• PGCL Moot Court Society

CUSTODIAL DEATH – The Legal Murder

Updated: Dec 13, 2020

- Anosh Irani




Introduction


Custodial Death is one of the worst crimes in a civilized society governed by the rule of law. Does a citizen shed of his fundamental right to life, the moment a policeman arrests him? Can a right to life of a citizen be put in abeyance on his arrest? The answer indeed has to be an empathetic “No”. -Supreme Court in D.K. Basu v. the State of West Bengal AIR 1997 SC 610.

A death in custody is a death of a person in the custody of the police, other authorities or in prison. In the 21st century, death in custody remains a controversial subject, with the authorities often being accused of abuse, neglect, racism and cover-ups of the causes of these deaths. India has time and again witnessed the basic fundamental rights of the prisoners being shattered and the use of coercion and torture to take the favourable statement, and what good does it serve when the statement made to the police machinery is not admissible before the judicial pillar of democracy, ever wondered why? The police administration is always criticized for custodial deaths, torture, and the use of unlawful means during the investigations. It’s legal validity is till date a controversial issue and is always debated as the popular retributive-deterrent philosophy has validated this barbarity.


Key Factors


Police system is the main arm of the democracy that deals with the common man directly. Hence, there arises an urgent need to prevent abuse of the power and direct it in the right direction. To achieve this, it is primarily very essential to study the reasons behind the problem of custodial violence. Under what circumstances, does an educated officer of law resort to such inhuman tactics?


1. Illegal Arrest and Detention.

The powers and authorities trusted in the police machinery seems that they have gone haywire and to no good use unless it’s a national threat. The powers given to the Police administration for the purpose of dealing with the crimes in the society are many times used by them to implicate innocent and poor people in false and fabricated cases under local and special laws. As much as it’s a shame to accept that these things happen even today in our society, it is also a mental trauma to the one who is detained and to his/her family members.


2. Punitive Violence.

There are a few misguided officers who feel that there is no better way to punish rather than assaulting a criminal and to torment him for days. However, as mentioned earlier, these misguided and ignorant acts lead to resistance and dilemma in the minds of the people who think otherwise and to be clear who think that everyone deserves a chance to be change and if not undo, then not redo their actions.

3. Institutional Challenges.

The entire prison system is inherently opaque giving less room to transparency.

· Prison access is not provided without prior permission such as depositing “Rs. 1 lakh in the name of the superintendent of the concerned jail” before entry.

· Excessive scrutiny is done of all recorded or documented material in the prison.

· India also fails in bringing the much desired Prison Reforms and prisons continue to be affected by poor conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons.


4. Work Pressure.

Also, insurgent groups, which nowadays cause chaos and massacre in many areas, consist of well-trained criminals who are highly motivated to their cause and do not reveal any information quickly. In such a situation, the mental pressure becomes a reason for adopting brutality as a means to retrieve information from criminals.

In the landmark case of D.K.Basu v. State of West Bengal, the Supreme Court of India observed in this widely publicized death in police custody that using torture to extract information would neither be ‘right nor just nor fair’ and therefore would be impermissible and offensive to Article 21. The court noted the ubiquity of torture and third-degree methods in police investigations and lamented the ‘growing incidence of torture and deaths in police custody’ and held: Such a crime-suspect must be interrogated- indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He can’t however , be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. The Supreme Court of India ruled that the burden of explaining a custodial death lay on the police rather than the victim. The court granted compensation on the constitutional basis in public law for the infringement of fundamental rights.


Further in the aforementioned case, It referred to its duty to enforce Fundamental Rights under Articles 14, 21 and 32 of the Indian Constitution and the need to make the guaranteed remedies effective and to provide complete justice.

Article 22(1) and 22(2) of the Constitution are also relevant for the present purpose, because one of their objects is to ensure that certain checks exist in the law to prevent abuse of the power of arrest and detention. Both the provisions referred to above, have a vital importance to the theme of the present thesis. The right to consult a lawyer is intended to enable the detained person, inter alia,

· To secure release, if the arrest is totally illegal,

· To apply for bail, if the circumstances so warrant,

· To prepare for his defence, and

· To ensure that while he is in custody, no illegality is perpetrated upon him.DATA AND


Statistics


According to National Crimes Record Bureau(NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India.

Only 4.3% of the 70 deaths in 2018 were attributed to injuries during custody due to physical assault by police.

· Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Odisha, no policeman was convicted for such deaths across the country.

· Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. And only 344 policemen were convicted in those cases.

· Reasons for Low Conviction: Most of custodial deaths were attributed to reasons other than custodial torture, which included suicide and death in hospitals during treatment.


Suggestions to prevent The Illegal Violence by a Government Body


· 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 measures 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.


References:

1. The Hindu

2. Reports. https://www.thehindu.com/news/ntionla/five-custodial-deaths-in-india-daily-says-report/article31928611.ece

3. NCRB Data

4. CHRI website on custodial deaths

5. D.K. Basu Case

6. Law Commission report no. 273

7. NAT reports

8. India’s annual report on torture,2019 w.r.t international day in support of victims.


Anosh is a third year student at Pravin Gandhi College of Law, Mumbai.

(iranianosh1199@gmail.com)

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