Report No. 273

B. Judicial Response

5.9 In the year 1961, the Allahabad High Court had an occasion to make the following remarks, in a case pertaining to police behaviour: That there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force. 'Where every fish, barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks.

5.10 The State of Uttar Pradesh filed an appeal before the Apex Court for expunging these remarks, and the appeal was allowed.90

5.11 In People's Union for Civil Liberties v. Union of India & Anr.91, the Court observed: "Undoubtedly, this Court has been entertaining petition after petition involving the allegations of fake encounters and rapes by police personnel of States and in a large number of cases transferred the investigation itself to other agencies and particularly the CBI."

5.12 In Francis Coralie Mullin v. Administrator, U.T. of Delhi 92 , the Supreme Court observed:

any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21."

5.13 The Supreme Court, in Charan Lal Sahu v. Union of India 93 , interpreted Articles 21, 48A and 51A(g) of the Constitution, observing:

"In the context of our national dimensions of human rights, right to life, liberty, pollution free air and water is guaranteed by the Constitution under Articles 21, 48A and 51A(g), it is the duty of the State to take effective steps to protect the guaranteed constitutional rights."

5.14 In Kartar Singh v. State of Punjab94, the Supreme Court observed as under:

"the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. If the human rights are outraged, then the court should set its face against such violation of human rights by exercising its majestic judicial authority."

5.15 Police atrocities in India had always been a subject matter of controversy and debate. This has been discussed in detail in Prithipal Singh etc. v. State of Punjab and Anr. etc.95 In view of the provisions of Article 21 of the Constitution, any form of torture or cruel, inhuman or degrading treatment is inhibited. Torture is not permissible whether it occurs during investigation, interrogation or otherwise. It cannot be gainsaid that freedom of an individual must yield to the security of the State. Latin maxim salus populi est suprema lex - the safety of the people is supreme law; and salus reipublicae suprema lex - safety of the State is supreme law, co-exist.

5.16 The right to life has rightly been characterised as "'supreme' and 'basic'; it includes both so-called negative and positive obligations for the State". The negative obligation means the overall prohibition on arbitrary deprivation of life. In this context, positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths.

5.17 The State must protect victims of torture and ill-treatment. The problems of acute stress as well as a post-traumatic stress disorder and many other psychological consequences must be understood in correct perspective. Therefore, the State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force.

5.18 Tolerance of police atrocities, amounts to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering the cases of grave magnitude.

5.19 In Gauri Shanker Sharma etc. v. State of U.P.96, the Supreme Court held:

"it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case. The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency."

5.20 In Munshi Singh Gautam v. State of M.P.97, the Supreme Court held that peculiar type of cases must be looked at from a prism different from that used for ordinary criminal cases for the reason that in a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence. The Court observed: "Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged.

The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves.

Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system would be shaken and civilisation itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with."

5.21 The Supreme Court in Mehmood Nayyar Azam v. State of Chhattisgarh98 dealt with a case of a social activist, who agitated the issue of exploitation of people belonging to poor and marginalised sections of the society and worked to create awareness about the same, was falsely roped in criminal cases, arrested and humiliated. While in police custody, he was abused and physically assaulted. The Court held that any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Articles 20 & 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. The term "harassment" in its connotative expanse includes torment and vexation. The Court held:

"If the functionaries of the Government become lawbreakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. The right to life of a citizen cannot be put in abeyance on his arrest."

5.22 In D.K Basu v. State of W.B99 after perusing several reports on custodial violence Supreme Court held that, "Custodial violence including torture and death in lock ups strikes a blow at the rule of law which demands that the powers of executive should not only be derived from law but also that the same should be limited by law."

5.23 The Court issued certain guidelines to be followed in the cases of arrest and detention including that the police personnel carrying out the arrest and investigation must carry visible identity card showing his designation, etc., and his designation should also be recorded in the register; arresting officer shall prepare the memo of arrest at the time of arrest which should be attested by a witness preferably the family member of the arrestee and it shall also be counter-signed by the arrestee and it would show the time and date for arrest; arrestee during the period of interrogation shall be entitled to have one friend or his relative with him unless the attesting witness of his arrest is his relative/friend; time, place of arrest and venue of custody of an arrestee must be notified by the police and legal aid organisations should be informed immediately; arrestee must be informed of his right to have someone informed of his arrest immediately after the arrest; entry should be made in the diary disclosing the place of detention and particulars of the police officials having his custody; arrestee, where he so requests be examined medically at the time of his arrest in case having major or minor injuries and the arrestee should be subjected to medical examination within 48 hours of his detention; copies of Memo of arrest and all other documents be sent to the illaqa magistrates; arrestee may be permitted to meet his lawyer during interrogation and aforesaid information regarding arrest and custody shall be communicated to the police control room and shall also be displayed on a conspicuous notice board.

5.24 The Court further observed:

"failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and proceedings for contempt of court may be instituted in any high Court of the country having territorial jurisdiction over the matter."

5.25 These two requirements flow from Articles 21 and 22 (1) of the Constitution and require strict adherence.

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