Prisons of the modern era, is a concept which was unknown to the people in the medieval times. In those times, the prisons were used to confine the debtors, persons accused of crimes that awaited their trial, religious or political offenders, and the convicts who awaited their sentencing. In the late 18th century, the use of capital punishment began to decline, the use and purpose of prisons was significantly increased. By the onset of the 21st century, Courts extensively started using the prisons as correctional and rehabilitation institutions for the offenders. The institution of a prison has eventually become a chief means to detain and punish the serious offenders.
The United Nations General Assembly Resolution 45/111 of 14 December 1990 regards the basic principles for the treatment of prisoners. The Resolution states that prisoners shall be treated with the respect due to their inherent dignity and value as human beings and shall not be subjected to any form of discrimination on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
This article focuses on “custodial killings” which is defined as the death of a person who had been detained and was in police custody or other authorities of the police. Police authorities often subject the accused to torture and, physical and sexual abuse in order to extract information and confession. This form of interrogation has been controversial as it violates the principles of human rights of prisoners. Further, the issue of having blind eye and covering such killings is a topic that has been creating unrest in the society and ultimately, shaking the confidence of the citizens in the law enforcement agencies.
According to the 2017-18 Asian Centre for Human Rights (ACHR) report, five people die in judicial and police custody, each day. The Indian National Human Rights Commission issued guidelines in the context of custodial violence and torture. A total of 5,371 cases including 2,896 cases of deaths in judicial custody were recorded in the year of 2017-2018. According to the 2018 report of India’s National Crime Records Bureau, 70 cases of custodial death in the year were reported, however, judicial enquiries were ordered for only 28 cases. Also, charge sheets were filed only against 13 police personnel out of whom 11 police personnel were from Gujarat, making it the state with highest number of custodial deaths. The problem remains the same in not just India, but also all around the world is as to how far the cases go uninvestigated and what the remedy for the victims is even when the respective countries have signed the conventions to protect the inalienable rights of the prisoners.
Within Asia, the problem is not only found within India. In Pakistan, there is no credible data available on custodial killing. Human Rights Watch suggests that Pakistani government is failing to reform its understaffed and under equipped police force for more than a decade now. Pakistan currently lacks proper system of accountability and highest level of corruption resulting in unaccounted numerous custodial killings. Nepal currently records a higher rate of custodial deaths than that recorded for India between the years 2010-2015.
Within these countries there is also another challenge- unreported cases. Many reports have surfaced suggesting that excessive force is reserved for the minorities like Dalits, Adivasis, and other marginalized and socially and economically backward communities of India. In Nepal, majority of cases go unreported to national media houses or even human rights organizations. Shambhu Sada, who was a Dalit in Nepal, turned himself to the police, but later, according to the police report, found dead in the jail’s bathroom after he hanged himself. His family refused to accept the version of police to his death and suggests that it wasn’t a case of suicide but that of a custodial abuse. Furthermore, Sada’s body wasn’t allowed to undergo postmortem resulting in non-reporting of his cause of death. Unsatisfied with the cause of death stated by Superintendent Ramesh Banset, Sada’s family has filed a complaint for an impartial investigation, to the National Human Rights Commission.
Custodial violence in Sri Lanka is a result of age long struggle of civil conflict in northern and eastern parts of the country, thus the authorities resort to violence. Political interference with police force is another mitigating factor of rise in custodial deaths in the country. In a landmark judgment of Rathnayake Tharanga Lakmali v. Niroshan Abeykoon[1], wherein petitioner’s wife claimed that his arrest and detention was illegal and he was subjected to torture and cruel treatment resulting to his death in custody. Police claimed that the petitioner’s death was accidental. Though the Sri Lanka Supreme Court held accused police officers liable but the case raised several concerns. The Sri Lankan Constitution doesn’t explicitly recognize a right to life. The Supreme Court upheld that deceased was subjected to torture and it was an extrajudicial killing, however, failed to determine whether arrest was illegal or not and did not guarantee whether or not effective investigation or prosecution will follow.
The issue of custodial torture has been prevalent and time and again the courts in South Asia, have adjudicated related issues. The question arises whether the killings in police custody are investigated and if the perpetrators are being punished. Despite having detailed arrest procedures and guidelines, the system fails to punish the police officials who use torture as a means inflict ill-treatment to gather information and coerce confessions. However, often times the police authorities overlook the mental and physical health of the detainees. The reason for this invariable non-delivery of justice by the system, erosion of rule of law and the constant impunity is the lack of diligence by the investigative bodies and the political pressure, in so much to say to protect the reputation of those in question.
In a very recent case in India, which has, caused an eruption in protests against the police department for custodial violence, is the of a death of the father-son duo, Jayaraj and Bennix who were brutally physically and sexually tortured, in the Sathankulam police station, Tamil Nadu. Brutal torture and the killing of Jayaraj and his son Bennix, it is pertinent to note how the country, being the signatory of The International Covenant on Civil and Political Rights, 1966, have been failing to take human rights into consideration. Despite having eye witnesses and camera footage, and the procedures laid down in the Cr.P.C., Evidence Act, and landmark precedents in D.K. Basu judgment[2], there lacks adherence to these laws and principles. There exists complexities in this gray area which aren’t addressed by the appropriate authorities and nor is there any intervention on behalf of the government(s).
In the case of Mohd. Subrati v. State of Bengal[3] the Supreme Court was of the view that the individual freedom of a person is secured by the Constitution of the country however, liberty is not absolute. In another case, Prabhu Dayal Deorath v. The District Magistrate of Kamarupand and ors,[4] The position of right to life and personal liberty as stated in Article 21 of the Constitution of India wherein the expression that no individual might be denied of his life or individual freedom barring exceptions as indicated by methodology under the law.
The use of torture and violence as a means of extracting information and confession is not just the way the district police stations use but the federal agency Central Bureau of Investigation also uses this method of investigation. When it is said that brutality is something normal in the prisons and to an extent, an informal process to extract information and confessions, then what does it take for the states to seriously take cognizance of the offences committed by the officers in the disposal of their duties? Does the system require changes at the foundational level? In 2006, the Indian Supreme Court ruled on police reforms that every state must have a system of Police Complaints Authority where the citizens can easily lodge complaints against misdemeanors of policemen. However, only a few states implemented this order and other didn’t take it seriously. The casual approach of the authorities clearly signifies how human rights mean almost nothing and the issue to protect these rights remain a utopian concept. In Gujarat, a total of 14 deaths were reported in 2018, followed by 12 deaths in Tamil Nadu, making the number highest in Gujarat, but zero convictions were made. The issue of custodial deaths has been raised numerous times in the Indian Parliament and in light of India’s signature to The UN Convention against Torture (UNCAT); the government introduced the Prevention of Torture Bill. The Bill touches upon the act done by a public servant or by a person with acquiescence of a public servant, who causes grievous hurt or danger to life, limb or health (whether mental or physical) to extort information or confession, purposes punishment of minimum 3 years extended to 10 years and fine.
In overall scenario, the local governments have a major role to play to protect and promote human rights. However, the core responsibility lies on the shoulders of the National Governments to undertake proper measures to promote the human rights culture, spreading awareness, and training public officials. Venkatesh Nayak, who is a Coordinator of Access to Information program at Delhi-based Common Wealth Human Rights Initiative, devised a system for Right to Information (RTI) letters that are filed for the pending cases under the provisions of the RTI Act which would provide relevant information concerning the life and liberty of the concerned person in 48 hours.
Cases like that of Jayaraj and Bennix, Varavara Rao have spurred up and the media has made the headlines surface on different platforms but would such compelling situations finally bring accountability of misuse of executive powers? India must ratify UNCAT and make a firm commitment to end custodial abuse and death. Further, the Supreme Court of India must bring about changes in the procedural elements that were decided a decade ago in D.K Basu’s Case along with incorporation of stringent procedures and guidelines for reporting of the cases and transparency in investigation is the need of an hour to break the chain of the age long issue.[5] Finally, the Bill to prevent torture that follows the recommendations made by Indian Law Commission and international recommendations which has been pending in the Parliament since 2010 must be passed by clear majority.
[1] SC/FR Application 577/2010
[2]D.K. Basu, Ashok K. Johri V. State of West Bengal and Others, (1997) 1 SCC 416.
[3] AIR 1973 C 207
[4] AIR 1974 SC 183
[5] Update: On July 13, 2020 AM Singhvi filed an application in Supreme Court of India to revive proceedings under D.K. Basu V. State of West Bengal, seeking direction against custodial violence.
A Contrario ICL 