chapter 2 custodial violence

8/12/2019 Chapter 2 custodial violence

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CHAPTER- II

CONCEPT, MEANING AND CAUSES OF CUSTODIAL

VIOLENCE

The problem of police atrocities in India is not a new concept1. The police are the

first line of defence against criminals. The efficient work of the legal department is based

on the initial work done by police. Society has confidence in the police despite criticism as

to their philosophy of work and methods. In India every year, lakhs of people are taken in

to custody by the police2. The practices of brutality by the police in the police custody

against detainees are the suspects have largely tarnished the image of police as custodial

violence has become an intrinsic part of the police administration3.

Tortures in police custody are on the increase4. Torture in state custody flouts the

very purpose of statehood and minimal human rights guaranteed to its subject. It is an

insult to human dignity and to the state of affairs of governance of the nation. The

Malignancy of criminalization affected so much so to the police administration and there

has been a consistent and accelerated growth of custodial violence believed to have

patronage of higher icons. The concomitance being a deep rooted aberration has

manifested in to a situation giving criminals within the operating system and their abettors

a hold over the reins of administration directly or indirectly. The said reasons inter alia are,

the exaggerated adherence to and insistence upon the establishment of proof beyond every

reasonable doubt by the prosecution at times even when the persecuting agencies, are

themselves fixed in the dock, ignoring the ground relatives, the fact situation and the

peculiar circumstances of a given case, often results is miscarriage of justice and makes the

justice delivery system suspect and vulnerable.

1 Tanjeem Fatima, Police Atrocities vis a vis Custodial Violence in India perspective, The Indian Police

Journal, July/September 2003, P-83

2 S. Subramanian, Prevention of Deaths in Police Custody, ICBT Bulletin, Jan, 1994.

3 Ashirbani Dutta , Custodial Torture-A Shameless Truth Behind the bars,Cri L.J Oct 2006, p. 241

4 Supreme Court of India in the Matter of Custodial Violence, V. Malevolent Prosecution 2003.


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In the ultimate analysis the society suffers and a criminal gets encouraged. Torture

in police custody, which of late are on the increase, receive encouragement by this type of

an unrealistic approach at times of the courts as well because it reinforces the belief in the

mind of the police that no harm would come to them if one prisoner dies in the lock-up

because there would be hardly be any evidence available to the prosecution to directly

implicate them with the torture.

Being custodian of law and order, police are themselves in possession of

evidentiary records, as a result of case gets buried by the heavy weight of delinquent

policing system and the culprit escape from criminal liability in such cases5.

One of the essential functions of the state is to maintain law and order and ensure

dignity of its citizen and this function is entrusted to an agency known as Police.

Accordingly to black's law dictionary Policemeans "branch of the government which is

charged with the preservation of the public order and tranquility, promotion of public

health safety and morals and the prevention, detection and punishment of crimes.

Policeman, as a custodian of law has multifaceted rule in the society viz.

preservation of lives and property, protection of innocent against oppression and

intimidation nipping the delinquent tendencies and to act incessantly to ensure peace and

order in the society where liberty, equality and justice permeate all men are the cherished

ideals of policeman. To discharge these legitimate duties wide powers of arrest and

investigation are vested in police by law but these powers are abused by the police to

torture the suspects either to solve a crime or for sadistic pleasure which stands

paradoxically in relation to the cherished duties of the police6.

The power to arrest the accused persons is vested in the police under chapter v of

the Code of Criminal Procedure but power to arrest are abused by the police defeating the

objects of the administration of criminal justice the powers of the police to interrogate a

person flow from the power to investigate in to an offence.

5 Custodial Violence - Strippies the Human Dignity, Oct 2008, Journal , p. 95.

6 Criminal Law Journal - April 2008 - Journal Section.


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Investigation of the case is the important function after the arrest of the accused is

made, in which starts right from the filing of the IR to the submission of the case in the

court of law and involves various important steps such as the detention of the accused,

collection of the evidence, interrogation etc. the power of investigation affords the police

the occasion to perpetrate the third degree torture of suspects to detect the crime as matter

of routine.

Meaning of custodial violence:-

Custodial violence means torture in police custody the word Torturehas not been

defined in the constitution or in other Penal law of India. The term torture has its origin in

the Latin word torture which means infliction of severe bodily pain. Though irrational and

cruel on its very face torture had been in existence since the very inception of the society.

In website Dictionary, it has been defined as extreme pain or torment both mental and

physical. According to encyclopedia Britannica torture is a general name given to the

infliction of pain bodily or mental. The excessive use of force for making arrest of the

accused is torture.

Custodial Tortureis a naked violation of human dignity and degradation, which

destroys, to a very large extent, the individual personality. It is a calculated assault on

human dignity and whenever human dignity is wounded, civilization takes a step

backward. Custodial violence and abuse of police power is not only peculiar to this country

but it is also widespread.

These violations are committed under the shields of "uniform" and "authority"

between the four walls of a police station, lock-up and prison, where the victims are totally

helpless. The quality of nation's civilization can be largely measured by the methods it uses

in enforcing criminal law. In recent years, third degree torture and custodial deaths have

become an intrinsic part of police investigations and the injury inflicted on the prisoners is

sometimes unbearable. No doubt, the police officers have contributed towards the

maintenance of public order and their plans are also enforced with purity, activity,

vigilance and description. But more often that, the police officers have been abused and


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condemned for torturing the public, particularly those who are in custody and detention

and inflicting injuries to their life and property. In almost every state there are allegations

and increasing in frequency of deaths in custody, generally prescribed by the newspaper as

lock-up deaths every day, carrying reports of assault, torture, rape and death of person in

police custody.

Causes of custodial violence:-

1. Due to poor police.2. Lack of proper education and awareness on human rights laws.3. Lack of training in sophisticated method of investigation. Training of police is

archaic in content and method. The emphasis is still more on muscle than on mind.

They believe that aggressive enforcement*of law and order as a quick fix solution

to the problem of rising crime, without tackling the root cause for increasing crime.

4. Stress due to pathetic working conditions of police officers.5. Corruption due to poor conditions of service in respect of pay, emoluments and

other amenities7.

6. The greatest obstacle to efficient police administration flows from the dominationof party politics in the state administration. Its pressure is applied in varying

degrees and it often affects different branches of administration, which will be

more on police administration.

7. Lack of proper infrastructure facilities in police stations the absence of separatefemale lock-ups in many police stations making it unsafe for women accused for

detention at police station after their arrest. Added to the full, lack of proper

supervision by the superior authorities.

7 Justice V.R. Krishna Iyer, Judges Potpurrri, Universal Law Publishing Company, Allahabad, 2007,

edition 24, p. 24


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8. The growing political interference in the day-to-day working of police has turnedthe force into becoming the agents of the party in power.

9. A part of the problem also lies in the aggressive enforcement of law and order as aquick-fix solution to the problem of rising crime, without tackling the root cause for

the increase in crime.

10.There has been a malfunctioning of our criminal justice system. The basic criminallaw in the country is made up of the Indian Penal Code, the Code of Criminal

Procedure, and the Evidence Act. The fact that criminal justice system in India is in

shambles because it is archaic, obsolete and oppressive in its nature. This is because

of unhelpful laws like easy release of bail even to the desperate and dangerous

criminals, delays in court trials, which result to the over-loading of court etc. All

these definitely erode the public confidence in the legal process.

11.The lack of proper in infrastructural facilities- the absence of separate femalelockups in many police stations has made it unsafe for women accused persons for

detention at the police station after their arrest.

12.Due to trip absence of proper supervision of the senior level officials, the juniorlevel officials tend to violate the rights of the citizens.

13.Obsolescent and outdated organizational system-one of the most important reasonsfor the inability of the police system is to confirm the demands of the human rights

mandate, because of the continuance of an obsolete and outdated organizational

system. The heart of the matter is that the basis rule of the police and its structure

did not undergo any change.

14.The working conditions of the policemen. According to the lower ranks of policeofficials, their working conditions are quite pathetic. They are highly dissatisfied

with their pay structure. They do not have any fixed hours of word; family

accommodation is not available to a majority of them and their promotion


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prospectus is nil. Hence they adopt the short cut methods. It becomes difficult for

them to be sensitive towards human rights under these conditions.

15.Lack of accountability-as we see, for the past few years, there has been a total lackof control and accountability in the police system. This can be seen in

theambivalent attitude of the police to use third degree methods and the informal

detentions with the punishment of death or life imprisonment.

16.Root cause of custodial violence: Police brutality.Police brutality an introduction:-

Brutality includes any and every type of physical violence but it is not absolutely right it

includes more than that. It includes any harassment that causes suffering e.g. not allowing a

man to sleep as also rude behavior so typical of any of us who has any power, whether in

government or in a private organization over our fellow human? Rudeness by word of

mouth can also hurt. When a policeman in the U.S.A. calls a Negro boy or Nigger it is

perceived as brutality repeated calling a man to the police station or an office and then

making him wait for long hours is also brutality of a kind. Personal violence and such

harassment as cause suffering, mental or physical are taken as brutality8.

Further there is a tradition in the police to use the words Third degree for

application of brutality, only during investigation of offences. Originating from

freemasonry third degree means questioning a subject by user of torture or something

similar in order to elicit a confession or to find out all he knows. This raises the

presumption that the victim of third degree in always in police custody. The hue and try

rose against police brutality in newspapers, journals and even the legislature has thus a

sound basis. Police behavior is rightly concern of the media. But it must also be

remembered that newspaper reports, sometimes, tend to be reasonable. A couple of years

ago almost every day, the national dailies carried reports of rapes by policemen and for a

8 Shailendra Mishra, Police Brutality Analysis of Police Behavior,Vikas Publishing House, Noida,

1986, P-1.


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few months it appeared as if policemen were doing nothing but raping women then

suddenly it stopped. The reason was over. But regardless of this a general trend can be

made out. In the concern expressed about police behavior and brutality is taken for granted

and the phenomenon is described and criticized and sometimes an interest is shown in

whether things will change now politicians, bureaucrats, academicians, journalists and

policeman themselves hope and wish are expressed in lectures or policemen exhorting

them to improve their behavior. This exhortation has not achieved the desired result. The

fact is since its inception brutality has been a most tenacious attribute of the behavior of our

police. There is nothing very surprising about it up to about the eighteenth century brutality

was an integral part of the criminal administration of most countries.

Torture was an accepted method both by the people and government of dealing

with law breakers. But from the latter half of the nineteenth century it has been castigated

an India too ever since the torture commission, brutality of government officials, including

the police has been a cause of concern9.

Look of disciplinary control is not an adequate explanation of the phenomenon for

even in the good old days when the superintendent of police could hire and fire

sub-inspectors or station house officers and there was no political interference our

policemen were extensively given to brutality.

The brutality of police therefore, springs from deeper recesses than the apparent

insecurity, cussedness, inhumanity of policemen. It seems almost like an inexorable

concomitant of their role and role performance. The purpose is to try to uncover these

recesses, to try and understand why brutality has been such a tenacious ingredient of police

behavior, and why treats, exhortation, appeal, advice training nothing seems to work. The

police remain as they were much can be made of regional analysis of police behavior is

meaningless. The same police act and the same substantive and procedural criminal laws

operate all over the country order roughly similar circumstances producing similar


1986, p. 3.


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constraints, pressures and stresses and for the environment many trends it would be seem

as world wide10

.

Analytical study of the role of police:-

A particular role means a particular conduct because role means a particular part or

position which demands a particular type of conduct. The particular type of conduct is

expected regardless of who the role performer is but sometimes the conduct expected of

them is not uniform; in case of police several roles are expected of them different

occasions, as a result policemen in India perform a variety of roles.

The role ascribed by law, the role desired by their superiors including the

government the role expected by the people, particularly the victims and the role whichthey think they ought to perform.

The people are not a uniform entity; different groups of them expect different roles

e.g. students burning buses, Labour on strike, management desiring police threat to plant

and machinery, loyal workers seeking protection for going to work, teachers, the

politicians of the party in power or in the opposition or these simply out of power, the

influential urbanite with contracts the poor, the weak, with no controls the criminal

conscious of their rights. The victims, the lawyers, the judges, the list is endless. But is the

basic thing is the role that law expects the police to perform the legal situation has to be

examined first. It would be found that use of force a certain degree of violence or brutality

is legally built into the role of police and the present organization of police based on Police

Act of 1861, was not intended for rendering courteous service11

.

The present role of police is defined in the Police Act of 1861, which was based on

the draft bill submitted by the Police Commission of 1860. The Preamble to the Police Act

if 1861 stated:


1986, p. 4.


1986, p. 6.


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Whereas it is expedient to reorganize the Police and to make it a more efficient

instrument for the prevention and detection of crime12

.

Section 23 enumerated the duties of Police officers as:-

It shall be the duty of every police officer promptly to obey and execute all orders and

warrants lawfully issued to him by any competent authority to collect and communicate

intelligence affecting the public peace to prevent the commission of offences and public

nuisance; to detect and being offenders to justice and to apprehend all persons whom he is

legally authorized to apprehend and for whose apprehension sufficient ground exists.

The priorities are worth nothing. The police are not an instrument of law or Part of

a criminal justice system. Their duty is to obey all lawful orders, second to collect andcommunicate intelligence, third to prevent and detect crime.

The word offence has been defined in the Indian Penal Code of 1860, as a made punishable

either under the Indian Penal Code or under special or local thing law.

The police manuals and rules under the act further these duties:-

1. Watch and ward.2. Prevention of crime.3. Detection of crime.4. Prevention of breach of peace.5. Bandobust on the occasion of important religious festivals and public gathering to

prevent clashes between different communities.

6. Control of traffic.


1986, p. 7.


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7. Guards and escorts.8. Protection public property.9. Duties enjoined by the various special and local laws such as Gambling Act 1867,

Explosive Act 1884, and The Indian Railways Act 1890 etc. This role of police was

neither a transplant from the U.K. nor an innovation for even before the British.

There was a police organization in India and the officers who formed part of that

organization had been performing similar functions13

.

The basic concepts in ancient India were of dharma and danda and there were

functionaries to ensure the operation of danda. Dandaniti was an important ingredient

of state craft. It was not a transplant from the U.K. because the legal definition ofPolice rule in the U.K. is totally different from what obtains in India

14.

As compared to this the essence of the legally prescribed role of our police is that:-

a) It prevents and detects crime as defined in the substantive criminal law ofthe country which means to Indian Police Code and local and special laws,

in the manner prescribed in the procedural criminal law which means the

Code of Criminal Procedure.

b) It collects intelligence affecting the Police Peace and what intelligenceaffects the public peace is for the executive to decide because the Police are

firmly an instrument of the executive and not merely a law enforcement

agency.

c) Its organization and discipline are centralized in the hands of the state and insome ways the central government.


1986, p. 10.


1986, p. 11.


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d) It is patterned after the army and to that extent is not really a civil police.The Sind Police Model of Sir Charles Napier copied by the Police Act of 1861, was

based on the Royal Irish constabutory and not anything that the English had in their own

countries, for colonies a separate set up, the gendarmerie as against the kin police was

devised naturally the first duty of any such police is to obey orders and the concept of force

is an essential ingredient of it.

To discharge this role the powers the Indian Police have are basically these of arrest

and search but application of force is expected of and permitted to police under certain

circumstances should a person resist arrest or attempt or evade it the police officer may use

all means necessary to effect the arrest on the use of all means the limitation is that these

means should not cause death of the person unless that person is accused of an offence,

punishable with death or with imprisonment for life15

.

Application of force, which means brutality e.g. hitting people with canes and lathis

is legally required ingredient of the role of police. All inquiries particularly, judicial

inquiries held on police handling of a law and order situation try to determine if the force

used was the minimum necessary as warranted by the situation or not.

In addition to the specific provisions empowering police to use force is the general

right of private defence. It is often not realized that the right of private defence (Section 96

to 106 of the Indian Penal Code) is not merely available to all citizens it is also available to

policeman and under its protection the police also can even kill the source of threat.

Unlawful aggression can be repelled with violence by all and the police often use the right

of private defence in cases of encounters with dacoits and extremists. As in cases of police

brutality it is a question of unnecessary force the exercise of this tight gives a convenient

degree of latitude while a logical corollary of this right is that the violence used to repel

unlawful aggression should bear some relationship to the degree of harm sought to be

15 Section - 46(2) and 46 (3) of the Cr.P.C. 1973.


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averted, in actual circumstances the victim of a threat cannot really be expected to assess

how much violence is proportionate to the threat he is faced with17

The framers of law expected that these provisions would enable the 'timid' people

of India to become bold enough to defend themselves and their property. The people have

generally been unable to use this right. The reality of policemen and courts discourages the

exercise of this right by the people. Except for cases like villagers killing dacoits by and

large the police arrest the person, prosecute him in a Court of law, and only if he is able to

establish his right of private defence in the court is he freed from the rigors of the criminal

justice system. A person who kills another person in self-defence, both have to undergo the

same harassment, humiliation and prosecution at the hands of the police and law courts16

The government

What our political leaders expect of the police can be seen in their speeches

particularly at police parades and during debates in legislatures. At the passing out parades

the emphasis is on good behavior, impartiality, efficiently and honestly to improve

police-public relations and particularly in the seventies and after on protecting the weaker

sections of our society against denial to them of their rights and liberties as guaranteed in

the constitution.

On 17 Nov 1975 the Prime Minister said that the police must try to command the

respect of the public. A special effort was required to bridge the gap between the police and

the public as also to comprehend the rapid socio-economic change taking place in the

country and concomitantly to change the attitude. Addressing I.P.S. probationers on 23

Nov 1976, the President said, that the primary duty of any government servant is to

safeguard the rights and liberties of weaker sections of the society the police must earn


1986, p. 13.


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public satisfaction by their performance and improve their image by impartial and quick

discharge of their duties17

.

The police must narrow the gap between their performance and public expectations

and senior officers should ensure that their subordinates are restrained courteous and

considerate in their treatment of complainants and witnesses and human in their treatment

of offenders, abjuring the use of third degree methods. During various discussions of major

tragedies such as mass murders, liquor tragedies and also the police budget, the emphasis is

a failure to maintain law and order and to control crime. Police behaviour also comes in but

law and order takes priority. Law and order, however means more than maintenance of

public order. The commission of a gruesome so crime and failure to check it provokes

charges of breakdown of law and order18

.

So basically four things are expected of police19

:-

1. Maintaining law and order.2. Controlling crime.3. Improving police-public relations by improving their image and working honestly

efficiently and impartially.

4. While impartial enforcement of law is expected policemen should pay particularattention if the victim is from a weaker section of society.

While these expectations are unexceptionable the business of controlling crime often

works at cross purpose with the objective of improving police-public relations.

Maintaining law and order frequently means using force against agitating groups of people

17 Shailendra Mishra, Police Brutality Analysis of Police Behavior, Vikas Publishing House, Noida,1986, p. 16.


1986, p. 17.

19 Lok Sabha Debates: March 1978, 1979 and 1980 Sardar Vallabhbhai Patel, National Police Acdemy

Megazine generally issued of the year Vol. XXVI No. 2.


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and during the activity of police can only make negative contribution to police community

relations etc20

.

Section -31 of the Police Act 1861 speaks of the duty of keeping order in various types

of places, thus maintenance of order has also been considered an important duty of police.

The U.N. congress on the prevention of crime and treatment of offenders held in 1970 had

identified the following criminogenic factors, urbanization, industrialization, population

growth, internal migration, social mobility and technological change.

All these factors are present in India in varying degrees and none of them is susceptible

to police activity or influence what is more in a democracy, these factors should not be

vulnerable to police influence or activity. Another aspect of prevention is deterrence. There

is no doubt that certainty of detection and certainty of punishment deter crime but while the

former is within the control of police the latter involves, together with police, the

prosecuting agency and law court further it is now being increasingly believed that one

way to prevent crime is to resocialize the offender21

.

All laws create crimes and if more and more of the human conduct are categorized as

criminal, even an ideal criminal justice system, including the best possible police cannot

prevent commission of more and more crimes. This is particularly true of those social laws

which create crimes and if more and more of the human conduct is categorized as criminal

even in criminal justice system, including the best possible police cannot prevent

commission of more and more crimes. This is particularly true of those social laws which

create the category the victim less crimes, such as gambling, drinking liquor where there is

no aggrieved party to complaint it would be seen, therefore, that the role of police in

prevention of crime is also considerably limited22

.


1986, p. 19.


1986, p. 20.


1986, p. 21.


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Successful investigation of an offence should mean only the prosecution of the

offender in a court of law. Section 23 of the Police Act 1861 speaks of the duty of police to

bring offenders to justicenot to secure their conviction. In any case, the prosecution

agency is important to the outcome of the trial and therefore it is not within the exclusive

competence of police to secure convictions. After the prosecution agency come the law

courts, the primary features of which today are harassing procedures and inordinate delays.

The trial procedures are calculated to deter witnesses; they are meant for lawyers

particularly defence lawyers.

On account of the way a witness is treated by the court staff believed to be uniformity

corrupt, his time wasted, harassment caused to him by asking him to come at 10:30am and

recording his statement only at 4:30pm repeated adjournment, inquisitorial cross

examinations, no normal citizen would like to get involved many police case and yet the

success of the entire system depends on public cooperation. This basic and crucial

contradiction of our criminal justice system creates several practical obstacles for police.

Actually the pendency has been increasing from year to year. To success full law

enforcement this delay causes grievous harm. The accused who cannot afford bail may

spend varying periods in jails as an under trial where he might be lodged with convicted.

Criminals and on account of the impact those criminals leave upon him might find itdifficult to merge back in security. This means more criminals the witnesses of a criminal

case may either become untraceable or close interest in the case be won over by the

accused or forget the whole thing23

.

The position of the correctional services is also not heartening although there were

probation acts in some states before independence. The parliament in 1958 legislated the

probation of offenders Act applicable to all the states and union territories in the country.

The concept of probation is intended to protect first offenders from the contamination of

prisons and probation officers are expected to place before the law courts the


1986, p. 23.


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socio-economic, background, personality and behaviour of the offender to enable them to

decide whether the offenders should be sent to prison of can under certain conditions be

allowed to return to the community, Should subsequent reports indicate any failure on the

part of the person released on probation, the initial sentence which was suspended can be re

imposed without further trial. But the actual application of this act on account of too many

cases and too few probation officers has been far reaching24

.

The output of police effort depends on system and situations outside the police

organization. There should be no question of police successfully maintaining order and

controlling crime all by themselves to illustrate the role of police in law and as per its place

in the criminal justice system is in regard to dacoities, to investigate the cases, arrest the

offenders and after collecting such evidence against them as may be available put them up

before a court of law. The fact that no person would stand in a court of law against dacoits,

particularly if part of gang is free and is operating, cannot modify the role of police. Even if

all dacoity cases are acquitted by Courts of law it is not for the police to find ways and

means to get around this situation. But this limitation on the role of the police is not

accepted by anyone, victims, government and policemen. This is basic role conflict the

resolution of which leads to conduct outside and against the law of land; dacoits are shot in

encounters goondas administered a beating and had characters paraded through the cities

on donkeys their heads shaved, all example of unnecessary force.

Role conflict also arises from the organization of the police as an instrument in the

heads of the executive plus the inertia of tradition.

In 195025

, the constitution of India set up a welfare state seeking to safeguard the

liberty of thought, expression, belief, faith and worship, assuring the dignity of the

individual and providing social, economic and political justice. In furtherance of these

objectives were enshrined the fundamental rights and the Directive principles of state


1986, p. 24.


1986, p. 26.


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policy in the constitution itself. Towards these national goals what contribution could

police make? Could they safeguard fundamental rights if the government that be sought to

curb them? In fact the role of police has sometimes been directly opposite to this an

occasions when they have been used to reduce the rights of the people, either directly of

indirectly by assisting other government agencies which sought to encroach upon them.

While public cooperation had been essential for police even before independence,

democracy and a welfare state mode it crucial for now it was government by consent and

the enforcement of all laws and in particular, welfare legislation, depends on the good will

and support of the people.

There was no question of enforcing laws upon the people. Laws had to be

enforced to further the dignity of the individual, to endure that the rights of the people were

not violated. This support was however held at bay by the crudities of the criminal justice

system and the role of police together with its outlook and odious behaviour as the punitive

arm of the government. Such an instrument could only have adversary relations with the

people. Even the traditional test of police efficiency. The number of criminals the police

was able to catch and got convicted, further can firmed the view that the police were for

punishing.

Within a criminal justice system also there are conflicts. The common objective ofwhat can be called controlling crime and criminality is not pursued by the components of

the system; each component pursues its own organizational goals. The concern of police is

for control of crime; the concern of law courts is with the due process of law. Thus police

oppose bail but the courts grant it liberally, the police seem concerned about the victim of

crime. The courts about the rights of the accused. The police think the law courts look for

opportunities to acquit criminals, the courts feel that police investigations are often shoddy

and they also make indiscriminate arrests. The correctional administration finds the police

too repressive and conservation in its attitude towards criminals, the police think the

correctional services are too generous in extending their resocalisation approach to various

types of criminals.


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These conflicts within the system put severe constraints on the successful role

performance of police e.g. conviction percentages. The liberal attitude shown by the

Courts while granting bail is one of the main hurdles faced by the forces of law and order in

the drive against dacoits, an officials spokesman said yesterday, says the statesman26

. It

seems during 1981, the police arrested 12,314 dacoits of whom over 8,000 secured bail.

Phoolan Devi, the scourage of benami was arrested on a charge of dacoity on Jan 6, 1979

but was enlarged on bail. An associate of Gabbar dacoit, Maya, was arrested on Jan 1, 1979

but was released on bail. The dreadful dacoit's leader of the time Makhan Singh was

arrested twice but released on bail.

One Amar Singh was granted bail three times when he appealed against his

conviction on a murder charge he was during the pendency to the appeal, released on bail.

Next he committed a dacoity was arrested then released on bail; next he committed a

docility and murder was arrested and yet again released on bail. He has not been caught

again. In fact the criminal justice system does not operate as a system27

.

Violent behaviour and a certain degree of brutality are in hercent in the role of

police, but because this role has to be performed is a sub system of a larger system when

the various sub systems work either in isolation or in conflict the use of unnecessary force

of crude behaviour such as offensive language becomes a part of the pattern of roleperformance by the police.

The causes of police brutality

The commission has found one reason for police brutality in the lack of training of

constabulary who too frequently were permitted to investigate cases. The utterly

inadequate training given to constables, the general absence of any attention to the

26 The Stateman (New Delhi) February, 1982.


1986, p. 27.


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19

necessity for keeping the temper, being civil and respectful to the public, avoiding brutality

or unnecessary harshness28

.

Before the Punjab Police commission a number of policemen deposed as witness

on the subject of third degree methods among other things. A Sub-inspector said that

marpeat was done for the benefit of the public, without it the man would not come out with

the truth. According to Inspector when some officers lost patience they resorted to third

degree methods.

A Superintendent of police said this was the easiest way of working out crimes;

because of these method suspected criminals readily confessed their guilt.

An Assistant Inspector General of police said policemen thought they were by usingthese methods, discharging their duties more efficiently. Members of the public

complained against those police officers who did not torture of beat up suspects, adding

that these offices were not making a serious effort to detect crime; giving up these methods

would result in deterioration of the law and order situation and crime would go up and

criminals would escape punishment in a large number of cases. A secretary to government

said the people have come to believe that when a Station House Officer is 'weak' crime

situation deteriorates courteous behaviour with a suspect would convey an impression of

weakness29

.

In the mass of literature on police behaviour and police community relations the

following causes are mentions:-

1. Policemen are rude and brutal in their behaviour because they are like that and it isa part of their tradition.

2.

Because they generally deal with criminals.

28 Report of the Indian Police Commission 1902-1903 Para-24.

29Report of Punjab Police Commission 1962 P- 61, 62.


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20

3. Because they are looked down upon by people and so whenever they have achance, they try o rescue their self- respect by being aggressive and rude.

4. Because they are frustrated and alienated.5. Because this is what they learn within the organization.6. Because they come from the lower strata of society.7. Because they have long working hours within adequate compensation.8. Because their training is defective and out of date.9. Because there is no other way to function. Most policemen opt for the ninth clause.

They do not think there is an alternative, but the other causes also need examination

if only to reach for remedies.

The Tradition

Much has been made of the colonial tradition of our police. During the Raj the police, as an

instrument of the executive, were an instrument of oppression by the rulers, the people

were meant to be oppressed, surprised, beaten up, tortured, lathi charged and fired upon,

particularly if they opposed the sarkar or any instrument of it. After Independence they

failed to learn that they are not merely instruments of the government but also the servant

of the people and that in a democracy dissent is valid indeed required. During the struggle

for independence, there were hardly a known congressmen or public injury or mental

humiliation at the hands of the police, but in dealing with the terrorists and conspirators, the

police methods were more harsh and severe30

.

Thus something I there in the 'traditional' explanation but its tenacious hold on

police behavior, more than thirty five years after independence and democracy is per se

30 Report of U.P Police Commission 1960- 61 P- 2.


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21

baffling. Putting the entire blame on the past, it must be admitted, is an explanation

convenient for all accused31

.

The Subculture

The police subculture is the sociological side of the same coin but appears

scientific and academic rather than historical amounts to be the belief that a policeman

reacts to a situation in a manner peculiar to him as a policeman and thus different and

identifiable from how other people would react to the same situation. The subculture of our

police includes brutality. The police subculture is strengthened by alienation, cynicism,

law esteem in society, a degree of pariah felling, conflicting demands made of policemen,

inconsistent judgment of their work, all forcing them in to corner, their backs to wall32

.

But alienation is a common feature of the police all over the world. One peculiar

problem is that no value system, within the subculture is allowed to develop on account of

role conflict, conflicting standards of judgment and a steady dehumanization that affect all

policemen.

The dehumanization results largely from the compulsion of job performance, the

role that they have to perform regardless of what is proper, lighter expected by law and

society. The result is cynicism.

Policemen from apparently good families very rapidly pick up that what the law

requires is one thing but what has actually to be done to obtain results is another, the law is

that third degree is not permitted, but in practice that is the only way. Very often the people

themselves expect the police to beat up goondas and when this is not done, charges of

bribery and corruption are hurled. People complaint that police are partial in their conduct,

but policemen learn that while under the law all are equal, as things happen, a rich man is


1986, p. 51.


1986, p. 52.


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22

different from a policeman or one who has the support of a politician, a bureaucrat different

from an ordinary citizen33

.

During the course of handling the agitation, policemen also suffer injuries but at the

end of it all while cases against trendy elements who had burnt buses, destroyed private and

public property and assaulted and hurt policemen on duty are withdrawn, amounting

demand is made for a judicial inquiry against police brutality.

During occasions of collective distress such as natural calamities, Policemen work

day and night to render whatever assistance they can put, as they perceive the situation,

there is seldom any appreciation shown by either the people or the press. The same happens

on occasions of religious festivals, fairs and miscellaneous public gatherings. If out of a

hundred things one thing goes wrong that alone is highlighted and even an enquiry is

instituted which generally causes enormous harassment. When policemen kill dacoits in

encounters, the hearts of the learned bleed for the dead dacoits that they were killed in fake

encounters, but when dacoits kill policemen no one has a word to say even in sympathy and

the announcement of a grant to the family of Rs.5000/- is supposed to suffice.

Brutal behavior is inevitable consequence. Most police officers in India hate their

job and would not like their children to be policemen.

In fact the dehumanization of policemen, the creation of cannibal class whose

occupation is to move with the drags humanity, to experience in depth the most odious

evils of society is the real cost of policing and one that is seldom worked out. Compared to

this the budget figures are a grotesque irrelevance.

Pressure

A very important reason for the continuing brutal behavior of policemen is pressure.The sources of pressure are several but basically they relate to performance or output

beyond the narrow confines of police relend inspite of the constraints an adequate role


1986, p. 53.


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23

performance. Policemen are out on the road so they deal with crime and disorder not on

bits of paper but in the raw, directly. This generates enormous pressure both from the

people and the government. If dacoities increase, if people in villages cannot sleep out of

fear of dacoits, if public buses are looted, the passengers robbed en masse at the point of

knife or the muzzle of a gun, the cry is for police action, the advocacy, all parts of the same

system, have a role is not even thought of. It is for the police to control dacoities, they

cannot hide behind the plea that arrested dacoits are repeatedly released on bail. That no

sane person would give evidence against a dacoit so that acquittal from a court of law is a

foregone conclusion. That in the adversary system of trial that we have truth is not the

concern of lawyers as even if they know their client is guilty had killed a man or raped a

woman, their task, as defence lawyers, is to secure his acquittal34

.

In addition to the constraints of the system are the constraints arising out of its

actual operation. There are many ways in which the outcome of police effort depends on

what other subsystems do. Simple delays can render in fructuous the entire police efforts as

they lead to deterioration of evidence and thereby reduce the chances of conviction in a

court of law. Medical and legal reports are often received very late. In one state a field

study found that post mortem reports of murder cases had not been received by the police

even after the lapse of a year. Test identification parades are often delayed considerably

various courts have that a delay of two months, sometime seven up to 20 days, between the

arrest and holding of the test identification parade defeats the purpose of such a parade35

.

Securing conviction in a court of law also depends upon the availability of witness

and how steadfast they are as things are our system of investigation and trial positively

discourages any citizen from participating in it as a witness and even if a person does agree

to be a witness enormous pressures are mounted upon him by the accused to change his

testimony. These pressures range from straight offers of money many witness, threats and

intimidation by the accused who is most likely to be o bail to delay in trial due to frequent


1986, p. 54.


1986, p. 55.


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24

adjournments sought by defence lawyers until such times the witness realizes that he would

continue to be harassed by frequent summons for appearance in the Court until he is willing

to terminate the case by changing his evidence. In our system, a person is presumed

innocent will be proved guilty and onus to prove lies upon the prosecution. This

presumption of innocence gives rise to constitutional and legal rights38

.

Lust of money

This is most hateful reason for brutality and one that seems to be on the increase. At

the level of the police station a number of policemen use brutality to extract money from

suspects and innocent persons. The legal situation and nature of evidence facilitate the

process of making the station house officer very powerful and giving what he does an air of

finality. This air of finality gives him the unintended power to extract money and escape

the correlative process of supervision. Directly from the law of the land he derives his

powers not from senior officer.

Stress

In India, the presence of stress among policemen is felt but not recognized as the

major enemy of law enforcement professionals as yet. Media reports of police brutality and

indiscipline can be perceived as warning signs of job stress, emphatically pointing to the

mismanagement of this crucial problem so far. Job stress is phenomenon which is

unmistakably part of mankind is work environment. The policemen's work environment

also does not escape from this reality. Though work stress is not necessarily a negative

phenomenon and if managed purposely can be instrumental to effective performance

excessive stress can produce adverse affects and thus needs to be prevented. Especially

with regard to a vital social agency like the police, the negative implications of

occupational stress assume greater significance36

.

Society views the police not only as a law enforcing agency but also as an

instrument of social service, an agent of social change and the protector of the rights and

36 Dr. Pragya Mathur, Stress in police in India, Gyan Publishing House, New Delhi, 1990, p.9.


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25

duties of the people. The numerous incidents of police brutality and high handedness

excessive use of physical violence and verbal abuse, negative image of the police as being

discourteous, in human, sadistic and in efficient prompt a curious observer to look beyond

the surface and discover the underlying strain that exists. The highly paradoxical nature of

the policemen's job makes it like tightrope walking and deserves a closer security than is

accorded to it so far in our country37

.

With the growing incidents of crime and widening role expectations the mental and

physical health of police personnel assumes greater significance than before. Stresses may

be triggered from social change, economic conditions, police organization, and the total

criminal justice system, the demands made on policemen's time and of their families who

are also experiencing stress, the job of policemen in general and from the cumulative and

interactive effects of these stressors38

.

Neglected family life

The policeman's neglected family deserves more attention than it has received so far

in studies related to the police. A heavy toll is exacted from the wives children and relatives

of police personnel by the stressful aspects of police work. Kroesal (1974) in their survey

of 81 married police officers found that 79 of them felt police work had an adverse effect

on their home life. It is important to recognize that the spouse and family are significant

contributors to the success or failure in a law enforcement carrier. Marital and family strife,

discard and unresolved emotional problems can negatively influence the police officer's

development motivation, productivity and effectiveness. An unsatisfactory home life can

adversely affect there job performance and dealing with the public. An urgent need to

identify and overcome difficulties leading to marital discard and conflict among police

personnel in India exists39

.



39 Dr. Pragya Mathur, Stress in police in India, Gyan Publishing House, New Delhi, 1990, pp. 29-30


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26

Job Boredom

Law enforcement has often characterized as entailing much boredom. Long periods

of physical inactivity and repetitive work may induce boredom. Cooper and Marshall

(1976) emphasized the vital interaction of the job with the employee and that measures of

overload and under load stem from the worker's perceptions40

.

Quantitative work overload

Work overload is also a reason of a stress. In India, the strength of police personnel

per unit population of 1000 was observed to be 1.4. The National Institute of Mental Health

and Neuro Science (Bangalore) submitted a report 1996 to the BPRSD on mental health

problems among police personnel. Almost three fourths of the policemen pointed out thatdependence on alcohol and intoxicating substance abuse is a necessary evil for tern since

they have to toil for more than 12 hours daily without weekly offs41

.

The excessive amount of paper work, the disproportionate number of cases handled

per police station and the quantitative overload is too well known in India to deserve

lengthy discussion here.

As compared to the US and UK the policemen in India is carrying a burden much

heavier than he is trained or expected to.

Noxious Physical Environment

The physical work environment of the police exposes them to dangerous equipment,

high levels of air pollution that are too hot and too cold, exposure to excessive noise and

has also been included in the present study as a stressor. According to a study conducted by

central road Research Institute and the All India Institute of Medical Sciences (1990)

Traffic policemen exposed for long hours to artho exhaust gases suffer from lung




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disorders, reduced breathing capacity excessive carbon monoxide in blood and several

other ailments42

.

Hindustan times, (13-12-1990), policemen are a high risk group exposed to a

physical working environment which also deserves greater attention than it has received so

far.

Communication Quality

Relations with superiors, complaints about administration such as police concerning

work assignments procedures and personal conduct and braking support of patrolmen

including the relationship and report between patrolmen and administrators are included in

the area of communication quality. The quality of interaction and exchange of informationplay a key role in the world of work of a police officer. Styles of supervision,

communication vary tremendously. Clarity of communication regarding job expectations

defines the communication quality43

.

Praise

Recognition and compensation, incentive or reward for work well done is extremely

limited in law enforcement. One can count on being reprimanded for poor performance,

but good performance some how stands as the norm of expected behaviour. A negative

public image, insensitive handling and complaints against the police by the public further

compound the issue of lack of recognition. Neither the law salary, nor the facilities/ made

available to the personnel, nor the treatment meted out by senior personnel, provided

adequate compensation for the high stress job done by the ordinary policeman. Personal

effort is rarely accorded due recognition and outstanding performance rarely receives any

attention the administration44

.

42 Dr. Pragya Mathur, Stress in police in India, Gyan Publishing House, New Delhi, 1990, p. 31.

43 Dr. Pragya Mathur, Stress in police in India, Gyan Publishing House, New Delhi, 1990, p. 32.



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Reward Inequity

Most policemen believe that what they do is important, but they are also very

conscious of important, but they are also very conscious of their law social status and the

public opinion of them Cterrito and Vettor, (1981), given the amount of effort both in terms

of time and energy, the policeman gets inadequate reward. The police with 28 other

stressed occupations and found that the police showed the greatest degree of dissatisfaction

with their pay.

Role Ambiguity

Most of those who have analyzed the police role have noted that on the street level the

jobs are fraught with contradictions and in consistencies. There is uncertainty about thescope and responsibilities of the job and the expectations of coworkers. Expect for general

statements like enforce the law and maintain order, the duties of the police officer depend

upon such diverse factors as the oath of office, the law court decisions, departmental

policy, in formal quota systems, the political climate, community pressures, common sense

and personality of the chief of police.

Tackling Problem of Custodial Violence:

Custodial violence requires to be tackled from two ends, that is, by taking measures

that are remedial and preventive. Award of compensation is one of the remedial measures

after the event. Effort should be made to remove the very causes, which lead to custodial

violence, so as to prevent such occurrences. Following steps, if taken, may prove to be

effective preventive measures :

(a) Police training should be re-oriented, to bring in a change in the mindset andattitude of the Police personnel in regard to investigations, so that they will

recognize and respect human rights, and adopt thorough and scientific

investigation methods.

(b) The functioning of lower level Police Officers should be continuously monitored


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and supervised by their superiors to prevent custodial violence and adherence to

lawful standard methods of investigation.

(c) Compliance with the eleven requirements enumerated in D. K. Basu case shouldbe ensured in all cases of arrest and detention.

(d) Simple and fool-proof procedures should be introduced for prompt registration offirst information reports relating to all crimes.

(e) Computerization, video-recording, and modern methods of records maintenanceshould be introduced to avoid manipulations, insertions, substitutions and

ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem

Reports and Statements of witnesses etc. and to bring in transparency in action.

(f) An independent investigating agency (preferably the respective Human RightsCommissions or CBI) may be entrusted with adequate power, to investigate

complaints of custodial violence against Police personnel and take stern and

speedy action followed by prosecution, wherever necessary.45

45 Sube Singh v. State of Haryana 2006-Cr.L.J -1242 -SC

chapter 2 custodial violence

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