Human rights are the basic rights and liberties that are ensured to every human being. He/She has the right to live with dignity and peace. Violating these rights would disrupt the society as a whole. With the ever-changing laws and society, the rights of the human being require constant modification and alterations. Historically, rights have been derived from customs and religious practices which are now enforced through laws. Enforcement of these rights is essential to maintain balance and progress in the country. The article is a detailed explanation of Human Rights and Custodial Violence.
The preamble of the Constitution states that India is a Sovereign, Socialist, Secular, Democratic and Republic state which assures the dignity of an individual and unity and integrity of the nation. The basic human rights are embodied in Part III of the Indian Constitution. India is also an endorser of the Universal Declaration of Human Rights and has to follow its norms. Everyone is entitled to these rights equally and without any discrimination. Articles 12 to 35 of the Indian Constitution state the various rights that every citizen possesses. These are the right to education, right against exploitation, freedom of speech and expression, freedom of movement, and prohibition of discrimination on grounds of sex, caste, race, religion. The most fundamental right which is the right to life and personal liberty is enshrined in Article 21.
There are also provisions to ensure the enforcement of the fundamental rights. Article 32 provides for the remedies to ensure enforcement of these rights. This right shall not be suspended unless provided in the Constitution. The country also has an independent judiciary that ensures the protection of human rights. The citizens of the country have the right to move the court if their fundamental rights are violated.
The Supreme Court, in K.S. Puttaswamy v. Union Of India, observed that:
“No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right.”
In Maneka Gandhi v. Union Of India, the court interpreted that the right to life also included the right to live with dignity.
Police under the code
There are certain provisions laid down by each state with regard to the enrollment and appointment of the police officers. Some provisions have to be commonly followed by the entire country. The power to make arrests, search and seizure by the police is conferred in the Criminal Procedure Code. There are certain restraints to the power of the police officers which can be said to be the rights of the arrested person. Although these powers are limited, the police officers use them to the highest possible extent.
Custodial violence primarily refers to mental or physical torture in police or judicial custody. Sometimes extreme violence and torture by the police officers results in the death of the civilians. Sovereign immunity is not available to the state for heinous crimes committed by public officers as it is a direct violation of the Right to Life. Police officers are in charge of law enforcement, instead of disregarding the rule of law. It is an abuse of the power entrusted to them.
Custodial deaths are a result of torture which not only includes slapping, kicking, beating, etc., but also hammering nails in the body, giving electric shocks, pricking needles, hanging upside down, etc. It is disheartening to know that majority of police torture victims belong to the marginalised and lower sections of the society. They are the most vulnerable people who fall prey to all sorts of abuse and ill-treatment. This has been prevailing for decades now right from the British era.
Later in a landmark judgment passed in 1996, D K Basu v. State of West Bengal, the court laid down guidelines concerning arrest and detention to prevent custodial violence. Guidelines mention the procedure to be followed during the arrest of a person. These guidelines are still prevalent and have to be adhered to by the police officers. Failure to follow them makes the officer liable for departmental action.
In April 2019, a superintendent in Tihar Jail forcefully burnt an om symbol present in the back of the prisoner. In September, a pregnant woman was arrested in a kidnapping case and kicked in her belly. She had a miscarriage as a consequence of such treatment by the police.
In 2019, on an average 5 custodial deaths were reported per day. Suspects are usually ill-treated to punish them, get information or extract confessions. Even though confessions made in the police custody are inadmissible by the court of law according to the Indian Evidence Act. Incidents of custodial torture and deaths are on the rise even after the implementation of various statutory and constitutional provisions to protect human life and liberty.
Steps taken to curb the violence
The National Human Rights Commission has laid down certain guidelines that have to be followed to investigate custodial violence cases. In case of any custodial death, the commission has to be informed about the same within 24 hours. This has to be followed with proper procedures that involve submitting reports and recordings of the same. New guidelines were formulated to make the rules stringent. The Criminal Procedure Code also lays down certain provisions to protect prisoners from custodial torture.
There are certain provisions in the Indian Penal Code, 1860 that specifically deal with custodial crimes. Section 330 and Section 331 which details causing hurt or grievous hurt to extort confession, or to compel restoration of property, 376(2) talks about custodial rape and Section 348 provides for wrongful imprisonment in order to extort confession or restoration of property. Section 29 of the Indian Police Act deals with penalties for neglect of duty.
Sadly the penalties for committing such an offence are restricting three months pay or imprisonment not exceeding three months. The officers do not fear such penalties. Police officers also tend to delay the commission’s procedure which results in obstructed justice. Even though various measures have been introduced to curb the increase in the number of custodial deaths, it has not been followed and implemented well. It is also mandatory to install CCTV cameras in police stations but it is not followed properly. Police resort to destruction of evidence and reports to escape investigation and conviction. There is a lack of enquiries on the custodial death cases and policemen are acquitted without any proper investigation.
Between the years 2005-2018, 500 custodial deaths were reported but zero policemen were convicted. DK Basu guidelines are violated as their non-compliance does not have any serious repercussions. When a crime goes unpunished, there is no fear, and people are encouraged to do more of it. This marks the beginning of a vicious cycle of infringement of the right to life. These provisions in themselves are inadequate to repair wrong done to a citizen.
Santhankulam custodial death case
P Jayaraj and his son J Bennix were taken into custody by the Tamil Nadu Police in Thoothukudi District for violating the COVID-19 lockdown rules. They had kept their mobile store open beyond the permissible time. The penalty for violating the lockdown rules in three months imprisonment. They were brutally tortured and harassed while in custody which eventually led to their deaths. They were held in custody from June 19 to 21. They died due to excessive internal bleeding and punctured lungs. Even after severe injury, they were remanded in custody. Several officers were suspended and four officials were taken into custody for the same.
Section 57 of the CrPC clearly states that an arrested individual cannot be detained for more than 24 hours. The police officer’s actions have clearly violated the procedure established by law. The CBI is incharge of the investigation now. A probe over the case is going on. This case has spread across the world due to excess media coverage. There are numerous custodial deaths that go unattended.
The Supreme Court had recommended to amend the Indian Evidence Act, to place the burden of proof on the police in the custodial violence. Unfortunately, it has not been passed by the Rajya Sabha.
India being the biggest democracy in the world, the protection of human rights is fundamental. Police who take criminals or lawbreakers into custody should assume full responsibility for life. The powers of the executive should not only be derived from law but should also be limited by law. Custodial violence is regarded as contempt of law and the police officers that indulge in the same are considered to be lawbreakers. This creates the biggest irony; where protectors of law become the lawbreakers.
There is an urgent need to introduce a special law to prevent custodial violence and regulate the powers of the police officials. Transparency of action and accountability are two ways to regulate the conduct of the police. Efforts must be taken to change the police personnel’s way of handling an investigation so they perpetuate the importance of the right to life.
 AIR 2017 SC 4161.
 AIR 1978 SC 597.
 (1997 ) 1 SCC 416.
 India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf (Last visited on December 24, 2020).
BY KRISHA AJAY SHAH | VIT SCHOOL OF LAW, CHENNAI