Human Rights and the Police: Custodial Violence

Section 46. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Section 47. Every officer arresting without warrant shall forthwith communicate full particulars of the offence or other grounds of arrest; and where the offence is bailable, shall inform him of his entitlement to bail and that he may arrange sureties.

Section 48. The officer shall forthwith give information of the arrest to a nominated person.

Section 56. It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.

Section 58. No police officer shall detain a person arrested without warrant for longer than is reasonable, and in the absence of a special order of a Magistrate under section 187 that period shall not exceed twenty four hours exclusive of journey time. This is article 22(2) in statutory form.

Section 196. Where any person dies or disappears, or rape is alleged to have been committed on a woman, while in the custody of the police or in any other custody authorised by a Magistrate or Court, an inquiry shall be held by the Magistrate within whose local jurisdiction the offence was committed, in addition to the police investigation.

Section 196 is the provision on which every custodial death case turns, because it removes the inquiry from the agency whose officers are accused.

Bharatiya Nyaya Sanhita section 120 punishes voluntarily causing hurt or grievous hurt for the purpose of extorting from the sufferer, or from any person interested in him, any confession or any information which may lead to the detection of an offence or misconduct, or to compel restoration of property. That is the offence of custodial torture in Indian law, and it corresponds to sections 330 and 331 of the repealed Penal Code.

Section 121 punishes voluntarily causing hurt or grievous hurt to deter a public servant from his duty, which is the mirror image: section 120 punishes the officer who tortures, and section 121 punishes the person who assaults the officer. An answer that names both shows that the Sanhita protects the citizen against the officer and the officer against the citizen by the same technique.

The rest of the arrest Chapter

Chapter V of the Sanhita runs from section 35 to section 62 and a great deal of D.K. Basu is now in it. The sections not already named above are these.

Section 36: the duties of the officer making an arrest. He shall bear an accurate, visible and clear identification of his name which will facilitate easy identification; prepare a memorandum of arrest attested by at least one witness, being a family member or a respectable member of the locality, and countersigned by the arrested person; and inform the arrested person, unless the memorandum is attested by a family member, that he has a right to have a relative or friend named by him informed of the arrest.

Section 37: the police control room. The State Government shall establish a police control room in every district and at State level, designate an officer to maintain the information, and prominently display on a notice board the names and addresses of persons arrested and the names and designations of the officers who made the arrests.

Sections 36 and 37 are guidelines one, two and eleven of D.K. Basu, enacted.

Sections 39 to 45: how and by whom an arrest is made. Arrest on refusal to give name and residence; arrest by a private person; arrest by a Magistrate; the special provisions for arresting a person against whom section 35 conditions apply; the power to break open a place; the pursuit of a person into any place; and the power to break open for liberation.

Section 55: arrest through a subordinate. Where an officer in charge of a police station or an investigating officer requires a subordinate to arrest without a warrant otherwise than in his presence, he shall deliver an order in writing specifying the person to be arrested and the offence or other cause, and the officer making the arrest shall notify the substance of the order to the person and, if required, show it to him.

Sections 48 to 54: what follows an arrest. Information of the arrest to a nominated person; search of an arrested person and of premises; the seizure of offensive weapons; section 51, examination by a medical practitioner at the request of a police officer where an examination will afford evidence; section 52, examination of a person arrested for rape by a registered medical practitioner; section 53, examination of every arrested person by a medical officer in the service of the Government, or where none is available by a registered medical practitioner, with the report recording any injuries and the approximate time when they were inflicted; and section 54, identification of the person arrested.

Section 53 is guidelines seven and eight of D.K. Basu, enacted and made general rather than dependent on a request.

Sections 57 to 62: custody and its limits. Production before a Magistrate or the officer in charge; the twenty four hour rule in section 58; the report to the District Magistrate under section 59; section 60, that no arrested person shall be discharged except on bond or bail bond or under the special order of a Magistrate; section 61, pursuit and re-arrest on escape; and section 62, that no arrest shall be made except in accordance with the provisions of this Sanhita or any other law providing for arrest.

Sections 168 to 173: preventive action by the police. Every officer may interpose to prevent, and shall to the best of his ability prevent, the commission of a cognizable offence; an officer receiving information of a design to commit one shall communicate it; section 170 permits arrest without a warrant or a Magistrate's order to prevent a cognizable offence; an officer may interpose of his own authority to prevent injury to public property; all persons are bound to conform to the lawful directions of an officer in the discharge of his duty; and section 173 governs the recording of information in a cognizable case, which is where an arrest usually begins.

The point to take. Between sections 35, 36, 37, 38, 53, 56, 58, 62 and 196 the Sanhita has absorbed most of the custodial safeguards this chapter's two decisions created, which is the strongest evidence in this book for the proposition in [Judicial Activism and the Protection of Human Rights] that the Court bridges and the legislature follows.

The guidelines

D.K. Basu v. State of West Bengal, AIR 1997 SC 610.

Facts. A letter addressed to the Court about deaths in police custody and lock ups was treated as a writ petition, and a second matter was heard with it. The Court considered the constitutional and statutory safeguards and concluded that it would be useful and effective to structure machinery for the contemporaneous recording and notification of all cases of arrest and detention, to bring in transparency and accountability.

Held on the principle. The Court observed that the fact that a terrorist has violated the human rights of innocent citizens may render him liable to punishment but cannot justify the violation of his human rights except in the manner permitted by law, and that the need is to develop scientific methods of investigation and to train investigators properly.

Held: the eleven requirements, to be followed in all cases of arrest or detention till legal provisions are made in that behalf.

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

2. The officer shall prepare a memo of arrest at the time of arrest, attested by at least one witness who may be a family member or a respectable person of the locality, countersigned by the arrestee, and containing the time and date of arrest.

3. A person arrested or detained shall be entitled to have one friend or relative or other person known to him informed as soon as practicable of the arrest and the place of detention, unless the attesting witness is himself such a person.

4. Where the next friend or relative lives outside the district, the time and place of arrest and the venue of custody must be notified through the Legal Aid Organisation in the district and the police station concerned, telegraphically within eight to twelve hours.

5. The person arrested must be made aware of this right as soon as he is arrested or detained.

6. An entry must be made in the diary at the place of detention, disclosing the name of the friend informed and the particulars of the officers in whose custody the arrestee is.

7. The arrestee shall, where he so requests, be examined at the time of arrest and major and minor injuries recorded in an Inspection Memo signed by both and a copy given to him.

8. The arrestee shall be subjected to medical examination every forty eight hours during his detention, by a doctor on a panel of approved doctors appointed by the Director, Health Services.

9. Copies of all the documents including the memo of arrest shall be sent to the 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 shall be provided at all district and State headquarters, where information regarding the arrest and the place of custody shall be communicated within twelve hours and displayed on a conspicuous notice board.

Held on enforcement. Failure to comply shall, apart from rendering the official liable to departmental action, render him liable to be punished for contempt of court, proceedings for which may be instituted in any High Court having territorial jurisdiction.

Held on the source. The requirements flow from articles 21 and 22(1) and are in addition to the constitutional and statutory safeguards, and they apply with equal force to the other governmental agencies referred to in the judgment.

Why it matters. Several of the guidelines are now statutory: the advocate during interrogation in section 38, the health and safety duty in section 56, and the necessity conditions on arrest in section 35. That is the pattern of [Human Rights of Women: The Judgments] again: the Court fills the gap, and the legislature follows.

The compensation jurisdiction

Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

Facts. A letter from the mother of a young man who had died in police custody was treated as a writ petition. The State suggested that he had escaped by chewing through the rope with which he was tied; the Court found on the evidence, including the condition of the rope, that this was untrue and that it was a case of custodial death, the deceased having died of injuries inflicted voluntarily while he was in police custody at the police outpost.

Held on the nature of the remedy. An award of compensation in a proceeding under article 32 or article 226 is a remedy available in public law, based on strict liability for the contravention of fundamental rights, to which the principle of sovereign immunity does not apply, even though sovereign immunity may be available as a defence in private law in an action based on tort. The enforcement of the constitutional right and the grant of redress embraces award of compensation as part of the legal consequences of its contravention.

Held on why the remedy must exist. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law is to be real, the enforcement of the right in the case of every contravention must also be possible in the constitutional scheme; and the remedy in public law has to be more readily available when invoked by the have not, who lack the means to enforce their rights in private law, though its exercise is to be tempered by judicial restraint where a private law remedy is more appropriate.

Held, with an international reference. The Court referred to article 9(5) of the International Covenant on Civil and Political Rights 1966, that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation, as indicating that such a right is not alien to the enforcement of a guaranteed right.

The award. The deceased was about twenty two years old with a monthly income between twelve hundred and fifteen hundred rupees; a total of one lakh fifty thousand rupees was held appropriate, to be paid by the State of Orissa, with a further ten thousand rupees as costs to the Supreme Court Legal Aid Committee, and the principal sum to be placed on term deposit for three years with the interest payable to her.

Why it matters. It establishes that a person whose fundamental rights the State has violated may be compensated by the constitutional court itself, without a suit, without proving negligence, and without the State being able to plead sovereign immunity.

What has worked and what has not

An LL.M. answer must evaluate, and it can do so from the material in this book alone.

What has worked. The guidelines were converted into statute in part, which is the most durable outcome available to a court. The magisterial inquiry in section 196 removes the inquiry from the accused agency. The compensation jurisdiction is now routine and the principle of no sovereign immunity in public law is settled.

What has not worked, on the evidence in this book. The Commission's own record, in [TADA in Practice, and the NHRC's Comments], shows persons in custody untried for six years and a panel of inquiry stayed. The observation in D.K. Basu that scientific methods of investigation must be developed is the same observation the Commission made in 2000, and the same conclusion follows: the pressure to extract a confession comes from the absence of other means of proof.

And the structural point. D.K. Basu enforces its guidelines by contempt, which is a remedy the victim must invoke. Section 196 requires a magisterial inquiry, which the State must conduct. The compensation jurisdiction requires the victim's family to reach a constitutional court. Every one of the remedies depends on somebody outside the police acting, which is the right design and also its weakness.

A worked example

A man is picked up at night, no memo is prepared, his family is not informed, and he is produced before a magistrate thirty hours later with injuries. He dies in custody two days afterwards.

Which guidelines were broken? At least the second, third, fifth, sixth and seventh: no memo attested and countersigned, no intimation to a friend or relative, no notice of the right, no diary entry, and no inspection memo recording injuries.

Which statutory provisions? Section 47, the duty to communicate the grounds forthwith; section 48, the information of arrest; section 58 with article 22(2), the twenty four hour limit; and section 56, the duty to take reasonable care of health and safety.

What follows from the death? Section 196(2) requires an inquiry by the Magistrate within whose local jurisdiction the offence was committed, in addition to the police investigation.

What is the officer's criminal liability? If hurt was caused to extort a confession or information, section 120 of the Sanhita; and the general offences against the person apply on the facts.

What is the family's remedy? A petition under article 32 or article 226 for compensation, on Nilabati Behera, as a public law remedy founded on strict liability to which sovereign immunity is no answer.

And against the officers personally? Departmental action and contempt proceedings for breach of the D.K. Basu requirements, besides prosecution.

What it does NOT mean

The guidelines are not a substitute for the statute. They were expressed to operate till legal provisions were made, and several now are.

Compensation in public law is not damages in tort. It is founded on strict liability for the contravention of a fundamental right, and it does not bar a civil suit.

Section 196 does not replace the police investigation. The magisterial inquiry is in addition to it.

And section 35 does not abolish arrest. It conditions arrest for offences in the stated band on a recorded necessity.

Quick revision

• Constitutional base: art 20(3) against self incrimination; art 21 fair, just and reasonable procedure; art 22(1) and (2) grounds, counsel and production within twenty four hours.
• BNSS: s.35 necessity conditions on arrest without warrant; s.38 an advocate during interrogation though not throughout; s.43 how arrest is made, the woman's presumed submission, and the handcuff categories; s.46 no unnecessary restraint; s.47 grounds and bail information; s.48 information of arrest; s.56 duty to care for health and safety; s.58 twenty four hours; s.196 magisterial inquiry into death, disappearance or rape in custody.
• BNS s.120: hurt or grievous hurt to extort a confession or information, or to compel restoration of property.
• D.K. Basu v. State of West Bengal, AIR 1997 SC 610: eleven requirements, from name tags and the arrest memo to medical examination every forty eight hours and a police control room, flowing from arts 21 and 22(1), enforced by departmental action and contempt.
• Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: compensation under arts 32 and 226 is a public law remedy on strict liability, sovereign immunity being no defence; the remedy must be more readily available to the have not; art 9(5) of the ICCPR referred to; one lakh fifty thousand rupees awarded with costs.

Test yourself

1. What condition does section 35 place on an arrest without warrant for an offence punishable with up to seven years? That the officer has reason to believe on the complaint, information or suspicion that the person has committed the offence, and is satisfied that the arrest is necessary to prevent a further offence, for proper investigation, to prevent the disappearance or tampering of evidence, to prevent inducement or threat to a witness, or because his presence in court cannot otherwise be ensured.

2. Give five of the D.K. Basu requirements. Any five of: identification and name tags with particulars recorded in a register; an arrest memo attested by a witness and countersigned by the arrestee with the time and date; intimation to a friend or relative as soon as practicable; notification through the district Legal Aid Organisation within eight to twelve hours where the relative lives outside the district; informing the arrestee of that right; a diary entry at the place of detention; an inspection memo recording injuries on request; medical examination every forty eight hours by a panel doctor; copies of the documents to the Magistrate; a lawyer during interrogation though not throughout; and a police control room with the information displayed within twelve hours.

3. How are those requirements enforced? Failure to comply renders the official liable to departmental action and to punishment for contempt of court, proceedings for which may be instituted in any High Court having territorial jurisdiction.

4. On what footing is compensation awarded under article 32 or 226? As a remedy available in public law based on strict liability for the contravention of fundamental rights, to which the principle of sovereign immunity does not apply, even though it may be a defence in a private law action in tort.

5. What does section 196 of the Sanhita require, and why does it matter? That where a person dies or disappears, or rape is alleged, in the custody of the police or other authorised custody, an inquiry shall be held by the Magistrate within whose jurisdiction the offence was committed in addition to the police investigation; it matters because it removes the inquiry from the agency whose officers are accused.