Although the directions given in D.K. Basu were considered sufficient to curb the abuse of powers by the police officials against people in custody at that time…. is it time to look into the guidelines again and possibly modify them???
The institution of police, which is one of the most important pillars of the administration of the Criminal Justice System in India, has been marred with evils such as custodial violence since time immemorial. A recent instance of police brutality in custody can be seen from the gruesome death of P Jeyaraj and Bennix, the father-son duo in the police custody which shook the entire country to its core.
The incident led to widespread outrage among the people at the cruelty with which the police treated the detainees resulting in their unfortunate demise. According to a report by National Crime Records Bureau (NCRB) India, a total of 1,727 people have died in the police custody or under judicial remand from 2001-2018. Moreover, from 2014-2018 alone, 426 people have died in custody accounting for 26% of such deaths in 18 years.
This article delves into the concept of custodial violence as prevalent in India, while analysing the adequacy of the existing provisions and guidelines for protection against violence in custody. The authors further try to argue that it is the need of the hour to reconsider the guidelines issued by the judiciary in D.K. Basu v State of West Bengal while discussing the same in the light of the application filed before the Supreme Court seeking issuance of fresh guidelines by reviving proceedings in the abovementioned case.
Existing Provisions and Guidelines
Custodial violence, including torture and death in custody, is a blot on the rule of law, which demands that the powers of executive should not only be derived from law but also that the same should be limited by the law. Sec 330, 331 & 348 of Indian Penal Code, 1860 (“IPC”) deal with voluntarily causing grievous hurt and wrongful confinement to extort confession or compel the restoration of property which to an extent help in curbing the menace. Section 76 of Criminal Procedure Code, 1973 (“CrPC”) imposes a duty on police officials to bring the arrested person before the Court without unnecessary delay.
Section 176(1A) of CrPC which replaced section 176(1) of CrPC by the 2005 Amendment provides for a provision to conduct a judicial magistrate’s inquiry into the matters of death, disappearance or rape in police custody. Following the issue “Custodial Crimes” in 152nd Law Commission report, the CrPC (Amendment) Bill, 1994 was introduced by the Union of India and referred to the Rajya Sabha’s parliamentary standing committee where the committee observed that executive magisterial inquiries are highly inadequate and therefore, recommended mandatory judicial inquiries after amending Section 176(1A) of CrPC.
In D.K Basu, the Supreme Court issued some guidelines to curb the atrocities and violence carried out by policemen in custody including preparation of an arrest memo attested by a family member or respectable member of the society containing all the details regarding time and place of arrest; intimation of the locations of the arrestee to one of the family members or friends in practicable time possible; and making the arrestee aware of his rights in custody.
In 2015, the Supreme Court, in DK Basu, issued guidelines in addition to the previous guidelines to put an impediment on the menace. Under these guidelines, the state governments were asked to take steps for the installation of CCTV cameras in police stations as well as consider the appointment of non-official visitors to prisons and police stations in accordance with the relevant provisions of law. However, the problem is that these guidelines lack legislative backing and are not properly implemented. Moreover, in the present scenario when instances of custodial violence and death are increasing at a rapid pace, the existing provisions of law, as well as directions by the judiciary, do not seem adequate to tackle the issue.
Recent application before the SC
Senior Advocate AM Singhvi recently approached the Supreme Court with an application seeking revival of the proceedings in DK Basu for fresh guidelines or directions. The application is filed because despite the already existing guidelines in DK Basu, the number of deaths and cases of custodial violence continue to rise. One of the aims of the application is to make an attempt to further expand and enhance the institutional framework to check the number of deaths and cases of torture in police custody as well as to introduce intrinsic and substantial safeguards to minimize the violence and transgression carried out by them. Therefore, it highlights the need for a robust and uniform system to be put in action immediately.
Another area of concern pointed out in the application is the normalization of custodial deaths/torture which must be prevented and to achieve this objective the existing guidelines are not enough. Unfortunately, in India, it is a very normalized culture due to the lack of one’s own rights, with people often celebrating such “knee-jerk vengeance justice” thereby denying a victim the dignity of a fair trial.
The application suggests numerous modifications in the existing regime including provisions for speedy conduct of enquiry with respect to custodial violence, de-incentivising the police officer under such enquiry, ensuring fair arrest and detention by way of CCTV cameras, etc.
Need for Reforms
The comprehensive guidelines originating from the 1986 case of D.K. Basu v. State of West Bengal were considered a ray of hope for protecting people against custodial torture and violence by the police. Despite the fact that non-compliance with these directions shall result in strict departmental action along with proceedings for contempt of court, custodial violence continued to impair the Indian society. The intention of the Apex Court behind introducing such guidelines was to prevent the atrocities at the hands of the police against people in custody and to protect the fundamental rights of detainees. However, these have been blatantly disregarded by the police, the recent merciless killing of the father-son duo in Tamil Nadu being one of the many cases pertaining to the same issue.
Although, the directions given in D.K. Basu were considered sufficient to curb the abuse of powers by the police officials against people in custody at that time, it is now time to look into the guidelines again and possibly modify them to effectively prevent the unnecessary and excessive use of violence by the police. The application filed by Singhvi who was also the amicus curiae in the D.K. Basu case argues that the present laws and guidelines with respect to the power of arrest and prevention of custodial torture are not sufficient. It places emphasis on the active role of citizens in curbing instances of custodial violence.
The need of “an informed and compassionate citizenry” in the present scenario is rightly felt. There seems to be a common belief among police officers in India that they are entitled to resort to violence instead of following the defined course of justice. The same feeling resonates with majority of the public as well, who glorifies acts of unnecessary use of violence by the police by terming them as their “duty”. A recent example of this is the extrajudicial killing of 4 Hyderabad rape-murder accused in December, 2019 which was lauded by a chunk of citizens of the country.
Fixing the time limit for magisterial inquiry to four months with respect to custodial violence; suspending the policemen named under such inquiry; dis-entitling him from receiving any gallantry award; and installation of CCTV cameras in police stations, prisons as well as dashboard cameras, are guidelines required in addition to the existing ones, as suggested in the application.
Again, a need to incorporate them arises in order to curb violent practices of the police as well as to end the trivialization of instances of violence in the eyes of the public. Moreover, the D.K. Basu guidelines while covering the procedural duties of police officers while arresting or detaining a person, they fail to incorporate substantive obligations which should be followed in order to ensure that the fundamental rights under Article 21 of a detainee are not violated.
It is rather unfortunate for a democracy which ensures certain basic rights to its citizens to be plagued with incidents where the one who is vested with the responsibility to protect the rights of the citizens turn into violators of those rights themselves. For a country to live peacefully without insecurities, it is imperative for the police to perform its functions and duties in an efficient manner. With the increasing cases of custodial torture/violence, it is observed that the prevailing directions are not sufficient to restrain police officials from indulging in such heinous activities. It is vehemently felt that there is a need to introduce reforms in the existing regime governing the powers of the police and to put a beefy and uniform system or mechanism to curb the menace of violence in custody.
India is a signatory to the United Nations Convention against Torture (UNCAT), 1987, but till date, India has not ratified the convention or implemented domestic laws in accordance with the convention. It is high time that the Union government ratifies the convention against torture and incorporate some provisions in domestic Indian Law in accordance with the provisions of the convention.
About the Authors:
Pratyaksh [2018-23] is pursuing B.A.LL.B (Hons) from the National Law University, Jodhpur. His interest is inclined towards Criminal Law.
Parnika [2018-23] is pursuing B.A.LL.B (Hons) from the National Law University, Jodhpur and has a special interest in laws regulating Commercial Transactions.