Posted on: March 1, 2021 Posted by: admin Comments: 0

Author: Aishani  Tawar[1],Student at Renaissance Law College, Indore (M.P.).

ABSTRACT

The heinous crime of Custodial Deaths has been a mark of shame on the democratic face of India since ages now. When the upholders of righteousness lose track & choose to demonstrate unkindness, essence of fairness disappears. This Paper covers various aspects related to Custodial deaths.

Some light is thrown upon reckless acts of the Police Force, by discussing different brutal methods used by them to torture & interrogate Persons in Custody. Further, Paper cites reasons behind such heart wrenching actions of the Police & determines the most victimised & vulnerable sections of our society in commission of such crimes. Then, rights & remedies available to arrestee & persons in custody have been mentioned.

These rights include Constitutional rights, Statutory Rights as well as International Conventions securing rights against torture & brutality. Data collected from different authentic sources has been cited to highlight the grave misconduct of Police Department. The figures collected from the National Crime Record Bureau Reports published between 2013 – 2019 have been presented in the form of tables & charts with its analysis.

Various recent cases where Police has been seen exploiting their Powers are discussed along with landmark judgements delivered by the Apex court in relation with this issue. Guidelines given in the D. K. Basu case & National Human Rights Commission have also been mentioned. Later, an analysis of this social evil of Custodial death has been given with some suggestions on how can we cater to this deep-rooted problem.

The Paper concludes with an urge to Implement the 273rd Report published by the Law Commission of India regarding Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation.

Keywords: Custodial Death, Police Brutality, Arrests, Prisoners, Human Rights.

INTRODUCTION

“Our hopes for a more just, safe, and peaceful world can only be achieved when there is universal respect for the inherent dignity and equal rights of all members of the human family.”

~ Phumzile Mlambo-Ngcuka

(UN Women Executive Director)

India is a home to more than 138 Crore citizens. Consequentially, our over-populated country is a breeding centre for Crimes & Daily Mishaps. State has appointed the Police Force to enforce law & order and protect the citizens. By virtue of this vital responsibility, enormous Power is embedded within this department. As a result, the Police sometimes opt for a ruler-centric approach instead of people-centric approach and this has been a major shortcoming for the country.

Rising cases of Police Brutality, particularly Custodial Deaths, is manifestly a result of misuse & exploitation of Powers awarded to the Police Officers. The evidences of Police Brutality can be traced back to the colonial times i.e.  British India. The foundation of Indian Police was based on laws enacted in 1860-61[2], primarily focused on serving the interests of the Crown. To do so, Police department resorted to cruel & corrupt means & gradually developed an anti-people tendency, which even post-independence still seem to be embedded in some members of the Force.

All lives matter” – Still fresh in our minds, this slogan was popularly used by protesters all over the world who voiced against racial discrimination in the United States after the ruthless murder of George Floyd by one of their Cops. Even in India, “All lives matter” is suitable as lives of vulnerable groups, comprising of Poor people from backward classes, people from minority religions, Women & Children, are at stake because the people who are supposed to protect us are the ones targeting & exploiting such helpless sections of our society.

MEANING OF CUSTODY & CUSTODIAL DEATH

The word “custody” is derived from Latin word “custodia” meaning “guardian”. Custody means guardianship & protective care. A person, even when taken into Custody, by virtue of Indian Constitution, can enforce all his Fundamental Rights & so, the accused must be subjected to humane treatment. Death in Custody can happen due to multiple reasons that include Natural causes (long-term illness / disease aggravated by poor medical facilities) & Unnatural causes (commission of suicide, torture by officials in custody). In a Democracy like India, rising cases of Police Brutality & Custodial Deaths are raising eyebrows. The National Human Rights Commission lays emphasis on prevention of torture in custody & on strict compliance of the guidelines issued for the same.

Difference between Police custody and Judicial custody:

In case of Police Custody, the accused is made to stay in the physical custody of investigation agency, at a Police Station, so that interrogation can be conducted in regards of the concerned matter. From the time of arrest, even without the order from a Magistrate[3], officials have 24 hours to interrogate the accused, beyond which, the Magistrate will pronounce the decision, whether accused will stay in Police or Judicial custody[4].

Police Custody can only be extended up to a period of 90 days & meanwhile, accused has the right to legal counsel & to know the grounds of his/her arrest[5]. In case where accused is remanded to Judicial Custody, the officials in order to interrogate him/her, are supposed to seek court’s permission as the accused is lodged in jail under the magistrate’s custody. The conduct of such person is in compliance with the Prison Manual & such custody can be extended to a maximum period of 60 days or 90 days (for offences punishable with imprisonment of 10 years or more).

Difference between a prisoner and a person in custody:

A prisoner is a person who has been convicted for commission of some offence & is kept in prison in order to serve the term of punishment awarded by the court of law. On the other hand, person is custody is kept in jail during his/her trial & the court is yet to deliver the verdict regarding the same matter. Such an accused when subjected to ferocious violation by officials for a crime that hasn’t been proved, in certain cases even leading to their deaths, is one of the wickedest violations of Human Rights.

Difference between an Encounter and the Custodial death:

In the first place, both Custodial deaths & Encounters are examples of extrajudicial killings. Secondly, in both these cases the suspect / accused is killed by the police officers. Custodial death is a result of exposing the accused to inhuman treatment causing his / her death, but in case of encounter, law avails the plea of self-defence[6] to the officials murdering a person in their custody. Killing an accused, before he has been proven guilty & getting relieved from the liability of murder is a big loophole in the Indian Legal Structure.

POLICE BRUTALITY

Methods of Torture:

Torture methods used by officials in custody are so gruesome. Police tortures persons in custody by acts of beating with sticks (especially on soles) resulting in fractures, slapping, pulling hair & nails. Besides this torture happens by kicking accused wearing boots (hobnailed), hammering iron nails in accused’s body, burning body parts (using lit cigarettes), stabbing using tools, holding of stressful positions, electrocuting the bodies, assaulting private parts by application of chilli powder, petrol etc & sexual assaults with both male & female prisoners.[7]

One of the victims, taken into custody by Andhra Police in 1976, explained how he was beaten, stripped naked & claimed that one of the officers tramped on his hands with hobnailed boots. He also claimed that a lathi, coated with chilli powder (a.k.a. Hyderabadi Lathi), was shoved in his anus.[8] A report collated by Akhil Banga Manila Samiti claimed that in Calcutta, women prisoners were stripped naked & burned on different parts of body, besides being raped by hardened criminals on the order of Police officials while interrogation. These reports also suggested that torture also included insertion of iron rulers in the Vagina & Rectum of prisoners.[9]

Besides the practice of aforementioned ruthless methods, a lot of persons in custody have been beaten to such an extent that their limbs have suffered fractures, leaving them immobilised. On being questioned about the injuries, officials claim that victims have slipped on the wet floor of toilets or fell while escaping from custody. In such cases, even the victims chose to remain silent, fearing the wrath of Police if taken back in Custody.[10]

Sometimes, an innocent person is injured in the process of interrogation & later Police comes to know that the victim had nothing to do with the crime that has been committed. Police ascertains that since no third-degree torture methods can be used, immobilising accused will not only prevent him from committing the same crimes but will also set an example in the society.

Magistrates are supposed to be very cautious when they meet an accused at the time of remand. They cannot blindly believe on the contentions made by the officials in-charge of custody.[11] NHRC reports (2019) suggest that Suspects from some states including Tamil Nadu, Punjab, Gujarat, Bihar, Madhya Pradesh were tortured till their last breaths for non-heinous crimes like theft, sometimes only for the purpose of procuring confessions.[12]

Reason why torture happens:

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987, was signed by India in 1997 but is yet to be ratified.[13] Victims of torture look up to constitutional & statutory provisions which are inadequate, poorly implemented or accommodate some loopholes.

According to Jinee Lokaneeta[14], the usage of spine-chilling torture methods is a consequence of custody duration, cynicism in police & recovery. Firstly, under law, no person who is arrested can be detained by the Police, without the permission of Magistrate, for a period beyond 24 hours[15] & must be brought before the magistrate without any unnecessary delay.[16] After this period, unless in special circumstances, the accused is remanded to the Judicial Custody as explained under § 167 of the Code of Criminal Procedure, 1973.

With proper compliance of protocols, this time span is extremely brief for the purpose of gathering relevant and true information form the accused and thus police resort to third-degree torture methods. Secondly, people are afraid of being subjected to such torture, so they stick with the option of giving money to the officials and getting away with their wrong doings. This practice is embedded in the system to an extent that torturing has become a means to either extract money or information.

The Police force is often linked with “distrust” as the confessions made before them are irrelevant in the eyes of law & has zero evidentiary value even then officials treat the accused in a very degrading manner. By virtue of the law, confessions obtained by Police through inducement, threat or any promise is not admissible in the court of law & stands out to be irrelevant in a criminal proceeding.[17] Moreover, any confession made in front of police officials shall not be used as a proof against the accused which further protects them from the wrath of police.[18]

But, simultaneously, when accused reveals certain information & based on that Police is able to recover some material, such findings can be proved as an evidence in the court of law.[19] Hence, this promotes torture on accused within the walls of custody during the process of extracting such information, also incentivising usage of third-degree torture methods.

Darius Rejali, for example, has shown that there is no empirical evidence that indicates the efficacy of torture. In face of such unreliability or inefficacy, the relationship between interrogation, torture and confessions is important precisely because the question during interrogation then becomes the excuse, not motive for torture as Elaine Scarry has famously argued.[20]

Most targeted sections:

The most targeted sections of society include: poor, marginalised sections (SCs, STs, OBCs), women & minors. In most cases of Custodial Death, victims belong to the lower strata of society who have no influence or political connections, unlike the rich. Extent of corruption in India is well known to all & it is the greed for money that officials favour the Rich & at the same time thrashes the Poor.

The statistical data of Custodial deaths of people belonging to the aforementioned sections is alarming. According to the NHRC report, 2017-18, from 2013 to 2018, 837 people were killed in encounter by Police, 8085 people died in Judicial Custody, while, 714 people in Police Custody. The NHRC received 1,636 intimations concerning death in judicial custody, & 148 intimations of death in police custody during the year 2017-18.

It disposed of 2,151 cases of custodial death. Out of these 2,151 cases, 1,945 cases relate to death in judicial custody & 205 cases of death in police custody.[21] Women are subjected to rape & assault while Children suffer torture due to inefficacy in the implementation of the Juvenile Justice Act, 2000.

RIGHTS & REMEDIES AGAINST POLICE BRUTALITY

Constitutional Rights:

Constitution of India was framed for the purpose of safeguarding various rights of all Indian citizens, even when arrested or detained. The Constitution upholds the dignity of individuals by protecting their life & personal liberty.[22] When it comes to conviction, Constitution establishes that an accused can only be convicted when the act committed causes any violation of laws in force.

Constitution precisely prohibits double jeopardy & being compelled for self-incrimination, providing protection from being exposed to brutal treatment inflicted by the Police while extracting confessions. Irrespective of the act committed, gravity of punishment inflicted upon the wrongdoer cannot exceed the gravity of crime / wrong committed by him / her.[23] It is court’s responsibility to convict & sanction the offender & not the Police before the conviction of accused.

An arrested person, when detained must know the grounds of arrest as soon as the arrest is made & possesses right to consult his Lawyer. Police has to make sure that the arrested person is presented before the magistrate within 24 hours of arrest & no person can be kept in custody beyond this period, unless the magistrate orders to do so. Also, in case of preventive detention, no person can be detained in Custody for a period beyond 3 months, unless, the advisory board, as provided by the Constitution[24], decides otherwise.

The Constitution confines, within the State, responsibility of securing justice through effectiveness of legal system & avails facility of free legal aid via different schemes so that justice can be served to every citizen of the country.[25] Part IV of the Constitution, although unenforceable in the court of law, lays down principles with respect to conduct of citizens & duties of individuals towards our country. One of the duties cited is abidance of International laws & treaties signed & ratified by India.[26] As discussed later in this Paper, India is supposed to comply certain laws & treaties that promote prohibition of torture & cruelty.

Statutory Rights:

  1. Indian Penal Code, 1860:

Under this Code, Police officials voluntarily causing hurt[27] or grievous hurt[28] to a person (or to another person interested in him) in order to: extort any confession / information (leading to detection of crime), constrain that person or compel restoration of property or valuable security, their liability will arise.

The former is a Bailable, Cognizable & Non-Compoundable offence punishable with fine & imprisonment extensible up to 7 years, while later is a Non-Bailable, Cognizable & Non-Compoundable offence punishable with fine & imprisonment extensible up to 10 years.

Under this Code, wrongfully confining a person is also subject to liability of either imprisonment, extensible up to 1 year and / or fine. In case, officials commit the aforementioned acts by wrongfully confining a person, they can be sanctioned to fine & imprisonment extensible up to 3 years.[29]

  • 376 clearly states that in case any Police officer[30] commits rape in the premises of station house or within the limits of the station to which he is appointed, or with a woman in custody of such officer or his subordinate officer, shall be liable to be punished with rigorous imprisonment for a minimum period of 10 years. This is extensible to imprisonment for life (imprisonment for rest of natural life of accused).
  1. Criminal Procedure Code, 1973:

While making an arrest, no person shall be put through to more restraint than what is necessary[31] & a female accused, if necessary, can only be touched by a female officer. Women can only be arrested after sunrise & before sunset, besides exceptional circumstances in which the female officer shall obtain Judicial Magistrate’s prior permission. In case of resistance from accused while getting arrested, Police is free to use the necessary means.

However, in no way it implies that in this process Police can cause the death of accused who hasn’t committed an offence attracting capital punishment or life imprisonment.[32] A person getting arresting without warrant must be informed the grounds of arrest along with particulars of offence(s) for which he is charged & must also be informed about the offence when bailable so that he can seek bail.[33]

While the accused is being searched at the time of arrest, necessary clothing is permitted & when the accused is woman, she will be searched by another woman in a decent manner.[34] When an officer arrests a person without a warrant, he is supposed to take this person in front of the magistrate or officer-in-charge of the station without causing any unnecessary delay.[35]

Whenever a person dies or disappears when in custody or as alleged rape is committed on a woman when in custody, besides the Police, enquiry shall be committed by the Judicial or Metropolitan Magistrate themselves & within 24 hours of such death, person’s body will be sent to a qualified medical person for its examination.[36]

  1. Indian Evidence Act, 1872:

When an accused makes any confession as a consequence of inducement, threat or promise, in relation with the charge(s) against him, by the officer-in-charge, such confession becomes irrelevant in a criminal proceeding. The promise made to the accused is such that Court accepts that the accused assumed, by making such promise he would receive some benefit during the proceedings against him. Also, confessions made to the Police officer are inconsequential because this information cannot be used as a proof against the accused.

Even if the accused is in custody of the officer, using his confession against him will not be admissible in the court of law, unless made in presence of the Magistrate.[37] Use of torture to extract confessions from persons in custody becomes questionable when such confessions are irrelevant in the eyes of law. Brutal treatment while the process of determining the truth demonstrates exposure of accused to inhuman treatment even before his / her conviction.

  1. The Police Act, 1861:

By provisions of this Act, any superior officer (IG, DIG, Asst. IG, DSP) can dismiss, suspend or reduce the rank of his sub-ordinate officer in case of remiss or negligence in discharge of duties. In such circumstances, punishment of paying fine, confining to quarters, invalidation of extra pay & removal from that particular office of distinction can also be awarded.[38]

When a police officer causes unwarrantable personal violence with any person in his custody, Magistrate on conviction shall punish him with penalty (not more than his pay for 3 months) and / or imprisonment (with or without hard labour) not exceeding a period of 3 months.[39] This meagre punishment indicates lack of strict laws to protect persons in custody against the torment caused by Police officials.

  1. The Legal Services Authorities Act, 1987:

This act was enforced to make sure that legal services are extended to the weaker sections of society including SCs, STs, women, children, persons with disabilities etc. §12 of this Act entitles a person in custody, wanting to file or defend a case, to avail legal services under this Act.[40] Here “Custody” includes custody in protective home, juvenile home, psychiatric hospital or psychiatric nursing home.

Rights Secured by International laws:

Entry 14th of the VII Schedule[41] of Indian Constitution talks about ratification & implementation of treaties, conventions & agreements with foreign nations. Constitutions empowers the Parliament to make laws, for a part or the while country, which are in compliance with any treaty, agreement or convention so that they can be successfully implemented.[42]

  1. International Covenant on Civil & Political Rights, 1966:

Article 7 of this treaty prohibits torture, cruelty inhuman & degrading treatment in the name of punishment. Article 9 further prohibits depriving liberty & security of individuals by arbitrary arrest or detention. It deliberates that arrested person must have knowledge of grounds of arrest and also possesses the right to be brought in front of the Magistrate as soon as possible. Unlawful arrest or detention empowers the victim to seek compensation.

  1. Universal Declaration of Human Rights, 1948:

Article 5 of this International Document also forbids torture, brutality and inhuman treatment with any individual.

  1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984:

This Convention enshrines that all forms of torture must be criminalised so that acts of brutality & cruelty can come to an end within the territorial jurisdiction of parties to this Convention. “Torture” has been defined as “…act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person… d by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Since decades, several Conventions have been enacted but this particular Convention is one of the most prominent to eradicate torture. India is among the only 9 countries in the world who still haven’t ratified this Convention.

EXISTING DATA ON CUSTODIAL DEATHS IN INDIA

According to a Report[43] generated by the National Campaign Against Torture, 2019 witnessed a total of 1731 custodial deaths, out of which 1,606 deaths occurred in Judicial Custody & 117 deaths in the Police Custody. This is an alarming rate as it shows that on an average around 5 people lost their lives in Custody. Another Report[44] stated that between 1st January, 1985 & 1st November, 1991, the Police & Security Forces custody witnessed 415 deaths in which these victims were beaten & tortured until their last breath. Moreover, only 42 magisterial & 20 judicial enquiries were conducted for all these 415 deaths.

According to the Reports cited by NCRB, between 2010 & 2015[45], there were 591 cases of custodial deaths & between 2016 & 2018[46], 265 cases with cause of death being either natural or by suicide & number of convictions by the state being zero respectively. The SCs & STs are one of the most targeted sections of the society which is evident from the Reports produced by NCRB stating that in the years 2017 & 2018, 43,203 & 42,793 was the number of registered cases of crimes against SCs & STs while several cases went unregistered.[47]

The 3rd National Police Commission report[48] highlights the grave misuse of poers of police by conducting arrests of innocents based on petty grounds which doesn’t even contribute much in prevention of crime. According to this report, 60% of the arrests made were superfluous & baseless & accounted for 43.2% of the total jail expenditure as later on the same prisoners for proved not guilty. The chart below highlights different “Reasons of Death” in Custody between 2013-2019 as per the Reports published by the National Crime Records Bureau.[49]

Reasons of Deaths in Custody
Years Death due to Illness / Death in Hospital during Treatment Road Accidents / Journey Connected with Investigation Suicide While Escaping from, Custody Injuries sustained during Police Custody due to Physical Assault by Police Injuries sustained Prior to Police Custody Others (including Natural Deaths, Mob Attacks / Riots & Assault by Other Criminals) Total
2013 20 6 34 4 N/A N/A 51 115
2014 26 0 27 7 9 2 22 93
2015 23 1 34 5 6 6 22 97
2017 28 4 37 3 5 1 22 100
2018 32 1 17 7 3 7 3 70
2019 36 4 33 5 2 1 4 85
Source: NCRB Reports of 2013, 2014, 2015, 2017, 2018, 2019.

Based on the Chart mentioned above, following conclusion can be drawn:

This Chart indicates that the maximum deaths were caused due to suicide, followed by deaths due to illness or during treatment while hospitalization. The important question her is what provokes these prisoners to commit suicide, why are the authorities so negligent towards the pre-existing illnesses of prisoners & how come these prisoners are injured so severely that even after hospitalization they tend to loose their lives. This leaves no doubts regarding the mistreatment of prisoners inside Jails.

The chart below highlights total number of “Deaths in Custody / Lockup & Policemen Convicted” for the same between 2013-2019 as per the Reports published by the National Crime Records Bureau.[50]

Deaths in Police Custody / Lockup & Policemen Convicted
Years Deaths (of Persons Remanded to Police Custody by Court) Reported Policemen Charge-sheeted Policemen Convicted Deaths (of Persons NOT Remanded to Police Custody by Court) Reported Policemen Charge-sheeted Policemen Convicted Total Deaths in Custody Reported
2013 21 0 0 97 1 0 118
2014 32 15 0 61 11 0 93
2015 30 4 0 67 24 0 97
2017 42 22 0 58 5 0 100
2018 24 0 0 46 13 0 70
2019 32 0 0 53 16 0 85
Source: NCRB Reports of 2013, 2014, 2015, 2017, 2018, 2019.

Even when so many cases are registered against the officials for causing deaths of People in Custody, it is shocking to note that as per the NCRB Reports, not even once between 2013 to 2019, a single officer was convicted.

CASES

Practicing Torture defies the most important right i.e., Human right. After years of Independence, India, the country governed by Rule of Law is still unable to combat violence in custody and the number of such cases are rising day after day. These cases have also given our Courts an opportunity to shed some light on the existing legislations related to rights of person in custody & expand the reach of law for the sake of delivering justice.

The most recent heart wrenching incident that made headlines was double murder of P. Jeyaraj & J. Bennicks[51], a father-son duo, from Santhankulam, Thoothukudi, Tamil Nadu. Their arrest was made on 19th June, 2020, on the grounds of infringing curfew rules imposed due to Covid-19, as they kept their shop open beyond the prescribed limit. They were beaten & succumbed to injuries caused by the same on 22nd & 23rd June, 2020.

This Abuse of Powers by the Police officials led to delivery of a Punishment far beyond the degree of wrong done. This contempt towards the systematic delivery of Justice by authorized Courts & Judiciary sets a bad example in the society. ‘Quick Justice’ is a veil behind which the Police commits heinous offences in the name of discharging their duties & in no way this complies with the Principles of Democracy.

In the Hyderabad Rape & Murder case of Dr. Priyanka Reddy, 4 men were accused for the offence and killed in an Encounter by the Police within 4 days of commission of offence[52]. A lot of citizens seemed to glorify this act & viewed the Police as if they performed some heroic act, the Judiciary & the National Human Rights Commission (NHRC) expressed their views otherwise.

According to the NHRC, those 4 men were yet to be convicted by a competent court and at the time of encounter, they were only accused of committing Rape & Murder. Even if they would have been proved guilty for these offences, they were entitled to punishments as prescribed under pre-existing law. Similarly, Police took matter into their own hands while performing the Encounter of Gangster Vikas Dubey, even before his trial.[53]

In Joginder Kumar v. State of Uttar Pradesh, 1994[54], hon’ble Supreme Court explained that in India & Internationally, through legal statutes & conventions, custodial torture has been accepted as one of the cruelest forms of torture. We need to maintain balance between individual human rights & societal interest pragmatically. In Yashwant v. State of Maharshtra[55], 2018, the Apex Court upheld the order of conviction of 9 officials under § 330[56] of IPC and said that with greater power comes greater responsibility.

In J. Prabhavathiamma v. State of Kerala, 2007[57], two Policemen had dastardly murdered a scrap metal shop worker in their custody for which the CBI Court sentenced them to death. While delivering the verdict, Justice Nazar elucidated that such acts cause public to lose their faith in the entire Police department.

This degree of dehumanizing torture raises questions on the credibility of rule of law & administration of criminal justice system.[58] In the 1972 case popularly known as the Mathura Rape Case,[59] the Supreme Court delivered a landmark judgement which led to the amendment of § 376 of IPC & extended a separate statutory provision when Rape is committed by Police in Custody.[60]

The Hon’ble Supreme Court, in D.K. Basu v. State of West Bengal[61], 1997, laid down 11 guidelines that must be complied with, by the Police officials, while making an arrest. According to these principles, Police officials involved in the process of arrest & interrogation are supposed to wear appropriate identification & designation tags along with entry of particulars in register.

Officials are supposed to prepare an arrest memo that should be attested by a witness (family member of arrested person) and throughout the process of arrest & interrogation, arrestee has the right to have one of his / her relative / friend be informed about the welfare, including time, place of arrest & venue of custody, of that person.

Special attention has been given to prevent any physical harm to the arrestee. At the time of arrest, any major or minor injuries on the body of arrestee must be recorded & must be subjected to a medical examination by an expert after every 48 hours. The Magistrate must receive a copy of all the documents prepared in the entire process. Installation of a Police Control Room in every district to track every arrest has also been suggested. Besides these Guidelines, The National Human Rights Commission (NHRC)[62], has also laid down guidelines addressing conduct pre-arrest, during arrest as well as post arrest.

ANALYSIS

Amongst the countless reasons behind death in custody, the most recurrent on is use of Third-Degree torture techniques used by Officials against the arrestee. One of the possible reasons behind this kind of behaviour could be the sense of superiority instilled in the officials by virtue of the position, powers & rights availed to them. This is because of two reasons: (i) due to the lack of effective provisions that are necessary before, during & after arrest and (ii) because no strict actions are taken against the officials involved in such atrocious acts of torture.

Although Provisions of CrPC[63] deals with arrest without warrant, the provisions remain vague regarding pre-prerequisites of such arrest, leaving it open for interpretation by the officials themselves. Medical negligence at any time during the entire process of arrest is another major issue resulting in Custodial deaths. Besides beatings on the sensitive areas of body & not facilitating medication in time, this negligence also includes not maintaining any records regarding pre-existing medical condition, illness or injury of the arrested person.

Who is to be blamed for this reckless tendency of Police when there exists an inadequacy of strict Legislations against the Police department? The provisions serve loopholes which are either misused by the Police in the name of interpretation or used as a defence against their wrong actions as in the case of Private defence. There isn’t even any such Law which awards a substantial sanction so that at least the fear of being punished can prevent the officials from becoming animals.

Further, the absence of a provision analogous to Section 330, 376(2) and 331, specifically referring to murder in police custody highlights the sheer apathy of the Legislature to the systematic embeddedness of the culture of impunity.[64] Putting the entire blame over the officials is also incorrect because the reason why they act like this is lack of operative training & proper education before they are awarded their respective positions. With changing times, it is necessary to bring necessary changes in the curriculum of Police along with the grounds of selection & enrolment into the Force.

Even if in an idol scenario, the aforementioned issues are taken care of, discrimination against the weaker sections of society & against the minority communities will remain immeasurable. When it comes to the Powerful people, their Political Influence fuels the Concealment of facts & a veil of dishonesty by officials cover their wrong doings. As India is a house of Corruption, this could be one of the reasons that the hunger for money of the officials is fulfilled by the Richer classes & the weaker sections including women, children & people belonging to the poor classes, unable to fit in that criteria, are continuously tormented.

CONCLUSION

The solution of all of these issues lays in the ratification of the UN Convention Against Torture. Once this Convention is ratified, it’ll be mandatory for us to resolve all the issues concerned with torture caused by officials & so automatically we’ll adopt every possible measure for the sake of its compliance. It is high time to take strict measure against the wrong doers, irrespective of their titles & positions in the department, & keep a check on the actions of Police officials.

The foremost thing that should be done is implementation of 273rd Report of Law Commission of India[65]. By bringing it in operation, any official from Police department, Military or Paramilitary Forces accused of causing death in custody will be prosecuted criminally & not merely undergo an administrative action. Once this loophole is dealt with, criminal prosecution will not only be the correct punishment for wrongdoers but will also set an example in the eyes of other officials, thus preventing any such atrocities in the future.

Even after so much modernization, petty issues are escalated when parties involved belong to the weaker sections or minorities. Here is when discrimination based on gender, community & status slips in. A lot of efforts have been put in providing equal status to all irrespective of their casts by way of reservations & other statutory provisions but where we stand today is not very different from where we stood yesterday only because the people who are supposed to protect are themselves engaged in monstrous activities.

The saying: “Modern times require Modern Solutions” rightly fits here. The education curriculum & training program of officials is in need of thorough alteration. It should be designed in such a way that it becomes efficient enough to cater the problems of conduct of Police officials. Technical advancement can now also facilitate installation of CCTV cameras so that a special team can be appointed to keep a check on the conduct of Police in-charge of custody. In this way, 24 x 7 surveillance will prevent all the officials from crossing their limitations while interrogating the arrestee.

Besides this, a competent authority must be empowered to carry surprise inspection of Prisons by allowing unrestricted access to such authority. All of these steps can be taken only when the existing statutes are amended as per requirement & certain new & stricter statues are introduced. Excess of powerful always comes with a price & so even the powers of Police must be limited & restricted to a certain extent.

REFERENCES

[1] Aishani Tawar, Student, aishanitawar@gmail.com, Renaissance Law College, Indore, B.A.LL.B. (Hons.), 3rd Year.

[2] The Police Act, 1861 No. 5, Acts of Parliament, 1861, (India).

[3] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 41.

[4] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 167.

[5] INDIA CONST. art. 22, cl. 1.

[6] The Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860, (India), § 96.

[7] The Wire Staff, Custodial Torture Continues Unabated in India Amidst Culture of Impunity: Report, Foundation for Independent Journalism (July 08, 2020), https://thewire.in/rights/custodial-torture-continues-unabated-in-india-amidst-culture-of-impunity-report.

[8] C. Joshi, Gruesome methods of torture employed by Indian police forces come to light, T.V. Today Network Ltd (Mar. 27, 2015, 16:25 PM), https://www.indiatoday.in/magazine/cover-story/story/19770531-gruesome-methods-of-torture-employed-by-indian-police-forces-come-to-light-823741-2014-08-14.

[9] Id.

[10] Jayanthi Pawar, Breaking bad: Torture and violence in police custody is real, Express Network Private Limited (ENPL) (Aug. 18, 2019, 06:33 AM), https://www.newindianexpress.com/cities/chennai/2019/aug/18/breaking-bad-torture-and-violence-in-police-custody-is-real-2020460.html.

[11] Id.

[12] Id. at 7.

[13] The Office of the High Commissioner for Human Rights (UN Human Rights), https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.

[14] Jinee Lokaneeta, Why Police in India Use ‘Third-Degree’ Torture Methods for Interrogation, Foundation for Independent Journalism (July 23, 2020), https://thewire.in/books/police-torture-interrogation-jinee-lokaneeta-excerpt.

[15] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 57.

[16] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 76.

[17] The Indian Evidence Act, 1872 No. 1, Acts of Parliament, 1872, (India), § 24.

[18] The Indian Evidence Act, 1872 No. 1, Acts of Parliament, 1872, (India), § 25.

[19] The Indian Evidence Act, 1872 No. 1, Acts of Parliament, 1872, (India), § 27.

[20] Jinee Lokaneeta, Why Police in India Use ‘Third-Degree’ Torture Methods for Interrogation, Article14 (Aug. 10, 2020), https://www.article-14.com/post/police-torture-the-truth-machines-of-india.

[21] National Human Rights Commission India, Annual Report, 2017-2018, https://nhrc.nic.in/sites/default/files/NHRC_AR_EN_2017-2018.pdf

[22] INDIA CONST. art. 21.

[23] INDIA CONST. art. 20.

[24] INDIA CONST. art. 22.

[25] INDIA CONST. art. 39A.

[26] INDIA CONST. art. 51, cl. c.

[27] The Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860, (India), § 330.

[28] The Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860, (India), § 331.

[29] The Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860, (India), § 342 & § 348.

[30] The Indian Penal Code, 1860 No. 45, Acts of Parliament, 1860, (India), § 376(2)(a).

[31] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 49.

[32] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 46.

[33] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 50.

[34] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 51.

[35] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 56.

[36] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), §176.

[37] The Indian Evidence Act, 1872 No. 1, Acts of Parliament, 1872, (India), § 24, § 25 & § 26.

[38] The Police Act, 1861 No. 5, Acts of Parliament, 1861, (India), § 7.

[39] The Police Act, 1861 No. 5, Acts of Parliament, 1861, (India), § 29.

[40] The Legal Services Authorities Act, 1987 No. 39, Acts of Parliament, 1987, (India), § 12(g).

[41] INDIA CONST. art. 246.

[42] INDIA CONST. art. 253.

[43] National Campaign Against Torture: Annual Report on Torture, 2019.

[44] India: Torture, Rape & Deaths in Custody (Index number: ASA 20/006/1992), Amnesty International (Mar. 26, 1992),

https:/ /www.amnesty.org/download/Documents/192000/asa200061992en.pdf

[45] Custodial Crimes (in Police Custody), https://ncrb.gov.in/en

[46] Id.

[47] Vidisha Singh, Custodial Death & Torture A Human Rights Abuse: Indian And International Perspective, Latest Laws, United NGO Campaign Against Torture (Jul. 24, 2020), http://www.uncat.org/in-media/custodial-death-torture-a-human-rights-abuse-indian-and-international-perspective-latest-laws/

[48] Report No. 3, Third Report of the National Police Commission, National Police Commission, https://police.py.gov.in/Police%20Commission%20reports/3rd%20Police%20Commission%20report.pdf

[49] Id. at 45.

[50] Id.

[51] Akshaya Nath, Bloodied clothes, tortured, discrepancies in FIR: Outcry over Tamil Nadu custodial deaths of father-son duo, T. V. Today Network Ltd. (June 26, 2020), https://www.indiatoday.in/india/story/tamil-nadu-custodial-deaths-justice-for-jayaraj-fenix-tuticorin-protest-all-you-need-to-know-1693158-2020-06-26

[52] Srinath Vudali, Hyderabad encounter: All four accused in Telangana doctor’s rape-murder killed, Times Internet Limited (Dec. 6, 2019), https://timesofindia.indiatimes.com/india/hyderabad-encounter-all-four-accused-in-hyderabad-vet-rape-murder-case-killed-in-encounter/articleshow/72392991.cms

[53] Sharat Pradhan, Four Months On, Commission Probe on Vikas Dubey ‘Encounter’ Killing Still Pending, Foundation for Independent Journalism (Nov. 23, 2020), https://thewire.in/government/vikas-dupey-police-encounter-judicial-commission-probe

[54] Joginder Kumar v. State of Uttar Pradesh, (1994) 4 S.C.C. 260 (India).

[55] Yashwant v. State of Maharshtra, A.I.R. 2018 S.C. 4067 (India).

[56] Id. at 26.

[57] J. Prabhavathiamma v. State of Kerala, A.I.R. 2007 CRL. R.P. 2902 (India).

[58] Munshi Singh Gautam v. State of M.P., (2005) 9 S.C.C. 631 (India).

[59] Tukaram & Anr. v. State of Maharashtra, A.I.R. 1979 S.C. 185 (India).

[60] Id. at 29.

[61] D. K. Basu v. State of West Bengal, (1997) 1 S.C.C. 631 (India).

[62] NHRC Guidelines Regarding Arrest, https://police.py.gov.in/NHRC%20Guidelines%20Regarding/NHRC%20Guidelines%20Regarding%20arrest.PDF

[63] The Code of Criminal Procedure, 1973 No. 2, Acts of Parliament, 1974, (India), § 41 & 46.

[64] Aadhyaa Khanna & Chetan Chawla, The Enshrinement of Custodial Violence in India, SAB Media Software Services Private Limited (Jul. 17, 2020, 10:40 AM), https://www.barandbench.com/apprentice-lawyer/the-enshrinement-of-custodial-violence-in-india

[65] Report No. 273, Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation, Law Commission of India, https://lawcommissionofindia.nic.in/reports/Report273.pdf

Leave a Comment