The Legal Framework Surrounding Custodial Deaths In India

This article has been written by Harshita Chaudhary. She completed her bachelor’s in Science from Chhatrapati Shahu Ji Maharaj University, Kanpur, and is now in her second year, currently pursuing an LLB from Lloyd School of Law, Greater Noida.

Abstract

In this article, the concept of Custodial deaths is discussed. Custodial deaths been carried out since colonial regime, latest example is death of Jayaraj and Bennix in Tamil Nadu. Custodial death can happen directly or indirectly during police custody. It can occur due to some natural sources, where there is no involvement of any kind of foul play by the police. As per NCRB ( National Crime Record Bureau) data published in December 2023, stated that Gujarat reported 14(highest) custodial deaths in lock-ups. Some articles like 14,21 of our Indian Constitution protects citizens from custodial deaths, we also have provisions in BNS(Bhartiya Nyaya Sanhita,2023), BNSS(Bhartiya Nyaya Suraksha Sanhita,2023) related to Custodial deaths. The Protection of Human Rights Act, 1993 is a watchdog of human rights. The Indian judiciary played a crucial role in preventing custodial torture through directives issued in various cases. There is need for systemic criminal law reforms and its implementation by law enforcement agencies for better protection of individuals’ rights.

Introduction

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. 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.

Understanding 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:

1. The death occurred in police custody.
2. The death occurred in judicial custody.
3. 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, 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. [1]

Statistics

NCRB ( National Crime Record Bureau) data published in December 2023 for the year 2022 stated that Gujarat reported 14 custodial deaths in lock-ups, even before the remand, in 2022 of which magisterial inquiry was granted in 10 cases and judicial inquiry was ordered in four.[2] In the last 20 years, 1,888 custodial deaths have been reported across India. In 893 of these instances, cases were registered against police personnel. A total of 358 police personnel were charge-sheeted in cases of custodial deaths in this period. However, only 26 police personnel have been convicted for custodial deaths in the last 20 years in India, as per official data. Further, the data shows that 1,185 of these reported 1,888 custodial deaths fall under the ‘persons not on remand’ category while 703 cases come under the ‘persons in remand’ category. This means that more than 60 per cent of the reported deaths in custody over the last 20 years in India pertained to those who had not even been produced before court once when they died.[3]

LEGAL FRAMEWORK SURROUNDING CUSTODIAL DEATHS:

Constitutional Provisions Related To Custodial Deaths:

1. Article21– Protection of life and personal liberty, No person shall be deprived of his life or personal liberty except according to procedure established by law. This means that every individual has the right to live, and their life cannot be taken away except in accordance with the prescribed legal procedures. The right to life encompasses various aspects, including the right to live with dignity, the right to livelihood, and the right to a healthy environment.[4]
2. Article 22-Protection against Arrest and Detention, It safeguards individuals against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention.
   • Right to be Presented before Magistrate – Article 22 guarantees that an arrested person must be produced before the nearest magistrate within 24 hours of their arrest. This provision aims to prevent unlawful and prolonged detention without proper judicial oversight.
   • Right to Consult a Legal Practitioner – Article 22 grants the right to an arrested person to consult and be defended by a legal practitioner of their choice. This right helps ensure that individuals have proper legal representation during the process of arrest and detention.
   • Communication of Grounds for Arrest – An arrested person must be informed of the grounds for their arrest and detention. They have the right to know the reasons behind their arrest, enabling them to effectively exercise their legal rights.
   • Preventive Detention – Article 22 also addresses the issue of preventive detention, which allows the authorities to detain individuals for preventive reasons, such as the maintenance of public order or national security.

     In the case of D.K. Basu v. State of West Bengal (1997), ​ A Public Interest Litigation was filed by Dr Dilip Kumar Basu related to a case of Custodial violence. The Supreme Court laid down strict guidelines related to custodial violence and deaths. These guidelines are to be followed in all cases of arrest and detention until legal provisions are made for the safeguard of a person in custody.[5]

3. Article 14– Equality before Law and Equal Protection Of Law, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

   (a)Equality before the Law: This part of the article indicates that all are to be treated equally in the eyes of the law. This is a negative concept as it implies the absence of any privilege in favor of any person. This is a substantive part of the article.

   (b)Equal protection of the Laws: This part means that the same law will be applied to all the people equally across the society. This is a positive concept as it expects a positive action from the state. This is a procedural part of article 14. The doctrine of Anti Arbitrariness: The scope of article 14 was drastically increased by the Supreme Court by including the executive discretion under its ambit. In the case of E.P. Royappa v. State of Tamil Nadu, 1974, the court said that Article 14 gives a guarantee against the arbitrary actions of the State. The Right to Equality is against arbitrariness. They both are enemies to each other. So it is important to protect the laws from the arbitrary actions of the Executive.[6]

Custodial death provisions in Bhartiya Nyaya Sanhita, 2023(earlier IPC)

1. Causing Death: Section 100 of BNS,2023 -Culpable Homicide i.e. causing death with intention or knowledge (earlier section 299 Of IPC), Section 103 Of BNS- Punishment For Murder, (earlier Section 302 of IPC), Section 105 Of BNS- Punishment For Culpable Homicide Not Amounting To Murder(earlier Section 304 Of IPC).
2. For Custodial Torture: Section 120 Of BNS- Voluntary Causing Hurt To Extort Confession (earlier Section 330 of IPC), Section 120 Of BNS- Voluntarily Causing Grievous Hurt To Extort Confession(earlier section 331 Of IPC), Section 127(8) of BNS- Wrongful Confinement to extort Confession(earlier Section 348 of IPC).
3. For Abetment: Section 49 of BNS-Abetment Of offence(earlier section 109 of IPC), Section 55 of BNS- Abetment of offence punishable with death or imprisonment for life(earlier Section 115 Of IPC).
4. For Negligence: Section 257 of BNS- Public servant in judicial proceeding corruptly making report, etc., contrary to law(earlier Section 219 Of IPC), Section 258 of BNS-Confinement for trail or confinement by person having authority who knows that he is acting contrary to law(earlier Section220 Of IPC), Section 262 Of BNS-Resistance or obstruction by person to his lawful apprehension(earlier Section 224 of IPC), Section 263 of BNS- resistance or obstruction to lawful apprehension of another person(earlier 225 of IPC).

Custodial Death provisions in The Bhartiya Nagarik Suraksha Sanhita,2023(earlier CrPC) :

• Section 196 of BNSS-Inquiry by Magistrate into cause of death(earlier section Section 176 of CrPC), Section 197 of BNSS- Ordinary Place of Inquiry and trial(earlier Section 177 of CrPC), Section 187 Of BNSS- Procedure when investigation cannot be completed in 24 hours ( earlier Section 167 of CrPC), Section 43 Of BNSS- Arrest how made(earlier section 46 Of CrPC), Section 46 Of BNSS- NO unnecessary restraint(earlier section 49 of CrPC), Section 53 of BNSS- Examination of arrested person by medical officer(earlier section 54 of CrPC),Section 183 of BNSS- Recording of Confessions and statements(earlier section 164 of CrPC),Section 218 of BNSS- Prosecution of judges and public servants(earlier section 197 of CrPC).[7]
• The Protection of Human Rights Act, 1993: India through its parliament passed landmark legislation namely the protection of human rights act on December 18, 1993. The Protection of Human Rights Act, 1993 is a watchdog of human rights e. the rights related to life, liberty, equality and dignity of the individual guaranteed by the Indian Constitution or embodied in the international covenants and enforceable by courts in India.[8]
• Court judgements And Guidelines: DK BASU V. STATE OF WEST BENGAL(1997), The matter of custodial violence was brought before the court by Dr D.K. Basu, executive chairman of the Legal Aid Services of West Bengal to the Chief Justice of India through a letter, letter based on news of custodial violence given in a newspaper. The then Chief Justice of India, Justice Ranganath Mishra considered it as a matter of grave concern and treated it as a writ petition invoking the Court’s original jurisdiction under Article 131of the Constitution of India.
• The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh was composed of two parts: establishing procedural safeguards and elaborating a system of compensation for victims of police abuse. The judgement emphasized the global effort against torture. It was also upheld that detainees have their fundamental rights protected, only legally permissible restrictions can be imposed on the enjoyment.  A number of important guidelines were laid to be followed by the police officers while arresting someone.[9]
• Kishore Singh v. State of Rajasthan (1981): Third Degree Use: The Supreme Court ruled that police use of “third degree” methods (torture) violates Article 21 of the Indian Constitution, which protects the right to life and personal liberty.
• Nilabati Behera v. State of Orissa (1993): State Liability: The Supreme Court held that the state is liable to pay compensation for custodial deaths resulting from police negligence or brutality. This decision recognizes the state’s responsibility to safeguard the right to life.
• Joginder Kumar v. State of Uttar Pradesh (1994): Human Rights Violation: The Supreme Court addressed indiscriminate arrests and referred to recommendations from the Third Report of the National Police Commission. It emphasized that police should avoid arrest unless necessary, especially in heinous offenses.[10]

Conclusion

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.[11]  In India, custodial torture is a serious issue that highlights the need for systemic criminal law reforms and its implementation by law enforcement agencies for better protection of individuals’ rights. The Indian judiciary played a crucial role in preventing custodial torture through directives issued in various cases, It is imperative to re-examine the scope of police custody to prevent custodial violence and safeguard the rights and well-being of individuals… There is a need to enact comprehensive legislation to address the complex issues pertaining to custodial torture caused by the intersection of criminal law and constitutional rights. Such law should prevent custodial torture and punish erring public officials by conducting prompt investigation and trials. It is necessary to conduct police training programs to uphold accountability and empathy towards citizens. In addition, civil society organisations should conduct public awareness campaigns and advocate for necessary legal reforms to bridge enforcement and implementation gaps to ensure that individuals’ rights are protected. [12]
[1] Custodial Deaths,iPleaders, https://blog.ipleaders.in/custodial-deaths/ (last visited Oct. 10,2024).

[2] Ashish Chauhan,Zero Conviction in 97 Deaths In Gujarat, TIMES OF INDIA(Jan.08,2024,08:28 IST), https://timesofindia.indiatimes.com/city/ahmedabad/zero-conviction-in-97-custodial-deaths-in-gujarat-national-crime-records-bureau/articleshow/106621989.cms .

[3]1,888 custodial deaths in India over last 20 years but only 26 cops convicted: Official data ,India Today, https://www.indiatoday.in/india/story/custodial-deaths-india-policemen-convicted-ncrb-data-altaf-case-1877539-2021-11-17 .

[4] Article 21 in Constitution Of India,IndianKanoon, https://indiankanoon.org/doc/1199182/ (last visited Oct.10,2024)

[5] Article 22 In Constitution Of India,IndianKanoon, https://indiankanoon.org/doc/581566/ (last visited Oct.11,2024) .

[6] Article 14 In Constitution Of India,IndianKanoon, https://indiankanoon.org/doc/367586/ (last visited Oct.11,2024).

[7] RAJESH GUPTA & MANJULA GUPTA, NEW CRIMINAL MANUAL (Garg’s ed. 2024).

[8] 75 Years: Laws that Shaped India | The Protection of Human Rights Act, 1993,DRISHTI IAS, https://www.drishtiias.com/loksabha-rajyasabha-discussions/75-years-laws-that-shaped-india-the-protection-of-human-rights-act-1993 (last visited Oct. 12,2024).

[9] DK Basu vs. State of West Bengal (1997) : case analysis,I PLEADERS, https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/#:~:text=Judgement%20in%20DK%20Basu%20vs,the%20global%20effort%20against%20torture. (last visited Oct. 14,2024)

[10] Custodial Deaths In India,GOKULAM SEEK IAS, https://gokulamseekias.com/mains-c-a/custodial-deaths-pin-india/ (last visited Oct. 13,2024)

[11] Custodial deaths, I PLEADERS, https://blog.ipleaders.in/custodial-deaths/ (last visited Oct.13,2024).

[12] Dr. J. Lakshmi Charan, Custodial Torture in India: Intersection of Criminal Law and Constitutional Rights , SCC ONLINE TIMES ( March 23, 2024) https://www.scconline.com/blog/post/2024/03/23/custodial-torture-in-india-intersection-of-criminal-law-and-constitutional-rights/ .