In this Article, Anubhav Sinha and Nipun Kumar, studying in III B.A.L.L.B examine the issue of Custodial Death prevailing in India and discuss in detail the guidelines laid down by the Supreme Court and the future course of actions that can be taken to eradicate the same.
INTRODUCTION
The Fundamental Rights enshrined in Part III of the Constitution of India (hereafter, the Constitution), provides for basic human rights that are indispensable for a good democracy. Even a convicted criminal has a right under Article 21 of the Constitution. The moment these rights are infringed, it incepts a deep crack in the democratic system of a country. When the state abuses its power, it puts democracy at the edge of the cliff, which creates a sense of insecurity amongst the citizens of a country. The very authority that is supposed to maintain democracy and legitimacy in society is sometimes the one responsible for endangering it.
Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. ‘Custodial death is the event of the demise of an individual, who has been detained by the police on being convicted or being undertrial’. It can be further classified into three categories, i.e. death in police custody, death in judicial custody, and death in custody of defence/paramilitary forces. This article will primarily be focusing on the deaths in police custody.
In the status quo, the situation is obnoxious and demands a serious acknowledgement of the maladies associated with the act. According to a report by the National Campaign Against Torture (NCAT), India recorded five custodial deaths per day and most of the victims belong to the poor and marginalised communities including Dalit, tribal, and Muslim. The same report also showed that in the year 2019, around 1606 deaths took place in judicial custody and around 125 took place in police custody.
Custodial death has not been recognised as a separate crime under the Indian Penal Code, 1860. However, a police officer guilty of the offence can be punished under S. 302, 304, and 304A of the IPC. Given the grave nature of the crime, it is imperative that the trial of the same is fair and reasonable. Therefore, to ensure such fairness, Section 176(1A) of The Code of Criminal Procedure, 1973 (hereafter, the Code), which was added by way of amendment in 2005, provides for a mandatory inquiry by the Judicial Magistrate or Metropolitan Magistrate in case of custodial death. Since it is of utmost importance that the basic human rights of the detainees be preserved, Articles 20, 21, and 22 of the Constitution have been enacted to do the needful. Through these Articles, rights such as protection from double jeopardy, self-incrimination, and rules regarding arrests have been laid down. Apart from these rights, the Law Commission, in its 113th report, had recommended the addition of Section 114B to the Indian Evidence Act, 1872 which provided that where the injury is caused in police custody, it can be presumed that the injury was by the police which had the custody of the person. This provision aimed at benefiting the aggrieved party by shifting the ‘burden of proof’ to the police, however, regrettably this section could not be enacted.
JUDICIAL STANDPOINT
Time and again, courts have stepped in to placate and provide justice to aggrieved parties, even though there is a paucity of provisions. Hence, there is a plethora of judgements on custodial deaths given by various High Courts and the Supreme Court, which have dealt with the issue and provided various interpretations on it.
In the landmark judgement of D.K. Basu v. State of West Bengal,the Apex Court laid down certain guidelines to be followed while arresting or detaining a person. The guidelines confer an exhaustive list of steps to be followed so that there is no contravention of the basic rights of a person guaranteed by the Constitution. Additionally, there has to be a record of the person interrogating the detainee and he/she is supposed to undergo a thorough medical examination every 48 hours by a trained physician. The Supreme Court in this case, through the guidelines, has attempted to limit any possibility of arbitrariness while making arrests. The Court has emphasized that it is the basic rights of an arrestee that have to be kept on the highest pedestal and it is these rights that are jeopardized when arrests are made in an unguided manner.
In Prabhavathiamma v. The State of Kerala & Others, the CBI Court on the account of death in custody of two metal scrapers, who were tortured and then allegedly murdered by the police, awarded death penalty to the officials involved in the incident. The court stated that the institution which assures the general public of its safety, cannot afford a situation where people start abandoning their faith in the institution, which may take a hit on the law and order of the society.
In the recent case ofYashwant And Others v. State of Maharashtrawhere the cause of action arose in 1993 , One Joinus was accused of robbery, the police arrested Joinus and allegedly thrashed him to death. The Police personnel who were involved were found guilty of committing custodial death,the Supreme Court upheld the conviction of 9 police personnel. The guilty policemen were sentenced to 7 years of imprisonment. The court, in this case, reiterated the high standards of accountability involved in the office of police personnel and based its ruling on the famous phrase “With great power comes greater responsibility.”
All the aforementioned judgements provided for various interpretations on custodial death. With the course of time, the courts have provided for guidelines, even when the guidelines were not adhered to, the court used penal provisions to punish the guilty police officers and laid emphasis on the responsibility and the faith put on the police authority.
CONCLUSION
The aforementioned phrase of “With great power comes greater responsibility” speaks volumes and it cannot be denied that the police have huge responsibility and power vested in them. The moment this power is abused, it creates a ruckus in the society. Custodial deaths are an outcome of the same abuse of power where violence is inflicted on the detainees by way of inhumane treatment, torture and even rape. It can be said that deaths in custody occur due to the unreasonable use of force, which reflects the grave arbitrariness in the conduct of police with detainees. Therefore, in order to prevent such deaths, it is imperative that the whole instrument of treatment of prisoners by the police be looked into. There is an inherent need for regulation of the method of force used when inflicting violence on a detainee, with properly defined limits to which such force is to be used.
The fact that is to be understood is that, despite having an ample amount of judicial ruling on the issue, we still have thousands of custodial deaths every year, even in the presence of Article 20(3) of the Constitution which states that the accused is presumed to be guilty and cannot be compelled to incriminate himself/herself.
In the recent custodial death case of Jayraj-Benicks, that happened during the Pandemic in Tamil Nadu, the father-son duo was tortured to death by the police for allegedly flouting the lockdown norms. This incident gained loads of attention nationwide, there were discussions and debates regarding “police brutality”. Which led to many questioning the law and justice system of the country. This unfortunate event clearly depicts how the system has failed itself in preventing the crime which is a progeny of the same system.
The apex court in the judgement of Yashwant And Others v. State of Maharashtra stated the power that vests with the police ought to be used responsibly and not be misused, because it is the people who are to be served and not vice versa
The major issue is that the investigation process lacks transparency, accountability, and supervision. In almost every case of custodial death, the conspicuous ignorance of investigating authorities is appalling. So, in order to overcome this situation, an independent investigation authority is required that would be free from the influence of the police department and politics. The Law Commission in its 152nd report had acknowledged the disturbingly low rate of conviction in custodial death cases which led to the Commission recommending insertion of Sections 176(1A) and 176(5) in the Code. These provisions provide for a mandatory investigation by a Judicial Magistrate and medical examination in case of custodial death respectively. It is imperative to understand that the Commission has attempted to make custodial death investigations fair and reasonable through these provisions therefore, it is paramount that they are followed scrupulously.
Providing justice to the aggrieved detainees is equally important for curbing the inhumane act. Some of the basic assistance that can be provided to them are legal-aid, speedy trial and protection of the kin of the victims from any future threat to their lives. Among other things, when a situation of inflicting violence on a detainee arises, it should only be done by a trained official who is well aware of the consequences of the act, that too in the presence of a qualified medical practitioner.
Even in the case of Joginder Kumar v. State of U.P., the apex court laid down certain guidelines that should be adhered to during an arrest. The detainee is to be informed about the reason for arrest, an entry made by the police about the detainee is compulsory because these guidelines directly flow from Articles 21 and 22(1) of the Constitution. The magistrate should also be made cognizant about the fulfillment of above mentioned guidelines.
The problem also lies in the presumption that the police is supposed to torture and use violent tactics on a criminal with an objective to create “peace” in society. There still lingers a lack of awareness about the legal right when it comes to police detention and torture. People are still intimidated by the police even when they have not committed any offence. The fact that this dangerous assumption and the fear of police floats around the nation leads to creating a general notion that police can torture a detainee to any extent. Therefore, it is not only the police system that is to be rectified but also the mentality of the general public which needs to be made aware of the ill-effects of custodial violence.
ILS Centre for Public Law 