By Sanskrati Jain, Intern at Lex Maven

INTRODUCTION:

Detestable practices, subjective and retaliatory killings, legal torment, shootout, and so on are not many among different language that feature the current situation of police severity either through extra-judicial killings or custodial deaths. Ironically, neither of these terms have a definition in law till date. Where the previous is killing of supposed blamed by administrative specialists with no legal request, the latter is passing through one or the other ailment, torment, self-destruction, or mishap in police guardianship or legal authority.

It is one of the cruelest forms of human rights violation. It is a sheer violation of law and constitutional values of a democratic and justice loving country like India. For a long time, police torture and detainee abuse have been a major source of worry. To get faiths and statements from the accused, the police bring into play third-degree methods, and those statements don’t have any value in eyes of law as per section 161 of Cr.P.C. The number of such accidents has risen over the years, in the recent past we saw a number of police encounters or custodial deaths.

Following the police encounter of 4 Hyderabad rape case accused, the custodial death of J. Bennicks and P. Jayaraj in Tamil Nadu, extra-judicial killing of the arrested Gangster Vikas Dubey and the most recent one that is human rights activist Stan swamy’s death in custody, we clearly see glaring anger over the issue and demands for reforms in policing and bringing in adequate mechanisms, making the culpable officers accountable for their misdeeds. The IPC contains some remedies for dealing with this problem. The SC has also given directives and instructions to the Union and State governments from time to time, urging them to take the problem seriously, undertake measures to reduce cases of custodial deaths and extrajudicial killings as they are against the principles enshrined in our constitution and a sheer violation of a detainee’s human rights.[1]

THE LEGAL PERSPECTIVE

India has a long history of this barbarity and torture. That’s why we have a long evolution of law upon this issue through various case laws. Moreover, the Indian Constitution and the legal regime provide various safeguards against custodial torture.

Legal Provisions Related to Custodial Torture

• Protection against 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 an offence unless the act charged as an offence was committed in violation of the law in effect at the time of the commission of the act charged as an offence, nor shall any person be subjected to a penalty greater than that which might have been imposed under the law in effect at the time of the commission of the act charged as an offence. As a result, the article bans the enactment of ex-post-facto criminal legislation, as well as the imposition of any punishment greater than that which may be imposed under the law in effect at the time the offence was committed. In a nutshell, the article bans the introduction of a new offence that has retroactive application. Protection against Double Jeopardy: Article 20(2) of the Constitution states that no person shall be prosecuted and punished for the same offence more than once. Right against self-incrimination: Article 20(3) of the Constitution provides that no accused person will be compelled to be a witness against himself[2].  This is very important as it acts as a safeguard in obtaining evidence from the accused through coercion and torture. This right against self-incrimination corresponds to Article 14(3) (g) of the International Covenant on Civil and Political Rights, which requires member states to guarantee that the accused is not forced to testify against oneself or admit guilt.
• Article 21 of the Constitution of India: The Indian judiciary has interpreted this clause to guarantee the right to be free of torture. This viewpoint is supported because the right to life encompasses more than the right to lead an animalistic lifestyle. Article 21’s definition of “life or personal liberty” includes a guarantee against torture and assault by the State and its functionaries against a person taken into custody, and no sovereign immunity can be invoked to shield the State from liability arising from such criminal use of force against the captive person.
• With regard to conviction, Article 22 establishes four essential fundamental rights. These include being notified of the grounds of arrest, having the right to be represented by a lawyer of his choosing, preventative detention legislation, and appearing before the nearest Magistrate within 24 hours after being arrested. As a result, these rules are intended to guarantee that a person is not exposed to any ill-treatment that lacks legislative support or goes beyond defined limits.
• Under Section 24 of the Indian Evidence Act (1872), the investigating officer is prohibited from making any inducement, threat, or promise, but he is also prohibited from forcing any person to make any statement that he would like to make on his own free will under Section 163 of the Code of Criminal Procedure, 1973. All confessions made under duress, fear, or promise are inadmissible under Section 24 of the Indian Evidence Act of 1872. The provision guarantees the accused the right not to make any confession against his will since it is generally recognised that allowing such evidence to be admitted will allow the authorities to employ torture and force to obtain evidence against him.
• Section 49 of the Code of Criminal Procedure, 1973, likewise serves as a safeguard to excessive incarceration. It stipulates that an arrested individual may not be held for longer than is required to prevent him from fleeing. The police are obligated by Section 50A of the Code of Criminal Procedure, 1973, to provide required information about a person’s arrest, including the location of the arrest, to the arrestee’s acquaintances, family, or any other person chosen by the arrestee. The person in whose custody the accused is imprisoned must take care of his or her health and safety, according to Section 55A of the Code of Criminal Procedure, 1973.

Landmark Judgements on Custodial Deaths

• Joginder Kumar v. State of U.P and Others[3]: – Articles 21 and 22(1) of the Constitution contain inherent rights that must be recognised and rigorously safeguarded. The Hon’ble Court issued the following instructions for effective implementation of these basic rights:

When the detained individual is transported to the police station, the officer must tell him of his right. It will be necessary to record who was notified of the arrest in the journal. Articles 21 and 22(1) must be recognised to be the source of these power safeguards, and they must be vigorously enforced. It was also stated that it is the responsibility of the Magistrate in front of whom the arrested individual is brought to ensure that these criteria have been met.

• In Nilabati Behera v. State of Orissa[4], the mother of the dead claimed compensation for a breach of her son’s basic right under Article 21 of the Indian Constitution while her son was in the custody of Odisha (then Orissa) Police. The court found the state liable for violations of basic rights and ordered criminal charges to be brought against the officers involved. More crucially, it directed that Rs 1.50 lakh in compensation be provided to the deceased’s family. There was no systematic procedure for granting compensation in situations of custodial death prior to this judgement. On this aspect, the ruling was historic and cleared the way for future developments.
• D.K. Basu v. State of West Bengal [5]: – In addition to the Constitutional and Statutory Safeguards, the Court published a set of 11 guidelines to be observed in all situations of arrest and detention. The crux of the guidelines is as follows:-

All individuals involved in the detained person’s questioning must be listed in a register. At the moment of the arrest, a memorandum of arrest should be prepared. The inmate must also sign it, and it must include the time and date of the arrest. The time, place of detention, and custody of a detainee must all be communicated to the detainee. Within 8 to 12 hours following the arrest, police in the impacted region telegraphed the arrest. An entry must be made in the Case Diary at the place of detention.

Both the detainee and the arresting police officer must sign the “Inspection Memo,” and a copy must be given to the detainee. During his or her detention, the detainee must get a medical check-up by a competent physician every 48 hours. For registration, copies of all papers, including the arrest memo, must be given to the Magistrate. Within 12 hours after the arrest, information regarding the arrest and the arrestee’s location of custody must be posted on a public notice board in the Police Control Room Board.

We have enough provision to tackle these things but some procedural loopholes and lack of implementation which is lacking us behind. The Law Commission, not once but twice made some strong recommendation to fill these loopholes (in its 113th & 152nd report)and suggested to insert and provision in the Indian Evidence Act as per which  if the injury occurred while the victim was in custody, the court will assume that the police officer in charge is to blame. As a result, the burden of evidence is reversed. The court has also affirmed upon it and directed for its insertion the Indian Evidence Act 1872 which is same as law commission’s recommendations but is yet to be made a law though the bill was introduced in 2017. It is clear from above case laws and legal provisions that India has extensive guidelines and principles of custody jurisprudence, formed after keeping in mind the constitutional safeguards on human rights and human dignity but the will to implement it is missing.

CONCLUSION AND SUGGESTIONS

People’s faith has decreased in the justice system as does not reach the individual and the necessary places. Long-term justice trials result in long-term prison sentences for the guilty, as well as an increased risk of detention torture and, in many cases, death. The police personnel try to abuse their power and duty which is conferred to save the society from crime. But this issue can be solved with stringent implementation of current laws and working upon the loopholes in the present system. We don’t need complete transformation in our system but the implementation with strong will and for actual results is required.

It is long overdue on the part of India to ratify the UN Convention Against Torture, 1985. It’s ratification will call for a thorough examination of colonial regulations, techniques, practises, and procedures for the custody and treatment of those who have been arrested, detained, or imprisoned in any way. It will also imply that, in addition to organisations like the Board of Visitors, the victim would have unique avenues for redress and compensation. We also need some police reforms such as guidelines for educating and training officials involved in cases involving deprivation of liberty should also be developed, because torture cannot be effectively prevented until senior police officers wisely anticipate the gravity of such issues and a clear reorientation from current practises is devised.

Moreover, Independent and qualified individuals should be granted unrestricted and regular access to sites of confinement for inspection. In police stations, including interrogation rooms, CCTV cameras should be placed. Surprise inspections by Non-Official Visitors (NOVs) should also be made necessary as a preventive measure against incarceration torture, as proposed by the Supreme Court in its landmark DK Basu case decision in 2015. Implementation of the Law Commission of India’s 273rd Report’s recommendations. The report proposes that anyone suspected of conducting custodial torture – whether they be police officers, military or paramilitary personnel – be punished criminally rather than facing just administrative punishment as a deterrence.

The moment has come for society to take conscious action to address the threat of state-sponsored atrocity. There is rising resentment of state police across the world. Particularly in America, following the death of George Floyd, which sparked widespread outcry. A great tectonic shift is awaited in the mindset of people. On the day people will stop encouraging extra judicial killings, the ways for its solution will become clearer to us.

The criminal justice system also includes a law enforcement agency, whose principal aim is to reduce crime and defend the public’s rights. This is the core of the rule of law. Custodial death and extrajudicial killings, on the other hand, have a negative influence not just on the legal system but also on law enforcement, since it tarnishes their image as a whole. The act of praising “illegality” may undermine public trust in the judicial and criminal justice system. Such behaviour perpetuates a vicious circle of law and rights violations, reducing the “rule of law” to a mukhdarshak (mute spectator). Such acts are associated by law enforcement and executive agencies with a moral authority that they owe to the State, the same moral policy that is deprived of due process and a fair trial. This scenario necessitates the active participation of the Supreme Court and other state high courts in investigating such matters on a Suo motu basis. This will send a clear message that acting outside of the law and the constitution is not acceptable.

[1] MR. SYED FARAZ AKHTAR, Custodial Death – A Socio-Legal Study of Open Prison as A Preventive Measure, Vol.2, Issue 6, Law Audience Journal, Pages 111 to 132 (2021), available at https://www.lawaudience.com/custodial-death-a-socio-legal-study-of-open-prison-as-a-preventive-measure/.

[2] Nemo Debet Pro Eadem Causa Bis Vexari, No one ought to be twice troubled or harassed [if it appears to the court that it is] for one and the same cause.

[3] 1994 AIR 1349: 1994 SCC (4) 260

[4] 1993 AIR 1960

[5] 1997 (1) SCC 416