By Ali Waris Rao:
Incidents of police brutality expose police personnel to severe criticism from different sections of the society. Statistics show that during the past decade, many deaths and rapes in police custody were reported from all parts of the country pursuant to a report published by the National Crime Records Bureau.
I would also like to mention that custodial deaths are not constrained to the murdering of dacoits or solidified offenders as certain police authorities would like to make out. Regardless of the possibility that they were hardened offenders, one must ask oneself that, does the police have the right to take it upon itself to literally dispense ruthless punishment? But before dwelling into the above issue I would like to point out that deaths in police custody are usually the result of third-degree torture to extract information from the offender or to teach the offender a lesson.
It has been reiterated in a number of cases that custodial death is perhaps one of the worst crimes in modern times in a civilised society governed by the rule of law. In my opinion, the rights inherent in Article 21 and 22 (1) of the Indian Constitution must be protected.
Article 21 of the Indian Constitution primarily deals with the right to life and personal liberty of an individual and Article 22(1) is concerned with the basic rights of the arrested person. The Court in D.K Basu vs. State of West Bengal had stated that “any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during an investigation, interrogation or otherwise”. As indicated by the report of the Asian Center for Human Rights (ACHR), Torment in India 2011, the National Human Rights Commission (NHRC) recorded a sum of 14,231 deaths in custody in India between 2001 and 2010, which incorporates around 1,504 deaths in police authority and around 12,727 deaths in judicial custody. The ACHR report observed that these are the cases that have been reported to the NHRC, and do not include all instances of custodial deaths. The report attributes the deaths in police authority to torture, dissent or denial of therapeutic/medical facilities and cruel prison conditions.
When a man is taken into custody, the obligation regarding his/her life, well-being and security rests with the dominant voices in whose care he or she is, be it the police or the concerned prison authorities.
Further, we must implement a just and humane tool to reform the crime, offender, abandon the obsessive superstition that State ruthlessness will sharpen the savage into a social part and offer new achievement in crime control, consonant with human rights and remedial curial compassion.
Additionally, it has been observed that the court lock-ups must be governed by the judiciary. This is, in spite of the fact that even the magistrates are reliant on the police authorities for their legal and judicial functions. The problem lies in vesting enormous judicial functions with the police authorities. Their occupation starts from the arrest to the conviction of the arrestee. Practically, for all intents and purposes, the independence of the judiciary has not been honoured. Now, this is contrary to the basic tenets of the Constitution and conflicts with the intention of the Criminal Procedure Code, 1973 which establishes the judiciary to be separate from other parts of the government.
The lawful framework in India is also not very much prepared to handle an issue pertaining to custodial death. To cite an example, recently, in April 2015, Viqar Ahmed and four others were shot and killed by the police in the Indian city of Hyderabad who belonged to a financially unstable family, while being transported from prison to court. It has further been observed that travelling from jail to trial is a life threatening journey for a few detainees in police custody in India. Viqar’s father stated that :
“I feel the government was interested in the encounter, while the police was eagerly waiting for an opportunity to kill my son… With such hatred in the officials, how can I expect any justice for my son’s murder?”
From the above incident, it can be easily discerned that the victims of custodial deaths often hail from poor backgrounds with little financial or political power to back them. A few of them are pulled in on no formal charges by any stretch of the imagination. Indeed, even on account of persons who are arrested, in an overwhelmingly expansive number of cases they were all accused of petty offences.
Moreover, there is a provision in the Criminal Procedure Code, 1973 relating to cases of unnatural and suspicious deaths. According to it, an officer in charge of a police station and other police officers specially empowered on this behalf are required by Section 174 to conduct an investigation into cases of suicides and other unnatural or suspicious deaths in the station, and report it to the District Magistrate or the Sub-Divisional Magistrate. Section 175 empowers such police officers to summon persons for the purposes of such an investigation.
The provisions of Section 174 and 175 afford a complete and autonomous code in itself for the purposes of inquiries in cases of accidental or suspicious deaths. Thus, sections 174, 175, 176 of the code deal with inquiries into suicide or inquiries into sudden, violent or unnatural deaths. Section 174 provides for such inquiries by the police, Section 176, by Magistrates. It must be borne in mind that a police officer making an inquiry under this section cannot order the exhumation of a human body but a Magistrate can do so under section 176. Also, section 175 must be read in conjunction with section 174 of the Code of Criminal Procedure, 1973.
The object of the inquest proceedings is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit of scope of the proceedings under section 174 of the Criminal Procedure Code, 1973. The name of the assailants and the manner of assault are not required to be mentioned in the inquest report. The purpose of preparing the inquest report is for making a note in regard to the identification marks of the accused.
The Law Commission has further observed that regardless of the fact that the police record the capture and care of a casualty, a death in the police station is made to resemble a suicide or an accident and the body is disposed off instantly, with the connivance of a specialist (doctor).
Records are manipulated to shield the police personnel responsible. The neighbourhood legislators (politicians) and warlords join the connivance. The relatives and companions of the casualty are not able to look for equity as a result of apprehension, poverty and lack of awareness. Police abominations and custodial violence have turned out to be such a great amount of piece of our lives that movies and books have as of late made them staple topics.
Custodial violence, incorporating torment and death in lockup, strike a blow at the rule of law, which demand that the powers of the executive must not only be derived from the law but that the same ought to be restricted by law. It is in this manner, for the government and the lawmaking body to give a genuine thought to their commendation of the Law Commission and National Human Rights Commission and realize suitable change in the law both to curb custodial offences and additionally to ensure that the offenders are punished.
Custodial deaths are a threat, and a dark spot upon the Indian society. The need of the hour is to impart an outlook, not just in the government’s reasoning, but also in the general public’s thought process, against the notion of custodial violence that eventually leads to death. The enforcing authorities should be made aware and held accountable for their actions, and the general public must be made aware of the methods, strategies and avenues accessible to them in the wake of such happenings. Obviously, before such a stage is reached, the government itself needs to verify that it has a well-suited framework set up which is competent to adapt up to pressures like ‘custodial deaths’.