The gross violation of human rights due to Custodial Deaths – What is the current legal position in light of statutes, precedents and recent events in India?

By Shrishti Jeswani, 2nd Year, BA.LLB (Hons), School of Law, KIIT University

Life means not only physical existence. It means the use of every limb or faculty through which life is enjoyed. The right to life includes the right to a healthier environment”.

~ Justice P.N. Bhagwati 

‘Custody’ which means the guardianship or protective care of a person. If we talk about the arrest of a person it does not imply any violence during that custody.  A civilized law does not in any manner promote custodial cruelty. ‘Custodial Cruelty’ mainly brings out the senseless exhibition of superiority and physical power of a person. Any kind of torture faced by any person in a custody flouts the basic essence of human rights. Every human has basic rights which we terms as ‘human rights’ and even a prisoner is a human being first and prison torture is the failure to justice to any man. 

“The death of any person in custody whether of police or judicial will amount to Custodial Death”. The police has always played a role to safeguard the death the life of people but a thing should be remembered that the police also falls under the law and not in any place above law. Therefore, they should act properly and for the same they need to show respect toward human rights. Many of the case in relation to custodial deaths always go unreported. It has always been seen that the victims of custodial deaths are mainly from a poor sections of the society. Any person who has been held in custody has their constitutional rights except for the ‘right to liberty’ and a qualified ‘right to privacy’. The Custodial Violence which include the torture and deaths in the lock-ups are done in the shields of uniform which provide authority between the four walls of the police station. A raise in the number of cases related to custodial violence is affecting and at the same time questioning the credibility of the judicial system in the country. The arrest of any person does not in any way warrant physical violence of any kind. 

REASONS BEHIND HUMAN RIGHTS VIOLATIONS 

  1. Custodial deaths which result in the violation of human rights are largely caused due the torture done by the use of third degree methods the police resorts to such methods for drawing out of confessions in the shortest time possible. 
  2. There is often a lack of patience and therefore unlawful methods are used like encounters and there is protection by the senior officers and even politicians. 
  3. Interrogation need highly skilled people and most of the policemen do not fulfil that requirement therefore they carry it out deftly. 

Article 1’ of “Universal Declaration of Human Rights” states that “All human being are born free and equal in dignity and rights”. “By reading this article in UDHR, it can be construed that every human being is equal in their rights before law and no exclusions are made even when a human being has committed a crime.

DK BASU JUDGEMENTS- CUSTODIAL DEATHS 

  • ‘Custodial death’ of a father and sons in the town Sathankulam in Tamil Naidu’s has district has brought the question of police brutality. 
  • In the present context the DK Basu since 1987 gain more significance needs a revisit. 

What are the Judgements about?

  • A letter was received in 1986 from an organization regarding the matter of lock up deaths in the state of West Bengal.
  • This letter was treated as a writ petition and taken as a PIL.
  • It 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 5 other procedural, monitoring and coordinating judicial orders.
  • These have created a valuable and seamless web of legal principles and techniques.
  • All of them are aimed at reducing custodial death and torture and to have control on police and a set of guidelines for arresting a person.

Impact of the Judgements 

  • Relatively little high occurred after formal arrest, but most torture was done before the arrest was recorded.
  • Safely obviously kick in only after the arrest is shown. 

Subsequently Development 

 In light of the above, the primary 11 commandments in 1996, therefore, focused on vital processual safeguards all officials must carry name tags and full identification
Arrest memo must be prepared, attested by one loved one or respectable member of the locality. Memo must contain all details regarding time and place of arrest. The situation of arrest must be intimated to one’s family or agent. Details must be notified to the closest legal aid organisation. Arrestee must be made known of every DK Basu right all such compliances must be recorded within the police register. The arrestee must get periodical check-up inspection memo must be signed by arrestee also and every one such information must be centralised during a central police room significantly, breach of this was to possess severe departmental action and additionally contempt also. This is able to all be additionally to, and not substitution of, any existing remedy. This first judgement further, applied the principle that rights without remedies are only illusory and futile. Hence, all of the above preventive and punitive measures could go along side, and weren’t alternatives to, full civil monetary damage claims for constitutional tort (a wrongful act or infringement of a right).
Later, after considering detailed reports, general and state-specific directions were formulated. The last phase of the judgements led to 2015.  It had stern directions to line up SHRCs (State Human Rights Commissions.  But, more importantly, it ordered filling up large vacancies in existing bodies. The so far unused power of fixing human rights courts under Section 30 of the NHRC Act was directed to be operationalised. All prisons had to possess CCTVs within one year. It had been directed that non-official visitors would do surprise checks on prisons and police stations. Prosecutions and departmental action were unhesitatingly mandated. 

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