One of the worst sins in a civilized society regulated by the Rule of Law is custodial death. Does a citizen, when a policeman arrests him, forfeit his constitutional right to life? Can a citizen's right to life be put in abeyance upon his arrest? Indeed, the answer has to be an emphatic' No.' In India, where the rule of law is implicit in any action and the right to life and liberty is regarded as the fundamental right that adorns the highest position among all essential fundamental rights, torture instances, and the use of third-degree tactics on suspects during unlawful detention and police detention throws a slur on the administration system itself.
Between 2005 and 2018, nearly 1,200 people died in police custody, but during this time, only seven people were prosecuted. The latest custodial death case that caught India's attention was that of a father-son in Sathankulam, a town in Tamil Nadu's Thoothukudi district. On June 19, 2020, the victims were arrested by the police, citing minor lockout violations. Later on, the police reportedly attacked them, physically and sexually. Both of them succumbed to the injuries within a couple of days and the police staff believed that the deaths were caused for medical reasons. This led to state-wide demonstrations, extensive media coverage of the issue, and the initiation of proceedings by the Madras High Court to keep the police responsible for their deeds. The investigation into the incident against all nine accused police officers was then ordered by the Court.
The case was eventually referred to the CBI, which filed a charge sheet on September 27, 2020, revealing that the pair had been subjected to indescribable torture by the police. It also claimed that the hands and legs of the victims were held by the accused police workers to stop them from defending themselves. The exposure of the problem by people on social media and the reinforcement of public indignation by news media organizations is one of the key reasons for the speedy filing of charges against police officers. In bringing correct and timely public attention to such incidents of custodial abuse, it is undeniable that the media plays a vital role. The vast majority of custodial deaths, however, are unreported by the media and, consequently, those responsible for these human rights abuses are often shielded by state machinery without the associated public pressure.
In its reports from 2005 to 2018, the National Crime Records Bureau (NCRB) reported that 281 cases were registered with respect to the death of 500 persons in custody, 54 police officers were charged, but not a single policeman was convicted during that time. Of the 700 deaths of individuals in pre-trial custody, 312 cases were reported, 132 individuals were charged, and only 7 individuals were convicted. The deaths before remand are before the magistrate within the first 24 hours after the arrest before the defendant is made. This year alone, the National Human Rights Commission, India (NHRC) recorded 914 deaths in custody in the seven months up to July 2020, 53 of these in police custody. As per their records, in cases registered between 2013-14 and 2017-18, 714 individuals were confirmed to have died in police custody. These deaths do not include deaths in police encounters, which during the same time accounted for 837 incidents.
REMEDIES OF CUSTODIAL TORTURE AGAINST: -
Legal regimes and judicial precedents are the two methods.
It has been held in a catena of judgments that it is not because a person is in police custody or detained or under arrest that he is deprived of his fundamental rights and that his breach empowers him, pursuant to
Article 32 of the Constitution of India, to move the Supreme Court.
ARTICLE 20 OF INDIA’S CONSTITUTION:
Article 20 confers on an individual, in particular, the rights against the prosecution of offenses. They include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) 'No offense, no penalty without prior penal law,' Article 22 of the Rome Statute of the International Criminal Court, i.e., ex-post-facto laws, making it a violation of fundamental rights of individuals if attempts are made to arrest him and torture him in compliance with such statutes. Article 20 also protects against double risk (Nemo Debit Pro Eadem Causa Bis Vexari) No one should be twice bothered or harassed for one and the same reason [if it appears to the court] This Article most notably protects a person from self-incrimination. In order to make him confess to a crime, the police subject a person to brutal and constant torture even though he has not committed the same crime.
ARTICLE 21 OF INDIA’S CONSTITUTION:
In the Indian courts, this article is interpreted to secure the freedom to be free from torture. This view is held that more than a mere right to live an animalistic lifestyle is the right to life. The word 'life or personal liberty' in Article 21 provides a guarantee against torture and attack on a person who is taken into custody, except by the State and its functionaries, and no sovereign immunity can be asserted against the State's liability arising as a result of any criminal use of force against the captive person.
ARTICLE 22 OF INDIA’S CONSTITUTION:
In relation to belief, Article 22 defines four basic fundamental rights. This include being told of the reasons for arrest, being defended by a legal practitioner of his choosing, the laws of preventive detention and production before the nearest Magistrate within 24 hours of the person's arrest. These regulations are therefore intended to ensure that an individual is not subjected to any ill-treatment that is devoid of legislative backing or that exceeds the excesses prescribed.
ADDITIONAL CONSTITUTIONAL SAFEGUARDS:
INDIAN EVIDENCE ACT, 1872
It is not possible to prove a confession to a police officer against a person convicted of any crime (Sec. 25 Proof Act) and confession triggered by intimidation from a person in power will be meaningless in criminal proceedings in order to prevent any evil of a temporary nature as, inter-alia, provided in Sec. 24. Thus, while torture in custody in India is not explicitly prohibited by law, evidence obtained by unlawful means, including torture, is not allowed in court.
INDIAN ACT OF POLICE
Sections 7 and 29 of the Act specify that police officers who are incompetent in discharging their duties or unfit to perform the same are dismissed, fined or suspended. This can be seen in the light of numerous constitutional and legislative protections and procedures being breached by police officers.
INDIAN PENAL CODE(IPC), 1860:
An amendment was brought in in Sec. 376 of the IPC after the infamous (Mathura Rape case (1979) 2 SCC 143). Sec. 376(1)(b) penalizes the custodial rape of police officers committed. This was a welcome improvement made to the section in question, as it essentially opposes the conduct of police officers taking advantage of their power. IPC Sections 330, 331, 342 and 348 are ostensibly meant to deter a police officer who is empowered to apprehend and interrogate an individual during the investigation of an offense from using third-degree torture techniques.
The police are one of the coercive arms of government and have been given the duty of upholding law and order in society. When the police seize an individual's liberty and put him or her in police custody, the State itself assumes full responsibility for the security of that person's life and liberty under the obligations of domestic and international human rights laws.
India is a welfare state governed by its Constitution, which guarantees the life and personal freedom of people in general and, in particular, of persons in custody. There is, however, a deep concern about the growing incident of custodial crimes occurring in various parts of the county. There is an upward trend in allegations of abuse of authority and torture of suspects in custody of police and other law enforcement authorities having the authority to arrest a person for questioning in connection with the investigation of an offense.
Custodial crimes are especially egregious relative to other crimes and represent a public servant's betrayal of custodial faith against the defenseless people in custody. Therefore, it takes an hour to enact legislation that would help curb such incidents.