The Author, Deeksha Saggi is a final year student of law from University of Pune.
INTRODUCTION: -
Custodial death is one of the worst crimes in a civilised society governed by Rule of Law. Does a citizen shed off his fundamental right to life, moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic "No". In India where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.
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 (Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260)
RECENT INCIDENT: -
The recent death of a father-son duo from Tamil Nadu, allegedly due to custodial violence, has sparked anger across India.
Custodial violence primarily refers to violence in police and judicial custody. It includes death, rape and torture.
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.
LANDMARK JUDGEMENTS ON CUSTODIAL DEATH: -
- Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260: -
The rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, Hon’ble Court issued the following guidelines:
The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
- J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007 (K) AND CRL. R.P.2902 OF 2007
The two serving police personnel were awarded the death sentence by a CBI court, after hearing the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker, who the court believes was murdered in custody.
While sentencing the two, Judge J Nazar had said: “This is a brutal and dastardly murder by accused (number) one and two… The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order, and it is a dangerous situation.
- Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999: -
Summarizes their grief concern about this problem of torture in Indian prisons by police. The supreme court stated that:
“The dehumanising torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system… the concern which was shown in Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in the cases of Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of Bihar, Kewal Pati v State of UP, Inder Singh v. State of Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark case of D K Basu vs. State of West Bengal seems ‘not even to have caused any softening of attitude in the inhuman approach in dealing with persons in custody’.”
- Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC): -
The Supreme Court on September 4 upheld the conviction of nine Maharashtra cops in connection with a 1993 custodial death case and extended their jail terms from three to seven years each. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the order and said that incidents which involve the police tend to erode people’s confidence in the criminal justice system. While enhancing the prison term of the cops, the apex court said, “With great power comes greater responsibility,”. The police personnel were found guilty under Section 330 of the Indian Penal Code which involves voluntarily causing hurt to extort confession or to compel restoration of property.
- D.K. Basu Versus State of West Bengal (1997 (1) SCC 416): -
Guidelines issued:
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention. The guidelines are as follows: –
- Details of all personnel handling the interrogations of the arrested person must be recorded in a register. a memorandum of arrest at the time of the arrest should be prepare. It must also be signed by the detainee and must contain the time and date of the arrest. Police must notify a detainee’s time, place of detention, and place of custody. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest. An entry must be made in the Case Diary at the place of detention.
The “Inspection Memo” must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee. The detainee must undergo a medical examination by a trained physician every 48 hours while in custody.
Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
Information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.
OUTRAGE ACROSS THE NATION ON CUSTODIAL DEATH: -
On social media following the incident, hashtags #JusticeForJayarajAndBennix and #JusticeForJayarajAndFenix started trending. Almost all the major political leaders of the country tweeted demanding an end to this form of police brutality and severe punishment for the offenders in khaki. Film stars, important celebrities and cricketers too prominently voiced their concern on social media.
There is also massive outrage that the policemen believed to be responsible for the deaths are not being charged with murder and have been merely transferred or suspended.
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.
Article 20 of the Constitution of India:
Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) ‘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 (Nemo Debet Pro Eadem Causa Bis Vexari) 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 Constitution of India:
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 Constitution of India:
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 (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:
Sections 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’.
CONCLUSION: -
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.
