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Custodial Death A Glaring Violation Of Human Rights

Custodial Torture is virtually a world-wide phenomenon inflicted upon individuals regardless of sex, age or state of health. This worst form of human rights violation has become a very serious and alarming problem in Third World countries like India. Brutal atrocities perpetuated by the police, jail authorities, armed forces and other law enforcing agencies on the suspects/accused persons and prisoners are menacingly on the increase day by day.

Hardly a week passes without an incident of custodial torture or custody death being reported in the press. Custodial torture is not confined to violent people like saboteurs, terrorists, dacoits and other hardened criminals as certain police officials would like to make out (even if they are hardened criminals, do the police have right to take it upon themselves to inflict brutal punishment assuming the role of judiciary?

Custodial torment has become so regular nowadays that not just the police what's more, administration yet even the individuals underestimate it as a normal police practice of cross examination. The outcome is that the updates on such ludicrous lead cause just a fleeting stun in the general public. When something ghastly happens, there is open turmoil. At exactly that point the administration pays heed to the custodial torment as the open objection leaves them with no other choice.

All things considered the blameworthy cops ordinarily endure, best case scenario the discipline of brief suspension. Once the occurrence blurs from the memory of general society, they are again back in the administration.

Custodial Torture incidents are frequently hit the headlines and expose the man in uniform by putting them to severe public criticism. Despite various legal provisions as laid down in the State Police Manuals, which puts a restrictions on police officers not to indulge in activities which are deemed as abuse of powers and which violates the human rights, but many of the police officers have no reverence of such laws as because they think that they could easily get away with custodial violence, as it will be very difficult to prove such acts against them.

According to Amnesty Report in India[1], about 415 persons died in the custody of police and security forces, due to torture between 1st January 1985 and 1st Nov 1991. Explaining the cases of custody death, the same report pointed out that not more than 42 magisterial enquiries were conducted, judicial enquiries were conducted in 20 cases; criminal charges were framed in 52 cases; police officers were arrested in 25 cases and only in 3 cases the guilty officers were known to have been convicted by the court.

The occurrence of custodial deaths has raised concern of every citizen in India and has shaken the democracy. The International Authorities also put substantive pressure on the National Governments to observe the Human Rights in letter and spirit and give it the highest importance above all. Jerome H. Skolnick[2] also posed some basic questions on the police for preservation of democratic order and the rule of Law.
  • For what social purpose do police exist?
  • What values do the police preserve in a democratic society? Are the police to be principally an agency of social control with their Chief value the efficient enforcement of the prohibitive norms of substantive Criminal law?
  • Or the police to be an institution fall under the hegemony of legal system, with the basic commitment to the rule of law, even if this obligation may result in a reduction of social order?
  • How does this dilemma of democratic society hamper the capacity of the police?
  • Institutionally and individually to respond to legal standard of law enforcement?.

Research Methodology
Only secondary data is used for the study of this paper, various books, websites, journals, e-reports and data and materials available online, repositories are used and assimilated and due reference and acknowledgement also given in the last part of this article containing the reference list and the contents of the materials as availed are duly analysed to prepare this article and in order to categorically explain the research objectives and finally reaching the conclusion.

Research Problem & Scope Of Study
The Major research problem and scope of the study involved in this topic are:
  1. How the police resort to violence on a criminal during interrogation while keeping him under his custody and how it violates the human right?
  2. Why the police use third degree on a criminal?
  3. What are the laws which protect the rights of a person who is under police custody?
  4. Use of third degree method by police causing the death of the accused, a gross violation of human right.
  5. How to check this menace of custodial death and protect the human right of the suspected criminal person and accused?

Use Of Third Degree Method By Police

Third degree means a kind of torture and violence both mental and physical used by the police man against the criminal in order to extract information / confession from them during interrogation. Though it is fact that all confession made to a police officer are inadmissible as evidence before the court of law, except under certain circumstances and to certain extent it is admissible.

Police support the concept of custodial torture by the use of third degree on the below mentioned grounds:

  1. Professional Criminals understand the Language of third degree only in order to tell the truth.
  2. It is not an offence to use third degree method on hardened criminals, rapist and terrorists.
  3. In order to prove the guilt of the accused before the Court of law, it is essential to reveal the truth from the mouth of the culprit; hence the use of violence in the form of third degree is very much essential.
  4. This acts as a preventive measure to control the crime and to instil fear in the mind of the criminals for which they will desist from committing the crime.

Torture of a human being by a person under authority is essentially an instrument to impose the will of the Strong over the week by suffering.

Torture is a wound in the soul of painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in you, chest cold as ice and heavy, as a stone paralysing as steep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself -- Adraina P. Bartow.

Custodial Violence and abuse of police power is not only a problem of India but is a global menace. The Universal Declaration of Human Rights 1948, Article-5 stipulates that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Despite of such pious declaration, custodial violence still continues unabated though every civilized nation shows its concern and takes step for its eradication.

In Jogendra Kumar Vs. State of Uttar Pradesh[3], the Hon'ble Supreme Court of India has held that, Custodial Torture is one of the brutal form of human rights violation. The Constitution of India, The Supreme Court of India, The National Human Rights Commission of India (NHRC) and the United Nations forbid it. But the police all over the India Openly defy it. Therefore, there is a need to strike a balance between the individual human rights and societal interest in combating the crime by using a realistic approach.

According to the Asian Centre of Human Rights, in India, there are at least 4 custodial deaths per day from 2002-2007[4]. Amnesty International in its report of 2017-18[5], stated that the count of the death in judicial custody for the said year accounted to 894 and deaths in police custody accounted to 74. According to the report, Uma Bharti accepted that she ordered the police to torture the rape suspects when she was the chief minister of Madhya Pradesh. This can be seen as a reflection of the loophole in the definition of torture under the UN Convention against torture because it allows torture by state authorities when it is lawful and allowed by the state.

In India, an attempt was made to gather information on the cases of police's violation of human rights of prisoners by the National Crime Record Bureau (NCRB) and NHRC. The NCRB's crime in India Report 2008, showed that during 2008, 253 cases were reported throughout the country of Human Rights violation by police. Even after this huge number of incidents was reported against the policemen, no inquiry was done against them and they were not charged with it. The violations included Illegal Detention, Torture, Fake encounters etc. It was also reported that only 14 policemen were charge-sheeted out of a big number of 253 cases and only 8 policemen were convicted.[6]

For effective enforcement of these fundamental rights, Hon'ble Court issued the following guidelines[7]: That in case of arrest of a person, the police officer shall inform the arrested person that the grounds of his arrest as a matter of right and also to inform any one of the known person of the arrested. And an entry shall be required to be made in the diary as to who was being informed of such arrest. It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

In another case the CBI Court[8] has held that:
The two serving police personnel as accused for murder in a custodial death case and awarded death sentence to both the police person, in a custodial torture case while doing interrogation of the suspect leading to his death.

The CBI Court in the case noted the same as: This is a brutal and dastardly murder by accused (number) one and two, The acts of the accused persons would definitely adversely affect the very institution of the police department, If the faith of the people in the institution is lost, than it will affect the law and order, and it is a very dangerous situation.

Constitutional Protection Against Violation Of Human Rights

It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Constitution of India.

Article 20 of the Constitution of India:

Article 20 primarily gives a person the rights against conviction of offences. No one shall be punished except for violation of a law in force at the time of commission of the offence . Article 20 also protects against double jeopardy that means no one shall be punished twice for the same offence. This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.

Article 21 of the Constitution of India:

This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence. The expression "life or personal liberty" in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person[9].

Article 22 of the Constitution of India:

Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.

Other Statutory Safeguards:

Indian Evidence Act, 1872:

A confession made to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.

Code of Criminal Procedure, 1973:

Sec. 49 of the Code protect from unnecessary restraint. Sec. 50-56 are in consonance with Article 22 of the Constitution of India. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore It gives them the right to bring to the Court's notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request A compensatory mechanism has also been used by courts. When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.

Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.

Indian Police Act:

Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.

India should ratify the UN Convention against Torture. Police reformation and guidelines should also be formulated on educating and training officials and they should be imbibed high qualities to respect the human rights of the detainees. Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed.
CCTV cameras should be installed in each and every police stations and lock ups and jails to keep close surveillance of the interrogation proceedings.

NGO members should be allowed to make surprise visits to the jails and detention centres and lock ups to check the health of the detainees and also to protect his human rights , prevent custodial torture and violence.

Law Commission of India's 273rd Report for implementation of United Nations Convention against Torture : The report recommends that those accused of committing custodial torture � be it policemen, military and paramilitary personnel � should be criminally prosecuted instead of facing mere administrative action establishing an effective preventive measure against custodial violence and death. Every case of custodial death should be enquired on the spot by highly experienced and specialized Judicial officers not below the rank of District and Session Judge. Continuous monitoring of police activity relating to detention and torture of suspects and detainees be made by judicial officers.

  1. Amnesty International, India Torture , Rape and Death in Custody 101, (1992).
  2. Skolnick Jerome H Justice without trial; Law enforcement in a democratic Society.
  3. Jogendra Kumar Versus State of Uttar Pradesh (1994) (4) SCC(260).
  4. Vibha Sharma, '7,468 custodial deaths in 5 years: Human Rights' (Tribune India, 27 June 2008) accessed 27 March 2019.
  5. Amnesty International Report 2017/18 'The State of the Worlds Human Rights' accessed 28 March 2019
  6. R.N. Mangoli and Ganapati Tarase, 'A Study of Human Rights Violation by Police in India' (2010) 3 International Journal of Criminology and Sociological Theory < > accessed 6 April 2019.
  7. Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260.
  8. J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007 (K) AND CRL. R.P.2902 OF 2007.
  9. D.K.Basu v. State of W.B, (1997) 1 SCC 416)

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