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Custodial Deaths and Role of Judiciary: A Critical Analysis

The Constitution of India guarantees various rights to a Prisoner or a person in custody under Articles 20, 21 and 22 of the Constitution of India. The Supreme Court of India has interpreted certain rights such as Right against Handcuffing, Right to a Fair Trial, Right to Free Legal Aid etc as an integral part of Article 21 of The Constitution of India. Custodial deaths are raising concern in the society.

As the Police Officers are entrusted with the protection of mankind and when they themselves violate those law instead of protecting it. It is only with the co-operation of both the police and the public that we can built a strong and healthy democracy where there is no violation of human rights.


Liberty is the most cherished possession of man

Secular, Socialist, Sovereign, Democratic Republic are the pillars of India. In a democratic country, the police are to protect rather than inflict torture on them. The very purpose of police is to provide a safe and orderly society where freedom can be exercised. Democracy gets threatened when the law makers and the enforcers turn law breakers and the protectors of human right turn persecutors.

The word torture has become synonymous with the darker side of human civilization. Torture and death are not new in the modern world. This has raised obstacle and hindrance to our democracy and development in the contemporary world. Custodial death is one of the worst crimes in a civilised society governed by Rule of Law. Does a citizen shed off his Fundamental Right to Life, 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. In India where Rule of Law is inherent in each and every action and Right to Life and Liberty is prized fundamental right adorning highest place amongst all important Fundamental Rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach (Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260)

Violation of Rule of Law

Rule of Law is a basic structure of a democratic State as democracy guarantees liberty, equality and fraternity and these words are also mentioned in the Preamble which is the basic structure of our Constitution. The principles of Rule of Law is very much supportive to this structure and Rule of Law is one of the basic features of a democratic country and violation to any principle of Rule of Law can be a crucial issue and a threat for a democratic country.

The principles of Rule of Law are supremacy of law, equality before law, accountability to law, fairness of law and separation of powers. Supremacy of law, means that a country is governed by the laws of the country and not by the people nominated in the country.

Hence no one is above law and Constitution but while a person or a suspect is tortured or force used on him in the police or judicial custody then it's a clear violation of supremacy of law. Extra judicial killings are kind of violence which are done by those who are responsible for the protection of the law and the citizens.

Custodial violence is a broader term which includes torture, assault, death, sexual abuse, rape, all behind the bars. Every citizen has few fundamental rights including those in the Articles 20, 21 & 22 (1) of the Constitution of India which must be followed in at most good faith.

The violated principle through custodial violence is equality before law. This principle makes sure that there should be no discrimination to any citizen and everybody is subject the same law. But in a custodial violence when a suspect dies due to violence or use of force and is not given a proper chance of fair trial then it's a clear violation of this principle.

The Next infringed principle is Fairness in application of law. It means Laws should be applied to everyone fairly and without any arbitrariness and while a suspect suffers through various tortures in police or judicial custodial violence and not given a chance for proper trial, then it's a clear violation of this principle.

Remedies Against Custodial Torture

  1. Constitutional Safeguards

    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.

    1. Article 20 of the Constitution of India:

      Article 20 of Constitution of India primarily gives a person the right against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) 'No crime, no punishment without a previous penal law, Article 22 of the Rome Statute of the International Criminal Court i.e. ex-post facto laws thereby making it a violation of the persons Fundamental Rights if attempts are made to convict him and torture him as per some statute. Article 20 of Constitution of India also protects against double jeopardy (Nemo Debet Pro Eadem Causa Bis Vexari) No one ought to be twice troubled or harassed [if it appears to the Court that it is] for one and the same cause 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.
    2. Article 21 of the Constitution of India:

      The Article 21 of the Constitution of India is understood 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 of the Constitution of India 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. (D. K. Basu Vs. State of W. B, (1997) 1 SCC 416)
    3. Article 22 of the Constitution of India:

      Article 22 of the Constitution of India 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
The Code of Criminal Procedure, 1973 and the Indian Panel Code, 1860 provides protection to the accused person against arbitrary arrest and custodial violence. However, it is necessary for the legislation to implement new provisions under the Code and Indian Evidence Act, 1872 which specifically deals with the issue of custodial deaths whether it is unnatural or natural death in the police lockup.

  1. Protection under the Code of Criminal Procedure, 1973 & Indian Penal Code, 1860

    The Code of Criminal Procedure, 1973 provides certain provisions to protect the person from custodial torture. There are various provisions enshrined under Cr. P. C which should be kept in mind by Police Officials while having custody of the accused or suspected person.

    The power to arrest any person is given under Section 41 of the Code of Criminal Procedure, 1873. This section clearly states that a Police Officer has the power to arrest any person to investigate the case further, but has no power to use unnecessary force to extract the information from that person. Also, the power given to the Police Officer is discretionary as the word may is used in the section. So, it is his duty to arrest a person according to the facts and circumstances of the case and not otherwise.

    Section 49 of the Code of Criminal Procedure, 1973 also provides that the accused must not be subjected to more restraint or restrictions than necessary to prevent his escape. The word 'necessary' is important here. It is the duty of the state and police officials to make sure that an accused must not be subjected to unnecessary restraint. The person who is arrested shall not be subjected to unnecessary force and torture and Police Officials are liable under different sections of the Indian Penal Code, 1860 if they abuse their power. These Sections include Section 340 of the Indian Panel Code, 1860 also Section 349 to 358 of the Indian Panel Code, 1860 which contains the provisions related to assault and criminal force.

    Section 50 of the Code of Criminal Procedure, 1860 provides for the ground of arrest. These grounds of arrest must be in compliance with Article 22 of the Constitution of India. So, that non – compliance with the Section will give rise to illegal arrest and detention of an accused.

    Section 161 of the Code of Criminal Procedure, 1973 provides for the statement to be recorded with all the facts and circumstances of the case by the Police Officer. This statement must be distinguished from the information which starts the investigation. Section 161 (2) provides that a person accused must not be bound to answer those questions which would have a tendency to expose him to a criminal charge. Also, Section 164 of the Code of Criminal Procedure, 1973 provides for the confessional statement. It is observed in this case that a Magistrate must take to see the requirements under Section 164 are fully satisfied.

    Both the provisions of the Code as provided under the Section 56 of the Code of Criminal Procedure, 1973 and Article 22 of the Constitution lay down that a person must be produced before a Magistrate within 24 hours of the arrest. But in the case where a person is not produced before the Judge and he is kept in the custody of the police where he is facing torture and coerced to confession which leads to the discovery of relevant facts. To prevent this extra-judicial practice and torture, a Magistrate must ensure and enquire the date and time of arrest of the accused when he is presented before the Magistrate and records the same.

    Further, certain provisions of the Indian Penal Code, 1860 also provides for the protection of the accused under the custody of the police. Section 330 and 331 of Indian Penal Code, 1860 provides for the protection of the accused from unnecessary harassment in custody as well as to extort information without his will. Also, the Indian Penal Code, 1860 provides that a Police Officer is liable to be punished if he exercises or abuses his power without any necessity.
  2. Protection under Indian Evidence Act, 1872

    The accused is also protected under the provisions of the Indian Evidence Act, 1872. Section 25 of the Indian Evidence Act, 1872 provides that a confession made to the police cannot be admitted in Court. Also, Section 26 of the Indian Evidence Act, 1872 provides that a confession made to the police by the person cannot be proved against such person unless it is made before the Magistrate.

    Also, the Indian Evidence Act, 1872 provides for Section 164 where a Magistrate has to record the confessional statement of the accused made to him in the course of an investigation or any stage of the trial. Thus, the Indian Evidence Act, 1872 also provides protection to the accused from being unnecessarily harassed by the police in the lockup.
  3. Indian Police Act, 1861

    Sections 7 & 29 of the Police Act, 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given.

Role of Judiciary

The Hon'ble Supreme Court has kept individual dignity as a focal point in plethora of Judgments and has always been very sensitive to the issues of police brutalities. In [Prakash Kadam Vs Ramprasad Vishwanath Gupta, (2011) 6 SCC 189], the Supreme Court observed that:
Policemen are persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be F given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.

In [Re Inhuman Conditions in 1382 Prisons Vs State of Assam, AIR 2016 SC 993], the Supreme Court observed as follows:
There are several such cases – documented and undocumented - all over the country but in spite of repeated decisions delivered by this Court and perhaps every High Court there seems to be no let-up in custodial deaths. This is not a sad but a tragic state of affairs indicating the apparent disdain of the State to the life and liberty of individuals, particularly those in custody. The time to remedy the situation is long past and yet, there seems to be no will and therefore no solution in sight.

In India the Supreme Court and the National Human Rights Commission have played a significant role in combating custodial torture. The Apex Court has expressed its worries and serious concerns towards torture and deaths in police custody.

In the case of [Kishore Singh Vs. State of Rajasthan, AIR 1981 SC 625] the Supreme Court held that the use of third degree by the police is violative of Article 21 of the Constitution of India. It observed that:
The State must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person-a process which must begin more by example than by precept if the lower rungs are really to emulate. Thirdly, if any of these escort policemen are found to have mis-conducted themselves, no sense of police solidarity or in-service comity should induce the authorities to hide the crime.

Condign action, quickly taken is surer guarantee of community credence than bruiting about that 'all is well with the police, the critics are always in the wrong'. Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights.

In [Joginder Kumar Vs. State of UP & Ors., AIR 1981 SC 625], the Supreme Court dealt with incidents of violation of human rights because of indiscriminate arrests. They referred the recommendations made in the Third Report of the National Police Commission that police should avoid arrest provided only in heinous offence.

The Apex Court expressed the same zeal for the improvement of the persons suffering from police excesses, as under:
20. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so.

Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a Police Officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

The Supreme Court in [D. K. Basu Vs. State of West Bengal AIR 1994 S. C. 1349] has established norms required to be followed during arrest and detention.
Torture has not been defined in the Constitution or any other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the strong over the weak by suffering. The word torture today has become synonymous with the darker side of human civilisation …… And, custodial violence including torture and death in the lock-up strikes a blow at the rule of law.

General guidelines laid down by Supreme Court of India in [D. K. Basu Vs. State of West Bengal AIR 1997 SC 610]

  • It is the duty of the Police Officer not to use third-degree methods while having investigation and interrogation from the accused
  • Attention must be required in checking the working environment, training, and orientation of the Police Officials with the basic human values.
  • The legislature must adopt the recommendations suggested by the Law Commission Report by inserting Section 114-B.
  • A balanced approach should be used by the police to extract the information from hardened criminals.
  • There must be a memo made by the Police Officer in charge at the time of arrest and at least one family member of the accused must be present when the arrest is made
  • The requirements under the Constitution under Article 21 and 22 (1) of Constitution of India must be followed by Police Officers.
  • Awareness must be created to the arrestee so that he can understand his basic rights at the time of the arrest.
  • Also, the Court has given certain preventive measures that must be followed by the Police Officer in charge at the time of the arrest of an accused.

In [Sunil Batra Vs. Delhi Administration AIR 1978 SC 1675]; [Prem Shankar Vs. Delhi Administrative A I R 1980 SC 1595]; Altemesh Rein Vs. Union of India AIR 1988 SC 1768]; [''Sunil Gupta V. State of MP ( 1990 ) 3 SCC 119], the Supreme Court has shown concern towards police atrocities and handcuffing.

Recently the ongoing judicial activism has cracked its whip on the police. The court has even ruled out that in case of any death or injuries suffered in the police custody the burden will lie on the authorities to establish the death or injuries occurred due to natural causes and not on account of police authorities.

Respect for human rights lies at the heart of good governance. In a democratic society, it is the responsibility of the State to protect and promote human rights. All State institutions whether they are the police department, the army, the judiciary or civil administration have a duty to respect human rights, prevent human rights violations, and take active steps for the promotion of human rights. The role of the police is especially significant in this respect.

The police is charged with the responsibility of maintaining order and enforcing laws. Therefore, the onus of bringing those who break the law ñ including laws which protect peopleís human rights ñ before the criminal justice system lies on the police. Unfortunately, many a time, while discharging this duty, actions of the police conflict with human rights. Police officers are pressured to get quick results, often with unofficial guarantees that they may use any means possible to accomplish the task at hand.

However, the police as protectors of the law have both a legal duty and a moral obligation to uphold human rights standards and act strictly in accordance with the law and the spirit of our Constitution. The Constitution - the supreme law of our country - entitles everyone living in India to protection of their human rights. Part III, the chapter on Fundamental Rights, which is referred to as the heart of the Constitution, guarantees basic human rights to all. It pledges that the State will safeguard human rights and will protect citizens from undue invasions on their liberty, security and privacy.

The Supreme Court has over the years, explained and elaborated the scope of Fundamental Rights. They have strongly opposed intrusions upon them by agents of the State, by asserting that the rights and dignity of individuals must always be upheld. The Court has laid down certain directives for law enforcement.

These directives deal with various aspects of police work at the station house or cutting edge level, such as registration of a case; conduct of an investigation; carrying out of an arrest; treatment of an arrested person; grant of bail; questioning of a suspect; and protection of the rights of women, poor and the disadvantaged. They also have the force of law.1 An officer who wilfully or inadvertently ignores Supreme Court directives can be tried in court under relevant provisions of the Indian Penal Code and under the Contempt of Courts Act, 1971.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]  

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