CUSTODIAL DEATH: A STAIN ON DEMOCRACY


By- Abdul Noor

"When you have police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe.”-Mary Frances Berry.

India is the largest democratic nation in the world. Various laws are enacted by the legislature and are implemented by the executive in the nation for the efficient functioning of the nation. These laws have to be followed by every citizen. When these laws are violated by someone, it may lead to the violation of rights of other people. In a nation where rights are granted to the citizen by the constitution this should not happen. Thus there is a necessity for some authority that would uphold and enforce the laws made by the legislature impartially. This authority should also be able to protect the rights of the citizen of India. This authority is the police force of the nation. So essentially the duty of the police force is to enforce the laws impartially, to protect the citizens of India, their life, liberty, property, human rights and their dignity and to prevent crimes.


But when this police force which is meant to protect the people violates their rights it should be considered seriously. If the ones who should protect the people become the ones from whom the people needed to be protected then what is the meaning of calling India the largest democratic country in the world? Custodial death is an evil which should never happen in a country like India. It is the cruellest form of human rights abuse in a civilised society ruled by law.


CUSTODIAL DEATH

Custody literally means the state of being detained or held under guard especially by the police. Custody is of mainly of two types, they are police custody and judicial custody. Police custody means that the police have the physical custody of the accused while in judicial custody the accused is in the custody of the concerned magistrate. In police custody the accused is lodged in the police station lock up while in judicial custody the accused is lodged in the jail.


Custodial death can be said as the event of death of the people who are detained by the police on being convicted of committing any crime or on being under trail. The police unleash their brutality on those people who the police have custody, their rights are being violated by the authority who should be protecting them. Police brutality always had been an evil present in our nation. Starting before the independence, the practice of brutality by the police continues today, even after seven decades of independence.


Custodial torture is held as one of the worst crimes in the world and the complete removal of such crime is a necessity. The constitution of India, the Supreme Court of India, National Human Rights Commission and the United Nation simultaneously forbids it but still custodial death happens every year in our country. In 2019, a total of 1731 people died in custody in the largest democratic nation in the world. 1731 people were tortured to death by those who should have been protecting them.


Those same people whose duty was to prevent crimes, where busy committing crimes. It has to be noted that the police officers who commits these brutality are rarely executed. That is they often escape from punishment even after doing this kind of fundamental right violations. This is because as they enjoy a power of authority. For these crime to be eradicated there should be a mechanism to punish the convicted with an appropriate punishment. It has to be remembered that the police are public servants and they serve the people of the nation. They are meant to protect them from crime rather than committing crimes themselves.


Custodial violence means any violence against those people who are in the police or judicial custody. Thus violence includes death, rape and torture. Custodial death were highly criticised when the recent event of police brutality took place in Tamil Nadu. Jeyaraj who were 58 years of old and his son 38 year old Fenix owned a mobile shop in sathankulam town in the district of tuticorin in Tamil Nadu. In order to curb Covid-19, strict lockdown were imposed in Tamil Nadu. Jeyaraj and Fenix were arrested by some policemen allegedly for keeping the shop open past the permitted hours.


They were then taken to the police station and as alleged by the family members they were brutally tortured by the police. A few days later they were declared dead in the jail. This created a storm in the nation against police brutality and section 176 of the criminal procedure code was amended and a special procedure was created for investigating custodial death.


It has to be noted that out of the 1731 people who died due to custodial torture 1606 were under judicial custody and 125 were under police custody. Of those people about sixty percent belonged to the weaker sections that are the Dalits and Muslims. It has to be considered very seriously that the police use brutality on the people as they have the right to do so. This act of the police will defenetly affects the confidence of the people in the police force. If those who should protect the people can’t be trusted who would these people trust and rely on?


“With great power comes greater responsibility” this was a statement made by the Supreme Court of India during a judgement on a case of police brutality. The police force in the nation is entrusted with a great responsibility. They are entrusted to protect the people and enforce the law. When a crime is committed against an innocent person, police are those to whom these people can come for remedy. The police are entrusted to protect these people from crimes. But when these crimes are done by the police itself what will the people do and whom to will they run for help? It should be made clear that the power the police is the authority given by the people to protect them not to harm them.

PREVENTION OF CUSTODIAL DEATH

The Supreme Court of India in a judgement held that just because a person is arrested by the police and is held under custody by the police doesn’t mean that the accused is deprived of his/her basic rights. Custodial death and custodial torture are essentially a violation of the basic rights of the citizens of India and has to be prevented at all cost.

Constitutional safe guards

Constitution of India guarantees the citizens certain rights and the fundamental rights granted by the constitution cannot be violated in any manner. The constitution also provides rights in order to prevent custodial death.

  • Article 20 of the constitution of India: article 20 primarily grants the citizen the rights against the conviction of offences. It says that it is a violation of fundamental right if attempts are made to torture some person in the name of some statute. This article helps in preventing self incrimination. This prevents the act of the police where the accused are tortured to confess to have committed a crime which they haven’t committed.

  • Article 21 of the constitution of India: this article grant the citizen of India right against torture and assault even by the state and its functionaries who is taken in to custody and no sovereign immunity can be raised against the liability of the state arising due to such criminal offence.

  • Article 22 of the constitution of India: article 22 provides four basic fundamental rights regarding conviction. They are being informed the grounds of arrest, to be defended by a legal practitioner of their choice, preventive detention laws and production before the nearest magistrate within 24 hours of the arrest. This right also prevents the chance for custodial death.

OTHER SAFE GUARDS


Indian Evidence Act, 1872: as per section 25 of the act, the confession made to the police during interrogation is not valid and according to section 24 of the act, any confession made by the people in order to avoid any evil or torture from the police is also not valid. This thus helps in preventing custodial torture and hence custodial death.

Code of Criminal Procedure, 1973: section 46 and 49 protects those people who haven’t committed any offence resulting to death or imprisonment for life from custodial death. Section 54 of the code of criminal procedure requires the magistrate to check the body of the person who claimed of custodial torture by the police. The magistrate is required to then record the result of the examination and reasons. If the magistrate doesn’t follow the procedure, then it calls for interference by the High Court according to section 482 of the code. This also helps in preventing custodial torture and death.

Indian Police Act: section 7 and section 29 of the Act provide for the penalty, suspension or dismals of police officers who doesn’t perform their duty or is unable to perform their duty. By these sections, those police officers who violates the fundamental rights of the citizens essentially doesn’t perform the duty conferred upon them and hence should be penalised, suspend or dismissed. This of course helps in preventing custodial death.

Indian Penal Code (IPC), 1860: an amendment was made in section 376 of IPC. Section 376(1)(b) penalises custodial rape committed by police officers who take advantage of the authority conferred upon them.


Section 330, 331, 342 and 348 all are enacted with a view to prevent the police officers who have the authority to arrest and interrogate a person, from committing custodial violence and custodial death.

There are also other measures that should be taken in order to prevent the crime of custodial death.


Mainly, the impunity of the police officers has to be ended so that those who are responsible for the crime would be punished and it will prevent others from committing it further. The foundation training of the police officers has to be designed in a way that makes them to respect the fundamental rights of the citizen and essentially make them understand their responsibility towards the citizens.


IMPORTANT CASES RELATED TO CUSTODIAL DEATH


J. Prabhavathiamma v/s the state of Kerala and Others:

In this case two police officers were awarded the death penalty by a CBI court over the death a scrap metal shop worker while he was in custody of the police.

During the judgement Judge J Nazar said that the acts of the accused persons would definitely adversely affect the very institution of the police department... if the faith of the people in the institution is lost, that will affect the public order and law and order and it is a dangerous situation.

· Yashwant and Others v. State of Maharashtra: in this case the Supreme Court of India upheld the decision to convict nine Maharashtra policemen in connection with a custodial death happened in the year 1993. The court also extended the jail term to seven years from three years. In this judgement the court said that this kind of brutality by the police will tend to erode people’s confidence in the criminal justice system.

· D.K. Basu v. State of West Bengal: in this case the court issued a list of 11 guidelines in addition to the constitutional and statutory safe guards which are to be followed in all cases of arrest and detention. They were, the details of the police officer handling the interrogation of the arrested person must be recorded in a register. A memorandum of arrest signed by the detainee and containing the time and date of arrest must be prepared at the time of the arrest. The detainee’s place of detention and place of custody must be notified by the police to the police in charge of the affected area within the period of 8 to 12 hours after the arrest. An entry must be made in the case diary at the place of detention. There should be an Inspector memo which must be signed by both the detainee and the arresting police officer and a copy must be given to the detainee. The detainee must at every 48 hours of the arrest undergo a medical examination by a trained physician. Copy of all the documents must be sent to the magistrate for registration. Information about the arrest and place of custody of the accused must be displayed on a visible notice board within 12 hours of the arrest.


Munshi Singh Gautam v State of Madhya Pradesh: in this case the court showed its grief concern about the problem of torture in Indians prisons by the police. The court also mentioned that the concern shown before had no use and the act of police of brutality still continues. The court stressed on the need to eradicate such crime.


CONCLUSION

The main responsibility of the police force is to enforce the laws enacted by the legislature impartially and to protect the citizens. The police are meant to prevent crime in the nation. The police also have the right to arrest those who commit crime. But this doesn’t in any sense means that it is a licence to them to unleash their brutality over the people.


In the largest democratic nation where the constitution grants several fundamental rights the crime of custodial death should not take place. When the police take arrest as a right to harm the people, people should be protected from them. There had been many occurrences of custodial death in our nation and only in few cases had been the policemen responsible were convicted. For the custodial death to stop this should change. The impunity given to the police should end and the police officer responsible for the death of people in custody should be brought in front of the law and should be convicted. There is a need of restructuring the foundation training and the responsibility of the police officers towards the citizen should be made clear.


For a nation like India, custodial death will always be an evil....

REFERENCE

· https://www.latestlaws.com/articles/custodial-deaths-and-role-of-judiciary-a-critical-analysis/

· https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class

· https://bprd.nic.in/WriteReadData/userfiles/file/6798203243-Volume%202.pdf

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