Abstract:
Custodial torture and death are some of the most dreadful and brutal pain one could inflict on someone who is in complete control of the former it is one of the cruelest abuses of human rights. Fundamentally it means torturing and snatching someone’s right to life and right to be treated humanely. The word “custodial” refers to judicial and police custody because a vast majority of tortious deaths do not occur in broad daylight but in the closed walls of police stations and jails. This research paper will examine the many intricacies related to the causes, consequences, and measures taken to curb this kind of crime and simultaneously discuss why all the initiatives taken to control this are almost vain because every new report on custodial deaths resembles a different set of facts. The author of this paper will encompass a wide ambit of reports and data released by domestic organizations as well as international ones” and will also assess the steps taken by various government and private organizations to lower the whopping number of deaths in custody. We would also go through the gruesome incidents of custodial tortures and deaths which put some serious questions on why there are such heinous acts done by the protector and regulators of law and order it poses a must-answered question on the rule of law. We will come across incidents where the supreme court, vigilante commission, and international pressure group have called for particular legislation to govern the burgeoning number of custodial deaths but till today there are no such laws enacted this remissness towards such a severe issue poses a different question mark on the intention of the government. This research paper will revolve around these points and will give a comprehensive view of the above-mentioned issues.
Keywords: Custodial deaths, Rule of law, Legislation, Human rights
Introduction:
There is a very popular quote by ‘Nelson Mandela’ that goes like “To deny people their human rights is to deny their very humanity” and it’s a universally accepted notion that custodial torture is one of the worst types of human rights violations. It’s a type of suffering that is inflicted upon your body and conscience in the closed walls of torture spots which you have to accept as your fate and you are left with no other option than to endure them.
The word custody as defined by the Cambridge Dictionary is “the legal right or duty to care for someone or something, especially a child after its parents have separated or died” Similarly the Collins Dictionary defines custody as “Custody is the legal right to keep and look after a child, especially a right given to child’s mother and father when they get divorced.” There are enormous definitions of custody but every definition emphasizes due care and responsibility for care which is granted to someone who possesses some kind of authority over others. The word “Custodial death” is in itself an oxymoronic phrase. How could a rational mind consider being tortured and killed in a place where they ought to feel protected about their life and liberty? However, the reports released by NCRB and ACHR will force us to acknowledge this bitter fact which poses a grave question on the condition of the rule of law and the condition of human rights in a country that brags itself to being called as the “Vishwaguru”. In India, custodial deaths are of two types the first one is a fatality in police custody and the second one is a fatality in judicial custody “
Custodial violence and deaths are some of the reasons why people have lost faith in the criminal justice system of the country if the violence by the security forces, jail authorities, government institutions, and various other administrative bodies continue whopping at such a rapid rate it would not be a lie to state that India would certainly lose its very fundamentals of democracy and the rule of law. Violence of this type would slaughter the freedoms given as a fundamental right in the Constitution of our country.
The research paper will revolve around the question of why this kind of gruesome and cruel crime occurs within the community of law enforcement officials. Is it now an appropriate time to enact a particular legislation about custodial torture and deaths? Now it’s time to stop the remissness towards such a grave concern and adopt a pragmatic approach to curb this issue with utmost priority.
Research Methodology:
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the Custodial Torture and Deaths in India. Secondary sources of information like newspapers, journals, and websites are used for the research.
Review of Literature:
A report released by the Asian Centre for Human Rights (ACHR) stated that a total of 1,674 custodial deaths, including 1,530 in judicial custody and 144 in police custody, took place between 1 April 2017 and 28 February 2018 in India. This means that Daily India reports 5 custodial deaths.
Correspondingly a report by (the NCRB) “ National Crime Record Bureau” in November 2021 propounds comparable data it reported a total of 1,888 custodial deaths in India in the last 20 years and 893 cases were registered against the police personnel out of which 358 officials were charge-sheeted but when we come to the conviction rate it resembles a disappointing figure only 26 policemen were convicted in this period it indicates that the conviction rate is considerably low. if we further classify this report and look at the more concerning side of it we come across the most stunning part,1,185 of these reported 1,888 custodial deaths fall under the person not on remand category this means that almost 60% of the reported deaths in custody over the last 20 years in India pertained to those who had not even been produced before the court of law once when they died. These terrifying figures of custodial deaths and the low number of convictions rate give rise to a big question mark on the conditions of police stations in India and how the police officials deal with detainees. These are only reported cases that were on record it would not be something strange if we talk about those cases that were not even reported the probability of the existence of such cases cannot be negated. People from the marginalized segment of our society are more prone to such cruelty by the authorities a large chunk of cases which includes police torture and custodial deaths are of Dalits and people from minority groups. Though there are several guidelines issued by the Honourable Supreme Court and the National Human Rights Commission pertinent to custodial deaths and how a detainee should be treated in police custody, unfortunately, all these guidelines are blatantly and openly violated by our security forces and the concerned authorities.
(D.K. Basu vs. State of West Bengal, 1997), The Supreme Court in the case held that the rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in custody, except according to the procedure established by law.
The SC of India has laid down specific requirements and procedures:
•Right to Inform: The person arrested, detained, or being interrogated has a right to inform a relative, friend, or well-wisher.
•When a friend or relative lives outside the district, the time, place of arrest, and venue of custody must be notified by police within 8 to 12 hours after arrest.
Similar guidelines are also issued by the National Human Rights Commission
•Interrogation on Identifiable Place: The interrogation should be conducted in a clearly identifiable place, which has been notified for this purpose by the Government.
•Right to Know Place by Relatives: The place must be accessible and the relatives or friends of the person arrested must be informed of the place of interrogation taking place.
•A Humane Interrogation: The methods of interrogation must be consistent with the recognized rights to life, dignity, and liberty and the right against torture and degrading treatment.
(Indian Penal Code (IPC), 1880) Sections 302, 306, 330&331, and 342 of the Indian Penal Code (IPC), 1860 also deal with cases relating to custodial torture and deaths.
Analogously sections 41, 49, and 176 of the Criminal Procedural Code (CrPC), 1973 talk about the procedure of arrest and the series of steps to be followed in case of death caused in police custody. (Criminal Procedure Code (CrPC) , 1973)
Sections 7 and 29 of the Indian Police Act, 1861 empower a senior police officer to dismiss or suspend negligent police officers and penalize police personnel for carrying out their duty negligently.
With all these safeguard measures imbibed in the constitution and various legislation of the country still, the condition of human rights violations by the authorities is despicable. What could be the respective reason behind this abominable condition of custodial violence in India is it because of the absence of particular legislation that deals solely with the abuse of rights in custody or is there any other specific reason that is yet unexplored? Because only a lack of legislation could not substantiate the reason behind the state of custodial violence in our country there must various other reasons that are pertinent to the cause behind the prevalent colossal number of custodial torture and deaths in India.
Historical perspective of Custodial deaths and torture in India:
The history of custodial violence and deaths is not new to the Indian subcontinent. It could be traced back to the Vedic era when the cases of human rights abuses by law enforcement agencies were reported when the gruesome approach was taken against the criminals, the wrongdoers, and the accused of a crime to deduce the information or to make them accept there crime every barbaric way were instituted as a punishment in that tenure. These modes of punishment are given in different Hindu texts also. (Shah, 1992)
Ancient India:
The Manusmriti one of the most ancient Hindu literature is incorporated with penal laws also and it defines punishment in four types “Vak- Danda” (admonition), “Dhanadanda” (Fine), “Badhadanda” (Physical Punishment). The first category which is the Vak-Danda is the least severe type of punishment the intensity of severity increases when we move towards Dhanadanda and to Badhadanda. A sub-category of punishment within the Badhadanda is Mutilation in which the provisions are set to remove the particular part of the body responsible for committing the offense. For example, stealing a cow that belongs to a Brahmin would result in losing the offender half of his feet.
Medieval India: (During Muslim Rule)
During the medieval period, there was no proper concept of police functionaries though the punishments were based on the instituted Islamic laws during the time of Muslim rule in India. The laws were orthodox and were based on the retributive theory of punishments. Some laws loudly propounded the concept of beheading in public, mutilation, cutting of arms on being found guilty of theft, and stoned to death in case of an adulterous offense.
A very excruciating incident come to pass during the time of the Mughal emperor “Faruksiyar” (1715-16). A Sikh revolutionary “Banda Singh Bahadur” who revolted against the Mughals due to the assassination of “Guru Gobind Singh” was captured by the military and incarcerated in a cage for 3 months and was inflicted with both mental and physical torture, after 3 months he was brutally killed by the Mughalian army.
During British India :
After the Mughal emperor collapsed India now was under the rule of Britishers. They tried to improve the condition of the police and administration by introducing proper structural forms of administrative and law enforcement bodies. However, the menace of custodial torture was not eradicated cases were being reported of inhumane and brutal tortures and deaths that occurred in police custody. Indians were being treated differently in police stations and they were also subjected to harsh tortures just on the apprehension of being a sympathizer of the independence movement.
In 1855 a report was released by the Torture Commission of Madras which was formed because the House of Commons was loaded with torture allegations against the Honourable East India Company it was alleged that the means of torture was frequently used by the native officer to compel the Ryots to pay the demand of the government. Due to loaded allegations of torture, The Court of Directors immediately directed the Madras government to formulate a 3-member committee to enquire into the “use of torture by the native servants of the state, to realize the Government revenue”. Later the ambit of inquiry was enlarged to also look into the matter which includes torture by police to extract information and confession. (Shah, 1992)
Recent incidents related to Custodial torture and deaths in India:
Every day someone is subjected to some kind of custodial (Torture in India, 2018, 2018) (Torture in India, 2018)or abuse of his basic human rights in the custody of police officials or jail authorities. Some cases are extremely cruel and severe and could shiver the soul of a common man but due to lack of awareness and intimidation inflicted upon the kins of the victim by the officials, those cases were kept out of the reach of media groups that contribute one more nail which is stabbed in the coffin of human rights. Recently some of the cases that were reported relating to custodial torture dragged the attention of the whole nation toward the gravity of this issue which is burgeoning at a very whopping rate.
- Killing of Jayraj (59) and Benix (31)– On 20 June 2020, when the nation was suffering from the wrath of COVID-19 a duo of father and son from Sathankulam, Thoothukudi district, Tamil Nadu was tormented by the torture of Tamil Nadu in police custody. They were arrested on the charges of violating the lockdown rules of government in custody they were sexually assaulted and suffered from the worst torture by the police officials. On 22 June Benix fell ill and was moved to the hospital where he took his last breath later on the same day his father also died, The incident shook the conscience of the nation and outraged the dark side of police forces. (WIKIPEDIA The Free Encyclopedia, 2024)
- Deaths of Altaf – Altaf was a 22 years old boy resident of Aehrouli village in Kasganj district of Uttar Pradesh he was arrested by the police on the charges of kidnapping a girl on the evening of November 8, 2021, his family came to know about his demise on the evening of November 9. His father alleged the police officials for the murder of his son.
However, the police further rectified his stance by claiming that the accused had done suicide by strangulating himself in the washroom of the lock-up. (Lavania, THE TIMES OF INDIA, 2021)
- Deaths of Subramani in police custody – Subramani was a 35-year-old man and a painter by profession he was booked by the police officials on the grounds of committing a murdering a woman though his wife reportedly said that “there was no such evidence against my husband”. The medical team shows that his body was swollen by the constant beating of a hard object.
The High Court’s findings show that there was no nexus between the injuries and the cause of death. Now the Honourable Supreme Court will look into the matter by examining whether this could come under the ambit of Custodial torture or not. (Rajagopal, 2024)
These above-mentioned cases are some of the cases relating to the condition of police torture in India though there are an enormous amount of such cases which are way more egregious than these mentioned ones. Some of the cases even don’t get reported in some cases the family or the knows of the victims were intimidated by the authorities to keep their mouths shut, in some cases don’t get reported due to a lack of awareness about the rights of an individual that are granted by the legislations and constitution of the country.
International and Domestic initiatives to curb Custodial torture:
UNCAT (United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment).
Convention was adopted by the the United Nations General Assembly on the 10th of December 1984 it came into force on the 06th of July 1987. (Danelius, n.d.)
It is fundamentally based on the accordance of the principle mentioned in Article 5 of the “United Nations Declaration of Human Rights”,1948. The UNCAT aims at eradicating the menace of custodial torture universally. To ensure its aim the convention consists of 33 Articles that lays the procedure for the signatory nations to curb and reduce the cases of Human rights violations in Custody. (United Nations Treaty Collections )
Though India is a signatory of the convention but hasn’t yet ratified it, ratification can only be done after enacting a domestic law in a country which is based on the issue in the respective convention.
The Nelson Mandela Rules, 2015:
In December 2015 the United Nations General Assembly adopted the revised rules as mentioned under “United Nations Standard Minimum Rules For the Treatment of Prisoners”. On the recommendations of the expert group, the revised rules that were adopted now should be known as “The Nelson Mandela Rules”. To honor the legacy of the first President of South Africa who remained in prison for almost 27 years while fighting against the discriminatory regime and thriving for Human Rights, an Egalitarian society, Equality, Democracy, and cultural promotion.
The Enactment of the Protection of Human Rights Act,1993
The enactment of this act in India laid the grounds for the formation of the Human Rights Commissions at the central and state levels, these commissions function as quasi-judicial bodies that are vested with the powers of a civil court and they have the right to start a suo moto inquiry in any cases which is in the view of the commission is the violation of human rights.
As per the NHRC in 2018 the commission took suo moto in 17 cases in alleged cases of human rights violation.
Prevention of Torture Bill, 2010:
A feeble attempt was made by the UPA II government to ratify the UNCAT by the Indian government to introduce a bill in the parliament that was inconsistent on many grounds with the (United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment) the bill was passed by the Lower House but the Upper House referred the Bill to Select Committee. India signed the UNCAT in 1997 but still failed to ratify it.
Prevention of Torture Bill, 2017:
The Prevention of Torture Bill of 2017, In 2018 the government of India circulated a draft of this bill and asked for the response of the state governments and union territories. They failed to send their response even after frequent reminders by the central government. Later the Supreme Court directed them to send their respective response within 3 weeks. Still after various attempts India doesn’t have any legislation to deal with crime related to custodial torture
It’s been more than 26 years since we signed the UNCAT but we are still lagging in ratifying the convention. Even after the various recommendations by law commissions, the Supreme Court, and other Non-Governmental organizations we have failed to enact a particular legislation that deals with the crimes related to custodial torture.
India is among the few countries which haven’t yet ratified the UNCAT.
Suggestions and Conclusion:
- Installation of CCTV Cameras in every Police Station: This guideline was issued in the case of (D.K. Basu vs. State of West Bengal, 1997), The Supreme Court instructed that every police station should be instilled with CCTV cameras which facilitate the investigating agencies in case of any custodial torture occurring within the premises of the police station.
- Enactment of particular legislation which deals with crime related to custodial violence. The absence of such legislation is one of the prominent loopholes in the effort to curb the cases of custodial violence
The absence of respective laws also affects the extradition policy of India, various criminals and offenders are protected in alien countries and are safeguarded by the laws of those nations because India lacks the enactment of dedicated law.
- Frequent reformative programs to be conducted for police officials, especially for those who do not comes under the category of gazetted officer. We should give more emphasis on changing the approach and mindset of the police personnel toward the detainee.
- India should learn from the countries which perform exceptionally well when it comes at protecting the human rights of an individual. Finland had reported zero cases of human rights abuse in custody in 2023. (2023 Country Report on Human Rights Practices: Finland , 2023)
- An underscoring importance should be given to the cases that are related to human rights abuse of a woman in custody. India has encountered many cases where a woman is brutally tortured and even subjected to gruesome sexual acts of violence.
Conclusion:
India is a country that is popularly known for her rich heritage of culture, tolerance, and diversity, India is a country that celebrates and welcomes every depressed community that has faced persecution anywhere in the world. It welcomed the remnants of Israelites who settled here when Romans destroyed their temples, India welcomed the Zoroastrians and still fostering them like a mother. A country that has such a great past is now suffering from such heinous crimes that don’t go with the very nature of this country. The government should give this issue paramount attention to reach a pragmatic solution for this menace. The prevalent number of custodial violence cases stains the reputation of India on various international grounds. India is the country of Mahatma Gandhi, Mahatma Buddha, and Swami Vivekananda, and has fostered many other such great personalities indeed it’s a duty of every citizen of India to adhere to their teachings which inculcate the concept of tolerance, camaraderie, humanity, and equality in a man.
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Name – Md Obaid Akram
College – University of Allahabad (1st year)