Custodial deaths in India is not an alien concept but traces its origin from the dark British regime. The colonial period in India embarked an Indefinite number of killings, including numerous freedom fighters too. Throughout the shift of regimes in Indian politics the maintenance of law and order has been subjected to a different set of approaches by the leaders of different regime. Every set of approaches had its own repercussions.
We saw an unusual paradigm shift in Indira Gandhi’s Regime, an era of chaotic and abrupt exercise of executive powers. The inception of emergency infamously known as the dark period of Indian Democracy was used as a primary tool for withering Democratic threads of the country. An unidentified number of custodial killings took place in the emergency period, exact numbers are yet not known.
Custodial Death means, death of a detained person in Custody of police, prison service or other authorities, for the meaning of custody, they are of three types:
- POLICE CUSTODY
- JUDICIAL CUSTODY
- PARLIAMENTARY FORCES
The constitutional validity of custodial violence and torture is still debatable, it is often backed with deterrent-retributive punishment theory to provide it an enforceable validity in the social atmosphere. After all, Law could be anything and everything, that the society employs to correct the wrongdoers and every other like-minded. Though the law in past few decades has been vigilant about the rights of the detained but the ground reality of the enforceability of those rights is not much of an Encouragement for their betterment. Mostly the oppressed sections of the society are the ones severely affected by the substantial and procedural failures of the provisional protections under the statues.
CUSTODIAL DEATHS SIN OF HIGHEST ORDER IN A CIVILIZED SOCIETY
Deaths in police custody are the darkest nightmare in a democratically weaved society. When the institutions that were formulated to protect the very ideals of the Constitution become the chambers of injustice and anarchy, then the value embedded vessel of the society often cracks releasing the thrashed ideals of Justice, equity, equal rights and just representation into pits and holes.
Subjection to torture that eventually leads to the death of detainee casts a fathomable shadow upon the rights and dignities guaranteed by article 21 even though it has been settled long back that article 21 is utterly imperative in nature and does not exhaust even in the time of national emergency.
The Delhi High Court while hearing a case stressed the width and scope of article 21 and held, “that article 21 of the constitution of is the flag bearer of the liberty and dignity guaranteed to every man and woman, the purpose of entrusting the state with the enforcement of Article 21 would be exhausted if the state fails to eliminate the malafides vitiating the enforcement of rights guarantying the life and liberty of its subjects”.
In Nilabati Behera v. State of Orissa, it was held, it is self-evident that the fundamental right of the detained does not extinguishes but is only subjected to certain restrictions regarding the enjoyment of those rights and the only rights affected are according to the procedures established by law.
In past few decades the death inside the lockups has been on the rise and nothing substantial has been done to control it. In India, prison control solely rests in the hands of police officials, as a result no one but police personnel is the only one to be held accountable for this lawlessness. Recently there was an uproar in West Bengal by the locals against the Inhumane treatment of a faultless citizen. The framework of the Indian judicial system is such that the government backs torture practices in the police custody as the means of effective justice administration and the enforcement officers are granted impunity against their monstrous acts.
Although it is principally believed that the prison administration can be governed by judiciary but practically the magistrate depends upon the police officers for the further process. The enormous Judicial powers entrusted to the police officials by the government are the root cause of the indecent practice of Custodial deaths. The practice goes against the ideals of separation of powers and also the against the provision of Code of Criminal Procedure 1973 which says, judiciary to severed from other parts of the government.
In Nilabati Behera (Smt) alias Lalita Behera v. State of Orissathe Supreme Court held that claim for compensation in public law against strict liability is distinct from the liability claimed under law of tort. Compensation in public law for the violation of the rights guaranteed by part III of the constitution is an apt and the only redress before the legal heirs of the deceased against the government or its servants for transgressing their limits.
In case of PUDR vs. Police commissioner, Delhi police headquarters and anrsome laborers were compelled to work in the police station without wages. When the laborers demanded the wages, they were beaten up and thrashed and the women laborer’s clothes were stripped off. Owing to this inhumane treatment one of the laborers, Ram Swarup succumbed to injuries. The supreme court based on the above facts ordered to compensate the legal heirs of the Deceased with Rs 50,000 and the women whose clothes were stripped were compensated Rs 5,000 each.
For the past 40 years, Kashmir has been crying tears of blood shredded in the police and military custodies. Ever since the Muslim insurgency in the valley and the onset of extensive Muslim militancy activities the forces in Kashmir had been on their toes, there has been loss of life on both sides but the custodial violence is something which has emerged a glaring practice in the valley right from the insurgency of 1989 that led the mass killings of Kashmiri pandit that left them no option but to leave the valleys.
In last 5 years, 220 personnel have been found guilty of Custodial killings and grave human right violations. Many such stories have been found unnoticed in the valleys and often go unheard, there families in valley who have been from years searching what actually killed their boy was it the militancy or the transgression of power by the security forces.
Looking back at the cases in the past decade we have seen that Courts have been compensating the heirs of the deceased, fixing the vicarious liability upon the state for the wrong doings of its officials.
In Moheela Moran v. State of Assam, the Court has asserted the applicability of the doctrine of vicarious liability in the cases of Custodial deaths.
Crime is a syndrome affecting the criminal psychotically, and people committing those crimes if seen from a reformative perspective are patients of psychotic syndrome who can be treated by medico-legal recipes inside the prison where the criminals should be skilled and not killed. Prison reformations are the first thing that should be on the table of the governing authorities as it has been long since the Custodial deaths have been out casting the democratic structure of our governance. The Indian police forces and prison authorities are effective, the only thing required is the shift in the approach by the authorities towards the detained, being guilty or not shall be an option on the table anymore.
Constitutional Miscellany, V. R. Krishna Iyer2nd Edn (2003) p.149, 151
Bhajan Kaur vs Delhi Administration through LT. Governor, 1996 IIIAD Delhi 333
(1993) 2 SCC 746
(1989) 4 SCC 730
(2000) 2 Gau LT 504
This article is authored by Varunendra Pandey 3rd-Year, B.A.LL.B (Hons.) student at Amity Law School, Delhi
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