This paper will deal with various aspects surrounding custodial deaths in India. It will discuss firstly, how the crime of custodial torture is a sheer violation of the basic human rights of an individual irrespective of the fact that he is an offender- secondly, it will dive into the causes which lead to such cases of torture in custody go unreported. Lastly, it will share some suggestions which if put into action may help in preventing the crime of custodial torture in India.

Introduction

Custodial violence though being a crime is a whole lot different from other crimes, the reason being that perpetrators of such a crime are the only people meant to protect the common people of the country.  It shakes the confidence of the population in the police force and questions the very purpose for which it was established.

The Custodial Crimes (Prevention, Protection and Compensation) Bill, 2006 defined custodial crimes as “an offence caused against any arrested person or a person in custody when that person was in the custody of a police officer or a public servant who has the power under any law to arrest and detain a person in custody, by the police officer or the public servant concerned having the custody of that person during that period.” 1S. 48 Code of Criminal Procedure (Amendment) Act, 2006, No. 25, Acts of Parliament, 2006

Violation Of Human Rights

Custodial Deaths

Custodial violence attacks the very foundation of an individual’s life by stripping away basic human rights, applicable to everyone just by their being a human and are of paramount importance. Therefore, violating it just because he/she is a prisoner in custody is not an excuse to get away with such a heinous offence. When a person is alleged to have committed an offence, his other rights may be restricted, but the basic human right, i.e., the right to life given under Article 21 of the Constitution of India and under the International Covenant on Civil and Political Rights as well cannot under any circumstances be taken away.

The right to life ensured under Article 21 of the Constitution precludes any torment or cruel behaviour being subjected to any person. Any act of torturing a person is not acceptable whether it takes place amid examination, cross-examination or during any other phase and the State ought to take the responsibility of the person is deprived of his right to life except according to the procedure established by law.

Article 21 requires the State to take measures like enquiring about suspicious deaths of people in custody in order to protect the right to life of any person and ensure that no person is deprived of this right. Hence, it is a responsibility of the State to make sure that any type of torture, barbaric or cruel treatment to any person by any police officer or State official be prevented.

Article 20 lays down the rights for the individuals against the conviction of offences. These consolidate the norm of non-retroactivity of punitive laws (Nullum crimen sine lege) for instance ex-post-facto laws combined making it an encroachment of the individual’s fundamental rights if attempts are made to convict and torture him as per rule. Article 22 outfits four fundamental rights concerning a conviction. These include being instructed with respect to the grounds of capture, to be protected by a legal master of the choice, preventive restriction laws, and appearance before the Magistrate inside 24 hours of the capture of the person.

Other than the power and immunity gave to the police by the State to take actions deemed fit by them in the name of public order and good faith, there are many other factors that are at play and give rise to the offence of custodial violence. One of the biggest causes is the misuse of Section 27 of the Indian Evidence Act, which acts a proviso to Section 25 of the same.

Section 25 states that any confession made by a person in police custody is inadmissible in the court of law while Section 27 states that any statement made in police custody is admissible to the extent that they can be proved by subsequent discovery of facts and such discovery statement can be utilized to link up the chain of evidence essential for a successful prosecution. This section acts as a lever to the police officers to use torture in order to extort confessions from the prisoners, which result in custodial deaths. 

Furthermore, most of the cases of custodial violence do not result from individual aberrations but rather from systematic compulsions. The workload and pressure on the police officers to solve issues quickly and achieve results make them ditch the long way of patient interrogation and switch to the use of physical and mental torture to get as much information from the prisoner.

One of the other reasons is that the public itself wants the police to take strict actions against the criminals because they believe that it is their duty to protect the public. Moreover, the slow judicial process makes the public desperate, and they applaud the police’s excessive actions against the criminals if such actions restore peace among the people.

However, it is a failure on our part as a society that on the one hand we applaud such excessive actions taken by the police, for example in the case Hyderabad rape case where the accused was encountered by the police and also in the encounter case of Vikas Dubey, while on the other hand, we condemn the actions of the same police when we hear about cases of custodial deaths. It is imperative to realize that we cannot be selective in our outrage against such arbitrary acts and lose all rights to condemn such actions if we’re the only one applauding them.

 Why Do The Torture Cases Go Unreported?

Custodial Deaths

From 2001 to 2010, the National Human Rights Commission (NHRC) recorded 14,231 i.e. 4.33 persons died in police and judicial custody in India. This includes 1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001- 2002 to 2009-2010. A large portion of such deaths was a direct result of torture in custody. The Asian Centre of Human Rights has, at a lot of times emphasized that 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody.

However, the data provided by the NHRC does not portray the real picture of the situation regarding the extent of custodial deaths in India and the reason for this is that not all cases of custodial deaths are reported to the NHRC.

For example, the Asian Centre for Human Rights filed a complaint with regard to the custodial death of Jumchi Nguso (35 years) as a result of torture at the Naharlagun police station in Papumpare district of Arunachal Pradesh on 15 July 2010. The NHRC registered the case and closed it after the State government awarded compensation of Rs 5 lakhs. Yet the NHRC’s official statistics for 2010-2011 show that there was no custodial death during the year in Arunachal Pradesh.

A report by NCRB states that in 2018, 70 deaths in custody took place wherein judicial enquiries were ordered only in 28 cases while charge-sheets were filed against 13 officers only, but no convictions were made. The problem of less or no convictions in cases of custodial violence has assured officials that they really are immune in such matters.

The use of torture in custody is not only limited to individuals who are accused of an offence, but sometimes innocent people also fall prey to such horrific actions of the police. The recent case of Jayaraj and Bennicks wherein the father-son duo were kept in judicial custody for violating lockdown norms and were tortured brutally until they eventually died is a prime example of innocent people being victims of police brutality.

This case was just one of the thousand cases of custodial violence which was brought to light, and the perpetrators were punished because many such cases take place every day in different parts of India but go unreported because they don’t get that much media clout. If we analyze the issues of custodial violence in India, it can be found that most of the victims in such cases belonged to the lower strata of society. These people being helpless are often the main target of such brutalities.

The police officers are able to assert their dominance over such people because they know that no one would come to such people’s support and it would be a relatively easy task for the officers to get away with anything done to them. Due to the lack of financial aid, such poor people are not able to pursue their cases in the courts for an extended period of time, resulting in police officers getting free of such allegations. As opposed to this, upper-class people are never heard of being victimized by the police because such people generally have good political connections, and this makes it very hard for the officers to even touch them.

Further, there are many provisions in the Indian Penal Code to punish officers taking undue advantage of their power and in the Criminal Procedure Code regarding the arrest and well-being of the arrested person in custody. Section 220 of the IPC provides for punishment to an officer who exercises his authority and confines a person with malicious intent. Section 330 and 331 provides for punishment to any person who either causes hurt or grievous hurt to any other person to extort confession or information which may lead to the detection of an offence respectively.

Custodial Deaths

Cr.P.C. also provides various sections like Section 50, which states that any person arrested should be told by the police officer about the offence he has been arrested for or other ground of arrest. Moreover, Section 50A states that the police officer should inform the detained person’s friends, relatives or any other person concerned about the arrest and the place where the person is being held. Section 54 of the Code provides for a medical examination by a medical officer soon after the arrest is made.

The medical officer has to prepare a record of any pre-existing injuries or marks of violence upon the person arrested and also the approximate time when such injuries or marks may have been inflicted. Section 56 of the Code states that if a person is arrested without warrant, then he/she should be sent without any delay before a Magistrate having jurisdiction in the case and should not be detained in custody for more than 24 hours except under a special order given by the Magistrate.

Section 58 states that a police officer shall report to the Magistrate about all the cases of people arrested without a warrant within the limits of their respective stations. Lastly, Section 163(1) states that no police officer or any other person shall induce, threaten or promise any offer to the person in custody to make a confession and Section 176 which provides for a mandatory enquiry by the Magistrate in case a person dies in police custody.

Despite there being all these provisions for monitoring the activities of the police, these are rarely made use of by the authorities in such cases, and the victim’s family are left to suffer as they don’t get any support. Filing FIRs in such cases is the initial hurdle as the police officers would never file an FIR against their fellow mates. Another hindrance is the collection of direct visual evidence pointing to the complicity of police personnel which can explain the circumstances under which the person in custody died because all the officers are bound by the ties of brotherhood and would stay silent to protect their associate. 2Munshi Singh Gautam v. State of Madhya Pradesh AIR 2005 SC 402.

Measures Taken Through International Conventions And Indian Judiciary

Custodial Deaths

Torture is a crime under international law, and its prohibition falls within the ambit jus cogens or the pre-emptory norm. There can be no justification for the use of custodial torture under international law on any ground, whether it is an emergent situation or otherwise. Various conventions on the point have been made at the international level like Geneva Conventions, ICCPR, CAT, UDHR and ICPPED etc. There are express prohibitions of torture in a number of international instruments. India has ratified the following international human rights and humanitarian law treaties relating to torture.

Article 2 of the UN Convention against Torture, 1984 obligates the State parties to the convention to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat of war, international “political instability or any other public emergency, may be invoked as a justification of torture.” An order from a superior officer or a public authority may not be invoked as a justification for torture.

CAT also takes into account another category of state violence that states must undertake to prevent. The convention enjoins the states to take significant legislative, judicial and administrative steps to prevent torture, to ensure that acts of torture are criminal offences. In Article 10, also requires each State party to ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

Through creative interpretation, the judiciary has evolved mechanisms for the protection of the rights of the victims of custodial violence and held them to be entitled to compensation, in the leading cases of Nilabati Behera v. State of Odisha and DK. Basu v. State of West Bengal, the Apex court held that the claim of sovereign immunity arising out of the State discharging sovereign functions is held to be no defence at all against the acts of violation of the constitutionally guaranteed fundamental rights.

The court further held that “there is a great responsibility on the police authority to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the mere fact of his confinement and therefore, his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits no exceptions.

Conclusion And Suggestions

If timely actions are not taken then a time would come when such crimes would be as common as murders and rapes in India. This would take a great toll on the common population of the country as they wouldn’t know whom to trust and approach with their grievances as they would see the people in ‘khaki’ no less than criminals which are all the more powerful as they have the backing of law to justify their actions.

The first and foremost step that has to be taken in order to prevent such crimes from happening is recognizing the offence of custodial torture as a specific criminal offence under the Indian Penal Code which clearly hasn’t been done even though India is a signatory to UN Convention Against Torture. The NHRC should take up an even more proactive role in the prevention of such crimes and should ensure that the victim’s family get justice rather than just monetary compensation for their loss as delivering justice to whom it is due should be the main motto of every State authority.

Further, the judgment given by the Hon’ble Supreme Court in the case of DK. Basu vs. State of West Bengal wherein the court laid down guidelines regarding the arrest of a person by the police officers should be implemented strictly and any deviance from these standards should be dealt with strictly by the authorities.

Moreover, reforms should be brought to the structure of the police system like officers should be trained and be made aware about human rights violations and should include a code of ethics which shall contain some standards regarding human rights which shall be followed strictly by the officers. The Government should ensure that there is the supervision of the police officers by their superiors which would discourage them from taking actions out of their legal limits and frequent visits of the superiors should be mandatory to make sure that no such cases take place.

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