Demystifying the discrepancies in laws pertaining to custodial torture and deaths in India

In the present times, the issue of custodial deaths has emerged as a great predicament. The complaints against police have a wide dimension[1] including incidents of rape, death, assault, and torture. The custodial death of the father and son duo, Jeyaraj and Bennix has brought vexation and discontent among the masses about the non-authorized use of force and power by police officers. The brutality of killing Jeyaraj and Bennix displays a poignant and pathetic reality regarding how the disproportionate use of power and force has converted into a norm in the country, resulting in a huge loss of lives. The Constitution guaranteed several human rights, the most important among them being the freedom to life and liberty under Article 21. In the case Kharak Singh v. State of Uttar Pradesh,[2] the Supreme Court quoted that the term ‘life’ as something more than mere animal existence. Furthermore, Article 5 of theUniversal Declaration of Human Rights (UDHR) also mentions protects individuals against brutal, cruel, and inhumane behavior. In Francis Coralie Mullin v. Union Territory of Delhi[3], it was observed that Article 21 synchronizes with Article of 5 of UDHR and Article 7 of the International Covenant on Civil and Political Rights at a global level. Still, we can observe the shift in paradigm from suppression and slavery to again oppression of the rights of the vulnerable. The police authorities exceed their authority and the human rights of the convicted persons are infringed.

JUDICIAL INTERPRETATION AND PRESENT LAWS

The incidents of custodial deaths bring every citizen in astonishment and shake the faith in democracy. The purpose of the police is to maintain the democratic order and to preserve the Rule of Law.[4] In the case Olmstead v. United States[5], it was stated that,

“Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

This mentioned statement beautifully explains that the disobedience of law by the state itself can result in absence of belief in the legal system by the masses. Escape of liability in cases of deaths of accused or convicts by police can eliminate the fear of deterrence.[6] The notion of Rule of Law implies that all are equal in the eyes of law and no one is above law, thus every culprit shall be held liable without any sort of discrimination on caste, race, rank, and creed.[7]The problem is that once conciliation is made with the rule of law and if once an illegality is justified it becomes the norm.[8] In the case A.D.M. Jabalpur v. Shiv Kant Shukla[9],it has been quoted that “Rule of Law is the antithesis of arbitrariness.” Dicey has emphasized equality as an important principle of the Rule of Law. [10]And thus, the police being the offender shall face the same repercussions as faced by a common man, it should not be evaded under the veil of their duty and power. Therefore, Section 176(1A) of the Code of Criminal Procedure (“CrPC”), states that the Judicial Magistrate shall hold an inquiry in addition to the inquiry or investigation held by the police in cases of death, disappearance, and rape in police custody. Further, another provision of CrPC, Section 167(2) mandates that it is only after the accused is present in person before the magistrate that an order of remand can be made. And in the case of Jeyaraj and Bennix, only Jeyaraj was brought for custody and Bennix just followed his father, and the violence was committed the same day without the order of Magistrate. There would be many such cases where this provision is also ignored.

The notion that the actual offender, in such cases, should be held liable and shall be entitled to punishment has been backed by many judicial pronouncements. In the case, Moheela Moran v. State of Assam[11], it was held that custodial deaths bring the criminal liability of the officer-in-charge, and the State being vicariously liable shall render suitable justice in such cases. Moreover, in the case of K.S.R Dev. v. State of Rajasthan[12]it was mentioned that fundamental rights under Article 14, Article 19, and Article 21 of the Constitution cannot be infringed in custody. Custodial death is in direct violation of the Right to life and custodial torture and harassment is against is the dignity of an individual, and both of these are in a sense deprivation of fundamental right.

Article 21 of the Constitution states that “No person should be deprived of his life or personal liberty except according to procedure established by law”. And thus, in Anwar v. State of Jammu and Kashmir[13]it was stated that the protection of this provision is not restricted to citizens and in State of Maharashtra v. Prabhakar[14] it was observed that ‘person’ shall also include even persons under imprisonment. In the case Nilabati v. State of Orissa[15], Supreme Court mentioned that every convict, prisoner, and person at under trial have Right under Article 21, and only certain restrictions that are permitted by law can be imposed. In case Patnaik v. State of Andhra Pradesh[16], it was quoted that, “the Constitution safeguards the fundamental rights of a prisoner.”

This inhumane activity of custodial torture is not very new in existence. In Joginder Singh v. State of UP[17], the Supreme Court has provided guidelines to preserve the rights of the persons in police custody to curb the unreasonable abuse of powers by the police workers. 

The Apex court in DK Basu v. State of West Bengal[18]has ardently observed that the Right to Life of a citizen could not be violated during the arrest and torture is an inhumane activity. The court laid down certain guidelines to ensure that the police remain within its powers. Though these guidelines are mandatory for police in all cases of arrest and detention, the occurrence of such incidents does not display its proper and efficient implementation. Further, in the same case, the Court described it as, “Custodial torture is a naked violation of human dignity.”Looking at custodial torture from a Human Rights perspective, it is a violation of Human rights of such a manner that it raises the eyebrows of everyone. In Rudal Shah v. State of Bihar[19], the Supreme court mandated paying of compensation of rupees 30,000 for the infringement of Article 21 and Article 22 of our Constitution. In the case Saheli v. Commissioner of Police[20], a young boy was brutally beaten by police during custody which subsequently resulted in his death. The court mandated to pay rupee 75,000 for compensation to the mother of the deceased to the Delhi Administration.

Furthermore, Sections 330 and 331 of the Indian Penal Code, 1860, provide for the punishment of those who impose injury or grievous hurt on a person for the purpose to obtain confession or information about an offense. And thus, these provisions make it clear that agony in the process of interrogation and investigation is punishable under the Indian Penal Code. Thus, there are laws and precedents dealing with the matter in the country.

SUGGESTION

Though the law has developed concerning this particular offense, still there is an absence of efficient administration of justice. In a research study on the topic of Custodial Deaths in India by National Police Academy,Hyderabad, it was observed that the main reasons of concerned activity are sadism, unrealistic public belief about crime control, the disappointment in criminal justice system, insufficiency of laws, the inadequacy of strength and resources of police.

Another point which is to be considered is the working environment of the Policemen. As per the Status of Policing in India Report 2019,around 24% of police personnel in India work for more than 16 hours a day, and 44% work more than 12 hours, and the average working hours of police personnel in India is 14 hours. Additional to these data, 56% of senior police personnel are unable to get any weekly offs. Thus, the Indian police personnel are under a heavy workload and are stressed. In this scenario, it might be that the custodial violence is an outcome of pressure and frustration of their work. Hence, there needs amelioration in the working environment for the personnel to curb such inhumane activities and to bring efficiency in the implementation of guidelines for them.

From observation by a report of NCRB on crime in India, only in 20% of the custodial violence cases, the judicial inquiry has been conducted prescribed under Section 176(1A) of CrPC. India: Annual Report on Torture 2019, showed that in 2019, out of 125 deaths in police custody, 93 persons died due to alleged torture, while 24 died in suspicious circumstances. The police in such cases give explanations like a sudden illness, suicide, heart attack, snake bites, and such witless excuses. Due to this, the conviction rate of the wrongdoer is also low. Thus, reforms are needed in the current laws for the same to take stringent actions.

The Police shall be trained for using other techniques and measures than torture for confessions and admissions. Other than this, custodial deaths shall be included under Section 302 of the Indian Penal Code by amending and the status of a separate offense should be given. Section 23 of the Police Act, 1861, shall also mention to respect the human rights of persons in custody.[21]The basic medical amenities should be available in jails and custody to provide the first aid and medication in cases of emergencies. Further to ensure no custodial violence, a counsel should be present at the time of interrogation. And for compassion towards the family members of the victim or deceased, a monthly compensation shall be provided to them by the Government.

Additionally, the Prevention of Torture Bill, 2017(“Bill”) was introduced in the Parliament to punish the torture conducted by public servants. The Bill imposes strict punishment for creating a deterrent effect in society. It mentions the punishment of imprisonment of not less than three years and extended up to ten years coupled with a fine. But the Bill left some issues uncovered. For the concerned issue, an independent investigation mechanism system should be included that can eliminate bias from the process. To remove the vulnerability of the victim, and fear of more torture, an easy and friendly complaint system shall be formed. The Bill fails to provide a precise procedure for the inquiry and investigation. The definition of torture in the Bill does not mention anything about mental torture and also about custodial death. Thus, these loopholes shall be filled in the Act.

CONCLUSION

Torture is a curse to any society. Justice should be given to every victim. Moreover, just providing compensation is no sort of justice, it is important that the officer-in -charge should be held criminally liable. Mere payment of compensation can encourage other police personnel for torture in the custody. While as mentioned above the complaints are very low and the inquiry out of those complaints is itself at nadir. In the case State of MP v. Shyamsunder Trivedi[22], the apex court observed that due to ties of brotherhood and harmony, the witness police personnel rarely available. The reasons for the same can be persuasion, threat, etc. Therefore, in the case of D.K. Basu v. State of West Bengal[23]it was recommended that the onus of proof in such cases must reverse where the police should have the burden to prove that the death was not a result of any torture or force. The same was also suggested by the Law Commission for the two times in its 113^th Law reportand152^nd Law report. They recommended the insertion of Section 114-B into the Indian Evidence Act 1972, which reverses the onus of proof in such cases. It implies that it would be presumed that the police officer having custody of the person caused it. It can be a better alternative to curb this problem. Thus, the proceedings and administration should be governed efficiently and justice should be done.

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[1]Annual Report 2017-2018, NHRC, (September 13, 2020, 17:58 PM),

https://nhrc.nic.in/sites/default/files/NHRC_AR_EN_2017-2018.pdf

[2]1963 AIR 1295.

[3] 1981 AIR 746.

[4]A Clemens Arzt,Police Reform and Preventive Powers of Police in India – Observations on an Unnoticed Problem,49(1) 53 Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 79 (2016).

[5]Olmstead v. United States, 277 U.S. 438 (1928).

[6]Helen Tauchen, Ann Dryden Witte & Harriet Griesinger, Criminal Deterrence: Revisiting the Issue with a Birth Cohort, 76(3) 399 R. Eco. Stat 412 (1994).

[7]Ved Marwah, Human Rights and Role of Police, 40 JILI 138 (1998).

[8]Id.

[9]A.D.M. Jabalpur v. Shiv Kant Shukla,(1976) 2 SCC 521

[10]I PMassey, Administrative Law,27 (9^th ed. 2020).

[11]Moheela Moran v. State of Assam, (2000) 2 Gau LT 504

[12]K.S.R Dev. v. State of Rajasthan,(1981) 1 SCC 503.

[13]Anwar v. State of Jammu and Kashmir, 1971 SCR (1) 637.

[14]State of Maharashtra v. Prabhakar,1966 AIR 424.

[15]Nilabati v. State of Orissa, (1993) 2 SCC 373.

[16]Patnaik v. State of Andhra Pradesh,1981 AIR 625.

[17]Joginder Singh v. State of UP,1994 SCC (4) 260.

[18]DK Basu v. State of West Bengal,(1997) 1 SCC 416.

[19]Rudal Shah v. State of Bihar,(1983) 4 SCC 141.

[20]Saheli v. Commissioner of Police, 1990 AIR 513.

[21] N.S. Kamboj, Police Custodial Death: A Growing Abuse to Human Rights in India, 36(3) JILI377 (1994).

[22]State of MP v. Shyamsunder Trivedi,1995 (4) SCC 262.

[23]D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

(Likhita Agrawal is a 3rd year student of National Law University, Nagpur)