Harshita Raju, Delhi Metropolitan Education, Noida
“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture and fear and rage and hate. It is a desire to kill and destroy including yourself”.
-Adriana P. Bartow
When any person is been abused or tortured while being in the custody of police or the judiciary then that type of torture is known to be custodial torture or custodial violence. Before deep analysis, only custodial death was meant as custodial violence, but now various other types of violence have come in front of the eyes of the law beside death and they are rape and torture. Justice V.R Krishna Iyer, the former justice of Hon’ble Supreme Court stated that “Custodial Torture is worse than terrorism because the authority of the state is behind it”
Even though India has made various legislations to protect people from these kinds of torture but this custodial violence still continues to occur at an increasing rate. Legal provisions such as under Indian Penal Code, sections 330,331 and 348, Indian evidence Act section 25 and 26, section 76 under CRPC and 29 section of the Police Act,1861.
Custodial torture happening is most found against the most vulnerable sector of the society who is a woman. Women are considered to be the weakest person in the world, physically as well as mentally. Which makes them easy to target when they are in police custody, judicial custody or other types of detention under any authority. Violence against them is in wide numbers, such as rape, assault, harassment, abuse, molestation and even tortured to death.
In Mathura rape case it was found out that, when inmates in any kind of custody are women then the types of torture against the inmate increases. These modes are the cruellest and unspeakable type of torture. Lighted cigarettes on sensitive parts of women, sliding in iron rods with chilly powder inside the women private parts, are the modes of torture happening against the women in custody in this case. These were, not the only things which came out of this case, the children were tortured in front of the eyes of their mother, women were molested and raped by not only the custodial authority but also other male inmates of the jail. Even minor girls were not spared by these custodial staff facing animals.
CUSTODIAL RAPE AGAINST WOMEN
Rape is forbidden in the IPC, it is considered to be a great deal of infringement of women's human rights, especially in custody. Women are being raped by police in custody or being raped by the prison authorities when they are in prison without their consent or against their will or even willingness to do so. The suspects are set free and nothing has happened to them because they have authority or privileges which raises the number of people (women) in detention cases of violation of human rights.
The general terms for rape is a crime which is done against women, this is defined under Section 376 of the IPC and the Section 376 of IPC has inserted especially to protect every woman who is in custody against the detaining authorities in terms of Rape. This section acts as protecting shield for women against custodial rape. The authority from whom the women in custody shall be protected covers any police officer, any officer of staff under him, public servant, any jail staff, remand home staff, hospital staff and any other person who comes under the purview of custodial staff.
The number of custodial rapes too has not decreased in spite of the stringent provisions made in the Penal Code, Criminal Procedure Code, Evidence Act and even in the Constitutional Law of India, 1950.
ASSAULT ON WOMEN IN CUSTODY
If someone deliberately pulls a woman's veil against her wishes, it will be construed as using criminal force. Touching the body of a woman without her consent is an assault on or the use of criminal force.
Section 509 of IPC says that “whoever intending to insult the modesty of any woman utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman or intrudes upon the privacy of such women, shall be punished”.
SEXUAL HARASSMENT OF WOMEN IN CUSTODY
If a police officer utters words or acts which shows some gestures depicting a want of woman's sexual desire or sexual movement in his custody, then that amounts to sexual harassment. If the woman in custody gives consent or enjoys such gestures from that police officer doesn't really matter in this regard. The most important thing here is that the man is a law enforcement officer at that station and the female is in police custody.
RIGHTS OF PEOPLE DURING AND AFTER ARREST (INCLUDING WOMEN)
Right to know the grounds for the arrest, full details of the arrest, contact his family or friends, and to be informed of his/her rights as a person being arrested by the police. (Cr.PC, sec 50(1), 50A)
He/ She shall be produced before the said magistrate in 24 hours after being arrested (sec 56, 57, 76 of Cr.PC.)
Right to hire and consult a legal person ( Art. 22 of Indian constitution)
Woman offenders will not be arrested after dusk and before sunrise.
Exposure to harassment and torture is a breach of fundamental rights under Article 21 of the Constitution of India.
The right to get bail under the Code of Criminal Procedure, Sections 437 and 438.
Protection to women identity if a Rape victim under sec 228A of IPC.
No woman is allowed to be called to a police station or anywhere else for examining as a witness. The only place to record or investigate her will be as her residence.
Any physical searching or inspection which needs to be done against a woman, then only a female person or authority can do that. Sec 160 of CRPC
JUDICIAL PRONOUNCEMENTS RELATING TO CUSTODIAL TORTURE AGAINST A WOMEN
Padmini v. State of Tamil Nadu.
The wife was a suspect in a theft case and because of that, her husband was taken to the police station for interrogation. He was kept under police custody for 4 days and was beaten to death. The wife went to meet his husband in police custody and she was gang-raped by 11 police officers at that station. When the case was filed 7 of them were released and 4 were convicted for 10 years of imprisonment. The convicts filed an appeal before the SC of India which upheld the previous conviction. The Madras High court also provided her with 1 lac as interim compensation and a government job and accommodation.
Soni Sori v. State of Chattisgarh.
The woman over here who was sexually violated by the Dantewada Police station while being in custody was a 35-year-old school teacher, a warden and a mother to a child. She wrote a letter to SC stating that she was given electric shocks repeatedly, her clothes were taken off, she was made to stand to naken for a long time. And the superintendent of police was enjoying it by watching all this while sitting on his chair. They also abused her by saying slangs to her and watching her with dirty eyes. After this letter, she was released on bail by the SC in 2013.
State of Punjab v. Gurmit Singh
“We must remember that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female” - Supreme Court of India
Sheela Berse v. State of Rajasthan
The incident refers to custodial brutality against woman inmates alleged to have been locked up by police in Bombay. Woman inmate in police lock-up has been harassed and tortured by officers. In this case, the Supreme Court provided some Guidelines -
● Police lock-ups in which only female prisoners will be held as well as the female officers will guard them.
● Females will not be kept in prison where male prisoners reside.
● The investigation of women prisoners or suspects will not be done without the company of female police officers.
● Whenever a person is arrested, he or she shall be immediately informed for legal assistance to the nearest legal aid committee.
● The person should be told of the reasons for his arrest and right for her bail.
● Immediately after a person's arrest, the person who is arrested has every right to inform her friends and relatives about the arrest.