An Analysis on Custodial Death and Judiciary Swastika Constitutional Law Sun, Jul 30, 2023, at ,10:18 PM “If I find the Constitution being misused, I shall be the first to burn it.” By saying this, the father of Indian Constitution Dr. Ambedkar assured each and every citizen of India that their fundamental rights, guaranteed by the Constitution embodied in Part III, will not be violated and misused by any one in any manner. India, being a democratic state understands the importance of taking care of their own citizens. It is the duty of the Government to protect the dignity and security of every citizen and protected their fundamental rights granted to every citizen under the Constitution. But there are people who have been deprived of such rights like custodial prisoners. It is not very uncommon in India about the cases registered for deaths in custody because of the torture by the police enforcement. This torture violates the fundamentals rights granted under Article 20, 21 and 22 of the Constitution. In many cases the Supreme Court has highlighted rights such as right against Handcuffing, Right to a Fair Trial, Right to Free Legal Aid etc. as an important part of Article 21of the Constitution. There is judicial initiative taken by the Apex Court and National Human Rights Commission to prevent such unfortunate custodial torture and death. Custody in legal sense means when the person who’s accused is restricted from freedom of movement by law enforcement officials. Custodial death refers to the death occurring in custody during the detention. It sometimes happens due to natural causes where there is no fault of the police officials and the accused died under natural instances while they are in custody. But it is very difficult to establish that there is no fault of police. Fake encounters are also an indirect form of custodial death. It becomes very hard to establish the fault of police in such cases as the incident occurred and all the evidence are under the nose of the police officials. Right to Life and Liberty is the most valued and highest place in the list of fundamentals right for every citizen. Custodial torture is one of the cruelest and increasing abuse of the human rights. The Constitution of India, the NHRC1 and the UN2 forbids it but the police across the countries ignore these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach as held under “Joginder Kumar v. State of Uttar Pradesh.3 NHRC stands for National Human Rights Commission UN stands for United Nations (1994) 4 SCC 260) Violation of Rule of LawRule of Law is one of the basic structure which democracy guarantees liberty, equality and fraternity which is mentioned in the Preamble4 of the Constitution. Any kind of violation to the principles of Rule of Law will be a fundamental issue and threat for a democratic country such as India. The principles of Rule of Law states that no one is above law and Constitution but when a person is tortured in police custody it is a clear violation of this principle. The term Custodial violence includes assault5, rape6, death and torture behind the bars. Equality before law is violated in custodial violence. The Principe of fairness in application of law is also violated which means that law should be fair to everyone and there should be no arbitrariness and there must be a proper chance of fair trial. Under Article 20(1) of the Indian Constitution it states that no person shall be convicted of an offence except those which are in contravention of the law in power at the commission of the Act. Under Article 20(3) it restricts a person to be compelled as a witness. The police have a right to interrogate the accused but during an investigation the police cannot use undue influence and coercion to find out information from the person. Under Section 163 of Code of Criminal procedure, 1973 it restricts an investigating officer to use inducement to obtain confession. Under Section 24 of the Indian Evidence Act, 1872 it states that any confession taken by the means of inducement of threat is not admissible in the court of law. Under Section 164(4) of the Criminal Procedure Code, 1973 states that signature and recordings of confessions should be properly made and submitted to the Magistrate. Under 26 of the Indian Evidence Act, 1872 states that the confession is inadmissible in court when made in absence of the magistrate. Section 46 of the Code of Criminal Procedure states that no one should be tortured to death. Safeguards provided by Constitution to protect rights of prisoners Right to Bail: Bail is the legal right provided to every under-trial prisoner. Bail is the right of every person liberty in criminal jurisprudence granted under Article 19 and Article 21 of the Indian Constitution. No person should be restricted of his personal liberty except according to the procedures established by law. Preamble is an introductory statement in a document that explains the document’s philosophy and objectives. Assault is described under Section 351 of the Indian Penal Code. Section 375 of the Indian Penal Code describes Rape. Right against solitary confinement: It is the form of imprisonment where the movement and contact with other prisoners or inmates is restricted for the prisoner. It is also the violation of Article 21 of the Indian Constitution except according to the procedures established by law. Right to free legal aid: It is the fundamental right guaranteed by the Constitution of India under Article 39-A. The Legal Service Authorities Act also grants every person the legal services which they are entitled to including member of a Scheduled Cast or Scheduled Tribe, a victim of trafficking, a beggar, a woman, a child a psychiatric or a less income person. Right to a speedy trial: Article 21 of Constitution provide every person the right to speedy trial as a fundamental right. Right against handcuffing: In the case of “Premankar v. Delhi Administration7, it was held that a person should not be handcuffed unless there is a present danger of escape from the police’s control. If apart from that the person’s handcuffed, then the action is arbitrary and unreasonable. Right against inhuman treatment: The “third degree” method has been declared as violation of Article 21 of the Indian Constitution by the Supreme Court. Right to a fair trial: Every person deserves a fair trial under criminal jurisprudence. It comes under the necessity of rule of law which includes fair investigation and human rights. Evolution of Custodial JurisprudenceThe question of custodial jurisprudence is evolved from the case of “DK Basu v. State of West Bengal8” The case facts are that the victim died in police custody after the arrest. There is an NGO who filed a petition under Article 32 of the Indian Constitution. In this landmark judgement, the Supreme Court gave guidelines which is to be followed for arrest and detention. It is mentioned as follows: (1980) 3 SCC 526 AIR 1997 SC 610 The police whoever performs arrests or handling interrogation should be accurate, visible and clear identifications of their names as well as their designations. The officer arresting and interrogating should be recorded in the register. The police at time of arrest should prepare memo of arrest and that memo should be signed by own witness either family member or any person from locality of the arrestee at the time of the arrest. The individual captured should be mindful of his entitlement. An entry should be made in the name of the arrestee and should also specify under which police authority the arrestee is care of. The arrestee to be examined by the doctor every 48 hours during his police custody. The arrestee should be examined by the doctor and a memo should be well prepared about any injuries if he had previously or any other injury. The memo should also be signed by the arrestee and the police officer who arrested. All documents should be sent to Magistrate and the arrestee to be allowed to meet his lawyer during interrogation. Judiciary and its role in matters of Custodial DeathIn India the Supreme Court and the National Human Rights Commission have played a valuable role in combating custodial torture. The Apex Court has expressed its worries and grave concerns towards distress and deaths in police custody by various case law throughout time. In the case of “Nilabati Behra v. State of Orissa”9, the petitioner’s son was taken under police custody for some investigation and letter day his body was found in railway track. The victim mother wrote a letter to the Supreme Court which was treated as a writ petition by the court. The court held that the action done by the police was violative of Article 2110 of the Indian Constitution. The Supreme Court held that the State is vicariously liable to repair damages and the petitioner was awarded compensation. AIR 1993, SC 1960 Article 21 refers to the Protection of Life and Personal Liberty which provides two rights: Right to Life and Right to personal Liberty. In the case of “J. Prabhavathiamma v. the State of Kerala & Ors”11 , a shop worker died in police custody and the special court found two guilty police officers for murder and awarded them death penalty as it was brutal and such kind of action affects the faith of the people towards the police administrations. The Supreme Court in the case of “Prakash Kadam v. Ramprasad Vishwanath Gupta12” said that Policemen are supposed to uphold the law and if crime are committed by themselves then there should be given harsher punishment as they acted contrary to their duties. There is also the case of “Munshi Singh Gautam v. State of Madhya Pradesh13” in which the Supreme Court showed concern about the problem of custodial torture and stated that the rising of torture, assault and death in custody raises serious questions about the credibility of the rule of law and criminal justice system. In “Sunil Batra v. Delhi Administration14”; “Altemesh Rein v. Union of India15”; “Sunil Gupta v. State of MP16” showed concerns towards handcuffing.There were directives laid down by the Supreme Court in the case of “Prakash Singh v. Union of India17” which should be followed as well. Those seven directives are as follows: The court stated that there should be a State Security Commission to be formed which will ensure that the state governments is not imposing any pressure on the police. The Commission should have some guidelines for the police and all the actions done by the police should be evaluated. There should be a merit based system to appoint Director-general of the Police for a tenure of two years. WP(C). No. 24258 of 2007 (K) SLP(Criminal) No. 3865-69 of 2011 Appeal (Crl.) 919 of 1999 1978 AIR 1975 Manu/SC/0051/1981 The minimum tenure of the SP in charge of the district and station house officers in charge should be two years. There should be a separation of the investigation and law and order functions of the police. To decide the issue of postings, transfers, or any other service matters a Police Establishment Board to be established. There should be a Police Complaint Authority to be established at every state level to inquire into public complainants issued against police officials for the case of misconduct like hurt, rape or custodial death. It should also be established at a district level as well. The Court urged for the formation of National Security Commission at the central level who should take responsibility to prepare panel for selection and placement of Chiefs of the Central Police Organizations with minimum of two years’ period. Conclusion One of the worst crimes in any civilized society is the violence committed while being held in custody. It is an egregious assault on human dignity. It attacks the foundations of all rules and laws. Both in India and the rest of the globe, there is unusual violence in imprisonment and power abuse. Since the problem is not only local but universal and the challenge is practically global, it has been of concern to the world community. Police investigations now routinely include third-degree torture, murders while in custody, rape, molestation, and other crimes. The harm inflicted on the prisoners can occasionally be intolerable.This issue needs to be taken seriously, and action needs to be taken to make things better.To prevent custodial violence and conformity to legal standard investigative procedures, superior officers should regularly supervise subordinate officer superiors. 1990 SCR (2) 871 Writ Petition (civil) 310 of 1996 A methodical interrogation technique should be taught to police officers. Political pressure should not be applied to the police system. For emergency situations, the jail should have a medical facility. The IPC should have a particular section that treats homicide committed while in a person's custody. References https://primelegal.in/2023/07/09/law-and-custodial-death/ https://www.legalserviceindia.com/legal/article-6829-custodial-deaths-and-role-of-judiciary-a-critical-analysis.html https://indiankanoon.org/search/?formInput=cases%20on%20custodial%20death https://blog.ipleaders.in/custodial-deaths/#What_is_custodial_death