A critical analysis of custodial violence in India

  • -Dipakkshi Chachan

ABSTRACT:

The Constitution of India guarantees various rights to a prisoner or a person in custody under Article 20, 21 and 22 of the Constitution. The Supreme Court of India has interpreted certain rights such as right against handcuffing, right to a fair trial, right to free legal aid etc as an integral part of Article 21 of The Constitution. Custodial deaths are raising concern in the society. As the police officers are intrusted with the protection of mankind and when they themselves violate those law instead of protecting it. The main objective of the article is to spread awareness about custodial death and importance to maintain equality and to protect person’s right to live. It is only with the cooperation of both the police and the public that we can built a strong and healthy democracy where there is no violation of human rights, therefore the article provides some suggestions to curb custodial violence.

KEYWORDS: CONSTITUTION, CUSTODIAL VIOLENCE, POLICE OFFICERS, HUMAN RIGHTS .

INTRODUCTION:

“Liberty is the most cherished possession of man” [i]

Secular, socialist, sovereign, democratic republic are the pillars of India. In a democratic country, the police are to protect rather than inflict torture on them. The very purpose of police is to provide a safe and orderly society where freedom can be exercised. Democracy gets threatened when the law makers and the enforcers turn law breakers and the protectors of human right turn persecutors. The word torture has become synonymous with the darker side of human civilization. Torture and death are not new in the modern world. This has raised obstacle and hindrance to our democracy and development in the contemporary world. Custodial violence can be committed in various forms.

There are numerous cases of custodial death and according to the annual report of the year 2019, 1606 people died in the judicial custody and 125 in police custody , which means that every 5 people die daily according the  report released by the human rights group.

JUDICIARY’S ROLE

In India the Supreme Court and the National Human Rights Commission have played a significant role in combating custodial torture. The Apex court has expressed its worries and serious concerns towards torture and deaths in police custody. [ii] In the case of Kishore Singh v. State of Rajasthan [iii] the S C held that the use of third degree by the police is violative of Article 21 of the Constitution. It observed that the State must educate and inculcate a respect for human rights and stated that such acts inflict wound on the Constitutional culture of the State. In Joginder Kumar V. State of UP [iv] The court dealt with incidents of violation of human rights because of indiscriminate arrests. They referred the recommendations made in the Third Report of the National Police Commission that police should avoid arrest provided only in heinous offence. The Apex court expressed the same zeal for the improvement of the persons suffering from police excesses.

The Supreme Court in D.K. Basu V. State of West Bengal[v]  has established norms required to be followed during arrest and detention. “Torture has not been defined in the Constitution or any other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the strong over the weak by suffering. The word torture today has become synonymous with the darker side of human civilisation …… And, custodial violence including torture and death in the lock-up strikes a blow at the rule of law.”

The court has shown concern towards police atrocities and handcuffing[vi]. Recently the ongoing judicial activism has cracked its whip on the police. The court has even ruled out that in case of any death or injuries suffered in the police custody the burden will lie on the authorities to establish the  death or injuries occurred due to natural causes and not on account of police authorities. In Nilabati Behera V. State of Orissa[vii] the court observed “every prisoners and arrestees are having their fundamental rights according to article 21 of the Indian Constitution. They have the equal rights to enjoy all the basics of fundamental rights and the police are bound to obey the law and to protect their fundamental rights by ensuring that the citizens in custody isn’t deprived from his right to life.”

 Despite such valiant efforts by the Apex Court, there was violation of human rights at peak and there was a need for a quasi- judicial body dealing only with the cases regarding human rights. The government of India incorporated  the Protection of Human rights Act 1993[viii] .The Act constituted the national Human rights Commission (NHRC)  to meet the cases concerning human rights and empowered it to intervene in any proceedings before a court which involve allegations of violations of human rights[ix] . They have played an importance role in curbing police torture. Following the Court NHRC has also asked the Government to pay compensation to the torture victims in several cases[x]. Both NHRC and the Supreme Court have tried their best to protect the basic human rights but still there are few cases regarding it.

RECENT SCENARIO

At least 17,146 people are reported to have died in judicial and police custody nearly five a daily on average according to the latest data from the National Human Rights Commission. NHRC has reported 914 deaths in custody, 53 of these were in police custody.

“The misery of a father and a son in Thoothukudi (Tamil Nadu)”: The custodial death of a father and son in Tamil Nadu is the recent incident of brutality by the police officers. If they would have been proven guilty they would be imprisoned for a maximum of three months[xi]. Such an incident raises question has to who gave the police officers the power to punish the suspect until proven guilty.

“Four UN special rapporteurs have asked the Indian government to investigate the alleged torture and custodial killing of several Muslim men since January 2019.” [xii]

“Seventeen years since Khwaja Yunus dies in Mumbai police custody, Indian cops are still unaccountable for custodial death.”[xiii]

SUGGESTIONS

In order to remove ‘custodial death people must raise their voice collectively against such atrocities. There is no anti -torture law in India. Though the offence of custodial death is charged as a criminal offence under IPC, but there is no definition of torture in any statute in India. Therefore is becomes more important to enact an adequate anti torture law in India with proper definition of torture, punishment for offender and a proper redressal mechanism.

UNCAT ( United Nation Convention against Torture and Other Cruel , In human or Degrading Treatment or punishment) is a human right treaty under the UN which aims to raise voice against torture or inhuman behaviour , and India must ratify it . India lies among 25 countries in the world who have not yet confirmed with the treaty. Dr Ashwami Kumar Said: “As a dignitary, my head hangs in shame that my country stands in line, not with rest of the 170 civilized countries who have signed UN Convention against torture but with failed and semi-failed dictatorial regimes like Sudan and Brunei.” [xiv]

There must be an independent body consisting of outsiders to keep a check upon carnages of the police officers. It is very important to provide proper education to police officers regarding human rights of the prisoners and the persons in police custody.

CONCLUSION

Custodial death are prevalent in India. It is one of the worst crimes for our society because it is done by our saviour on whom we trust and rely for our safety. It is the person who has taken the oath of our protection and welfare. There are different torture methods used by police personnel like rape, hitting in the private part, urinating in the mouth, forced oral sex. This raises question as why the police force lack respect for human person. The fact is that there are 26 convictions of policemen out of 1,727 cases of custodial death during 2001-2017[xv] shows that justice has not been done and that there are many shortcomings in the legal system. To have an organised society where there is proper rule of law and proper justice mechanism, India must enact anti torture law.


[i] R.S. Verma , Law Relating to Custodial Death and Human Rights (2001) p.1.

[ii] E.g. Nandini Satpathy v. P.L.Dani A.I.R 1978 SC 1025 ; Kishore Singh V. State of Rajasthan AIR 1981 SC 625 ; State of UP V. Ram Sagar Yadav AIR 1985 SC 416 ;

[iii] AIR 1981 SC 625

[iv] A. I. R 1981 S. C. 625

[v] A. I. R 1994 S. C. 1349

[vi] Sunil Batra V. Delhi Administration AIR 1978 SC 1675 ; Prem Shankar V. Delhi Administrative A I R 1980 SC 1595; Altemesh Rein V. Union of India AIR 1988 SC 1768 ; Sunil Gupta V. State of MP ( 1990 ) 3 SCC 119

[vii] A . I. R. 1993 S. C. 1960

[viii] Central Act 10 of 1994

[ix] The protection of Human Rights Act 1993, S. 12 (6)

[x] For example in the case of Ashok kumar who succumbed to injuries sustained while carrying a load at the behest of the Roorkee sub -jail authorities , the NHRC directed the U.p state government to oay Rs 1 lakh as compensation to his parents and issued guidelines that an undertrial cannot be put to hard task .

[xi] Arun Janardhanan, How Tamil Nadu Police’s brutal act of revenge claimed the lives of a father and son, The Indian Express,4 July 2020, https://indianexpress.com/article/explained/explained-tamil-nadu-police-custodial-torture-father-son-killed-thoothukudi-6479190/

[xii] Anadolu agency, UN officials seek probe into torture, custodial deaths of Muslims in occupied Kashmir,   DAWN, 9 July 2020, https://www.dawn.com/news/1567979/un-officials-seek-probe-into-torture-custodial-deaths-of-muslims-in-occupied-kashmir

[xiii] Parth MN, Seventeen years since Khwaja Yunus died in Mumbai police custody, Indian cops still unaccountable for custodial deaths, Firstpost, July 7 2020, https://www.firstpost.com/india/seventeen-years-since-khwaja-yunus-died-in-mumbai-police-custody-indian-cops-still-unaccountable-for-custodial-deaths 8566861.html#:~:text=In%20the%20last%20week%20ofthe%20Mumbai%20Police%20had%20arrested.

[xiv] https://www.youtube.com/watch?v=BOetupkmhxo

[xv]  https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18

Image Source : https://bailmeout.in/custodial-violence-death/

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