“If I can love myself despite my infinite faults, how can I hate anyone at the glimpse of few faults”– Alexander the Great. It is said that whoever has the utmost power, ends up committing some atrocities or cruelty against humanity. Handling power with the truest of intention and integrity is hard and seems impossible nowadays. Though even after several judgments and amendments stating that the usage of 3rd degree torture against alleged accused in the police stations is to be avoided; no real implementation is ever seen. The biggest irony to this situation is that the crime said to be committed by the accused is committed against him by the policemen; if the caretakers of the society end up committing the same crime, then what really is the difference. The root cause of such severe violence or torture is extracting information or finding leads of the case. The practice of such torture is a clear violation of human rights due to which it has drawn attention of Human Rights Commission, Media, Public and even judiciary which just shows the gravity of the subject. ‘Torture’ basically means inflicting pain or suffering upon someone either physically, mentally or psychologically; with the aim to force the other person to do or say something against his/ her consent. Being a policeman is hard, specially when they are limited in number and the crimes are increasing at a much faster pace; the will and pressure to crack the case is even higher, at such a scenario the only option they see feasible is 3rd degree torture which would extract the information fast. This article is a detailed analysis of the harsh reality of custodial deaths in India.
The Need for Jails
The general idea of building a jail or police custody was to infringe or detain the guilty person from moving freely in the society. Jeremy Bentham, a philosopher, came up with an idea of building a prison, and thereby keeping all the accused persons at one place until their final punishment is decided and carried upon. The meaning and idea of prison has changed drastically from history to now. The eyes with which we viewed the prisoners back in the days have changed. We are more sympathetic, reasonable and instead of punishing them we want to reform them. In early days of history, the only viable punishment was death sentence or lifetime slavery; keeping them alive and feeding them for free felt like a futile decision; the prisons used to be stationed in underground dungeons where they will be spending their entire life. After the advent of democracy, Greece made an exception to such practice and made the prisons in isolated places where the family and friends can visit the prisoners. Slaves were not such a big concern in earlier days; if a person is left with nothing and still has something due to pay, the simplest solution they could come up with was being a slave and working for them for free. The harsh conditions faced by the prisoners during those days made a divergent impact on the society; people were scared to go to the prison because there was no coming back from that place. Many leaders and activists started to revolutionize this narrow idea, and propounded that it is inhuman and cruel on their part to make the prisoners slave or mass murder them instead of reforming them and doing a favour to the society. Nevertheless, all this did not turn out to be so fruitful, and countries continued to use imprisonments as the widely accepted form of punishment.
Judicial Custodial Death
Understanding the concept of custody is important, custody can either be in police or judicial. The death, if it occurs during judicial custody, will be called ‘Judicial Custody Death’. Once the accused is sent to judicial custody, the police does not have any liberty with the accused; in order to investigate the accused, the police has to take permission from the jail authorities first, which limits the probability of harassing or abusing the accused to extract the information. The death can be natural or unnatural in nature; if it’s a natural death then the state cannot do anything and some states give nominal compensation to the deceased family. In case of unnatural death of a prisoner which includes suicide, medical negligence, murder or accidental death, the Judicial Magistrate u/s. 176 of CrPC can have a magistrate enquiry regarding the death. The state gives compensation to all deceased prisoners in case of unnatural death.
Remedies against Custodial Crimes
By virtue of the Universal Declaration of Human Rights, 1948, it is the responsibility of the state to protect the rights of every individual. Part III of the Constitution of India, 1950 also deals with the fundamental rights which are guaranteed to all citizens and its safeguard is the duty of the welfare state.
ARTICLE 20: This Article protects the person from ‘Double Jeopardy’ i.e., no one person shall be convicted for the same crime twice. It protects the person from self- incrimination and police personnel continue extortion to make him confess to the commission of crime.
ARTICLE 21: This article ensures the right to life and personal liberty. The torture practiced against the alleged accused in the police stations is also against this Article. Even the state administrative body cannot assault or torture the person in custody which has been explained in detailed in the case of DK Basu vs. State of West Bengal.
JOGINDER KUMAR v. STATE OF UTTAR PRADESH:
In the case of Joginder Kumar vs. State of Uttar Pradesh, the Court said that the rights entrusted by Article 21 and Article 22(1) by the Constitution of India to be taken as their utmost responsibility and to ensure their implementation on the ground, the police personnel have to follow certain guidelines entailed by the Court, namely,
- The arrested person shall be informed as to why he is arrested.
- The diary must contain the names of whoever has been informed of the arrest.
- The arrestee is allowed to meet his advocate during interrogation.
- The arrested person shall be medically examined at the time of arrest to see the injuries which shall be attested by both the police and arrestee.
- Police personnel shall wear clear, visible and accurate name tags with their designation.
- The arrestee shall undergo a medical examination every 48 hours.
- Copies of all the documents w.r.t arrest shall be duly sent to the local magistrate.
- The arrestee shall be informed of all the rights he endures after his arrest.
- A memo of arrest shall be prepared and it should be attested by at least one witness.
DK BASU v. STATE OF WEST BENGAL:
Mr Basu, the Executive Chairman of West Bengal Legal Aid Service wrote a letter to the CJI regarding the increasing custodial death and mentioned how deaths in ‘lock-ups’ are openly disclosed giving a free pass to the wrong doers and flourishes their ill-minds. This letter was used as a writ petition and notice was issued to the state and Law Commission of India. Once the matter was out in the open the state denied the charges and said that law is being misled and misconceived in some way. Several observations were made while the case was going on in the court and Articles 20(3), 21 and 22 were observed thoroughly. The court held that any form of cruel or torture against a person, either degrading or inhuman treatment would fall under Article 21 of the Constitution. The Court specifically mentioned that any person be it convicts, undertrials or prisoners would not be denied the rights guaranteed under Article 21 of the Constitution.
The Mathura Rape case brought an essential amendment u/s. 376 of the Indian Penal Code wherein custodial rape has been penalised committed by police personnel. This was a much-awaited change because custodial death also proves that people ultra vires used their powers and it was only a matter of time when the Apex court would be flooded with cases related to rape by police personnel.
There have been plethora of cases wherein due to the negligence or lack of humanity, several prisoners or accused have lost their lives; the state government can do all its enquiry and render compensation as a relief to the next of kin of deceased, but it could all be avoided if the police personal could have been more sincere to their jobs and adhere to the fact that they are in position to punish them in any form for whatsoever crime they may have committed.
In the case of Harbans Kaur v. Union of India, the deceased was called by a police constable and thereafter nobody was able to reach him. After various searches, a habeas Corpus was filed and the SC ordered an enquiry to find out the whereabouts of the person and whether he was beaten by the police which ultimately caused his death. The High Court in this case directed that a thorough examination of the matter be held and book the police personnel whose negligence or misconduct led to such sorrow result.
India is a democratic country and the rights guaranteed to the citizens by the Indian Constitution clearly lays down that even if an individual is under arrest or detained due to some reasons he cannot be deprived of his fundamental rights and upon infringement of such right he can seek to move his case to the Supreme Court under Article 32.
 Shree Baidyanath Mukherjee, “Custodial Death in India- An Analysis” 7 Journal of Emerging Technologies and Innovative Research 552 (2020).
 History of Prisons, available at: http://www.prisonhistory.net/prison-history/history-of-prisons/ ( last visited on Jan 21, 2021).
 1994 AIR 4 260.
 1997 1 SCC 416.
 1995 SCC 1 623.
BY PRIYANKA PANHOTRA | NATIONAL LAW UNIVERSITY, ODISHA