Life and Liberty are often considered to be very ambiguous terms. On the
political spectrum, various political luminaries, place a person's right to life
and liberty, wherever they want, as per their own convenience. In the history of
the world's largest democracy, we have even seen an instance where the highest
law officer of the country says to the Supreme Court, that the government is
competent to even take away a person's life in case of an Emergency [i].
In such situations, when a topic itself is vague and obscure, it necessitates
correlation on an established parameter which measures it in non-arbitrary
terms. In this case, that measure of a person's right to life and liberty ebbs
and flows from the 19th century English Concept of Rule of Law.
For a comprehensive understanding of Rule of law viz-a-viz custodial
death/violence, there is a need to first understand the basic tenets of the
The concept of Rule of Law originated from the British unwritten constitution.
Sir Edward Coke who was the Chief Justice during James I's reign, had initially
come up with the principle where he had held that the King should be a subject
of the law and be below the same. However, the credits of using the word,
Rule of Law
, goes to Professor AV Dicey where in his book, The law of the
, he mentioned 3 postulates of the theory:
- Supremacy of Law/Absence of Arbitrary power:
It is the law that should be
supreme and that no man should be punished except for a distinct breach of law
established in an ordinary legal manner, in an ordinary court of law.
- Equality before law:
where irrespective of the socio-political status of
a person, he/she would be treated equally before the eyes of law. Article 14 of
the Indian Constitution is based on this.
- Individual Liberty/Predominance of Legal Spirit:
where the liberty of a
person is of supreme nature and that the same must be embedded in the country's
legal spirit. According to Dicey, individual liberty is better protected in an
unwritten constitution than a written constitution.
Prima facie, it appears that AV Dicey was trying to assert an individual right
to life and liberty in all scenarios, irrespective of circumstances. Having
understood, this background, we shall now understand rule of law and its
implications in cases of custodial death/violence.
Custodial death or violence finds no mention anywhere in the constitution[ii].
However, a broad understanding of the term custodial death would refer to
unnatural death of a prisoner in custody of law enforcement[iii]. It refers to
those cases where while a prisoner is under trial or has been convicted and is
serving a sentence, he/she dies.
Broadly speaking, custodial death is seen as something which is unwelcome of in
a democracy. It tends to perforate beyond the established boundaries of
separation of power and hinders the course of natural justice. Moreover, proven
cases of custodial death, are a blot in the name of rule of law. Here is why.
- The first postulate of rule of law establishes the supremacy of law
and absence of arbitrary power. It envisages a rule which states that a
person should not be punished except for a breach of law. Moreover, such
punishment is to be administered by an ordinary court of law only.
The very definition of custodial death/violence is against this principle. Most
cases of deaths in custody are those of under trials, viz-a-viz those whose
offence hasn't been proven yet. Hence, the question of them having breached a
law is subsequent in time.
Even in those cases where convicted prisoners die in
custody, even there, their offence has already been sentenced and hence, their
death in custody is shambolic to say the least. Moreover, when a person dies in
custody, he or she has essentially been administered a punishment by an agency
who is not competent to do so. As per rule of law, only the courts are competent
to sentence a person to death and law enforcement misusing their power to do so
is a gross violation of the principle.
The American Supreme Court in the leading case of Olmstead vs United States
has equated the police with the state and said that if the state (through
custodial violence) itself becomes law breaker then it invites contempt for law
and anarchy. In a civil society, the power as well as the responsibility of the
police are immense and hence must be exercised with extreme caution.
- The second postulate of rule of law talks about equality before law.
Here, theory seems to take a departure from reality. Figures have often
shown that the worst brunt of custodial violence is borne by the weaker
and the marginalised section of the society. The richer section quickly resorts to
judicial means to safeguard their lives, the poor, downtrodden and ignorant who
are not that resourceful to approach higher authorities for the safeguarding of
their liberty often face the music of custodial violence.
They are taken into
custody without following the established procedures and no entry is made in the books[v] Then upon torture when they die, the police set up the death as if it
were a suicide.
The situation in this regard is so grim that the Supreme Court in the case of
Raghubir Singh vs State of Haryana[vi] expressed great anguish and concern over
the fact that the guardians of law were turning into the biggest violators of
basic human rights.
- The third postulate of rule of law talks about individual liberty
and predominance of legal spirit where, the liberty of an individual
should be of paramount importance. What one must realise is that being in custody itself is
an attack on the liberty of the person involved. Here, the justification for
this attack on his/her liberty is the due process of law. However, when this due
process is not followed, viz-a-viz a prisoner is subjected to custodial
violence, then this essential of rule of law is violated.
Moreover, when a person dies in custody, its not just his liberty which has been
taken away. If he is the sole breadwinner of his family (which is the case in
most situations), then the liberty and dignified life of an entire family is
compromised[vii]. Hence, so much importance is laid on upholding liberty of an
Audi Alteram Partem
is the bedrock of any justice system. A person, irrespective
of the charges against him, has the right to be heard in a court of law. Only
when he has been heard, can he be sentenced (if convicted). The act of custodial
death or violence is an insult to this practice where the law enforcement takes
up the role of judge, jury and executioner all by themselves thereby making a
mockery of the rule of law.
So much is the need of the hour to look at this growing menace that after the
death of an aged terror accused awaiting trial, lawyers from across the country
have been demanding that the definition of custodial death be solidified and
widened to ensure clarity on the subject in the future. [viii] Looking at all
that has happened in the past, this demand seems justified and it is now the
prerogative of the ruling dispensation to make the suitable amendments/additions
Written By: Mr. Saikat Mukherjee
- Bhushan, Prashant, PM Can Be above the Law, in The Case that Shook India �
The verdict that led to the Emergency, ed. (Mumbai: Penguin Books, 2017),
- https://www.opindia.com/2021/07/stan-swamy-judicial-murder-death-facts-truth/ (Accessed
08-07-2021, at 20:45 hrs)
- Ruiz, G�raldine & Wangmo, Tenzin & Mutzenberg, Patrick & Sinclair, Jessica
& Elger, Bernice. (2014). Understanding Death in Custody: A Case for a
Comprehensive Definition. Journal of bioethical inquiry.
- 277, US 438
- The 152nd Law Commission Report on Custodial Crimes 1994
- AIR 1980 SC 1087
- The 113th Law Commission Report on Injuries in Police Custody 1985
- https://www.newindianexpress.com/nation/2021/jul/06/broaden-definition-of-custodial-death-say-lawyers-after-stan-swamy-dies-in-hospital-2326428.html (Accessed
08-07-2021 at 23:11 hours)
, a 3rd year BA LLB student at Symbiosis
Law School, Nagpur
Email : [email protected]