By Rajinder Kaur
B.A.LLb, LLM (Judiciary Aspirant @ ZJ)
Custodial Death contains two basic words “Custody” in latin term it is “Custodia” which means guarding, keeping, watching& protecting and also “to watch or keep or guard”. In legal terms custody means imprisonment or legal restrain. “Death” means “end of life of person or organism”. Therefore, Custodial death is the event of demise of an individual, who has been detained by police on being convicted or being under trail. The custodial death may be primarily due to natural causes or due to inadequate medical attention and diagnosis or negligent behaviour of authorities or may be due to physical abuse and torture. A large number of incidents of custodial deaths and cruelty are the result of police interrogation, which often involves attempts to extract a confession from arrested or detained persons forcibly.
They can be classified into 3 broad categories:
1. Death in Police Custody;
2. Death in Judicial Custody;
3. Death in custody of Defence/Paramilitary Forces.
Sudden and unexpected death in custody is commonly associated with allegations of torture against law and enforcement agencies. Custodial death is one of the worst crimes in our civilized society, where society is governing by law. As police and public order are state subjects, the brunt of the allegations of institutional murder must be borne by the governments of the respective states, where the police commit such crimes. In order to curb these issues, there are several provisions given in various statutes, International Conventions and Indian Law Commission guidelines such as Constitution, IPC, Cr.PC, Indian Police Act, Indian Evidence Act, NHRC, UDHR, 177th Law Commission Report respectively.
LEGAL PROVISIONS OR REMEDIES AGAINST CUSTODIAL TORTURE
The two approaches are legal regime and judicial precedents.
CONSTITUTIONAL SAFEGUARDS:-It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Constitution of India (i.e. hereinafter referred as “COI”).
Article 20 of the COI:Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws, i.e. Nullumcrimen sine lege that means “No crime, no punishment without a previous penal law”, Article 22 of the Rome Statute of the International Criminal Court i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some statute. Article 20 also protects against double jeopardy, i.e. Nemo Debet Pro Eadem Causa Bis Vexari that means “No one ought to be twice troubled or harassed [if it appears to the court that it is] for one and the same cause”. This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.
Article 21 of the COI: This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence. The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. ( D.K.Basu v. State of W.B, (1997) 1 SCC 416)
Article 22 of the COI: Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.
Other Statutory Safeguards:
Indian Evidence Act, 1872:A confession to police officer cannot be proved as against a person accused of any offence (provided under Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.
Code of Criminal Procedure, 1973:Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request A compensatory mechanism has also been used by courts. When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.
Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.
Indian Police Act: Sec. 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given
Indian Penal Code (IPC), 1860: After the controversial (Mathura Rape case (1979) 2 SCC 143), an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority.
Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing ‘torture’.
JUDGMENTS OF SUPREME COURT ON CUSTODIAL DEATH
Law always discouraged the acts or omissions that affect the right in rem and violaters have been provided stringent punishment. The Latin maxims, Salus populiest suprema lex which means the health of the people is the supreme law and Salus reipublicaeest suprema lexwhich involves the welfare of the people is the supreme law co-occur and are not only essential but implies for the well-being of an individual must submit to that of the community. The measures taken by the State must be “right, just and fair”.
The huge number of custodial deaths in the country, points toward the widespread use of torture at the hands of the police, who have no regard for human dignity of prisoners. The Asian Centre for Human Rights(i.e. hereinafter referred as “ACHR”) report further stated that, “The Supreme Court had made it clear that prisoners are persons and are entitled to fundamental rights while in custody held in Sunil Batra (II) v. Delhi Administration. Later, in Rama Murthy v. State of Karnataka.
The SC identified as many as nine issues facing prisons and needing reforms. They are:
• Delay in trial;
• Torture and ill-treatment;
• Neglect of health and hygiene;
• Insubstantial food and inadequate clothing;
• Prison vices;
• Deficiency in communication;
• Streamlining of jail visits;
• Management of open air prisons.
Judge R.C. Lahoti in his letter highlighted four issues:
• Overcrowding of prisons;
• Unnatural death of prisoners;
• Gross inadequacy of staff;
• Available staff being untrained or inadequately trained.
The letter was turned into a Public Interest Litigation (PIL) and notice was issued to all the appropriate authorities. “However, a closer scrutiny of the responses received indicates that by and large the steps taken are facile and lack adequate sincerity in implementation”, the SC bench stated in the order dated 5th February 2016.”
Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach held in Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
Rudul Shah v.State of Bihar 1985:Rudul shah was arrested on charges of murdering his wife. Rudul shah languished in jail for 14 years after his acquittal, untill his plight was highlighted in the media in 1982 and let to the filing of the PIL on his behalf. PIL helped him to get released from the jail. Rudul shah’s case is a landmark judgment, it is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the constitution.
Saheli v. Commission of police 1989: the case where a 9 year old boy died after being beaten by the Indian police.This was among the path breaking judgments that allowed for compensation in the event of excesses by the lawless Indian police force.
Nilabati Behra v.State of Orissa: It was held by SC that prisoners and detainers are not denied of their fundamental right under Article 21 and that it is only such restrictions as are permitted by law, which can be imposed on the enjoyment. The court awarded the mother of deceased, a compensatory number of Rupees 1.5 lakhs and it has been said that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Joginder Singh v. State of UP, 1994: It was held that, an arrest cannot be made on a mere allegation of offence against a person or in a routine manner. Constitutional rights of a person mandate that he not be arrested on simple suspicion of complicity in an offence. It cannot be made without a reasonable satisfaction reached after some investigation is made as to the genericness of the complaint.
Bhajan Kaur. Delhi Administrative through the Lt. Governer the Delhi High Court: It was observed that personal liberty is fundamental to the functioning of our democracy.
D.K Basu v. State of West Bengal: Court laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. These are as follows:
1. The police personnel should carry clear identification and name tags with their designation and they will maintain a diary of full information.
2. Arrest Memo
3. Other person of arrested person’s family should be informed about his arrest.
4. Inspection Memo
5. Medical examination after every 48 hours.
6. Copies to Magistrate (for information)
7. Consult Lawyer
8. Police Control Room(in every district of every state)
These are some guidelines given by apex court which should be followed by every police officer during arrest of any person.
RECENT INCIDENT OF 2020:-
What has happened in Tamilnadu’s Tuticorin is worse than some of the most violent cases India has witnessed (since the Delhi gangrape case in 2012 for which 4 people involved were hanged, recently).
A father and son -P Jeyaraj, 58, and his son Fenix, 38 -running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping the shop open past permitted hours. Tamil Nadu has imposed a strict lockdown to curb COVID-19.
The duo was taken to the police station where, as has been alleged by the family members, they were brutally assaulted. A few days later they were pronounced dead in jail. Hence, section 176 Criminal Procedure Code was amended and a special procedure created for investigating custodial deaths.
Cases in Limelight: The New Normal
From the past few years, the custodial deaths have spiked, making it to be the hot-topic for debate among intellectuals and people in common. After the Unnao Rape case and the Bennix& the George Floyd case lead the world and India respectively to give heed to the concerned matter regarding the police’s 3rd degree torture and use of its powers arbitrarily.
Unnao Rape Case, WIRE, 2019:In this case it was alleged that a 17-year-old girl was gang-raped by the BJP MLA Kuldip Singh Sengar, his brother Atul Singh and their accomplices. The Wire reported that as the local police administration was under the control of Senger’s family, the victim’s FIR was not recorded. After one year in 2018, the FIR was finally lodged against the said BJP MLA. However, the victim’s family got repeated threats. Afterwards in the month of April in the same year the victim’s father was brutally assaulted by Senger’s brother to which Police filed a FIR charging five men with assault(later videos also emerged relating to the incident) excluding the name of Atul (Senger’s brother) despite the fact that the written complaint was submitted by the family to the police mentions him by name. It is to be noted that in the said incident the police acted at the whims of the politicians and did ultra vires act. Further in the line of the series of the events, police arrested the victim’s father on charges for illegal possession of firearms. The medical examination was not done in police custody and doctors did not admit him despite the severe injuries. Later the rape survivor’s father dies in the police custody reason stating as “blood poisoning due to perforation of colon”. However according to the Post mortem report the body had multiple injuries and abrasions around his arms, thighs, buttocks, knees and abdomen. Police personnel deny accusations of torture. Finally, on April, 2018 the Adityanath led BJP govt. in U.P. called for the CBI investigation. CBI files a charge sheet against Sengar and nine others for allegedly hatching a conspiracy and implicating the survivor’s father in the arms case. Three policemen, including Ashok Singh Bhaduria, then station officer of Makhi police station, are among those named in the charge sheet, reports News18. On Dec, 2018 again a key witness in the murder of the survivor’s father, Yunus, dies under suspicious circumstances and is buried in the same evening. Afterwards the survivor’s uncle was sentenced for two years in jail for attempt to murder two decade ago. Then after some time the survivor’s car got hit by the empty truck whose registration plate got scrubbed. The Dialogue in the movie Jolly LLB that “There were too many co-incidences in your story” seemed relatable as the series of events were only giving indications in favor of the accused only. After so many incidents Senger was suspended from his post and finally in December 20th, 2019 the accused was sentenced imprisonment for life, fine for Rs 25 lakh and compensation to victim for Rs 20 Lakh.
The Bennix & the George Floyd: The death of father & son, V.Jeyaraj (62) and J. Bennix (32) were allegedly tortured by the police in Thuthukudi police station, Tamil Nadu, picked up for violating lockdown norms as shop was opened for longer hours. The police objected to such act and the rest is history. This was not the isolated incident as 2 weeks ago nearly a dozen of people was beaten. Out of which 1 died and 2 were hospitalized, revealed by the judicial enquiry. This incident was then followed by the public outrage. And in response to the public outrage the Chief Minister of Tamil Nadu called for the CBI probe. At the same time, in USA, the George Floyd case was also becoming a trending topic for the same reason i.e., police brutality. All such events indicated the emergence for regulation and introduction on Police reforms and the need of separation of powers between the executive, legislature and judiciary.
CONCLUSION AND SUGGESTION
The happening of custodial deaths in the world’s greatest democracy has raised the eyebrows of every citizen and shaken the very faith in the democracy. Despite having so many guidelines and laws to safeguard human rights, there are several cases of custodial deaths and police brutality. Zero convictions for custodial deaths between 2014 & 2018 is a matter of great concern.To better address the custodial death, the government should work with police, civil society organisations and the general public to implement the suggestions detailed below.
India should ratify the UN Convention Against Torture: It will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment. It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.
Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
Access to Prison: Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed. CCTV cameras should be installed in police stations including in the interrogation rooms. Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measure against custodial torture which has also been suggested by Supreme Court in its landmark judgment in the DK Basu Case in 2015. Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent