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Custodial violence and deaths: Violation of Principle of Rule of Law

Concept of Rule of Law
Rule of Law was originated by the Chief Justice of England:
Sir Edward Coke. He said that the king should be under the god and the law, he established the supremacy of law over the executive and the fact that there is no higher authority than the law.

Later A.V. Dicey gave definite shape to the idea of Rule of Law in his book The Law of the Constitution�.

According to Dicey's view, the rule of law is supported by three pillars based on the idea that "a government should be built on the principles of law and not of men," which are as follows:
  • Supremacy of Law
    It is the first principle of Rule of Law. It means that in a country the law should be supreme and all the authorities should act as per law and they should not have arbitrary or wide discretionary powers. According to him, wherever there is a discretion, there is a room for arbitrariness.
  • Equality before Law
    It is the second principle of Rule of Law. It means that there should be equality before law and every individual irrespective of his religion, caste, gender, position, occupation, race etc. should be treated equally and subject to one and the same law.
  • Predominance of Legal spirit
    It is the third principle of Rule of Law. According to him, the courts are the protectors of the rule of law and hence there should be partial and competent courts. For the existence of Rule of Law, Independence of Judiciary is indispensable.

Essence Rule of Law under Constitution and other statutes
Dicey's rule of law has been adopted and incorporated in the Constitution in many of its provisions like:
  • The Preamble:
    Enunciates the ideals of justice, equality and liberty.
  • Part III where Fundamental Rights are enshrined under the Constitution:
    • Principles of Judicial Review embodied in the Constitution and made enforceable.
    • Article 14 of the Constitution states that the state shall not deny equality before law and equal protection of law.
    • No person shall be deprived of his life and personal liberty �� (Article 21 of the Constitution) except the procedure established by the law.
    • In case of any infringement of the Fundamental rights provided under part III of the Constitution, one can approach the Apex Court under Article 32 (Constitutional Remedy) and High Court under Article 226 of the Constitution.
    • The Constitution is supreme and all the three organs of the government namely, Legislature, Executive and the Judiciary are subordinate to it and have to act in accordance with it.
    • If the executive or the government abuses the power vested or if their actions are malafide, then they subject to the punishment.
    • Code of Criminal Procedure, 1973 provides for various rights of the arrested person under Section 41d, 50, 54, 56 and 57.

Custodial violence and deaths �� Violation of Rule of Law
Yes, the Custodial violence and the deaths amount to violation of the principle of the Rule of Law.

The Rule of Law, as enshrined in the Constitution, provides that no one is punishable or made to suffer unless for a violation of law established by legal procedure in a court of law but the custodial violence and the deaths, which involve the deaths of the accused or the suspects under trial in the police or judicial custody are contrary to the principle of Rule of Law.
It is the duty of the executives to maintain the law and order appropriately and the executives were required to execute their powers bonafidely and reasonably, and not to abuse them.
The role of the Judiciary is to interpret the laws and to protect the rights of the individual guaranteed under Part III of the Constitution.

Article 20(3) of the Constitution provides for the Right of protection against self-incrimination. It provides that no person who is accused of an offence can be compelled to be a witness against himself. It as a protection from Custodial violence to gain evidence from the accused.

Article 21 does not specifically condemn custodial violence and deaths but it provides that no one can be deprived of his life and personal liberty except the procedure established by the law.

In the case of Kesavananda Bharati v. State of Kerala [AIR 1973 SC 1461]
It was held that the Rule of Law is a fundamental part of the constitution's basic structure and, as such, cannot be altered by any Act of Parliament, demonstrating how the law is superior to any other human authority.

Article 22(2) of the constitution makes it mandatory for the police officer to present the person arrested before a Magistrate within 24 hours and cannot be detained beyond the said period.

In Joginder Kumar v. State of Uttar Pradesh [AIR 1994 SC 1349]

The Apex court held that to consult an advocate, right to know the grounds of the arrest etc. are inherent in the Article 21 and 22 of the Constitution and a facet of Rule of Law.
In D.K. Basu v. State of West Bengal [AIR 1997 SC 610]

In this case the Apex Court laid down certain guidelines for the protection and prevention of the accused from custodial violence.

Some of the guidelines are:
  • The person under arrest must be produced before the Magistrate within 24 hours of the arrest given under section 56 and 57 of Code of Criminal Procedure, 1973
  • The person arrested should be permitted to meet his advocate at any time during the interrogation given under section 41d of the Code of Criminal Procedure, 1973.
  • A right to fair trial to the accused.
  • The methods used for interrogation must be consistent with the right to life, dignity and personal liberty and the right against any violence and degrading treatment.

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