Making the ‘Invisible’ visible: Custodial violence and the civil liberties-democratic rights movement in India

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Making the ‘Invisible’ visible: Custodial violence and the civil liberties-democratic rights movement in India Preeti Chauhan∗ Research Scholar, Department of Political Science, University of Delhi, Delhi, 110007, India

ABS TRA CT

Civil Liberties and Democratic Rights Movement (henceforth CLDR movement) in India has been documenting and highlighting the issue of custodial violence for long. This paper attempts to cull out the nuances of the engagement of the civil and democratic right movement in India with the issue of custodial violence over a period of time. The paper analyses some of the reports by the CLDR organizations, particularly, People's Union for Democratic Rights(PUDR) which are based upon the fact-findings done by these civil rights organizations. The fact-finding reports are examined to form an understanding of the process through which CLDR organizations approach the issue of custodial violence and the challenges therein. It also reveals the manner in which the CLDR groups foreground the voices of the people who suffered. The paper further seeks to show that the intervention of the civil and democratic rights movement on the issue of custodial violence in India made the practice of violence in custody ‘visible’ to the larger public pointing to the systematic and institutional failure of the Government to address the issue. Through its fact findings, the CLDR movement has tried to document and disseminate facts regarding torture and deaths in custody of security establishments like the police and sexual violence in custody. In this process, the movement has also continuously jostled with the given understanding on ‘custody’ arguing for an expansion of its meaning and has sought to redefine the notion of crime, criminality and punishment.

1. The police and custodial violence The Police system in India in its present form evolved under the British colonial rule in India in nineteenth century. The British enacted the Police Act in India in 1861. The Police Act of 1861 conceived of the Police as a ‘force’ and had details of how this police force is to be constituted.1 The Act wanted to re-organize and make the police a more efficient instrument for the prevention and detection of crime.2 The Act was also believed to be enacted to place the Indian population under strict magisterial control of a unified police force.3 In post-independent India, the imprint of the 1861 Act and the use of Police as a ‘force’ continued despite it becoming Indian Police Service4 though there have been concerns regarding the efficiency, functioning and various other aspects related to Police

∗

DA 507, Sheeshmahal Apartments, Shalimar Bagh, Delhi, 110088, India E-mail addresses: [email protected], [email protected], [email protected], [email protected]. 1 The Police Act 1861 available at https://indiacode.nic.in/bitstream/123456789/2264/1/a1861-5.pdf , accessed 1December 2019. p.5. 2 The Police Act 1861, p.4. 3 N. Kumari and R.K. Sharma, 'Pursuance of Core Principles of Police Reforms: A Critique', Indian Police Journal, April-September 2016, Vol.63, No.2–3, p.2. 4 The Indian Police Service replaced the Indian Imperial Service in 1948, an year after India gained independence from British rule. It is the Policing arm of the All Indian Services. It provides leaders and commanders to the state police in India. Its cadre can also be employed by the Union government in India. Though Police has been placed in the seventh schedule of Indian Constitution making it a ‘State’ subject but the central government can persuade the governments in different states of India to adopt changes in police administration.

https://doi.org/10.1016/j.ijlcj.2019.100375 Received 30 December 2018; Received in revised form 12 December 2019; Accepted 20 December 2019 1756-0616/ © 2019 Elsevier Ltd. All rights reserved.

Please cite this article as: Preeti Chauhan, International Journal of Law, Crime and Justice, https://doi.org/10.1016/j.ijlcj.2019.100375

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administration in India.5 This is reflected in the way Police has been envisaged to perform a number of functions over the years. A glance through The Model Police Act 2006 reveals the ‘role, functions and duties’ of police to be wide ranging from upholding and enforcing the law impartially to preserving public order, protecting internal security, protecting public properties, to preventing crimes to registering and investigating all cognizable offences and many more. Another important feature in this description of role and functions of police is to “protect life, liberty, property, human rights and dignity of the members of the public.”6 In performing these functions, the police also face many kinds of violent situations in which the police personnel also suffer injury or death like in situations of controlling the mob, anti-terrorist/extremist operations, anti-dacoity operations and other raids, encounter with criminals. These incidences or what the National Crime Records Bureau (NCRB)7 calls ‘Police Casualties’ are a matter of concern for the police department and the government. The respective state governments in India have different criteria for giving compensation which is paid to the family members of the police personnel killed in line of duty. Mostly the compensation is provided in the form of ex-gratia amount which is given to the families of the police personnel killed in line of duty. The Government of National Capital Territory of Delhi led by Aam Admi Party gives an ex-gratia amount of Rs. One Crore.8 This seems to be the highest ex-gratia amount paid to policemen killed in line of duty.9 In some cases, in other states in India, the government also decides to give government job to any one member of the family of the killed policeman or security personnel apart from the ex-gratia amount. It is also in pursuance of these roles and functions, that the police also overstep the boundaries of the law and takes the law into its hands which it is supposed to uphold impartially. Despite the calls for giving importance to the concerns of human rights, policing in India remains highly guided by concerns for maintaining public order, controlling and solving crime. David Bayley noted way back in 1971,10 that the police in India continued to function in the colonial mould. By this, he meant that the behavior of the police towards the people is guided by the patterns established during colonial times, that is, of controlling the trouble or criminal activity once it has taken place. It reacts to threats to law and to government but is not actively engaged in serving the peculiar security needs of the individuals. In this sense, writes Bayley, it is passive, unenergetic, impersonal and bureaucratic force. And therefore most of the times, it is in context of law violation and crime that people come in contact with the police.11 Sometimes, this contact with the police turns fatal for the suspects or the alleged accused of the crime in the course of Investigation undertaken by the police. The civil liberties and democratic rights movement has intervened to highlight these fatalities, that is, the deaths of people in custody of police. It probed them because many of these deaths and the power of the police over these persons in their custody at the time when the CLDR movement first started documenting them, went largely unchallenged and unnoticed. Unlike deaths of policemen and other security personnel in line of duty, who are lauded and sometimes also awarded posthumously, hardly any notice is taken of people who die in custody for they were in custody because of their ‘crimes’. As the analysis of the fact-finding reports in a later section of the paper would show, many of the people who died in the custody of police were from the most marginalized sections of society in Delhi. There were not many from even within the family of the deceased to fight for justice. As the most visible coercive arm of the state, violence and deaths in custody of police bring the issues of accountability, rule of law and the rights of people under custody to the fore. The CLDR movement has raised these issues through its fact-findings. In the next section, the paper briefly looks at the working of the CLDR organizations in Independent India and discusses the distinctive aspects of the fact-findings undertaken by the CLDR groups. 1.1. CLDR organizations in independent India Civil Liberties and Democratic Rights Organizations in independent India are voluntary civil society formations. The membership of CLDR organizations and the work responsibilities within the organizations are voluntary in nature. They are non-funded, that is, they do not receive any institutional and foreign funding for their work unlike many other rights advocacy Non-Governmental Organizations (NGOs) which grew as part of larger international network on promotion of human rights from the decade of 1990s in India. The CLDR organizations in India work with meager financial resources drawn entirely from membership fee, donations received from the members and the sale of their reports. This voluntary and non-funded character of the civil liberties-democratic rights movement is tied to the history of the birth and the evolution of civil liberties-democratic rights movement in post-independent India 5 Many Commissions and Committees had been formed to suggest reforms required in Police functioning. An overview of them can be found in Kumari and Sharma, Pursuance of Core Principles of Police Reforms. 6 Model Police Act 2006 available at https://mha.gov.in/sites/default/files/ModelAct06_30_Oct_0.pdf, accessed 19 November 2019. 7 NCRB functions under Ministry of Home Affairs in India and collects and collate data on crime and criminals for assisting the police in better investigation into the crimes. The official website is found at http://ncrb.gov.in/, accessed 6 June 2019. 8 The Aam Admi Party led government in Delhi took the decision to give an ex-gratia amount of Rs. One Crore to the next of kin of Defence Personnel who died in operations/war whose permanent resident address is of Delhi and to Delhi Police/Para-Millitary/Home Guards/Civil Defence personnel who died in discharge of their bonafide official duty. This decision was taken by the Delhi Government cabinet on 1.04.2015. Reference to this can be found at http://revenue.delhi.gov.in/wps/wcm/connect/doit_publicity/Information+and+Publicity/Press+Release/Chief+Minister/ Cabines+Decision%2C+24th+February+2016, accessed 1 December 2019. 9 https://www.warb-mha.gov.in/pdf/Benefits_by_stategovt.pdf , accessed 2 December 2019. In this list, the highest ex-gratia amount paid is Rs. One Crore by the Government of National Capital Territory of Delhi. 10 David H Bayley, The Police in India, Economic and Political Weekly, 6 November 1971, pp. 2287-2291. 11 Bayley, Police in India, p.2287. Bayley also writes about the need to change the policing system in tune with the requirements of an expanding, modernizing country and that the reforms of police rank and file should begin from the bottom.

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which mainly goes back to the suspension of fundamental rights and liberties, curbing of dissent, protest and opposition to the government during the proclamation of National Emergency in India by the then Prime Minister of India, Mrs. Indira Gandhi in June 1975. It was to raise the voice against the denial of rights and liberties provided by the Constitution of India that concerned citizens opposed to the Congress party government came together under the leadership of Jayprakash Narayan12 to form People's Union for Civil Liberties and Democratic Rights (PUCLDR). It was inaugurated in New Delhi in October 1976 during Emergency by Acharya J.B.Kriplani.13 PUCLDR later split in 1981 owing to differences on understanding of denial and realization of rights and the ways of working of the organization. People's Union for Democratic Rights (PUDR) was formed out of this split. The civil liberties organizations have since then tried to act as watchdogs on the arbitrary use of power by the state impinging on liberties and rights of people. The CLDR organizations have generally been small organizations comprising of students, teachers, journalists, and lawyers who while being engaged in their respective livelihood battles also take time out to fight for the cause of civil and democratic rights. Some of them have also dedicated their lives exclusively to the cause of upholding the rights of people and are full time members or activists. The civil liberties and democratic rights movement uses various means like fact-findings, publishing fact-finding reports, public meetings, press statements, court cases, dharna(sit-ins), pamphlet distribution etc. to publicise and fight against the violations of rights. All these activities of the civil and democratic rights movement are public in nature, the reports of fact findings are released to the press, and the events are publicised. 1.2. The fact-finding process As mentioned above, fact-findings are the most basic and the major way of intervention for the civil-democratic rights movement in India. Fact-findings are investigations conducted by the CLDR groups in various kinds of issues of denial of rights and liberties that it takes up. But the investigations undertaken during the fact-findings differ in many aspects from any of the investigations done by the Police, the National Human Rights Commission (NHRC)14or even the Magisterial Inquiry that is mandatory to be conducted in cases of deaths in custody under section 176 of the Criminal Procedure Code (CrPC) in India.15 As a state backed agency entrusted with the task of investigating crime, the process that the police follows in any investigation it undertakes is backed by it being an official body whose major function is to investigate various kinds of offences and crimes. It is backed by the law to conduct such an investigation which is taken to its logical end in the trial of the case in the Judiciary. The Police derive its powers to investigate from various sections of the Criminal Procedure Code (CrPC) in India.16 The police works as an institution to investigate and solve a case. It has the requisite facilities available to collect the evidence like the access to the police station or other compound where death has occurred and the post-mortem report and forensic reports, if required, in context of custody death. The NHRC is a statutory body and has a separate investigation division which facilitates collection of facts related to various complaints that the NHRC receives. It scrutinizes reports received from the police and other investigative agencies. In cases of custodial violence, the investigation division of NHRC analyses the intimations and reports that the NHRC receives from the state authorities on custodial deaths in police and judicial custody in order to find out if human right violation had occurred. In some cases, the investigation division also conducts “spot-inquiries” if directed by the commission, in which its team visits the place of occurrence, records the statements of the complainant, family members of the victim in case of custodial deaths, meets, interact with the officials from the administration and collect relevant documents. On the basis of this procedure, the NHRC reaches to a conclusion in any case of rights violations and recommends action against the erring officials. It also recommends monetary compensation to be paid to the family of the victim in custodial death cases where it finds the police or other authorities culpable. The Investigation Division of NHRC is headed by an officer of the rank of Director General of Police and is assisted by Deputy Inspector of Police, and 12 People's Unon for Civil Liberties, Know PUCL, 2010. Jayprakash Narayan was a socialist political leader in India. He was very active during Quit India Movement against the British Rule in India in 1942. He led the opposition against Prime Minister Indira Gandhi in India in the mid-1970's calling for its overthrow. In leading this movement of opposition to oust the Congress, he gave the idea of ‘Total Revolution’. This movement in Bihar and in some other parts of India led by Jayparkash Narayan is popularly remembered as JP movement in which a cross section of people, particularly students opposed to congress ranging from the right wing student politics body Akhil Bhartiya Vidhyarthi Parishad to All India Students Front affiliated to Communist Party of India participated. 13 Acharya J.B.Kriplani was the President of Indian National Congress during the Transfer of Power to India in 1947. He is said to be a Gandhian socialist and participated in India's freedom struggle. He was part of the non-cooperation movement launched by Mahatma Gandhi in August 1920. Mahatma Gandhi was a prominent face of Indian Politics and Indian Freedom Struggle. He is known for the espousal of non-violence and satyagraha. 14 NHRC is a statutory body established by Protection of Human Rights Act (PHRA) 1993 on 12th October 1993. The NHRC is expected to protect and promote human rights in India. The PHRA defines them, “as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India.”http://nhrc.nic.in/about-us/about-theOrganisation, accessed 12 July 2019. 15 Section 176(1A) prescribes inquiry by magistrate into the cause of death “where any person dies or disappears or rape is alleged to have been committed on any woman while such person or woman is in the custody of police.” CrPC, Section 176 (1A), Criminal Law Amendment Act 2018. 16 Section 154 of CrPC provides for filing of information in writing by the officer in charge of a police station relating to the commission of a cognizable offence. Section 155(2) says that no police officer shall investigate a non-conizable offence without the order of the Magistrate. Section 156(1) provides Police the power to investigate without the order of a Magistrate in cases of cognizable offence. Under Section 160CrPC, the police officer making an investigation, may by order in writing, require the attendance of witnesses. Section 161 provides for Examination of witnesses by the Police.

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three Senior Superintendents of Police.17 In contrast, CLDR organizations are voluntary organizations comprising of ordinary concerned citizens. The fact-finding is conducted by a team constituted from amongst the activists and members of the civil liberties-democratic rights organizations. They volunteer to become part of a team conducting the fact-finding. The fact-finding team has no legal, official and institutional structure to back it unlike the police or the National Human Rights Commission or the Magisterial Inquiry which are all backed by a formal legal structure. The fact-finding team of CLDR organizations visits the place of incidence, speaks to the people whose rights have been adversely affected and collect their testimonies. The fact-finding team meets the people in the informal set-ups of their homes, thier neighbourhood, thier environment unlike the setting of any official inquiry where the family members of the victims are summoned to be present to narrate their version of the events. In the magisterial inquiries in custodial death cases, Magistrates at times also announce their sittings through Public Notices in the vernacular newspapers. Though the rationale of placing a public notice in vernacular newspapers is to inform any of the witnesses concerned to record their statements with the Magistrate but the process also indicates the gap that exists between the people and the magistrate. People go to the magistrate to give evidence whereas the CLDR organizations go to the people to collect evidence. The fact-finding team also takes appointment with the officials concerned to take their views, perspective and version of the event. In case of custody deaths, it visits the police station, meets the policemen present there, the investigating officers in the case and take down their version of how the death in their custody occurred. It also meets higher ranking officials of the police of the concerned zone to inquire about the details of the case of death in custody. The fact-finding then culminates in the report writing based upon the information gathered in the process. It mostly presents the official side of the story and the deceased family's version of it. It then highlights the anomalies in the official version and poses questions on the veracity of the claims made. Another important feature of the fact-finding report is that it tries to locate the violations involved in a particular incident in the larger socio-economic context and sometimes also tries to trace its historical roots. Fact-finding reports are thereby the culmination of the investigative process undertaken by the CLDR organizations. Conducting a fact-finding given that it is entirely a non-official exercise carried out by concerned citizens who are part of the CLDR organizations also pose many challenges for them as at times they are denied permission by the state administration to visit the affected areas. An example of such fact-finding is the visit of 15 member team from PUCL (Chattisgarh), PUDR (Delhi), VanvasiChetna Ashram (Dantewada), Human Rights Law Network (Chattisgarh) in October 2009. The team was initially denied permission to visit the affected areas of Gachanpalli, Gompad and Chintagufa villages in Dantewada district in the state of Chattisgarh in India. The team had gone for a fact-finding on alleged killings of about 15 adivasis in these villages by security forces as part of Operation Green Hunt that was aimed at wiping out Maoists18 from the region. The fact-finding team was repeatedly questioned and interrogated at two of the police camps in the area.19 Dantewada district of Chattisgarh state in India remained a battleground between the armed maoists and the government. Killings of adivasis, attack on villages by state sponsored anti-maoist armed group Salva Judum were reported from 2005 to 2011.20 At other times, it has also been reported that the fact-finding teams have been implicated in false cases. A joint fact-finding team comprising activists from CLDR organizations and other human rights groups across the country was booked for violating Forest Act in April 2015. They were conducting a fact-finding into ‘encounter killings’ of 20 alleged red sanders smugglers in Chittoor district of Andhra Pradesh in April 2015.21 These instances can be seen to point to the anxiety of the state machinery towards the documentation and dissemination of alternative versions and pluralisation of discourse on custodial killings. In the next section, the paper tries to present the state's narrative about the fact-findings. 1.3. The State's view of the fact-findings The unease of the state towards the fact-findings can also be seen to be reflected in some cases being argued in the courts in India on the arrests, attempts to arrest some of the activists from the civil liberties-democratic rights movement. The Director General of Police argued on behalf of the state opposing the anticipatory bail application of democratic rights activist Gautam Navlakha that the 17 Each Senior Superintendent of Police heads a group of investigative officers which has Deputy Superintendents of Police and Inspectors. NHRC, Specialised Divisions and Staff available at https://nhrc.nic.in/about-us/organization-structures/specialized_divisions_and_staff, accessed 26 November 2019. 18 Maoists loosely refer to the cadre of the revolutionary party, the Communist Party of India (Maoist). The party is engaged in an armed struggle to overthrow the state in India. It has been proscribed by the Governemnt of India since 2004. 19 This was a joint fact-finding of various organizations. Findings of Fact-finding team in Dantewada, 20 October 2009 available at https://www. pudr.org/index.php/findings-fact-finding-team-dantewada, accessed 16 July 2019. 20 Salva Judum was declared Illegal by the Supreme Court of India on 5 July 2011. 21 South Asia Citizens Web, India: Targeting of Democratic Rights Activists: Cases Slapped Against Team Inquiring into Sheshachalam Killings, available at http://sacw.net/article11042.html accessed 12 July 2019. Another instance of the threats that the democratic rights fact-finding teams face in some situations is the arrest of a seven member fact-finding team of a rights group Telangana Democratic Front by Telangana Police on 25th December 2016 under the draconian Chattisgarh State Public Security Act. The activists were handed over to Sukma Police, Chattisgarh. The team had gone to do a fact-finding on police excesses and extra-judicial killings in Chattisgarh. See press releases by human rights and civil and democratic rights groups on this arrest on http://sanhati.com/articles/18224/ accessed 12 July 2019.

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concept of fact-finding, “has been used by the banned organization to make false propaganda so as to mislead the people and to create unrest in the country”.22 The Sessions Court in Pune observed on similar lines in its order in the case, “… The report also depicts the concept of ‘fact finding’ of the banned organization i.e. to make false propaganda so as to malign the image of the government in the eyes of people at large or to divert the attention of the administration. It cannot be said to be a plain fact finding inquiry, which is usually undertaken by Planning Commissions for Policy Decisions.”23 Even the Communist Party of India (Maoist) is shown to see the fact-findings by the CLDR organizations in the submissions made by the state in the case referred above as representing their cause. A Letter by central committee leader of the Maoists is quoted in the order. Parts of the letter read as, Fact-finding surveys have played a critical role in exposing the barbaric face of the enemy. It has proven effective to make the state forces accountable for their brutal crimes against the defenceless tribals and party activists. FF surveys led by comrade Nandini have greatly helped tame the hard core criminal of Bastar SRP Kalluri. The intensity of fake encounters has increased many folds following the glorious Sukma ambush by the PGLS this year …. .Regular surveys must be conducted across various districts that have recently witnessed numerous fake encounters.”24 The Bombay High Court also made similar observations on fact-findings in Guatam Navlakha's case calling for quashing of FIR against him.25 These differing ways of percieving the fact-findings conducted by the CLDR organizations can be seen to emerge from the distinctive aspects of fact-findings referred above. An investigative process of CLDR organizations termed as ‘propaganda’ against the government in the eyes of the state and that of exposing the barbaric face of the state for the Maoists. For the CLDR groups, factfindings have been a way to find out the truth of the situation by documenting and registering the voices of the people who have suffered. It does so, a) by taking down the version of truth of the people who have suffered. b) by penning down the immediate context in which the incident has taken place. c) by locating the broader socio-economic context and history of the event and the states' involvement therein. Thus, there seem to emerge multiple dimensions of truth: truth as event, truth in context and truth located in history, offering a pluralisation of accounts of violations involved in a particular incident. Therefore, what the fact-findings of CLDR groups seem to be doing is to find out the loopholes in the official narration working within the framework of official discourse but to also step outside this framework to have a more comprehensive account of the event. This paper, would be discussing some of the fact-finding reports that the civil and democratic rights movement in India has produced over a period of time on custody violence. Civil liberties and democratic rights organizations in India have been chronicling instances of custodial violence and in the process have raised very important questions on the nature of violence in custody, the meaning of custody, the laws and behavior governing it and the role of state. The paper is primarily looking at custodial violence and deaths in custody of state actors. The custody death reports of the democratic rights group PUDR are foregrounded in the paper. The next section tries to place the relationship between law, police and custody and the intervention of civil and democratic rights movement therein. 2. Indian law and judiciary on custody Chapter V of Criminal Procedure Code, 197326 provides for powers of arrest to police and the safeguards to be followed by the Police so that the rights of the arrested person are not infringed. The term custody appears in the Criminal Procedure Code (CrPC) of India in context of these police powers of interrogation and arrest. Section 46,49,50 of CrPC deal with how arrests are to be made by the police.27 Section 54 calls for examination of arrested person by a government or registered medical officer.28 Section 57 says no arrested person shall be detained in custody for more than twenty 22 Gautam P. Navlakha vs. State of Maharashtra on 12.11.2019, Order Exh.1, CRI.Bail Application no. 5420/2019, Para 24. The banned organization being referred here is the CPI(Maoist) Party which has been banned in India since 2004. 23 Gautam P. Navlakha vs Sttae of Maharashtra on 12.11.2019, Order Exh.1, CRI.Bail Application no. 5420/2019, Para 44. 24 Gautam P. Navlakha vs State of Maharashtra on 12.11.2019, Order Exh. 1, CRI.Bail Application no. 5420/2019, Para 43. The veracity of this letter cannot be claimed as the matter has still not reached the stage of Trial in the court of law in India. 25 The Bombay High Court observed, “This letter reveals the role of petitioner in all open work activities and fact-finding missions those are given by CPI(Maoist) party all over the country. The purpose of fact-finding mission is to mar the image of State machinery in public at large and to reduce the faith of public in the State machinery. The fact-finding missions are funded by CPI(M) party which is evident from the letters recovered from the laptop and desktop of Rona Wilson and Surendra Gadling …” Gautam P. Navlakha vs State of Maharashtra, on 13.09.2019, Writ Petition No.4425 of 2018. This is the same letter purportedly written by Central Committee leader of the CPI(Maoist) that the Pune sessions court referred to in its order referred above. 26 The Criminal Procedure Code 1973 has been amended by The Criminal Law (Amendment) Act, 2018. This paper refers to the CrPC sections as amended by the 2018 Act. 27 Section 46 CrPC says “In making the arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Subsection (3) of section 46 states that nothing in section 46 gives a right to cause death of a person who is not accused of an offence punishable with death or life imprisonment. Section 49 CrPC provides that police shall not use more restraint than necessary to prevent the escape of the person arrested. Section 50 CrPC asks the police in case of arrests without warrant to inform the person arrested the grounds of arrest and right to bail. Section 50 A enjoins the police officer to inform about the arrest and place of arrest to any of the friends, relatives or any person nominated by the arrested person." 28 Subsection 3 of section 54 CrPC calls for the copy of the report of this examination to be furnished to the arrested person or to the person nominated by the arrested person. Section 55 A makes it a duty of the person having the custody of an accused to take reasonable care of the health

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four hours. Twenty four hours detention period can only be extended as per section167of CrPC.29 Section 176(1A) prescribes inquiry by magistrate into the cause of death of a person in the custody of police. Following from these provisions of CrPC, custody in India can be seen to be of two types, Police custody and Judicial custody. Police custody is when the suspect is kept in detention in Police lock-up for the purpose of investigation. The police cannot keep a person in detention for more than twenty four hours and is required to produce him/her before the magistrate if detention is to be extended beyond twenty four hours.30 The magistrate can extend the detention of the accused in custody of police for a term not exceeding fifteen days in a whole. This custody to police which is also called remand in popular parlance is granted to police for purpose of investigations. After the maximum period for this is over, the arrested person can either be granted bail or be sent into judicial custody which means being sent to prison till the charge sheet is prepared. The police have no direct access to the accused in judicial custody unlike police custody. These two types of custody are the most common forms that are talked about in context of custodial violence.31 Apart from these provisions of CrPC, certain sections of Indian Penal Code (IPC) indirectly prohibit use of torture in custody and prescribe punishments. Section 220 IPC provides for punishment to an officer with “legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously …”32 Section 330 and 331 of IPC provides for punishment to those who voluntarily cause hurt or grievous hurt respectively to extort confession or any information with regard to detection of an offence. Illustration (a) and (b) to section 330 makes a police officer guilty of torture for inducing somebody to confess his commission of a crime or to induce somebody to point out where stolen properties are deposited. The specificity of section 330 and 331 lies in the fact that these are the only provisions of IPC which make the use of torture by police-officer punishable and thereby recognize custodial violence in penal clause.33 The CrPC provisions are drawn in line with the protections and rights guaranteed in Part III of the Constitution of India. Part III of Indian Constitution deals with the Fundamental Rights provided to the citizens of India. These rights put limits on the power of state and protect citizens and individuals against arbitrary state action. It is the fundamental right to life, Article 21 in Part III of the Constitution of India, under which protection of custodial rights can be read. Article 21 provides, “no person shall be deprived of his life or personal liberty except according to procedure established by law.”34Over a period of time, the courts in India have interpreted Article 21, that is, right to life and liberty very broadly requiring all state action to meet the standards of being just, fair and reasonable. This expansive understanding has been used in both, administrative as well as criminal cases. Article 21 has been read by judiciary in India as providing safeguards against torture and arbitrary arrests. D. K Basu vs State of West Bengal, 1997 and Nilabhati Behera vs State of Orissa, 1993 are important judgments in this regard in the 1990s. The D.K.Basu case was filed by D.K.Basu, an executive chairman of a non-political organization called Legal Services Aid in the form of a letter addressed to the Supreme Court of India referring to news items in the newspapers like the Telegraph and Indian Express on deaths in police lock-ups and custody in 1986. The judgment of the Supreme Court of India in D.K.Basu case is considered a landmark as the court observed that the use of torture to extract information is impermissible and offensive to Article 21. The court observed, “Custodial death is perhaps one of the worst crimes in a civilized society governed by rule of law …. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution.”35 In this case, the Supreme Court also issued certain guidelines to limit the powers of police and make it more accountable for its powers of arrests and also held that monetary compensation for unconstitutional deprivation of fundamental right to life and liberty must be provided in public law drawing from Nilabati Behera Judgment. Nilabati Behera case was also a landmark judgment with regard to custodial torture and death. The case was about the death of 22 year old boy Suman Behera who was taken into custody by Orissa police in connection of a theft case on 1.12.1987. His dead body was found on the railway tracks a day later on 2.12.1987. The petitioner Nilabati Behera was the mother of the deceased, Suman Behera. She alleged in her petition that her son's death is a custodial death because of injuries inflicted on him by the police in their

(footnote continued) and safety of the accused. 29 Section 167 CrPC says if it appears to the police that the investigation cannot be completed within 24 h of the arrest of a person, the police shall produce the person in front of the nearest Judicial Magistrate with copies of entries in the diary related to the case. 30 This is as per section 57 of CrPC mentioned above. 31 There are many other types of custody that exist. Ramakrishnan details them as military custody, protective custody, deportation camp for foreigners found to be living illegally, military custody. Juvenile homes, protection homes for destitute women, and custody by those departments who have powers of arrest and investigation such as directorate of Enforcement, Narcotics Control Bureau, Central Board of Excise and Customs. N. Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia, South Asian for Human Rights and Sage, 2013, p-27-28. 32 Sec.220, Indian Penal Code, Bare Act 2018, Universal, Lexis-Nexis. 33 These sections create specific categories of hurt and grievous hurt and carry maximum term of imprisonment to seven and ten years respectively. Otherwise, simple hurt and grievous hurt carry a maximum term of year and seven years respectively. 34 Article 21, Constitution of India. Apart from Article 21, Article 22, 22(2) and Article 20(3) provide protections to an arrested person. Article 22 declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and shall not be denied the right to be defended by a legal practitioner of his choice. Clause 2 of Article 22 directs, “every person who is arrested and detained in custody shall be produced before the nearest Judicial Magistrate within a period of 24 h of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate …. ”. Article 20(3) of the Constitution provides for right against self-incrimination, that is, no person accused of an offence can be compelled to be a witness against himself or herself. 35 Shri D.K. Basu, Ashok K.Johri vs State of West Bengal, State of U.P on 18 December 1996. 1997 1 SCC 416. The judgment is available at https:// indiankanoon.org/doc/501198/, accessed 19 June 2019. 6

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custody and that compensation should be given to her for violation of fundamental right to life guaranteed by under Article 21 of the Constitution of India. The Supreme Court of India held her son's death as custodial death and awarded a compensation of Rupees1,50,000 to the petitioner Nilabati Behera. While awarding compensation, the Supreme Court held, “Award of compensation is a proceeding under Article 32 by this court or by High Courts under Article 226 of the constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply.”36The judgment by the Supreme Court in this case since then became the basis for providing compensation in public law for infringement of fundamental rights. The Supreme Court also ruled in this case that the burden of explaining a custodial death lay on the police rather than the victim's family or others concerned. Claim to compensation as a public law remedy to a victim of torture in custody, illegal detention, rape, death in custody, was established with judicial pronouncements in other such cases.37 Both the Supreme Court and the High Courts have awarded compensation under the writ jurisdiction provided to it through Articles 32 and 226 of the Indian Constitution. In this manner, Courts in India over the years have evolved a reparative jurisprudence in which they have tried to shift the burden of proof to the accused, that is, the state and its agencies in cases of custodial violence and illegal detention. But as the work of Ramakrishnan shows, despite courts' strong observations against torture and violence in custody, the courts do not seem to take these principles into account while deciding actual criminal liability. Similarly, despite explicit recognition in D. K Basu case that the State has an obligation to investigate and prosecute in cases of illegal detention and custodial violence and that the burden of proof shall not fall on the victims, it is the victim or the victim's family or civil society organizations which bring these cases to the higher judiciary. Though the right to compensation is available under the writ jurisdiction after Nilabati Behera case, it is still not a statutory remedy and remains a matter of judicial discretion.38It should also be noted here that India has been a signatory to the United Nations Convention against Torture since 1997 but it has still not ratified it.39 The civil liberties movements' intervention on the issue of custodial violence needs to be placed in this background of violation of rights enshrined in the Constitution of India giving protections against arbitrary action by the state, the provisions of CrPC and Indian Judiciary's response to the cases of custodial violence and torture.40 3. Questioning custodial violence: exposing the lawlessness of police, expanding the meaning of custody and beyond In this section, some of the major reports of People's Union for Democratic Rights (PUDR), a democratic rights organization based in Delhi, India and some of the available reports of People's Union for Civil Liberties (PUCL),a national level civil liberties organization in India would be discussed. It is through the analysis of these reports that the issue of custodial violence and CLDR movements' engagement with it would be understood. The main focus in this paper is on the fact-finding reports on custody deaths by PUDR. This is because PUDR has investigated most of the cases of custody deaths in Delhi from 1981 to 2005. The five bigger PUDR reports that are focused upon here are Invisible Crimes, In Pursuit of Life, Capital Crimes, In Custody, and Sexual Assaults: A Fact Finding Report apart from other numerous small fact-finding reports on many other cases of custody deaths in Delhi.41 3.1. Uncovering deaths in police custody: ‘suicide’, torture and impunity Despite official assertions refusing the use of Torture in India from late Mr. Rajiv Gandhi in1988,42 the then Prime Minister of India to Mukul Rohtagi, former Attorney General of India in 2017,43 the existence of torture in India has been registered and recognized in the many judgments by Indian Judiciary (as seen above in the section on Indian Judiciary) and in reports of institutions 36 Nilabati Behera alias Lalit Behera vs State of Orissa and others on 24th March 1993, 1993 AIR 1960; 1993 SCR(2) 581.The judgment is available at https://indiankanoon.org/doc/1628260/, accessed 19 June 2019. 37 The cases relevant to these instances are given in Ramakrishnan, In Custody, pp. 21–22. 38 Chapter 7,' Judicial Trends' in Ramakrishnan, In Custody. 39 The NHRC had called for the ratification of UN Convention against Torture in June 2000 on the occasion of United Nations International day in support of victims of torture http://nhrc.nic.in/press-release/government-urged-ratify-un-convention-against-torture, accessed 12 July 2019. The 273rd Report of Law Commission in India, October 2017 also recommended the ratification of the Convention. The law commission also proposed the Prevention of Torture Bill 2017 with the report. Earlier in 2008, a Prevention of Torture Bill was brought to the parliament but was referred to a select committee for reconsideration as objections were raised on its weak provisions. The select committee's draft was tabled in 2010 in Rajya Sabha (Upper House of Indian Parliament)but has since then remained stuck and has not been passed by the parliament. 40 It is of relevance to point out here that Lokaneeta writes in her work on Torture that the emergence of systematic custody jurisprudence in the decade of 1990's reflected in the landmark cases of Nilabati Behera and D.K Basu, coincided with consolidation of civil and democratic rights movement in India, which had been highlighting the repressive side of Indian state's response to the voices of discontent. J. Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United States and India, Orient Blackswan, 2012, p. 148. 41 PUDR, Invisible Crimes: A Report on Custodial Deaths, 1980-89,1989, In Pursuit of Life: A Report on the Aftermath of Custodial Deaths in Delhi, 1991. Capital Crimes: Deaths in Police Custody, Delhi, 1998, In Custody: An Investigation into 5 cases of Sexual Assault, 2004, Sexual Assaults: A Fact Finding Report, 2005. 42 Rajiv Gandhi had stated in 1988, “We don't torture anybody. I can be very categorical about that. Wherever we had complaints of torture we've had it checked and we've not found it to be true.”, quoted in Lokaneeta, Transnational Torture, p.3. 43 Mukul Rohatgi, the then Attorney General of India told at the Universal Periodic Review at the United Nations Human Rights Council in 2017 that Torture is alien to Indian Culture. Mukul Rohatgi's statement was covered in some media reports and articles like https://scroll.in/article/ 836872/attorney-general-mukul-rohatgi-says-torture-is-alien-to-indian-culture-is-he-right&https://www.hrw.org/news/2017/08/20/gettingaway-torture-india, accessed 6 June 2019.

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like National Human Rights Commission (NHRC) in India and other independent rights groups and newspaper reporting.44 The NHRC notes in its annual report of 2015–2016, “Custodial violence and torture remains rampant in the country. It represents the worst forms of excesses by public servants entrusted with the duty of law enforcement.”45 In this period, the NHRC received information of 153 deaths in police custody and 1670 deaths in judicial custody.46The National Crime Records Bureau (NCRB) in India also records the number of deaths in police custody. It also contains the statistics on the cause of the death in police custody. Amongst these categories, the NCRB recognizes torture by police also as one of the causes of these deaths but it does not use the term Torture. It uses the category of “Injuries sustained during the Police Custody due to Physical Assault by Police.”47 The documentation of custody deaths in India since the decade of 1980's by the civil liberties and democratic rights organizations has also consistently shown the use of torture in custody. The civil liberties and democratic rights groups in India have primarily and mostly probed incidences of custodial deaths while recognizing that custodial deaths are just one consequence of a very brutal reality of torture that lie behind it.48 In most of its reports on deaths in custody, PUDR has documented the processes that led to deaths of people in custody. The distinctive aspect of CLDR groups like PUDR lies in the way they conduct detailed fact-findings in most of the cases of death in custody unlike other bodies like NCRB which gives statistics on custodial deaths or NHRC which publishes the details of only some ‘illustrative’ cases of custody death.49 The CLDR organizations' reports show how the police flout rules and procedures and even when it has followed some of the norms, it has maltreated people in its custody often beating and torturing them so severely that they die in custody. The 1989 PUDR report Invisible Crimes, states that there were 48 cases of deaths in custody of Delhi police in that decade. Out of these 48 people who died in police custody, 30 were below the age of thirty and yet the police attributed the death of some of them to natural causes such as cardiac arrest, chest pain and fever; ailments which the young normally do not suffer from. 20 of these people committed ‘suicide’ as per the police, 8 died of injuries received prior to arrest and others died of aliments. The report writes, In reality most of these people died of severe beating and prolonged torture. Practically every person taken to the police station in connection of some or the other offence is subjected to such torture despite laws to the contrary …. Emmanuel, accused of murdering a girl(who later turned up alive)was beaten every single day from 27th March to 10th April(1980)in the cantonment police station. On 11th April, his dead body was found lying on a road near the police station. He was one of the persons, the police claimed, who had died after taking poison. Wilson was tortured for six days. Seventeen year old Roshan was beaten every day for seventeen days in Prasad Nagar police station.50 The report further writes "it is this process of torture, regular and systematic, whose end product is sometimes, death, as in the case of these unfortunate 48 people in Delhi."51 In another of its consolidated report called Capital Crimes, based on its findings on Custody Deaths in Delhi from 1980 to 1997, PUDR writes, Such killings are not normally premeditated, being the most aggravated and accidental outcome of merciless torture and neglect. The average of five to six persons who die in this fashion every year comprise a miniscule proportion of the persons subjected to such treatment in custody. These deaths therefore point to a larger context of routine and habitual humiliation, beating and torture meted out to those detained in lock-ups.52 Similarly in its report Dead Men's Tales, the routineness of custodial violence is noted in the fact that its existence goes unnoticed until it results in death.53 One of the most striking aspect of deaths in custody, as captured in the reports of the civil liberties organizations, is that majority of these people are from poorer sections of Indian society. In the PUDR report, Invisible Crimes, the figure stands thus, of the 48 people who died in police custody in Delhi from 1980 to 1989, 15 of them lived in resettlement colonies in Delhi, 13 in JhuggiJhopdis.54 Their occupational profile also points to their low income status and vulnerability, 11 of these were migrant casual laborers, 2 were servants, 2 auto drivers and 1 each of taxi driver, balloon seller, rickshaw puller, migrant vegetable vendor, dhobi and tonga (horse cart) driver.55 Almost the same pattern on the socio-economic profile of the victims of custody death can again be found in the report

44 Some recent newspaper reports on torture in police custody in India are these: http://www.newindianexpress.com/nation/2019/jul/15/ rajasthan-policemen-booked-for-alleged-torture-gangrape-of-woman-whose-brother-in-law-died-in-custody-2004087.html, https://indianexpress. com/article/india/assaulted-wife-abducted-raped-dalit-says-went-to-up-police-was-tortured-5819951/, accessed 16 July 2019. 45 NHRC, Annual Report, 2015-16, p.38. 46 NHRC, Annual Report, 2015-16, p.14. 47 National Crime Records Bureau, Crime in India, 2016, p.531. The number of deaths caused by these injuries in the year 2016 is put as 9 and in the year 2015, the number of the custody deaths caused by injuries sustained during police custody due to physical assault by police is recorded to be 6.Crime in India, 2015, p.378. 48 PUDR, Invisible Crimes: A Report on Custodial Deaths 1980-89,1989, p 1. PUDR, Capital Crimes: Deaths in Police Custody, 1998, p.5. 49 NHRC, Annual Report, 2013–2014, p.28. 50 PUDR, Invisible Crimes, p.1. 51 PUDR, Invisible Crimes, pp.1-2 52 PUDR, Capital Crimes, p.5. 53 PUDR, Dead Men's Tales: Deaths in Police Custody, Delhi, 2000, p.2. 54 Jhuggi-Jhopdi is Hindi language word. It can be loosely translated as Slums in English language. 55 ,PUDR, Capital Crimes, p. 2.

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Capital Crimes. Of the data of 47 victims of Custodial Death from 1990 to 1997 mentioned in this report, 15 lived in slum jhuggi, 13 in resettlement colonies,7 in urban villages,8 in middle class colonies.56The marginalized socio-economic position of victims of custodial violence is also captured in many other numerous but smaller fact-finding reports that PUDR had brought on custody deaths over the years.57 There are many reasons that the police have given over a period of time to explain deaths in their custody. As part of these explanations, one of the most used explanations by the police is that the person concerned committed ‘suicide’. While some studies and literature on custody deaths in European settings exclude suicides from the data on deaths in custody58 but even when suicides are included in data on custody deaths as was done in a study on Deaths in Police Custody in Germany,59 suicides are not found to be the major reasons of deaths in police custody despite a high proportion of unnatural causes of death (80%), such as intoxications and traumata. The article does not probe beyond this on suicides. It does not question the veracity of the claims of suicide and also does not list if any policemen were charged criminally for any suicide in their custody. The situation seems to be different in India. ‘Suicides’, figure as one of the most dominant cause of deaths in police custody in India. This is reflected in the data given by National Crimes Record Bureau (NCRB) in India in its reports released annually. The data provided by NCRB in last sixyears till 2017 on reasons of custodial deaths, shows that ‘suicides’ figure as the major cause of deaths in police custody in the years 2014,2015,2016 and 2017.60 In the years 2012 and 2013, ‘suicides’ were the second major cause of death in police custody.61 PUDR and other civil liberties organizations in India include suicides as deaths in custody and demand a magisterial inquiry into them and also conduct their fact-findings into these cases of ‘suicides’ in police custody trying to find out the circumstances around the ‘suicide’. There are researches into suicides in prison highlighting how prisons expose already vulnerable people to a stressful environment which increase the risk of their committing suicides. Leibling in his study of suicides in prisons argues that suicides, murders and life sentences in prison present a challenge to the ‘legitimate penological purposes of imprisonment’.62 Leibling's study thereby focuses on suicides in prison. The civil rights movement in India has focused more upon ‘suicides’ in police lock ups than the prison. In many of the cases of alleged suicides in police stations in India, civil liberties organizations in India have found through their fact-findings that the stories of suicides given by police are not plausible. The CLDR movement has therefore instead highlighted circumstantial evidence suggesting culpability of police. In its report on the custody death of a 25 year old man named Vikas in the Vijay Vihar Police Station in north west Delhi on 2ndNovember 2010, PUDR found how the story of ‘suicide’ committed by the deceased was completely false.63 This was based upon the series of events told to the PUDR fact-finding team by one of the person named Vimal Verma, a witness to the case as he was also kept in the same police station on that night when Vikas (the deceased claimed by the police to have committed suicide) was strangulated in the lock–up. Vimal Verma was a small time journalist and photographer by profession. The deceased Vikas, was picked up by the police over a quarrel that he had with the husband of the woman he was living with for an year. The witness, Vimal Verma was also brought up in the Police Station that same night in a completely different case of having a scuffle with his step mother who denied him entry at her house around midnight. The police offered him shelter at the police station for the night which he had accepted. He narrated to the PUDR team that he was taken to the first floor room of Assistant Sub Inspector (ASI). This room was adjacent to where Vikas was kept. While being taken to this room, he saw Vikas with two policemen in civilian clothes. Vikas was being hit on the elbow and slapped by them. As the witness Vimal Verma curiously started asking about what is happening, he was threatened to sit quietly. After a while, Vimal Verma got out of the room and stood near the mess on the first floor of the police station from where he overheard Assistant Sub-Inspector (ASI) Brijmaohan asking Vikas for some money to which he had replied that he doesn't have money to pay. This angered the policeman and the ASI Brijmohan threatened him with dire consequences. Vimal Verma told the PUDR team that after this the ASI came out and snatched a green sheet covering some boxes lying outside. Then he went

56

PUDR, Capital Crimes, p.7. Many of these smaller reports/leaflets on deaths in custody of Delhi Police can be found on the website of PUDR https://www.pudr.org/ articlelist/Custodial%20Death, accessed 6 June 2019. A list of these smaller reports/leaflets on deaths in custody can also be found as Annexure in the PUDR report Continuing Impunity: Deaths in Police Custody in Delhi, 2016–2018, March 2019 available at https://www.pudr.org/continuingimpunity-deaths-police-custody-delhi-2016-2018, accessed 6 June 2019. 58 S. Heide and T. Chan, Deaths in Police Custody, Journal of Forensic and Legal Medicine, 57(2018), 109–114. While surveying the literature on deaths in police custody in countries in Europe, North America and Australia, Heide and Chan note that in some studies, only the deaths in police cell are recorded as deaths in police custody while suicides are excluded in some other cases. Hiede and Chan, p.109. 59 S. Hiede, et al., Deaths in German Police Custody, European Journal of Public Health, Vol.19, No.6, 597–601. This study analysed 60 cases out of the 128 reported cases of deaths in police custody from 1993 to 2003. Criminal investigations were launched in 17 of the studied police custody death cases. In 10 of these, police officers were under investigation. The researchers found the conduct of police officers deficient in half of the cases they had studied and found them lacking in seeking medical care for the detainee, that the police did not follow the monitoring schedule for the person under custody. 60 NCRB crime statistics are available on its websitehttp://ncrb.gov.in/ accessed 30 December 2019. In 2014, Out of 93 deaths in police custody, 27 were attributed to suicides, NCRB, Crime in India, 2014, p.145. In 2015, 34 out of 97 who died in police custody were recorded to have committed suicide, NCRB, Crime in India, 2015, pp.378–379. In 2016, 38 of the 92 people who died in police custody had committed suicide, NCRB, Crime in India, 2016, pp.531–532. In 2017, 37 of the 100 who died in police custody were reported to have committed suicide, NCRB, Crime in India, 2017, p.991. The last Crime in India Compendium available on NCRB website is that of year 2017. 61 NCRB, Crime in India, 2012, p. 554. Crime in India, 2013, p. 152. 62 A. Leibling, The Meaning of Ending Life in Prison, Journal of Correctional Health Care, 2017,Vol.23(1),20–31. 63 The PUDR report of this Custody death is A Story of ‘Suicide’ and Survival: Death in the Custody of Vijay Vihar Police Station, 2011. 57

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inside the room saying “tujhe latka dena chahiye”(you should be hanged) and “tu kya kar lega.”(what can you do). The witness Vimal Verma told the PUDR team that a constable saw him standing near the mess and asked him to sit in the room. From there he could not hear any sounds from Vikas's room for next 15–20 min and “then again he started hearing sounds from downstairs accusing each other saying “taine marya hai”.64 As nobody was upstairs at that time, Vimal came out of his room and took snaps of the body of Vikas. He was hung with green chhaddar65 from the window latch which was at a height of 3.5–4 feet. As Vikas was about 5′4″-5′5″ tall, his legs were in folded position.”66 The death of Vikas to which there was a witness in the Police station was portrayed as ‘suicide’ by the police. The police told the PUDR team also that Vikas committed suicide because he was depressed that the woman with whom he was living in had gone back to her husband. People's Union for Civil Liberties(PUCL), a national level civil liberties organization in India, also conduct their fact-findings and publish some of the reports and fact-sheets in their monthly bulletin. In one of the custody death cases that it probed, the Uttar Pradesh Police had attributed the death to ‘suicide’ by the detainee in the police station. This was the case of eighteen year old Sonu who was picked up from his village near Khurja city in Uttar Pradesh by plaincloth policemen of Noida67at 6pm in evening on 1st September 2006 and was dead by the early morning hours on 2nd September 2006. According to Police, he was picked up in connection of theft case in sector 41 of Noida 15 days ago in which some other boys were also involved. The police registered Sonu's arrest at 2:30 a.m. in their records and according to the police he committed suicide by 4:30 a.m. by making loop of his shirt. In the version of the family members, the deceased Sonu was wearing a worn out shirt and a short trouser when he was taken away in the car by plain cloth policemen. The family did not know till then that he had been picked up by the police. They thought that he had gone nearby in context of some property dealing matter in which he used to assist one person named Kunwar Pal from Khurja city. The post mortem report of the deceased procured by PUCL recorded six injuries on different parts of the body but concluded the death to be caused by asphyxiation even though no ligature mark on the neck was recorded. But according to the father and brother of the deceased Sonu, who saw his body in the mortuary as recorded in PUCL fact-finding report, “They saw blue marks on the back of the victim, burn mark on the back of one of his ears, his right arm was broken and swollen, there were blood stains all over upper part just above the back of his neck. There were no marks at all around his neck that might indicate any sign of death by hanging.”68 In its most recent report called Continuing Impunity69on custody deaths in Delhi from 2016 to 2018 that PUDR released in March 2019, three out of the ten custody deaths that it probed in the report were attributed by the police as ‘suicides’. One of these was the 19 year old boy Deepak Kumar from Karawal Nagar locality of Delhi. According to the police, he was arrested by the police from Karkardooma court after receiving a tip off. The police had a non-bailable warrant against him in a case of sexual harassment filed by a minor girl from his loaclity. He was brought to Karawal Nagar police station on the afternoon of 15 January 2018 and was kept in a small room in the police station at night as police station was working from a rented accommodation at that time. It did not have a proper lock-up. When the police went to take him to court on 16 January 2018, they found him hanging from the ceiling. Deepak was brought up by his uncle after his mother died and his father had abandoned him. According to the family of the deceased, when Deepak's uncle met him in the police station on 15 January afternoon after he was picked up by the police from the Karkardooma Court where he had gone to appear for a hearing in a chain snatching case against him, Deepak was very scared and told him that he feared beating by the police. Deepak's uncle and Aunt left the police station late evening after leaving food for him to eat. They were demanded a sum of rupees Thirty thousand by the policemen for releasing Deepak from the lock up. The next morning when Deepak's uncle was waiting for Deepak to be presented at court, he got a call from the local leader of his area telling him that his nephew, Deepak had committed suicide at the police station. When he reached back to the police station, he found the news to be true. Deepak's family was not allowed to see his body below neck before the post-mortem. When the PUDR team met the family of deceased Deepak, they told the team that they believed that Deepak was killed by police in custody. The report writes, This belief was strengthened by what three young men who were also detained at the Karawal Nagar PS that night told them later. They contacted the family to let them know that Deepak had been beaten badly by the police on the night of 15–16 January 2018. It appears that apart from Deepak, 5 young men had been detained that day in the PS caught under charges of gambling, playing satta etc. Two of them were allowed to leave at night and 3 were let go on the morning of 16 January. Late during the night of 15–16 January, one of them ran into Deepak, probably while being taken to the toilet etc. According to him, he was badly injured at the time due to police beating. They had also heard sounds of him being beaten. The young men said that one of the policemen had used a short pipe like rod to beat Deepak. Deepak requested them to let his family know that he had been badly beaten up.70 These cases are demonstrative of how people commit ‘suicide’ in the custody of police and why the civil-democratic rights movement in India through the years has raised sufficient doubts on the credibility of the ‘suicide’ stories put out by the police.71 They also show how prevalent and routine is the use of physical force and torture in police custody. “taine marya hai” in English would translate as “you have killed”. A chhaddar is a bedsheet. 66 PUDR, A Story of ‘Suicide’ and Survival, p.5. 67 Uttar Pradesh is an adjacent state of Delhi in India. Noida and Khurja are cities in two different districts of Uttar Pradesh. 68 PUCL, Custody Death in Noida- A Suburb of Delhi, PUCL Bulletin, December, 2006. 69 PUDR, Continuing Impunity: Deaths in Police Custody in Delhi: 2016–2018, 2019. 70 PUDR, Continuing Impunity, p.7. 71 The CLDR movement is not claiming that all cases of suicides in police custody are false but that there exist sufficient cases indicting the police which make the police narratives about suicides in custody very doubtful to be plainly accepted. 64 65

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According to the PUDR reports, another way to escape responsibility for death in custody by the police is to deny the detention of the person concerned or to say that the person died outside detention or by shifting the custody question to another police station or to judicial custody. These kinds of explanations given by the police over a period of time are reflected in the PUDR report Capital Crimes. The death of Shanti Devi in February1997 in Najafgarh Police Station in South West Delhi was attributed as ‘suicide’ by the police. She was the mother of an accused in a kidnapping case and was illegally detained in the Police station for three days but her detention was shown in the daily diary record of the police station to be of the same day as of her suicide. Similarly, a man named Surat Lal's body was found on rail tracks adjacent to Samaipur Badli police station. Samaipur Badli is an urban village in North Delhi. He was picked up a night before on charges of theft in October 1995. The Police had told the PUDR team that he was detained and released and there were daily diary records for it though they never showed it to the PUDR fact-finding team. The Police claimed that the man, Surat Lal either met with an accident on railway tracks or committed suicide. Months later, the sub-divisional magistrate inquiry into the death of Surat Lal indicted the policemen and found that no records of his detention were maintained.72 In other cases where the police accepted the detention of the victim but denied it to be custodial death as the person died after being released. This was the case with a migrant worker Raghunath who was detained for three days at GTB Enclave Police Post in November 1991. Raghunath died fourteen days later succumbing to the injuries he sustained during interrogation.73 These cases point to the violation of right to life and liberty provided by the Constitution of India and the abuse of power by the police despite some procedural safeguards in CrPC for people under custody. The CLDR movement through its documentation of custodial violence over the years has therefore been able to show the pervasive and routine nature of torture in custody despite constitutional, legal and judicial pronouncements to the contrary. It has been able to highlight the mechanisms that the police use to deflect the questions regarding accountability for these deaths. The repetitive use of these mechanisms by the police can be seen in the reports produced by the CLDR organizations. This, perhaps, indicates the systemic approval of violence in custody and the state's unwillingness to investigate the crimes done by its coercive force, the police. Though over the years as PUDR also acknowledges, some changes have come in the way custody deaths are tackled by the police administration.74 The National Human Rights Commission (NHRC) in India had been taking cognizance of deaths in custody and had issued notification soon after its inception in 1993 that it should be informed about every death in custody within 24 hours of its occurrence. It had also issued letters to Chief Ministers calling for video filming of post-mortems in custody death cases, that magisterial inquiries be held in all the cases of custody deaths.75 It had issued guidelines to be followed while conducting Magisterial Inquiries into the cases of deaths in custody or deaths during the course of police action.76 Some of these guidelines are also followed like NHRC is informed of the deaths in custody; magisterial inquiries are held under section 176 of CrPC into cases of deaths in custody. But despite these changes, custody violence and deaths in custody have been continuing. One of the probable reasons for this continuation of violence in custody that the CLDR movement has been indicating throughout is lack of prosecution and punitive action against the policemen involved which has meant impunity for the police and is linked to the continuation of torture in custody. In its 1989 report Invisible Crimes and again in the 1991 report In Pursuit of Life, on the aftermath of custodial deaths in Delhi, PUDR notes that prosecution cases were launched in only a fraction of cases; in 6 out of 48 cases till 1989 and 9 out of 59 cases till 1991 against the suspected policemen. In the report, Continuing Impunity in 2019, the trend seems to follow. In the ten cases of custody deaths that this report details, only in two cases, First Information Reports (FIR) to probe the role of police in causing the death of the person in custody were registered.77 The mandatory magisterial inquiries in case of custody death continue for years. Out of the ten cases PUDR probed in the report Continuing Impunity, except for one case in which the Magisterial inquiry was completed and indicted the police, in all other cases Magisterial inquiries were still in process and not completed even after two years of these deaths in custody. The rate of conviction in custodial death cases is very low till date. The data provided by National Crimes Record Bureau(NCRB) stands corroborating the doubts and trends shown by PUDR on laxity of prosecuting agencies in gathering evidence and building a strong case against the policemen. According to the data released by the NCRB in 2017 on deaths in police custody from the year 2000–2016, there were 1022 such deaths. FIRs were filed in only 428 cases. Out of these, in only 234 cases the police file charge sheets so that court cases could begin against the erring policemen. And only 24 policemen were convicted. It means only 5 percent of the policemen accused of custody deaths are ultimately convicted.78 This lack of prosecution has thereby meant grant of impunity to Police for its acts of custodial violence.

72 Capital Crimes, p.12.The fact-finding leaflet in these two cases of custody deaths by PUDR are named, A Mother's Death: Death in Custody of P.S Najafgarh, 1997 and Dead on the Tracks: Custodial death at P.S. SamaipurBadli, 1996. 73 PUDR, Capital Crimes, p.12. The detailed fact-finding report of PUDR on the incident of Raghunath's death is named, Death via Custody: Guru Tegh Bahadur Police Post, 1991. 74 PUDR, Press Release, 22 March 2019 https://www.pudr.org/publication-and-release-pudrs-report-continuing-impunity-deaths-police-custodydelhi-2016-2018 accessed 4 June 2019. 75 The letter of NHRC dated 14tth December 1993 instructing states to report deaths in custody within 24 h and other such letters later on by the NHRC are available at http://nhrc.nic.in/sites/default/files/sec-1.pdf accessed 4 June 2019. 76 The guidelines are available at http://nhrc.nic.in/sites/default/files/Guidelines_for_video_photography_of_PME_death_in_police_action. pdfhttp://nhrc.nic.in/sites/default/files/Guidelines_conducting_Magisterial_Enquiry_in_cases_of_CD_or_police_action.pdf. accessed 4 June 2019. 77 PUDR,Continuing Impunity, p. 44. 78 The New Indian Express, Only 428 FIRs were filed in 1022 custodial deaths between 2000 and 2016 says NCRB Data, 15th April 2018, available at http://www.newindianexpress.com/nation/2018/apr/15/only-428-firs-were-filed-in-1022-custodial-deaths-between-2000-2016-says-ncrb-data1801728.html accessed 22 June 2019.

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It can be inferred from the data and analysis presented above that the existence of a practical impunity to policemen is linked to the continuation of custodial violence. The lack of prosecution and punishment to the accused police personnel can be seen to be related to the fact that majority of the sufferers of custodial violence are from the marginalized sections of Indian society as documented in the reports of civil liberties-democratic rights groups. The families of victims have very meager resources to fight the cases against the policemen. This adds to the power of police on people in their custody as the police know that it is not possible for these families to pursue the cases against them to get them prosecuted. It is in this context that the CLDR movement had been demanding compensation in custody deaths cases and went to courts seeking the same.79 Based upon this experience, it has recorded how it was entirely dependent upon judicial discretion and the ability of the victims’ family to pursue the case, to get justice and compensation, a point also noted by Ramakrishnan. There is no uniformity on the amount of compensation granted. The CLDR movement noted that this is because compensation to the families of victims of custody deaths is still not a statutory remedy in India. This is despite Nilabati Behera case. In this way, it can be argued that the civil-democratic rights movements’ intervention and documentation shows how the use of torture in custody is a routine way of police functioning and interrogation in India. With no institutional mechanism for awarding compensation, delayed magisterial inquiries, lack of prosecution against policemen involved in these cases, custody violence seems to have acquired an institutional character with the continuation of the processes of covering up of acts of torture in custody and giving impunity to police. 3.2. Custody: not only inside the police station It is in these contexts that a tussle over the meaning of custody can be seen in the work of CLDR organizations. The movement challenges a restrictive understanding of police custody and has argued for a broad understanding of ‘custody’. The reports by PUDR argue that custody should not be understood only with reference to place of detention like the police station. A death should be considered custodial in nature if it occurred when some limitation was placed upon the liberty of the deceased, either directly or indirectly, by the police.80 This was the definition of custody that was provided by Criminal Law Journal (Cr.L.J. 635 (637) 1970) which had argued for this understanding of custody. This understanding of custody was also upheld by the Supreme Court in case of death of a nine year old boy Naresh in November 1987. Naresh was beaten by the police in his own house when he tried to protect his mother in the landlord tenant dispute. PUDR writes, “The court held that the issue in defining custody in this instance is not so much the place of death as the power of the police over the victim which was the cause of death.”81 In the case of Naresh, PUDR was the petitioner in the court along with a women's rights group Saheli.82 The understanding of custody that the democratic rights movement is presenting is that of custody should not be understood only with reference to the place of custody like police station or jail but whether there was a restriction of liberty and the use of position of power by the police over the detainee. The democratic rights movement is arguing for making this the main focus in defining custody. As pointed out earlier, there have been instances when the police has beaten the person in its custody but denied it to be a case of custodial death for the person was never taken to police station.83 This, according to the civil liberties movement is a very restrictive understanding of custody. The civil rights groups have contested this understanding and have sought to expand the meaning of custody to include use of position of power that the police has over the detainee whether in lock up or some other place. The contention of civil liberties movement is that a person should be treated in the custody of police from the time the person is put under some restriction by the police. In the report, Capital Crimes, the expansive understanding of custody is noted thus, On13th July 1996, Matloob Husain, a fruit vendor, was beaten up by police at KhurejiKhas and later died due to injuries inflicted on him. The Police maintained that this was not a custodial death as the victim had never been detained. There are many other instances where beating or torture which occurred outside thana premises, led to the death of the person. Sonu, who died on 30th August 1996, was interrogated on the move. A suspect in a theft case in which his younger brother had been arrested, he was tortured severely, even on floor of the police jeep in which he was being taken from one place to another. He died before reaching hospital, as a result of these injuries. And the police stated in their defence that he was never taken to a police station. Such deaths are clearly custodial deaths since they are caused by the injuries inflicted while the victims were in police custody.84 This understanding of custody can also be seen in the another PUDR Report called Dead Men Tales in 2000 in the case of the death of Mohammad Irshad Khan in Gautampuri area on 12th October 2000. Mohammad Irshad was returning home after picking up his PUDR filed a writ petition in the Supreme Court in 1988 and could secure a compensation of Rs.50000 for the wife of Ram Swaroop who was killed in Indrapuri Police station in Delhi on September 19, 1988. PUDR, Waiting and Waging: A tale of Life, Death and Justice, June 1989. The other cases that PUDR pursued in courts for compensation to the families of the victims were that of Naresh, The nine year old boy who was killed by policemen in his home while saving his mother. The court awarded a compensation of Rs.75,000. This was in the year 1990. The third case that PUDR filed was that of Shammu Khan in whose case the Delhi High Court declined to pay any compensation. PUDR, In Pursuit of Life, p.3 and Capital Crimes, p.36. 80 PUDR, Capital Crimes, p.18. 81 PUDR, Capital Crimes,p.18. 82 PUDR, In Pursuit of Life, p.1. 83 The argument has also been presented in the PUDR Report, Death of a Rickshaw Puller: Custodial Death by R.P.F, Old Delhi Railway Station, 2004. 84 PUDR, Capital Crimes,p.18. 79

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four year old son from the school and had a fight with a rickshaw driver. He was beaten severely by four policemen from Seelampur Police Station who were in the area in connection with investigation of another case. Mohammad Irshad had collapsed on the spot and was declared brought dead when he was taken to the government hospital by a police control room van. There were eyewitnesses to the beating of Irshad by the policemen as it was a crowded area and it was afternoon time. This case was not treated as custodial death case by the police. PUDR contested this denial by the police to consider Irshad's death as custody death in its report and argues it to be a case of custodial death as policemen were involved in the beating of Irshad even though he was not taken to a police station.85 If this understanding of custody is placed in the larger literature on custody, it can be seen that some of these situations which the CLDR movement is calling as ‘custodial’ in nature are marked as non-custodial by some scholars. Phillips, Gelsthorpe and Padfield86 in their study on deaths that occur within the criminal justice system, but outside of custodial settings, argue that these deaths are neglected and not adequately studied. They therefore differentiate between deaths in custodial settings and deaths outside of it. They write, “A criminal justice related death might be the death of someone who has been released from a police station with or without charge, or of someone released from the prison on licence. A death might occur at any point along the criminal justice ‘process’, and this contact with ‘criminal justice’ might be relevant to the death.”87The non-custodial deaths in their research in 2010 included deaths of people under probation supervision and the second part of their research focused upon deaths that occurred within 48 h of people leaving police custody or 28 days of leaving the prison. They go on to present the findings of these studies and argue that these non-custodial deaths are concerning and need to be given more attention. What is relevant here with regard to the CLDR movement's understanding of custody is that the CLDR movement is calling for a very expansive understanding of custody and include even those deaths as custodial deaths which have been called as ‘non-custodial’ by the authors referred above. This is can be seen in the way PUDR has called death of people after a few days or even many days after being let off detention as custodial deaths because they were caused by injuries sustained during detention or arrest by police.88 The definition of custody that PUDR has been arguing for over the years correspond more to the definition quoted by Hedie and Chan in their article on Deaths in Police Custody.89The definition of deaths in custody they quote is, “Deaths of persons who have been arrested or otherwise detained by the police. It includes deaths while a person is being arrested or taken into detention. The death may have taken place on police, private or medical premises, in a public place or in a police or other vehicle.”90This definition according to Hedie and Chan has been gaining some acceptance worldwide though this definition still does not capture cases of deaths that might be related to the events associated with police custody. According to them, the problematic cases are “… those in which there was a relevant incident that took place during custody that was followed by death after some time delay.”91 Even these cases of deaths after some time delay following custody are covered in the understanding of custody developed by PUDR as the cases discussed above show. In this manner, the CLDR movement has tried to develop an exhaustive definition of custody covering a range of circumstances leading to the death of a person in which the police had some role to play moving it beyond the physical and geographical structure of a police lock-up. 3.3. ‘Custody’ in sexual assault cases The CLDR movement has carried this contestation and fight to expand the meaning of custody in cases of sexual violence too. In custodial sexual assault cases, the movement has again consistently contested a narrow construction of the meaning of custody and has sought institutional accountability not just individual prosecution. In PUDR's 2004 report, In Custody: An Investigation into Five Cases of Sexual Assault,92 referring to low numbers of convictions in cases of custodial sexual assault, it goes on to reflect on the meaning of custody. The report says, the term custody as can be seen in its use in Section 376(2) Indian Penal Code(IPC) is meant to treat rape in certain circumstances as more serious an offence than others. Section 376(2)(a) (b) (c) IPC reflect this distinction as policemen, public servants, staff of jail, remand home, women's and children's home are covered under these sections. The understanding of custody in Indian law is therefore, “ …. premised on the perception of power wielded by individuals by virtue of their official authority”.93But, the report argues, despite the recognition of the specificity of rapes in custody, the law does not make any difference in procedures or punishments for custodial rape and other forms of aggravated rapes like rape by a doctor or hospital staff, rape of a pregnant woman, rape of child and gang rape covered under subsections (d,e,f,g) of Section 376 (2) IPC. The punishment for custodial rape and other form of aggravated rapes is same; 10 years of imprisonment which can also be extended up to life imprisonment. The report In Custody suggests an extension of the term custody by questioning the distinction that the law in India presently makes between state and non-state institutions. This, it writes, is evident in its omission from subsection (d)of section 376(2)which 85

PUDR, Dead Men's Tales, p. 15. J. Phillips,et al., Non-Custodial Deaths: Missing, ignored or unimportant?, Criminology and Criminal Justice, 2019, Vol.92, 160–178. 87 Phillips et al., Non-Custodial Deaths, p.161. 88 The case of Raghunaths's death discussed earlier in the article is an example of such a custodial death. PUDR, Death via Custody: Guru Tegh Bahadur Police Post, 1991. 89 S. Heide and T. Chan, Deaths in Police Custody, Journal of Forensic and Legal Medicine, 57(2018), 109-114. 90 Heide and Chan, Deaths in Police Custody, p.110. 91 Heide and Chan, Deaths in Police Custody, p.110. 92 Similar argument for broadening the meaning and usage of the term is made in PUDR's 2005 report Sexual Assaults:a fact-finding report. 93 PUDR, In Custody, p.14. 86

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refer to penalizing the accused of the rapes if they belong to the management or staff of a hospital. PUDR reasons that the very common sensical, everyday usage of the term custody is care, guardianship and the other meaning in context of state actors like police is confinement. PUDR argues that both these meanings overlap in case of custodial rape as it can happen in care and/or in confinement of the aggressor. It writes, While care and trust is obvious in the cases of minors and children, the fact of confinement is evident when the aggressor is an official who can actively intimidate the victim. Since, rape is premised on a situation of coercion and non-consent, the situations for custody can be many. It can be argued that each and every instance of rape is a ‘custodial’ one precisely because of the above.94 So, it argues that a certain expansion of the term custody is required if it has to retain its definitional validity and find a way to penalize the institutions whether state or otherwise to which the aggressor belongs. PUDR further contends that in cases of custodial rapes, institutional responsibility should be marked out. This is because these individuals derive their power from their official position and makes those in their custody vulnerable to the misuse of their power. It is therefore imperative that the institution should also be penalized and custodial rape is not treated as an individual aberrant crime. The report writes, “It is true that rape is an individual offence (unless it is a gang rape) and the punishment must be borne by the accused alone. But if the accused derives his power ‘officially’ and that, it is crucial to the reasons why rape happened, then, the punishment must extend beyond the accused.”95 It writes on the basis of sexual assault case of a minor girl by a doctor in the hospital on which PUDR did a fact-finding and presented the details of the case in the report, In Custody, that the law refuses to acknowledge that the sexual assault occurring in a patient-doctor relationship is occurring in the context of medical authority, care and confinement and therefore it is custodial in nature and the doctor's act is not only an individual act but one that reaches the hospital and therefore the hospital needs to be held accountable too. It also argues that the distinction between state and non-state institutions in marking out custody situations leaves out a whole range of non-state institutions of custody like schools, private institutions for the physically and mentally challenged.96It writes, Besides factoring institutional accountability into the punishment for rape in existing law, the term custody needs to be widened. Other than state institutions, there exist situations where individuals exercise power by virtue of their official positions and where rape and sexual assaults are frequent occurrences e.g. sexual assault on school children by teachers and school staff.97 It can be argued on the basis of the foregoing analysis that the democratic rights organization PUDR has called for an expansive understanding of custody both in cases of custody deaths as well as custodial rape and sexual assault. From the expanse of this understanding, it may be argued that the civil liberties movement has tried to cover as many instances/situations having use of power involving police in case of custody deaths and state as well as non-state institutions in case of sexual assault as ‘custodial’ in nature. The element of power and confinement being common to both.

3.4. Crime, criminals and punishment: problematizing the equation In the reports analysed above, one of the other stark realities that seem to be emerging is the purported link between poverty and crime and torture in police custody. Writing way back in 1764, Cesare Beccaria wrote in his An Essay On Crime and Punishments,98about the origin of punishment in the maintenance of social order that people wanted to establish by entering into the social contract. It was not sufficient only to enter into social contract but to also ensure that individuals thereafter do not engage in harming others. This could be ensured through punishments established against the infractors of the law. But Beccaria also goes on to expand Montesquieu's notion that any punishment which does not arise from an absolute necessity is tyrannical and writes that all the acts of authority of one man over the other without any absolute necessity are tyrannical. The sovereign's right to punish is founded upon this and it follows from here that, “Punishments are just in proportion as the liberty preserved by the sovereign is sacred and valuable”.99Beccaria further writes that it is the immediacy of punishment which matters more than the severity of punishment. The punishment is more useful and just if it is awarded within a small time for deprivation of liberty in course of a trial should be of minimal time as it is also a kind of punishment before somebody is formally found guilty. Beccaria also writes on punishments being devoid of deliberate pain but it should be severe only to the extent that it might deter others. Any degree of severity beyond this is superfluous. He asks in the Chapter on Intent of Punishments, “Can the groans of a tortured wretch recal the time past, or reverse the crime he has committed?”100That there has to be scale of crime and punishment meaning that punishments be commensurate with the crimes committed. Though there can be differences on what that scale should look like but the important point here is that crimes and punishments have to be commensurate to each other, that a petty crime cannot be punished with death penalty. 94

PUDR, In Custody, p.14. PUDR, In Custody, p.15. 96 PUDR, In Custody, pp.15–17. 97 PUDR, In Custody, p.15. 98 Cesare Bosnesania di Beccaria, An Essay on Crime and Punishments, New Edition, 1872 available at http://files.libertyfund.org/files/2193/ Beccaria_1476_EBk_v6.0.pdf. accessed 11 December 2018. 99 Beccaria, An Essay on Crime and Punishments, p.12. 100 Beccaria, An Essay on Crime and Punishments, p.26. 95

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Some of these themes can be found in the works of CLDR movement in context of custodial violence. It is interesting to see how some of the reports of the civil- democratic rights movement question the violence by police on people in its custody by calling these acts as crimes and thereby problematizing and inversing the gaze on crime from that of the so called ‘criminal’ to the police itself whose work is to curb crime. Three of the reports discussed above are named, Capital Crimes, Invisible Crimes, Crimes of Habit,101 by People's Union for Democratic Rights posit this relationship between crime and punishment rather starkly. Capital Crimes as a title seems to stand in opposition to capital punishment, purportedly the highest punishment for the gravest of crimes. Capital Crimes therefore seem to suggest that torture and thereafter the death of people in custody is a crime of the highest order. In doing so, it seeks to obliterate the difference between the criminal and upholder of the law and places the accepted notions, imaginations on crimes in question.102 Similarly the title Invisible Crimes, suggests in very obvious way that custodial violence is a crime that the police indulges in and most of the times get away with because these crimes of the police are invisible in the larger discourse on crime, criminality and punishment. They hardly gather any headlines in newspapers or the attention of the public at large because the person who died was allegedly a criminal. It raises the question, why should the acts of police in torturing and killing the person in custody be not considered criminal? Similarly the Report, Crimes of Habit puts the custodial deaths as aggravated crimes committed by the supposed upholders of law. It seems to say that Custodial violence cases are as much habitual crimes of police as the crimes of ‘habitual offenders’103 who are rounded up during investigations by the police and tortured. What the civil and democratic rights movement seems therefore to be doing is to complicate and problematize the mainstream understanding on crime and criminals. It brings into focus the transgression of law by the police and consequential criminality of its conduct. 4. Concluding remarks The paper has tried to show that the CLDR movement has performed important tasks in its many years of engagement with custodial violence. The CLDR movements’ fact-findings have been continuous exercises of investigating and making the contradictions in official narrations visible thus disentangling truth as seen by the people who suffered from its hegemonic construction in the official version. One of the peculiar aspects of violence in custody which makes it more difficult to address is the invisibility of the act and the associated practices. Torture in custody of police happens behind the thick walls of lock ups, to people who are under detention or arrest; away from any public or personal contact. The CLDR movement has been able to make this hitherto ‘invisible’ violence in custody visible to the larger public through its fact-finding reports over the years. The fact-findings of the CLDR organizations have emerged as processes pluralising the state's discourse on the violence committed on people under its custody. In this process, the CLDR movement has been able to show how the state has failed to properly investigate custodial killings, making visible the impunity enjoyed by the accused policemen. That it links with the fact that majority of the victims of custodial violence come from marginalized socio-economic communities is also a reality that CLDR movement has opened up. In its engagement with the issue of custodial violence, the CLDR movement has also made very important conceptual contributions in developing an expansive understanding of custody and has tried to redefine some of the notions on crime and criminals. It has argued for an understanding of custody to cover a range of situations, where police or any other person in authority has power over the victim, thereby challenging many established definitions of custody. By questioning the distinction between the state and non-state institutions in sexual assault cases in Indian law, the CLDR movement has shown how the existing understanding of ‘custody’ in cases of sexual assaults needs to be broadened to include a range of situations where non-state institutions are involved. The CLDR movement has brought the question of criminality of the police conduct in custodial violence cases to fore. In the process, it has tried to redefine the received understanding of crime and criminals and has put the gaze rather starkly on the crimes committed by the state. In this manner, the paper has attempted to show that CLDR movement's engagement with the issue of custodial violence has been a very important exercise in making the ‘invisible’ layers of custody, violence, crime and injustice visible.

101

PUDR, Capital Crimes,1998, Invisible Crimes, 1989, Crimes of Habit: A Report on Custodial Torture in Vijay VIhar Police Station, 2014. The report Capital Crimes, contains one box named, ‘the alleged crimes’ on page 11 of the report. It lists the people who became the targets of police violence in custody and died as a result. It shows that majority of them were accused of petty crimes like theft, quarrel. Another box on page 33 is named ‘Crime and Punishment’ showing the lack of punishment to the policemen on the crimes they committed on people in their custody. The contrast shown in these boxes brings out how people indulging in petty crimes become victims of death in custody by police, a punishment much greater and beyond the alleged crime they committed and how Policemen who are accused of deaths in custody go unpunished for their crime, the punishment for which in law is much greater if they are properly prosecuted. 103 Habitual offenders, repeat offenders loosely refer to a person who is convicted and sentenced to imprisonment more than twice on account of committing one or more offences on different occasions. In India, different states of India have their State Habitual Offenders Act. There has also been a growing demand for abolition of these Acts as they typify certain section of people as ‘Habitual Offenders’. 102

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