The death of a person in custody violates the basic rights of the citizens recognized by the Constitution of India. Typically, it is difficult to secure evidence against the police responsible for adopting third-degree methods since they are in charge of the police station records. The guidelines given by the Supreme Court under various cases provide protection such as the right to be informed about the grounds of arrest, the right to bail, the right to appoint a person to be informed of the arrest and place of detention, etc. The Constitution of India also provides various rights to a person in custody. This paper highlights the custodial death in India and the provisions relating to it with relevant cases.
Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule of Law. Sometimes, custodial death happens due to not providing proper care at a proper time, due to complications of physical torture by police and some deaths remain suspicious. Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the most prominent factor responsible for deaths in prisons and lock-ups. The incident of custodial death in the world’s greatest democracy has risen. Our Constitution has set out fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of deaths in police custody is on the rise in the past decade.
Many deaths have happened while in custody but no attention has been paid so far. The National Human Rights Commission has proposed that in custodial death cases the police officer in charge must be held liable and not the state. In India, police lock-ups are managed by the police, and such incidents are possible only by their actions. Thus, custodial death is an important issue for a country like India.
The death of a person while in the custody of the police or judiciary will amount to Custodial Death. Custodial Death can happen due to Negligence by the concerned authorities in any form of torture or cruel, inhuman, or degrading treatment by the police officers whether it occurs due to investigation or interrogation, unlawful detention of a person more than a stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian Constitution while they are in custody. They are not deprived of basic human rights except those which are curbed by the court.
Custodial death generally refers to death either in police custody or judicial custody.
Police Custody: A police officer arrests the accused by following the receipt of information or compliant or report by police about crime and prevent him from committing further offenses and brings him to the police station is known as the police custody. In this, the accused is kept in the lock-up.
Judicial Custody: When an accused is kept in jail by the order of the concerned magistrate, then it is said to be under Judicial Custody. When an accused is presented before a magistrate, he can either be sent to jail or kept under police custody by the magistrate.
Methods of Torture by the Police
Torture generally means the action or practice of inflicting severe pain on someone as a punishment to force someone to make him give some information. Due to this, the victims get immense pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit suicide. Torture in itself is harmful.
The various methods used by the police are as follows:
Rape: Rape is one of the prevalent forms of custodial torture. The Mathura rape case, where Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of such custodial torture.
Harassment: In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and beatings by the police. Such actions are prevalent among the police and it leads to many sufferings to the victims.
Illegal Detention: In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his acquittal by the Sessions Court. Such action leads to immense pain and suffering.
Other methods of Torture
As per NCAT director, Paritosh Chakma, torture methods used in 2019 includes applying roller on legs and burning, hammering iron nails in the body, hitting in private parts, stretching legs part on the opposite side, and ‘falanga’ where the soles of the feet are beaten.
Some of the other methods of torture include pouring petrol or applying chili powder on private parts, electric shock, beating while handcuffed, beating after stripping, branding with a hot iron rod, pricking body with needles, inserting a heated metal rod into the anus, forcing to perform oral sex, urinating in mouth, beating after hanging upside down with hands and legs tied, beating with iron rods, pressing fingernails with pliers, and kicking the abdomen of a pregnant woman.
The Bhagalpur Blinding Case
During the investigation, the police had poured acid in the eyes of the hardened criminals intending to discipline them.
Kishore Singh vs the State of Rajasthan
The Hon’ble Court in this case observed 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 irrespective of human rights.”
These methods of torture not only represent inhumane behavior but also display the futile existence of human rights. There is also a need to strike a balance between the human rights of the individual and the interest of the society in combating crime using a realistic approach.
The Constitution of India, 1950
- Article 21
Article 21 provides the citizens of India with the right to life and personal liberty.
D.K. Basu v. State of West Bengal
The Hon’ble Supreme Court 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 Supreme Court in this case laid down certain guidelines to be followed by the Centre and State investigating and security agencies in all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu guidelines” and are as follows;
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear clear identification and name tags with their designation.
- The police officer carrying out the arrest must make a memo of arrest at the time of the arrest.
- A friend or relative or any other person known to the arrestee shall be informed about the arrest as early as possible.
- If the next friend or relative of the arrestee lives outside the district or town, they must be informed through the ‘legal aid organization’ in the district and the police station of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
- The arrested person must be instructed about the right to have informed someone about his arrest.
- An entry should be made in the diary regarding the arrested person.
- The arrestee should be examined at the time of the arrest.
- The arrested person should be subjected to medical examination within 48 hours during his detention.
- Copies of all documents including the memo of arrest should be sent to the concerned magistrate for his record.
- The arrestee should be allowed to meet his lawyer during interrogation.
- A police control room should be set up in all district and state headquarters and information about the arrestee has to be communicated within 12 hours of effecting the arrest to the police control room.
There are certain rights for prisoners conferred in Article 21. They are
- Right to bail
The detention of under trial prisoners in police custody to an indefinite period violates Article 21 of the Indian Constitution. The system of bail operates very harshly against the poor and it is only the non-poor who take advantage of it by getting themselves released on bail.
- Right to free legal aid
Legal aid is a guaranteed fundamental right under Article 21 read with Article 39A of the Constitution. In M.H. Wadanrao Hoskot v. the State of Maharashtra, the court heldthat the right to legal aid is one of the ingredients of fair procedure. This right is the State’s duty and not the Government’s charity.
- Right against Solitary Confinement
Solitary Confinement is a form of punishment where the prisoner is kept isolated from human society. In Sunil Bhatra v. Delhi Administration, the Supreme Court held that Solitary Confinement amount to a violation of the right to life under Article 21 of the Constitution.
- Right against Handcuffing
Handcuffing is to hoop harshly and to punish humiliatingly.
Prem Shankar Sukla v. Delhi Administration
The Supreme Court held in this case that the handcuffing is prima facie inhuman and therefore, unreasonable, and at the first flush, arbitrary. Thus, it should be reported only when there is a danger of escape breaking out the police custody. For this, there must be clear material, not an assumption.
- Right against inhuman treatment:
Kishore Singh v. the State of Rajasthan
The Hon’ble Court declared that the third-degree method used by the police is violative of Article 21 of the Constitution.
- Right against Illegal Detention
Prisoners are illegally confined or detained by police officials.
Joginder Singh v. State of Uttar Pradesh
The Supreme Court in this case laid down guidelines regarding the detention of prisoners. It was held that illegal detention was an arbitrary denial of personal liberty by the state and was a gross violation of Article 21.
- Right to a speedy and fair trial
The right to a speedy trial is an implied fundamental right of a prisoner under Article 21 of the Indian Constitution. It is available to the accused at all stages of investigation, inquiry, trial, appeal, revision, and retrial.
Hussainara Khatoon v. Home Secretary, State of Bihar
The Supreme Court highlighted that the right to a speedy trial though not mentioned explicitly, is implicit in the broad sweep and content of Article 21.
- Right to meet friends and consult a lawyer
The word personal liberty is of the widest amplitude under Article 21 and it includes the right of prisoners to be visited by their friends and relatives but subject to search and discipline and other security criteria. It also includes the right to consult a lawyer.
- Article 20
- Article 20(1) provides that a person should be prosecuted as per those laws that were in force when he committed the offense.
- Article 20(2) provides that a person shall not be prosecuted and punished for the same offense more than once.
- Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself.
- Article 22:
- Article 22 guarantees protection against arrest and detention in certain cases and provides that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest. They shall not be denied the right to consult and defend themselves by a legal practitioner of his choice.
- Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the journey time necessary from the place of arrest to the Court of Magistrate.
The Code of Criminal Procedure, 1973
- Section 49 provides that the police are not permitted to use more restraint than is necessary to prevent the escape of the person.
- Section 50 lays down that every police officer arresting any person without a warrant to communicate to him the full particulars of the offense for which he is arrested and the grounds of such arrest. Further, the police officer is required to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offense.
- Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a person dies in custody of the police.
There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing procedural safeguards to a person arrested by the police.
Guidelines in conducting Magisterial Enquiry
The following are the guidelines given by the National Human Rights Commission which should be followed while conducting the Magisterial Enquiry in case of custodial death or death in the course of the police station.
- The magisterial inquiry must be conducted at the earliest without undue delay.
- The inquiry magistrate must visit the place of occurrence to the acquaintance with the facts on the ground.
- The inquiry magistrate must ensure that the information reaches all concerned with, particularly the close relatives of the victim.
- The inquiry magistrate must cover the aspects such as the circumstances of death, the cause of death, the manner and sequence of incidents leading to death, etc
- The inquiry magistrate must examine and verify records such as inquest reports, post mortem reports, cause of death, medical treatment records, investigation report by the police, forensic examination report, etc.
- The magistrate must examine the family members and other relatives of the deceased, eyewitnesses, doctors, prison officials, independent witnesses, co-prisoners, and any other relevant persons.
The Indian Penal Code, 1860 (IPC)
- A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
- A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
- Once the victim has committed suicide and if it is proved that the police officer has abetted the commission of such suicide, then the police officer will be held liable for punishment under section 306.
Punishment for custodial violence
- If a police officer voluntarily causes hurt or grievous hurt to extort confession, then such police officer shall be punished under section 330 of IPC for voluntarily causing hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
- A police officer can also be punished for wrongful confinement under Section 342 of IPC.
The Indian Evidence Act, 1872
The Indian Evidence Act provides certain provisions regarding police custody.
- The confession by inducement, threat, or promise is considered to be irrelevant in criminal proceedings (Section 24).
- A confession that is made to a police officer shall not be proved against an accused (Section 25).
- Confession made by the accused while in the custody of the police not to be proved against him (Section 26).
Universal Declaration of Human Rights (UDHR), 1948
- Article 5 provides that no person shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.
- Article 9 provides that no one shall be subjected to arbitrary arrest, detention, or exile.
International Covenant on Civil and Political Rights, 1966 (ICCPR)
- Article 5 is similar to that of Article 5 of UDHR.
- Article 10 lay down that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Some other international instruments are Convention against Torture and other Cruel, Inhuman or degrading treatment or Punishment (UNCAT), 1984 and International Covenant on Economic, Social and Cultural Right (ICESCR), 1966 also provides safety to a person.
Compensation to the victim
The court has the power to award monetary compensation in appropriate cases where there has been a violation of the constitutional rights of the citizens. Thus, the court can award compensation to the victims of state violence or the family members of the deceased victim.
People’s Union of Democratic Rights v. Police Commissioner, Delhi Headquarter
A laborer was taken to the police station to do some work. When he demanded wages for the work done, he was severely beaten which lead to his death. The Hon’ble Supreme Court held that the state was liable to pay compensation and accordingly directed the Government to pay Rs 75,000 as compensation to the family of the deceased.
Saheli v. Commissioner of Police
The Supreme Court 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.
Kewal Pati v. State of Uttar Pradesh
The Supreme Court awarded compensation to the widow of an accused who was killed in jail by a co-accused while serving his sentence under Section 302 of IPC as it resulted in the deprivation of his life contrary to law and violation of Article 21.
Data relating to Custodial Death in India:
In India, there were on average 5 custodial deaths per day during 1st April 2017 and 28th February 2018.
According to the National Crime Records Bureau (NCRB), the number of deaths in police custody between 2001 and 2018 was 1,727. Out of which only 810 cases were reported, 334 were charge-sheeted but only just 26 policemen were convicted. It is mentioned in this report that in 2017, 58 custodial deaths were of those who were not even presented before the court of law.
The misery of a father and son in Thoothukudi District, Tamil Nadu:
P. Jeyaraj and his son Bennix were arrested for violating the lockdown rules of the state by keeping the store open despite the allowed hours in Tamil Nadu. They died of police brutality after two days. The lockdown violation charge was the imprisonment of a maximum of three months if they were found guilty. A question arises in this case that “Do the police officers have the authority to resort to violence on the suspects, while they are not yet proven guilty by the court?” The Madras High Court gave a green signal to an investigation against the police officers who were involved. A murder case has been registered so far and five policemen have been arrested.
Today, custodial deaths are prevalent in India. It is one of the worst crimes in our society. Prisoner while in the custody of police is entitled to all rights under Article 21 of the Indian Constitution. Every month a new case is being reported in India. Since the police play a vital role in safeguarding our life, liberty, and freedom, they must act properly. The law cannot deny basic rights like the right to life, liberty, and dignity to someone who is in the police custody and they must be protected.
Frequently Asked Questions
- What is Custodial Death?
The death of a person while in the custody of the police or judicial will amount to Custodial Death.
- What is meant by torture?
Torture means causing painful wounds in the body or soul of a person by the police or investigating to extract information regarding the crime. Torture by police also leads to Custodial Death.
- Whether the prisoners have fundamental rights under the Indian Constitution?
Yes, the prisoner is entitled to have fundamental rights under the Indian Constitution equally as a normal innocent person.
- What are the provisions which protect the prisoners under the Indian Constitution?
Article 20, 21, and 22 of the Indian Constitution protect the prisoners’ rights while they are under custody
- Whether the victims can get compensation for custodial death?
The compensation can be awarded to the family of the deceased victim.
- The Constitution of India, 1950
- The Criminal Procedure Code, 1973
- The Indian Penal Code, 1860
- The Indian Evidence Act, 1872
-  Tukaram and another v. State of Maharashtra, (1979) SCR (1) 810
-  (1993) SCR (2) 581
-  (1983) 4 SCC 141
-  Khatri (IV) v. State of Bihar, AIR 1981 SC 1068
-  AIR 1981 Sc 625
-  AIR 1997 SC 610
- https://www.educentric.in/blogdetails.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal (retrieved on 27-07-2020)
-  AIR 1978 SC 1548
-  AIR 1978 SC 1675
-  AIR 1980 SC 1535
-  AIR 1981 SC 625
-  1994 AIR 1349
-  AIR 1979 SC 1360
-  https://lexforti.com/legal-news/custodial-death-in-india/#_ftn33 (retrieved on 27-07-2020)
-  https://www.latestlaws.com/articles/rights-of-prisoners-against-custodial-torture-in-india-by-shivam-jasra/#_ftn9 (retrieved on 28-07-2020)
-  (1989) 4 SCC 730
-  AIR 1990 SC 513
-  (1995) 3 SCC 600
-  https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece (retrieved on 28-07-2020)
-  https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18 (retrieved on 28-07-2020)
-  https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class (retrieved on 28-07-2020)