INTRODUCTION
Custodial torture is a form of violence that happens when an accused is under the custody of law enforcement agencies. Whereas, custodial death refers to the death of an accused during trial or after conviction in the police or judicial custody. Excessive Torture Suffered by an accused in custody leads to his/her death. According to the hon’ble supreme court of India, custodial torture is a naked violation of human dignity. According to the National Crime Bureau report, there have been 1727 cases of custodial deaths reported between 2001- 2018, and out of these only 26 police personnel have been convicted. Custodial torture and death are also considered a violation of the right to life and personal liberty of an individual guaranteed under Article 21 of the Indian constitution and also Article 22 provides the rights of persons who are arrested or detained.
STEPS TO BE TAKEN TO CURB THE CUSTODIAL TORTURE
- Strict Implementation of existing laws and guidelines
Various sections like sections 302, 304, 306, 330, 331, and many others under the Indian penal code penalize custodial deaths in India. Existing laws and guidelines available against custodial torture and death are enough but these laws need to be strictly implemented. Guidelines that were laid down in the case of Joginder Kumar v. State of Uttar Pradesh and later in the case of D.K. Bose v. State of West Bengal relating to the rights of persons under arrest. It includes CCTVs in prisons and police stations, and setting up State human rights commissions to look after the prisoners and under trails. Surprise checks by non-official visitors.
- Role of Media
Media is considered the fourth pillar of democracy. The perspective portrayed in the media of an accused has a significant impact on people of society. Therefore, the media must present an impartial view.
- Reforms in police administration
In the case of Prakash Singh v. Union of India, the supreme court directed the central and state governments to try to address the problems in the present law and bring the necessary changes in the police act, of 1861. Misuse of the abundant powers given to the police administration results in crimes like custodial torture and deaths.
- Pressure by the senior officials and the public
The pressure created by the senior officials on junior police officers to crack a case results in the use of extreme torture being done on the accused to extract the truth. The supreme court in the case of Prakash Singh v. Union of India held that the central and state governments should ensure that no such pressure is created.[i]
CASES RELATED TO CUSTODIAL DEATH
- J. Prabhavathiamma v. the State of Kerala and others, 2007: In this case, a scrap metal shop worker died in custody in Thiruvananthapuram. The hearing of the case lasted for ten years and ultimately, the two serving personnal who were accused of the crime was sentenced death penalty by CBI Court.
- Yashwant and others v. the State of Maharashtra, 2018: The high court of Bombay sentenced punishment of three years to nine police personal who were involved in causing a custodial death. In this case, the supreme court upheld the decision of the high court and extended the punishment from three years to seven years. Justice N.V. Ramana and MM Shantanagoudar remarked that the unfortunate incident involving the police erodes the confidence of people in the criminal justice system
- Aydin v. Turkey, 1997: The case relates to the alleged rape and ill-treatment of a female accused by the Turkish police. The European Court of human rights observed that the actions of Turkish police were unjustified.[ii]
CONSTITUTIONAL AND LEGAL PROVISIONS WHICH PENALIZE THE OFFENSE OF CUSTODIAL TORTURE AND DEATH
- ARTICLE 20(3) OF THE CONSTITUTION OF INDIA
Article 20(3) of the constitution of India provides protection against self-incrimination. It states that a person cannot be compelled to provide evidence against himself.
- ARTICLE 21 OF THE CONSTITUTION OF INDIA
Custodial torture and death is a violation of Article 21 of the constitution of India i.e., the right to life and personal liberty of an individual. It also includes the right to life of persons who are taken into custody.[iii]
- SECTIONS 330 AND 331 OF THE INDIAN PENAL CODE, 1860
Whoever voluntarily causes hurt to anyone to extort any kind of information or any confession shall be charged under sections 330 and 331 of the Indian penal code and shall be punished with imprisonment for a term that may extend to ten years, and shall also be liable to fine.[iv]
- SECTION 176(1) OF THE CODE OF CRIMINAL PROCEDURE, 1973
Under section 176(1) of the Cr. P.C, the magistrate has the power to hold any inquiry about the cause of death of a person who dies in police custody.[v]
- SECTION 7 OF THE POLICE ACT, 1861
Under section 7 of the Indian police act, senior officers have the power to suspend a police officer if he has been negligent during the discharge of his duties.
- SECTION 29 OF THE POLICE ACT, 1861
Section 29 of the Indian Police Act provides a penalty for police personnel carrying out their duties negligently. It includes a penalty not exceeding three-month pay or imprisonment with or without hard labour for a period not exceeding three months, or both.[vi]
CONCLUSION
Custodial torture and death are considered a grave transgression of an individual’s right to live with human dignity. Torture by police officers in police custody violates various fundamental rights of a detained person. Strict implementation of existing laws and regulations is need of the hour to completely curb the crime of custodial torture.
Author – Neha Dulani
University five year law college, University of Rajasthan
[i] https://www.legalserviceindia.com/legal/article-3120-custodial-torture-and-reforms-in-police-administration.html
[ii] https://blog.ipleaders.in/custodial-deaths/
[iii] THE CONSTITUTION OF INDIA, 1950
[iv] INDIAN PENAL CODE, 1860
[v] CODE OF CRIMINAL PROCEDURE, 1973
[vi] THE POLICE ACT, 1861