This article is written by Muskan Paruthi. In the light of ongoing worldwide protest against police atrocities. The article tends to cover an analysis of the existing procedures and norms available. This article throws light on the existing mechanism and how they are simply ignored and manipulated considering lack of accountability among most of the government departments.

Introduction

When the world is fuming over the death of George Floyd, back in our country we still finding ways and establishing a procedure to hold police accountable for their deeds. Considering status quo, it becomes very important to establish a premise of rule of law which further enhance consciousness among citizens regarding their civil rights, hence deepening the democracy.

The movement calling for justice for Jayaraj and Bennicks has once again bought into light decade-old history of police excesses and atrocities and need for accountability and application of norms for developing custodial jurisprudence through judicial activism.  

United Nation Convention Against Torture explains custody as the state of being guarded or legal duty to take care of somebody. It further describes torture as ‘the act of infliction of severe mental or physical pain or suffering by or with the consent or acquiescence of the state authorities for the purpose of gaining information, punishment or intimidation’. The Convention specifically mentions that under no circumstances there will be any justification for the torture inflicted upon prisoner or detainee that leads us to the conclusion that basic human right is ensured to every citizen including prisoners (only limited by the fact of imprisonment) and failure to suffice those conditions will be an infringement of their human right.

“Truth-seeking” belt, has become a synonym for seeking information, coerce confessions out of suspects. These suspects are beaten up to the point where they are expected to speak the truth and what is more disheartening is the fact all this brutality is denied but also justified in the name of  sustained interrogation and further called ‘questioning’ or ‘examining’

India is still not over its colonial hangover of punitive police system, where the major focus is still on implementing policies rather than law enforcement. Exhibiting a mindset of retributive judicial system where the primary motive is punishment and completely let going the basic principle of reformative theory of justice where inhuman degrading treatment of prisoners (including convicts) is strictly prohibited, hence completely ignoring the ideals of Indian Constitution.

The doctrine of rule of law which establish a premise that existence of state depends upon the jural relation i.e. judicial application of restrictions on the state to control its action, creating obligation for it and delimiting its power. No civilised society affirm to the barbaric treatment to its citizen which also makes state responsible for the torture inflicted by its agent so it is upon “The police as an organization has to decide whether shielding bad policing, illegal policing and what amounts to murder is of value to their efficiency”.

Constitutional mandate

Prohibition against torture is well-grounded in Indian law. The constitutional spirits of Indian law are enclosed around basic human rights ensured in the form of fundamental rights to its every citizen. Hence, assuring right to life with dignity to its every citizen. Such an approach allows it to come down heavily upon the system of administration of criminal justice; custodial justice in particular, and law enforcement. 

Right to life with dignity as described under Article 21 of Indian Constitution explains that mere animal existence doesn’t suffice conditions for human survival rather it encompasses all conditions necessary for leading a meaningful life with dignity. Further Supreme Court held in number of judgement that Article 21 also includes Article 19. Discussing the scope of article 21 Supreme court interprets Article 19 within the ambit of article 21 i.e. ‘even when there is a law prescribing a procedure or depriving a person of personal liberty and there is consequently no infringement of the fundamental right conferred by Article 21, such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the requirements of that Article’ suggesting that even when state prescribe any policy or procedure restricting the ‘life and liberty’ of an individual it should be in consensus with procedures established by law and the norms of Article 14.

In other words, one can only be deprived of the right to life and liberty except only through procedure established by law which should be reasonable, just, fair and free from arbitrariness and unreasonableness. As interpreted in Nilabati Behera v. State of Orissa that ‘prisoners and detainees are not deprived of their fundamental rights under article 21 and that it is only such restriction permitted by law’, court established that the state is obligated to indemnify for the losses and infringement caused by its agent. Even under custody, undertrial or convict there is no sovereign immunity existing for police officers or prison officers for infringement of fundamental right of detainee or prisoner. Due to this confinement there has already been a decline of potential liberty of him therefore, his interest in the limited liberty left to him is rather precious.  The duty of care on the part of the State is strict and admits of no exceptions.

Subsequently, In Francis Coralie Mullin v. Union of Delhi Supreme Court pointed very important aspect of preventive detention that authorises every prisoner and detainee has a fair chance of defending himself and meanwhile there can be no procedure or law which can justify cruelty; it would simply be unreasonable, unconstitutional and void and will be violative of Article 14 and Article 21.

Another landmark judgement in recognising the status of human right among prisoners is Sunil Batra v. Delhi Administration, Supreme Court held ” that prison are built with the stones of law and so it behoves the court to insist that in the eye of law , prisoners are person not animals and any arbitrary treatment that defile the dignity of human inmate can be questioned under article 14”. In this judgement supreme court had left no stone unturned and also talked about the solitary confinement and the principal of presumable innocence until convicted which otherwise is a custodial perversity violating the test  of reasonableness in Article 19 and Article 21.

Legislative Provisions  

According to UNCAT to which India is a signatory but yet to ratify. While explaining custody it further suggests even ‘when applied to indicate arrest or incarceration, it does not tend to carry any underlying threat of violence during custody’ but the reality is far from this violence, custodial rape, illegal detention, handcuffing and wrongful confinement has become synonym for police custody. 

Criminal Procedure Code has various provisions prohibiting custodial violence. It is evident that framers have been very cautious about the human rights of the detainee at the time of formulating these provisions. 

Section 41 of Criminal Procedure Code talks about arrest without warrant, it specifies the conditions under which arrest without a warrant can be made and which is case of  cognisable offence. Even if the arrest has been made without warrant police cannot held the suspect in police custody for more than 24 hours unless otherwise directed by competent judicial magistrate.

Section 46(2)(3) of Criminal Procedure Code discuss that under no circumstances even when restricting arrest or evading arrest empowers police officer to cause death of the person ought to be arrested, barely when the person is accused of an offence punishable with death or imprisonment for life is subject to such an exception. Similarly, Section 49 provides for recording the details of arrest in the Daily Dairy Report in order to ensure legal protection to the arrestee and it explicitly mentions that the person arrested shall not be subjected to any more restraint than necessary to prevent his escape. Section 50 of the Code of Criminal Procedure specifies that no person can be apprehended without being informed about the ground for his/her arrest and in case of non-bailable offences about his entitlement to bail.

Above stated amended provisions of Code of Criminal Procedure are imprint of landmark judgement of D K Basu v. State of West Bengal, which led to the development of ‘custodial jurisprudence’ in India. Supreme Court lays down guidelines to establish a premise for elaborating the procedures and requirements to be followed during the interrogation, detention and arrest of a  person. These guidelines have been later incorporated into amended criminal procedure code. The rules call for police in-charge making  the arrest and interrogating suspects to wear accurate, visible and clear identification and name tags along with recording of all such information of police personnel making the arrest in the register. A memo of arrest shall be prepared which should include the time and date of arrest. Further, it should be attested by witness who is member of the family of arrestee or respectable member of the society which shall be countersigned by the person arrested. The arrestee also poses the right to be examined at the time of his arrest, if any major/minor injuries present on his/her body at that time, must be recorded in inspection memo. In addition to this arrestee must have medical examination by authorised doctor every 48 hours. The arrestee is entitled to meet his lawyer during the course of interrogation. Also, his family member should be informed within 8-12 hours of arrest.  Other requirement mandates every arrested person to be presented before magistrate within 24 hours. These roles place magistrate on a pivotal position where he acts as a watchdog over police officials and ensures safety and security of suspects

Under section 25 of Evidence act to be read with section 162 of Criminal Procedure Code, a confession or statement made to the police during investigation is inadmissible under the court of law. This provision was enacted with an intent to eliminate from the vices like use of force, torture and brutality in seeking a confession.

Similarly, under Indian Penal Code Section 330, voluntarily causing hurt for the purpose of extorting a confession or any information which may lead to the detection of an offence or to compel for restoration of property is punishable with imprisonment up to 7 years and fine. 

Role of magistrate

Criminal Procedure Code, Section 176 allows an additional enquiry by judicial magistrate beside police investigation, mandatory in the case of death or disappearance or alleged rape of women under police custody or any other custody as directed by the magistrate or the court. Which directly implying judicial magistrate is empowered and obligated to enquire about every custodial death. 

Section 56,57, 167 (2)  of Code of Criminal Procedure objects the police from keeping a person in custody for more than 24 hours unless otherwise stated by the magistrate. Law clearly specifies about the requirement of magistrate (as per the jurisdiction) to act as check on the powers of police official by heading the inquiry and inspecting arrest-related documents.  Also, International Human Rights Law requires that anyone arrestee or detainee on a criminal charge to be “brought promptly” before a judge or other judicial officer

Aftermath of custodial death 

Alike every cognisable offence an FIR (First Information Report ) should be registered by police official other than the one suspected of the crime. it is also suggested that death should be immediately reported to NHRC ( National Human Right Commission) along with the documents including Magisterial inquest, post-mortem report and video-taped autopsy. The magistrate is required to take cognizance of the case within three months of death. 

Status quo

There are thousands of instances of police excesses and custodial death with each exposing a tragic tale of plight, torment, humility and abuse which bring disgust to mankind. The following two cases depict how all of the above stated norms and guidelines are not paid enough heed and result in an systematic failure leading to an of offence custodial death.

Angelo Valdaris was arrested and beaten so that he would confess to the stealing of goods later on police said that he was stuck by truck while he was trying to escape police custody. Investigation found out that ‘he was threatened from saying anything during the mandatory medical check-up, the medical report includes a record that Valdaris told the doctor his injuries were a result of police beatings’. His family members told Human Right Watch. that he has been killed because the police and other authorities has apprehended that Valdaris might complaint about the brutality and abuse to the magistrate.

Findings- Gross abuse of power, non-compliance with the procedures for the mandatory producing the accused before the magistrate within 24 hours, Sexual and Physical torture, Extra-judicial killing.

Yunus Khan has also been a victim of custodial torture, it’s been 17 years since his family has been still waiting for justice, the police officer who has been suspended has returned back to their normal life and job. 

Findings- Extreme physical torture to the point which resulted in death of the suspect, tampering and disappearance of evidence, No- disciplinary actions against the police higher officials involved. 

Police has been often seeing misusing the powers granted to it. . For instance section  197 is most misused provision incorporated to enable police in diligent performance of their duty ( when any public servant indulge in an offence while acting or purporting to the act in the discharge of his duty, is granted protection under this section) but the Courts have held, however, that prior approval is required only if police commit an act as part of their official duties, pointing out that illegal detention or assaulting or killing someone in lockup is not part of their duties and has been often misused, There seem to exist and uncalled un-acknowledged brotherhood among all government department be it medical team or non-performance of duty by magistrate. As quoted in Human Right Watch Report ‘Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues’ further intimidation of family members of victims by investigation officials, unwillingness to suggest prosecution of police officers by NHRC are among the most popular reason for system failure in holding police accountable. 

Leading us to a conclusion that there needs to be an immediate need to rectify, this systematic failure resulting in gross infringement of human right.  It becomes important to establish a premise which affixes direct responsibility on superior so that there will be no longer hierarchal constraint in determining accountability. Better implementation of laws and provisions will overcome the procedural limitation and we can finely get the hold of corrupted politicians and powerful people dictating their whims and fancies where government officials just act as a puppet. Sensitising prisoners about their rights can also prove helpful where they will not find themselves so vulnerable against the system. 

Then finally we can think about police reforms as suggested in reports of Law Commission and taking into consideration international jurisprudence thinking about all the conventions that are yet to be ratified and instituting domestic legislation for prevention of custodial violence. 

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