CUSTODIAL DEATH – A VIOLATION OF HUMAN RIGHTS

INTRODUCTION

When a person is killed while under the custody or control of law enforcement, such as the police or prison staff, it is referred to as a “custodial death”, It happens when someone dies while being held in custody, whether it be during an interrogation, a detention, an arrest, or incarceration.

Several factors, such as excessive force, physical violence, torture, neglect, medical malpractice, or inadequate care, can result in a person dying while they are in custody.¹ In some cases, these deaths may be intentional acts of violence by the custodial authorities, while in other instances, they may result from negligence or lack of proper training and protocols.

Deaths in custody are regarded as a serious breach of both human rights and the rule of law. Every person, regardless of their legal status, is entitled to be treated with dignity, respect, and protection from harm while in custody. Such fatalities prompt questions about police brutality, violations of human rights, and the need for accountability and justice.

To determine the cause of custodial deaths and hold responsible accountable, authorities must conduct thorough and objective investigations. Additionally, initiatives should be taken to improve training, oversight, and the creation of precise rules and protocols for the treatment of people in custody in order to prevent such incidents from happening in the first place.²

CUSTODIAL DEATHS IN INDIA

In India, 1,888 custodial deaths over the past 20 years have been recorded, but only 26 police officers have been found guilty. Out of 1,888 victims more than 60% are those who had not even been produced before the Court.

There were 1,731 deaths while in custody in India overall, according to the National Campaign Against Torture’s India Annual Report on Torture 2019. Of those, 1,606 died while being held in custody by the courts, and 125 died while being held by the police. This works out to almost five such deaths daily.³ The claimed data in this report is far more than what our National Criminal Bureau believes.

According to data of NCRB’s annual crime in India 2020, the highest numbers of custodial deaths are reported in Gujarat and no convictions are reported in 2020.⁴

Custodial death are refers to death of an accused during pre-trials or after conviction. This is the worst form of Human Rights Violations and become alarming problem in the World. Not all deaths are results of violence it may be because of medical negligence, improper care, etc. for which the officials and executive are responsible because they have to take care of them and because of their negligence that things happen.

Many claims that custodial torture is a routine practice of Police personnel. No matter what the reason is they do torture the accused routinely. Also the Police personnel release their anger on accused by torturing them, beating them.

The rape accused, people from minority classes, people from backward classes are suffered very lot and they have to faces more tortures from the personnel than the person having financial and political influence.

Also there is open defiance of courts order by the police personnel and the state. The Supreme Court of India issued clear instructions for the installation of CCTV cameras in every police station nationwide, but it was unable to secure compliance affidavits from different states.⁵

Many Police personnel often manage to escape the punishment by giving financial compensation to victim’s relatives, having a political connection also help them to escape the victim. They destroy the proofs and all such things, so how they can be punished. Police influence on the doctor performing post-mortems prevented them from conducting an accurate examination. The police are required to uphold the rule of law, preserve public safety, and enforce existing laws, not to usurp legal authority.

THE NEED OF ANTI TORTURE LAW

An anti-torture law, also known as a law against torture, is legislation designed to prohibit and criminalize the act of torture. Torture is defined as the wilful, cruel, or prolonged infliction of physical, emotional, or psychological harm on another person while acting in an official capacity, or while acting with the approval or complicity of a public official. Under international law, it is categorically prohibited as a serious violation of human rights.

Anti-torture laws establish legal frameworks that define torture as a criminal offense and outline the penalties for those found guilty of engaging in torture or being complicit in its practice. The term “torture” is usually used in these laws to refer to a wide range of actions, including physical harm, sexual assault, psychological coercion, and other types of degrading, cruel or inhuman treatment.

The main objectives of anti-torture laws are to:

• Criminalize torture: Anti-torture laws explicitly state that torture is a crime, making it punishable under the legal system of a country.
• Provide legal safeguards: Individuals are provided with legal protections under these laws, preventing torture and other cruel treatment of them. They may include provisions for due process, fair trials, and the prohibition of evidence obtained through torture.
• Ensure accountability: Anti-torture laws aim to hold perpetrators accountable for their actions. They establish procedures for investigating and prosecuting cases of torture and may include measures to protect victims and witnesses.
• Prevent torture: These laws may incorporate preventive measures, such as training programs, guidelines for law enforcement personnel, and mechanisms for monitoring places of detention to minimize the occurrence of torture.⁶

Anti-torture legislation is frequently passed at the national level in order to comply with international human rights standards, such as the United Nations Convention against Torture and other inhuman, degrading, or cruel Treatment or Punishment. This convention forbid extraditing people to nations where they might be subject to torture and obliges states to take concrete steps to end torture on their soil.

Since 1998, Nigeria has ratified the UNCAT, the convention against torture and other cruel or inhumane treatment or punishment. In 2017, Nigeria passed the Anti-Torture Act, whose sole purpose is to outlaw and punish torture and other forms of cruel, inhuman treatment. In total, 165,543 cases of torture, extrajudicial killings, cruel treatment, and other inhumane treatment were registered by the National human right commission of Nigeria, with 14,733 of those cases falling under the category of torture.

This act places responsibility on the Nigerian government to guarantee the integrity and safety of everyone, including suspects and detainees, and to make sure that no one who is being held in custody or is the subject of an investigation is subjected to any type of physical or mental torture. 

The law recognizes the victim’s right to file a complaint about a torturous act. Torture-obtained evidence is never admissible in court. If found guilty of the crime of torturing someone, the punishment is 25 years in prison as the maximum sentence. No exceptional circumstances, including a state of war or the threat of war, internal political instability, or any other public emergency, may be cited as a justification for torture, according to Section 3 of this Act.⁷

India should learn lesson from Nigeria and work upon it. Till now India doesn’t have any anti-torture laws. The Government of India drafted Anti-Torture Bill in 2017 and sent it to all States and UT to make criticism and remarks but many States and UT have not answered it yet and the bill has not been presented in the parliament yet.⁸

India must implement fresh reforms pertaining to human rights to ensure that such an incident doesn’t occur. Policy makers and reformers should prioritize the security of prisoners.

DK BASU V. STATE OF WEST BENGAL

In a significant decision in the DK Basu v. State of West Bengal case, the Apex Court established crucial guidelines to protect people’s rights while they are being detained and arrested. In response to claims of torture in custody and fatalities while in the custody of the police, the case was brought. The regulations set forth in this case are intended to safeguard fundamental rights and stop abuse of those who are in a person’s care. Here are some key guidelines from the DK Basu case:

• Arrest Memo: The time, date, and place of the arrest should all be noted on an arrest memo by the police. It should be backed up by at least one witness, who can be a family member or a prominent local person.
• Rights of the Arrested Person: The person who has been taken into custody must be informed by the police of their right to remain silent, their right to legal representation, and their right to tell a friend or relative about the arrest.
• Memo of Detention: A memo of detention with the time, date, and location of detention should be prepared, and the person who has been arrested and held should be informed of the reasons for holding them. Additionally, it needs to be verified by at least one witness.
• Custody Notification: Within a predetermined time frame, the police must notify the closest Legal Aid Committee or District Legal Aid Services Authority of the arrest and detention.
• Medical Examination: The arrested person has a right to a medical examination by a licensed physician while they are in custody, and the physician must also write and sign the report of the examination. The arrested person has the right to tell close relatives or friends the findings of the medical examination.
• Right to Legal Aid: The person who has been arrested is entitled to select and consult with the attorney they wish to represent them. If the person is unable to pay for legal representation, they should receive it for free.
• Custodial Deaths: A judicial magistrate should conduct an investigation in cases of custodial deaths, and the investigating officer should submit the report to the closest judicial magistrate within 24 hours.
• Videography of Arrest: In serious offenses, the police must make an effort to videograph the arrest to ensure transparency and accountability.⁹

These guidelines from the DK Basu case are meant to protect individuals’ rights and prevent abuses during arrest and detention. They serve as important safeguards against custodial torture and provide a framework for fair treatment of arrested persons in India.

SUGGESTIONS

• The entire prison system is opaque so Government should make a transparent who can record and report about the custodial death.
• Human Rights Courts should be established so that it can hear the appeal and cases relating to human rights.
• A transparent body should be made under the guidance of Supreme Court to investigate and initiate trials for Custodial deaths.
• Stringent laws should be made and need to amendment the existing laws for the punishment of Human Rights violation.
• The authorities should take care of mental and physical care of the inmates and provide them assistance and regular checkups and provide them with medicines and basic needs.
• The arrestee has right to meet and consult his lawyer but due to lack of awareness and knowledge and lack of advocates in the police stations creates this problems so we need to create awareness campaign and induct more lawyers in the police station.
• Proper training of authorities should help in minimising of custodial deaths.
• The victims should be awarded with compensation and medical facilities.
• India needs to restructure the prisons and have to make new prisons as currently they are poorly managed, having overcrowded, and inadequate resources.

1. R. Chakraborty, Law on Custodial Death And Torture, Kamal Publishers, 2017 ↩︎
2. Custodial deaths in India: A toxic play of power – DW – 11/19/2021 ↩︎
3.  India Annual Report on Torture 2019 ↩︎
4. National Crime Records Bureau’s annual Crime in India (CII), 2020 ↩︎
5. Paramvir Singh Saini v. Baljit Singh:(2021) 1 SCC 184 ↩︎
6.  Meetali Handa, Custodial Violence: : A Legal Study With Special Reference To Prisoners Detained Under
   Preventive Detention Laws, Notion Press, 2021 ↩︎
7. Custodial Death & Torture a Human Rights abuse: Indian and International perspective, Latest Laws | National Campaign Against Torture (uncat.org) ↩︎
8. Position-of-Custodial-Deaths-in-India.pdf (ijlmh.com) ↩︎
9. DK Basu v State of West Bengal (1997) 1 SCC 416 ↩︎