Custodial and Lockup Deaths in India

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Custodial deaths are circumstances of the death of persons who are detained by police during pretrial or after conviction. Custodial deaths can be broadly classified into three types

1] Death in police custody; 

2] Death in judicial custody; and 

3] Death in custody of the army or paramilitary unit.

Custodial Death is widely referred to as death that happens to a person who is under trial or has already been convicted of a crime. It can be due to natural causes like illness or may also happen due to suicide, infighting among prisoners but in many instances, it is police brutality and torture that is the reason behind the death. 

The issue is very controversial and complicated. Often, the victims are tortured before they are arrested, i.e. before they are taken into custody, which helps the police conveniently claim that these are not incidents of custodial violence, and the injuries have happened before the arrest. Sometimes, before the arrest, the victims are killed by fake encounters. This is also a form of custodial death, which becomes very hard to prove. The most intriguing aspect is that all evidence and records are with the police, outside evidence is hardly available. This results in great difficulty in identifying custodial violence and the resultant death that occurs after it.

Custodial deaths are one of the highest forms of violation of human rights. It is a blunt attack on the right to life and liberty guaranteed by the Indian Constitution. The responsibility of protecting the life of the accused and the convicts lies with the respective states. Individuals accused of or convicted of crimes are entitled to a fair trial, safety, and security in police and judicial lock-ups and Correctional Homes. But the law-enforcing authorities often fail miserably in discharging their constitutional obligation and what is even more unfortunate is that after such incidents happen, there is an all-out effort from the perpetrators to cover up their misdeeds. The Government plays a big role in protecting the accused officers. 

Custodial torture and other police atrocities still prevail in India and even the “privileged are not spared third-degree treatment", recently Chief Justice of India N V Ramana mentioned  The threat to human rights and bodily integrity are the highest in police stations. The way ahead to keep police excesses in check, he pointed out, was “dissemination of information about the constitutional right to legal aid and availability of free legal aid services".

5 DEATHS PER DAY

According to the National Human Rights Commission, a total of 1,067 people died in custody in the first five months of 2021. Most fatalities, 263, were recorded in February, while most deaths in police custody were registered in March. 

Section 167 of the Code of Criminal Procedure speak about two types of custody i.e. police custody and judicial custody. As per section 167(1) of Cr. P.C., “the magistrate to whom an accused person is forwarded under this section may whether he has or not has jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as he may think fit. Provided that the magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so. So as per section 167 (1) of Cr. Pc. 'police custody' can be granted for a maximum period of fifteen days only' Police custody basically means police remand for the purpose of interrogation. In law actually a police officer has two occasions to keep a person in its custody firstly, from the period when he arrests a person till he produces the said person in the court i.e. first 24 hours of the arrest of the accused. Secondly, when police gets, remand from court after producing the accuse in the court which can be extend up to a maximum period fifteen days, thereafter, a person is sent in judicial custody which in general terms means jail or prison, where an accused remain in custody till he gets bail or if convicted and sentenced to jail till the completion of sentence. As per law, ‘custody’ of a person begins when the police arrest him.

Another type of custody as mentioned earlier is ‘judicial custody’ which means sending a person in jail or prison. As per section 3 (1) of ‘The Prison Act, 1894’, ‘Prison’ means any jail or place used permanently or temporarily under the general or special order of a State Government for the detention of prisoners and include all land and building appurtenant thereto, but does not include:-

(a) Any place for the confinement of prisoners who are exclusively in the custody of police; or

(b) Any place specially appointed by State Government under section 541 of the old Criminal Procedure Code, 1882,

(c) Any place, which has been declared by the State Government by general or special order to be a subsidiary jail.

The Hon’ble SC has held that the precious rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, detenues and other prisoners in custody, except according to the procedure established by law.

The Hon’ble SC has also laid down detailed guidelines to be followed by the Central and State investigating and security agencies in all cases of arrest and detention. These guidelines are popularly known as “D.K Basu guidelines” and are enumerated hereunder;

• The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name-tags with their designation.

• The police officer carrying out the arrest of a person must prepare a memo of arrest and it must be attested by at least one witness.
• A friend or relative or another person, known to the arrestee or has an interest in his/her welfare shall be informed as early as possible about the arrest.
• If the next friend or relative of the arrestee lives outside the district or town, they must be informed by the police through ‘legal aid organization’ telegraphically, within 8 to 12 hours during the arrest.
• The arrestee must be instructed about the right to have someone informed about his/her arrest or detention, as soon as he/she is put under arrest or is detained.
• An entry must be made in the diary regarding the arrest of the person.
• On request of the arrestee, he/she should be examined at the time of the arrest.
• The arrestee should be subjected to medical examination within 48 hours during his detention.
• All documents including the memo of arrest should be sent to the concerned magistrate.
• The arrestee may be permitted to meet his lawyer during interrogation.
• A police officer causing the arrest shall provide ‘information regarding the arrest’ and            ‘place of custody’ of the arrestee within 12 hours of affecting the arrest to the police control room.

The police officials commit an act of violence upon the persons in their custody under the guise of investigation and interrogation. The heinousness of this crime is that it is committed upon the citizens by the very person who is considered to be the guardian of the citizens. It is committed under the shield of uniform and authority within the four walls of the Police Station or locked up, the victim being totally helpless in these circumstances. The protection of an individual from torture and abuse of power by police and other law enforcing officers is a matter of deep concern in a free society.

The chances of violence committed by police on persons in its custody are much greater than any other form of violence. The basic reason behind it is that the victims of such violence are unable to protest against it. The police officers use their official position to manipulate evidence against themselves. Death in custody is generally not shown on the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from jail. Any complaint against torture is not given attention because of ties of brotherhood. No direct evidence is available to substantiate the charge of torture or causing hurt resulting into death, as the police lock- up where generally torture or injury is caused is away from public gaze and the witnesses are either policemen or co-prisoners who are highly reluctant to appear as prosecution witness due to fear of retaliation by the superior officers of the police.

However, in spite of the Constitutional and Statutory provisions contained in the Criminal Procedure Code and the Indian Penal Code aimed at safeguarding personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been disturbing. Experience shows that the worst violations of human rights take place during the course of investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as "prolonged interrogations". A reading of the morning newspapers carrying reports of dehumanising torture, assault, rape and death in police custody or other governmental agencies almost every day is, indeed, depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of the criminal justice system. As a result the society rightly feels perturbed. The society’s cry for justice becomes louder.

According to National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India.

Only 4.3% of the 70 deaths in 2018 were attributed to injuries during custody due to physical assault by police.

Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Odisha, no policeman was convicted for such deaths across the country.

Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. And only 344 policemen were convicted in those cases.

Major Reasons:

Lack of Legal Representation:

Lack of effective legal representation at police stations is a huge detriment to arrested or detained persons. The first hours of arrest or detention often decide the fate of the case for the accused.

Lengthy Judicial Processes:

Lengthy, expensive formal processes followed by courts dissuade the poor and the vulnerable.

Absence of Strong Legislation:

India does not have an anti-torture legislation and is yet to criminalise custodial violence, while action against culpable officials remains illusory.

Institutional Challenges:

The entire prison system is inherently opaque giving less room to transparency.

India also fails in bringing the much desired Prison Reforms and prisons continue to be affected by poor conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons.

Excessive Force:

The use of excessive force including torture to target marginalised communities and control people participating in movements or propagating ideologies which the state perceives as opposed to its stature.

Not Adhering to International Standard:

Although India has signed the United Nations Convention against Torture in 1997 its ratification still remains.

While Signing only indicates the country’s intention to meet the obligations set out in the treaty, Ratification, on the other hand, entails bringing in laws and mechanisms to fulfil the commitments.

Constitutional and Legal Provisions:

Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution.

The right to counsel is also a fundamental right under Article 22(1) of the India constitution.

Section 41 of Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation.

Conclusion

To keep police excesses in check, dissemination of information about the constitutional right to legal aid and availability of free legal aid services is necessary. The installation of display boards and outdoor hoardings in every police station/prison is a step in this direction. If India wants to remain as a society governed by the rule of law, it is imperative for the judiciary to bridge the gap of accessibility to justice between the highly privileged and the most vulnerable . Accessing justice in India is not merely an aspirational goal;  Judiciary needs to work hand in hand with various wings of the government to make it a practical reality.