This exhaustive article is written by Shreya Tandon, a law student from Vivekananda Institute of Professional Studies (VIPS), IP University. In this article, the author talks about the scenario of custodial deaths in India and elaborates on the whole journey of a prisoner from the date of arrest to the rights he holds as a prisoner and the legislations that govern the behaviour of police constables when they breach their duty.
Table of Contents
‘When tortures, custodial violence, and fake encounters are equated with justice, the constitution becomes a victim too.’
In society, we often tend to ignore certain topics that might need one’s attention and slowly and steadily this ignorance takes the form of acceptance. For example, if we take a look at some popular well-known movies such as Dabang, Singham, Rowdy Rathore, Satyamev Jayate, and so on, the common thing which can be seen in all of them is police torture and police violence. It is observed that viewers seek to promote and encourage such violent activities. According to an average Bollywood viewer, the duty of a policeman is not only to maintain law and order but also to do justice to the victim by killing the villain of the movie (violator of the law.)
The debate to make an anti-torture law was begun by the United Nation in the UN convention against torture and other cruel, inhuman, or degrading treatment or punishment 1975. India being a signatory United Nations member if it wants to implement the same, has to first make a law that the Parliament approves off. Therefore, in 2010, the Prevention of torture bill was introduced in the Lok Sabha assembly which was further passed to Rajya Sabha’s elected committee for additional suggestions on 6th May 2010. But unfortunately, even after proposing amendments to the Bill, till date, it has not been passed by Rajya Sabha. The Bill collapsed with dissolution of the15th Lok Sabha. Later, the Prevention of Torture Bill (2017) was introduced as a private member Bill in the Rajya Sabha after the law commission’s suggestion to the Indian government but till now, no progressive steps have been taken to facilitate its implementation. Again in the year 2018, in the same manner, it was brought up in the Lok Sabha assembly and it again lapsed due to the dissolution of the 16th Lok Sabha.
According to the list of custodial deaths reported by each state to the National Human Rights Commission (NHRC), India reported a vast number, 1636 deaths up to 31st March, 2018. As given under the Police Act, 1861, the police force is an instrument for the prevention and detention of crime but what happens when the police officers step out of their duties and misuse their powers? Will they be equally liable for the breach of their powers or they can escape by justifying their need to perform certain grave and violent actions that may sometimes have caused the victim’s death?
‘Custodial violence’, the brutality by our very own pretentious police officers
The term ‘custody’ means detention or restricting a person’s freedom of movement but in today’s scenario this term is interpreted wrongly by the authorities in power and it seems that the police have themselves taken law in hand which is a disaster in disguise.
Custodial violence solely refers to the inhuman and ferocious acts of police officers on prisoners placed in judicial and police custody. The cold-blooded treatments may include torture, rape of female victims, violently beating prisoners which further ends up taking their lives, molestation, and fake encounters.
Two recent 2020 cases that made everyone’s heart cry out loud
While in the past few months there has been an abundance of media bombardment in relation to things like IPL, Bollywood, or politics whereas, there has been hardly any awareness or even a pinch of interest shown in the societal malaise. News related to police brutality in India is highly underrated and has become so ordinary and typical that it has started being faded away from people’s memory.
The hideous incident of the custodial death of a father-son duo named Jeyaraj-Beniks turned up recently in June this year. They used to reside in Thoothukudi, Tamil Nadu and ran a mobile shop in a nearby market. One of the days during curfew they were alleged for keeping their shop open past curfew for fifteen minutes. They were taken into custody for three days and were tortured pathetically over a minor violation. On the third day of the lock-up, they took their last breath.
Another breath-taking case that spread like fire across the world was the death of a 46-year-old African American black man, George Floyd. On 25th May 2020 in Minnesota, a white policeman crouched on his neck for nine minutes straight which resulted in his death. George was accused of using a counterfeit $20 note at a local deli. According to the present four police officers, George opposed and battled the arrest once he was told to come out of his car. He was forcefully taken out, his hands were handcuffed, and he was made to lie on the road and a white officer named Derek Chauvin kneeled on his neck despite George conveyed ‘I can’t breathe’ and he repeatedly gasped and told the officer to stop, the officer continued to do so in the same position and he did not. After that George was taken to the hospital when he got unconscious, where he was declared dead by the doctors.
Some officers feel that threatening and violence is the only key to take someone’s confession, therefore, they use every possible vicious trick to dig the information out of the convicted minds. Despite the end number of legislations, custodial violence continues to take place not only in India but all around the world.
Everything you need to know regarding organizations of police, powers, and functions conferred by them
The criminal courts are framed from the rules of the Criminal Procedure Code (CrPC). In the case of the police force, it is somewhat different. The code presupposes the existence of the police and the police officers, and it only arms with certain powers and directs them to discharge certain duties.
Organizations of the police
Every State Government established its own police force which were formally enrolled. The force consists of such a number of police officers and men and is constituted in such a manner as the State Government may decide from time to time. The overall administration of police in the entire state is vested in the Director-General of police. The administration of police in every district vests in the District Superintendent of Police under the general control and direction of the District Magistrate (DM) who is usually the collector of the district. Every police officer appointed to the police force other than the Inspector- General of police (or Deputy or Assistant Inspector-General of police) and the District Superintendent of the police (or Assistant District Superintendent of Police) receives a certificate in the prescribed form by virtue of which he is vested with the powers, functions, and privileges of a police officer. The certificate shall cease to be effective and shall be returned forthwith when the police officer ceases to be a police officer.
Other police acts
The Police Act of 1888 enables the Central Government to create a special police district embracing parts of two or more states and extending to every part of such district the powers and the jurisdiction of a police force belonging to a state specified by the Central Government. This, of course, can be done only with the concurrence of the State Government concerned.
The reorganization of police has been on the agenda of the State and Central Governments for quite some time and in fact, many committees have gone into this question and made many recommendations as well. Despite the lapse of several years, no action was taken by the State or Central Government. The Supreme Court was therefore approached by the way of public interest litigation for compelling the government to act. Thus in 2006, in the case Prakash Singh V. Union of India the Supreme Court issued some of the guidelines as to the police set-up and directed the States and Centre to re-organize their police set-up as investigated in its judgment. It is one of the landmark judgments that orders the State and Central Government to make reforms and work for functional autonomy for the police departments in the country.
The Delhi Special Police Establishment Act, 1946 has also played an important leading role in police operations in recent years. The act provides for the constitution of a special force in Delhi for the investigation of certain specified offences in the Union Territories and also provides for the extension of the operation of this police force to other parts of India with the concurrence of the State Government concerned.
Police under the code
The Criminal Procedure Code confers specific powers, for example, the power to make arrest, search, and seizure on the members of the police force who are enrolled as police officers. A large set of powers has been authorized to police officers who are in charge of police stations. Such station house officers are also required to discharge onerous duties in relation to detention, investigation, and prevention of offences. As stated under the clause(s) of Section 2 of CrPC ‘police station’ means any place declared by the State Government to be a police station and includes any local area on this behalf.
As to understand the concept of custodial violence which solely includes breach of powers by police officers, it is very important to know what are those powers under the code.
Chapter XI, Preventive action of the police
Criminal jurisprudence is much more concerned with the prevention of offences, as it is with the trial and punishment of the wrongdoer. Preventive jurisdiction under the code is classified under two broad heads, Magisterial action (Chapter XIII and X of CrPC) which is quasi-judicial and quasi- executive (the police cannot take action on their own unless backed up by the order of the Executive/ Judicial Magistrate), and police action (Chapter XI of CrPC) which is purely executive. The preventive police action falls into three categories, stated below-
- Prevention of cognizable offences (Section 140 to 151 of CrPC)
- Prevention of Injury to public property (Section 152 of CrPC)
- Inspection of Weights and Measures (Section 153 of CrPC)
Arrest how made
Section 46 describes the mode in which the arrests are to be made, that is with or without a warrant. In making an arrest the police officer confines the person to be arrested unless there be a submission to custody by word or action. Mere gestures or words do not amount to arrest unless there has been an actual seizure or actual touching of the body is necessary. The process of arrest is as follows-
- Power to use force- It is laid down under Section 46 (2) – (3) and 49.
- Power to Search a place- Section 47
- Power to pursue offenders into other jurisdictions- Section 48
- Power to require subordinate officer to arrest- Section 55
- Power to re-arrest escapee- Section 60
After arrest procedure
- Search of arrested person- Section 51
- Seizure of offences weapons- Section 52
- Medical Examination of accused- Section 53
- Reports of arrest to be sent to District Magistrate- Section 58
- Discharge of person apprehended- Section 59
Rights of the arrested person
The arrest shall not only be rational and legal but it should be effected strictly according to the procedure established by law. The various powers of the police facilitating the making of arrest are subject to certain restraints. The imposition of the restraints can be considered, to an extent as the recognition of the rights of the arrested person. There are, however, some other provisions which have rather more expressly and directly created important rights in favor of the arrested person. The constitution of India also recognizes the rights of the arrested person under the ‘Fundamental Rights.’ The rights are:
- Information to be provided to arrestee (Section 50)
- Arrested person to be presented before a magistrate (Section 56)
- Arrested individual cannot be detained for more than 24 hours (Section 57)
- Consultation with lawyer/ Legal aid (Article 22(1) of the Indian Constitution and Section 303 of the code)
- Examination by the medical practitioner (Section 54)
- Special protection to females (Section 53(2))
- Compensation for an unlawful arrest (Section 357(3) of the code)
Procedure for inquiry under NHRC guidelines for custodial violence
To curb the problem of growing custodial violence in India, the National Human Rights Commission (NHRC) proposed a set of guidelines in regard to the conduct of magisterial required for intimidation of custodial deaths.
The NHRC, India was set up by an act of Parliament on 12th October 1993, known as the Protection of Human Rights Act, 1993 (PHRA). The reason for enacting it was the ‘better protection and promotion of human rights.’ It is an institution that acts as a complement to the judiciary and is engaged in- the protection and promotion of the constitutionally enshrined fundamental human rights of all people in the country.
In order to ease the complete process of setting forth the information of custodial deaths, the National Human Rights Commission (NHRC) announced fresh guidelines to the State Governments. In 1993, the body gave general instructions that if any instance of custodial death is observed in the premises, the commission must be acknowledged about it within 24 hours. This process would be followed with proper shreds of evidence including videography reports, post- mortem reports, and magisterial inquest reports.
Yet, it has been found that there were continuous instances of procrastination, and the unnecessary delay was made in sending such reports that further obstructed the procedure of the cases resulting from custodial deaths. Of the total cases of death in police custody reported in the period 1999-2000, the maximum number of cases for which inquiry reports are still awaited are –
Number of cases
On the whole, out of a total of 177 cases of death in police custody, registered in the period 1999-2000, the Commission is yet to receive the full reports in 165 cases. In the context of deaths in judicial custody, maximum reports are awaited from-
No of cases
916 cases of deaths in judicial custody were registered in the Commission during the period 1999-2000 of which reports have been received in 396 cases and are awaited in 520.
Thus now, the commission has ordered that all the reports containing the pieces of evidence and information regarding the instance shall be sent within two months of the incident. The postmortem reports have to be conveyed through a new performance which is constructed by the commission. Further inquiry of every case shall be done by Magistrate as soon as possible. In certain cases of custodial deaths, after post-mortem, the viscera are sent for examination, and the viscera report is called for. Yet, the viscera report is needed which takes some time in coming, and hence the Commission has cleared that the other documents and post-mortem reports shall be sent to the commission without any delay and there is no need to wait for the viscera report, which shall be delivered as soon as it was received.
These were the instructions that prevailed till now and were issued by the Home Secretaries to all the States and Union Territories. The new guidelines in regard to the conduct of magisterial required for intimidation of custodial deaths are as follows-
- Without any delay, the Magisterial inquiry would be conducted.
- The following are the duties of the Enquiry Magistrate
- Visit the place of crime.
- Note all the relevant facts.
- Record pieces of evidence.
- Make optimum level of effort to identify the witnesses who were present at the happening of crime.
3. A public notice will be issued to the relevant witness concerned with the inquiry. Mostly it is portrayed through the mode of print media such as newspapers.
4. It should be an exhaustive inquiry and should contain all the aspects namely:
- The reasons for death.
- Chain of events leading to the death of a victim.
- The causes of death.
- Any person found in suspicion of the planning of such disgraceful foul play would be pointed towards inquiry.
- The medical treatment that was provided to the deceased will be taken into account.
5. The inquiry Magistrate is under a duty to look into each and every medical report minutely and accurately.
6. The statements of family members, relatives, and people present during the event will be recorded.
7. A detailed report including all the annexures shall be prepared on time.
Powers related to NHRC
The NHRC has been given all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and any other matter that may be prescribed. In case of a breach, it calls upon the concerned government to take remedial measures and pay compensation to the victim or to the next of their kin and also remind public servants of their duties and obligations. Depending on the case, it may further initiate proceedings for prosecution, or any other suitable action that it may deem fit, against the person(s) concerned.
Another important feature, which it fully utilizes, is suo moto cognizance of serious matters, which it takes on the basis of newspaper and media reports.
The Commission has a wide mandate. Its functions, as laid down in Section 12 of the PHRA, include:
- Inquire, suo motu or on a petition presented by a victim or any person on his behalf.
- Intervene in any proceeding involving any allegation of violation of human rights pending before a court, with the approval of such court.
- Review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.
- Study of international instruments on human rights to make recommendations for their implementation.
- Undertake research in the sphere of human rights.
- Encourage the efforts of Non-governmental Organizations (NGOs) and institutions working in the field of human rights.
- Such other functions, as it may consider necessary for the protection of human rights.
Legislations by the Ministry of Home Affairs till date
The detained prisoners fall under Entry 4, the second list of the Seventh Schedule of the Constitution of India. It is the obligation of the State Government to manage and administer the condition and decorum of prisons. However, the Ministry of Home Affairs provides all the states and Union Territories with proper guidelines regarding the concerns of prisoners. The Bureau of Police Research and Development (BPRD) also talks about certain important issues in its Volume 66 Indian Police Journal.
- The Prisoner’s Act, 1984
- The Transfer of Prisoners Act, 1950
- The Repatriation of Prisoners Act, 2003
Model prison manual
Recent 2020 Advisories
- Issued on 25th February, 2020- Bringing attitudinal change in prison officials
- Issued on 2nd May, 2020- Management of COVID 19 in prisons
- Issued on 12th March, 2020- Precautionary measures COVID 19
Two most important Bills
The question regarding the need for reforms for prisons and laws that are required to control the custodial deaths had been raised and haunted over about three sessions in the Parliament this year. The need of assigning stricter punishment was felt even more after the encounter of Kanpur gangster turned politician, Vikas Dubey by Uttar Pradesh police and the shocking encounter of four accused in the Hydrabad vet’s rape case.
Abdul Wahab of the Indian Union Muslim League (IUML) talked about India being a signatory member to the United Nation Convention against torture against victims of crime and sought to segregate data on the number of such deaths in each state. He further added if the government has any plan to bring new laws for custodial deaths. The Ministry of Home Affairs (MHA), with regards to the UN Convention responded as follows:
“The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prescribes that each state shall take effective legislative, administrative, judicial, or other measures to prevent acts of torture. The offences of causing hurt or grievous hurt to extort confession are punishable under Sections 330 and 331 of the Indian Penal Code,1860.”
About having a legal framework, the MHA said that the 273rd Report of the Law Commission and the draft of ‘The Prevention of Torture Bill, 2017’ has been considered by the government, along with comments from State Government and that the ‘government is seized of the matter’.
Objective of the Bill
- The motive of the proposed law is to prevent the the misuse of powers of public servants and if the malice take place by either person in authority or any such person inflicting torture with the concent of public servant will be held guilty under the law and will be provided with punishment for the same.
- The Bill specifies that India is a signatory member of United Nations Convention against torture and other cruel, inhuman, or degrading treatment or punishment.
- The act of torture shall include grievous hurt to the victim’s limb or health or danger to his life.
- Any public servant if tortures the victim for the purpose of taking confession and extorting the information on the basis of language, religion, community, race, place of birth, caste or any other ground shall be liable for a minimum punishment of 3 years which further may be extended to ten years and fine on the basis of the gravity of the offence.
Law Commission’s 273rd Report
The 273rd report of the Law Commission was a reply to the Central Government while considering the Writ Petition filed before the Supreme Court of India by Mr. Ashwani Kumar, the former law minister for the administration of the UN convention. The report includes the acts of torture by public servants in India. It cites the D.K. Basu v. State of Bengal in which the Apex Court observed, custodial violence (death in police custody/ lock-up, torture, rape) is a matter of deep concern. It infringes Article 21 of the Constitution as well as the basic human rights and strikes a blow at rule of law. The state’s action however, must be “right, just, and fair”.
With a view to bring in transparency, the presence of counsel of arrestee at some point of time during interrogation may deter the police from using third-degree methods. The Bills are-
Anti Torture Bill, 2010
- The Prevention of Torture Bill, 2010 was introduced in the Lok Sabha in the budget session – which was set by the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which India is a signatory and is nothing but a mere eyewash. The proposed legislation is not only a degradation from the standards set by the UN Convention against Torture, but, in many ways, is in direct opposition to the basic norm of adherence to at least the minimum standards set down with respect to the right to freedom from torture.
Anti Torture Bill, 2017
- Impelling demands for a standalone legislation curbing custodial torture and violence, the Supreme Court today allowed three weeks’ time to all states and union territories (UTs) to send their inputs and replies on the Prevention of Torture Bill, 2017. The Centre previously sought their replies last February and subsequent reminders were sent in June, November, and December 2018.
1) Death of 28 years old Undertrial Prisoner Deepak on 12.08.2015 in the Custody of Tihar Jail, New Delhi (Case No. 4533/30/9/2015-JCD)
The Commission received intimation from the Superintendent, Tihar Jail, Delhi that an under-trial prisoner Deepak (28 years) lodged therein had died on 12th August, 2015. The intimation revealed that the deceased was admitted in jail on 22.03.2013. On 11.8.2015, he was attacked by some named inmates of the said prison with an improvised sharp object, causing serious injuries to his person. He was immediately referred to DDU Hospital, Hari Nagar where he was declared brought dead by the attending doctor.
The Commission examined all the reports in the matter received from the state authorities and observed that in the magisterial enquiry report it was concluded that the deceased died due to continuous beating. It was a case of unnatural death and homicidal. The post mortem report recorded 18 visible injuries on the body of the deceased which were collectively sufficient to cause death in the ordinary course of nature.
The Commission considered the matter on record, took note of the facts and circumstances of the case and observed that admittedly, the prisoner was in the care and custody of the state. It was the bounden duty of the prison officials to ensure safety and security of the prisoner but as seen in this case, due to the lack of required safety and security in the prison, the prisoner was subjected to a deadly attack by his co-prisoners. It appeared that there was complete lawlessness inside the prison. The inaction, indifference, and negligence shown to the prisoner by the prison officials amounted to a gross violation of his human rights. The Commission has ordered the Chief Secretary of NCT of Delhi to show cause u/s 18 (a) (i) of PHR Act, 1993 as to why a monetary compensation of `2,00,000/- (Rupees Two Lakh only) should not be recommended to be paid to the next of the kin of the deceased. The Compliance Report is still awaited. The matter is still under consideration of the Commission.
2) Inderjeet v. State of U.P.
The Supreme Court of India, held that prison restrictions amounting to torture, pressure or infliction and going beyond what the court authorities, are unreasonable as well as unconstitutional. Further, it extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amount to human degradation.
Police is one of the coercive arms of governance and assigned the task of maintaining law and order in society. When the police take the liberty of an individual and place him or her in police custody; it assumes full responsibility for the protection of life and liberty of that person by the State itself under the obligation of domestic and international human rights laws.
India is a welfare state and governed by its Constitution which guarantees life and personal liberty of citizens in general and persons in custody in particular. However, this is a deep matter of concern at the growing incident of custodial crimes occurring in different parts of the county. Complaints of Abuse of power and torture of suspects into custody of police and other law enforcement agencies having the power to detain a person for investigation in connection with interrogation of an offence are on upward trend.
Compared with other crimes, custodial crimes are particularly heinous and reflect the betrayal of custodial trust by a public servant against the defenseless citizens in custody. Hence, it is the need of an hour to implement the laws that will help curb such instances.
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