The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking.
It is one of the worst crime in the civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity. Prisoners have human rights and prison torture is the confession of the failure to do justice to living man. For a prisoner, all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Simply stated, the death of a person in custody whether of the Police or Judicial will amount to Custodial Death.
No doubt, the police plays vital role in safeguarding our life, liberty and freedoms. But the police must act properly, showing fall respect to the human rights of the people, remembering that they are also beneath the law, not above it and can be held liable for the violation of human rights. One can always argue that prisons formed islands of lawless discretion in a society guided by the values and often the practice of the rule of law, where the authorities exercised arbitrary power over the prisoner’s lives.
The charge of brutal custodial violence by the police often resulting in the death of the arrestees is not new. The figures of Amnesty International in 1992 show the number of deaths in police custody in India during the year 1985 to 1991 was 415. Figures compiled by the National Crime Records Bureau show that during the year 1990-92, as many as 258 rapes and 197 deaths in police custody were reported from all over the country. Needless to say, a large number of custodial violence incidents go unreported. Arun Shourie once observed: The victims were invariably poor.
Several of them hauled in on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly large number of cases they were all accused of petty offences n fact, the victims of custodial violence are people from poor and backward sections of the society with little political or financial power to back them. Personal enmity, caste and political considerations and at times pecuniary benefits become important considerations for custodial deaths rather than investigation of cases. Conceptual aspect regarding custodial death
Law has always discouraged the acts or omissions which in general can affect right in rem and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society. Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture.
Since time immemorial man has been attempting to subjugate his fellow human beings. Those in power are used to twisting and turning the people through violence and torture, and torture under custody has become a global phenomenon. Men, women and even children are subjected to torture in many of the world’s countries,even though in most of these countries, the use of torture is prohibited by law and by the international declarations signed by their respective representatives.
A problem of increasing occurrence and repugnance had been the methods of interrogation and torture perpetrated upon prisoners and detainees. Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person in custody to ensure examination of the circumstances leading to death. Beyond
Magistrate’s inquest and in recent year’s information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored. Constitution provision regarding custodial death In thepost-Maneka era, in a cantena of cases, the Supreme Court has exposed the cruelty of the system of Prison Administration in India and has sought to humanize it. The Court has taken an active interest in seeking to improve a system which is cruel and insensitive to human pain and suffering.
Time and again , the Supreme court has emphasized that Art 14, 19 and 21 ” are available to prisoners as well as freeman. andPrisoners wall do not keep out fundamental Right”Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner. Any violation of this right attracts Article 14, which enshrines right to equality and equal protection of laws. Such rights are discussed in the International Covenant on Civil and Political Rights (ICCPR) as well.
The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are meant to protect human dignity and shun barbaric approaches. This is why no person accused of any offence shall be compelled to be a witness against himselfArt. 20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice .
The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in Bandhua Mukti Morcha case. Art. 142 empower the Supreme Court to ‘make such order as is necessary for doing complete justice in any cause or matter pending before it. The power of the Supreme Court under this provision is meant to supplement the existing legal framework in order to do complete justice between the parties and not to supplant it.
It is intended to prevent any obstruction in the stream of justice . The innovations made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to render speedy justice to victims of the infringement of right to life and personal liberty. In Nilabati Behera vs. State of Orissa, where, the Supreme Court awarded damages against the state to the mother of a young man beaten to death in police custody. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens.
Chapter V of the Criminal Procedure Code 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. PC, confers powers on and police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person.
Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest . The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the went of his arrest for a non-bailable offend. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India.
There are some provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. In Francis Corallie Mullin v. Union Territory of Delhi, the Supreme court has condemned cruelty or torture as being violative of art 21 in following words ” any form of torture and cruelty or degrading treatment would be offensive of human dignity and it would on its view , be prohibited by article 21.
It would be seen that there is implicit in article 21 the right to protection gainst torture or cruel, inhuman which is enunciated in Article 5 of Universal Declaration of Human right and guaranteed by Article 7 of International Covenant on Civil and Political Rights”. Police atrocities: some concern Custodial violence, including torture and death in the lock-ups, are committed under the shields of “uniform” and “authority” between the four walls of a police station, lock-up and prison, where the victims are totally helpless The custodial deaths are neither usual nor unknown. Such deaths take place not only in India but also in various other countries.
These deaths definitely lead to custodial violence. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence of confession often resort to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the newspaper almost everyday carrying reports dehumanizing torture assault, rape and death in custody of police or other governmental agencies is indeed depressing.
The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder. In State of Maharashtr v. Ravi Kanth S. Patit,° held, that handcuffing and parading of an under-trial prisoner was violative of Article 21 of the Constitution. The State and not the police was asked to pay compensation to the victim. Although torture is not expressly countermanded by the Constitution, Article 21 clearly provides protecting against it.