CLAT 2022- Custodial Death: An Uncivil Act In Civil Society.

The murderous assault on the father-son duo took place despite a strong legal framework that protects the rights of an accused in custody. Examples are Article 21 and 22 of the Constitution of India, provisions of the Code of Criminal Procedure (CrPC) relating to procedures of arrest and investigation, provisions of the Evidence Act relating to admissibility of evidence, and Supreme Court (SC) judgments like DK Basu vs State of West Bengal and Anesh Kumar vs the State of Bihar.

• The brutality of the killings of Jayaraj and Bennicks in the Sathankulam police station in Thoothukudi, Tamil Nadu, is of a piece with police high-handedness which thrives in a broken criminal justice system.

• The police, responsible for those in their custody, acted in criminal breach of their constitutional and statutory duty.

• Videos uploaded day after day confirm this is no rarity — a horrific double murder in Tamil Nadu, grossly depraved behavior towards women who came to complain in UP, four alleged escapees gunned down by a police posse in Telangana, a father tortured to death before his 10-year-old son in Hapur, UP.

• The National Crime Records Bureau records 853 custodial deaths between 2010 to 2018 — 70 of them in 2018 alone. At 1,636, the National Human Rights Commission puts the death figure much higher. For this, just three policemen have been convicted.

Deaths in custody are unfortunately not isolated incidents. Police in India routinely use torture and flout arrest procedures with little or no accountability. The magistrate investigating the recent deaths reported that the police did not cooperate during his inquiry, insulted him, and destroyed evidence.

Steps to be taken

• Police in India must take people who are arrested for a medical examination, and doctors are required to list any pre-existing injuries because new wounds are evidence of police abuse in custody.

• Additionally, every person arrested must be produced before a magistrate within 24 hours. The magistrates then inspect arrest-related documents and ensure the well-being of suspects by questioning them.

• Not registering complaints is another common failure.

• It is common practice in police stations to ignore the statute, laid down processes, and Supreme Court guidelines. So frequent is the brazen disobedience to the law that a lot of illegality seems to have morphed into accepted practice. Most dangerous illegality hides inside the “encounter” stories that regularly surface.

DK Basu judgments

• Starting with a letter complaint of 1986, this converted PIL spawned four crucial and comprehensive judgments — in 1996, twice in 2001 and in 2015, laying down over 20 commandments.

• Additionally, it led to at least five other procedural, monitoring, and coordinating judicial orders, in the best traditions of continuing mandamus.

• These have created a valuable and seamless web of legal principles and techniques to reduce custodial death and torture.

But where we fail is in operationalizing the spirit of DK Basu, in punitive measures, in last-mile implementation, in breaking intra-departmental solidarity with errant policemen and in ensuring swift, efficacious departmental coercive action plus criminal prosecution.

First, 11 commandments in 1996, focused on vital processual safeguards

• All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or a respectable member of the locality.

• The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organization and arrestee must be made known of DK Basu judgment.

• All such compliances must be recorded in the police register, the arrestee must get a periodical medical examination, inspection memo must be signed by arrestee also and all such information must be centralized in a central police control room.

• Breach to be culpable with severe departmental action and additionally contempt also, and this would all be in addition to, not substitution of, any existing remedy.

All of the above preventive and punitive measures could go with and were not alternatives to, full civil monetary damage claims for constitutional tort.

Eight other intermediate orders till 2015

• Precisely detailed compliance reports of the above orders to be submitted by all states and UT and any delayed responses to be looked into by a special sub-committee appointed by state human rights body.

• Also where no SHRC existed, the chief justice of the high courts to monitor it administratively. It emphasized that existing powers for magisterial inquiries under the CrPC were lackadaisical and must be completed in four months unless sessions court judges recorded reasons for the extension.

• It also directed SHRCs to be set up expeditiously in each part of India.

The third and last phase of judgment ended in 2015

• Stern directions were given to set up SHRCs and also fill up large vacancies in existing bodies.

• The power of setting up human rights courts under Section 30 of the NHRC Act was directed to be operationalized.

• All prisons had to have CCTVs within one year. Non-official visitors would do surprise checks on prisons and police stations.

• Prosecutions and departmental action to be made unhesitatingly mandated. 

What are the lackings in the system?

A 1985 Law Commission report directing enactment of section 114-B into our Evidence Act, raising a rebuttable presumption of culpability against the police if anyone in their custody dies or is found with torture, has still not become law, despite a bill introduced as late as 2017.

We still have abysmally deplorable rates of even initiating prosecutions against accused police officers. Actual convictions are virtually non-existent.

Conclusion

Monitoring and implementation of DK Basu by independent and balanced civil society individuals at each level, under court supervision, is sufficient to minimize this scourge. It is high time we take action in this direction.

To ensure accountability, all relevant agencies--the magistrate, the bar, and the medical practitioner--must follow their mandate scrupulously. They are collectively responsible for ensuring the constitutional rights of an arrestee, especially the right against torture.

Key Takeaways

• The police, responsible for those in their custody, acted in criminal breach of their constitutional and statutory duty.

• The murderous assault on the father-son duo took place despite a strong legal framework that protects the rights of an accused in custody. Examples are Article 21 and 22 of the Constitution of India, provisions of the Code of Criminal Procedure (CrPC) relating to procedures of arrest and investigation, provisions of the Evidence Act relating to admissibility of evidence

• But where we fail is in operationalizing the spirit of DK Basu, in punitive measures, in last-mile implementation, in breaking intra-departmental solidarity with errant policemen and in ensuring swift, efficacious departmental coercive action plus criminal prosecution.

• A 1985 Law Commission report directing enactment of section 114-B into our Evidence Act, raising a rebuttable presumption of culpability against the police if anyone in their custody dies or is found with torture, has still not become law, despite a bill introduced as late as 2017.

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