Baba’s Explainer – Custodial Deaths

• Article 20(1) of the Constitution of India prohibits the framing of ex-post-facto criminal laws and also prohibits the infliction of any penalty greater than that which can be inflicted under the law in force at the time of the commission of the offence.
• Article 20(3) of the Constitution provides that no accused person will be compelled to be a witness against himself. This is very important as it acts as a safeguard in obtaining evidence from the accused through coercion and torture.
• Section 163 of the Code of Criminal Procedure, 1973 prohibits the investigating officers from making any inducement, threat or promise under Section 24 of the Indian Evidence Act (1872) but also prevents him from forcing any person to make any statement which he would like to make on his free will.
  • Section 24 of the Indian Evidence Act, 1872 makes all confessions made under inducement, threat, or promise as inadmissible.
• Section 49 of the Code of Criminal Procedure, 1973 is also a safeguard against custodial excesses. It states that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.
• Section 55A of the Code of Criminal Procedure, 1973 makes it mandatory for the person under whose custody, the accused is detained to care of the health and safety.
• Section 300 of Indian Penal Code states that if a public servant exceeds the his
  right of using force and causes death of any person he is liable for an
  offence of culpable homicide not amounting to murder.
• Section 330 of Indian Penal Code states that if any public servant causes injury to any person to extort confession he will be liable for punishment with imprisonment upto seven years.
• Section 376 of Indian Penal Code have been amended to specifically address rape in custody by insertion of Section 376(2) in the Criminal Law (Amendment) Act, 1983.
  • Vide this amendment, punishment for rape committed on a woman in custody by a police officer, a public servant, a member of a correctional home, or a hospital staff has been enhanced to a minimum of 10 years, as against 7 years in respect of other cases of rape.

Therefore, in summary the law of the country does not permit the police personnel to use force illegally or excessive force.

• Against Human rights: Custodial deaths are one of the highest forms of violation of human rights. It is a blunt attack on the right to life and liberty guaranteed by the Indian Constitution.
• Against Rule of law: Whatever action needs to be taken by Police, it has to be according to the procedures laid out in law. Committing police excesses to extract information goes against the rule of law and leads to tyranny of State authorities
• Erodes the Trust of Public: The responsibility of protecting the life of the accused and the convicts lies with the respective authorities. But the law-enforcing authorities often fail miserably in discharging their constitutional obligation which erodes the trust of people on system.
• Disproportionately impacts the poor & vulnerable: Most of these people who die in custody belong to the oppressed classes who are not economically and socially empowered to fight the atrocities of the police.
• Erodes Democratic Culture: What is even more unfortunate is that after such incidents happen, there is an all-out effort from the perpetrators to cover up their misdeeds. The Government plays a big role in protecting the accused officers which goes against the Democratic culture.
• Bad image for Police: Death in police custody is a black spot on all members of force as the police have no right to take the life of any person
• Judicial Burden: When such incidents happened cases are filed by victims and this increases burden on Judiciary for providing guidelines on police procedures
• Absence of Strong Legislation: India does not have an anti-torture legislation and is yet to criminalise custodial violence, while action against culpable officials remains illusory.
• Not Adhering to International Standard: Although India has signed the UN Convention against Torture in 1997 its ratification still remains.
  • While Signing only indicates the country’s intention to meet the obligations set out in the treaty, Ratification, on the other hand, entails bringing in laws and mechanisms to fulfil the commitments.

• In Inderjeet v. State of Uttar Pradesh (2014), the Supreme Court held that punishment which has an element of torture is unconstitutional.
• In Pram Shankar Shukla v. Delhi Administration (1980), the Supreme Court ruled against compulsory handcuffing of prisoners observing the practice to be prima-facie inhuman and laid down certain guidelines in this regard.
• In Francis Coralie Mullin vs. The Administrator, Union (1981) the Supreme Court held that Article 21 includes the right to protection against torture.
• Through K. Basu v. State of West Bengal (1997) guidelines were passed to try and secure two rights in the context of any state action — a right to life and a right to know. Through the guidelines, the Court sought to
  • Curb the power of arrest and
  • Ensure that an accused person is made aware of all critical information regarding his arrest and also convey this to friends and family immediately in the event of being taken in custody.
• Some of the guidelines laid down in D K Basu judgement are:
  • All officials must carry name tags and full identification
  • Arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or respectable member of the locality.
  • The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organisation and arrestee must be made known of each right
  • All such compliances must be recorded in the police register
  • He must get periodical medical examination
  • Inspection memo must be signed by arrestee also and all such information must be centralised in a central police control room.

• Long time to implement SC guidelines: It took reportedly 11 years for the State of Tamil Nadu to actually implementPrakash Singh and that several States remain in contempt of the Supreme Court’s judgment
• Lack of Political will: Continued institutional apathy from bureaucracy & political masters towards the issue of police reform has prevented reform in policing
• Inadequate Powers of Judiciary: The judiciary’s approach of simply passing directions and guidelines, has proven to be a failure. For judgements to transform into reality there is a need for money and a power of immediate implementation.
• The gap between the highest court and the lowly police officer in India: Despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police
• Culture of impunity: Madras High Court reportedly saw the Thoothukudi incident as the result of a “few bad apples” ruining a system’s reputation which leads to continuance of culture of impunity
• Overworked magistrate: Struggling with an ever-exploding docket and in a rush to get done with the “remand case”, magistrate don’t treat an arrested person with the care and the consideration which leads to persistence of police brutality

• Body cameras could hold officers liable and prevent him from committing excess that could lead to death.
• Deception detection tests (DDTs), which deploy technologies such as polygraph, narco-analysis and brain mapping, could be valuable in learning information that is known only to a criminal regarding a crime. This enables police to get the necessary information without resorting to violence.
  • Brain Fingerprinting System (BFS) has proved helpful for solving crimes, identifying perpetrators, and exonerating innocent suspects. Any information or material discovered during the BFS tests, that are done after obtaining consent & court approvals, can be part of the evidence.
  • In June 2008, India convicted an accused leaning on evidence from a BFS device. However, in 2010, the Supreme Court, in Selvi v. State of Karnataka, rendered the evidence inadmissible. The court observed that the state could not perform narco analysis, polygraph, and brain-mapping tests on any individual without their consent.
• Use of Robots: Many departments now want robotic interrogators for interrogating suspects. Robots equipped with AI and sensor technology can build a rapport with the suspects, utilise persuasive techniques like flattery, shame and coercion, and strategically use body language.
• Artificial Intelligence (AI) and Machine Learning (ML) are emerging as tool of interrogations. AI can detect human emotions and predict behaviour. Therefore, these are also options. ML can in real-time alert superiors when police are meting out inhumane treatment to suspects.

• There is a lot of concern about AI or robot interrogations, both legally and ethically. There exists the
  • Risk of bias inbuilt into algorithms
  • Dangers of automated interrogation tactics
  • Threat of ML algorithms targeting individuals and communities
  • Can be misused for surveillance
• Therefore, while the technology available to the police and law-enforcement agencies is constantly improving, it is a restricted tool that can’t eradicate custodial deaths.
• While it might provide comfort and transparency, it can never address the underlying issues that lead to these situations.
• Technology may make policing more convenient, but it can never be an alternative for compassionate policing established on trust between the police and the citizens.

• Multipronged approach: What we need is the formulation of a multi-pronged strategy by the decision-makers encompassing legal enactments, technology, accountability, training and community relations.
• Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
• Burden of proof on Police: The Law Commission of India’s proposition in 2003 to change the Evidence Act to place the onus of proof on the police for not having tortured suspects needs to be considered.
• Punishments for erring Policemen: Stringent action must be taken against personnel who breach the commandments issued by the apex court in K. Basu v. State of West Bengal (1997).
• Legal Framework: The draft bill on the Prevention of Torture, 2017, which has not seen the day, needs to be revived.
• India should ratify the UN Convention Against Torture: It will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment.
  • It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.