Introduction | Custodial Death

The law protectors have become the law violaters. Recently, there has been hue and cry about the police brutality and custodial death cases – from Eric Garner to George Floyd, from the Hyderabad encounter case to the Tuticorin custodial death case. These brutalities incidents are not new; these cases have always been there but have come into the reforms limelight recently.

Recently, after bearing the brunt of the protests, the US realised an exigent need for various police reforms and has quickly acted upon it by passing sweeping police reforms. India, however, is still at a standstill position regarding any police reforms. The recent custodial death of father-son duo reiterates once again the urgent need to introduce systemic reforms within the police system in India. It also highlights India’s evident need to enact a law for the prohibition and prosecution of torture and custodial death in compliance with its national and international legal obligations for safeguarding and preserving the right to life.

Although India signed the United Nations Convention Against Torture (UNCAT) in 1997, yet it has not been ratified in two decades. Apparently, India is one of the five countries that has not rectified it; the others are Brunei, Haiti, Palau, and Sudan. Moreover, in the report released by National Campaign against Torture (NCAT) stated that in 2019, 1,731 persons died in police custody in India, i.e., about five people every day. The surging number of cases makes it imperative for the state, as a parens patriae, to bring forth certain reforms and ensure more accountability without any bias.

Rights against Excessive Force used by Police

Excessive force used by the officials is a sign of a totalitarian state, and in a civilized state like India, the use of excessive force is prima facie against the essence of human and civil rights enshrined in Article 21 of the Constitution of India. Various statutory provisions and a catena of judgments from time to time have upheld the right to live with dignity. The court in T.V. Vatheeswaran v. State of Tamil Nadu goes on to extend these basic fundamentals right enshrined in Art. 14, 19, and 21 to the inmates and further stated that the four walls could not restrict the basic fundamental rights, no matter how horrific the prisoner was and what horrific crime it has done.

Time and again, the courts have used their checks and balances power to restrain the police’s unruly and abusive power. In the case of Kishore Singh v. State of Rajasthan, the Apex Court held that the use of third-degree treatment by the police is violative of Article 21 of the Constitution, the court also observed that the police should apply more wits rather than resorting to fists.

There are various soft-law instruments that condemn the police’s abuse of power and India as a UN member state and as a party to International Covenant on Civil and Political Rights has certain obligations to comply with; Article 3 of the Universal Declaration of Human Rights (UDHR) guarantees everyone to have the right to life, liberty, and security. Article 5 of UDHR, as well as Article 7 of The International Covenant on Civil and Political Rights (ICCPR), states that no one should be subjected to torture or cruel, inhuman, or degrading treatment. Also, under Article 3 of the UN Code of Conduct for Law Enforcement officials and UN Basic Principles on the use of force by the law enforcement officials mandates the law officials can use force reasonably only in exceptional cases and must ensure that it does not violate any persons’ human rights.

Impunity: The Culprit of Miscarriage of Justice

The doctrine of Sovereign immunity with the concept that the king can do no wrong provides the state immunity against civil as well as criminal suits. This rule has sharply restricted the situations in which police can be held liable—even for heinous rights violations. The CrPC under Section 197 grants immunity to the judges, magistrate and other public servants laying down the rule which says that they cannot be prosecuted for the official duty conducted upon by them under the law unless the state or the central government says otherwise. Notably, as per Section 107 of CrPC, this provision of immunity is essential for the Public Servants and Judicial Officers considering the nature of their duties and to protect them from the false allegations induced upon them for the acts done by them under the authority of the law.

Instead, Grave human rights abuses occur because officers have little reason to fear any legal consequence, and thus enforcement officials can crush, dissent, and abrogate the rule of law in the name of sovereign duty. The specific goals of doctrine are met if it discourages people from filing or pursuing insubstantial cases, Nevertheless, if the doctrine discourages people from filing or pursuing meritorious cases, the doctrine is not living up to its mark. It works in favour of the government and values the interests of government more than the individuals whose rights have been infringed.

De facto immunity creates a framework of impunity that condones violations of human rights and it is crucial to recognise that this provision affects not only citizens’ fundamental rights, but also society as a whole, thereby damaging democracy and leaving a scar on it.

There are several laws which talk about the restrictions and prosecution of public officials, for instance, Section 49 of the CrPC, lays down that the police are not permitted to use more restraint than is necessary to prevent the escape of the person and to inflict torture upon the detainee in prison is an example of how this power granted to the police officials by the law is being misused. Section 330 of the IPC makes a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Furthermore, Section 29 of the Indian Police Act lays down that’s every police- officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by the competent authority, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable.

If any case of custodial deaths comes to light the whole table shifts to the magistrate as the magistrate inquest is mandatory for any custodial death. Section 174 of the CrPC puts the responsibility of inquest report on the shoulders of the magistrate to find the apparent cause of the unnatural death that occurred in the police custody. However, the burden of investigation is limited to finding the reason for death, and many factors leading to custodial death remains unexplored since there is no formal public scrutiny of in-prison deaths.

The Loophole in the Entire System

It is seen that the deaths are common in custody. In most cases, it does not create any ripple in society and gets passed off as an accepted custodial norm. India’s silent acceptance of torture has made it a public secret. Now the million-dollar question that arises is that, whether it is the lack of law or lack of responsibility on the part of the executive and the judiciary that failed to provide justice. There were enough laws that could punish police officials for the act of brutality that they did, but either the investigation was not fair, and cases were closed, or the judiciary failed to do its part of the job.

According to the National Crimes Records Bureau’s report, it is clear that most of these deaths occur in illegal police custody. The detained persons die even before they are produced before the magistrate. Between 2005 and 2018, a total of 1,727 people died in police custody. But only 26 officers have been convicted so far.

These issues do not come to light unless the hashtags for justice starts trending on social media following the incident. As in the present case of Jayaraj and Bennix, it was only after the case gained publicity that the district police suspended four sub-inspectors. Many brutalities occur in custody but go unreported, and the ones that come to light and in cases where fair prosecution takes place, there is an unavailability of the evidence needed to substantiate the charge of torture or the custodial death and the Policemen being the in-charge of the police station do not find it difficult to manipulate the shreds of evidence. The cases are thus beset by obstructions, witness intimidation and harassment and take decades to reach a verdict.

When the executive fails, it is the judiciary that is expected to heal the wounds but it is not seen efficiently providing the redressal. In the present case of Jayaraj and Bennix, we witnessed an error on the part of the judiciary to perform its duty, due to the coronavirus outbreak, the duo was made to stand at least 50 meters away from the magistrate, who kept them in judicial custody without examining them for injury as required under section 197 of CrPC. It is worrying how often magistrates do not bother to seek an answer for the deaths of those in the judicial custody and take the inquest report as a formality. The police then close files, claiming the deaths occurred due to illness or by suicide, and the courts blindly accept them, and a fair investigation does not take place.

The entire system of democracy is in shambles considering the systematic failures on multiple levels, by police, magistrates and others, unless and until the horrendous cases occur, which then leads to nationwide public outrage, the atrocious act of police remains a ‘public secret’.

Concluding Remarks

Before another Jayaraj and Bennix capture the global attention, there is an urgent need to bring the light of hope in this murky world. This time the pursuit of government to bury this whole act of flout under the garb of providing compensation and providing training programmes to the police personnel have turned out to be a futile one considering the nationwide outrage and this is the perfect time to strike the iron while it is still hot or else it will be too late. In the last 70 years, no noteworthy police reform has taken place to make the police more accountable. Even the Apex Court, in the case Prakash Singh & Ors v. Union Of India And Ors took cognisance and called out, for an effective framework need for making police more accountable against its misconducts. The court also suggested the bifurcation of law and order wing of the police with the investigation wing which means the commission of a separate non-government body which will look into the matter of investigation of the police department. Its high time to constitute the body which will ensure a fair investigation in the case of custodial violence.

Considering the differentiable gap between the ideologies of the British era and the despicable current one, an amendment is required in our IPC and CrPC, even The Law Commission’s 273rd report recognised the need of the amendment, but no step has been taken to amend the IPC.

The parliament is in oblivion as the Anti-Torture Bill lies in the coma for more than a decade now. The Bill puts various stringent retributions that have to be faced by the law enforcing agencies if they fail to abide by the law. The Law Commission has publicly accepted the need of passing a separate law in the realm of custodial violence, even the Hon’ble Supreme Court in its umpteen judgement has pointed out the need of an anti-torture law.

The Indian Government could take some cue from the recent George Floyd Justice in Policing act, introduced in the House of Representatives in the US. The key takeaways from the Bill that the Indian government can adopt are Modifying Qualified Immunity (Section 102), Establishing a National Police Misconduct Registry (Section 201), Duty to Intervene by another official (Section 361), further, CCTV cameras should be installed in the police stations, and dashboard cameras should be installed in the vehicles, and it should be made compulsory for the police to wear body cameras while conducting arrest and interrogating the detainees.

It is frightening to see the law protectors violating the rights of the people whom they have sworn to serve. The idea of torture is an oxymoron to a ‘civilized society’ and a society where justice is denied, and ignorance prevails is not a civilized society. It’s high time to bring forth the remarkable changes before another case garners the global attention and scars the nation. The entire system has to work together to ensure a society free of atrocious acts.

Zero tolerance is the new thumb rule; for THE JUSTICE SHALL PREVAIL.

About the Author 

Chitransh Bhansali [2019-24] is pursuing B.A.LL.B from National Law Institute University (NLIU), Bhopal.

Shivangi Sinha [2019-24] is pursuing B.A.LL.B from Chanakya National Law University (CNLU), Patna.

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