“The occurrence of Custodial deaths in the world’s greatest democracy has raised the eyebrows of every citizen and shaken the faith in the democracy.” [1]
The term “Custodial Violence” means the violence which takes place in the custody of the police officer which is third-degree torture undertaken by the police officers so that the accused might confess to his/her crime. [2]
Legal Position of Custodial Deaths in India
The United Nations had formed a human rights convention where in the year of 1975, the UN Charter was adopted which dealt with the provisions related to torture. In the charter, torture has been defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”[3]
India was also one of the signatory countries on the 1975 UN Charter but it was not ratified. In the year 2010, an “Anti-Torture” bill was discussed in Parliament but the Rajya Sabha did not give assent to it and since then nothing has been talked about it.
However, there are other several provisions under various acts which define and determine the rights of an accused person which are as follows:
Indian Penal Code
Section 21: The term “public servant” has been defined where it is termed that any person who is discharging any public duty will be treated as a public servant which includes Judges, Arbitrators, Police officers, etc.
Section 330: The provision talks about voluntarily causing hurt to extort a confession. It clearly suggests that no person can take confession from another person which may lead to the detection of an offence. The person who is found guilty under this provision shall be punished with imprisonment which may extend to 7 years and shall also be liable to fine.
Section 348: If any person is wrongfully confined for the purpose of extorting confession which may lead to the detection of an offence or misconduct, then the person who wrongfully confined the other person will be held liable for imprisonment which may extend to 3 years and shall be liable to fine. [4]
Criminal Procedure Code
Section 197: It acts as a shield for public servants where they have been given immunity that while discharging any public duty if they commit anything wrong no court can take cognizance against them. [5]
Indian Evidence Act
Section 24: It states that in any case if confession is made by inducement, threat or promise then it will not be considered as a valid confession.
Section 25: If any confession is made to the police officer in his custody then it will not be considered as a valid confession. [6]
Constitution of India
Article 22(2): It states that the accused person needs to be produced in 24 hours of arrest before the Magistrate. [7]
What Reports Say
The Human Rights Watch (HRW) has published a report that looks and analysis deeply into the incidences of deaths in Indian custody. In their 114 page report, they have started by citing the National Crime Records Bureau and analyzed that between 2010 and 2015, 591 people died in police custody. Police blame most of the deaths on suicide, illness, or natural causes.
Further, the report points out that 97 custody deaths were reported in 2015 out of which police only reports 6 deaths due to physical assault by the police and rest were reported as either suicide, illness or natural causes. However, in many cases, the family members allege that the deaths were caused by torture.
The report, “‘Bound by Brotherhood’: India’s Failure to End Killings in Police Custody,” examines police disregard for arrest regulations, custodial deaths from torture, and impunity for those responsible. The report draws on in-depth investigations into 17 deaths in custody that occurred between 2009 and 2015, including more than 70 interviews with victims’ family members, witnesses, justice experts, and police officials. In each of the 17 cases, the police did not follow proper arrest procedures, making the suspect more vulnerable to abuse. [8]
Also, according to the ‘India: Annual Report on Torture 2019’, 1,606 of the deaths happened in judicial custody and 125 in police custody. Another report by the National Campaign Against Torture (NCAT) stated that “Out of the 125 deaths in police custody, Uttar Pradesh topped with 14 deaths, followed by Tamil Nadu and Punjab with 11 deaths each and Bihar with 10 deaths.”
The analysis done by NCAT reveals that about 75 people out of the 125 belonged to the poor and marginalized communities. “They included 13 from Dalit and tribal communities and 15 were Muslims, while 35 were picked up for petty crimes. Three of them were farmers, two security guards, two drivers, a labourer, a rag-picker and a refugee.
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” as revealed by the NCAT Report. [9]
D.K.Basu Judgment: A Mechanism to stop Custodial Violence
The D.K.Basu Judgment is a landmark judgment which prescribed guidelines regarding the arrest of a person. The guidelines aim to prevent the infringement with the rights of an individual during his/her detention and thus protect all the citizens by certain procedures established by law. Despite these guidelines and a proper procedure established by law, these have been certain incidents where the police officials have refused to file FIRs, injustice done to innocent people which leads to infringement of their fundamental rights.
Facts of the Case
DK Basu who was the Executive Chairman of Legal Aid Services, West Bengal, a non-political organization on 26/08/1986 addressed a letter to the Supreme Court of India calling their attention to a piece of certain news which was published in the Telegraph Newspaper about deaths in police custody. He requested that the letter should be treated as a Writ Petition within the “Public Interest Litigation”.
Considering the importance of the issues raised in the letter, it was treated as a written Petition and the Defendants were notified. While the writ petition was being considered, Mr Ashok Kumar Johri also addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The same letter was also treated as a Request for Writing and was included along with D.K.Basu’s Request for Writing.
On 14/08/1987, the Court issued an Order issuing notices to all state governments and a notice was also issued to the Law Commission requesting appropriate suggestions within a two month period. In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. Additionally, Dr A.M. Singh via his Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys who appeared provided useful assistance to the Court. [10]
Guidelines Issued
In the DK Basu vs. State of West Bengal, 11 guidelines were issued which are as follows:
- The arrested individual has the right to meet his lawyer.
- The arrested individual has the right to medical examination every 48 hours.
- The arrested individual has to be brought before the magistrate within 24 hours.
- The police officer has to inform the relatives of the arrested individual.
- A memorandum has to be made during the time of the arrest of the individual.
- The memorandum along with relevant documents has to be presented before the magistrate.
- An entry has to be made by the police officer regarding the arrest of the individual.
- A police control room has to be set up in all the districts and information about the prisoners and detenus has to be communicated to all the districts.
- The police officer who is making an arrest has to carry a badge having his name and designation clearly mentioned.
- The place and time of arrest have to be notified to any friend or relative of the arrestee by the police officer who is making the arrest.
- The arrested individual has to be made aware of his/her rights to be notified regarding the arrest and the procedure on his/her behalf. [11]
Conclusion
In my opinion, India needs a better as well as effective mechanism which will reduce the ongoing custodial violence in the country and might someday be able to put a stop to it. The bench in the DK Basu case had issued the guidelines which provided protection to the people in the custody and it becomes the obligation of the state to protect its citizens either they are accused or normal innocent people.
I also would like to opine that the law enforcement agencies should look into the ongoing cases of custodial deaths and strongly implement the guidelines laid down in the DK Basu case since it has been a long time since the judgment was given and as the saying goes, “Justice delayed is justice denied!”
References
[1] See Sankar Sen, P.S.V Prasad, A.K. Saxena, Custodial Deaths in India-A Research Study, 1(1994), https://www.svpnpa.gov.in/images/npa/pdfs/CompletedResearchProject/14_custodiandeaths.pdf
[2] Custodial Violence and related provisions, https://baskaranslegal.com/blog/2020/08/08/custodial-violence-and-related-provisions/
[3] Ibid
[4] The Indian Penal Code (IPC), 1860
[5] The Code of Criminal Procedure (CrPC), 1908
[6] The Indian Evidence Act, 1872
[7] Constitution of India
[8] HUMAN RIGHTS WATCH PUBLISHES REPORT ON DEATHS IN INDIAN POLICE CUSTODY: CHRI CONTRIBUTES TO STUDY, https://www.humanrightsinitiative.org/in-the-news/human-rights-watch-publishes-report-on-deaths-in-indian-police-custody-chri-contributes-to-study
[9] Five custodial deaths in India daily, says the report, https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece#:~:text=A%20total%20of%201%2C731%20people,rights%20group%20released%20on%20Friday.
[10] Case Summary of DK Basu vs. State of West Bengal, https://www.educentric.in/blog-details.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal
[11] DK Basu V. State of West Bengal: Case Comment, https://indianlegalsolution.com/d-k-basu-v-state-of-west-bengal-case-comment/
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