This Article is written by Bhagyashree Behera is a 2nd-year B.A., LL.B (Hons) student at National Law University Odisha.
ABSTRACT
As people are progressing towards their future, we see that human rights and laws relating to them are becoming more prominent in today’s time. People might protest for human rights globally but there are some issues that are isolated in nature where people don’t try to raise their voice against and one of such issues is custodial violence. The violence against any person accused in police or judicial custody in form of either physically, mentally or sexually. These types of violence are being reported since 1995 and the figures are no less. There are various laws against these types of tortures but still, the number of deaths due to this is not reducing. The superior authority who inflicts pain and suffering to the weaponless humans in the custody try to wipe out every evidence relating to their hidden crimes which they have committed within that four walls. In this article, we will be discussing how disturbing and heinous this violence is and the way it violates the basic human rights of a prisoner or the accused in a custody and the step taken by the international organisation to tackle this. We will also be discussing the steps which can be taken by the Indian government and other human rights organisations in order to preserve those rights.
Keywords: Custodial violence, human rights, torture, government, law.
MEANING OF CUSTODIAL VIOLENCE:
Custodial violence primarily had not been defined under procedural laws but the literal meaning can be understood by dividing the words into two segments. The term custody means duty to protect the legal rights of someone under their supervision and the term violence means intentional application of force to cause hurt, damage or any physical or mental damage to someone. It is the state’s duty to preserve the rights of the people and the scope of the term people here is wider because this also covers the prisoners or the accused. The officials who are actually responsible to take care of them are the police authorities, judicial authority or any other institutions. The code of criminal procedure had explained two kinds of custody under Section 167. Section 167 (1) states that when any person is detained, 15 days is the maximum period which can be granted to them in police custody[1]. So the arrest takes place in two event, initially from the period of arrest till producing him and lastly when the police receives any remand then after the produce then the accused is send to the judicial custody until they get their bail approved.
The definition of custodial violence had not been implicitly defined under law but there are some institutes, research scholars or judges who have defined this term. Law commission of India defined it by saying that, “crime by a public servant against the arrested or detained person who is in custody amounts to custodial violence.” As stated by Justice B.P Jeevan Reedy, “Custodial violence includes torture, death, rape and excessive beating in police custody.” Though, there are various circumstances under which the accused die in custody like unhealthy environment, lack of medical care, lack of proper food, etc., yet in most of the cases the reason prisoners death is custodial violence.
Most of the time police arrests a person without any proper warrant and procedure. Then those officials try to extract information from them by torturing them. The torture which are inflicted on them normally contains abusive languages, harassment, brutal behaviour, denialto meet the family members, no legal counsel are provided and the torture of third degree. However, the torture of third degree is the most popular method used by police. These crimes happens in a closed room by some uniformed personnel whom we consider them as our protector. The investigation and proceeding regarding this cannot be initiated by anyone because the unformed authority try to hide very evidences and of course if the person dies there if no reporting for the same. The family members are also helpless because they might not be capable enough to fight against the officials. Even if they file any complaint regarding the same, they are simply ignored and were not given much attention.
There are several constitutional and statutory provisions which are available in order to tackle these violence and give protection to citizens but the main issue is the custodian of laws are themselves violating them and lack of contribution on their part is causing serious violation of individual rights and especially human rights. This is the worst scenario where the human rights violation take place as the police authorities inflict third degree torture to secure confessions from them. Every single day some or the other newspaper might have some news relating to custodial brutality and assault which is actually depressing and disturbing. The people are now losing their confidence on laws and the justice system of the country. If the government itself start to become law breakers then any civilised nation would suffer in long run.
ANALYSIS OF DATA
Several custodial deaths were reported by various institutes. Nevertheless,majority of deaths rates which were reported by the National Crime Records Bureau since last decade have been attributed to illness or any other natural causes. This report did not had clear information that the illness and injury which happened to them were due to assault in the custody or due to some other reason. During 2015-2019, 36% of the deaths which were reported contained regarding suicides in police custody. However, their family members believed that these were just the stories made up by the authorities in order to avoid consequences and review of data.
The analysis of physical assault in police custody started since 2014 and only 6% of the cases were regarding the subject matter. In 2019 the figures and percentages reduced to 2.4% which stated that out of 85 deaths only this percent of people died due to physical assault in the custody. However, the irony here is, the same year an analysis had been done by National Campaign Against Torture where it stated that almost 75% of 124 custodial deaths were due to assault or violence. [2]
The inquiry for the reason behind deaths are the most critical segment which had not been done in most of the states. It is still not clear that if there was any decree regarding the conduct of inquiry and the officials did not conduct or the enquiries were not ordered. Even if any enquiries which had been conducted in 10 states were not done by the judiciary but by the executive magistrates and the reasons of the deaths were also not stated clearly.
In the last 10 years, the reported custodial death casesagainst the police executives was silent on the fact that the deaths which were registered, whether those were pertaining to a single death or multiple deaths.As stated in by NCRB report, even after the registration of the cases, the arrest of police officials only started from 2017. It was seen that out of 255 death cases which were recorded, only 144 cases got registered and out of them only 86 police officials were arrested from which 56 were charge sheeted. Below is the table of death cases recorded by NCRB from 2010-2019:[3]
RECENT ISSUES PERTAINING TO CUSTODIAL VIOLENCE
Custodial violence being the most brutal crime against human had raised several questions and raged spark across the country after the death of a father and son in Sathankulam town of Tamil Nadu. On June 19th 2020, P. Jeyaraj and his son Bennix were arrested for alleged for violating lockdown norms by keeping their shops open post the prescribed hours in Tamil Nadu. Initially the father was arrested and his son followed the police team to the station. When his son reached, he saw that a senior police officer was harassing his father during his late 60s. By seeing Bennix tried to protect his father by pushing aside the officer-in-charge. This provoked the police officials and they arrested Bennix as well. Both of them were mercilessly tortured and harassed by the personnel. Their family members were also waiting till midnight to meet and the police officials had already told them to bring ‘dark colour lungis’ in order to prevent blood lose. When the family members saw their condition, they saw that their pants were fully soaked with blood. They were admitted to the hospital after this incident. Three hours later the magistrate remanded then to Kovilpatti Sub Jail. Till June 22 there was no news about the father and son. But later in the evening of the same day, Bennix died due to severe blood lose and internal and external injuries. The next day that is on June 23, P. Jeyaraj also died. [4]
Year later, after this incident in Tamil Nadu, a similar incident took place in Goa where three members of a family were arrested by police personnel for alleged theft. They committed suicide after the torture by police. Another incident also took place during that time in Haryana, where a Muslim youth named Junaid was beaten to death in police custody. The police also denied the allegation by stating that the death of the victim was due to kidney failure. [5]
VIOLATION OF FUNDAMENTAL RIGHTS AND HUMAN RIGHTS
The custodial violence being the most brutal crime by the law enforcement agencies against an individual, not only violates fundamental rights under Indian constitution but also violates human rights. The fundamental rights are the highest form of rights recognised by our Indian constitution. Our judiciary had tried to keep the scope of article 21 as wide as possible so that an individual’s right to life does not get violated. This personal liberty also includes human dignity which is the most important element for a human being to survive. Whenever a person is taken into the custody, it’s the state who has a complete responsibility to protect the rights of person accused. However, this concept faded due to the practice of custodial violence. This evil practice was prominent since time memorial. The police personnel inflict inhuman treatment which are obviously brutal both physically and mentally. The investing authorities try to finish the investigation process by using shortcuts and therefore they often inflict inhume treatment to obtain confession. The process which the authority adopts in order to obtain their false confession are sometime against their religion, self-respect or self-esteem. Sometimes in these situations the accused confesses the crime which they might not have committed in order to avoid the torture. These maltreatment and inhume torture are simply violating human rights of an individual.
REMEDIES AVAILABLE UNDER INDIAN LAWS
There had been a lot of development in order to preserve fundamental rights of an individual in custody. Judiciary had increased the scope of the existing FRs in various cases since 1950s. Courts in power had always tried to impose human rights concept while tackling these cases so that the prisoners can be treated as human being and can live with dignity.
Under Indian Constitution
Our constitution covenant certain rights to all the citizens of India and few to the non-citizens as well. These rights are guaranteed under Article 14, 19, 20, 21 and 22 and the law enforcement authorities and the courts are hereby required to safeguards these laws and try to prevent any breach from their rights.
Article 14: This article talks about the equality before the law. This give the accused the right to enjoy equal protection of laws within the territory of India. However, the officials in order to dispose of the case use shortcuts and breach this article. They do not treat them equally, in fact they consider the accused convicted before the court proceedings. [6]
Article 19: This article talks about the freedom to express one’s view without any fear. The accused has every right to be heard however, this right also gets suspended by the authorities without proper explanation. [7]
Article 20: This article talks about the protection in respect to conviction for offence. [8]
Article 20 (1):This clause prohibited any ex post facto laws. It has two parts. First, it provides protection to the accused as it prohibit retrospective effects of the criminal legislations. The second part protects the accused from getting a penalty greater than the crime which he had committed. This means the punishment must be proportionate to the offence. [9]
Article 20 (2): This clause provides the law against double jeopardy.[10]
However, there is a catch. If a person had been prosecuted and acquitted then they can be prosecuted again. This concept is only followed in Indian jurisdiction.
Article 20 (3): This clause provides the right against self-incrimination to the accused person.[11]
Article 21: This article talks about the right to life and personal liberty. This article does not explicitly prohibit torture and violence but the term life and personal liberty was given more expansion post Maneka Gandhi case. In this case the court enlarged the ambit of Article 21 and said that life and personal liberty cannot be just mere physical existence but the person has every right to live with human dignity. [12]
Article 22:This article provides protection against arrest and detention in certain cases. [13]
Article 22 (1): This clause states that no person shall be arrested without any proper reason being stated by the official for the same and they cannot be denied the right to consult any legal practitioner for his/her defence. If not followed by the law officers then that arrest would amount to illegal detainment. [14]
Article 22 (2): This clause talks about the right to speedy trial[15]. InKadraPahadia v. State of Bihar case “the court held that the right to speedy trail is a fundamental right of an accused.”[16]
This clause provides that every person detained in custody are compelled to be presented within 24 hours ahead the nearest magistrate except the travelling time from the detention place and any person shall not be detained in custody exceeding the said period without proper instruction from the authority of a magistrate. This clause is applicable for both citizens and to the non-citizens. However, this shall not apply to people who were arrested under preventive detention laws.
Other protective measures laid down by the Supreme Court and parliament
Apart from remedies ingrained in our constitution, Indian parliament had passed legislations, set up commissions in order to preserve human rights being violated by custodial violence. TheProtection of Human rights Act was enforced on 28th January 1993. Section 2 of the aforementioned act describes human right which says, “Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”The Supreme Court had also laid down certain guidelines regarding transparency and accountability in the system on arrest of a person in D. K. Basu, Ashok K. Johri v. State of West Bengal. Let’s know all these in details.
The Protection of human rights act, 1993:
This act was passed by the parliament in order to protect human being from getting tortured by the organs of state, to meet the demands of national and international treaties in order preserve human rights. This act do provide with certain measures to address the problems effectively and to deliver justice with higher transparency and accountability in this changing society.
Guidelines laid down in D. K Basu, Ashok K. Johri v. State of West Bengal:[17]
The court here felt the importance of institutions responsible for the arrest of a person. It held that there must be moretransparency and accountability in the system. Therefore it pointed out few requirements which must be followed by law enforcement agencies while arresting a person. They are:
- The police personnel must wear clear, accurate and visible identification tags stating their names and designation while they arrest any individual.
- Arrest memo must be prepared at the time of arrest containing the date of detention. It must also be authenticated by at least by one witness which comprise a family member of the arrestee. The arrestee must counter sign the memo.
- The arrestee has all right to inform his family, relatives, friends or well-wishers about their arrest.
- If the relatives live outside the district then they should be notified by the police about the arrest within 8-12 hrs after the arrest.
- Specific reasons for the arrest must be informed to the arrestee as soon as they were put under arrest. They must also be made aware of their legal rights during this detention period.
- There must be a diary of entries where the arrestee shall have mentioned their next friend and the details of the police officials under which they have been detained or living in custody.
- There must be medical examination of the arrestee by a certified doctor appointed by the Director Health Service of the state or union after every 48 hrs during the arrest.
- For the purpose of recording of the arrest, the arrest memo must be sent to the Magistrate.
- The accused must not be allowed to meet their lawyers during the course of interrogation. However, not for the whole interrogation session.
National human right commission (NHRC):
NHRC being a statutory body was established on 12th October 1993.The Protection of human rights act, 1993 gave this body statutory basis which laid down detailed guidelines on arrest, pre-arrest, post-arrest and measures to enforce those guidelines effectively. All the states in India were requested to enforce NHRC’s guidelines.
Remedies under other Indian laws
There are certain remedies which are available under other legislations like IPC, CrPC, IEA, etc. Let us discuss them in details.
Code of criminal procedure, 1973:
The code had specified certain procedures which need to be followed while arresting or detaining a person which will eventually protect the rights of a person.
Section 46 which talks about the procedure of arrest. Section 46 (3) protects a person in custody from death who had not been accused of an offence punishable by death or life imprisonment. [18]
Section 49 of the code talks about the prohibition of unnecessary restraints by the police officials. [19]
Section 50 and 50 A of the code give the right of the person detained to be notified about the reason of the arrest and that person has all right to apply for the bail. Subsequently, 50A talks about the obligation of the police official to report regarding the arrest to a nominated person. [20]
Section 54 of the code talks about the medical examination of the person detained by a medical officer and maintain the report of the same. [21]
Section 176 of the code talks about the mandatory inquiry by the magistrate on any occasion the person detained dies in police custody. [22]
Indian Penal Code, 1860:
Section 376 of IPC talks about the punishment for rape. Section 376 (2) (b) reads that “Whoever, being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”[23]
This protects women who had been detained from custodial rapes by police officials and penalise them for their offence.
Section 348of this code talks about the wrongful confinement to extort confession. If any person wrongfully confines someone so as to squeeze confession; then the person shall be penalised with three years of imprisonment and would be liable to pay a fine.[24]
Indian Evidence Act, 1872:
Section 24 talks about the inducement, threat, etc., resulting confession by the person accused. The confession by the person accused would be irrelevant in criminal proceedings if the said confession had been made by threat or inducement. [25]
Section 25 provides that the confession made by the accused person before the police official shall not be granted as evidence against that accused person. [26]
Section 26 provides that the confession in the police custody shall not be proved against the person accused unless the accused person had confessed in the presence of a Magistrate. [27]
REMEDIES AVAILABLE UNDER INTERNATIONAL LAWS
There are many international declarations, policies and conventions dealing with rights of prisoners and person detained. In 1945, India with other 50 nation had signed United Nation Charter on human rights and formed United Nation. The UN had tried to introduce various prototypes in order to preserve the rights of these vulnerable prisoners. Some of these works for human right protection in present day is Universal Declaration of Human Rights, 1948, United Nation Convention Against Torture, European Convention of Human Rights and Fundamental Freedom. However, these all act as an instrument and works for the common goal which is to deal with custodial violence.
Universal Declaration of Human Rights, 1948:
The UN General Assembly backed this declaration on 10th December 1948 which provides rights and freedom of all human being on this Earth. Some of the important article of this provision had been explained below. They are;
Article 1: It states that,“every person is born free and equal in dignity or rights.”
Article 3: It states that,“every person has the right to life, liberty and security of a person.”
Article 5: It provides that,“no person shall be subjected to torture or inhume or cruel treatment or punishment.”
Article 7: It provides that,“all are equal before the law and they are entitled to protection of law without any discrimination.”
Article 9: It provides that,“no person shall be subject to arbitrary arrest, exile or detention.”
Article 10: It provides that,“all person has full equality regarding free trial, public hearing and impartial trial.”
Article 11: It provides that,“all person shall be held innocent until proven guilty and shall not be held guilty of any offence which was not an offence under national or international law at the time of committing the crime.”
United Nation Convention Against Torture:
This is an international convention by UN against torture and other inhume treatment or punishment which aims to protect human rights and to avert these kinds of inhume treatment across the world. Currently there are 171 countries who are part of this convention.
International Covenant on Civil and Political rights:
This said covenant was constituted on 23rd March, 1976. This provides that,“any person who had been deprived of their liberty shall be treated with humanity and dignity”. Article 7 of the aforementioned covenant forbids any kind of abuse, inhume or brutal treatment by guaranteeing the person with those liberty which are set for the free person.
UN Standard Minimum Rules for the Treatment of Prisoners, 1955:
In 1955, for the first time, the United Nation adopted this standard minimum rule for the treatment of prisoners to prevent crime against the prisoners. It provides that,“no prisoner shall be discriminated on the basis of gender, religion, colour, national or social origin, place of birth or status.”
CONCLUSION
Custodial violence and deaths have become a normal news in today’s time. This action by police authorities are being treated as normal day-to-day routine. However, the strangest thing to notice here is that the people had also estimated this as normal routine job by the police agencies. This not only creates a false impression but also creates a fear in the minds of general public in a negative way. Custodial violence blatantly violates human rights. There are laws in order to tackle this brutality, however, those are not enough. They have been enforced but are not been followed by the officials. Custodial violence management is very vital and there must be fully enforceable solutions to the same. There must be checks and balance in the working of police custody. There must be enquiry into the matters which are being recorded. And most importantly to create a sense of free atmosphere for the public to report the crime. This a slow process which would eventually lead to better environment for all person accused of any crime.
[1] Code of criminal procedure, 1973, § 167, No. 1, Acts of Parliament, 1974 (India).
[2]Raja Bagga, Existing data on custodial deaths in India fails to give a full picture, SCROLL.IN (Nov. 30, 2021, 4.37 PM), https://scroll.in/article/978919/existing-data-on-custodial-deaths-in-india-fails-to-give-a-full-picture.
[3] Raja Bagga, Existing data on custodial deaths in India fails to give a full picture, SCROLL.IN (Nov. 30, 2021, 4.50 PM), https://scroll.in/article/978919/existing-data-on-custodial-deaths-in-india-fails-to-give-a-full-picture.
[4] THE INDIAN EXPRESS, https://indianexpress.com/article/explained/explained-tamil-nadu-police-custodial-torture-father-son-killed-thoothukudi-6479190/ (last visited Nov 30, 2021).
[5] THE LEAFLET, https://www.theleaflet.in/custodial-violence-unabated-year-after-shocking-sathankulam-deaths/ (last visited Nov 30, 2021).
[6] INDIA CONST. art. 14.
[7] INDIA CONST. art. 19.
[8]INDIA CONST. art. 20.
[9]INDIA CONST. art. 20, cl 1.
[10]INDIA CONST. art. 20, cl 2.
[11] INDIA CONST. art. 20, cl 3.
[12] INDIA CONST. art. 21.
[13] INDIA CONST. art. 22.
[14] INDIA CONST. art. 22, cl 1.
[15] INDIA CONST. art. 22, cl 2.
[16]KadraPahadia v. State of Bihar, AIR 1981 SC 939.
[17] D. K Basu, Ashok K. Johri v. State of West Bengal, AIR 1997SC 610.
[18] Code of criminal procedure, 1973, § 46, No. 2, Acts of Parliament, 1974 (India).
[19] Code of criminal procedure, 1973, § 49, No. 2, Acts of Parliament, 1974 (India).
[20] Code of criminal procedure, 1973, § 50, 50A, No. 2, Acts of Parliament, 1974 (India).
[21] Code of criminal procedure, 1973, § 54, No. 2, Acts of Parliament, 1974 (India).
[22] Code of criminal procedure, 1973, § 176, No. 2, Acts of Parliament, 1974 (India).
[23] Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860 (India).
[24] Indian Penal Code, 1860, § 348, No. 45, Acts of Parliament, 1860 (India).
[25] Indian Evidence Act, 1872, § 24, No. 1, Acts of Parliament, 1872 (India).
[26] Indian Evidence Act, 1872, § 25, No. 1, Acts of Parliament, 1872 (India).
[27] Indian Evidence Act, 1872, § 26, No. 1, Acts of Parliament, 1872 (India).
