Custodial Deaths: Immediate need for a strict law

Dated: July 04, 2020

                                                                                                                                                          - By Megha Bhatia

For Indian culture, the definition of custodial death is not new. Citizens have been dying during the interrogation in police detention since the British rule. India has witnessed time and time again the fundamental rights of the inmates being shattered, and the use of coercion and torture to take up the favourable statement. Police management is always being blamed during the trials for custodial deaths, torture and the usage of illegal methods.

“Custodial Death is one of the worst crimes in a civilized society governed by Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right of life of a citizen be put in abeyance of his arrest? The answer, indeed, has to be an empathetic “No” – Supreme Court in D.K. Basu v. State of West Bengal.

The increasing number of custodial deaths in India have caused fear in the minds of everyone. The fact that the only ones who are entrusted with the responsibility of saving everyone has become a threat to them is scary. Independent investigation, at least in the early phase, in the event of custodial death / torture, becomes a major concern owing to the apparent reality that the authorities are called in to justify themselves.

The shocking death of father-son in Tamil Nadu

The world has seen a lot in this year. Where the nation was shocked at George Floyd’s death due to police violence, the murder of a father-son reportedly in police custody in Tuticorin district of Tamil Nadu has created fury in the state back home. The newspaper outlets have indicated the father-son duo in police detention were sexually abused violently.

During the lockdown on 19 June, 59-year-old P Jayaraj and his 31-year-old son J Fenix were picked up for questioning by the Sathankulam police to keep their mobile accessories shop open. Police reportedly thrashed them whilst in detention, which culminated in their murder. Although Fenix fell ill and died on 22 June at the Kovilpatti General Hospital, his father died on June 23rd morning.

“Constitutionality is being replaced with muscularity, and in a democracy, we cannot let that happen,” said Senior Advocate and former Union Law Minister Dr Ashwini Kumar on the instances of custodial torture happening in the country.

“India is yet to enact a law which is prerequisite for us to become a responsible member of the international legal regime against torture. In 2010, when the UPA govt. was in office, a committee was established for the same and I was heading it. The matter could not be taken by the government as it was not functional at that time. In 2014, there was a change of government and I had requested for it to be passed as a humanitarian law. I failed in doing so, and then I approached the Supreme Court. I am absolutely baffled that the Supreme Court chose not to exercise their power to delve into this matter. The happenings in Tamil Nadu have once again shocked the conscience of the nation,” narrated Dr. Kumar when he was asked about his views on why there is no anti torture law in India yet to which he also stated that his head hangs in shame that this country has yet to come up with a domestic legislation to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“The Torture Convention”).

“India needed proper implementation of existing laws to curb custodial torture before enacting another in consonance with international covenants,” said former Supreme Court judge, Justice Deepak Gupta.

Justice Gupta, who was speaking in a webinar on the topic of ‘Custodial Deaths: Need For An-Anti-Torture Law’, said “there can be no doubt that we require an anti-torture law. But, it must be done by Parliament. The court only decides what is legal and not legal,” he added.

The former judge said the trials and proceedings are not fair, which must be rectified first and talked regarding the recent death accident involving father and son in Tamil Nadu due to violence in police custody.

He said ‘there were rules that were violated’.

“Even during COVID times, we see cases of police brutality and the police being helpful. But, the former is more and it's against the poor. In the Tamil Nadu case, they had kept the shop open for 15 extra minutes? Was it that serious an offence? “Police does not attack the privileged. Let's first implement the law as we have it. The investigations, the prosecutions are not fair; these must be rectified first,” Justice Gupta said and added that the change in mindset is also required before bringing in an anti-torture law.

“If the police are trained in a better manner, then even our existing police can do better,” he further added.

Is Justice really done in such cases?

The justice is in these cases becomes very difficult. One of these instances was when soon after the brutal custodial deaths of father-son duo in Tuticorin, Tamil Nadu, which have sparked a national outrage, the cops accused of custodial torture and death of a 35-year private security guard of a Ghaziabad firm in Uttar Pradesh's Hapur district were given a clean chit in a police investigation. It all began on October 13 last year when the 35-year-old man named Pradeep Tomar was allegedly tortured to death by policemen at Chhijarsi post under Pilkhuwa Kotwali in Hapur. Pradeep was summoned to Chhijarsi outpost or interrogation in a murder case. His 10-year-old son, who accompanied him to the outpost, had claimed that he was detained and brutally thrashed and even stabbed during interrogation.

Methods of torture used by Police

There has been a research which states that there exists many methods which are used by police to torture the accused in their custody. “Torture methods used in 2019 included hammering iron nails in the body (Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (Rizwan Asad Pandit of Jammu and Kashmir), ‘falanga’ wherein the soles of the feet are beaten (Rajkumar of Kerala), stretching legs apart in opposite side (Rajkumar of Kerala), and hitting in private parts (Brijpal Maurya and Lina Narjinari of Haryana),” said NCAT director Paritosh Chakma.

The other methods of torture included electric shock, pouring petrol or applying chilli powder on private parts, beating while handcuffed, pricking body with needles, branding with a hot iron rod, beating after stripping, urinating in mouth, inserting a hard blunt object into 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 and legs tied, and kicking the abdomen of a pregnant woman.

The NCAT’s analysis also revealed 75 (60%) of these 125 belonged to the poor and marginalised communities. 

Rights to be known

The family of a person who has been tortured in police custody should know that:

  1. Section 176(1A) of the Code of Criminal Procedure inserted in 2005 amendment is a special provision to deal with the cases of death, disappearance or rape in police custody. Despite the mandatory nature of the provision, its compliance is highly rare, so in January 2020 the Supreme Court had issued a notice on a Public Interest Litigation (PIL) petition seeking a directive to all States/UTs for strict implementation of this section. 
  2. Registration of FIR is mandatory in the case of custodial death.
  3. The National Human Rights Commission has issued general instructions in 1993 that within 24 hours of occurrence of any custodial death, the Commission must be given intimation about it. 

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