUCTION

1.1 Background of the study

The basic back ground of the study that is “police custody and human
right violation in India” to find out the offences which is done by the
police in illegal manner during custody, in India every day number of
complaint has reported regarding police cruelty, custodial death,
custodial torture, custodial rape etc. for preventing individual from such
type of ill practices we have to framed and adopt the policies in such a
way, so that we can secure the safety of every individual.

Observance and respect for human rights in the police process is a

positive step towards people oriented police. Principle of rule of law
preventing arbitrary use of power and mandates of the police to protect
and safeguard the rights of the citizens. Police functions are mostly
prohibitive and regulatory in nature and this leaves an impression on
the individual citizens that police interferes with the life, liberty and
freedom of the people, as we all know that it is duty of every police
personnel to preserve order and prevent from crime. Whenever there is
a violation of law it is the duty of the police to arrest d the offenders and
produces them before the court to be dealt with procedure established
by law.
 Whenever violations of human rights by police are reported it causes an
overall effect of loss of faith in the police as a protector and upholder of
citizen’s rights. The failure to respect human rights in everyday police
process alienates public sympathy and support which leads to
undermining the people confidence in police. One of studies regarding
people perception about police1 in the state of Rajasthan revealed the
fact that is only 11% interacted with the police and 89% never met with
the police among these 24% were from cities 17% from rural areas, this
reflects the huge gap between the police and public.

1.2 Statement of the problem

In India police custody and violation of human rights is one of the

emerging challenges or issues just because of the large gap between the
police and public, this comes possible due to the absence of dialogue or
communication between police personnel and public. Now, day by day
Corruption is becoming an integral part of Indian society including
police. A study which was conducted by Transparency International
India2 says 87% of the citizens alleged that they have paid bribes to
police to get the service and this study also indicates that police show
different attitude towards citizens when they approach them for help.

Corruption erodes public faith in police and undermines the rule of law,
leading directly or indirectly the violation of human rights and its
further affects the image and reputation of the individual police

1
A study which has been made by the state of Rajasthan under the heading of people perception about police
2
A study made by the transparency international India
 personnel and the police organization. The National Police Commission
also recommended that the entire police philosophy, culture and
attitude should be such as to make a police station appeal and function
as a ready source of relief for the public, this commission also pointed
out that use of force against individual in police custody in his loneliness
and helplessness is a grossly unlawful and most degrading and
despicable practice that should be condemned in strongest term.

The worst form of police excess is of course causing death to person in

custody, various National and international organizations such as the
Amnesty International, Asia Watch and National Police Commission
have commented on custodial violence and death in India. In Dalip
Singh vs. State of Haryana3 in that case the sub inspector and assistant
sub inspector were sentenced of 5 years for having caused the death of a
person who was taken into custody on an accusation of theft of cattle.
The deceased person died because of multiple internal and external
injuries caused by the police.

1.3 Literature review

 “Police and Human Rights” an article published by IGNOU (People

University) talked about the role, function and accountability of police
in a democracy. Principle of rule of law that means no one is above the
law and everyone is equal before the law, rule of law refers absence of
3
AIR(1993)2 S.C.J. 542
 arbitrary power in any institution and organization. Basically it is the
duty of the police to preserve law and order and prevent from crime and
if there is any violation of law then it is duty of the police to arrest the
offenders and produce them before the court to be dealt with procedure
established by law.

Policing is one of the essentially public services in a democracy and as we

know that whenever violation of human rights by police are reported it causes
an overall effect of loss of faith in the police as protector and upholder of
citizen’s rights. The police powers and function related to investigation
involve search, seizure, questioning, interrogation and arrest etc. These power
and function are defined by law and procedure established by law. The
National Police Commission4 also recommended that the entire police
philosophy, culture and attitude should be based on rule of law, the Indian
constitution with the ideals of equality, liberty and social justice has brought a
new perspective on the role of police in performance of their duty.

The human rights violations committed by the police takes place in various
forms that is beginning with illegal detention, arrest and false implication, use
of torture that may lead sometimes to death in custody, every year National
Human Rights Commission receives several complaints against the police.
Some extent of use of force is legally built into the role of police. The police are
permitted to use force under special circumstances mainly in case of arrest
and search, if any person who resist the arrest then police may use some
extent of force. The code of conduct for police in India is based on the

4
National Police Commission 1978 (code of conduct)
principle of necessity and proportionality that means when there is need to
use of force only that circumstances it is allowed and the force should be in
proper amount in dispersal of violent assemblies.

 “NHRC guidelines regarding arrest” recommendation made by the

National Human Rights Commission one of the higher institution
regarding promotion and protection of human rights in India, other
words we can say that what should be the steps during arrest of any
person who has committed crime.

Pre arrest:
 The power to arrest without warrant should be exercised only
after a reasonable satisfaction is reached as to the genuineness
and bonafides of a complaint; it was decided in Joginder
kumar case5 .
 The power to arrest must be avoided where the offences are
bilable unless there is a strong apprehension of the suspect
absconding.
 Police officer carrying out an arrest or interrogation should
bear clear identification and name tags with designation.
 Arrest in cognizable cases may be considered in following
circumstances.
The case involves a grave offence like murder,
dacoity, robbery and rape etc.

5
AIR (1994) 4 SSC 260
 The suspect is given to violent behavior and is likely
to commit further offences.
The suspect requires to be prevented from destroying
evidence or interfering with witnesses or warning other
suspects.

The suspect is a habitual offender who unless arrested is likely to commit

similar or further offences.

 Except heinous offences which are mentioned above an arrest

must be avoided if a police officer issues a notice to the person to
attend the police station and not leave the station without
permission.

Arrest:

 The dignity of the person being arrested should be

protected, public display or parading of the person
arrested should not be permitted at any cost.
 Searches of the person arrested must be done with due
respect to the dignity of the person without force or
aggression and with care for the person right to privacy.
Searches of women should only be made by other
women with strict regard to decency.
  The use of handcuff or leg chains should be avoided
during arrest, this was decided in Prem Shanker
Shukla vs. Delhi Administration 6
 As far as is practicable women police officer should be
associated where the person or person being arrested is
women.
 The arrest of women between sunset and sunrise
should be avoided.
 Where children or juveniles are sought to be arrested no
force or beating should be administered under any
circumstances.

Post arrest:
 The person under arrest must be produced before
the magistrate within 24 hours of the arrest.
 The arrested person should be permitted to meet his
lawyer at any time during the interrogation.
 The interrogation should be conducted in clearly
identifiable a place which has been notified for this
purpose by the governments.
 The place must be accessible and the relatives or
friend of the arrested person must be informed of the
places of interrogation taking places.
 The methods of interrogation must be consistent
with the recognized rights of life, dignity and liberty.

6
AIR(1980)3 SCC 526
  “Law and custodial death in India” an article in which it stated that
dignity of human being and the well being of all mankind have always
been a part and parcel of the culture milieu of our ancient Indian
civilization. Cruel, barbaric and inhuman punishments were totally alien
to our culture and it is important that to recognize the human rights
culture cannot be imposed it has to grow and develop from the cultural
roots of the soil.

The Magna Carta, the Petition of Rights, the Bill of Rights and Universal
Declaration of Human Rights have been the pole stars which have been
chartered the course of drafting of the Indian Constitution and various laws
particularly for the protection and promotion of human rights, our
constitution confers some important fundamental rights like rights to
equality, rights to life and personal liberty and right against testimonial
compulsion (Article 20(3)) not only Indian citizens but also for aliens. In
Maneka Gandhi7 case Supreme Court held that Article 21 requires not only
the law but also the procedure established by law should be fair just and
reasonable but we are often faced with the stark reality of third degree being
used by the Indian Police for a long time, Police excesses in India resulted not
only third degree method but also in custodial rapes and deaths. Custodial
rapes have also led to a series of amendments to Code of Criminal Procedures
and Evidence Act8.

7
AIR (1978) 2 SCR 597
8
Evidence Act 1872
The worst form of police excess is causing death to persons in custody. The
Amnesty International, Asia Watch and our own National Police Commission
have all commented adversely on custodial violence and deaths in India,
Chella Ramakenda Reddy and others vs. State of Andhra Pradesh 9was
one of the important cases regarding death of the person in police custody, in
this case Andhra Pradesh High Court awarded damages of Rs 1, 44,000 to the
dependent of the deceased who was killed in his prison cell by his enemies.
The argument made by the state government in High court “the police guards
are only responsible for preventing the prisoners from escaping” Andhra
Pradesh High Court held that under rule 48 of Madras prison rules 10 police
were also responsible for the safety of prisoners.

 “Human rights and role of police” an article presented by Ved Marwah

in which it is clearly mentioned that the police in India do often function
in an illegal manner, the question is not whether human rights violation
take place or not it is common knowledge that the large scale illegalities
by the police do take place. The question that needs to be answered is:
why do they take place in such large scale, the roots cause of human
rights violation by the police lies in the manner of its functioning in the
Indian criminal justice systems.

It is not that the police are not aware of the importance of human rights.
Human rights are the integral to the ethos of a civil society. The founding
father of Indian republic is committed towards the protection and promotion
of human rights; human rights are not the alien concepts it is also the part of

9
AIR 1989 AP 235
10
Rule 48 of Madras prison rules
Indian philosophy they were incorporated in Indian Constitution as a
fundamental rights. Therefore human rights violation by the police are takes
place every where not only India but also across the world.

1.4 Research objectives:

1. To study the custodial violence in India

2. To study the precautionary measures, policies and laws to

secure the rights of individual during police custody.

3. To analyze the role and function of National Human Rights

commission for the protection and promotion of human rights
during police custody.

4. To study the role of police while arresting of any individual who

has committed crimes.

1.5 Research question:

 1. What are the human right violations by the police or
custodial violence in India?
2. Whether human rights are being violated in India by the
police if yes then what are the important factors associated
with this?
3. Do law and policies are sufficient to restrict over such ill
practices?
4. What are the redressal mechanisms in cases of custodial
violence?
5. Role of National Human Rights Commission for the
protection and promotion of human rights and also in case
of custodial violence in India.

1.6 Research Methodology

This study that is police custody and violation of human rights in India is
purely based on the doctrinal method in which there is no field work. The data
for study I have collected from both primary and secondary sources. Primary
source are those having binding forces which include National and
International instruments and statutes, rules, regulation, by laws and judicial
decision etc. the data also from secondary sources like articles published in
general (National and International) books references and news paper. The
researcher also applied descriptive analytical method to arrive a workable
solution in a problem of police custody and violation of human right in India.

1.7 Tentative Chapterization

Chapter 1: Introduction

This chapter will introduce topic of the research and emphasized on various
aspect pertaining to the theme along with literature review.

Chapter 2: Police custody in India

This chapter will introduce the meaning, nature and concept of police custody
and the violation of human right which has been made by the police personnel
in unlawful manner during custody.

Chapter 3: Role of Human Right Commission

This chapter will introduce the role and function of human right commission
to restore those rights which has been violated by the Police during custody.

Chapter 4: Analysis the various laws which protect the rights of the
individual against the police personnel

This chapter will introduce the comparative study of various laws which are
more prevalent in India against any police personnel.

Chapter 5: conclusion and suggestion

This chapter will introduce the observation made by the researcher and also
suggestion.