Accountability for Custodial Violence

India throughout history has seen many instances of custodial deaths but still, the constitutional mechanism has failed in preventing further cases of such heinous crimes, The recent deaths of Jeyaraj and Benniks have alarmed the failure of our systems to hold police accountable. According to Section 46 of CrPC, A police officer cannot use force unless such person resists or attempts to evade the arrest or such person is accused of an offence punishable with death or with imprisonment for life.[1] Every citizen is protected under the article 21 of the constitution against any form of torture, however, the government or the society at large have been adamant about custodial violence because at last, it is a person who is accused of some criminal activity who is being tortured; we are ignoring the fact that every person is innocent until proven guilty.

Statutory Provisions

Sections 330, 331 & 348 of IPC; Sections 25 & 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 186, these statutory provisions are enacted to prevent police officers from using force to get a confession, apart from these statutes, Custodial violence clearly violates fundamental rights and the police officer may be held liable under Part III of the Constitution and the judiciary has backed the prosecution of police officers under public law. For instance, in D.K. Basu vs West Bengal Case, 1997, the supreme court denied the sovereign immunity of the government and ruled that a custodial violence victim can claim compensation from the government under tortious liability. “For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India.”[2]

When a person dies in the custody of police the nearest magistrate can hold a judicial inquiry under section 176(1A) of the Code Of Criminal Procedure[3], however, 1,373 persons have died in legal or illegal police custody since the amendment in the law. But among them, in just 298 cases, states have proceeded with the mandatory judicial inquiry, which is about 21 per cent of the total cases.[4] Apart from judicial magistrate inquiry, the report of each case of custodial death must be sent to the National Human Rights Commission (NHRC), the report must contain the results of the investigation by the magistrate along with the postmortem report. Further, the supreme court laid down guidelines with D.K. Basu vs West Bengal Case, 1997 and the same were incorporated into CrPC in 2008 as section 41b – The laws require police to identify themselves before making an arrest; prepare a memo of arrest signed by a witness and countersigned by the accused person with the date and time of arrest and ensure that it informs the next kin of the arrest and place of detention.[5]

Despite strict guidelines, the authorities cannot follow the procedure or conduct rigorous investigations and prosecute police officials. Since provisions like section 132 and 197 of Code of Criminal Procedure secure police officers against any prosecution brought against them relating to performing official duties, (The National Police Commission has recommended excluding police officers from the protective veil of this sections#[6]).

Accountability of Custodial Violence

We can not deny the fact that police officers can be biased while reporting a criminal act against his fellow police officer, as observed by the supreme court in State Of Madhya Pradesh vs Shyamsunder Trivedi And Ors“Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.”[7]  For instance, with custodial death of Shyamu Singh who died in police custody on April 15, 2012, UP police said that Singh had committed suicide. But his brother had a different story: he said that both the brothers were stripped to their underwear and tortured after their arrest. Media reports have highlighted the involvement of doctors in helping police officers escape accountability, as they manipulate reports according to police officers’ convenience.[8] Further Looking at the ‘crime in India’ report of National crime report bureau (NCRB), out  of 70 custodial deaths, only three cases were reported under ‘sustained during police custody because of physical police assault’ and 49 cases were reported under ‘Death because of illness/ Death in Hospitals during treatment’ and ‘Injuries sustained prior to police custody.’[9]

Police officers have been successful at covering up the acts of their colleagues, henceforth,  Padmanabhaiah Committee (2000) recommended the setting up of District Police Complaints Authority (DPCA) With District Magistrate as Chairman, if the complainant is not satisfied, the complainant should have access to a district magistrate-led independent non-statutory authority.[10] Further, with Prakash Singh & Ors vs Union Of India And Ors[11], The Supreme Court cited the Sorabjee Committee report and recommended the establishment of a district-level Public Complaints Authority to examine the custodial violence complaints and hold the culprits accountable. The government must take certain steps immediately, such as police accountability to the political executive, internal accountability to senior police officers, and independent police authorities. The government has to take certain steps such as accountability of the police to the political executive, internal accountability to senior police officers, and independent non-statutory authority.

Indian legal system lacks regulation on witness safety and victim protection. We have recorded several cases in which witnesses withdraw their statements because of threats and intimidation, especially when the offenders are powerful. In cases of custodial death, the victim’s family becomes more vulnerable especially when they are poor or marginalised. For example, in Human Rights Watch’s investigation into Senthil Kumar’s custodial death, Sasi Kumar (brother of Senthil Kumar) disclosed shocking details,  that he was detained at the Dindigul Taluk police station on 5 April 2010 to stop him from taking part in protests demanding justice for his brother’s death.[12] Considering the seriousness of the situation, perhaps the need for better custodial management is high. In this respect the position of police personnel is crucial. It should educate them on matters relevant to human rights and the repercussions of using third-degree methods during the investigation.

Conclusion

The judicial system is vulnerable to custodial violence, but what is more important is that the perpetrators get away after committing such a heinous crime that violates the fundamental concept of our constitution. We need strict measures to make the offenders pay for their acts,

  1. Proper enforcement of existing laws on arrest and detention.
  2. Following the legal procedures of arresting
  3. Unbiased investigation in custodial death cases
  4. Enforcing supreme court guidelines to hold the perpetrators accountable
  5. Protecting the family of the victim and the witnesses

The Supreme court has always been upholding the rights of a detainee, D.K. Basu vs West Bengal Case, 1997 have laid down clear guidelines on holding police officers accountable for their acts, however, there is a clear implementation failure on the part of the government. Our system has failed to prosecute the perpetrators because of a lack of political will and this issue eliminates the factor of terror in potential acts of custodial death. There is an immediate need to train police personnel in human rights and prison management matters. Appropriate numbers of medical and female staff will be in jails. According to the NHRC, the Human Rights Cells formed by the State Governments will play a more proactive role in improving conditions in the jails, including health coverage and related facilities. State governments should take this issue up as a matter of urgency. It is the government’s job to protect an accused’s rights as he is innocent until proven guilty and if an innocent person dies in police or judicial custody it violates the fundamental idea of the legal system.

One has to note that the law does not allow the use of third-degree methods during interrogation with the view of solving the crime, the end cannot justify the means.


Frequently Asked Questions (FAQs)

  1. Which are the important provisions related to Custodial violence?
  2. Supreme court interpretation on the issue of Custodial violence?
  3. Why do police get away after committing such crimes?
  4. What are the measures to curb such crimes?

References

[1] Sec 46,  Code Of Criminal Procedure, 1973

[2] Shri DK Basu, Ashok K. Johri vs State Of West Bengal, State Of UP on 18 December 1996

[3] Sec 176(1), Code Of Criminal Procedure, 1973

[4] Shantha, S. (2020). Most States Have Flouted Mandatory Judicial Inquiry into Custodial Deaths for 15 Years. Thewire.in.

[5] Sec 41b,  Code Of Criminal Procedure, 1973

[6] Agarwal, B. (2020). Law Against Police Brutality. CCLSNLUJ.

[7] State Of Madhya Pradesh vs Shyamsunder Trivedi And Ors

[8] (2016). India’s Failure to End Killings in Police Custody. Human Rights Watch.org.

[9] Rep. Crime in India, NCRB at 991 (2018).

10] Rep. The Padmanabhaiah Committee on Police Reforms (2000).

[11] Prakash Singh & Ors vs Union Of India And Ors on 22 September, 2006

[12] (2016). India’s Failure to End Killings in Police Custody. Human Rights Watch.org.

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