CUSTODIAL DEATHS: A CRITICAL ANALYSIS

Injustice anywhere is a threat to justice everywhere

Martin Luther King

INTRODUCTION

One of the deadliest types of crimes in the history of human rights is the death of a person while they are being kept in prison. Deaths in custody have existed for a long time; they are not fresh occurrences. However, in recent years, the number of prison fatalities has risen alarmingly, raising serious concerns for the developing society. The application of fundamental rights and its underlying consequences for human rights are questioned by offenses like these.

It blatantly violates citizens’ fundamental rights and is destructive to human dignity. However, many fatalities that occur in custody are not examined while taking into account the corrective measures taken against such offenses, and even when they are, they are depicted as deaths from natural causes owing to the diplomacy of the bureaucrats.

There had been widespread anger over the matter following the brutal killing of George Floyd in the USA and the deaths of Jayaraj and Benix in custody in Tamil Nadu, India. There have also been calls for policing reforms and the implementation of effective mechanisms that hold the responsible officers accountable for their wrongdoings. To remedy this problem, the IPC has laid down a number of solutions.

The Union and State Governments have received periodic orders and instructions from the Supreme Court to treat the issue seriously, put measures in place to reduce the number of deaths in custody, and punish truant authorities. However, as seen by the nation’s escalating rate of custodial fatalities, these have not been fruitful. It’s interesting that India does not have a law against torture, and this topic is currently the subject of intense debate.

CUSTODIAL DEATHS IN INDIAN CONTEXT

According to data, 1,727 people died while in police custody between 2001 and 2018 (including those who were in judicial remand and those who had been detained but hadn’t yet been brought before the court). 96 people pass away in jail or prison per year on average.

1,731 people died while being held captive in India, according to the 2019 India Annual Report on Torture. 1,606 of individuals died while being held in custody by the court, while 125 died while being held by the police. This equates to about five such deaths every day. The research identifies the most prevalent types of torture, such as electric shock, hammering nails into the body, delivering cold power to various body parts, branding with a hot iron, inserting rods into body parts, separating legs, hanging upside down, and ruthless beating, among others.

The most recent of these horrifying tragedies took place in Tamil Nadu. P Jeyaraj (58) and his son Benicks (38) were detained by police for allegedly operating their store over the allotted hours when it was under lockdown. On the spot, they were abused, and they were then hauled to the police station and tortured. In two days, both passed away. Social media users expressed a great deal of fury over the occurrence, which prompted the local courts to launch the investigation. The cops engaged in the event will face murder charges, the court decided. The facts of the torture shocked the whole country, and discussions about excessive force and police brutality gathered steam as a result. About a month had passed since George Floyd’s shocking passing when this also occurred.

LAWS IN INDIA AGAINST THE PRACTICE OF CUSTODIAL DEATHS

As mentioned before, various protections against torture in detention are provided by the Indian Constitution and the judicial system some of which are as follows:

• Protection from Conviction or Enhanced Punishment under Ex-Post Facto Law: Article 20(1) of the Constitution of India provides that, no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to any greater penalty than that which might have been inflicted under the law in force at the time of the commission of an offence. As a result, the article forbids the creation of ex-post-facto criminal legislation as well as the imposition of any punishment higher than that which may be imposed under the law in effect at the time the offence was committed. The provision basically forbids the introduction of a new crime that has a backwards impact.
• Section 163 of CrPC, 1973, restricts the investigators from using any sort of pressure, threat, or promise under Section 24 of the Indian Evidence Act (1872) but also stops him from coercing someone into making a remark against their will that he would want to make. In accordance with Section 24 of the Indian Evidence Act of 1872, any confession obtained by means of coercion, threat, or promise is not acceptable. As it is widely known, if such evidence is admitted, it would serve as a catalyst for the police to employ torture and force to extract evidence against the accused, hence the provision grants the accused the right to refuse to make any confessions against his will.
• Furthermore, Section 164(4) of CrPC, 1973 allows for the appropriate recording and signing of confessions as well as a magistrate’s validation of the confession to the effect that it was made willingly.
• The International Covenant on Civil and Political Rights’ Article 14(3) (g) calls on the member states to guarantee that the accused is not forced to testify against himself or to admit guilt, and this right against self-incrimination is in line with this provision.

GUIDELINES GIVEN BY NHRC

The Protection of Human Rights Act of 1993, a legislative Act, established India’s National Human Rights Commission. It sought to further and better safeguard human rights in India. It completes both domestic and international norms, protecting human rights by all possible ways. In order to combat the rising incidence of violence in Indian prisons, the NHRC issued a number of recommendations. Some them are :

• First and foremost, a magisterial inquiry should be launched as soon as possible after learning of any death in custody.
• While conducting their work, the inquiry magistrate should adhere to certain rules. The investigating officer must go to the scene of the incident and record all the relevant facts and supporting evidence. The police must also make an effort to locate any natural witnesses who were there when the incident occurred. Close examination should be given to the validity of the police authority’s purported motive for committing the alleged crime.
• To let the witnesses know about the case, a public notice should be published in any local newspaper. The police must make sure that the information reaches all parties involved, including the victim’s family.
• The victim’s family should be given a fair opportunity to express their point of view.

Within 24 hours after the death, notification to the NHRC should be made. The NHRC has also established a deadline for turning in all pertinent paperwork, including the postmortem report and the report from the management inquiry, within two months after the occurrence.

The NHRC’s proactive position has undoubtedly put some strain on the police since they always fear that they may be stopped at any moment. The Commission considers the complaints made by the victim’s family members very seriously and does not just depend on police records in making its decisions.

JUDGEMENTS IN RELATION TO CUSTODIAL DEATHS

By outlining specific guidelines to be followed while handling situations of custodial violence, the Supreme Court developed the notion of custodial jurisprudence in the seminal case of D.K. Basu v. State of West Bengal (1997). Some of the recommendations are:

• Any type of torture, including third-degree techniques, is prohibited while obtaining information.
• The police officers who conduct searches and arrests must wear name tags and identification that are distinct, legible, and accurate. The details of each official should thereafter be kept in a registry after this.
• The right to tell family members about the arrest and site of incarceration should be given to anybody who has been arrested or taken into custody. The arrestee should then be notified of the crime committed and the rights granted to the detainee after that.
• The accused person’s lawyer can be present during the time of the questioning but not in the entire process.
• Additionally, a note should be made in a register listing the name and location of the detention facility, followed by the names of the arrested person’s relative and the staff members who have charge of him.
• The arrestee shall thereafter, if they so want, be evaluated by a medical examiner at the time of the arrest. The arrested individual and the relevant police officer must both sign an inspection document detailing every injury mark. The inmate should also be given a copy of the document.
• A qualified physician who has been authorized by the State Health Department shall examine the detained individual every 48 hours.
• Additionally, a copy of each document and any pertinent entries should be provided to the local magistrate with the memo for their records.
• Within 12 hours of the arrest, the police officer responsible for the arrested person’s custody must notify the police control room.

Next we have the case of Joginder Kumar v. State of UP (1994), in which the Supreme Court ordered that no arrests may be made based only on allegations or suspicion. Not only this, but It offered a number of instructions about the procedures to be followed while making an arrest. The person who was arrested would have the right to request that any of his friends or family members be informed about his arrest and incarceration facility.The police would tell him of this right and record the appropriate information about the person who was told of the arrest in the diary.The magistrate that the arrested individual would appear before would also make sure that the police had followed these instructions.

We also have a noteworthy proposal made by the Law Commission in its 152nd report in 1994 led to the insertion of sections 176(1A) and 176(5) into the CrPC (though after a long time, in 2005).

It is clear from this that the Supreme Court of India has established detailed rules and principles for custody jurisprudence while also taking into account the protections for human rights and dignity provided by the Indian Constitution. Provisions concerning arrest, handcuffing, custodial crime, and victim compensation have all been handled in various judgments rendered from time to time by the Supreme court.

CONCLUSION

The loss of all basic rights does not necessarily follow an arrest or detention of a person. One such right that cannot be taken away from any human being is the right to life and dignity. Therefore, it is the detaining authority’s obligation and duty to ensure the detainee’s life and bodily integrity while they are in their care.

Therefore, it is only pertinent to undertake an independent inquiry if someone passes away while they are in custody, regardless of the reason of death, which may have been caused by an unlawful killing, cruel treatment, or poor living circumstances, or it may have been natural or accidental. For the purpose of determining the exact cause of death, avoiding future occurrences of a similar kind, and guaranteeing the safety of other prisoners, an immediate, objective, and successful inquiry is crucial. Along with this, steps should be taken to curb the growing menace of custodial violence. 

REFERENCES

• Probe all custodial deaths, rules NHRC : https://www.hindustantimes.com/india-news/probe-all-custodial-deaths-rules-nhrc-101610567294556.html
• Guidelines for investigating deaths in custody (icrc.org) : https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4126.pdf
• NHRC INDIA: https://nhrc.nic.in/
• Commonwealth Human Rights Initiative: https://www.humanrightsinitiative.org/in-the-news/human-rights-watch-publishes-report-on-deaths-in-indian-police-custody-chri-contributes-to-study
• GUIDELINES OF SUPREME COURT AND NATIONAL HUMAN RIGHTS ON HUMAN BEINGS: http://www.wbja.nic.in/wbja_adm/file/Guidelines%20of%20Supreme%20Court%20and%20Human%20Rights%20Commission%20on%20Human%20Rights%20by%20Dr.%20G.Kalyani.pdf

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