Custodial Death in India

LJCS: Legal Journal for Contemporary Society

Introduction

Of all the fundamental rights guaranteed to a citizen in the Indian Constitution, Right to life, i.e. article 21 stands above all. A person cannot be denied, or any other person cannot exert discretion over this right. On the contrary, recent unfortunate incidents indicate that people are being denied this right in our country. Since last December there have been continuous unfortunate instances of custodial deaths in India that have attracted people’s attention towards this issue. According to an article published in the Hindu, five custodial deaths occur in India daily. This does not stop here, the recent data of NCRB shows that killings and encounters are happening, but out of these instances a few have been registered, and lesser than a few are being investigated. The blog enlightens the following issue based on statistical data and theoretical concepts and attempts to indicate the strong need to tackle the issue before it is too late.


What is Custodial Death?

Custodial Death contains two basic words (1) “Custody”, is a word which has root in Latin “Custodia” (guarding, keeping, watching, protecting), which means “to watch or keep or guard”. In legal terms, Custody means imprisonment or legal restrain. (2) “Death” means the end of life of a person or organism. Custodial death here means the end of human life while in prison or under legal restrained. Custodial death primarily refers to death either in police custody or in judicial Custody.[1] Custodial is one of the most controversial terms in this 21st century as it directly attacks the fundamental right Article 21 of the Indian Constitution.


Data Analysis

Data acquired by the National Crime Records Bureau shows that the figures in 2018 out of 89 Human Rights Violation done by the state police only 25 have been registered and talking specifically about encounter killings, out of 4 none went through the adjudication process. Being in the legal community, how can we bring this issue to the notice and remedy the aggrieved.

With the number of ‘fake encounters’ with the same story on the rise, it is quite apparent that the police have set a template where the police try to fit in each of their unlawful activity. The downside of this is that in cases where there is an actual need for the police to act in self-defence, they hardly find supporters. The faith of the people in the police force has now become a mockery. Quoting Mr Kapil Sibal, maybe the ‘Rule of Law’ is now the law of ‘He Who Rules’.

The recent murder of a father-son duo in Tamil Nadu is a wake-up call for the judiciary and the public in India, where multiple evidence against the police officials are out in the open. The police officials not only have the blood of two innocent men on their hands but have also tried to conceal their acts by recording false statements and creating a dramatic story out of the incident. India needs stricter laws and proper enforcement of such laws to put an end to police brutality and at the same time, hold the relevant police official responsible.


LJCS: Legal Journal for Contemporary Society


Criticism Of Non-Function Of Law Against It

In the last few years, there have also been multiple expert panels and committees to recommend reforms for the police force and address the related issues. However, all these recommendations and guidelines are flouted by the police force, left, right and centre, to date.

To limit and eventually curb incidents like these, the first step should be to draft a code of conduct (having the effect of law) for what is within police personnel’s powers, what all is permissible and what is not. Little, but no regard is paid to the rights’ conventions at the international level and certain guidelines from the human rights’ and non-governmental organisations. Not each incident can possibly be because the police force was acting in ‘self-defence’. The lack of legal framework governing such incidents makes it easier for the responsible police personnel to find loopholes and get away with their wrong-doing. Stricter anti-torture laws need to be put in place to allow stricter actions against the responsible police personnel—a real punishment and not just a façade. Section 176 (1A) of the Code of Criminal Procedure, 1973, that requires a mandatory judicial enquiry into custodial deaths, has been flouted by the states for years now. The existing framework: (a) does not suffice; and (b) is not complied with.

The Supreme Court of India, in the case of State Of Madhya Pradesh vs Shyamsunder Trivedi And Ors, held that:

…rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that ‘direct’ evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their Custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues…[2]

This holding by the Supreme Court also points at the anomaly that exists within the police department. It is a rarity that police personnel speak up against their colleagues to bring the truth to the forefront. Absurd as it may sound, a plethora of Bollywood movies also enact the kind of brotherhood discussed in the above holding. The most famous example that comes to my mind is from the movie Singham, where the entire team of police officers come together to break the law and take the law in their hand multiple times during the movie. In my understanding, what motivates the police personnel to do this is, to gain public popularity (in cases like that of Hyderabad, where the public sentiment may have influenced the police in acting the way they did).

Another argument is that of the police not having faith in the judiciary to give a timely and informed decision, so the police may feel motivated to serve justice without going through the judicial process. In other instances, like that of the treatment of the migrant workers and the unfortunate incident that happened in Tamil Nadu, only one thought comes to my mind, ‘Absolute power corrupts absolutely’. A similar uproar is now being witnessed in the United States of America, in the wake of killing a black man, George Floyd, by a policeman, using excessive force. Certain important elements of the protests arising from this incident are defunding the police force and use of technology to report police personnel in case of excessive force used. While this may seem like a distant dream for India, it should nevertheless be considered.


Conclusion

In the end, it is not just the police we can blame or point fingers at, because nobody hates the ‘bad cop’ more than a ‘good cop’ who has to suffer due to the bad name brought to the entire department. There is much more to these acts backed by political connections or by money and muscle power. The entire system needs to change and realise that it is always common to suffer from police personnel when such incidents occur. Even if the person tortured or killed by the police is proven guilty or is a repeat offender, nothing gives the police personnel the right to take things in their hands and serve the justice they think they are serving.

- Utkarsh Dwivedi,
2nd Year, Nirma University

References:

[1] Niddhi, Law of Torts in Reference with Custodial Deaths in India, 1 Journal of Law of Torts and Consumer Protection Law 5, 6 (2018)

[2] State of M.P. vs. Shyamsunder Trivedi and Ors. (09.05.1995 - SC) : MANU/SC/0722/1995

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