This article is written by Mr. Subeg Singh 2nd year, B.A., LL.B.(Hons.), School of LAW, Lovely Professional University.
When Police arrest a person, his/her Fundamental rights remain unaffected and intact. Police are of a common belief that they have got absolute power to silence and control the arrested person, But this free hand has to be revoked.
In order to address this issue permanently, security, safety, and fundamental protection must not be denied to those arrested. The researcher will make an effort to tackle this significant issue of fatalities in custody in our justice delivery system. The term “custodial death” refers to the unexpected death of a suspect in a criminal investigation or who has already received a conviction. Such deaths can occur for a number of reasons, including natural ones like disease, suicide, and inter-prisoner rivalry, but in many cases, they are caused by police violence and torture. The concept of custodial death is not new, particularly in India where it has been practiced ever since the British held the nation’s independence. Over the past four to five years, violence and cruelty by police have increased dramatically. The inability to hold law enforcement officials accountable for utilizing cruel tactics and resorting to torture by citing “performance of duty” as a defense reveals a lack of legislative protections in our judicial system.
One of the worst violations of human rights is death in custody. The Indian Constitution’s guarantees of the right to life and liberty are being mercilessly violated. The State is responsible for ensuring the safety of the accused and those who have been found guilty. Without regard to their background, those who are accused or found guilty of crimes are entitled to a fair trial, as well as protection and security in police/judicial cells, jails, and correctional facilities. However, the authorities frequently and utterly fail in upholding their duty, and what is much more unfortunate is that, in the wake of such tragedies, the culprits make a desperate effort to hide their deeds. The concerned government also contributes significantly to the defense of the implicated officials.
Most people consider torture in detention facilities to be among the most horrific and brutal types of human rights violations. It is prohibited by authorities including the Indian Constitution, the Supreme Court, the National Human Rights Commission (NHRC), and the United Nations. However, government employees throughout the nation disregard these institutions. There should be a perfect balance between individual human rights and the interest of society in fighting the crime.
RIGHTS AVAILABLE TO ACCUSED/ JAILED PERSONS
According to Article 20(1): no one shall be found guilty of an offense unless it was committed in violation of the law in effect at the time the Act was committed. As a result, this legislation forbids imposing penalties that go beyond those specified in the applicable statute.
Article 20(3): According to Article 20(3), no one may be forced to testify against themselves. It is a very essential law since it prevents the accused from confessing when they are forced or tortured into doing so. Police are allowed to question suspects under Section 161 of the Code of Criminal Procedure, but if they employ pressure to extract information from a suspect during an investigation, it is considered compelled testimony. Forced testimony is not taken into consideration since it violates Article 20(3).
Section 163 of the Code of Criminal Procedure, 1973: This section forbids any investigating officer from using a threat or any other type of enticement to get the accused to confess so that it can be used against him in court.
Code of Criminal Procedure, 1973, Section 164(4): This Section mandates that confessions be signed and recorded correctly and that this be further supported by the Magistrate’s declaration that the confession was given voluntarily.
Section 348 of the Indian Penal Code of 1860: This section addresses wrongful imprisonment and forbids its use to coerce confessions. A fine and up to three years in prison are possible penalties for the crime of wrongful confinement.
Section 24 of the Indian Evidence Act of 1872: no confessions made by the accused under coercion or under the influence of threats, promises, or other coercion from law enforcement are acceptable in court. This Section’s main goal is to stop the accused from making forced confessions.
Section 25 Indian Evidence Act, 1872: Section 25 safeguards the accused from the authorities concerned. According to Section 25, a confession made in front of a police officer cannot be used as evidence against him. In situations where a custody declaration would reveal a new fact, Section 27 offers a narrow exception.
Section 26 of the Indian Evidence Act of 1872: This Section expressly specifies that any confession made while a person is being held without the presence of a magistrate is not admissible in court. JUDICIAL ACTIVISM WITH RESPECT TO CUSTODIAL DEATHS 1.) Nilabati Behera vs State of Orissa According to article 21 of the Indian constitution, “all inmates and arrestees are having their fundamental rights,” the top court held in the case. They have an equal right to all of the essential freedoms, and the police are required to uphold the law and defend those freedoms by making sure that the person in custody doesn’t lose his right to life. The Court also cited Article 9(5) of the International Covenant on Civil and Political Rights, which states that anyone who has been the victim of an unlawful arrest and torture while in detention shall be entitled to compensation, In this case, the supreme court granted the mother of the deceased, who tragically passed away while in police custody after becoming a victim of custodial assault, compensation in the amount of Rs. 1.5 lakhs.
2.) D.K Basu Vs State of West Bengal
“In nearly every state there are cases, and those cases are increasing day by day with a rise in frequent custodial deaths,” the court observed. There are currently no apparent approaches to handling such situations. Since this affects both the federal government and the state governments, As a result, notices should be sent to the state government if they have any ideas or comments on the subject.
In this case, the supreme court ruled that the number of fatalities in custody must be lowered since doing so will have a significant negative influence on the legal system and cause people to eventually lose trust in the rule of law.
RECENT INSTANCES OF CUSTODIAL DEATH
Jayaraj and Bendix custodial death
Because they are covered up in silence and because the media fabricates a story against the accused, the majority of incidents involving custodial deaths receive little attention. But the deaths of Jayaraj and his son Bennix while in custody garnered the necessary attention and made people aware that sometimes even law enforcement can be utterly ruthless.
Four days after their arrest, the defendants in the Jayaraj and Bennix death case passed away. The father-son team was taken to Kovilpatti after being detained by the police for allegedly opening the cell phone business during the lockdown curfew. This case has two different versions.
According to the police officers, Jayaraj and Bennix refused to close their store when they were instructed to do so, squatted on the ground, verbally abused the officers, and even made threats to kill the officers. According to the authorities, they fell to the ground and eventually hurt themselves, which ultimately caused their death.
According to the second account, which is confirmed by witnesses, the officials picked up the father-and-son team on different days. Eyewitnesses have also reported that the victims got into a fight with the police a day before they were arrested, which led to their detention on bogus accusations.
The fact that the victims had to change their blood-soaked lungs six times speaks much about how violent the police intervention was. Bendix’s sister said that using steel batons, police officers also sexually attacked her brother and father. The father-and-son team eventually passed away from their wounds.
The authorities in this case used disproportionate force to beat the victims to death while disregarding all protocols and policies. As a result of the police officers’ human rights violations, there was a massive uproar for justice and a large-scale protest was held against them. Police constables Murugan and Muthuraj were suspended, and sub-inspectors Balakrishnan and Raghu Ganesh were punished only after a significant uproar.
The favored method used by law enforcement agencies to get information and confessions or to suppress the weaker members of society is still torture. For the simple reason that the operation of any Government heavily depends on the law-enforcing authorities, all
Governments prefer not to set a precedent by administering exemplary punishments to negligent personnel. They are the government’s troubleshooting agents, serving their political overlords with essential assistance. Therefore, no government would want to offend them. The Executive, however, is unaware that the people themselves are the true source of power and that the army, paramilitary, and police are nothing more than public servants.
But they frequently use violence and torture in place of helping the populace. It is highly improbable that the occurrence of torture while in detention won’t decrease in our nation unless this changes.
The Indian police force has become untamable as a result of a lack of reforms, a lack of accountability, and the practice of utilizing force, terror, and intimidation. To stop the frightening rise in incidents of atrocities committed by men in uniform, there is a need for strong reforms and monitoring organizations.
Additionally, there have already been many instances of recommendations not being implemented and crucial orders and directives from the NHRC and the Supreme Court not being followed. It proves that governments at all levels are more at ease depending on the police, which is commonly seen as the most crucial administrative apparatus for running the government and assisting the political elite in carrying out their duties, whether fairly or unfairly. So, do we prioritize defending people’s right to life and liberty over upholding their commitment to human rights? Can we claim to be a real democracy? Maybe not, and this is why urgently required legislation is not passed, changes are not started, and custodial deaths increase yearly with few authorities held accountably. All facets of society should raise this as an indication of a fundamental lack of political will.
Instead of resorting to torture during interrogation, police should adopt constructive methods or approaches.
The governor of the relevant state should monitor police activity to give police the chance to operate in a free political interference environment.
By revising section 302 of the IPC addressing the handling of custodial death as a murder, a separate provision should be introduced to deal with custodial death.
Medical facilities should be on the alarm so that in the event of harm, it may be treated promptly and a situation where someone dies while being held captive should be avoided.
For the investigating officer’s better oversight of the police officer, the legal representative of the accused should be permitted to be present during the questioning.
The number of deaths while in jail that NHRC and NCRB have revealed is horrifying. It must be changed. Despite the fact that police officers abuse their authority, the state continues to defend them, which is a serious issue. Police activities must be constantly watched in cases when a person passes away while being detained in custody, and any responsible police officers must be disciplined. A precedent needs to be set in order to persuade the authorities that they cannot abuse their authority. Given the current situation, it is very difficult to forecast that the situation in regard to custodial mortality would improve. There is a need for stringent legal action that is only focused on punishing the employees whose use of physical force resulted in a death and who abused their position of authority. To ensure a decline in the incidence of custodial deaths, the guidelines established in the seminal case of D.K. Basu v. State of West Bengal must be correctly adhered to.