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CUSTODIAL VIOLENCE, AN OVERLOOKED PREDICAMENT

By

  1. Hindol Banerjee, III year of B.B.A., LL.B, from KIIT School of Law

  2. Swastika Mukherjee, III year of B.B.A., LL.B, from KIIT School of Law

ABSTRACT

In this Article the fundamental problems with the Indian Custodial Management are highlighted along with the reasons why Custodial violence and deaths are a continuing phenomenon, and how the fundamental rights of the average Person in Custody are Violated, and they are also deprived of their dignity and right. The Statistical numbers also help establish the arguments against the improper management in place with regards to the Custodial System.


INTRODUCTION

Judiciary being the cardinal column of Indian democracy safeguards the fundamental rights guaranteed to every citizen drafted in the legislation, and therefore it is held accountable whenever there exists an infringement of such human rights. It has been duly observed that the public officials often violate such rights by abusing and torturing the accused during their stay in the police custody. Such exploitation of power done by the police often resulted in death of the accused, thereby putting an end in the way of accessing Justice for both the alleged party and the vindicated one. In the recent era, it is seen that such act done by the police officers are glorified by the citizens at large resulting in the lowering of their faith in the provisions drafted to punish a culprit. At this juncture the question arises upon the validity of such an act when the primary duty of the police officers is to act in accordance with the procedure established by law. The researchers have dealt with this issue suggesting solutions in the subsequent paragraphs.


BASIC PROVISIONS EXPLANATION/ UNCONSTITUTIONALITY

Article 14 deals with “equality before law” and “equal protection of law” which are corollary to one another and therefore, the violation of one leads to the violation of the other. However, equality before law is an aspect of Prof Dicey’s Rule of Law, which being embodied in the very provision of the Constitution itself forms the basic feature and can never be pulled down even through the means of the 368th Amendment.The incessant eventuality of extrajudicial encounters; custodial deaths has successfully generated and aperture in the faith of the people towards the Justice system prevailing in this democratic country governed by the rule of law and thus weakening their relationship.


Article 21 of the Constitution guarantees the basic fundamental rights of life and liberty to the people. Deprivation of such rights leads to unconstitutionality, and it can be validated only if it incorporates Natural Justice principles in accordance with the procedures lied by, as contended in the famous Gopalan case. The physical torture by the police force over the one’s in their custody in order to extract the truth is itself a type of abuse, and it infringes their fundamental rights. Equality before law does not restrict itself to cast; creed and religion, and therefore it is the duty of the judicial system to punish the police who misuse their power.


The maxim “innocent until proven guilty” ensures every citizen of the country for their right of a fair and unbiased trial and also paves a way for the accused to prove their innocence with the help of legal assistance in the case they had been found guilty of. Access to Justice” is permitted under Article 21 of the Constitution and therefore unfair, biased trials, extrajudicial killings are itself a gross violation of the fundamental rights guaranteed to the people of the sovereign.


No one is above law and the Constitution being the supreme of all, everyone has to abide by the procedure established by it. The public officials: police are no exception and should always uphold the spirit of it. They have no power to punish an accused before law does, despite of whatever and however, grievous that offence might be for which the person has been held liable. The police should always maintain the uniform procedure which is applicable to every individual who has been accused of a crime.


Article 22 comes up with four fundamental rights that safeguards the rights of an arrestee ensuring that they are deprived of their rights even in the custody itself and not to be a victim of the ill-treatment by the government officials. In the recent era where it takes time to perceive justice in a short span, the police by taking shelter in the name of “self-defence” and a speedy way of rendering “Public Justice”, physically torture the accused which often results in their death inside the custody itself. This may even lead to the death of innocents in the custody who were falsely being accused of a crime that they haven’t committed. Executions of such acts by the police lowers the dignity, integrity of the Constitution itself thus menacing the confidence of people over the Judiciary.


However article 32 of our Constitution permits the arrestee to move to the Apex Court whenever their rights has been infringed during their stay in the custody, that is whenever anyone has tried to deprive them from their rights guaranteed by the Constitution itself. Arrest is a part of the investigation which is not mandatory. However the Supreme Court has revised certain guidelines to arrest in the landmark case of D.K.Basu v. State of West Bengal. Certain provisions of CrPc deals with the rights of arrested person, which includes the right to be produced before the magistrate without delay has been prescribed u/s 56 and 76 of CrPc while the right not to be detained for more than 24hrs without Judicial Scrutiny has been mentioned u/s 57 and 76 CrPc. However, a special provision has been mentioned in the legislature u/s 176(1) CrPc, that empowers the Magistrate to take cognizance and ask for inquest in the case of unnatural death in police custody.


STATISTICAL INSIGHT TO CUSTODIAL CASES IN INDIA

If we take a Look at the Annual Report on torture 2019, we will get an insight to the absolutely deplorable and disgraceful condition of the people in custody and the amount of violence, abuse and torment that they go through under the veil of prosecution, As per the above mentioned report there has been of around 500 people remanded to police custody by court between 2015-18 and out of that number 281 were registered, 54 policemen were given charge sheet however none of them were convicted further going to show the shambolic system we still have in place that the so called executioners of Law can walk freely despite breaking the Law and moral values themselves. The report further states that the National Human Rights Commission (NHRC) recorded 1,723 cases of death in custody. To Quote it, it was stated that “most deaths in police custody occur primarily as a result of torture”.) it was found that 93 of the 125 deaths were allegedly due to maltreatment and torture while 24 people (19.2%) died under suspicious circumstances – such as suspected suicide (16 persons), illness (7 persons) and slipping in bathroom (1 person). Of all the States, Uttar Pradesh had the highest incidence of such deaths with 14 cases, followed by Tamil Nadu and Punjab with 11 cases each.


The “Crime in India” constitutes a particular specific chapter that enumerates custodial crimes reported in the country in the year 2017.


100 people died in police custody that year, with Andhra Pradesh the state having the highest number at 27. The most recurrent cause reported for custodial death in 2017 was suicide (37) immediately followed by death in illness/hospital during treatment (28). The “TOI” noted that 106 people had lost their lives in police custody in Maharashtra between the period of 2013 and 2017, followed by Andhra Pradesh (65), Gujarat (51), Tamil Nadu (38) and Telangana (12). In 47 of the 106 incidents from Maharashtra, a magisterial or judicial inquiry had been initiated. In 14 of the 106 cases had been registered, and in 19 of them, chargesheets. had been filed. However to take note though, that with good fortune None of the seven union territories reported any deaths in police custody in 2017.


The report further classified certain incidences as human rights violation while showing statistics as to those cases registered against police officers. These include: encounter killing, deaths in custody, illegal detention, torture/causing hurt/injury, extortion, and “other”.

No state police personnel has been convicted for any reported deaths in custody in 2017.


Of the 56 total cases of police violation registered in 2017, only half of them (29) got through as charge sheet and of that only about half of them were actually properly investigated fully to completion (14), and only just one fifth of those have gotten convictions finally (3). Therefore, the probability of cases actually resulting in conviction is about roughly 1/18th only.


This goes to show how in-efficacious is the process here and how the people in custody are getting their rights violated and the people responsible for it are getting away through corrupt use of authority as a veil to protect themselves. Taking into account the seriousness and gravity of this situation, it could be very much up for debate that there is a strong need for better custodial management with proper supervision by the Judiciary in this matter. However, as it mainly has to be dealt with by the police themselves, The role of police personnel becomes paramount in this regard. They should be trained with proper examining and monitoring in matters pertaining to human rights and custodial and prison management. There should also be a sufficient number of female personnel and medical personnel so as to make sure that the mental and physical condition of the person in custody is always taken into account before any form of prosecution. As per the respectable opinion of the NHRC, the Human Rights Cells established by the State Governments should also concurrently play a more direct and proactive role in improving and changing conditions in the prisons, while instigating increased provision of health and other associated medical facilities. These matters should be of serious importance, and to create improvement there has to be direct alterations to be made in the Custodial System Management itself.


CONCLUSION

We all know that Custodial Violence and Torture isn’t a very new phenomenon and has been existing throughout society for centuries from the monarchical times to the present legal system in a Modern Democracy. However, despite several efforts and initiative to recognize the rights of the people in Police Custody, there continues to be violence, maltreatment and persistent torture of the prisoners, depriving them of the basic human dignity and rights. Custodial Violence is thus now not just revelation of a few outliers but increasingly common to the extent that not just bureaucracy or police however even in the society it has been just accepted and has thus a very obvious practice by the police as a very common tool to aid them with their interrogation, what this does is that it deprives the person in custody of a fair trial by the judiciary and even before sentence is sometimes announced they are subjected to severe torture and violence of both mental and physical form. This is an insult to personal dignity as well as assault which should be as per the legal provisions in place a criminal offence.


The unfortunate scenario is that despite the several legal provisions aimed at safeguarding the rights through multiple reports by several committees , custodial violence in different forms and ways is still continually occurring and the main perpetrators of these the bureaucrats and the Police are hiding behind the veil of the authority given to them and are escaping liability to the point that the so called executioners of Law are misusing their power and authority to the detriment of not just the people in custody but in the grand picture also of the society by being a bad example.