Introduction
Rendering to Article 21 of the Indian Constitution “no person shall be deprived of his life and personal liberty except according to the procedure established by the law”[i], Article 21 in it carries a vast plethora of fundamental rights guaranteed to every human being and can only be restricted to availability to a person by ‘procedure established by law’. Even though these procedures it is habitually non-permissible to wholly take away the right only mere restraints are can be bestowed on a person.
When a person commits an offence, administration of criminal justice becomes mandatory to establish a peaceful, harmonious and a secure state. The responsibility of restoring peace and security, enforcing the law and managing internal security within the state lies with the executive organ of the Government. To accurately administer criminal justice the wheel of democracy should run fluently. The three branches of the government which run the wheel of this democracy are the legislation, judiciary and executive who have to exist and function symphonically to eliminate crime, restore justice and guarantee rights to its citizen.
In this wheel the executive plays a crucial role, as through ensuring the enforceability of law and order it puts the wheel into motion but what happens when the same executive body while performing its task oversteps its powers consciously and unconsciously? The most apropos way of answering this is the loss of credibility of the rule of law and dent in democracy. For so many years this country has faced the problem of suppression from overpowered police and their lack of ensuring the rights available to people in custody.
Custodial torture and deaths have shown a gross violation of human rights guaranteed of not just our Constitution but also by the United Nations Declaration of Human Rights. Persons in custody cannot be dined all those rights which right to life stands for, the only restraint on free movement can be positioned by following the correct procedures established by law.
The news of barbaric and inhuman treatment of persons in custody appears to be common in India. Every day, a new face of police is unmasked with the news of cruelty and brutality inflicted by them on prisoners. The desire to inflict such harm and cause cruelty is one of the worst crimes in a civilized society. This diabolical behaviour by the police has triggered a sense of non-cooperation and fear in citizens which can lead to plummeting of democracy in India.
Violation of Human Rights in Custody
“There can be no peace without justice and respect for human rights”, custodial violence is a naked abuse of human dignity and degradation of human rights. The gravity of this offence is massive as it is committed by the very body that exists to ensure the availability of such rights to every human. Police officers are entrusted with great power which carries responsibility, they are the peacekeepers of the state and when these officers deprive persons in custody and prisoners of the very basic rights it is a reflection of failing society.
Custody
‘Custody’ the word itself carries a connotation of care and guardianship; it means the detention of a person by lawful authority and a process. It is a formal control implemented on the accused and offender to maintain decorum in society and administer criminal justice.
This custody can be of two type’s judicial custody and police custody. Judicial Custody is when a person is kept under the custody on the order of a concerned magistrate which may extend up to 90 day days when the offence suspected upon is punishable by death, life imprisonment or imprisonment extending more than 10 years; or for 60 days when the suspected offence is punishable with imprisonment of not more than 10 years. Whereas Police custody is when the police officer detains any offender or a suspected person under his custody, police custody can only last for 24 hours the police officer has to present such a detained person in front of a concerned magistrate and can further ask for an extension of custody up to 15 days.
Rights of persons in custody and prisoners
Prisoners are persons convicted of offences by a rule of law whereas persons in custody are persons who are suspected of a crime and kept under the custody of police or judicial custody for interrogation. Both the prisoners and persons in custody are guaranteed basic human rights which are inherent and inalienable. The Hon’ble Supreme Court has held that “the precious rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, detenues and other prisoners in custody, except according to the procedure established by law”[ii]. Article 21 not only enforce upon prisoners or persons in custody mere existence and human treatment it also encompasses other rights. The judiciary in India has at many instances interpreted the ambit of Article 21 to assure just and fair treatment of such people in custody and to eliminate the crimes that are caused out of cruelty.
Right to bail was termed to be one of the rights envisaged in Article 21 and a refusal to bail on unexplained circumstances will be an infringement of this Article. It was rightly mentioned by Justice Krishna Iyer that, “The basic rule may perhaps be tersely put as bail, not jail”.[iii] The procedure of granting bail has been dealt with in the Code of Criminal Procedure, 1973 under section 436, further in Narasimhulu’s[iv] case the Supreme Court laid down ten criteria for grant and refusal of bail.
The state is also entrusted with the duty to ensure that free legal aid is provided to the accused to promote justice based on equal opportunity.[v] Additionally, section 304 of Cr.pc also states that “If the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state.”[vi] In another case of Madav Hayavadanrao Hoskot v. the State of Maharashtra, it can be seen that an accused has the right to appeal as well as have access to free legal aid. “A person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal.”[vii]
There are instances where the Supreme Court has held that prisoners and persons in custody have right against some deterrent punishment techniques like those of solitary confinement, handcuffing and inhuman treatment by police. The Hon’ble SC has also laid down detailed guidelines to be followed by the Central and State investigating and security agencies in all cases of arrest and detention.[viii] These guidelines are popularly known as “D.K Basu guidelines”.
Apart from this, Article 20 offers the right against double jeopardy, self-incrimination and the right to protection against ‘ex post facto law’.[ix] Article 22 clauses (1) and (2) provide for four rights available at the time of an arrest these include that no person who is arrested shall be detained in custody without being informed and without the access to consult a legal practitioner of his choice. Moreover, every person in custody shall be produced before the nearest magistrate within 24hrs of his arrest and no person shall be detained exceeding this period without the authority of a magistrate.[x]
Rate of Custodial death and custodial torture
Despite all these rights being available to the prisoner and police being the enforcing agency of these laws, a contrary situation appears to be the reality. Power of the police has turned into overpowering and a calculated crime of brutish nature is committed in India quite often. Asian Centre for Human Rights (ACHR) in its report stated that a total of 1,674 custodial deaths, including 1,530 deaths in judicial custody and 144 deaths in police custody, took place from 1 April 2017 to 28 February 2018. This means that on an average there were about 5 custodial deaths per day in the aforementioned time.[xi]
In 2019, at least 117 deaths in police custody were reported to the National Human Rights Commission (NHRC). But, according to a report released last week by the National Campaign Against Torture, a joint initiative by multiple non-governmental organizations, deaths in police custody occur primarily as a result of torture. Of the 125 deaths in police custody that the group recorded in 2019, 93 persons (or three in every four) died due to alleged torture or foul play; while 24 died in suspicious circumstances, with the police claiming they either committed suicide or died of illness or accident.[xii]
Women continued to be tortured or targeted for sexual violence in custody and the victims often belonged to the weaker sections. During 2019, the death of at least four women in police custody was reported, the NCAT said.[xiii]
These staggering statistics of custodial death and torture reflect that to prevent, detect and control crime the police have acted arbitrarily and encroached on the dignity and liberty of the persons in custody. They forget that the ambit of custody or imprisonment does to extend to custodial cruelty and inhuman brutality. Though even the prisoners have the right to life, such a right becomes a teasing illusion when they are tortured by the police.
A dark side to Indian police: Custodial death and torture
“You cannot rehabilitate a man through brutality and disrespect…If you treat a man like an animal, then you must expect him to act like one. For every action, there is a reaction…And for an inmate, to act like a human being you must trust him as such. You can’t spit in his face and expect him to smile and say thank you.”[xiv]
With that being said the occurrence of such dark instances is not rare in the society. The maxim “Salus Populi est suprema lex” and “Salus republiace est suprema lex” meaning, the safety of the people is the supreme law and safety of the state is supreme law shall coexist. One cannot overpower the other and leave the rest in a vulnerable state; in fact, the laws for the safety of the state should be coherent to establish maximum laws for the safety of the people. They should be part of the same body and be treated as organs of that body rather than being two separate bodies.
“Custodial death is defined as the death of a person due to any form of torture or cruel, inhuman or degrading treatment by the police officers, whether it occurs during investigation, interrogation or otherwise. It is perhaps one of the worst crimes in a civilized society governed by the rule of law”.[xv] The lack of constitution culture in the dealings of the police has caused lass in the faith of the system that is meant to protect. When you have police officers who abuse citizens, you have eroded public confidence in Law enforcement.
It is germane to point out the maximum of people against whom such harm is inflicted belong to the poor strata of the society and their families are too vulnerable to approach the system for remedies hence in most cases culprits go unpunished. Women and children under custody are no exception to this zoological bestiality by police administration. All these foul practices may occur due to many reasons like caste difference, personal enmity, and political consideration, pecuniary benefits, greed, unstable psychotic behaviours, extract a confession or hunger to serve an early justice.
In-State of M.P. v. Shyamsunder Trivedi and others an appeal filed by the State of M.P. against the acquittal of the police officials by the trial court and the High Court. As per prosecution case one Nathu Banjara of village Dhabala Deval, brought to police station Rampura for interrogation as a suspect in a murder case was tortured by the police with the intension of extracting a confession and died consequently.[xvi]
A bedridden Maulana Asad Raza Hussaini, 66, both arms and both legs bandaged, “sobs in his sleep” and refuses to “show his face” to visiting relatives because, his family says, he cannot get over his humiliation by the police who stripped and tortured him in custody. He was subjected to unimaginable cruelty and humiliation. He was not produced before a magistrate even after 24 hours in custody.[xvii]
Another incident that chills the spine of individual on reading is that of Unnao Rape Case survivor’s father who was tortured to death in police custody “the survivor’s father died in police custody because of “blood poisoning due to perforation of colon” according to the post-mortem report which also lists multiple injuries and abrasions around his arms, thighs, buttocks, knees and abdomen. Police personnel denied accusations of torture.”[xviii] Police being the administrating authority of the four walls of custody has repeatedly fabricated information and destroyed evidence.
Assam Police officers picked up 3 sisters from their houses late at night, stripped them naked and tortured them. One of the women who were pregnant lost her baby after being kicked in the stomach.[xix]
The recent case of death of father Jayaraj and son Benicks allegedly due to custodial torture in a police station near Thoothukudi at Kovilpatti sub-jail in Tuticorin in Tamil Nadu has blasted in the media zero rate of conviction of custodial torture in Tamil Nadu. They were beaten up brutally and had serious injuries, instead of taking them to the hospital they were thrown behind lock up which caused death because of delay in access to medical help. This case has not only traumatized the family but the whole nation, it has lifted the trust from the rule of law of many and they seek answers from the police.
Rape, sexual assault, beating, electrocution, pouring petrol, pricking body with needles, stripping, urination in the mouth, beating with iron rods, chopping off fingers, suspending someone naked between two tables, inserting objects inside the body are some of the common techniques used by the police to torture the prisoners and people in custody. “Torture methods used in 2019 included hammering iron nails in the body (Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (Rizwan Asad Pandit of Jammu and Kashmir), ‘falanga’ wherein the soles of the feet are beaten (Rajkumar of Kerala), stretching legs apart in the opposite side (Rajkumar of Kerala), and hitting in private parts (Brijpal Maurya and Lina Narjinari of Haryana),”[xx] said NCAT director Paritosh Chakma.
Conclusion and Recommendations
The rising number of cases with regards to custodial death or torture should be construed as a lack of constitutional culture and awareness in police staff. This gross violation of basic human right holds the power to destroy the faith of people in law. Hence, it is important to note that there is an immediate need of separate anti-torture law along with the establishment of commissions specifically for such cases in India.
[i] Article 21 of the Constitution of India
[ii] D.K. Basu v. the State of W.B., AIR 1997 SC 610
[iii] The State Of Rajasthan, Jaipur vs Balchand 1977 AIR 2447
[iv] Narasimhulu AIR 1978 SC 429
[v] Art.39 A of the Constitution of India
[vi] Sec. 304 of Code of Criminal Procedure,1973
[vii] Madav Hayavadanrao Hoskot Vs. State of Maharashtra (1978)3 SCC 544
[viii] D.K. Basu v. State of W.B., AIR 1997 SC 610
[ix] Article 20, the Constitution of India
[x] Article 22, the Constitution of India
[xi] https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece
[xii] https://www.hindustantimes.com/india-news/police-not-trained-enough-in-human-rights-reveal-surveys/story-Cbr9cc4oOYlCZGR48aaQWO.html
[xiii] Ibid
[xiv] Sunil Batra v. Delhi Administration AIR 1978 SC 1675
[xv] ibid
[xvi] State of M.P. v. Shyamsunder Trivedi and others Appeal (crl.) 217 of 1993
[xvii] https://www.telegraphindia.com/india/uttar-pradesh-police-accused-of-stripping-cleric/cid/1731127
[xviii] https://thewire.in/law/unnao-rape-case-sengar-father
[xix] https://www.indiatoday.in/india/story/assam-police-torture-3-sisters-pregnant-woman-loses-baby-1600276-2019-09-18
[xx] https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece
