Custodial Death in India

Gujarat reported 80 custody deaths during the course of the last five years, according to the Ministry of Home Affairs (MHA).

Difference between custody and arrest:

• When someone is kept in protective custody, it is because authorities fear they will pose a risk to society it is known as custody.
• When someone is officially brought into police custody on suspicion of committing a crime, it is referred to as an "arrest." Custody exists in every arrest, but the reverse is not true.

Judicial custody vs police custody:

Police custody:

• It is the term used to describe the process by which a suspect in a crime is taken into custody by a police officer and transported to the police station.
• When in police custody, the suspect is questioned by the officer in charge while being held for no more than 24 hours in a prison at a police station.
• Within 24 hours of detention, police officers must bring the accused before the judge.

Judicial custody:

• In this, the accused is held in the custody of the local magistrate rather than in the actual custody of the police as in police custody.
• Unlike police custody, when the suspect is kept in police custody, judicial custody involves keeping the accused in jail.
• Unless the court determines that the police officer's opinion is supported by the evidence presented to the court, the investigating police officer is not permitted to question the suspect while in judicial custody.

Custody and judicial remand under CrPC in India:

• The Criminal Procedure Code (CrPC) covers regulations relating to judicial remand and custody of an individual.
• A police officer is not permitted to hold a person in custody for longer than 24 hours in accordance with Section 57 of the CrPC.
• According to Section 167 of the CrPC, the officer must ask the magistrate for special authorization before holding a suspect for longer than 24 hours.

What is custodial death?

An accused person dies while in custody, either before a trial or after being found guilty.

Police misconduct while in prison, whether direct or indirect, is to blame for the death.

It covers deaths that take place not just in jails but also in hospitals or private property, or even in cars like police or other vehicles. Three categories can be used to categorize fatalities in custody:

• In police custody, the death happened.
• In judicial custody, the death happened.
• The person passed while under the army's or paramilitary's control.
• The offense committed by a public employee against the person who has been arrested or detained and is in custody constitutes custodial violence, according to the Law Commission of India.

International laws dealing with Human Rights:

Universal Declaration of Human Rights, 1948 (UDHR):

• Every person should be viewed as innocent until proven guilty, according to the Universal Declaration of Human Rights.
• The topics of torture and cruelty are covered under Article 5 of the UDHR. No one should be tortured or abused cruelly, according to Article 5 of the UDHR, regardless of where they are in the world.

International Covenant on Civil and Political Rights, 1966:

• Everyone has the inherent right to life, and no one shall be unjustly deprived of that right, according to Article 6 of the International Covenant on Civil and Political Rights.
• The ICCPR forbids the inhumane, humiliating, and cruel treatment of detainees. No one shall be detained or arrested on an arbitrary basis.

United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015:

• Discrimination against inmates on the basis of race, colour, sex, language, religion, political opinion, national or social origin, property, birth, or any other status is prohibited by Section 6 of the Convention.
• According to Section 7 of the Convention, a register must be kept to record a prisoner's identification, motivations for his acts, and the dates on which he was brought into custody and released.

Custodial death data in India:

• 2017–2018 had a total of 146 occurrences of deaths while in police custody, followed by 136 in 2018–2019, 112 in 2019–2020, 100 in 2020–2021, and 175 in 2021–2022.
• Gujarat has reported the most custodial deaths (80) in the past five years, followed by Maharashtra (76), Uttar Pradesh (41), Tamil Nadu (40), and Bihar (40). (38).
• In 201 cases, the National Human Rights Commission (NHRC) has recommended financial relief, and in one case, disciplinary action.

Causes for the custodial death:

• No actual prison reforms exist since the entire prison system is already opaque, which leaves little room for change. India's jails continue to suffer from subpar conditions, overcrowding, severe labor shortages, and inadequate protection from injury.
• Workplace Stress - The police labor under tremendous strain, and when a swift resolution to complicated cases is required, they turn to violence to elicit confessions and evidence.
• Social Factor: In keeping with the principle of "an eye for an eye," those in positions of authority opt to employ violence to extract information from those who are accused of committing crimes.
• Absence of Effective Law: India lacks a strong anti-torture law and has not yet made incarceration violence a crime. Meanwhile, real action against responsible officials is still a pipe dream.
• Excessive Force: The use of excessive force, including torture, against marginalized groups and individuals who support movements or ideas that the state deems to be inimical to its interests.
• Long judicial procedures: The poor and the vulnerable are discouraged by the lengthy, expensive formal procedures that courts follow.
• Not adhering to international standards: Although India ratified the United Nations Convention against Torture in 1997, its provisions have not yet been made mandatory in that nation.

Court judgment on custodial death:

Joginder Kumar v. State of U.P and others, 1994

• The Court stated in this precedent-setting judgement that the rights guaranteed by Articles 21 and 22(1) of the Constitution must be recognised and upheld. To safeguard the protection of these rights, the Court adopted a few rules.
• When the arrested person is brought to the police station, the police officer should inform him or her of their rights.
• The registry must have a record of who received information on the arrest of the accused and who informed them.
• The provisions of Articles 21 and 22(1) should be firmly recognised and upheld.
• The Magistrate will judge whether the police authority has complied with and is adhering to all requirements.

Yashwant and others v. the State of Maharashtra, 2018:

• The High Court of Bombay condemned nine Maharashtra police officers to three years in prison after they were found guilty of causing a death in custody in 1993. The punishment sentence was increased from three years to seven years each by the Supreme Court, who supported the high court's decision.

What options are there for custody provisions?

Article 21 of the Constitutional Provisions

• "No person shall be deprived of his life or personal liberty unless in accordance with the method prescribed by law," declares Article 21.
• According to Article 21 (Right to Life) of the Indian constitution, the right to be protected against torture is a fundamental one.

"Protection from arrest and custody in certain instances" is provided by Article 22.

• According to Article 22(1) of the Indian Constitution, the right to legal representation is also a basic right.
• The seventh schedule of the Indian Constitution designates the police and public order as state subjects.
• The protection of human rights is essentially the duty of the relevant state government.
• The role of the central government is to occasionally issue advisories and to have passed the Protection of Human Rights Act (PHR) 1933.
• It mandates the creation of the National Human Rights Commission and State Human Rights Commissions to investigate claims of human rights abuses by public employees.

Legal Provisions:

• Criminal Procedure Code (CrPC): Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards to ensure that arrests and detentions for questioning have legal justification and follow established procedures, that arrests are disclosed to loved ones, friends, and the public, and that people are protected by legal representation.
• Indian Penal Code: Sections 330 and 331 of the Indian Penal Code 1860 outline penalties for harm caused when a confession is demanded.
• Custodial torture of inmates is a crime that can be prosecuted under IPC sections 302, 304, 304A, and 306.
• Indian Evidence Act, 1872 protection: According to Section 25 of the Act, a confession given to the police cannot be admitted in court.

Way Forward

• To entirely outlaw judicial and custodial violence, the right changes must be put in place.
• The UN Convention Against Torture should be ratified by India as it will require a thorough examination of colonial systems, practices, and procedures for the custody and treatment of those who are arrested, detained, or imprisoned.
• To prevent any form of violence, police officers must receive specialized training.
• For the purpose of questioning suspects, separate rooms in police stations with CCTV cameras must be put up.
• The requirements of human rights must be followed regarding prison conditions.
• Implementation of the Law Commission of India's 273rd Report, which recommends that individuals accused of torturing people in custody, including members of the armed forces and paramilitary groups, be criminally prosecuted in order to provide an effective deterrent