INTRODUCTION
Custodial death and torture became a topic for discussion after George Floyd’s brutal killing in the USA and the custodial death of Jayaraj and Benix in Tamil Nadu, India. There have been enough protests to allow a better regulation policy to avoid the inhuman treatment during custody. We have remedies under IPC but we lack proper implementation of the same. Better regulation policy could be a way to deal with the same.
CUSTODIAL TORTURE
To start with an important quotation, “Custodial death is one of the worst crimes in a civilised society governed by the Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic No” – Supreme Court in, D. K. Basu vs. State of West Bengal, AIR 1997 SC 610. [1]
Custodial torture is a straight violation of Human Rights and harms the dignity of the person. Such violation in the hands of those authorities that claim to protect the law is rather shameful. Many custodial torture lead to deaths. Custodial deaths can be defined as the demise of the person who is detained by the police during pre trial or after conviction.
Custodial deaths are of three types –
- Death in Police Custody
- Death in Judicial Custody
- Death in custody of army or paramilitary force.
Such deaths can also be a result of suicides, illness or some injury. There are many instances where the person is killed in fake encounters; such fake encounters are tough to be verified because the proof is also presented by the police itself.
CUSTODIAL DEATHS IN INDIA
Reports of the India Annual Report on Torture 2019 [2]showed that there were a total 1,731 custodial deaths in India. 1,606 people died under judicial custody and 125 people died under police custody.
This report highlights forms of torture which include electric shock, hammering nails in different parts of the body, applying chili powder on different parts of the body, branding with a hot iron, inserting rods in the parts of the body, forcing legs apart, hanging upside down and merciless beating and many other inhuman ways. The main victims of custodial torture are people who belong to the oppressed class of the society and those who have no means to escape this evil trap. The same report indicates that in Uttar Pradesh the number of custodial death were 14 out of 125 cases, Tamil Nadu and Punjab following thereafter with 11 deaths.
To state the incident of Tamil Nadu where P Jeyaraj and his son Benicks were dragged to police custody for keeping the shop open even after the permitted hours of COVID – 19 guidelines. They were tortured brutally and they both died after two days. This incident compelled the judiciary to step in and local courts ordered for proper investigation for the same. This recent incident shook the spirit of trust that the citizens have in law regulating bodies. The officers were charged for murder and left the nation doubting the essence of democracy.
Another notable incident is that of gangster turned politician Vikas Dubey from Kanpur. He was shot in police encounter, the police claimed that the vehicle in which he was travelling overturned and Vikas also tried to shoot one of the police officers. This incident gave rise to massive debates all over the nation questioning the true essence of the encounter.
LEGAL PROVISIONS IN INDIA
There are sufficient remedies available to a person who is treated in an inhuman way.
- Constitution
The constitution grants every citizen some basic fundamental rights, the violation of which can be approached in Supreme Court and High court under article 32 and 226 [3]respectively. Detention does not mean to deprive a person of his fundamental rights. [4]
- Article 20
It is a very important right with respect to every individual as it provides rights against conviction of offences. It also protects the person from double jeopardy. [5] The accused person under article 20 has the right not to be a witness against himself. This is of importance as it prohibits the authorities to extract evidences by the use of coercion and torture.
- Article 21
Right to life and personal liberty is violated certainly. Custodial torture is known as the worst crime against the body. In Maneka Gandhi vs. Union of India, 1978[6] , the Supreme Court expanded the ambit of article 21 covering all type of assault, battery this is not at all appreciable.
Look at K.S. Puttaswamy vs. Union of India, [7] the court held that the right to privacy is of much importance and should be read along with right to life and liberty.
- Article 22
This fundamental right provides another set of sub rights to the citizens. These are the right to be informed the reason of arrest, right to be defended by the legal practitioner of his choice, preventive detention laws and to e produced in front of the nearest magistrate within 24 hours. All these rights ensure that the rights of the person are protected.
- Indian Evidence Act, 1872
Under section 25 of Indian Evidence Act, 1872 the most important provision is that a confession to a police officer cannot be proved as evidence in the court of law. Also, any confession made under pressure or coercion will not be accepted, this is mentioned in section 24. So this clearly shows that custodial torture may not be prohibited in India but any confession or evidence obtained by pressure, coercion or any other illegal means will not be accepted in the court of law.
- Code of Criminal Procedure, 1973
Under the purview of Section 46 and 47, those who are accused of an offence, the punishment of which is death or imprisonment shall not be exempted from the corporal culture. According to section 50 – 56 is to be read along with article 22 which states that if there are any signs of custodial torture, the magistrate might investigate the matter.
- Indian Police Act –
DK. Basu vs. State of West Bengal [8] lays down several guidelines, which the police officers have to abide by. Section 7 and 29 of the act is about the suspension, they may get if they were unable to discharge their duties.
- Indian Penal Code
After the Mathura case[9], an amendment was passed to criminalized custodial rape. With this the punishment of rape done by any citizen has increased from 7 years to 10 years.
Judiciary overview
Supreme Court has always worked towards protecting the rights of the individual and hence in the case of Sheela Barse vs. State of Maharashta, [10] describes the guidelines for the people.
CONCLUSION
Each life is of importance and the rights of the same should be protected always. The court should not delay the decisions under the same. Grievance – redressal mechanism could prove to be a great support in order to eradicate this inhuman treatment. Custodial torture should be declared as crime. After so many years of independence people are still afraid, of the cops, it gives me chills down my spine.
Author(s) Name: Tanya Singh (JEMTEC, School of law, GGSIPU)
[1] Custodial death and anti-torture law – iPleaders (last assessed on 25/10/21)
[2] Microsoft Word – INDIA ANNUAL REPORT ON TORTURE 2019 (uncat.org) (last accessed on 24/10/21)
[3] Article 32 deals with right to constitutional remedies under supreme court
Article 226 is the power of high court to issue writs.
[4] Prabhakar Pandurang v. State of Maharashtra, AIR 1966 SC 424; D.B. Mohan Patnaik v. State of A.P, AIR 1971 SC 2092
[5] Double jeopardy is prosecution and punishment of the same offence twice
[6] AIR 1978 SC 597
[7] AIR 2017 SC 4161
[8]AIR 1997 SC 610
[9] (1979) 2 SCC 143
[10] 1983 CrLJ 1923 (Del)
