The very faith of democracy has been badly shaken down due to the frequent happenings of custodial deaths. International pressure on the observance of Human Rights is also mounting rapidly. It has been observed by the Law Commission that the weaker and poor sections suffer the most and are cut loose, and are the worst sufferers of custodial deaths. It is one of the worst crimes in a civilized society governed by Rule of law. Every individual has the right to freedom of life, but custodial deaths are direct threat to fundamental rights. There are endless instances of torture and use of third degree methods that are used on suspects during illegal detentions and police remand casts a slur on the whole system of administration.
Custodial torture is one of the cruelest forms of abuse of power, rights, majorly human rights abuse universally. The Constitution of India, Supreme Court, National Human Rights Commission (NHRC) and United Nations strictly forbid it. There is a need to draw and strike a balance between individual human rights and the societal interests in combating the issue of custodial deaths.
Landmark Judgments on Custodial Deaths-
In, Joginder Kumar vs. State of UP and Others [(1994) SCC (4) 260], Court had issued guidelines keeping in mind that the rights are inherent in Article 21 and 22(1) of the Constitution of India, and are required to be recognized and protected. It said that- The police officer needs to inform the arrested person when he is brought to the police station as a matter of his right. The needs to be mentioned as a entry as to who was informed about the arrest. Protection from power for the flow of rights enshrined under Article 21 should be followed strictly. It is also the duty of the magistrate, before who the arrested is produced, to satisfy him that all the procedures were fulfilled.
CBI had awarded death sentence to 2 personnel, after hearing a case in Thiruvananthapuram, for over a decade. A scrap metal shop worker died, who the Court believed was murdered in police custody. This was in, Prabhavathiamma v/s The State of Kerala & Others [WP(C). NO. 24258 OF 2007 (K) AND CRL. R.P.2902 of 2007].Court while deciding the matter said that- it is a brutal and dastardly murder by the 2 accused. This act by the accused would definitely affect the whole institution of Police Department. If this faith in the institution is lost, then it would result in public order disturbance and law and order, which is very dangerous.
In DK Basu vs. State of West Bengal [(1997) 1 SCC 416], Court had issued a list of 11 guidelines in addition to the Statutory and Constitutional safeguards to be followed in all cases of detention and arrest. The guidelines were- Details of all the personnel handling of the interrogation needs to be recorded in a register. A memorandum of arrest, at the time of arrest needs to be prepared. It must be signed by the detainee and also have the time and date of arrest. At the place of detention an entry has to be made in the Case Diary. The ‘inspection memo’ needs to be signed by both the detainee and the arresting police officer, and a copy must be provided to the detainee. A detainee has to undergo a medical examination every 48 hours when in custody. Copies of all the document along with inspection memo needs to be sent to the Magistrate for registration.
It has been decided in a catena of cases that just because a person is arrested, or is in custody, that doesn’t deprive him of his basic fundamental rights, and its violation will empower a person to approach the Apex Court under Article 32 of Constitution of India.
Article 20 primarily gives a person the right against conviction of offences. This also includes the principle of non- retroactivity of penal laws- “No crime, no punishment without a previous penal law”. Article 20 also protects against double jeopardy. Article 22 provides 4 basic rights with respect to conviction. It includes being informed on the grounds of arrest, to be defended by legal practitioner of their choice, preventive detention laws, and production before nearest magistrate within 24 hours of arrest. These laws protect a person from not being subjected to ill-treatment or arbitrary abuse of power and position.
A confession to the police officer cannot be proved against a person accused of any offence, and confession caused by threat form a person in authority in order to avoid a temporal nature would not be acceptable in court of law and criminal justice system, according to Section 25 of Indian Evidence Act, 1872.
A significant provision of CPC, 1973, with respect to custodial torture leading to death is Section 176. It states that a compulsory magisterial enquiry has to take place on death of an accused caused in police custody. Section 7 and 29 of the Indian Police Act, provides for dismissal, penalty and suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. Section 376(1)(b) of IPC, 1960, also penalizes custodial rape committed by police officer. This section was amended after the Mathura Rape case that was mishandled.
Guidelines should be formulated on training and educating officials who are involved in cases of deprivation of liberty because torture cannot be effectively prevented until the senior police wisely anticipate the gravity of such issues and also reorientation is required from such practices. There should be unrestricted and regular access to qualified and independent person to places of detention to check and keep an eye and inspect if everything is done according to the procedures or not. Interrogation rooms should have CCTV cameras so that no unjust thing can be done. Law Commission of India, 273rd Report had recommended that those accused of committing custodial torture, be it policemen, military, paramilitary personnel, should be held criminally liable and prosecuted instead of facing administrative enquiry and action for establishing a deterrent.