Custodial Death: The barbarous violation of Human Rights and Right to Life.

Introduction

Injustice anywhere is a threat to Justice everywhere

–Martin Luther King

“Our movement should not be limited to being against any particular law, but it must be for acquiring the authority to make laws itself”. These words were spoken by The father of Hindutva: Vinayak Damodar Savarkar who faced the most deadly forms of torture by Britishers while being imprisoned for 50 years in a Cellular Jail, in Port Blair India.   

The criminal justice system ensures that protection of rights and fair trials should not be available only against victims, but it also needs to be available against the accused. The components of the criminal justice system consist of Police officers, judicial bodies, and disciplinary authorities. “These components were fashioned to support the ideals of legal justice. Legal justice is the result of forging the rights of individuals with the government’s corresponding duty to ensure and protect those rights – referred to as due process. However, there are instances like custodial death where (Police officers, Judicial bodies) violate the human rights and right to life of the accused”. Human rights are those basic rights that are inherently considered for everyone regardless of race, caste, sex, colour, religion, birth, language etc.

• Custodial death

The Society which is governed by the rule of law, considers custodial tortures as a major disgrace. Custody refers to restraining the person’s right to freedom of movement during arrest, prosecution, sentencing and correctional confinement to interrogate the suspect about the offence. Custodial death refers to the death of an accused in custody during interrogation or questioning due to excessive use of force by competent authorities. “It not only violets the accused right to life but also defeats the very purpose of the rule of law that we enshrine in our constitution. It also affects the spirit of democracy, for, a democracy derives its spirit from its people and when people’s right to life is not protected, surely isn’t a healthy democracy”. 

• Death in Different Types of Custody
• Death in Police custody- Police custody means when police after the receipt of a crime immediately arrest the suspected person, to prevent him from committing further crimes and take him to the police station to keep him in lockup is called police custody. Death in police custody means the death of the accused while being in the police custody during interrogation or while questioning, by the use of excessive torture. 
• Death in Judicial custody- Judicial custody means when a suspect is arrested by police officers, presented before the magistrate and then on the order of the magistrate / sent to jail called judicial custody
• Death in Military custody- It refers to the death of a suspect while being in the custody of military authorities such as army officers. 

• Torture

Torture usually denotes intense suffering, physical, mental and psychological pain, use by competent authorities while interrogating the accused. The suspect is detained in an isolated place with no family, friends or legal assistance. It also denotes breaking down under severe physical pain and extreme psychological pressure. 

Before the second world war physical torture as a method of interrogation was considered to be legal in many countries. But just after the Second World War, physical torture became a matter of concern concerning the violation of human rights. Later on, with the adoption of the Universal Declaration on Human Rights, in 1948 and the Geneva Convention, in 1949, the prohibition against torture was advocated. Finally in 1984, for the first time, the UN General Assembly adopted the convention against torture and defined the meaning of torture. It defines torture as follows:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in the official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

However, the definition deliberately excludes pain and suffering arising from lawful sanctions which ultimately creates a serious loophole.

• Method of Torture while in Custody

Before discussing various methods of torture, attention needs to be drawn towards the two forms of custodial violence. Firstly, torture to a certain extent that is permitted by legislation and in exceptional cases to get confessions. It is secondly, exceeding the power provided under the legislation. 

There are various methods of torture such torment techniques involve ponding iron nails on the body, us the roller on the legs and consuming, wounding with screwdrivers, electric shock, pouring petroleum in confidential parts, beating while being cuffed at the same time, pricking needle in the body and many. 

“Besides this, there are other certain forms of brutality that have been used such as, some of them being inhuman and barbaric. For example, the Saturday Statesman June 4, 1988 reported that in most of the cases crushing the testicles of the prisoners has been the modus operandi of Tamil Nadu police. Likewise, the Amnesty International Report pointed out the police-blinding incident in Bhagalpur Jail, Bihar. Moreover, sexual harassment of women to the extent of rape has become a common form of torture. Such a cruel, brutal and barbaric attitude of Indian police has not suddenly come out of the blue. It is an age-old phenomenon. It will become clearer after peeping through the historical background of police administration in India”.

Recently in one incident, the accused was nabbed from a small town in Muzzafarnagar (UP) in connection with an abduction case, he died because of police torture in custody and later his body was thrown by them in the Hindon River. 

In another incident, a 22-year-old man died in police custody at Patel Nagar police station in New Delhi. He was picked up from his on suspicion of involvement in theft.

• Factors responsible for custodial deaths

In India, “the primary reason for custodial death is mainly excessive use of force on the accused, because they don’t consider any other alternative method except force for interrogation. Secondly, sometimes police find themselves immune from any kind of punishment because they think what they are doing is lawful. Thirdly, according to them use of the degree method is the correct method and it is part of their profession. Fourthly, many times competent authorities were under pressure from bureaucrats, politicians and other high-profile persons, who forced police officers to get the desired answer from the accused. Fifthly, to classify as the best interrogator. Lastly because of lack of knowledge, training and experience concerning interrogation”. 

2.2.1 Traumatic transition, associated with incarceration results in suicides in custody  

Recent studies suggested that suicide is also becoming a major factor in custodial death cases. The reason behind it is a traumatic transition that victim faces when there is a stressful shift from normal life to police custody. It mainly includes:

• Movement restrictions: The individual’s sudden movement gets restricted when they are not allowed to move freely.
• Loneliness: Arrestees after often face loneliness when they get separated from family and friends. 
• Excessive amount of torture: Any Torture to some extent can be resistible, but if it exceeds then it becomes irresistible and often forces someone to commit suicide.
• Lack of attention being paid to their mental illness: It has been seen that prisoners’ mental illness often gets ignored when they are kept in isolation, instead of providing proper treatment.  
• Stress and anxiety: After getting confined in custody, detainees often deal with stress and anxiety concerning the well-being of their families, himself/herself future, the punishment they will be facing etc.

In Feb 2024 Dalit youth, who were called to Uttar Pradesh’s Amanpur Police Station of Kasganj district committed suicide because of the immense amount of police torture while being in custody. 

Besides this there are some other factors such as lack of patience in police persons while interrogating, lack of medical facilities in case of injury occurred to the accused, negligence by the concerned authorities and finally lack of supervision by senior officers during interrogation.  

However, custodial deaths and brutality against the accused also happen because of societal pressure which demands more tough actions that were not sanctioned by the law (such as encounters) that need to be taken place against the accused.

• Comprehensive statistical overview

• National statistic

“In India according to the recent NHRC report released in November 2023, 10 cases of police custodial death and 181 cases of judicial custodial have been registered. Apart from that report released by NHRC (2017-2022) on custodial death submitted to the Ministry of Home Affairs showed a troll of 669 cases of death in police custody. It had also been seen that NHRC in 201 cases provided monetary relief of a total of 5,80,74,998 and strict disciplinary action in one case during the period from April 1, 2017, to March 31, 2022, in the incidents of deaths in police custody”.   

“The National Crime Records Bureau recently released its annual report for 2022. It estimated 75 custodial deaths in that year. The most number of deaths were recorded in Gujarat, 15 in number. Other states part of the list were Bihar, Andhra Pradesh, Bihar, Assam, Haryana etc.

In the last 20 years, there have been a total of 1888 custodial deaths in the country. From this figure, only 893 cases were registered against policemen. Later only 358 policemen were found guilty and finally, only 26 of them were convicted. This data by NCRB on police custody deaths has been compiled under two headings, namely, ‘persons on remand’ and ‘persons not on remand.’ The former includes those who are said to be under police or judicial custody. The latter includes persons who, even though have been arrested are yet to be produced before the court of law. Most of the cases against the policemen comprise of the not on remand category as against more custodial deaths reported than in the remand category”.

“However, these data are only figurative, as a general rule, the diagram is a lot higher than any recorded number. Asian Centre for Human Rights of “Torment in India 2011” showed in its 2011 released report an alternate image of the prevailing circumstance. Even though the NHRC works for Human Rights Violations, a lot of state preacher disappointment goes unreported. The ACHR showed an extraordinary distinction truly, it revealed that (6) passings in police care were enrolled by the NHRC in the territory of Jammu and Kashmir from 2001-2002 to 2010-2011, Regardless of the data on 31 March 2011 Jammu and Kashmir Chief Minister Omar Abdullah in a composed answer to an inquiry in the Legislative Council expressed that (341) people had kicked the bucket in police guardianship in the state since 1903”.

• International statistics, comparatively involving USA &UK 

In the USA a recent report released by Federal law enforcement agencies showed around 105 deaths in arrest and 613 deaths in custody in the year 2021. From 2016 to 2021, federal agencies reported an average of 64 arrest-related deaths and 504 deaths in custody each year. The manner of these deaths included homicide, suicide, illness, natural death, accident and others. 

Whereas in the UK according to the report released by the Minister of Justice (UK) provides insight into “313 deaths in prison custody from 2022-2023, an increase of 9% from 288 deaths in 2022. Out of these, 88 deaths were self-harmed, resulting in a 26% increase from the 70 self-harmed deaths from the previous year. In the most recent quarter, there were 61 deaths, a 32% decrease from 90 deaths in the previous year”.

• International treaties and conventions

1. Universal Declaration of Human Rights (UDHR), 1948: The introduction of UDHR fostered the contents of human rights. “Article- 5 of the declaration expressly ruled out subjection to torture or cruel, inhuman or degrading treatment or punishment”. 
2. International Covenant on Civil and Political Rights: India ratified this law on the 10th of April, 1979 and its article- 7 prohibits any kind of torture, inhumane, cruel or degrading treatment against any person. 
3. The African Charter on Human and Peoples ‘Rights 1986: This charter was adopted on June 27, 1981, and came into force in 1986, It is also considered to be Africa’s oldest human rights instrument. Article 5 of the charter provides “freedom from any kind of exploitation, degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”. 
4. The European Convention on Human Rights 1953: The convention was drafted in 1950 to protect human and fundamental rights for the countries belonging to the European Council. Article 3 states, “No person should face torture or Inhuman or degrading treatment or punishment”. 

• Legal compliance
• Constitutional provisions:
• Article- 20(1)- It states that “No person shall be convicted of any offence except for violation of law”. On the other hand article- 20(3) deals “No person accused of any offence shall be compelled to be a witness against himself”. However, the Supreme Court in the case of in the case of Selvi v. the State of Karnataka held a violation of Article- 20(3) had taken place when the accused personal right against self-incrimination was violated.
• Article- 21- This article says that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In the case of Maneka Gandhi v Union of India Justice Bhagwati held that the procedure established by law should not be arbitrary or oppressive. 
• Article- 22- This article ensures prisoners’ protection against arrest and detention in certain cases. 
• Statutory provision:
• Indian Evidence Act, 1872

1. Section- 24- No confession is considered to be valid if it is made under threat, inducement or promise concerning the accused. 
2. Section- 25- Reading this section with 162 of CRPC confirms that “confession made in front of police cannot be considered as proof of evidence for a conviction. 
3. Section 26- “Provides that “Confession by accused while in the custody of Police not to be proved against him unless it is to be made in the immediate presence of the magistrate”. Whereas “section 27 of the act talks about “how much information received from an accused may be proved. It also says that the accused statement must separate into its parts and distinguish the admissible portion thereof. The only discoverable part will be admissible as proof”

• Indian Penal Code, 1860

1. Section- 330- “This section talks about the confession by voluntarily causing hurt to extort confession, or to compel restoration of property, violation of this can lead to imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.
2. Section- 331- It talks about whoever voluntarily causes hurt to extort the confession, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to a fine. 
3. Section 342 and Section 348 deal with “Punishment for wrongful confinement and punishment for wrongful confinement to extort confession or property from accused. 
4. Section- 376- It deals with the punishment of rape, whereas clause (1)(b) of 376 specifically deals with punishment for cases involving custodial rapes Whoever “being a public servant, takes advantage of his official position and commits rape of a woman in his custody or place subordinate it, as such public servant shall be punished with rigorous imprisonment and shall also be liable to fine” 

• Criminal Procedure Code, 1973
• Sections 46(3) and Section 49 of the Code “With these sections protections were given involving detenu under police custody, who are not found guilty of a crime punished by law for life imprisonment or death”. “The person cannot be subjected to more repression than is required to prevent his escape”. 

1. “Sections 50 and Section 56 of the code are in conformity and consonance with Article 22 of the Constitution. The alleged person must be told of the reasons for the detention and the right to bail.” Moreover, “he is to be produced before the Magistrate within the predetermined period.”
2. “Section 54 of the Code’ extends “safeguard against any infliction of custodial torture and violence by providing for examination of an arrested person by a medical officer.” ‘Whereas Section 57 of the code’ requires “the police to bring the suspect or accused within 24 hours of arrest before the nearest magistrate.” “It corresponds to Article 22(2) of the Constitution.”2
3. ‘Sections 162, 163(1) and 315’ of the code disallow “(i) forced confession and (ii) testimony as inadmissible in the court of law and protect the accused against such confession.” Whereas, ‘Section 167’ laid down “a duty to put the suspect before the court to protect his rights and interests.”
4. “Section 176 of the same code “provides for compulsory magisterial inquiry on the death of the accused in police custody,” whereas ‘Section 357A talks about framing “the victim compensation scheme by the respective State Government.” Similarly, ‘Section 358 of the code deals with “the compensation to persons groundlessly arrested”
5. Role of Judiciary

6.1 Compensation in Custodial Death

Indeed, the compensation cannot be proportionate to the lives of the deceased person. However, providing monetary assistance to the deceased family stands out as a good option. It is because in most of the cases deceased person used to be the breadwinners of the family, and hence it can ensure a financially stable life for them. Some of the court judgments regarding compensation in custodial death as follows:

• Rudal Shah v State of Bihar

In this case, a victim was wrongfully detained in custody for 14 years after the acquittal by the session court. The Supreme Court held the government and its officials liable and awarded Rs 35,000 as compensation to the victim. Furthermore, the court ruled that the protection of the fundamental right to liberty and life would lose its significance if SC only ordered for release from illegal detention and refused to order compensation. 

b.) Nilabeti Behera v State of Orissa

In this case, the court awarded Rs 1.5 lakh to the mother whose son died in police custody, the court also pointed out that prisoners and detainees are not given the protection of basic fundamental rights granted under Article- 21.

“It follows that a claim in public law for compensation’ for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle that justifies an award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution”. 

c.) M. kalithai v. State of Tamil Nadu

In this case, the court awarded compensation of Rs 2 lakh to the victim’s family who died in police custody. 

6.2 Guidelines provided

• DK Basu v State of West Bengal 

This is a landmark case for custodial death in which the court greatly felt the need to cure the problem of custodial death, and therefore came up with 11-point guidelines that need to be followed by police officers while taking the accused in custody. Discussed points as follows:

• “The police officer at the time of arrest and interrogation needs to be in proper uniform with accurate and clear name identification which proves his/her identity as a police officer.
•  Preparation of a memo is necessary at the time of the arrest, which needs to be attested by at least one witness who can be a member of the arrest family or any local person from the place where the arrestee had been arrested. 
• At least one family member or relative or the person connected to the arrestee, needs to be informed about the information of arrest or the place where the interrogation will begin.
• Time, place of arrest and venue of custody need to be informed by the police to the friend or relative(who lives outside) of the arrestee within 8 to 12 hr of the arrest. 
• Arrestees need to be informed, about the rights they have of informing to his/her relatives or friends about the arrest. 
• A diary entry needs to be made, containing the details regarding the arrest and the name and particulars of police officials under whom the arrestee is. 
• At the time of arrest, on the request of the arrestee he/she can be examined for any minor or major bodily injury. 
• After every 48 hr, the arrestee needs to undergo a medical examination by a trained doctor appointed by the director of health service of the state.  
• Copy of all documents including memo of arrest need to be sent to the Magistrate for his record.
• Arrestees have the right to meet his/her lawyer at the time of interrogation, but not throughout the process. 
• A police control room could be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”
• Joginder Kumar v. State of U.P

“In this case, the court deals with the incidents of violation of human rights because of indiscriminate arrests. According to the recommendations made in the Third Report of the National Police Commission, SC said except in heinous offences, police should avoid arrest. A notice to the person to attend the police station and not to leave it without permission would suffice”.

• Kishore Singh v. State of Rajasthan
• In this case, the Supreme Court held that using the “Third-degree method while interrogation is violative of Article- 21 of the Constitution. Further, the court added that the police authorities must respect the accused rights. 
• Rahul Shah v State of Punjab

In this Apex court held that in exercising its jurisdiction under Article- 32, SC can pass an order for payment of money in the cases involving a violation of fundamental rights and personal liberty of the petitioner. 

• State of U.P. v Ram Sagar Yadav

“In this case, Supreme Court recommended a change in the law of evidence so that the policemen guilty of custodial torture could not escape from the conviction due to the absence of evidence”.The most important part of the judgment involved the escape of police officers from custodial death charges because the victim failed to bring evidence. 

• Sheela Barse v State of Maharashtra

In this case, the court held that a person taken into police custody must be present before Magistrates within 24 hr of his/her arrest. Also medical examination of the arrestee every 48 hours needs to be done and copies must be sent to Magistrates, accused also have right to meet his lawyer.

7. Conclusion and Recommendation

Recently, in Ajay Kumar Yadav vs. The State of Uttar Pradesh & Ors. (2024) The Hon’ble Supreme Court cancelled bail of a police official who was an accused of causing custodial death. The bench held “ It is a fact that, in ordinary circumstances, we ought not to invoke our jurisdiction under Article 136 of the Constitution of India to invalidate an order granting bail to an accused. But this criteria, while dealing with the question of granting bail, would not apply in a case of custodial death, where police officials are arraigned as accused. Such alleged offences are of grave and serious nature.”.  No doubt custody plays an important part in the criminal justice system, whether obtaining a confession or detaining an accused from committing any further crime. But it cannot be at the cost of violation of fundamental rights and human rights of the accused. 

In the current scenario, custodial death has become a major concern, as discussed above with the rising data on deaths and torture questioning the criminal justice system of India and human rights, it become of utmost importance for the government to bring some changes. Some of the suggested recommendations are :

• Need for an alternative method in place of applying physical force while getting a confession. 
• Providing standard healthcare and regular medical examination of detainees.  
• Place of detention needs to be official, and secret places of detention need to be prohibited.  
• Competent authorities need to be trained and provided with the necessary instructions to prevent the abuse of fundamental rights and human rights of detainees.
• Providing proper mental health care to prevent them from committing suicide in custody.