Custodial Reforms: Need of the hour!
Abstract: - Custodial death-, this word is not new for Indian society. Indian society
is suffering from this anathema for long now, but recently, this trend is aggravating
exponentially. Recently in June, 2020 it happened in Tamil Nadu and this incident
created a brouhaha environment in the state. What does custodial death signify of
police psychology, administration and society as a whole? Further, what are the
laws regarding the issue in domestic as well as international arena, and what sort
of reforms can be made in the existing rules and regulations to put an end to this
anathema?. These are some basic questions, which the authors aspire to cover in
the blog.
Introduction:-
The custodial death of a father-son duo in the Santhakulam police station, Tamil Nadu
has created a furore in the state. On June 19, 2020 P. Jayaraj and his son J. Fenix was
arrested by police because they kept their mobile accessories shop open during the
lockdown period. According to the media reports they were sexually assaulted in a
barbaric way, when they were in the police custody. A Chennai based news website
“The Federal” has quoted that the father son duo was allegedly sodomized in the
police custody. The report says that when they both were released from jail, their
rectrumrectum was bleeding gushingly. Between the time period of 7am -12 pm,
seven lungies were drenched with blood which they wore. Fenix succumbed to his
wounds on June 22 and his father died in the wee hours of June 23. The father-son
duo was taken in front of a judicial magistrate, but they were not able to express their
ordeal because of threat calls from police. Throughout the night duo called for help
and their screams were perceptible to the ears of residents residing within 500 metres
of the jail. The Madras High Court has ordered a probe into this matter and has asked
the supritendentSuperintendent of Police to submit the report before 26th Of July but
the family of the victims has demanded murder probe against the cops. CM of Tamil
Nadu E.K. Palaniswami has announced a compensation of 10 Lakh rupees for the
family of victims. The market was closed as a sign of protest on June 24 th. The
author’s in first part of the paper will be stating some general problems with custodial
tortures and death, subsequently author will mention the position in international law
and domestic law, at last there will be reforms with conclusion.
Backdrop of Custodial Deaths:-
The NCRB data on custodial death shows that from 2000-2016 there were 1022
deaths in police custody and in 2019 there were about 1730 deaths . This is not a
recent problem, but the happening of the Tamil Nadu incident again sparked the
debate on custodial death and torture. Custodial death or torture is one of those acts
which is a grave violation of fundamental rights or basic rights of human decency. It
is well established principle of constitutional and human rights jurisprudence that a
person cannot be deprived of his life except for the procedure established by law.
Krishna Ayer J. in his celebrated judgement of in Sunil Batra held that the
constitution does not parts with convict on the prison gatesi.
Custodial death and torture is unfortunately regular phenomenon, but we as a society
do not have furore for such brutality in fact many a time the act is celebrated. The
reason is obvious, we are never sympathetic towards the person who are behind the
bars. In fact, the society is for mostly fed up with the procedural aspect of law and
experiences comforthas started believing in the instant form of justice, apart from the
psyche there are some material hindrance in investigation of such issue. Since they are
public servant they face “in house departmental inquiry” which is inherently opaque,
chances of free and fair investigation drops exponentially if any senior police officer
is also involved in such crimes and proceedings. The modern police system was
constructed of British occupation on its colonies. They were trained to be feared by
common citizens and unsurprisingly, even after 7 decades of independence they are
living up to their legacy.
International Law Obligations:-
Violence by police violates some basic human rights and fundamental rights as well.
Such violence by police violates right to life as provided under article 21 of Indian
Constitutionii. India, as defined recognised in the case of The Chairman, Railway
Board and Ors. vVs. Chandrima Das and Ors. is a signatory on to the Universal
Declaration Of Human Rights(UDHR)iii. Article 3 of UDHR says that everyone has
the right to life, liberty and security of personiv. The principle of right to life was also
described in a binding international convention named International Covenant on
Civil and Political Rights (ICCPR), India is also a signatory of to this covenant.
Article 6(1) of this convention provides that every human being has the inherent right
to lifev. This right shall be protected by law. Life doesn’t mean living like a mere
animal, it means living the life with dignity vi. No one shall be arbitrarily deprived of
his life. Tortures and custodial deaths are also against the essence of Article 7 of the
ICCPRvii and Article 5 of the UDHRviii. These articles say that no one should be
tormented or subjected to inhumane treatment, which is a transgression of their basic
human right to protection from inhumane treatment. India is also a signatory of the
UNCAT (United nation convention against torture) but India being a dualist state it
has to be ratified by the parliament which of course was never done. Though a clearly
stated law against torture is a need of the hour but, do we need a law to say that such
acts are clear violation of fundamental and human rights?
Domestic Law:-
The police brutality is a gross ignorance of the concept of custodial justice, which
demands the prisoner to be treated like a human. Whenever a person is taken into
custody there are few rights which will automatically pop up, like his right to know
the ground of arrest, his right to remain silent as codified in article 20 ix and his right to
consult a lawyerx. These rights continue to be with the prisoner while he is in custody
and after the release also. Police cannot detain the prisoners for unreasonable times
after the arrestxi.
Evolution Of Custodial Justice:-
The eEvolution of custodial justice can be traced back to the with the case of Sheela
Barse v Sstate of Maharashtra, where the Supreme Court, SC for the first time
addressed the pathetic conditions of the female prisoners in the cell and issued certain
directives to ensure the rights of such prisoners are not violated xii. Subsequently, in the
case of Jogindar Kkumar v State of U.P., the court held that not only the person in
custody has right to know the ground of arrest, but the same has to be communicated
to his kin and it has to be mentioned in the police diaryxiii. Then came the landmark
judgement of DK Basu v State Of West Bengal where the court retaining the
guidelines of the Sheela Barse case and Jogindar Kumar cases, addressed certain
new guidelines. Later, these guidelines were incorporated in the CrPCxiv.
Conclusion and Reforms :-
The recent incident of George Floyd led ead the U.S. congress to pass the “Ppolice
reform bill”. . The Police in India, which is still governed by an anachronistic book of
1861 needs to get rid of its colonial hangover. It is there to implement the rule of law
and & not to rule by law. India as a state now needs to has to get more serious about
this issue and has to redefine the role of the police. The UN general assembly has
adopted a convention against torture named UNCAT on 10 th Dec 1987, Law
commission in its 273rd report also suggested the ratification of this convention
through legislation, but the same is still not ratified by India, Indian parliament
introduced the Prevention of torture bill, 2010 but the issue got sidelined as such
issues always get therefore it was not passed. It’s high time a codified law is passed
against torture in police custody. SC has earlier directed to parliament in Vishakha
casexv, honor killing issue and mob lynching issue to pass a law which they were
procrastinating, this is time for the judiciary to come into the picture and take an
active role of directing the parliament to draft and pass a new law which clearly
prohibits custodial torture. All the wings of the state system concerned with the matter
have a unison demand of such law. Such an important act which deals with the life of
a person certainly cannot be delayed on the will and comfort of parliamentarians.
Apart from the amendments, psychology of the police needs to be changed. When
India is aspiring for the route of development, it cannot and should not be stuck with
such regressive police system. Conclusively, the authors, through this blog article
want to conclude that what has been done with the father-son duo in Tamil Nadu was
nowhere near equitable and the same story will keep on repeating with the changed
characters, if any proper legislation is not introduced. This needs to be stopped now!
References:-
i
Sunil Batra vs. Delhi Administration and Ors. (30.08.1978 - SC) : MANU/SC/0184/1978
ii
Indian Const. Art. 21
iii
The Chairman, Railway Board and Ors. Vs. Chandrima Das and Ors. MANU/SC/0046/2000
iv
UDHR § 3 (1948)
v
ICCPR § 6(1) (1976)
vi
Kharak Singh v. State of U.P. & Ors. MANU/SC/0085/1962
vii
ICCPR § 7 (1976)
viii
UDHR § 5 (1948)
ix
Indian Const. Art. 20
x
CrPC § 50 (1973)
xi
Rudul Sah v. State of Bihar, (1983) 4 SCC 141
xii
Sheela Barse vs. State of Maharashtra (15.02.1983 - SC) : MANU/SC/0382/1983
xiii
Joginder Kumar vs State Of U.P 1994 AIR 1349, 1994 SCC (4) 260
xiv
D.K. Basu vs. State of West Bengal (18.12.1996 - SC) : MANU/SC/0157/1997
xv
Vishaka and others V. State of Rajasthan and others AIR 1997 SUPREME COURT 3011
