CUSTODIAL DEATH - POLITY
News: 80
custodial deaths in 5 yrs, Gujarat tops list; Maharashtra second at 76
What's in the news?
● The
Ministry of Home Affairs (MHA) informed the Rajya Sabha In the last five years,
the highest number of custodial deaths have been reported in Gujarat at 80,
Maharashtra (76), Uttar Pradesh (41), Tamil Nadu (40) and Bihar (38).
Key takeaways:
● Sharing
details of the custodial deaths reported between April 1, 2017 and March 31,
2022 in all states and Union Territories across India, Union Minister of State
for Home Affairs Nityanand Rai informed the Rajya Sabha that a total of 146
cases of death in police custody were reported during 2017-2018, 136 in
2018-2019, 112 in 2019-2021, 100 in 2020-2021 and 175 in 2021-2022.
Custodial death:
● Custodial
death primarily refers to death in police custody and judicial custody.
● India
has a grim record in police brutality and custodial violence.
● Between
2001 and 2018, 1727 persons died in police custody according to the recent NCRB
data.
● 75%
of the people who died in police custody were tortured.
Reasons behind increasing custodial death:
1. Non-accountability of Police:
● Only
26 policemen were convicted for such deaths showing low conviction rate in these human violation cases.
● lack
of transparency and poor communication to the family of the person.
2. Absence of strong legislation:
● India
is yet to criminalize custodial violence, as the available safeguards have
proved insufficient to deal with issues of custodial violence.
3. Socio-economic background:
● Poor
socio-economic background of accused also helps police to use their torture
mechanism as they are unaware about the law.
● Lack
of effective legal representation at the police stations is a huge detriment to
arrested/detained persons
4. Politicalization:
● Custodial
deaths are also result of accused not able to fulfil the demands of local
police.
● The
Police Act, 1861 which governs the Indian police system has no explicit
provisions on the superintendence and general control and directions of police,
leaving the executive with a lot of power to control the law enforcement
authorities as per vested interests.
5. Lack of infrastructure:
● Overcrowding
of jails lead to higher number of deaths due to space crunch and lack of
infrastructure.
● high
number of under trials around 68%.
● Medical
checkups are not done regularly.
● No
scientific investigation methods are followed by police, as they still indulge
in brute force method of interrogation.
● Overburdened
and under-staffed police forces causing mental stress along with continuous
pressure to solve the crime on fast basis exhort them to employ such methods.
Safeguards available:
● Article 21(1)
provides that no person who is arrested shall be detained in custody without
being informed as soon as possible of the ground for such arrest.
● Article 22(2)
provides that every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of 24 hours of such
arrest.
● Article 20
ensures that administration of the criminal justice system should not be so
designed or implemented as to destroy the deeper and moral values of justice
itself.
● Article 39A
provides for NALSA and free legal aid.
● D. K. Basu vs State of
West Bengal judgement (1997)
○ A
crime-suspect must be interrogated, indeed subjected to sustained and
scientific interrogation determined in accordance with the provisions of law.
○ He
can’t however be tortured or subjected to third-degree methods or eliminated
with a view to elicit information, extract confession or derive knowledge about
his accomplices, weapons etc.
○ The
burden of explaining a custodial death lay on the police rather than the
victim.
○ The
court granted compensation on the constitutional basis in public law for the
infringement of fundamental rights.
○ Realizing
the essential connection between the provisions of Articles 22(1) and 22(2),
the courts have held that the provision of clauses (1) and (2) of Article 22
are mandatory.
Measures to prevent custodial death:
● Ensuring Accountability
of Police: any such crime must be fast tracked
within a specified time period through the Independent Investigation Agency.
● Encouraging
civil societies, human rights, NGO,
NHRC & SHRCs to play an active role in creating awareness and
accountability of police.
● Inculcation
of scientific method of investigation in police force and curtailing the
practice of third-degree torture.
● Strict
Implementation of D K Basu case guidelines as well as NHRC guidelines by
states.
● Implementation
of SC’s recent directive to publish FIRs online within 24 hours.
● Implementation
of Law Commission 273rd Report: The
report recommends that those accused of committing custodial torture - be it
policemen, military and paramilitary personnel should be criminally prosecuted
instead of facing mere administrative action establishing an effective
deterrent.
● The
National Legal Services Authority
should design processes that ensure lawyers are either stationed at police
stations on a rotational basis or available on call.
● Behavioural change
in police force through training and awareness campaign.