Ishita Ayala
INTRODUCTION
“Jails and prisons are designed to break human beings, to convert the population into specimens in a zoo - obedient to our keepers, but dangerous to each other.”[1]
- Angela Davis
“Arrest” means to take or keep in custody due to legal authority.[2] “Custody” is defined as the detention of a person by lawful authority[3]. Commission of a crime by a public servant against the accused while in custody is defined as “custodial violence”[4]. “Custodial death” can be narrowly defined as the death of an individual in a police cell. David Biles, the renowned Australian criminologist, posited that custodial deaths must include cases where the prisoner has died in custody, irrespective of the legality of said custody. [5] The fatal injuries should have occurred during the specified time.[6]
This essay aims to analyse the statutory and judicial precedents of custodial violence in India, the necessity for compensation to the victims, the contemporary examples of the problem, and explores suggestions for the same.
STATUTORY PROVISIONS AND JUDICIAL PRECEDENTS
Article 21 of the Constitution states that no individual shall be deprived of her life and liberty except by due process established by law.[7] It was held that any form of grotesque and inhuman treatment during an investigation, interrogation or any other stage would vitiate Article 21 in Mehboob Bacha vs State[8].
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) aims to prevent torture and other cruel, barbaric acts, as well as degrading treatment or punishment, throughout the world. States are obliged to prevent torture by enacting domestic laws and regulations. India signed the CAT in 1997 but has yet to ratify it.[9]
The SC laid down the rules for arrest in D.K Basu v. State of West Bengal[10], which have been discussed below-
All police officers must wear name tags that include their name and designation and record all interrogations in a register.
When a police officer makes an arrest, she must write down the details of the arrest in the arrest memo.
The arrest memo must include the signature of at least one witness, who can be a relative of the arrested person or a respected member of the community where the arrest is made, as well as the time, date, and location of the arrest.
After the arrest memo has been duly prepared, the arrestee must sign it.
The arrestee and the arresting officer must sign the memorandum, and a copy of the same must be given to the arrested person.
The arrestee has the right to be informed of her arrest by a relative or friend, and the police must contact and inform the relative or friend of the time and place of the arrest, as well as the exact location where the arrested person is detained, as soon as possible.
If the relative or friend is in a different district or city, the relevant police station should be notified by telegraph within 8-12 hours of the arrest, and the information should then be conveyed to the relative or friend.[11]
The SC held that prisoners were people entitled to their constitutional rights except for those lawfully taken away. It stated that the rehabilitation of prisoners was based on mutual trust and respect in Sunil Batra v. Delhi Administration[12]. The SC expressed its horror when custodial violence inflicted by the police resulted in the death of the accused in Raghbir Singh vs State of Haryana[13], Justice Krishna Iyer stated that the horrendous occurrences in custody instilled fear in the minds of the citizens. He further exhorted the state to fulfil its duty and curb the worst impulses of police brutality. This sentiment has been echoed in Dagdu & Ors. v. State of Maharashtra[14] where the SC noted that the police, with their wide-ranging powers, were inclined to overstep their boundaries in their zeal to curb crimes and stated that the tendency to misuse these powers needed to be curbed at the earliest.
Custodial rape can be characterized by a power asymmetry between the rapist and the victim. In Tukaram vs State of Maharashtra[15],a teenager was sexually assaulted by two police personnel at a police station, but the SC ruled that the victim was used to sexual encounters and that she was prone to lying because she had changed her testimony. The court ignored the fact that she was raped when it was dark and the identification of two strangers may have been challenging. This widely criticised decision, which was the catalyst for a change in rape laws, was riddled with misogyny and ingrained casteism. The Criminal Law (Amendment) Act 1983 was passed, which provided for custodial rape under Section 376(2)(b) of the same.
ANALYSIS OF COMPENSATORY MECHANISMS FOR CUSTODIAL CRIMES
The court must determine compensation for custodial violence by taking into account various factors such as the nature of the injury caused, how it was caused, the purpose for which it was inflicted, and the extent to which the victim has suffered as a result of such an injury. The nature of the torture- which could be physical, mental, or psychological, the amount required by the victim for follow-up treatment of the injuries sustained, as well as the amount that may be required for the victim's rehabilitation to recover from the agony of torture, must also be considered.[16]
The SC declared that the state could not shirk its responsibilities by citing the defence of “sovereign authority”, and granted the petitioner damages for violation of public duty. It held that custodial violence represented the worst impulses of the state, and the court had the moral obligation to protect the rights of the citizens in Nilabati Behera vs State of Odisha[17]
CONTEMPORARY EXAMPLES OF CUSTODIAL CRIMES
P. Jayram and Bennix were arrested on June 19, 2021, by the Sathankulam police in Tamil Nadu for allegedly violating lockdown rules. They were sexually assaulted and beaten to death, with roughly thirty lacerations found on their bodies. They were later transferred to the Kovilpatti Government Hospital, where Bennix died on 22nd June and Jayram the following day.[18]
Stan Swamy, a Jesuit priest, was imprisoned at Taloja Central Jail under the draconian Unlawful Activities Prevention Act for allegedly inciting the Bhima Koregaon riots in 2018. He was denied even a sipper by authorities. He was diagnosed with Parkinson's disease and spent nine months in jail as an undertrial with inadequate medical care, where he contracted COVID-19, leading to a further deterioration of his health.[19] Gautam Navlakha, Swamy’s co-accused in the same case, was denied books of P.G Wodehouse sent by his family, citing a “security risk”[20], his glasses were inexplicably stolen in a high-security prison, and he was denied the opportunity to receive a new pair of the same, which was intercepted by the prison authorities.[21] While Navlakha has been shifted from Taloja jail, he is currently under house arrest and must bear the expenses such as the installation of security cameras himself.[22]
SUGGESTIONS
The author opines on the necessity of police personnel who are attuned to the rights of the accused in prisons. Sensitivity programmes must be implemented uniformly in prisons, and the legal aid clinics in various law schools across the country can play a critical role. The majority of the faculty advisors are qualified lawyers who have working proficiency in the vernacular language of the state. They can play an important role in demystifying the law for personnel who may not be well-versed in it.
The author argues that an important reason prisoners are unable to retain competent legal counsel is the prohibitively expensive fees. Advocates may not have the incentive to work pro bono; hence, they should be incentivized to represent prisoners from impoverished backgrounds by offering monetary benefits such as tax reductions on the amount of income tax paid. A government-sanctioned system must be in place to ensure that misuse of the system does not take place.
The author further opines on the necessity for a uniform system of compensation. The lack of the same was evident in Saheli Women’s Resources vs Commissioner Of Police (Delhi) [23] wherein the SC granted compensation to the mother of a child who died in police custody. The author argues that there should be a standardized system in place to ascertain compensation for similar situations.
CONCLUSION
The Supreme Court mandated that all police stations and investigation agencies ought to have CCTV cameras installed. This was done to reduce custodial torture; however, petitions under the 2005 Right to Information Act and observations by the Supreme Court reveal that this is not being followed.[24]
The author has posited certain suggestions that may be implemented to reduce systemic violence in the prison system. Justice Krishna Iyer argued eloquently in Boucher Pierre Andre vs Superintendent, Central Jail[25] that a prisoner did not automatically lose her rights upon incarceration, although they might be severely limited.
There were 2,512 deaths of people in judicial custody and 155 deaths of people in police custody (up to February 28th, 2022) recorded by the National Human Rights Commission (NHRC). Uttar Pradesh (UP) accounted for the highest number of deaths in judicial custody (448) and Maharashtra for the highest number of deaths in police custody (29)[26]. These statistics reflect the systemic flaws in the policing system that condones the torture of prisoners.
The author opines that the implementation of existing laws, along with measures such as sensitization of police personnel, expansion of literacy among prisoners, and the dismantling of a culture that tolerates state impunity and legitimises violence, is essential for the eradication of custodial crimes that have no place in a civilized society.
[The author is a 3rd year law student at NLU, Orissa.]
[1] <https://www.brainyquote.com/quotes/angela_davis_131815?src=t_prisons> accessed 24 March 2023. [2] <https://www.merriam-webster.com/dictionary/arrest> accessed 24 January 2023. [3]< https://lawshelf.com/coursewarecontentview/custody> accessed 24 January 2023. [4] Law Commission, Custodial Crimes (Law Com No 152, 1994). [5] David Biles "Deaths in Custody: Nature and Scope of the Problem", Criminology Australia, 7 (1991). [6]Id. [7] The Constitution of India 1949, Article 21. [8] (2011) 7 SCC 45. [9] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment <https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading > accessed 23 January 2023. [10] ‘Supreme Court guidelines in D.K. Basu vs. State of West Bengal Arrest and Detention’, <https://districts.ecourts.gov.in/sites/default/files/circular16092015.pdf > accessed 26 January 2023. [11] Id [12] 1980 AIR 1579 [13]AIR 1980 SC 1087. [14] AIR 1977 SC 1579. [15] 1979 AIR 185. [16] Law Commission, Custodial Crimes( Law Com No 152, 1994) para 6.22. [17] 1993 AIR 1960 [18] Jayaraj and Bennix: CBI Accuses Police Officers of 'Criminal Conspiracy', Extreme Brutality, The Wire( 27 October 2020),< https://thewire.in/government/jayaraj-bennix-cbi-chargesheet-police-torture-criminal-conspiracy-brutality> accessed 26 January 2023. [19] Jagdish Rattnani, ‘A lot else died with Stan Swamy’, Deccan Herald (16 July 2021) <https://www.deccanherald.com/opinion/main-article/a-lot-else-died-with-father-stan-swamy-1005358.html> accessed 20 January 2023. [20] Jail officials' refusal to give PG Wodehouse book to Gautam Navlakha is 'comical', ( The Scroll, 5 April 2022)< https://scroll.in/latest/1021112/jail-officials-refusal-to-give-pg-wodehouse-book-to-gautam-navlakha-is-comical-says-bombay-hc> accessed 25 January 2023. [21] ‘Humanity is most important’: Bombay HC on Gautam Navlakha not getting his spectacles in jail, (The Scroll, 8 December 2020) <https://scroll.in/latest/980632/humanity-is-most-important-bombay-hc-on-gautam-navlakha-not-getting-his-spectacles-in-jail> accessed 25 January 2023. [22] SC extends house arrest of activist Gautam Navlakha till the next hearing in January, Hindustan Times( Mumbai, 14 December 2022) <https://www.hindustantimes.com/cities/mumbai-news/sc-extends-house-arrest-of-activist-gautam-navlakha-till-next-hearing-in-january-101670988917984.html> accessed 25 January 2023. [23] 1990 AIR 513. [24] Umang Poddar, ‘In India, five people die in official custody every day. How does the law deal with these?’ The Scroll (14 November 2021) < https://scroll.in/article/1010500/in-india-five-people-die-in-police-custody-every-day-how-does-the-law-deal-with-these-deaths> accessed 24 January 2023. [25] AIR 1975 SC 164. [26] < https://nhrc.nic.in/sites/default/files/2022-3-23.pdf> accessed 22 January 2023.
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