Saturday, 9 April 2016

Human Legal Rights Violation - Custodial violence & Custodial Death in India

Custodial torture is a calculated assault on human dignity and whenever human dignity wounded, civilization takes a step backwards. Using any form of torture for extracting any kind of information would neither be right nor just nor fair, hence, impermissible, and offensive to Article 21 of the Constitution. A crime suspect, declared the court, may be interrogated and subjected to sustained and scientific interrogation in the manner determined by the provisions of law, but, no such suspect can be tortured or subjected to third degree methods or eliminated with a view to eliciting information, extracting a confession or deriving knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law.


The SC in this case observed that the cases of custodial torture and custodial death have increased day by day. The case came up before the court through a writ petition under Article 32 of Constitution of India by a NGO. The SC of India developed a custodial jurisprudence in   D. K. BASU v. STATE OF WEST BENGAL (AIR 1997 SC 610).The Supreme Court  considered  it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: 

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. 
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.  
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee. 
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. 
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record. 
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 
11. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

This case was followed by seven subsequent orders of the SC and emphasised on effective implementation of its directions issued in the 1st D. K. BASU. In recent times there is an increasing concern of the international community above the practice of torture of prisoners and detenus. Torture is a well established too, of investigation of the Indian Police despite its ruling in earlier cases and growing incidence of torture and death in police custody. In this case the court looked into the recommendations made by Amicus curiae.

India is party to the International Covenants on Civil and Political Rights and the International Covenants on Economics Social and Cultural Rights. Section 2 (d) of the Protection of Human Rights Acts defines human rights and included in its ambit of both covenants.  The establishment of National Human Rights Commissions of India was a step towards fulfilling its commitment at international level. It is disturbing to note that even at the 22 years of the establishment of NHRC, a few Indian states have failed to established State Human Rights Commission and thus ignore the section 21 of the Protection of Human Rights Acts. The NHRC has been Advocating for the establishment of SHRC by all the states so that every citizen of the country has easy and inexpensive recourse to redress the human rights violation.

In this case the court issued the direction to the governments of Arunachal Pradesh, Delhi, Meghalaya, Mizoram, Tripura and Nagaland for early establishment of SHRC. The court also issued direction for fulfilling of the existing positions in all the existing SHRCs. It is important to note here that the court should have also looked into the effectiveness of the commission and its jurisdiction. In many cases it has been found that NHRC is receiving complaints from specific states even though SHRC was established in that state but somehow failed to generate trust among the people about its independence and impartiality. The 3rd recommendation of Amicus curiae was regarding the establishment of human rights court for each district as stipulated under section 30 of PHRA. No doubt the establishment of human rights court would help in speedy disposal of the cases related with human rights violation. Unfortunately till date only the state of Sikkim has compiled with the section 30 of PHRA and the other states are observing complete silence in this regard. The court did not give any dead line for the establishment of human rights court but suggested that the state government can take up the matter with the Chief justice of High Court of their respective states and examine the possibility of establishment of human rights court in their states. Apart from these recommendations the court also issued directions for the installation of CCTV cameras in all police stations within 2 years, appointment of nonofficial visitors to prisons and police station and deployment of at least two women constable sin each police station where ever such deployment is considered necessary. The court also directed the state authorities for initiating of an inquiry to establish culpability in custodial death and an appropriate prosecution for the commission of such offences as disclosed by the inquiry report.

The Supreme Court being the guardian of the Constitution it is its duty to protect human rights of the citizens. Custodial violence , torture and custodial  death strikes a blow to the rule of law which demands that the police authorities should take care of accused persons while they are under police custody. Any form of torture or cruel, inhuman or degrading treatment, would fall within the inhibition of Article 21, whether it occurred during investigation, interrogation or otherwise.

Dr. Hari Mohan Mittal,
Professor - School of Law


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