Examining Custodial Death: Challenges and Calls for Accountability

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13-May-2024 | Akai Negi

Custodial death refers to a death that occurs while a person is in custody, directly or indirectly linked to activities during custody, such as in jail, police vehicles, medical facilities, or public spaces. An exception to Section 300 of the Indian Penal Code holds public employees accountable for culpable homicide if excessive force leads to death. The National Human Rights Commission of India recorded 2,152 deaths in judicial custody and 155 deaths in police custody up to February 28, 2022. According to a report from the National Campaign Against Torture (NCAT), there were 146 reported cases of death in police custody during 2017-2018, followed by 136 in 2018-2019, 112 in 2019-2021, 100 in 2020-2021, and a total of 175 in 2021-2022.

The failure to hold law enforcement accountable for resorting to cruel tactics, justified under "performance of duty," exposes gaps in legislative safeguards within our judicial system. Sections 330, 331, and 348 of the IPC address control over police officers' cruel and unusual punishment, yet they prove insufficient. Sections 76 of the CrPC, along with Sections 25 and 26 of the Indian Evidence Act, and Section 29 of the Police Act, 1861, also play roles in addressing such misconduct.

Directive from the National Human Rights Commission (NHRC): In 1993, the NHRC issued a widespread directive mandating District Magistrates and Superintendents of Police to promptly report any instances of custodial deaths to the Commission within a 24-hour timeframe.

Regulations Regarding Police and Judicial Custody

In India, Section 167 of the Code of Criminal Procedure outlines the terms for detaining an individual in custody to aid an investigation. Under this section, a person can be held in police custody for a maximum of 15 days under a magistrate's directive. An executive magistrate can authorize custody for up to 7 days, while a judicial magistrate can extend it to 15 days.

In terms of Judicial Custody, Section 57 of the CrPC comes into play immediately upon an individual's arrest without a warrant. It explicitly states that, as per Section 167, a police officer cannot detain someone for more than 24 hours without a special order from a Magistrate.

Some Notable Cases Associated with Custodial Deaths

T.V. Eachara Varier vs Secretary To The Ministry of Home 1976: The custodial death of P. Rajan, an engineering student arrested by Calicut police during the Emergency. Despite a habeas corpus issued by the Kerala High Court, the police failed to produce Rajan by the stipulated date of April 21, 1976, leading to the presumption of his death.

Nilabati Behera v. State of Orissa 1987: Suman Behera of Sundergarh, Orissa, was arrested on December 1, 1987, and later found dead on nearby train tracks. Nilabati Behera, the victim's mother, sued the state of Orissa, leading to a Supreme Court verdict on March 23, 1993, ordering the state to compensate her with ₹150,000, setting a precedent for compensation to victims' families.

Udayakumar v. State of Kerala 2005: Udayakumar was arrested by three policemen in Thiruvananthapuram on suspicion of theft and subsequently killed. A Central Bureau of Investigation (CBI) special court, on July 23, 2018, found two officers guilty and sentenced them to death, while one died during the trial.

P. Jeyaraj and Bennicks case 2020: P. Jeyaraj and his son Bennicks, arrested by Sathankulam police on June 19, 2020, for violating Covid-19 lockdown rules, were tortured in custody. Bennicks died on June 22, 2020, followed by P. Jeyaraj's death on June 23, 2020.

Recent Developments and Regional Patterns in Custodial Deaths in India

Regional Patterns in Custodial Deaths (2017-22):

An analysis of custodial deaths across different states reveals regional trends, with Gujarat registering the highest number, followed by Maharashtra, Uttar Pradesh, Tamil Nadu, and Bihar.
Among the nine Union Territories, Delhi reported the highest incidents, with 29 custodial deaths, followed by four in Jammu and Kashmir.
The reported cases of death in police custody were 146 in 2017-2018, 136 in 2018-2019, 112 in 2019-2021, 100 in 2020-2021, and 175 in 2021-2022. While states like Sikkim and Goa had no incidents reported from 2017 to 2020, each recorded one incident in 2021-2022.
Despite a total of 9,112 custodial deaths in the past five years, disciplinary actions were taken in only 21 cases, representing just 0.23% of the total cases. Notably, nearly 69% of deaths in police custody from 2010-2020 were attributed to illness (40%) or suicide (29%), with physical assault by police observed in only 6% of cases.

Challenges and Calls for Accountability in Addressing Custodial Deaths

Violation of Constitutional Tenets: Custodial deaths resulting from police brutality contravene the foundational principles enshrined in the Indian Constitution, notably Articles 20, 21, and 22.
- Unlawful deprivation of personal liberty, such as prolonged imprisonment without due legal process, constitutes illegal detention, a direct infringement of Article 21 of the Constitution.
- The case of Rudal Shah vs. the State of Bihar & Ors (1983) epitomizes the plight of individuals subjected to prolonged incarceration despite acquittal.
Misuse of Custody for Serious Offenses: Instances of police misconduct within custody, including torture and rape, represent severe transgressions. The infamous Mathura Rape Case 1972 in Maharashtra exemplifies custodial rape, while cases like Nilabati Behera vs. the State of Orissa 1933 underscore the harrowing consequences of police harassment and abuse.
Fabricated Encounters: Fake encounters, a subset of custodial deaths, have gained notoriety. The recent conviction of former Mumbai Police officer Pradeep Sharma by the Bombay High Court for his role in a 2006 fake encounter marks a significant judicial milestone, highlighting accountability for police misconduct in such cases.
Violation of International Human Rights Frameworks: These incidents also run counter to various international instruments, including the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the United Nations Standard Minimum Rules for the Treatment of Prisoners (2015), among others.
- Despite signing the United Nations Convention against Torture, India's ratification remains pending. This gap between intention and action in addressing custodial violence effectively indicates a failure to adhere to international standards.
Absence of Strong Legislation: India's lack of specific anti-torture legislation and failure to criminalize custodial violence contribute significantly to the prevalence of custodial deaths.
- Police often escape legal consequences for brutality and violence against citizens in custodial settings. Section 197 of the CrPC grants immunity from prosecution to public officials unless sanctioned by the government.
- Despite numerous custodial deaths reported, very few cases result in arrests or convictions of police personnel. Investigations may be biased, lacking political will to hold perpetrators accountable.
Failure in Implementing Prison Reforms: India's failure to implement much-needed prison reforms perpetuates poor conditions, overcrowding, acute manpower shortages, and minimal safety against harm in prisons. These systemic deficiencies increase the risk of custodial deaths.
Lengthy Judicial Processes: Lengthy and expensive legal procedures deter marginalized and vulnerable individuals from seeking justice for custodial abuses. The complexity and inefficiency of the judicial system further marginalize those already disenfranchised, perpetuating systemic inequalities.
Role of Oversight Bodies: National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRC) are tasked with oversight but often lack power to penalize perpetrators. NHRC's recommendations typically focus on compensation rather than prosecution, reflecting limited accountability mechanisms.
Violation of the Rule of Law: Custodial deaths resulting from torture and violence by law enforcement agencies contravene the foundational principles enshrined in the Constitution of India. Articles 20(1) and 20(3) explicitly prohibit punishments beyond what is prescribed by law and coercion of individuals to self-incriminate, respectively. Forced testimonies not only violate these constitutional provisions but also undermine the very essence of the rule of law.

Dealing with the Challenge of Custodial Torture and Deaths

1. The case of DK Basu v. State of West Bengal 1996, emphasizes the importance of upholding the rights of the accused, including:

Protection against being tried twice for the same offense (double jeopardy), as guaranteed by Article 20(2).
- Safeguarding the right not to be forced to testify against oneself, under Article 20(3).
Ensuring that no one is deprived of life or personal liberty except through a fair and just legal process, as per Article 21.
- Guaranteeing the right to a prompt and fair trial, as outlined in Article 21.
Providing the right to legal counsel for assistance, as stated in Article 22(1).
- Ensuring that the accused is brought before a magistrate within 24 hours of arrest (excluding travel time), as per Article 22(2).
- Prohibiting detention in custody beyond 24 hours after arrest (excluding travel time) without a magistrate's order, as per Article 22(2).
The Court's guidelines from the D.K Basu Case are crucial to prevent custodial violence. These guidelines include:
- Ensuring that arrested individuals wear accurate identification and name tags.
- Creating an arrest memo with the date and time, signed by a family member or respected local, and countersigned by the accused.
- Informing relatives or friends who live outside the state within 8-12 hours.
- Allowing the accused to consult their lawyer during interrogation.
- Keeping a diary at the place of detention with details of the police officers in charge.
- Offering the arrested person a physical examination to document any injuries, along with a medical check-up every 48 hours during detention.
- Sending copies of all documents, including the arrest memo, to the local magistrate.
- Directing state human rights bodies to establish special sub-committees to monitor and report incidents, acting as the eyes and ears of the Supreme Court. If there's no state human rights body, the chief justice of the high court should oversee this.

2. Implementation of the Law Commission of India's 273rd Report. According to the report:

India, which signed the UN Convention Against Torture in 1997, should ratify it.
The definition of torture should be expanded to include acts that cause injury, whether intentional or unintentional, or even attempts to inflict physical, mental, or psychological harm.
Police Complaints Authorities, as mandated by the Prakash Singh case, should be established in every district to prevent the abuse of power by officials.
A specific law to prevent torture should be enacted, as the draft Prevention of Torture Bill 2017 lapsed with the dissolution of the Lok Sabha.
Police sensitisation programs should be conducted to remind officers of their responsibilities to citizens in a democracy, rather than resorting to brutal tactics reminiscent of colonial times in the name of maintaining law and order.

3. Ratification of UN Convention Against Torture, 1984 by India is crucial.

It requires a thorough review of colonial-era rules and practices related to the custody and treatment of individuals under arrest, detention, or imprisonment.
Establishment of dedicated mechanisms for redress and compensation for victims, including the formation of a Board of Visitors.

4. Police Reforms are essential.

Clear guidelines should be formulated for educating and training officials involved in cases where people's freedom is restricted.
Senior police officers need to understand the seriousness of these issues and make necessary changes to current practices.

5. Improving access to prisons is necessary.

Improving access to prisons is necessary for transparency and accountability, including unrestricted visits by independent inspectors, installation of CCTV cameras in police stations and interrogation rooms, and regular surprise inspections by Non-Official Visitors (NOVs) to prevent custodial torture as recommended by the Supreme Court in the DK Basu Case in 2015.

6. Improving the Legal System:

Make clear laws that say custodial torture is wrong, following directions from the Supreme Court's Prakash Singh Case in 2006.

Directives laid down in Prakash Singh vs. Union of India, 2006:

Establishment of a Police Establishment Board
Formation of the National Security Commission
Formation of a State Security Commission
Formation of a Police Complaint Authority
Separation of the investigation and law and order functions of the police
Merit-focussed approach for the appointment of the Director-General of the Police
Two-year minimum tenure for SP and station house officers
Compensation to the victim

7. Supporting People and Human Rights Groups:

Encourage groups in society to stand up for those who have faced custodial torture.
Allow the NHRC to investigate cases even if it's been over a year since the incident, and give them power to look into cases involving the military too, with proper rules in place.
Offer help and legal support to victims and their families.
Work with international groups fighting for human rights to find justice for victims.

8. Crucial Role of Local Magistrates in Custodial Matters:

Local magistrates should exercise caution when granting police or judicial custody, as it seems to be a routine practice but should actually be an exceptional measure. They are the ones who see all arrested and detained individuals within 24 hours, making them the first line of defense in upholding the rule of law.

Conclusion

These major concerns collectively highlight systemic failures within the Indian criminal justice system, necessitating urgent reforms to ensure accountability, protect human rights, and uphold the rule of law. Addressing these issues requires a concerted effort from policymakers, law enforcement agencies, and civil society to enact meaningful changes that safeguard the dignity and well-being of all individuals in custody.

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