Introduction: The negative perception of police
When we were kids, our school teachers taught us that police officer is civil servants who protect society from bad guys. They were supposed to be moral and just when protecting the weak and punishing the corrupt. While growing up, we realize that what school teaches us is mostly a sham.
We soon realize that the public perception of police is superbly negative. One of the reasons for such harsh criticisms is police officers show favoritism towards the rich and the powerful. They punish the poor harshly over trivial crimes however, they are very lenient towards those in power despite committing heinous crimes[i].
Police Brutality is another reason for harsher criticism. The death of George Floyd or the beating of Rodney King showed the critical cracks in the police system all around the world[ii]. Their lack of response towards the victims of rape and abuse has made people give up on law enforcement[iii].
What are Custodial Deaths?[iv]
The cherry on the cake is the people who lost their lives in police custody. We must first understand what custodial death is. By definition, it means the deaths that occur in either
- Army, or
- Paramilitary custody.
Custodial deaths mostly happen when the person in question is either under trial or is convicted of a particular crime. The deaths are either natural, suicide or by torture, or police brutality.
These deaths under custody are controversial for the reason that many critics call it an unethical practice. They are also complicated in nature as gathering evidence of such deaths is harder to obtain, because most of the evidence is with the police.
The detractors further added that custodial deaths are a violation of both human rights and constitutional fundamental rights. The Constitution of India ensures fair trial, safety, and security to the suspect in question, and the police are supposed to provide that. However, they fail to execute the commands of the constitution just to get some answers from the suspects in question when a major incident happens.
The State of Custodial Deaths in India[v][vi]
A report in 2019 states that there are about 1731 cases of custodial deaths in total. 92% of the deaths have occurred in judicial custody, and the rest are police custody. The 75% of those deaths that happened in police custody are mostly caused by foul play or alleged torture. The remaining 20% are alleged police incited suicide.
The high-profile death during the pandemic was that of Jayraj and Benicks[vii]. The father-son duo was put in custody after allegedly running their shop during the lockdown. The public went banshee mode after they suspected that their deaths in custody are caused by the foul plays of the police[viii].
A writer on Ipleaders stated that police use torture methods during interrogation. In my opinion, these torture methods are akin to the interrogation methods used by the Americans in the Guantanamo Bay detention center which is the slice of American Pie on communist soil (Cuba). The victims of these deaths are the people from the weaker sections of society and their deaths are brutal. They die mostly by beating, electrocution, and other forms of physical or mental torture[ix].
Remedies against custodial deaths[x]
Constitution of India
To begin with, Article 32 of the Constitution guarantees that anyone whose fundamental rights are violated by any party can seek redress in the Supreme Court. Then, under Article 21, a person’s right to life and personal liberty, which includes his or her private, is guaranteed. It means that no one, including the police, has the authority to take away a person’s right simply because he or she is a suspect.
In Inderjeet v. State of Uttar Pradesh, our apex court stated that any punishment that includes fragments of torture is not only a violation of Article 21 of the Constitution but it is also unconstitutional. Article 20 itself serves as a deterrent against the action of custodial deaths[xi].
- Article 20(1) prohibits arrests of any offenses except the offenses that are related to the offenses of law. Furthermore, the person should not be subjected to any penalty which might have been inflicted under the force of law.
- Article 20(2) expresses that a person cannot be punished for the same offense more than once. This phenomenon is known as double jeopardy.
- Article 20(3) allows the suspect in question to have a right to be a witness against himself or herself. This article serves as a deterrent against acquiring evidence in a coercive and torturous way.
Article 22(1) gives the suspect in question a right to hear his grounds of arrest. In other words, the person must know why they are arrested, and they have a right to seek a legal counselor in their defense. Article 22(2) ensures that the person gets a quick trial when seeking bail to the nearest magistrate.
Code of Criminal Procedure
The Code of Criminal Procedure 1973 has certain rules regarding custodial deaths which are as follows:-
- Section 163: No officers will make any threats, inducement, or promise to the suspect in question. This is also mentioned in Section 24 of the Indian Evidence Act.
- Section 164(4): Ensures fair confession through signature and record before presenting to the magistrate.
- Section 49: Prohibits extra custodial methods.
- Section 50A: The accountability lies to the police when it comes to revealing the information regarding the arrest of the suspect in question.
- Section 55A: The health and safety of the suspect in question must be maintained.
- Section 75: The substance warrant must be disclosed to the suspect in question before their arrest.
Wrongful imprisonment for the purpose of extorting information or confession is prohibited under Section 348 of the Indian Penal Code. Any confession made in front of a police officer is inadmissible under Section 25 of the Indian Evidence Act 1872. Section 26 of the aforementioned statute, on the other hand, states that no confession made in custody is acceptable unless it is given in front of a magistrate. Section 27 of the Indian Evidence Act of 1872, on the other hand, will be an exception to Section 25.
Laws are just rules written on paper that can be overlooked very easily by any party. Even the police will violate the laws as they seem fit. In most cases, the poor couldn’t fight against them due to police and the financial situation being walls between them and justice. However, the custodial deaths are becoming a liability, and people’s opinions towards the police are negative.
The NHRC will intervene of course when it comes to the violation of human rights in prisons. But if an organization like the UN fails to stop wars, how could NHRC prevent the police from committing atrocities. Force is indeed a necessary evil to prevent any future crimes in society. However, it is only a matter of time before a necessary evil becomes completely evil.
It is up to the judiciary to take action against custodial deaths as they have the power over the police. It is high time that their laws become stricter just to protect the victims and punish the perpetrators of the custodial deaths.
I am not against police officers. They are the ones are preventing people from committing crimes. In an era where mobs are created to attack and destroy with their warped sense of justice, it is up to the police to serve as the deterrent against that warped sense of justice. However, this article highlights the current state of the law enforcement of India.
The last thing we need right now is another George Floyd demonstration in India. People are becoming increasingly annoyed by police measures committed just to protect the wealthy and politicians’ interests. It just turns officers become stooges of the rich and powerful, rather than arbiters of justice. Their relationship with the public may be jeopardised if they do not get their act together. In the worst-case situation, it might jeopardise the judiciary’s independence.
[i] “The rich get richer and the poor get prison”. Discuss how the criminal justice system deals differently with crimes committed by the powerful and the powerless., Ivory Research www.ivoryresearch.com/samples/the-rich-get-richer-and-the-poor-get-prison-discuss-how-the-criminal-justice-system-deals-differently-with-crimes-committed-by-the-powerful-and-the-powerless/.
[ii] Janet Gilmore, George Floyd. Rodney King. Weve seen it before, The Berkeley Blog (May 5, 2021), blogs.berkeley.edu/2021/05/05/george-floyd-rodney-king-weve-seen-it-before/.
[iii] Sarah Marsh, Police failing to protect rape and abuse victims, says super-complaint, The Guardian (Mar. 20, 2019), www.theguardian.com/society/2019/mar/20/police-failing-to-protect-and-abuse-victims-says-super-complaint.
[iv] Custodial death and anti-torture law – iPleaders, IPleaders (Jan. 3, 2021), blog.ipleaders.in/custodial-death-anti-torture-law/.
[v] (June 20, 2019), www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf.
[vi] Custodial death and anti-torture law – iPleaders, IPleaders (Jan. 3, 2021), blog.ipleaders.in/custodial-death-anti-torture-law/.
[vii] Our George Floyds: Outrage at custodial deaths in Tamil Nadu, Hindustan Times (June 28, 2020), www.hindustantimes.com/india-news/our-george-floyds-outrage-at-custodial-deaths/story-aZ8RZ4DkmDF4g0kUvXOSKJ.html.
[viii] India Today, Tamil Nadu custodial deaths: Jayaraj, Benicks died of multiple blunt injuries, CBI tells HC, India News (Aug. 26, 2020), www.indiatoday.in/india/story/tamil-nadu-custodial-deaths-jayaraj-benicks-died-of-multiple-blunt-injuries-cbi-tells-hc-1715249-2020-08-26.
[ix] FACTSHEET: Torture at Guantnamo Bay Detention Camp, Bridge Initiative (July 19, 2020), bridge.georgetown.edu/research/factsheet-torture-at-guantanamo-bay-detention-camp/.
[x] Custodial death and anti-torture law – iPleaders, IPleaders (Jan. 3, 2021), blog.ipleaders.in/custodial-death-anti-torture-law/.
[xi] Just a moment…, indiankanoon.org/doc/39691783/.
About Author – This article is written by Anish Bachchan. the author is a 5th-year law student currently studying at Amity Law School, Noida. His writings have been published on various sites with the likes of Los Angeles Times, LiveWire, Youth Ki Awaaz, Times of India Readers’ Blogs, Legal Service India, etc. He is the author of 2 books titled (1) Contempt of Court with Reference to Media Trials, (2) Patent 101 Level 1: The Patent in the Aggressive Monetization of Video Games.