Custodial Deaths and Judicial Response

I. Introduction

Custodial death is not only a gross infringement of basic human rights of an individual in Custody but can also be termed as one of the most heinous crime. The literal meaning of the word custody is ‘to take care of something or someone’. In legal context Custody means imprisonment or jail. It can be either judicial or police custody. Custodial death is an unnatural passing off of an individual while in prison. “It is defined as death caused by due to the any form of torture or cruel, inhuman or degrading treatment by the police officers, whether it occurs during investigation, interrogation or otherwise. It is perhaps one of the worst crimes in a civilized society governed by the rule of law.”³

The instances relating to custodial death cannot be and must not be ignored at all. Reason being the when the law enforcement agencies themselves become violators of law it turns into an inauspicious matter of misuse of power and discrimination against caste and devout minorities under the benefit of exemption- all supported by a silent state.⁴ Police authorities are not authorized to plays with the lives and abuse their power but still there are various cases regarding the same matter. The police officials are generally considered as the guardian of law but they at times act in the opposite way and thus falls flat to ensure the very fundamental right to life promised by Article 21 of the Constitution of India.

Human rights are available for prisoners as well and prison torture is itself an evidence of miscarriage of justice to living man. Mere fact of imprisonment does not mean that the fundamental rights have ceased. They remain enforceable though with certain restrictions. Undoubtedly, the police has a major role to play in protecting our life, liberty and freedoms. It is highly required that police must perform its duty appropriately, must not disrespect the human rights of the individuals. They must keep in mind that only the law is supreme and everyone is below the law, not over it. They will equally held responsible for the abridgement of human rights as any other citizen.

As it has been in news time and again that there are huge number of instances of prison torture and deaths but are not reported. The victims of custodial violence more often belongs to poor and backward segments of the society i.e. members of the SCs and STs, tribal women in the north-east, migrant workers, landless labourers with no rich and political background. “Personal enmity, caste and political considerations and at times monetary gains become important considerations for custodial deaths rather than investigation of cases.” The detainees are tormented in order to extract a confession or further information about crime. Very often the inhumane torture methods on the victim results in his/her death. Sometimes Persuasive political persons implicates Dalits and tribal’s, who organize themselves for redressal of grievances, in false cases. In order to escape prosecution the blameworthy policemen conceal information regarding death.⁵

In India, the two latin maxims “salus populi est suprema lex (the safety of the people is the supreme law)” and “salus republicae est suprema lex (safety of the State is the supreme law)” are very important and exist side by side. The prime importance is given to the welfare of the individual than the welfare of the community. However, the State must in its actions be “right, just and fair”. For the purpose of extricating information by practicing any form of torture is not just, fair and reasonable, thus is impermissible, being hostile to Article 21.⁶ “State should provide legal assistance to helpless victims of prison injustice at its own cost and to be protected against torture and maltreatment.”⁷

The reasons leading to death in custody can be multiple such as carelessness by the concerned authorities, violence and wrongdoing on behalf of the authorities, illegal confinement of an individual beyond the prescribed time, coercion driving the person committing suicide so that he may avoid the authorities or punishment⁸. The 152^nd report of Law Commission of India in 1994 dealt with the issue of ‘Custodial Crimes’ and conveyed that, “Regardless of protected and legal arrangements defending the freedom and the life of an individual, the developing occurrence of custodial torture and passing have become an upsetting factor in the general public and the bloody stories of dehumanizing torture, ambush, and demise in the care of police being reported nearly in each morning paper.” The LCI twice (in 113^th and 152^nd report) recommended the inclusion of Section 114-B in the Indian Evidence Act 1972, shifting the Burden of Proof on the police. It was given in that section that “in a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period”.⁹ However, the Parliament did not took up this proposal.

II. Methods of torture leading to deaths

The person in custody are tortured. They have to experience severe bodily, mental and psychological torture. Such brutality leads to death and suicide in prison. The Apex Court in a case stated that “Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of human rights.”¹⁰

In the yearly report¹¹ of National Campaign against Torture (NCAT) published on 26^th of June 2020 stated, “Out of the 125 deaths, 93 persons (74.4%) died during police custody due to alleged torture/foul play while 24 persons (19.2%) died under suspicious circumstances in which police claimed they committed suicide (16 persons), illness (7 persons) and injuries (1 person) while the reasons for the custodial death of 4% persons were unknown,” Different methods of torture utilized by the police authorities are:

Rape- It is an extensive form of prison violence which is committed with both women and men. One of the hapless incident of such custodial torture, where a minor girl was raped by three policemen.¹² Rape is one of the most common crime committed in prison with the prisoners by the prison authorities.

Physical torture and Harassment- In Nilabati Behera v. State of Orissa,¹³ the harassment and beatings by the police caused the death of the victim. Such acts are very common among the police consequent to which the victims have to suffer numerous agonies. In Raghubir v. State of Haryana¹⁴, the court observed that, “the diabolical recurrence of police torture resulting in a terrible scars in the minds of common citizens that their lives and liberty are under a new peril and unwarranted because the guardians of law destroy the human right by torture. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and to commit gruesome of offences against them in reality perpetrate them”.

Illegal detention- In one of the case the accused was confined in prison for fourteen years, in spite of the fact that the Session Court has ordered to discharge the person. The authorities was having no just and reasonable ground for their action. The victim was later on granted compensation. Thus, such illicit detention became a reason for immense pain and torture to the prisoner.¹⁵

According to the Director of National Campaign Against Torture, “the distinct torture methods used in 2019 were hitting in the private part, urinating in mouth, forced oral sex, electric shocks, beating while being hand-cuffed, beating after stripping, hammering iron nails in the body, etc.¹⁶ These ways to torture not only depict inhumane behavior but also shows the pointless presence of human rights. There is a need to employ a realistic approach for the purpose of achieving a balance between right of an individual and the interest of society in combatting the crime.”¹⁷

III. Reasons for custodial violence

Death in custody is not only because of the exercise of force but there are few other factors also capable for the same. Every police officer must have in knowledge all the reasons of custodial death so that they may take proper safeguards and avoid the custodial death. Reasons are discussed below:

1. Improper Search of arrested persons before his entry in police lock-up and thus they commit suicide in the lock-up by cutting their nerves, taking poison etc.

2. Lack of using proper strategy of interrogation except using force.

3. Lack of advance planning for the interrogation.

4. Involvement of such police officers who are not involved in interrogation in writing causes more harm to the detainee.

5. Lack of proper and prompt medical aid and regular medical examination of the injured accused person thus death occurs in police custody due to negligence of the police officers.

6. Lack of tolerance in police work force for the want of quick confession of accused. If the accused refuses to confess as desired by the police, they are tortured and force is used upon them.

7. Absence of supervision by the senior officers amid interrogation.

8. Established practice of utilizing force by the police is common in the department and it is demonstrated by the mere reality that the police have utilized force with solidified criminals as well as with those persons who do not have past criminal record and they died in police custody.

9. Misbehavior of police work force with the arrested person in the lock up have also caused many suicides in the lock-up.

10. Too much eagerness of being successful in the police official have made them disregard law and human rights of other persons and by embrace wrongful means of utilizing force which results in custodial death.

IV. Legislative provisions for prevention of custodial deaths in india

Provisions under Constitution of India which aims to prevent violence in custody are as follows:

1. Article 20 of the Constitution imposes certain prohibition which are directly related to the criminal process. It provides that penal statues cannot be operated retrospectively. It protects the person against getting convicted twice for the same offence and further it protects the person that he will not be forced to give confession which will be harmful for himself.

2. Article 21 of the Constitution states that “no person shall be deprived of his life and personal liberty except according to procedure prescribed by law”. “The procedure established by law has to be just, fair and reasonable.”¹⁸ The Supreme Court broadened the meaning of the term “life” and said “life is something more than mere animal existence”.¹⁹

The Delhi High Court in stated “The sweep of Article 21 is wide and far reaching. It is a great landmark of human liberty and it should serve its purpose of ensuring the human dignity, human survival and human development. The state must strive to give a new vision and peaceful future to its people where they can co-operate, coordinate and co-exist with each other so that full protection of Article 21 is ensured and realized. Article 21 is not a mere platitude or dead letter lying dormant, decomposed, dissipated and inert. It is rather a pulsating reality throbbing with life and spirit of liberty, and it must be made to reach out to every individual within the country. It is the duty and obligation of the State to enforce law and order and to maintain public order so that the fruits of democracy can be enjoyed by all sections of the society irrespective of their religion, caste, creed, colour, region and language.”²⁰

In Nilabati Behera v. State of Orissa²¹, the court laid down, “it is exiomatic that convicts, prisoners or under- trails are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while citizen is in custody. The precious rights guaranteed by Article 21 of the Constitution cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law.”²²

3. Article 22 of the Constitution deals with certain basic rights with regard to conviction. It includes right to be informed of the ground of arrest, to be defended by a lawyer of choice, the laws of preventive detention and presentation the closest Magistrate where the arrest is made within 24 hours after arrest of the person. These provisions are developed with the aim to protecting the detained person from mistreatment that lacks legal support or exceed the suggested limit.

Other Statutory Provisions:

4. Indian Evidence Act, 1872: As per Section 25, a confession to police authority cannot be proven against an individual who is accused of a crime. According to Section 24, a confession caused due to threats from an authorized person in order to ignore a temporal evil would be irrelevant to criminal proceeding. In other words, the evidence accumulated by illegal means and including torture, the courts do not accept such evidence. Hence, Custodial torture is prohibited, though not specifically mentioned but can be understood by the said provisions.

5. Code of Criminal Procedure, 1973: For the sake of ensuring that the arrests are done on reasonable grounds, proper documentation is done, legal representation is available to the accused and to make the procedure transparent, Section 41 of CrPC got altered in 2009 to contain such shield and introduced 41A, 42B, 41C and 41D. Section 46 and 49 of the Code defend the detainees from violence who are not charged of a crime punishable with death or life imprisonment and additionally at some point of escape. Section 54 of the Code largely corresponds to scrutiny in cases of infliction of torture and prison violence. When any accusation of mistreatment is presented by an individual in prison, the Magistrate needs to observe his body then and record the final results and reasons accordingly. It is a right given to the person detained to bring to the notice of the court, if any torture happens with them while in prison and to be examined by doctor at his request. A professional compensation mechanism was also utilized by the courts. Under Section 482 of the Code, the power is given to the High Court to intervene when a complaint of custodial torture is not entertained by the Magistrate according to the procedure prescribed.

Another important provision regarding custodial torture leading to demise in Section 176 of the Code where a mandatory magisterial inquiry must take place on loss of life of an individual in custody. Section 167 and 309 of the Code, the purpose of which is that the accused persons must appear before the court and their rights and interests can be safeguarded because detention falls under their authority.

6. Indian Police Act: Action 7 and 29 of the Act provide who lacks proper care in the performance of their obligation or unsuitable to discharge the same shall be subjected to dismissal, penalty or suspension of police officers.

7. Indian Penal Code (IPC), 1860: Section 330, 331, 342 and 348 of the IPC are formulated in a way so that deterrence effect is created in police officer, who has the power to detain a person for the purpose of interrogation while investigating a crime, so as to avoid methods like third degree that causes ‘torture’.

NHRC General Instructions regarding intimation of Custodial Deaths: The National Human Rights Commission²³ furnished basic directions in 1993 that “within 24 hours of occurrence of any custodial death, the Commission must be informed about it. This information was to be followed with a Post-mortem Report, Magisterial Inquest Report/Videography Report of the postmortem etc. All the reports including post-mortem, videography and magisterial inquiry reports must be sent within two months of the incident. The postmortem reports have to be sent in a new proforma, designed by the commission, which has already been circulated to all the concerned authorities. Further, in every case of custodial death, a magisterial inquiry has also to be conducted as directed by the Commission; it should be completed as soon as possible and in such a way that it is also made available within the deadline of two months set by the commission. In some cases of custodial death, and after the post-mortem, the viscera are sent for examination and a viscera report is called for. However, the viscera report takes some time in being received. The Commission has therefore clarified that the post-mortem reports and other documents should be sent subsequently as soon as it is received.”

National Crime Records Bureau (NCRB) data of 2018 reflects that “the national figure for custodial deaths is 70. But the same year data from the National Human Rights Commission, as reported by an NGO called the National Campaign Against Torture (NCAT) shows 1,966 deaths in police and judicial custody as registered by the NHRC. In 2019, this figure stood at 1,723 deaths.”²⁴ “Among the states, Uttar Pradesh topped in deaths in police custody in 2019 with 14 cases, followed by Tamil Nadu and Punjab with 11 Cases each: Bihar and Madhya Pradesh with nine cases each; Gujarat with eight cases: Delhi and Odisha with 7 cases each; Jharkhand with 6 cases; Chattisgarh, Maharashtra and Rajasthan with 5 cases each; Andhra Pradesh and Haryana with four cases each; Kerala, Karnataka and West Bengal with three cases each: Jammu and Kashmir, Uttarakhand and Manipur with 2 Cases each and Assam, Himachal Pradesh, Telangana and Tripura with 1 case each.”²⁵

In 1977, the UNCAT (United Nations Convention Against Torture) was signed by India. Although, it need to undergo ratification. Then, in 2010 Lok Sabha consented the Prevention of Torture Bill and it was afterward presented in Rajya Sabha, then it was sent to Select Committee. Even after the submission of the report of the committee, there was no action taken. In 2017, 273^rd amendment and an accompanying draft torture law was submitted by the law commission. Based on this development, seeking the enactment of torture law by presenting a petition in the Supreme Court. To one’s dismay, the petition was rejected on grounds that the court cannot force the government to make law by ‘Mandamus’. Ratification of treaty depends on the government/executive body of the state and that it was a policy of matter. Likewise, many other petitions were filed but those petitions also got rejected.²⁶

V. Obligation towards international regulation

Accoding to Article 51(c) of the COI, the State is duty bound to effectuate the internationally recognized rules and principles and Parliament is enabled to legislate for implementation of such International Conventions and recognized principles on account of “Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution”. Consequent to which India is legally bound to fulfil within proper time limit with certain International Regulations, such as “International Covenant on Civil and Political Rights, 1966 (ICCPR)” and “Universal Declaration of Human Rights, 1948(UDHR)”.

Recognizing international convention in respect of Article 21, the Apex Court in Charan Lal Sahu v. UOI²⁷, observed “India is committed to uphold human rights as a part of long-standing heritage as enshrined in our constitutional law. Acknowledgment of the inbuilt dignity and equal and inalienable rights to the citizens in the foundation of freedom, justice and peace in the world. Judiciary should step up to violation of human rights by exercising its majestic judicial authority.”

Article 7 of the ICCPR, states that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”. Article 9 of the UDHR, states that “no one shall be subjected to arbitrary arrest, detention or exile”. It also provide that “everyone is entitled to a fair and public hearing by an independent and impartial tribunal”²⁸ and “no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.”²⁹

ICCPR and UDHR specifically prohibits violence or brutal behavior or arbitrary penalizing. Thus the provisions in the conventions need to be duly complies as it is compatible with the fundamental rights and in consonance with its standards.³⁰

“The Code of Conduct for Law Enforcement Officials”, “the International Human Rights Standards for Law Enforcement”, “the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment” and “the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials” are some of the internationally recognized human rights conventions that address the problem of exercise of pressure by law enforcing agencies, which includes police. These conventions are designed to uphold the respect to the human rights of people in custody, it has emphasized upon how much force is necessary and in what proportion by the police. Since now it has been so long for these International law to exist and has taken place as customs, the Indian government needs to work in order to implement them at the domestic level as well.³¹

VI. Comparison with other countries

United Kingdom: The United Kingdom has added sections into the Criminal Justice Act of 1988, in conformity with its international obligations laid down the legislative structure state “subject to specified conditions, and upon receipt of applications, shall pay compensation to a person who has suffered punishment as a result of a wrongful conviction, that was subsequently reversed or pardoned on the ground that there has been a miscarriage of justice-where a new fact came to light proving beyond reasonable doubt that the person did not commit the offence”.

There are several factors that needs to be considered during the calculation the compensation amount that includes loss of prestige or such other damage, the gravity of the crime, strictness of the punishment etc. The sections prescribes what would be the overall limit for compensation (the distinction is done on the basis of the time period for the imprisonment i.e. less than ten years or ten years or more).

The UK Police Act, 1996, puts a liability on the “chief officer of police” regarding any illegal act of persons working according to his guidance and supervise in discharging the duty, “in like manner as a master is liable in respect of torts committed by his servants in the course of their employment; and, accordingly shall as in the case of a tort, be treated for all purposes as a joint tortfeasor.” In addition, the settlement amount is provided to the victims for such cases from the police funds.

Germany: The provisions regarding “liability in case of official breach of duty” has been laid down in Civil Code of German called “Burgerliches Gesetzbuch (BGB)” which states that “If an official , intentionally or negligently, violates his official duty towards a third party, he shall reimburse the third party for resulting damage. If the official is only liable for negligence, he may only be charged if the injured person cannot obtain compensation in any other way.”

USA: In USA, instances of failure of justice dealing with acts done against the law with the person in custody is dealt by compensating the victim. “In the federal sphere, a claimant is eligible for relief under this law on the ground of pardon for innocence, reveral of conviction or of not being found guilty at a new trial or rehearing. These claims lie in the US Court of Federal Claims. The code provides for a fixed compensation amount depending on length of incarceration.”³²

VII. Judicial response

The Supreme Court has been dealing with the cases in which atrocity of police personnel is the matter-in-issue. Various principles have been laid down by the court and has reproved them on various instances.

The Hon’ble Court issued the certain guidelines for the enforcing fundamental rights in an effective manner. The implicit rights provided in Articles 21 and 22(1) of the Constitution are obligatory to be essentially preserved with due diligence. “The police officer shall inform the arrested person when he is brought to the police station of his rights. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Article 21 and 22(1) and enforced strictly. It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.”³³

In a case death sentence was awarded to two policemen by CBI court for causing the death of a worker of a metal shop. The court believed he died in custody. Justice J Nazar while sentencing said: “this is a brutal and dastardly murder by accused. The act of accused persons would definitely adversely affect the very institution of police department. If the faith of the people in the institution is lost, that will affect the public order and law and order, it is a dangerous situation.”³⁴

The Court in the very famous case of DK Basu v. State of West Bengal³⁵, issued certain guidelines and brought improvement in the working system of the police which are as follows:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name-tags with their designation.

2. The police officer carrying out the arrest of a person must prepare a memo of arrest and it must be attested by at least one witness.

3. A friend or relative or another person, known to the arrestee or has an interest in his/her welfare shall be informed as early as possible about the arrest.

4. If the next friend or relative of the arrestee lives outside the district or town. They must be informed by the police through ‘legal aid organization’ telegraphically, within 8 to 12 hours during the arrest.

5. The arrestee must be instructed about the right to have someone informed about his/her arrest or detention, as soon as he/she is put under arrest or is detained.

6. An entry must be made in the diary regarding the arrest of the person.

7. On request of the arrestee, he/she should be examined at the time of the arrest.

8. The arrest should be subjected to medical examination within 48 hours during his detention.

9. All documents including the memo of arrest should be sent to the concerned magistrate.

10. The arrestee may be permitted to meet his lawyer during interrogation.

11. A police officer causing the arrest shall provide ‘information regarding the arrest’ and ‘place of custody’ of arrestee within 12 hours of affecting the arrest to the police control room.”

In Munshi Singh v State of Madhya Pradesh³⁶, that, “the dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system… the concern which was shown in Raghubir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in the cases of Bhagwan Singh v. State of Punjab, Pratul Kumar Singh v. State of Bihar, Kewal Pati v. State of UP, Inder singh v. State of Punjab, State of MP v. Shyamsundar Trivedi and then by now celebrated decision in the landmark case of DK Basu v. State of West Bengal seems ‘not even to have caused any softening of attitude in the inhuman approach in dealing with person in custody’.”

The court further observed “Rarely in cases of police torture or custodial passing of a person, is direct visual evidence available about the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of fellowship, it isn’t obscure that police faculty want to stay noiseless and as a general rule even deviant reality to spare their associate. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged. The courts must not dismiss the way that passing in police custody is maybe one of the most noticeably bad sorts of wrongdoing in a humanized society administered by the lead of law and represents a genuine danger to a deliberate edified society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an attack on human respect. The excess use of power by police and the maltreatment of detainees/under trial prisoners or suspects create an image in any nation that the men in ‘khaki’ is to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundation of the criminal justice-delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The court must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day, for anyone to reckon with.”

In Yashwant & Others v. State of Maharashtra³⁷, where the conviction of nine Maharashtra cops was upheld by the Supreme Court in 1993 in connection with custodial death case and the term for imprisonment was enhanced from 3 to 7 years each. It was observed that such incidents which have the involvement of the police in unlawful acts have the tendency to take away people’s trust from criminal justice system. The Supreme Court emphasized on “with great power comes great responsibility”, which extending the term for imprisonment. The court held the police liable under Section 330 of IPC that deals with causing hurt voluntarily in order to extract confession.

The Apex Court in a case laid down that “every state should have a Police Complaints Authority where any citizen can lodge a complaint against policemen for any act of misdemeanor. These are external bodies to receive and inquire into people’s complaints of police misconduct on issues ranging from custodial rape/attempt to rape/death, grievous hurt, and corruption to illegal arrest or detention.”³⁸

Precedents in which the courts concept of grant of compensation to the victims of violence and deaths in custody are as follows:

In Nilabati Behera v. State of Orissa³⁹, directed that: “A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in Private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental right. There can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for the contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Article 32 and 226 of the Constitution.”

Further it was observed: “Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stem from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give-relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.”

The Apex Court in Saheli v. Commr of Police⁴⁰, “directed the Delhi Administration to pay Rs. 75,000/- as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer”.

In PUDR v. Police Commissioner⁴¹, where “the laborers were forced to work in police station without any wages. When the labourers demanded the wages they were beaten up and the women labourers demanded the wages they were beaten up and the women labourers were stripped of their clothes and thrashes in the police station. In this atrocity one labourer by name Rama Swarup succumbed to the injuries. On these facts the Supreme Court ordered for payment of Rs. 50,000/- to the dependants of the deceased and the women whose clothes were stripped off was awarded Rs. 5,000/- as compensation. Eight other labourers who were forced to work were paid Rs. 25 per day as wages.”

The Apex Court ordered “the petitioner to be released immediately who was kept in jail for nearly 14 years after his acquittal and also directed the state to pay him Rs. 35,000 as compensation for deprivation of his liberty.”⁴²

In a case 2 policemen were sentenced as they were accused of causing death in custody by extremely beating suspect for extraction of confession by the Supreme CourtThe court expresses its grave concern and observed: “Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj”.⁴³

In a case Shakila Gaffar Khan v. Vasnt Raghunath Dhoble⁴⁴ and Others, appellant filed a private complaint in which custodial torture was alleged to have been done to her husband due to which he died in hospital within two days of release on bail. The Apex Court, though agreed that the death of appellant’s took place due to the torture in custody but did not made the accused legally responsible for it, However, on the facts of torture in custody was considered and compensation was granted to the widow.

After studying the judicial precedents the following inferences is drawn:

Vicarious liability of the State: By the reason that the state takes an individual in custody, it turns out to be the responsibility of the state to ensure their safety and security. Thus, there arises vicarious liability of the State if any harm is caused to the person in the custody either by act or omission of the police authorities

Liability under public torts: There is a difference of liability for infringement of basic human rights under the Private torts and Public Torts. In a civilized state, it is essential that the rights and interests of the public are protected. In the instance where breach occurs of public law duty the blameworthy person is held liable for exemplary damages.

Recovery of amount of compensation from wrongdoer: As per the rule of vicarious liability, the state becomes responsible for the acts of police and grants compensation to the victim. But the State is authorized to recover from the negligent official the amount which the state have paid to the victim.

VIII. Committee recommendations for police reforms

1. Gore committee on police training (1971-73) – Recommended that Police training must not only be confined to law and order and prevention of crime but they must also be made to learn and understand about human behavior.

2. National police commission 1977 – Recommended prevention of illicit political and bureaucratic interruption in the work and duties of police.

3. Padmanabhaiah Committee 2000 – Recommended that as the police have to deal with the public on regular basis, there training must involve learning of soft skills. Constable and other police persons must bear good communication, counselling and leadership skills,

4. The ARC recommended crime investigation must be separated from other police functions which includes maintaining law and order etc.

IX. Suggestions

The method of working some police officials are profoundly abhorrent and unpardonable. Therefore, appears very little chances to establish accountability of the police department to disable the utilization of pressure for the purpose of extraction of truth. There must be a post Custody Officer in the prison, whose duty would be to ensure the safety of the prisoner. Installation of CCTV cameras in the cars and uniform of police officials should be mandatory. It will serve dual goals, firstly a complete and comprehensive observance and secondly, lower the chances of corruption. It must be on the police, the burden of proving that for the death in custody the police is not responsible.

A complete medical history of the prisoner must be maintained by the jail authorities including the records of treatment, follow-up, any operative measures taken etc. Whether the person is alcoholic or drug addictive should also be mentioned in the record. If the prisoners having any psychiatric sickness, it must be recorded with due consideration. In order to provide adequate medical facilities to the prisoners there must be doctors and proper services in the prison. There must be proper dietary plan as per the ailment the prisoner is suffering from. The system and structure of prison requires great changes suitable with present scenario. For the reform in prison system new committee should be set up and their recommendations must be followed.

Those who are given the responsibility of the people in custody must ensure essential aids regarding heath and must keep a check when medical intervention is required. Online record of the cases which are pending must be maintained which must include the name of the police officer on who is alleged or charged for the abuse of power along with the charge. It is very necessary that the people have trust in the police authorities and to build the same measures are required to be taken to hold them accountable for their acts. It is necessary that the police authorities are time and again reminded that no one is above the law and the violators of law have to confront punishment for so.

The working hours of police especially of low ranks are not satisfactory. They are indeed not paid well. Therefore, it is the want of the hour to restrain the time of work for police with periodic holidays. It must be ensured by the government that humanely working conditions and no exterior interference must be available for the police or any of the governmental institution. Favorable working conditions will boast the capabilities and proficiency of the police in fulfilling their obligations in an effective manner.

In order to improve the society not only the government but the people also needs to be aware and cognizant to ensure that human rights of any person must not be disrespected. It can be accomplished by implementing changes from the ground level. The educational institution must add in their curriculum regarding the basic human rights and for the present in different institution training programs should be conducted. Research must be undertaken by academic institution in order learn on different aspects of condition of victims of custodial crimes and how justice can be served to them.⁴⁵

“The 273^rd Law Commission of India Report needs to be implemented which prescribes that those accused of committing custodial torture- be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent”.⁴⁶

A notice has been issued by the Supreme Court to the Union and States as a result of a petition asking “a mandatory judicial probe in cases related to custodial deaths, rapes, or disappearances which pointed out that Section 176(1A) which was inserted in the Code of Criminal Procedure in 2006 to address the issues of custodial deaths and rapes, has not been executed till date”. It make mandatory for a magistrate to conduct an inquiry if during the police or judicial custody any death occurs or a rape is committed with the person.

Conclusion

The effective prevention of misuse of authority by the police authorities cannot be done totally, as the compliance to the law demands commitment from the society as a whole to the human rights and to the freedom and liberty of an individual. For the sake of reducing the violation of human rights in the custody we need strict laws and it must be ensured by the authorities that the maximum implementation of those laws are done to minimize such cases.

The rule of live and let others live with human dignity must be so recognized by each and every person of the society as it is the paramount rule in the concept of human rights. This rule should be recognized as “philosophy of life” by every person in the society including those who have power of law enforcement. The police is also a part of the same society and need to follow it in a much strict sense. The Constitution of India does not deny dignity even to a criminal because of the mere fact that due to certain circumstance the person has turned into criminal. Police authorities must avoid by any means brutality, barbarity, outraging the modesty in police custody. The police need to learn to do its duty in a humane, tolerant and dignified manner.

Time and again the Apex Court has extended the ambit and protected of the basic rights of human promised by the Constitution. Being a welfare state, the State must endeavor to balance within the rights and responsibilities of a person and state respectively. The Courts by interpretative measures have established the grant of compensation as a remedy, even though the Court has not been steady in granting the same. The court has evolved the grant of compensation as a relief but not as a compulsory relief. However, the court has given sufficient justification for granting compensation to the victims. The remedy of granting compensation serves dual purpose deterrent as well as restitution. The problem persist that the constant use of remedy of compensation may frustrate its purpose. It may give the apprehension in the mind of the wrongdoer that they will later on compensate for their act by giving money. Custodial death will be custodial death whether it is accidental or intentional or caused by any other reason. The question remains can a life which is lost be compensated?

No doubt the condition is awful in India, but it can be improved by taking strict steps in this direction. The nation should now adopt few safeguards and make the police authorities accountable. The time has come to transform the police from ‘Ruler’s police to People’s Police’.

*****

X. References

1. https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-

2. https://poseidon01.ssrn.com/delivery.https://shodhganga.inflibnet.ac.in/bitstream/10603/89148/17/17chapter%209.pdf

3. http://lawcommissionofindia.nic.in/101-169/Report113.

4. http://www.uncat.org/press-release/press-release-india-records-daily-ve-deathsin-custody-uttar-pradesh-tops-deaths-in-police-custody-during-2019/

5. http://www.time8.in/india-records-daily-five-deaths-in-custody

6. https://medium.com/the-%C3%B3pinion/custodial-death-a-norm-or-an-exception-ee4f0487260a

7. https://lexforti.com/legal-news/custodial-death-in-india/#_ftn65

8. https://moderndiplomacy.eu/2020/07/21/custodial-torture-and-human-rights-the-indian-narrative/

9. https://www.indialegallive.com/top-news-of-the-day/making-the-state-culpable/

10. https://shodhganga.inflibnet.ac.in/bitstream/10603/75380/16/16_chapter%208.pdf

11. https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-violence

12. https://indiankanoon.org/docfragment/1628260/?formInput=custodial%20death%20cases

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Footnotes

1. Author is a student at Amity Law School, Noida, India.

2. Author is a student at Amity Law School, Noida, India.

3. D.K. Basu v. State of West Bengal., (1993) 2 SCC 746. ↩

4. Arsheen Kaur, Custodial Deaths in India are a Cold-Blooded Play of Power and Class, available at https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class accessed on 28.09.2020. ↩

5. Amnesty International, Human Rights in India, Vistaar Publication, New Delhi, 1993. ↩

6. Custodial Death and Judicial Response in India, available at https://shodhganga.inflibnet.ac.in/bitstream/10603/89148/17/17chapter%209.pdf accessed on 28.09.2020. ↩

7. Sheela Barse v. State of Maharastra, ↩

8. Custodial Deaths, available at https://poseidon01.ssrn.com/delivery.https://shodhganga.inflibnet.ac.in/bitstream/10603/89148/17/17chapter%209.pdf accessed on 28.09.2020. ↩

9. Law Commission of India, One hundred and thirteenth Report on injuries in Police Custody, available at http://lawcommissionofindia.nic.in/101-169/Report113.pdf accessed on 30.09.2020. ↩

10. Kishore Singh v. State of Rajasthan, AIE 1981 SC 625. ↩

11. Available at http://www.uncat.org/press-release/press-release-india-records-daily-ve-deathsin-custody-uttar-pradesh-tops-deaths-in-police-custody-during-2019/ accessed on 29.09.2020. ↩

12. Tukaram and anothers v. State of Maharashtra, (1979) SCR (1) 810 ↩

13. Nilabati Behera v. State of Orissa, (1993) SCR (2) 581. ↩

14. Raghubir v. State of Haryana 1974 AIR 1516. ↩

15. Rudal Shah v. State of Bihar, (1983) 4 SCC 141. ↩

16. Debananda Medak, India records daily five deaths in custody available at, http://www.time8.in/india-records-daily-five-deaths-in-custody/ accessed on 28.09.2020. ↩

17. Joginder Kumar v. State of U.P, (1994) 4 SCC 260. ↩

18. Maneka Gandhi v. Union of India, AIR 1978 SC 596. ↩

19. Kharak Singh v. State of UP, AIR 1983 SC 83. ↩

20. Bhajan Kaur v. Delhi Administration, 3 (1996) CLT 337. ↩

21. Nilabati Behera v. State of Orissa, 1993 SCR (2) 581. ↩

22. https://indiankanoon.org/docfragment/1628260/?formInput=custodial%20death%20cases accessed on 30.09.2020. ↩

23. Fresh guidelines issued regarding intimation of Custodial Death available at https://nhrc.nic.in/press-release/fresh-guidelines-issued-regarding-intimation-custodial-death accessed on 29.09.2020. ↩

24. Mohammed Kudrati, Custodial Deaths: Official Data does not reveal the Full Picture, available at https://www.boomlive.in/fact-file/custodial-deaths-official-data-does-not-reveal-the-full-picture-8734?infinitescroll=1 accessed on 29.09.2020. ↩

25. Inderjit Badhwar, Making the State Culpable, available at https://www.indialegallive.com/top-news-of-the-day/making-the-state-culpable/ accessed on 29.09.2020. ↩

26. Piyush Singh, Custodial Death: A Norm or an Exception? Available at https://medium.com/the-%C3%B3pinion/custodial-death-a-norm-or-an-exception-ee4f0487260a accessed on 28.09.2020 ↩

27. Charan Lal Sahu v. Union of India, 1988 AIR 107. ↩

28. Article 10, Universal Declaration of Human Rights, 1948. ↩

29. Article 11, Universal Declaration of Human Rights, 1948. ↩

30. Vipul Pathak & Khushbu Sangwan, Custodial Death in India- When our saviour becomes a slayer, available at https://lexforti.com/legal-news/custodial-death-in-india/#_ftn65 accessed on 28.09.2020. ↩

31. Akshita Tiwary, Custodial Torture and Human Rights: The Indian Narrative, available at https://moderndiplomacy.eu/2020/07/21/custodial-torture-and-human-rights-the-indian-narrative/ accessed on 29.09.2020. ↩

32. Inderjit Badhwar, Making the State Culpable, available at https://www.indialegallive.com/top-news-of-the-day/making-the-state-culpable/ accessed on 29.09.2020. ↩

33. Joginder kumar v. State of UP and others, 1994 AIR 1349. ↩

34. J Prabhavathiamma v. The State of Kerala & Others, CrL RP 2902 of 2007. ↩

35. DK Basu v. State of West Bengal 1997 (1) SCC 416. ↩

36. Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999. ↩

37. Yashwant and Others v. State of Maharashtra, (2018) 4 MLJ. ↩

38. Prakash Singh and others v. Union of India and Others, (2011) 14 SCC 33. ↩

39. Nilabati Behera v. State of Orissa, 1993 SCR (2) 581. ↩

40. Saheli v. Commr of Police, 1990 AIR 513. ↩

41. PUDR v. Police Commissioner, (1989) 4 SCC 730. ↩

42. Rudul Shah v. State of Bihar, (1983) 4 SCC 141. ↩

43. Gauri Shankar Sharma v. State of UP 1990 AIR 709. ↩

44. Shakila Gaffar Khan v. Vasnt Raghunath Dhoble, (2003) 7 SCC 749. ↩

45. https://shodhganga.inflibnet.ac.in/bitstream/10603/75380/16/16_chapter%208.pdf accessed on 30.09.2020. ↩

46. Custodial Violence, available at https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-violence accessed on 30.09.2020. ↩