This article is a concern over the
nuances of organs of our government which even though makes law but fails to
execute it properly and which ultimately raise serious question on the
credibility of the rule of law and administration of the criminal justice
system in our country.
Let me start the article with
posing some basic questions which comes to our mind when we hear about the
cases of deaths, by the hand of the one who are supposed to be the protector of
our society. First, Does a person ceases to be a human after committing
an offence? or Does he or she lose all the rights associated with human
dignity, which we all have get from our Constitution under Part (iii) of the
Indian Constitution and the last, why these incidents go unreported?
It is true that even though we all
have got the fundamental rights by our Constitution be it either our
right to speech and expression or the right to choose our religion, occupation
or right to be treated as equal but it is very surprising that very few of us
know and understand the true meaning of these rights. Isn’t it funny?
According to NHRC Annual Report of
2015-16, “Custodial violence and torture continue to be rampant in the country.
It represents the worst form of excesses by public servants entrusted with the
duty of law enforcement.” which actually proves that India’s adherence towards
prevention and abolishment of torture as well as giving punishment to its
perpetrator is actually fragile .
According to the recent report by
National Campaign against Torture (NCAT), a total of 1731 people died in
custody during 2019. The torture method used in police custody as per the
report includes “hammering iron nails, applying rollers on legs and burning,
‘Falanga’ wherein the soles of the feet is beaten, stretching legs apart in
opposite sides and hitting in the private parts. There are other methods of
torture which include electric shock, pouring petrol or applying chilli powder
on private parts, picking body with needles, beating after stripping, urinating
in mouths, inserting a hard blunt object to anus, beating after hanging upside
down with hands and legs tied, forcing to perform oral sex, pressing finger nails
with pliers, beating with iron rods after victim is suspended between two
tables with hands& legs tied, and kicking the abdomen of a pregnant woman.”
As per the report, NCAT also
mentioned that women continued to be tortured or targeted for sexual violence
in custody and the victims often belongs to the weaker section.
Custodial deaths is not confined
only to the police custody, but also includes the so called ‘safer’ government
institutions like judicial custody (prisons), juvenile homes, de addiction centers,
and all those authorities having the power of detaining and interrogating the
accused person. Simply saying, demise of a person in the custody of either the
police or judicial is called custodial death.
In our country although the
procedure of dealing with children is different but it is ashamed to say that
children are also been tortured in the custody.
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Let us again throw some light on
the concern which was expressed in the beginning. There are innumerable cases
which indicate that despite of a strong legal framework been formulated for the
protection of rights of the accused in the custody, there is not a slight
change being seen in the abatement of custodial violence.
Supreme Court in the case of Prem
Shankar Shukla Vs. Delhi Administration, specifically referred to the right
against torture in Article. 5 of the Universal Declaration of Human Rights and
interpreted right against torture in article 21 (Right to life) of the Indian
constitution.
In case of Khatri vs. State of
Bihar, the Supreme Court ordered to investigate and punish the guilty
Police officers who brutally blinded approximately 30 prisoners by piercing
their eyes with needles and pouring acid into their eyes. Further, the Court
condemned this barbaric torture as violative of Art. 21 and also awarded
compensation to the victims.
In another case of Sunil
Batra vs Delhi Administration, the Supreme Court held that: “the Prison
administration will be liable in a case where the prisoner breaks down because
of mental torture, physchic pressure or physical infliction beyond the licit
limits of lawful imprisonment."
It is very necessary to tell that
the state is not showing its concern over the prevention and prosecution of
these incidents neither they are documenting the data of these incidents
seriously.
Every case of custodial violence
shall be investigated by a judicial magistrate as per Section 176 (1A) of CrPC.
But as the National Crime Record Bureau report 2018 mentioned 70 cases of
custodial death in the year, but judicial probe were done only on 28 cases and
charge sheet were filed only against 13 police personnel.
Taking the NCRB data 2018 on police
personnel being punished for alleged torture and extrajudicial killings it
shows that even though 89 cases were registered against them for human rights
violations such as custodial killings and illegal detentions, but not a single
one was convicted of the crime.
Findings from the Status of
Policing in India report which was released by non-governmental organizations
Common Cause and CSDS- Lokniti, showed that 12% police personnel never receive
human rights training. The survey also reported that three in every four police
personnel thinks that they action of being violent toward the criminals is
right and better than a legal trial.
The recent case of custodial death
of P Jeyaraj and his son Bennix has compelled to draw the attention toward the
case which led to the landmark order in 1996, known as DK Basu judgment laying
down the guidelines to be followed by the detaining authorities for any
arrest.
After the judgment passed, four
other crucial judgments in 1996, twice in 2001 and in 2015 laid down 20
commandments which completes the DK Basu judgement.
We have provisions under IPC
which deals with injury, hurt, hurt to extract confessions, corrupt
confinement, wrongful confinement and the provisions of Code of Criminal
Procedure (CrPC) regarding the confession, medical examination of the person in
custody and production before court during custody. That is actually not enough
for removing the atrocities happening until and unless there is proper check on
their implementation. The NHRC, the Law Commission of India and the Honorable
SC have also recommended the Government of India to enact special laws against this
custodial violence and also issued notices for the better implementation of Sec
176 (1a) of the CRPC.
A proper monitoring and execution
of the DK Basu guidelines by the authorities of the independent and balanced
society at their own level is very necessary to save the dignity of Humans as,
even though these authorities have the duty to prosecute and punish the
wrongdoers of the society but this does not mean that they have got the license
to violate the basic human rights of an individual. this is one of the serious
threat to our criminal justice system where the offence is committed by the
state itself and if they have done something wrong, the same should not go
unnoticed as one should not only derives power from law but the same should be
limited by law.
About Author
Niti Pandey is a second year BALLB student. She is doing her law course from Narsee Monjee Institute of Management Studies, Indore.
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