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“If I can love myself despite of my infinite faults, how can I hate anyone at the glimpse of few faults”- Alexander the Great
In the largest democratic country like India, the occurrence of custodial deaths has raised eyebrows of each citizen and shaken the very faith in democracy. It is a fact that amongst all the violence, the foremost alarming problem within the present millennium is that of custodial death. The term custodial death refers to a capricious or an uncertain demise of an individual who has been detained by the police authorities while undergoing any trial or on being convicted. This demise of an individual might occur while in police, judicial or defence/paramilitary custody. This is often not a completely unique concept in India as it is being carried out since British era whereby the rights of the prisoners, accused or detainees are shattered and violated to the maximal.
The Constitution and Laws of India are permeated with enduring concern for the fundamental and human rights and freedom in general including those of the convicts. Whenever any demise occurs in police custody, it seeks media attention and raises the bar of public interest. The demise may be due to natural causes or inadequate medical facilities or negligent behaviour of various authorities and bureaucrats.
The Latin maxims salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is supreme law) are so vital and inter-dependent as it accentuates that the welfare of an individual must yield to that of the community. Apart from the police authorities, the other government authorities such as Enforcement Directorate, Central Reserve Police Force, Directorate of revenue intelligence etc are also exposed on various occasions due to their negligence or torturous activity leading to deaths.
The victim of the custodial death has the following legal protection under the Indian Legal System.
Indian Constitution: Article 20 & 21 of the Indian constitution provides for protecting and safeguarding any citizen from double jeopardy and self-incrimination and right to life and personal liberty respectively. The apex court has interpreted to include the constitutional guarantee against inhuman treatment and torture of such convicts and also to uphold the dignity of people under Article 21 of the constitution.
Code of Criminal Procedure, 1973: Section 57 provides that the person arrested/ detained should be presented within 24 hours before the magistrate. Section 163 provides that no police officer shall prohibit any person to make any disposition out of his own free will and wish. Section 49 provides that no arrested person shall be subjected to more restraint than is necessary to prevent his escape.
Indian Penal Code, 1860: Section 166 provides for punishment for public servant who intentionally disobeys the law and causes any injury due to such disobedience. Section 96 states every human being has a right to private defence which is natural and inherent right. Section 340-348 deals with wrongful confinement, restraint and their aggravations. Other statutory bodies such as Indian Evidence Act, 1872; The Police Act, 1861 acts as the safeguard in case of custodial death.
The Prevention of Torture Bill, 2018 is still in trance-like condition in our Parliament. The bill was introduced to provide punishment for torture inflicted by public servant or any person with the consent or the acquiescence of any public servant. India being a signatory to “The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (UNCAT) which was adopted by the General Assembly of the United Nations has not yet being ratified by India. The National Human Rights Commission (NHRC) had also provided guidelines for magisterial inquiry to be followed in cases of custodial deaths and rapes.
Joginder Kumar vs. State of U.P & Ors: The rights guaranteed under Article 20 & 21 of the Indian Constitution needs to be recognized and meticulously protected. In order to ensure effective enforcement of the above rights, the Hon’ble court stated that the arrested person should know the reason of arrest and an entry needs to be made in the diary and it shall be the duty of the Magistrate to ensure whether the above mentioned is complied with.
Yashwant & Ors vs. State of Maharashtra: In this case the apex court upheld the conviction of nine Maharashtra cops in connection to a custodial death case and extended their sentence from 3 to 7 years. Also they were held under section 330 of the IPC whereby voluntarily causing hurt to extort confession.
D.K. Basu vs. State of West Bengal: This landmark judgement paved way to provide clarity in all cases of arrest and detention where the Hon’ble court issued 11 guidelines in addition to the statutory and constitutional safeguards. Few guidelines issued are as follows- An entry must be recorded in diary at the place of arrest or detention. The detainee must undergo medical examination every 48 hours while in custody. The inspection memo should be signed by both the parties i.e the investigating officer and the detainee.
In Tamil Nadu’s Tuticorin, the father-son duo kept their shop open beyond the permissible limit and hence became victims of the dreadful custodial violence where they were brutally assaulted which eventually lead to their sad demise. Hence section 176 of Criminal Procedure Code was amended so as to lay down the procedures to be followed while investigating cases of custodial deaths.
Recently a nineteen year old UP man was illegally detained by the police authorities in Bareli district on the ground of theft where he was in custody for more than 24 hours and was tortured despite false claims of the authorities which eventually lead to his death at the district hospital the next morning. The continuous torture and various bruises lead to his death.
A total of 46 custodial deaths occurred in the year 2018 in India, most being in the state of Tamil Nadu in cases of person not on remand and a total of 24 custodial deaths occurred in cases on person on remand, most being in the state of Andhra Pradesh. 1731 people were victim of custodial death from the year 2001-2018, but only 26 policemen were convicted on account of custodial death.
Following are some suggestions which may help to curb the custodial deaths in India
- Adequate and proper training using new scientific and psychological techniques to be taught to the police personnel.
- Installation of CCTV cameras in police station and lock-ups.
- Better and timely medical facilities to be provided in prisons.
- Promotional and timely avenues to be provided to the police authorities on the basis of seniority and experience.
- Due to the negligence of the police authorities, the kins or the dependants of the victims should be provided with monthly pension for their misery.
- A counsel or an attorney needs to be present during interrogation so as to avoid any kind of custodial violence.
- Every case of custodial death shall be investigated by a judicial officer of a rank not below district and session judge.
- Continuous and effective judicial monitoring of condition of the police be done.
The current scenario in our country is dreadful when it comes to custodial deaths which gives rise to blame-game between the police authorities and the citizens. In my opinion after investigating the entire case, the decision needs to be rolled out rather defaming any person or authority in general. It is also the duty of the police administration to provide quality food, infrastructure, medical facilities etc. Despite of various authorities in place and law committees being formed issuing their law commission reports, a serious check needs to be placed on custodial deaths. By ratifying the UN Convention against Torture, a systematic mandate will be placed which will help in review of various laws, methods and rules in place pertaining to the arrest, custody and detention of any person. Also sudden inspections by Non- Official Visitors (NOV’s) help to curb custodial death rate as rightly suggested by the apex court in the landmark judgement of D.K Basu.
“Peace will not come out of clash of arms but out of justice lived and done”- Mahatma Gandhi –
Author – Jainam Dedhia
M.K.E.S College of Law
 1994 AIR 1349
 1973 AIR 337
 1997 1 SCC 416