Puja Das & Siddharth Sapra
Amity Law School Delhi, Guru Gobind Singh Indraprastha University
Recently, the nation came across another instance where the disgusting system and inhumane torture by the police decided the cost of two lives. Unfortunately it was decided to be equal to a mere 15- minute delay in closing the shop, a delay to obey the rule of curfew, which exists as of now in many parts of the country and ultimately, a delay in saving their lives. This barbaric incident unfolded on June 19, 2020 in Tamil Nadu’s Toothukudi district where a father-son duo was brutally assaulted in police custody, which took their lives.
Third degree torture and custodial deaths have become an intrinsic part of police investigation which is observed in numerous cases all around the globe. The police system in our society is provided with the power to safeguard the life and property of the common people but paradoxically this power is being misused, there being numerous instances where the police system has forgotten their original noble role and has played evil instead, causing the death of many people. The basic cause of such a situation is that the powers, which are given to the Police to carry out their essential role, are capable of being moulded and abused by them and hence the weak section is, usually, oppressed and intimidated by the Police.
It is of utmost importance, at this juncture, that the definition of the term ‘torture’ is observed. The term usually denotes to enormous suffering, physical, mental or psychological, intended at forcing someone to do or say something against his or her desire.
In the light of the above, the question that lies before us is whether police protection in India is turning into torture? Not only the common people but also the accused persons or criminals have the rights to be protected by police. It is not the job of the Police to punish the accused or criminals according to its whims and fancies that is the duty of the Courts of law. But in today’s scenario this torture and police brutality has become very common which causes number of custodial deaths as it happened to this father-son duo, some of these cases are highlighted by the media but most of them are just ignored. As of 2017 NHRC report, total of 145 custodial deaths are reported in police custody and 1616 in judicial custody. This age-old practice of police brutality and custodial death hampers and infringes many laws, which are made to protect the accused and his human rights. In numerous cases like Arnesh kumar v. State of Bihar (AIR 2014 SC 2756), D.K Basu v. State of West Bengal (AIR 1997 SC 610), Prakash Singh v. Union of India {(2006) 8 SCC 1} etc. the Supreme Court laid guidelines and principles for the rights of the arrestee and the consequent procedure to be followed.
Rights of the accused— Blueprint for protection:
The rights given to accused persons are not only recognized by India through its statutory laws but such rights are also recognized at the international level as inherent Human Rights. The Universal Declaration of Human Rights is a landmark document, which was drafted in the year 1948 to ensure that such basic rights of people, even arrested persons are safeguarded. Article 5 of the declaration specifically prohibits any person from being subjected to torture or cruel, inhumane and degrading treatment or punishment. The impact of the U.N. declaration was that numerous foreign as well as national bodies began calling the global community’s attention to the practice of torture in multiple ways. The below mentioned are some of the rights, according to Indian law, available with the accused at all times:
- Presumption of innocence: In Blackstone’s famous words, “It is better that ten guilty persons escape than that one innocent suffers“. The essence of the criminal trial lies in the fact that the accused is to be presumed innocent until a charge against him is proved without reasonable doubt.
- Right to know the grounds for the arrest [Sections 50(1) & 75, Criminal Procedure Code]: A person, who is detained without a warrant, is allowed to know the exact specifics of the offence for which he is being detained and if a person is being arrested with a warrant, the person must be told the specifics of the warrant, or even display that warrant if appropriate.
- Right to be taken before a magistrate without delay [Sections 56 & 76, Criminal Procedure Code]: Regardless of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest shall, without any undue delay, deliver the accused person to a judicial officer. An accused has to be produced before a magistrate within the 24 hours of arrest.
- Right to be examined by a medical practitioner [Section 54, Criminal Procedure Code]: If the accused person so demands, a licensed medical practitioner shall direct the examination of that person’s body unless the Magistrate finds that such plea is made for the purpose of vexation or inconvenience or for the purpose of undermining the ends of justice.
- Right to consult a legal practitioner [Section 50(3), Criminal Procedure Code]: This right is given under Article 22(1) of the Indian Constitution as a fundamental right, which in any case cannot be denied. Section 50(3) of the Code of Criminal Procedure also states that the person against whom the proceedings are instituted shall have the right to defend himself by a pleader of his preference.
Way forward:
The only probable solution to such increased number of cases of custodial deaths is increasing the accountability or liability of the police department and initiating a criminal trial against such police officers. Currently, in such cases, an internal disciplinary action is taken against such police officer.
Public law liability with respect to police forces has its origins in the Indian Constitutional and administrative law. In the light of infringement of fundamental rights such as right to life and liberty enshrined under Article 21 of the Constitution, freedom from arbitrary arrests and unlawful detention etc., the courts have repeatedly ruled that police are liable under criminal law and charged the State with pecuniary obligation as reimbursement for the damage caused. A series of decisions of the Supreme Court from the early 1980’s laid the groundwork for holding the State responsible for police brutality and misuse of power, rendering pecuniary reimbursement as a major redressal mechanism for such breaches of fundamental rights. However, the major issue with such reimbursement is that the indemnification is to be paid by the State and the police officer does not get any punishment. It is suggested that it should actually be borne by the officer personally. Moreover, in some cases, just the pecuniary compensation is not enough to meet the ends of justice. Criminal liability on the officer must be imposed in order to ensure that such instances of police brutality and custodial deaths are not be repeated.
