CUSTODIAL DEATH: A HEINEOUS CRIME

CUSTODIAL DEATH: A HEINEOUS CRIME

Death in police custody is one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.At the beginning of the 20th century, the Indian Police Commission (1902-03) went into the functioning of the police in India and found that the police was generally regarded as corrupt and oppressive. The commission concluded that the police force throughout the country was in a most unsatisfactory condition and that abuses were common everywhere; this involved great injury to the people and discredit to the government and that radical reforms were urgently necessary. Seventy-five years later, in 1978, the National Police Commission found the situation not very different. It is interesting that another 32 years later, in 2011, nothing has changed.The very term police force tends to emphasise the ingredient of force rather than that of a service, thus obscuring the service function which it ought to perform in the interest of the society. One of the fundamental requirements of a good government in a democracy is an institutional arrangement for effectively guarding against excesses or omissions by the executive in the exercise of their powers of discharge of the mandatory duties which cause injury, harm, annoyance or undue hardship to any citizen. This is specially necessary in respect of the police who have vast scope for exercise of powers by a large number of personnel affecting the rights and liberties of individual citizens in daily life. As pointed out by the National Police Commission itself, the powers of arrest, search, seizure, institution of criminal cases, mark several stages in executive police action which afford a vast scope for misconduct by police personnel of different ranks particularly at the operational level causing harm and harassment to the citizens.Custodial death relates to the deaths occurring in the course of custody of an undertrial or a detained person. Custody is the care and control of a thing or person for inspection, preservation, or security. There are generally two types of custody viz. police custody which is governed by police act and judicial custody which is governed by prisons act. Though the death taking place in custody is of criminal nature but can also give arise to civil liability. The first Law Commission Report of India dealt with the liability of state in tort, also under the article 300 of The Constitution of India, 1950 one can file a suit against the state. A violation of one's constitutional rights by a government officer, redressable by a civil action filed directly against the officer is known as constitutional tort. It was also held in Nilabati Behera (Smt.) alias Lalita Behera v. State of Orissa that if death took place in police custody then the family of the sufferer is entitled for monetary compensation under art. 32 and 226 of Constitution of India,1950. There are lot many cases relating to custodial deaths in which the apex court and various high courts have awarded compensation and punishments still the situation is worsening.The major emphasis under the Universal Declaration of Human Rights as well as the pronouncements at the various conferences of the United Nations has been on the obligation of the member states to promote and protect human rights. The Vienna Declaration and Programme of Action adopted on June 25, 1993 by the World Conference on Human Rights,reaffirmed the solemn commitment of all states to fulfil their obligations to promote universal respect for and observance and protection of all human rights. More specifically, it was declared at the Vienna conference that the protection and promotion of human rights is the first responsibility of the governments. In addition to the International Covenants and Constitutional as well as Legal Safeguards, Article 2 of the United Nations Code of Conduct for Law Enforcement Officers lays down that in the performance of their duties, law enforcement officers shall respect and protect human dignity and maintain and uphold human rights of all persons. Law enforcement officials may use force only when strictly necessary and to the extent required for performance of duty. Apart from the laws, particularly the Indian Penal Code and the Criminal Procedure Code, there are police regulations and police manuals in every state laying down clear guidelines and instructions in regard to the exercise of police powers.Even the section 46 of Cr.P.C provides the methods and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49 the police is not permitted to use more restraint than is necessary to prevent escape of the person. Still the methods used by the law enforcing agencies are causing injury, harm, annoyance or undue hardship to its citizen. Police has vast a scope for exercise of powers by a large number of personnel affecting the rights and liberties of individual citizens in daily life. As pointed out by the National Police Commission itself, the powers of arrest, search, seizure, institution of criminal cases, mark several stages in executive police action which afford a vast scope for misconduct by police personnel of different ranks particularly at the operational level causing harm and harassment to the citizens.The constitution enshrines the right to life and liberty by Article 21 and empowers the State to guarantee these rights. This is sufficient to justify the applicability of the principle of vicarious liability of the State in cases of Custodial deaths where there is covert and overt infringement of the basic rights of life and liberty of an individual. The link between custodial violence and compensation is direct and set at rest any questions regarding the compensation to be paid for violation of rights in Article 21.Article 21 which is one of the luminary provisions in the Constitution and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right, i e, personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the state or its functionaries. So we should aim for highlighting the position of custodial torture and custodial death in India and in an international perspective, how a person suffering can also seek relief in monetary terms i.e. the civil liability of the state and thus safeguarding the individual right which is guaranteed by the constitution and also the human rights commission at state and national level. Also we should draws the comparison between the international standards and the current system followed in India.

In reference to this, an urdu poet says:Laie hyat aye-le chali, Qaza chale.Apni khushi na aaye, Na apni khushi chale.Life brought me, I came, death took me away, I went.Neither I came of my accord, nor went with my consent.BYYAGYAVALKYA SHUKLARIYANKA ROY CHOUDHURY (NATIONAL LAW UNIVERSITY.ORISSA-1ST SEM)

Solgabai Sunil Pawar v. State Of Maharashtra, 1998 Cri LJ 1505 (1507,1508Blacks law dictionaryThe Police Act, 1861The Prisons Act, 1894Blacks law dictionaryAIR 1993 Sc 1960: 1993 SCR 581Nilabati Behra v. State of Orissa (1993) 2 SCC 373; D.K Basu v. State of West Bengal (1997) 1 SCC 416; Rudal Shah v. State of Bihar (1983) 4 SCC 141. Munshi Singh Gautam (deceased) and others vs the State of Madhya Pradesh (2005) 9 SCC 631