After starting of the movement for justice of George Floyd, another heinous case of police brutality comes where a father and son — P Jayaraj, 58, and his son Fenix, 38 — running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping the shop open past permitted hours. Tamil Nadu has imposed a strict lockdown to curb COVID-19. The duo was taken to the police station where, as has been alleged by the family members, they were brutally assaulted. A few days later they were pronounced dead in jail.
According to the reports, an FIR has been filed against Sathankulam Police Inspector Sridhar, and Sub Inspectors Balakrishnan and Ragu Ganesh, and all three have been suspended after having been connected to the incident and the rest of police officers attached to the Sathankulam police station have been transferred.
An arrest is an act of detaining in legal custody. An “arrest” is the deprivation of a person’s liberty by legal authority in response to a criminal charge. The custodial torture during the investigation is practised in India on a regular basis
What is custodial torture?
Custodial torture ranging from an assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding the idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him.
In India, where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all-important fundamental rights, instances of torture and using third-degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration. Human rights take a back seat in this depressing scenario. Torture in custody is at present treated as an inevitable part of the investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess. The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of the State is behind it.
What are the Remedies Against Custodial Torture
There are two approaches with respect to the remedies provided for against custodial torture and subsequent death as well. These two approaches are – legal regime and judicial precedents. They can be explained as follows:
It has been held in a catena of judgments that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Constitution of India.Detention does not deprive one of his fundamental rights.
- Article 20 primarily gives a person the rights against the conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) i.e. ex-post facto laws thereby making it a violation of the person’s fundamental rights if attempts are made to convict him and torture him as per some statute.
- The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person.
- Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of the arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.
Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession to a police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.
Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during an escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons, therefore.It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request. A compensatory mechanism has also been used by courts. When the Magistrate does not follow the procedure with respect to the entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.
Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on the death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorization.
Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given in D.K Basu v. State of West Bengal.
Indian Penal Code (IPC), 1860:
After the controversial Mathura Rape case, an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority. Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during an investigation of an offence from resorting to third-degree methods causing ‘torture’.
The Supreme Court is heralded as a beacon of rights against torture. Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial death cases namely, the right to compensation for custodial death and torture and the formulation of custody jurisprudence.
The case of Sheela Barse v. State of Maharashtra has provided for guidelines on rights of the arrested persons especially women. The court in this case also emphasised on the need for Magistrates to inform all arrested persons of their rights. Guidelines were also given by the Supreme Court in D.K Basu v. State of West Bengal with respect to rights of arrested persons. The most significant one being the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors and copies of all prescribed documents should be sent to the concerned Magistrates. Also, the arrestee may be permitted to meet his lawyer during interrogation.
It has been recommended in the 177th Law Commission Report by the 16th Law Commission that requisite amendments should be brought about in the Code of Criminal Procedure making it the duty of the police officers in whose custody there are arrested persons that they should ensure their safety and holding them responsible for the failure of the same. Thirty years hence, this amendment has still not been incorporated. The presence of an advocate during the interrogation of the arrested person is also a recommendation that has been made. The 185th Law Commission Report also makes a recommendation regarding the rights of arrested persons with respect to the Indian Evidence Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also emphasised on the need for codification of the rights of the arrested persons.
How We Can Prevent Custodial Deaths in India?
- The police should be trained to use new scientific and parallel and psychological subjective techniques instead of using torture.
- The working conditions of the police personnel should be improved and they should be provided with more promotional avenues on a seniority basis.
- The control of the Police should be brought under the Governor of the concerned State so that the police could work in a clean atmosphere free from political pressures.
- A separate offence provision should be made by amending Section 302 of the Indian Penal Code regarding the treatment of custodial death as murder.
- The adequate medical facilities should be provided in jails so that in case of emergency proper and timely medical help could be provided to the persons in the jail custody.
- A counsel should be allowed to be present during interrogation to check the custodial violence by investigating officer.
- The scientific facilities/techniques for police personnel should be provided to use during interrogation. It will be more useful in stopping this heinous crime.
- The arrest of accused during interrogation may be considered justified in case of grave offences like murder, dacoity, robbery, rape etc., or when accused is likely to abscond and evade the process of law or when the accused is a habitual offender.
- Section 114-B in the Indian Evidence Act, 1872 as recommended by the Law Commission in its 113th report, should be inserted to introduce a rebuttable presumption that injuries sustained by a person in police custody were caused by the police officer.
- The compensation in the case of custodial deaths should be a State responsibility. The State Government, in turn, can recover the amount of compensation from the offenders. For implementing this, a separate Tribunal/Board should be set up at the District level.
- The Government should provide medical facilities in Government hospitals free of cost to the dependants of the victim of the custodial death.
- The Government should provide free education up to graduation level to the dependants of the victim of the custodial death.
- The Government should reserve a quota of one per cent in Government jobs for at least one of the dependants of the victims.
- The Government should reserve a quota of one per cent in educational institutions for higher education for the dependants of the victims.
- The most important requirement is to sanction a monthly pension to the dependants of the victim of custodial death because the Government is liable for their miseries and sufferings.
In a complaint of custodial torture, the court should not adopt a casual approach to it on the ground that it has been made by a habitual offender. It is a perennial problem of statecraft.It, therefore, becomes imperative to evolve a system of state governance that allows the police to effectively maintain law and order and to prevent and detect the commission of a crime without jeopardizing legal rights; privileges and claims of laymen. Such a system obviously warrants appropriate control over the police in order to discourage them from exercising their power in a capricious manner. Similarly, an effective institutional grievance-redressal mechanism to vindicate ‘police excesses’ is also the need of the hour.As held by the Supreme Court, “custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent human personality.
First, custodial torture must be made a crime. This could be brought in by way of a special law. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court–though not a complete remedy–should be applied without failure. Those who fail to comply must be prosecuted.
Thirdly, the public–and especially concerned professional groups, including rights groups and the media–must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director-General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.
Fourthly, the central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is evidently not the case. Were that the case, 60 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.
 K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice Process in India, (Eastern Book Company, Lucknow, 1st Edition, 2004) p. 219
 The Sikh Coalition, Custodial Deaths in Punjab; 1997-2001, http://www.sikhcoalition. org/HumanRights4.asp (Visited on January 18, 2010)
 Asian Human Rights Commission, INDIA: Government of Kerala must criminalise torture to prevent custodial deaths, http://www.ahrchk.net/statements/mainfile.php/2006state ments/688/(Visited on January 23, 2010)
 The Hindu, Custodial Torture Worse than Terrorism, http://www.thehindujobs.com/the hindu/2003/07/27/stories/2003072703510500.htm (Visited on January 23, 2010)
 V.N. Paranjape, Criminology and Penology, (Central Law Publishing, Allahabad, 12th Edition, 2005) p. 381
 Prabhakar Pandurang v. State of Maharashtra, AIR 1966 SC 424; D.B. Mohan Patnaik v. State of A.P, AIR 1971 SC 2092
 “No crime, no punishment without a previous penal law”, Article 22 of the Rome Statute of the International Criminal Court
 D.K.Basu v. State of W.B, (1997) 1 SCC 416
 A.K Sahdev v. Ramesh Nanji Shah, 1998 CrLJ 2645 at 2650 (Bom.)
 Shakila Abdul Gafar Khan v. Vasanttraghunath Dhoble, 2004 (1) GCD 812 at 823 (SC)
 J. Y.V Chandrachud & V.R Manohar, The Code of Criminal Procedure, (Wadhwa Nagpur, 18th Edition, 2006) p. 114
 Mukesh Kumar v. State, 1990 CrLJ 1923 at 1925
 Bhai Jasbir Singh v. State of Punjab, 1995 CrLJ 285 (P&H) cf. P.C Bannerjee, Criminal Trial and Investigation, (Orient Publishing Co, Allahabad, 3rd Edition, 2003) p. 222
 (1979) 2 SCC 143
 State of Madhya Pradesh v. Shyamsunder Tviwedi, (1995) 4 SCC 262 at 273
 1983 CrLJ 1923 (Del)
 Malimath Committee Report, Volume I, Para 7.26.8-7.26.9
 D.J. Vaghela v. Kantibai, 1985 CrLJ 974 (Guj)
 Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
 S.C Sarkar, Sarkar’s Commentary on Code of Criminal Procedure, (Dwivedi Law Agency, Allahabad, 1st Edition, 2005) p. 50
Student, Symbiosis Law School NOIDA
Deepanshi is Human rights and Corporate Law Enthusiast. She is an avid reader and Researcher. She doesn’t like sitting idle and keeps herself updated with the latest happenings around the World. For any Clarifications, Feedback, and Suggestion, you can reach her at email@example.com