Custodial Death: An infringement of human rights in India- (Article)

Introduction:

Custodial Death is one of the worst crimes in a civilised society and is day by day increasing at a constant pace. It is being governed by rule of law. Does a citizen infringe his fundamental right of right to life as soon as the police arrests him? This question can be answered by saying, "No". His human rights are being violated and in today's time custodial death or police brutality is increasing nowadays. The police administration is always criticized for custodial deaths or we can say police brutality when the investigation is made.

Custodial Death can be defined as ' death of a person under the custody of the police, prison service or by other authorities'. The legal validity of this particular issue is always debated at both national and international level as the popular retributive- deterrent philosophy that has validated this incarcerational barbarity _(1).

Custodial Death or we can say that custodial torture is one of the cruel and barbaric forms of human rights both at international and national level. Arresting by the police doesn’t mean that police is going to torture the victim. It is forbidden by the Constitution of India as no where it is mentioned about the custodial death. Also, the National Human Rights Commission (NHRC) and the United Nations (UN) forbids it. But for police it doesn’t matter about this forbidden. It seems that police have become dump and deaf as they couldn’t see who has forbidden what and what not. Therefore, it is necessary to maintain a balance between the human rights of an individual and interests of society by using a realistic approach to cope up with this heinous crime or issue (Joginder Kumar vs State of Uttar Pradesh) ₍₂₎

Recent Cases:

According to National Campaign Against Torture which reported that around 1,731 persons had died so far in the custody in the year 2019 which clearly estimates that 5 deaths each day of that particular year. These can constituted as 1,606 deaths were in judicial custody while 117 deaths under the police custody out of the total deaths occurred ₍₃₎.

This grave problem of custodial death is still much prevalent and recently a very grievous case had highlighted in our country India when the father- son duo named P. Jayaraj and J. Benix, both the local residents of Santhankulam in Tuticorin, in the State of Tamil Nadu were arrested by the police and were also put in the custody by the local police when the police charged then of keeping their shop open during the imposed mandatory curfew hours due to lockdown because of Covid 19 pandemic. They were booked by the police for offences which are punishable under section 188, 269, 294(b), 353, and 506(2) of the Indian Penal Code. Police arrested them as per Section 41 of the Crpc which says that without a warrant only in exceptional circumstances and opening shops beyond authorized time stands in contradiction with section 188 of the IPC. This brutality done by the police authorities of Santhankulam indicated the ferocious nature and also how the heinous torture is done and also they had done sexual assault to the duo. Ironically, it was a co- incidence that on the same day that is on 26th June 2020 when the video got viral of the son- father duo that day is celebrated by the title of “United Nations International Day in Support of Victims of Torture”. This incident took each and every person of India in shock and also failure of the judiciary can also be seen. This is also an example that how the personnels who are meant for the protection and order of the nation be so brutal and inhuman towards the individuals like this.

Another incident was witnessed by the United States of America when their police authorities were brutal towards a citizen named George Floyd, a 46- years old black man on 25th May 2020.polce officers of Minneapolis arrested him after a store employee called the police by dialing '911’ and told the police that Mr Floyd had bought cigarettes after counterfeiting $20 bill. The police arrested and Mr Floyd was unconscious and pinned beneath three police officers, showing no hope of his life and finally he died. This again proved how police at national and international level is becoming brutal and inhuman day by day.

Landmark Judgements on Custodial Death:

(1)   Joginder Kumar vs State of Uttar Pradesh and Others ₍₄₎ : The rights are there in Articles 21₍₅₎ and Article 22 (1) ₍₆₎ of the Constitution of India and are required to be recognised and protected. For these fundamental rights to be enforced, Hon’ble Court has prescribed the following guidelines:

·         The police officer shall first inform the person who was arrested when he is brought to the police station of this right.

·         An entry to be required to be made in written in the diary as to who was informed of the arrest.

·         The protection from power are held to flow from Articles 21 and 22(1) and enforced strictly.

 

(2)   DK Basu vs State of West Bengal ₍₇₎: In this case the court issued a list of 11 guidelines regarding to the constitutional and statutory safeguards to be followed in cases of arrest and detention. These guidelines are as follows:

·         All the details of all the personnel which are holding the interrogations if the arrested person to be recorded in a register.

The timing for arrest for the memorandum should be prepare. It will have surely to be signed and must contain the time and date of the arrest. Police has to keep all the data as timings of detainee’, place of detention, and place of custody. Police has to give all the details of the affected area telegraphically within the period of 8 to 12 hours after the arrest. All the compulsory details such as entry must be noted.

·          The memo of inspection must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee. The detainee must be sent for a medical examination by a trained physician every 48 hours while in custody.

·         Some important copies of documents, including the arrest memo, must be sent to the Magistrate for registration.

·          Information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.

(3)   Yashwant and Others vs State of Maharashtra ₍₈₎: The Supreme Court that is the Apex Court of India on September 4 upheld the conviction of nine Maharashtra cops in related to a 1993 custodial death case and extended their jail terms from three to seven years each. A  bench consisted of Justices NV Ramana and MM Shantanagoudar upheld the order and said that incidents which involve the police tend to erode people’s confidence in the criminal justice system. While enhancing the prison term of the cops, the apex court said, “With great power comes greater responsibility,”. The police personnel were found guilty under Section 330 ₍₉)of the IPC.

Outrage across the countries on Custodial Death:

Recently on social media trending hashtags like #JusticeforJayarajandBennix and #JusticeforJayarajandFenix were found to give justice to the son-father duo who allegedly became victim of the police brutality or we can say custodial death and also hashtags like #BlackLivesMatter had became trending on social because of the death of the person George Floyd who became the victim of the police brutality in USA.

Everyone across the country tweeted on to put an end to this form of police brutality and punishment to be given to the offenders in khaki. Many eminent personalities from the field of cricket, Bollywood etc too raised their voices against this inhuman nature of police.

Also, it was said that policemen to be responsible for these deaths are not being charged for the case of murder and are not transferred or suspended.

Remedies against Custodial Torture:

(1)               Constitutional Safeguards : Under this it can be said that a person when arrested by the police and put into custody does not deprive of his fundamental rights and its violation and it is the right of the arrested person to move to the Supreme Court of India under Article 32 ₍₈₎ of the Constitution of India.

·         Article 20 says that a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) which means No crime, no punishment without a previous penal law".

·         Article 20 also protects against double jeopardy (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 the same cause or it is one. This Article most importantly protects a person from self-incrimination. The police can consider a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.

·         Article 22 provides four basic fundamental rights with respect conviction.  Grounds of arrest have been informed to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. So, these provisions are specifically designed for ensuring that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.

Conclusion:

Last but not the least it can be concluded that India and other countries should set different methods, practices and arrangements for the custody of the arrested person and also that different guidelines should be formulated for police authorities and when they commit crimes or treat someone with brutality they should be given the punishment for their doing of such an act.

References:

(1)               Constitutional Miscellany, VR Krishna Iyer, 2^nd edition (2003)

(2)               AIR 1994 (4) SCC 260

(3)               National Campaign Against Torture: Annual Report on torture 2019

(4)               1994 AIR 1349: 1994 SCC (4) 260;

(5)               Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. (Constitutional Law: Dr JN Pandey)

(6)               Article 22(1) says that - Arrested person has a right to be produced before the nearest magistrate within a period of 24 hours (Constitutional Law: Dr JN Pandey)

(7)               AIR (1997) (1) SCC 416

(8)               AIR (2018) 4 MLJ (Crl) 10 (SC)

(9)                IPC section 330: “Voluntarily causing hurt to extort confession or to compel restoration of property”.

 

 

-Aradhaya Singh

Indraprastha Law College.