This article is written by Mohammad Sahil Khan of Dr Ram Manohar Lohiya, National Law University, Lucknow. The article deals with custodial deaths, rules violated in custodial deaths, laws penalizing the offence of custodial death and measures to prevent such forms of deaths.
This article has been published by Sneha Mahawar.
Table of Contents
Custodial death is not a recent concept, especially in India where the phenomenon of custodial death has been carried out since the times when India’s sovereignty was in the hands of Britishers. Police brutality and violence have exponentially grown over the last four-five years. It reflects a dearth of legal provisions in our judicial system to reprimand law enforcing authorities for carrying out brutal practices and resorting to torture by using ‘performance of duty as a defence.
Police brutality often causes grave injuries to the accused and to prevent such mishaps, the police forces should be warned to use reasonable amounts of force. The perception created by the media against the accused is also a contributor to custodial violence. The death of George Floyd in the USA due to police brutality led to a whole new movement “Black Lives Matter”. The death of Jayaraj and Bennix in the custody of Tamil Nadu enraged public sentiments and people voiced for having an adequate mechanism to prevent the police torture. These incidents highlighted the absence of anti-torture law in India and the voices have been raised to have an act in place to prevent such incidents from happening.
Judicial and police custody
Usually, custody and arrest are perceived as synonymous. However, this is not true. Custody means keeping an individual in protective care based on the apprehension that he or she may cause harm to society.
The term ‘arrest’ means that an individual is formally taken into police custody on suspicion of committing a crime. Thus, in every arrest there is custody but vice versa is not true.
When a police officer arrests an individual accused of committing a crime and brings him to the police station, it is called police custody. In police custody, the detainee is held for not more than 24 hours in jail at a police station and during this time the officer-in-charge interrogates the suspect. Police officers must produce the suspect before the judge within 24 hours of detention.
In Police custody, the accused is kept in the physical custody of police but in judicial custody, the accused is kept in the custody of the magistrate of the concerned area. As opposed to police custody, where the suspect is kept in police lock-up; in judicial custody, the accused is kept in jail. The police officer in charge is not allowed to investigate the suspect in judicial custody unless the court opines that the interrogation is necessary under the facts produced before the court.
Custody and judicial remand under CrPC in India
CrPC contains certain provisions with regards to judicial remand and custody of an individual. According to Section 57 of the CrPC, a police officer cannot detain a person in custody for more than 24 hours. If a situation arises wherein, a suspect needs to be detained for more than 24 hours, the officer needs to seek special permission from the magistrate under Section 167 of the CrPC.
Section 57 is known as remand or pre-trial detention. Remand has two connotations, the first one is to send the accused back to the authority responsible for its detention and secondly it means to send cases from the appellate court to the lower court. Section 167(2), 209(b) and 309(2) empowers the court to remand custody of an accused. All the three sections come into existence at different stages of a criminal trial. The provision for remand under Section 167(2) of CrPC is associated with the initial stages of investigation, it is used in furthering the investigation which can be either police or judicial custody. Remand under Section 209(b) of the CrPC is used when the magistrate commits the case wherein, the magistrate can remand the accused until the completion of the trial. Section 309(2) pertains to stage after cognizance, where the subject can be sent only to judicial custody.
The custody period is not extended more than 24 hours in order to protect the suspect from any unscrupulous act which might be committed by a police officer. In case, if the investigation could not be completed within 24 hours, the accused must be forwarded to a Judicial Magistrate. The Judicial Magistrate cannot extend the period of remand for more than 15 days. Section 167(2) contains provision for the magistrate to remand an accused for a term of 60 days maximum for offences that are not punishable with life imprisonment, death or imprisonment upto 10 years. When it comes to offences that are punishable with life imprisonment, death or imprisonment upto 10 years or more, the magistrate can remand judicial custody for a maximum term of 90 days. If the maximum term of remand is exceeded, the suspect shall be released on bail.
What is custodial death
Custodial death refers to the death of an accused during pre-trial or after conviction. The death is caused by the direct or indirect act of police during their custody. It includes death occurring not only in jail but also on medical or private premises, or in police or another vehicle. Custodial deaths can be classified into three types:
- The death occurred in police custody.
- The death occurred in judicial custody.
- The death occurred in the custody of army or paramilitary forces.
Custodial death can occur due to some natural sources, where there is no involvement of any kind of foul play by the police, for example- instances when a convict or an accused dies of an illness. But the problem arises when the law enforcement authority gets involved in the death of an individual while he or she is in their custody.
It becomes extremely difficult to prove the fault of police in such cases because of the tactics employed by them. Sometimes, even before an arrest is made, the accused are tortured by the police authority which enables the police to claim that the injuries are not caused due to custodial brutality but have occurred even before the accused was under the custody of the police. ‘Fake encounters’ is a term that is doing rounds in the news in the recent past; it is also a form of custodial death. It is very difficult to establish the liability of the police and to prove them guilty because when these incidents occur, all the evidence is with the police; so it becomes next to impossible to prove their malicious act.
Custodial violence is recognized as one of the most brutal forms of human rights abuse. The Constitution of India guarantees the right to life and liberty to individuals and prohibits any sort of custodial torture to take out confessions from the accused. The Constitution of India calls for the safety of convicts and accused in the police and judicial lock-ups, but the authorities such as the police undermine such constitutional structures and carry out custodial violence and torture.
International laws dealing with human rights
Abuse of human rights is a major issue all around the globe, each country has its way of preventing human rights abuse. As far as custodial deaths are concerned, there are various international safeguards to protect the rights of the arrestee.
Universal Declaration of Human Rights, 1948 (UDHR)
UDHR explicitly states that every person should be treated as innocent until the individual is found guilty. Article 5 of UDHR deals with the issues of torture and cruelty. According to Article 5 of UDHR, no person should be tortured or treated with cruelty, irrespective of the geographical location of the individual.
International Covenant on Civil and Political Rights, 1966
Article 6 of the International Covenant on Civil and Political Rights states that every individual has the inherent right to life and no one should be arbitrarily deprived of his right to life. ICCPR prevents cruel, degrading and inhuman treatment of prisoners. No individual shall be arbitrarily arrested or detained.
United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015
Section 6 of the Convention discourages any discrimination against prisoners based on race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.
Section 7 of the Convention calls for the maintenance of the register to keep a record of the prisoner entailing the identity of the prisoner, the reasons behind his actions and the day of his admission and release from the cell.
Section 8 deals with the protocols for keeping prisoners in the cell. This Section states that male prisoners and female prisoners should be allocated to different institutions and should be kept as far as possible.
Domestic cases associated with custodial death
Joginder Kumar v. State of U.P and others, 1994
In this landmark case, the Court observed that the rights under Articles 21 and 22(1) of the Constitution need to be recognised and must be protected. The Court issued a few guidelines to ensure the protection of these rights.
- The arrested person should be informed about his or her right by the police officer when the arrested person is brought to the police station.
- An entry needs to be maintained in the register which contains the information about who was informed about the arrest of the accused.
- Articles 21 and 22(1) should be strictly recognised and enforced.
- The Magistrate shall determine whether all the requirements are fulfilled and obeyed by the police authority.
The landmark judgement suggested an important procedural mechanism which could be proved beneficial if it is implemented in the right spirit. The judgement is important in the essence that it recognises the fundamental rights and basic human rights of the individual and provides a way of protecting them.
J. Prabhavathiamma v. the State of Kerala and others, 2007
The case pertained to the death of a scrap metal shop worker in custody in Thiruvananthapuram. The hearing of the case lasted for a decade and the CBI Court ultimately sentenced the two accused serving personnel to the death penalty.
Justice Nazar remarked that the police officers have brutally murdered the victim and have adversely affected the reputation of the police institution. The judge also held that such heinous acts cannot be pardoned because they will affect the law and order and it would encourage police officers to exercise their power arbitrarily.
Death sentence is a kind of punishment that is rarely awarded but in this particular case, the Bench adjudged on the basis of gravity of the offence committed and by awarding death sentence, set a precedent to prevent such activities in the future.
Yashwant and others v. the State of Maharashtra, 2018
The case involves nine cops of the Maharashtra police who were accused of causing a custodial death in 1993, the High Court of Bombay sentenced them to imprisonment for a term of three years. The Supreme Court upheld the order of the high court and extended the punishment sentence from three years to seven years each.
Justice N.V. Ramana and MM Shantanagoudar remarked that the unfortunate incident involving the police erodes the confidence of people in the criminal justice system. The Court found the police personnel involved in the incident to be liable under Section 330 of the Indian Penal Code for causing voluntary hurt to extort a confession from the victim.
The extension of the punishment is absolutely justified in the prevailing case because of the nature of the offence committed. It is important that the law enforcement agencies act as per the due process of law established in the Constitution. The judgement is landmark because the Apex Court not only withheld the punishment, but rather they extended the term which established a precedent that the judiciary would not entertain any cases pertaining to violation of human rights.
International cases associated with custodial death
Case of Aydin v. Turkey, 1997
The case was regarding the alleged rape and ill-treatment of a female arrestee, Aydin. The European Court of Human Rights was adjudicating the case and they observed that the actions of the Turkish police personnel were unjustified. The Court found the personnel to be liable for breaching Articles 3 and 13 of the European Convention on Human rights and Fundamental Freedoms. Article 3 of the Convention contains a provision for the prohibition of torture and Article 13 provides for a right to an effective remedy which was denied in the case as the complaint of the victim was not considered and thoroughly investigated.
Maria Elena Loayza Tamayo v. Peru, 1997
In this case, the victim was detained by the National Counter-Terrorism Bureau. In detention, the victim was inhumanely treated where she was tortured and repeatedly raped by the officials to extort a confession from her. She lodged a complaint in the Inter-American Commission of Human Rights accusing officials of violating her human rights. The Commission further transferred the case to the Inter-American Court. The Court observed that the officials had violated Articles 5, 7, 8(1), 8(2), and 8(4) of the American Convention on Human Rights and ordered the release of the victim.
Violation of Rule of Law
Custodial death because of torture and violence by police goes against the fundamental structure of the Constitution of India and as a result, it violates various fundamental laws that are guaranteed by the Constitution.
- Article 20(1): This Article states that no person shall be convicted of any offence, except those which are in contravention of the law in power at the commission of the Act. Thus, this law prohibits punishment above what is mentioned in the law that deals with the offence.
- Article 20(3): Article 20(3) prohibits a person to be compelled to be a witness against himself. It is an extremely instrumental law as it protects the accused from giving confessions when the accused is coerced or tortured to do so. Under Section 161 of the Code of Criminal Procedure, police have the right to interrogate the accused; but during an investigation, if police resort to coercion to seek out information from an accused, it would be termed as forced testimony. Forced testimony is violative of Article 20(3) and thus, it is not considered.
- Section 163 of Code of Criminal Procedure, 1973: This Section of Code of Criminal Procedure, 1973 prohibits any investigating officer to use a threat or any other sort of inducement to obtain a confession from the accused which would be presented as evidence against him.
- Section 24 Indian Evidence Act, 1872: Section 24 of Indian Evidence Act, 1872 declares that all the confessions made by the accused by succumbing to the threat, promise or inducement of investigating agencies would not be admissible in the court of law. This Section primarily works for preventing the accused to give confessions against his will.
- Section 164(4) of Code of Criminal Procedure, 1973: This Section requires that signature and recordings of confessions are made properly and this should be further corroborated by the support of the Magistrate stating that confession has been made voluntarily.
- Section 348 of the Indian Penal Code, 1860: Section 348 deals with wrongful imprisonment and prohibits such sort of imprisonment to obtain confessions. Wrongful imprisonment is a punishable offence which makes the offender liable for a fine and imprisonment of up to 3 years.
- Section 25 Indian Evidence Act, 1872: Section 25 protects to accused from the investigating agencies. Section 25 states that if any confession is made before the police officer, it cannot be used to prove an offence against him. However, Section 27 provides a small exception in cases where a custodial statement might lead to the discovery of a new fact.
- Section 26 Indian Evidence Act, 1872: Section 26 strictly states that any confession made in custody in the absence of a magistrate would be inadmissible in the court of law.
- Section 46 of Code of Criminal Procedure, 1973: This Section explicitly states that an accused cannot be tortured to death if the accused is not alleged for an offence punishable with life imprisonment or death.
- Section 49 of Code of Criminal Procedure, 1973: Unnecessary restraint is prevented under Section 49 of CrPC. The accused should not be subjected to more restraint than is required to prevent his or her escape.
Recent cases of custodial death in India
Jayaraj and Benix custodial death
Most of the cases associated with custodial death do not get much attention as they are quietly swept under the carpet and also because of the media trial which builds a narrative against the accused. However, the custodial death of Jayaraj and his son Bennix got the much needed attention and made people realise that even the law enforcement agencies can be absolutely brutal at times.
In the Jayaraj and Bennix death case, the accused died four days after their arrest. The father-son duo was arrested by the police for allegedly opening the cell phone store at the time of the lockdown curfew and the police authority took them to Kovilpatti. There are two versions to this case. The police officials’ version says that when Jayaraj and Bennix were asked to shut down their store, they refused to do so and sat on the ground, verbally assaulted the officials and also threatened to kill the officials. The police officials stated that they rolled on the ground and in the due course got themselves injured, ultimately leading to their demise.
The second version is reported by the eyewitnesses who state that the officials picked up the father-son duo on different days. The eyewitnesses have even mentioned that the victims had an altercation with the police authorities, a day prior to their arrest which provoked officials to arrest the victims on false charges. The brutality of the police action can be determined by the fact that the victims had to change their lungis six times which got drenched in blood. Benix’s sister has proclaimed that her brother and father were also sexually assaulted by police officials using steel batons. Eventually, the father-son duo succumbed to their injuries.
In this case, no procedures and policies were followed by the officials and excessive force was used by officials as they beat the victims to death. A large-scale protest was carried out against the police officers for breaching human rights and a huge uproar for justice occurred. Only after a massive outrage, actions were taken against the culprit, sub-inspector Balakrishnan and Raghu Ganesh, and police constables Murugan and Muthuraj were suspended.
Vignesh’s custodial death
On 18 April, 2022, Vignesh and Suresh were detained by the police officers during a vehicle check, where they recovered liquor bottles and ganja. Both Vignesh and Suresh were taken by the police officials to the Secretariat Colony police station. The day following the detention of Vignesh, he was declared dead by the doctors. A police constable, sub-inspector and a member of the Home Guards were suspended and the probe was initiated to look into the matter of suspicious death.
Following a huge outcry against the rising cases of custodial death, the case was handed over to the Chennai Police Crime Branch-Crime Investigative Department. The department probed the matter and arrested six police officials involved in the custodial death of the victim. The District Magistrate remanded judicial custody of the officials involved in the horrific event. The culprits were booked under Section 302 of the Indian Penal Code and the SC/ST Atrocities Act.
The officials were arrested on the basis of an autopsy report which pointed out that the 25-year-old victim had multiple injuries and fractures on his body and there were several bruises all over the body of the victim (especially on his head). Deep muscle injury, swelling, contusion and injuries on the arms were also quite evident.
Laws penalising the offence of custodial death in India
There is a need for new stringent laws to tackle the issue of custodial death as the numbers in the recent past have risen exponentially. However, there are certain legal provisions in the Constitution to penalise the offence of custodial death.
- Section 302 of the Indian Penal Code (IPC): 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 would be punished under Section 302 of the IPC.
- Section 304 of Indian Penal Code: Under Section 304 of the IPC, the police officer can be punished for ‘culpable homicide not amounting to murder. Section 304A can also be applied if the custodial death occurred by the negligence of the police officer.
- Section 306 of Indian Penal Code: Section 306 of IPC deals with punishments associated with abetment to suicide. If it is found that the suspect has committed suicide under custody and if the policeman has abetted the suicide; then he would be punished under section 306 of the IPC.
- Section 330 of the Indian Penal Code: It has been observed that police officers resort to violence and torture to obtain confessions and in the process, grave injuries occur to the accused. Section 330 of IPC deals with punishment for causing voluntary hurt.
- Section 331 of the Indian Penal Code: In case grievous hurt is caused to the accused during custody; it will amount to punishment to a police officer for causing voluntary grievous hurt.
- Section 176(1) of the Code of Criminal Procedure (CrPC): Section 176(1) empowers a magistrate to hold an inquiry relating to the cause of death; when death occurs in the course of custody.
- Section 176(1) of the Code of Criminal Procedure: If a person dies, disappears or if a rape is committed on any woman while the accused is under custody, an investigation will be launched and an inquiry would be held either by the Metropolitan Magistrate or Judicial Magistrate depending upon the jurisdiction of the offence committed.
- Section 7 of Indian Police Act: Section 7 of the Indian Police Act empowers senior police officers to dismiss or suspend a police officer in case the officer has been negligent in discharging the duty.
- Section 29 of the Indian Police Act: Section 29 contains legal provisions for penalising police personnel for carrying out their duty negligently. The penalty includes imprisonment for up to three months for imprisonment with or without hard labour for a maximum term of three months.
Statistics of custodial deaths in India
The National Human Rights Commission (NHRC) has recently raised an alarming figure related to custodial death in the period between 2021-2022. As per NHRC, there were 2,150 reported cases of death in judicial custody and 155 cases of death in police custody.
- Uttar Pradesh held the record for the highest number of deaths (448) in judicial custody.
- While Uttar Pradesh holds the record for the highest number of deaths in judicial custody, Maharashtra tops the chart in cases of deaths (29) in police custody.
- NHRC shared the number of custodial death cases of the last five years which were, 1940, 1696, 1933, 1782, 1761; in 2020-21, 2019-20, 2018-19, 2017-18, 2016-17 respectively.
- The total tally of custodial deaths of the past five years amounts to 9112 and of these many deaths, disciplinary actions were taken in only 21 cases of custodial deaths. These are extremely worrisome stats because it states that disciplinary action was taken only in 0.23% of the total cases of custodial death.
- From 2000-2020, 1888 custodial deaths have been reported all around the country. In 893 cases pertaining to custodial deaths, cases were registered against policemen, but only 358 police officers were charge-sheeted and only 26 of the policemen were convicted.
- While only 26 police personnel were convicted in the last 20 years; however NCRB record tells that 96 personnel were arrested between 2017 – 2020.
- As per the NCRB record, 69% of deaths in police custody between 2010-2020 occurred due to illness (40%) or suicide (29%). Illness and suicide are considered natural causes of death.
- Between 2015-2019, the deaths by suicide were significantly higher. During this period, 36% of death in police custody occurred due to suicide.
- Stats on physical assault have been recorded since 2014 and only in 6% of the total cases; has physical assault by police been observed.
Reason for rising custodial deaths
The statistics presented by the NHRC have shown a constant increase in custodial deaths. It is perturbing data because every individual has the fundamental right to life under Article 21 of the Constitution of India and if a law-enforcing body is breaching its duty of protecting lives, it becomes even worse. The 2018 prison report of NCRB lists out that 149 custodial deaths occurred due to unnatural causes and some deaths occurred due to unknown causes because some of the states were not providing the details of the deaths. A lot of custodial death occurred because of suicide; however, it is not clear whether the inmates committed suicide or were they forced to avoid further violence and torture. The psychological aspects of prisoners are completely neglected and there is no psychiatric help available to these inmates to cope with the stress or trauma that they are experiencing.
The prison conditions are miserable, to say the least, medical facilities offered to the inmates are not up to the mark apart from that there are frequent instances of fighting among inmates which are quite fatal. The physical agony just adds up to the mental trauma and severely impacts the mindset of an inmate. These are basic essential requirements that need to be ensured by the state authorities to protect the basic fundamental right Right to Life.
One of the most important reasons behind the rise of custodial death is the excessive power vested by the State in police authorities. Section 49 of the Code of Criminal Procedure explicitly specifies that the arrested person should be subject to a reasonable amount of force and should not be restricted to more restraint than is necessary to prevent his or her escape. However, police authorities often neglect these norms and resort to an excessive amount of force because in cases of custodial death, they are the ones investigating it and they have all the evidence so many of such death cases get covered up in administrative cover-ups. The growth in the number of custodial deaths can be attributed to the fact that no stringent actions were taken against the individuals in the past and no precedent has been set so far. It is high time to set a strong precedent so that the law-enforcing authorities do not exceed their powers.
Custodial torture refers to the torture of a suspect while the suspect is under a law enforcement agency’s custody. The Supreme Court has blatantly rejected the notion of custodial torture, citing it as a naked violation of human dignity and degradation. Custodial torture is an offence punishable by law, but often the offender does not get punished owing to the irregularities in the system. It has been reported that the doctors conducting the post-mortem are pressured by the police authorities, and as a result, they are not able to perform their medical duty diligently. A post-mortem is an essential requirement of the investigative procedure; evidence can be obtained in the process of a post-mortem. Since post-mortem is influenced and the other evidence is with the law enforcement agencies, who investigate matters about custodial death; as a result, the culprits do not get convicted.
India has not ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment despite being a signatory since 1997. Despite the Law Commission’s proposal of an anti-torture law in 2017, India does not have any anti-torture law. These are some of the key reasons behind the non-reduction of instances of custodial torture and deaths.
The National Human Rights Commission was instituted on 12 October 1993. NHRC’s statute is contained in the Protection of Human Rights Act, 1993. NHRC aligns with the Paris Principles, adopted in Paris in October 1991 at the first international workshop based on the protection and promotion of human rights.
The Commission, soon after its constitution, realised that custodial death is an area of grave concern and, therefore, issued certain guidelines to the law enforcement agencies. The reporting of deaths in correction homes and police lock-ups was made mandatory, District Magistrate and Superintendent of Police are required to report the matters of custodial death to the Commission within 24 hours of the occurrence of death. Apart from that, videography of the post-mortem was made necessary. The Commission has played a crucial role in limiting some custodial deaths by taking proactive measures. The Commission takes cognizance of the complaints made by the family members of the victims and does not solely rely on the data presented in the police reports. A report issued by Transparency International in 2019 stated that a total of 31,845 cases of custodial death have been recorded by the NHRC between 1993 to 2016. Although the NHRC has played its role well, a lot needs to be done. The decisions of the Commission should be made enforceable, which would instil fear in the law-enforcing agencies as they would be mindful in their application of force.
International Human Rights Law, 1948
The International Human Rights Law contains a provision which protects people from torture and other enforced disappearances.
United Nation Charter, 1945
The United Nations Charter calls for treating prisoners with dignity. The Charter clearly states that despite being prisoners, their fundamental freedoms and human rights are set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953
The Convention was formed to protect the human rights of the people belonging to the countries that are included in the Council of Europe. Article 3 of the convention prohibits torture and cruel and inhuman treatment of any individual.
The Nelson Mandela Rules, 2015
The Nelson Mandela Rules were adopted by the United Nations General Assembly in 2015 to treat prisoners with inherent dignity and to prohibit torture and other ill-treatment.
The American Convention on Human Rights, 1969
The convention seeks respect for mental, physical, and moral integrity and freedom from any sort of cruelty, torture, or degrading punishment, as entailed in Article 5 of the Convention.
What could be the solution to put a stop to custodial deaths
The alarming figures for custodial deaths show a sad state of law and order in India. People losing their right to life because of police brutality and violence is an unfortunate event. The fact that the officers who resort to torture and violence represent an even grimmer condition. Lack of evidence against police for causing custodial death as they are in charge of all the evidence and records is a helpless condition as punishing the personnel without evidence is not possible. However, certain steps can be taken to put an end to custodial deaths.
Firstly, the eleven guidelines laid down in the landmark case of D.K. Basu v. State of West Bengal, 1996 should be properly implemented.
- The personnel who have carried out the arrest and are responsible for the interrogation process of the accused must carry his identification card which has the personnel’s name and designation mentioned.
- The police personnel must make the memo of the arrest at the time of arresting the accused.
- Relatives or friends of the accused must be informed regarding the arrest of the accused as soon as possible.
- If the relatives or friends of the accused live outside the district, they must be informed about the arrest through a ‘legal aid organization’ in the district and the police station of the area telegraphically after 8-12 hours of arrest.
- The arrested person must be instructed about his right to inform someone about his arrest.
- An entry record of the arrest must be made.
- Accused who have been arrested must be examined at the time of the arrest.
- A medical examination of the arrestee must be conducted within 48 hours of his detention.
- All the documents and memo copies should be sent to the magistrate of the concerned area.
- The arrested individual has the right to meet his lawyer during the investigation.
- The guidelines require the establishment of a police control room in all state headquarters and districts, and information regarding the arrest must be conveyed to the police control room within 12 hours of effecting the arrest.
It can be inferred by the record that since a majority of police personnel are charge-sheeted; they do not get convicted, and as a result, they don’t fear using force on the accused. This must be changed if custodial death is to be prevented, because if the personnel are granted immunity against excessive use of force; it erodes the basic essence of the Constitution of India. A stringent legal provision needs to be introduced to punish personnel who abuse their power.
Secondly, often a suspect or an accused is subjected to a media trial. This shapes the mentality of the common public that the accused must have been a culprit, and as a result, torture experienced by the accused is often overlooked. It also assures the police authorities that they are performing their duty in the right spirit.
Thirdly, lower-ranked police officers are surmounted by the pressure imposed on them by higher-ranked police or government officials to solve a case or extort a confession, and as a result, succumbing to that created pressure, police officers resort to violence. In Prakash Singh v. Union of India, 2006; the Apex Court directed the State and Central governments that no additional pressure should be created on the police authorities.
Apart from the D.K. Basu v. State of Bengal judgement, 7 directives laid down in the Prakash Singh v. Union of India needs to be implemented as well.
- The court directed the formation of a State Security Commission to ensure that the state governments are not imposing pressure on the police. The court proposed that the commission should lay down some guidelines for the police and the performance of the police officers should be evaluated.
- It must be ensured that the Director-General of the Police is appointed by a merit-based system for a tenure of two years.
- The third directive stated that the SP in charge of the district and station house officers in charge of the police station should be provided with a minimum tenure of two years.
- The fourth directive called for the separation of the investigation and law and order functions of the police.
- A Police Establishment Board needs to be set up to decide on the issues about the postings, transfers, promotions, and other service matters of police officers at or below the rank of Deputy Superintendent of Police (DSP). The boards would also recommend the transfers and postings of the police officers ranked above DSP.
- A Police Complaint Authority (PCA) has to be constituted at the state level to inquire into public complaints issued against police officers of rank DSP or above in cases of misconduct related to grievous hurt, rape, or custodial death. PCA at the district level should be established to deal with complaints of officers below the rank of DSP.
- The last directive urged the formation of the National Security Commission at the union level, whose responsibility would be to prepare a panel for the selection and placement of Chiefs of the Central Police Organisation with a minimum tenure of two years.
The statistics presented by NHRC and NCRB reflect horrifying numbers of custodial deaths. It must be changed. The protection that police get from the state despite misusing their power is a big issue. There is a need for monitoring police actions in cases of custodial death, and police officers who act in mala fide must be convicted. A precedent needs to be set to make the authorities realise that they cannot exercise their power beyond their limits. If the current scenario is to be considered, it is very difficult to say that there will be any improvement regarding custodial deaths. There is a need for stringent legal action which will be solely dedicated to punishing the personnel who misused their power and whose brutal force led to a loss of life. For ensuring the reduction of instances of custodial death, the guidelines laid down in the landmark cases of D.K. Basu v. State of Bengal and Prakash Singh v. Union of India need to be strictly implemented.
Frequently Asked Questions (FAQs)
- Is there any anti-torture law in India?
India does not have an anti-torture law but there are certain legal provisions in the IPC and CrPC to deal with offences related to torture. The judiciary believes that the guidelines stated in D.K. Basu v. State of West Bengal, 1996 along with legal provisions in the IPC and CrPC are enough to punish the officials involved in custodial death.
- What did the 273rd report of Law Commission report regarding torture?
The 273rd report of the Law Commission reported regarding torture that police officers accused of torture should face criminal prosecution rather than mere administrative actions. The report called for punishing not only police officials but also military and paramilitary personnel.
- Are the guidelines of the NHRC concerning custodial torture enforceable in court?
The guidelines of the NHRC are not enforceable in court; they are designed to prevent the occurrence of custodial torture. NHRC’s focus is more on addressing the complaints of the victim’s family and they have directed certain guidelines to prevent arbitrary use of power by the police officials to prevent custodial death.
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