Home Code of Criminal Procedure All you need to know about custodial deaths and police violence

All you need to know about custodial deaths and police violence

November 21, 2023

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This article has been written by Saraswati Kumari, pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

“Custodial violence” is not just a word; behind this word, there is a lot of pain and cry of a human being who has lost their life in prison due to the “third-degree torture” done by the police officer, basically to extract the truths of such offences, which may or may not be done by the accused.

Custodial death is a universal problem, and it has been considered the cruellest form of violation after the heinous crime of rape. Police are considered safeguards or guardianships of the prisoners, and here the saver is only violating the laws and rules that are made for the welfare of the citizen and the protection of humankind.

The truth about custodial violence in India

A death that takes place in a correctional facility or while a person is under the care of law enforcement is referred to as a custodial death. It can occur due to various causes, such as excessive use of force, neglect, or abuse by the authorities.

Custodial death is not just a case in Indian society; it is practised around the world. In the custodial death case of the USA, on May 25, 2020, George Floyd, a 46 year old black American man, was murdered in Minneapolis by Derek Chauvin, a 44 year old white police officer. Floyd had been arrested after a store clerk alleged that he made a purchase of cigarettes using a counterfeit $20 bill. Their was a huge protest in the USA due to the fact that Congress introduced a Police Reform Bill, and along with that, a National Database for Police Conduct was made to maintain the police register. In India, an Anti-Torture Bill was talked about but never passed.

What are the reasons behind custodial death

There are various reasons behind custodial death; some of them are:-

Absence of strong legislation- India does not have anti-torture legislation and is yet to criminalise custodial violence.
Excessive force- The police use excessive force and torture the victim brutally in order to make him talk or to give them the information they want.
Lengthy judicial processes- Due to the lengthy and expensive formal processes followed by courts, they deter the poor and the vulnerable.
Psychological aspects- this is one of the aspects in which prisoners are completely neglected, and there is no psychiatric help available to these inmates to cope with the trauma they face.
Other factors:
- Medical neglect or lack of medical attention, and even suicide.
- Poor training or a lack of accountability among official employees like police officers or government servants.
- Inadequate or substandard conditions in detention centres.

Provisions regarding custodial deaths

Constitutional Provisions

Article 21

Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian Constitution.

Article 22

Article 22 provides “protection against arrest and detention in certain cases”. The right to counsel is also a fundamental right under Article 22(1) of the Indian Constitution.

Other provisions

Code of Criminal Procedure (CrPc)

In 2009, amendments were made to Section 41 of the Code of Criminal Procedure of 1973 to include protections against arbitrary arrests and detentions for questioning; documented procedures and reasonable grounds for the detention; transparency regarding the arrest process for family, friends, and the public; and access to legal representation for protection.

Indian Penal Code

Sections 330 and 331 of the Indian Penal Code of 1860, provide punishment for injury inflicted by extorting confession.

Section 302 of the Indian Penal Code: If a police officer is liable for the death of a suspect in the course of custody, he or she will be charged with murder and punished.

History of custodial deaths

Custodial deaths are not a recent problem or concept for countries like India. The first time it was raised was in the UN Convention on Torture of 1975. India is a signatory member of the UN, so to apply any law by the UN in India, firstly, our parliament has to make a law for it. So, in Lok Sabha, a Prevention of Torture Bill 2010 was introduced. Under this Bill, if any public servant is seen doing any torture, punishment is provided. Here, ‘Torture’ means if any public servant pulls out the information from any individual or third party by grievous hurt to life, limb, or mentally torture, then punishment for ten years will be provided.

The Bill was passed to the Rajya Sabha Select Committee. Their recommendations were the following:

Expanding the definition of torture
Torture against woman or child should have severe punishments
And set up an independent authority.

But still, after many changes, the bill was not passed by the Rajya Sabha. In 2017, the law commission said, “We are seriously considering the bill and looking into it.” Changes will be required in IPC, CrPC, and evidence.

Landmark judgements on police violence and custodial deaths

Rudal Shah vs. State of Bihar and Anr. (1983)

In this case, the Supreme Court said for the first time that if there is a violation of the basic rights of an individual by a state, then he/she should be liable for a fine.

Facts of the case

Rudal Shah, the petitioner, was arrested for the murder of his wife. After serving his sentence, he was acquitted by the session court of Muzaffarpur, Bihar. However, he was not set freed from prison; after serving 14 years more, he was freed from jail. So, a petition for Habeas Corpus was filed before the Supreme Court (to have a body) on the ground that the petitioner was detained beyond the period of imprisonment.

Issues raised

The court was faced with the question of whether the petitioner is entitled to compensation under the ambit of Article 32 of the Indian Constitution?
Does the right to compensation for illegal detention fall under the purview of Article 21 of the Indian Constitution?

Judgement by the Court

The judges issued the petition, saying that the imprisonment of Mr. Rudal Shah (the petitioner) beyond the term of imprisonment was completely illegal. Moreover, he also added that someone could not be detained for a longer period of time if he had been mentally ill just at the time he was freed. So, a compensation of Rs. 30,000 in addition to the sum of Rs. 5000 was awarded to the petitioner.

D. K Basu vs. State of West Bengal and Ors. (1997)

Facts of the case

In this case, D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation, wrote to the Supreme Court of India, drawing his attention to news about deaths in police custody published in the Telegraph Newspaper. The petitioner requested that his letter be accepted as Writ petition under the “Public Interest Litigation” category.

While the petition was still being considered, Mr. Ashok Kumar Johari wrote to the Chief Justice about Mahesh Bihari of Pikhana’s death in Aligarh Police custody. Both of these letters were deemed Writ petitions. The Court sent notices to India’s law commissions and all state governments, demanding that they come up with suitable measures to deal with the situation within two months.

Issues raised

Why are there more crimes against people in custody or in lockups every day?
Is it necessary to give specific guidelines in order to make an arrest?

Guidelines issued

The guidelines issued by the Apex Court are as follows:

To maintain an arrest memo regarding all the details of the arrest, for example, witness signature, time, date, and place of arrest.
Relatives should be informed about the arrest of the person.
Police must notify a detainee’s time of detention and place of custody where he is being kept to the detainee’s next friend.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detained.
The arrestee must also be examined at the time of his arrest, and all major and minor injuries , if present on the body, must be recorded. And the inspection memo must be signed by both the detainee and the arresting police officer.
Their should be a medical examination of an arrested person by a trained physician every 48 hours.
Copies of all this should be sent to the magistrate.
During interrogation, the arrested person can meet with his/her lawyer.
There is a police control room in every state or district headquarters.

Conclusion

India’s police force interrogates suspects and extracts information from them using force or third-degree torture. As a result, the accused committed suicide by severing his nerves, hanging himself, poisoning himself,or burning himself. Lack of proper training and preparation for interrogations and bias-based harassment of the accused led to a day by day increase in custodial violence every year.

References

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All you need to know about custodial deaths and police violence

Introduction

The truth about custodial violence in India

What are the reasons behind custodial death

Provisions regarding custodial deaths