“Nearly all men can stand adversity but if you want to test a man’s character, give him power.”
Abraham Lincoln
Introduction:
The recent incident in Tuticorin involving police brutality leading to the death of a father-son duo in police custody has caused a nationwide outrage in the country. This is not the first incident of custodial death. According to the data of the National Crime Record Bureau (NCRB); there are 1,022 deaths report in police custody from 2000-2016. While the conviction rate in cases of custodial deaths is very low.
Brutality on the part of police has been so normalize that outrage on the part public is generally witness; only when the crime committed by the police is heinous enough to shock the human conscience as was the case in Tuticorin. The father-son duo was arrest and take into custody. Because they kept their shop open 15 minutes more than the curfew timings. That is impose as a precautionary measure to reduce the corona spread. It is allege that the victims sodomize in custody and their genitals were bleeding and beat for hours.
Apart from the brutality and the misuse of power by the police. An important issue lies in delinquency on the part of the magistrate, B.Saravanan who gave orders of remand without seeing the father and son in person. Thus neglecting an important provision under Rule 6 of Criminal Rules of Practice, 2019. He assumed “no complaints” from the deceased father and son without meeting them in person.
Here is what Justice Chandru, former Madras High Court Judge said:
“The magistrate never looked at the accused, if he had seen them with bleeding injuries or uncomfortable standing posture; he should have asked the police about them. But he writes in the remand order ‘no complaints’. When you don’t see them where is the question of complaints?
The accused will never openly tell the police that they were ill-treated by the police. Because they are under distress. Therefore it is a job of the magistrate to enquire after physically seeing the accused. The magistrate has to assure the accused.”
Police is Guardian of Public
Police is an agency for administering and ensuring the law. The guardian of the public against the unlawful activities, protector of their rights. Incidents of custodial deaths are increasing and the faith in the police authorities is being largely reduced.
It has been stated under Article 5 of the Universal Declaration of Human Rights. Article 7 of the International Covenant on Civil. Political Rights states that “No one shall be subject to torture or cruel, inhuman or degrading treatment or punishment”. But is this being practiced? The number of deaths in custody says a big no.
According to the NCRB, there were 100 reported deaths in custody in the year 2017. While there were 92 deaths in the year 2016.
According to ‘India: Annual Report on Torture 2018’, a report published by Asian Centre for Human Rights, the National Human Rights Commission (NHRC) had received reports of 147 custodial deaths in 2018.
Important Judgements
- Khatri v. State of Bihar[1]
Infamously know as the Bhagalpur blinding case where 80 suspects were blind by stabbing their eyes with needles and thereafter pouring acid in the wounds; barbaric and an inhuman act by the authority conspicuously violating several laws including Article 21 of the Constitution.
Justice Bhagwati exclaim, “Why should the Court not be prepare to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty?”
This was the first case where monitory compensation was provide to the victims for infringement of their fundamental right to liberty under Article 21 of the Constitution.
- Saheli v. Commissioner of Police, Delhi[2]
One of the most shocking case of police brutality. A 9-year-old boy die after ruthlessly beat by the police.
Kamlesh Kumari (mother of the 9-year-old boy) is beat, molest. Her clothes torn off. It is by police officials including a sub-inspector. While her 9-year-old son who was present there was brutally beat. While a criminal case of trespass was impose on Kamlesh Kumari. Her son succumbed to the injuries inflict by the police and die in the hospital.
This case a compensation of Rupees 75,000 was also order by the Supreme Court apart from the conviction of the police officials.
- Joginder Kumar v. State of Uttar Pradesh[3]
While deciding a case of habeas corpus where Joginder Kumar was illegally detain for five days the Supreme Court. “No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest.
That no arrest should be made without a reasonable satisfaction reach after some investigation. As to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offense. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified.”
- D.K. Basu v. State of West Bengal[4]
Finally, in D.K Basu v. State of West Bengal, the Supreme Court lay down several guidelines to be follow across India to curb the incidents of police violence and the misuse of power.
There were 11 guidelines issue to protect the rights of the accuse and ensure his safety. These guidelines include provisions like – the police officer making the arrest shall be wearing proper and visible name tags with their designations. Attestation of the arrest memo by a friend or relative of the arrestee. The arrestee must be inform about his right to have someone inform about his arrest, etc.
The arrest of a person should take place in accordance with the provisions mentioned in the code of criminal procedure, 1973 otherwise it would be an unlawful detention.
Conclusion
“Whenever human dignity is wound, civilisation takes a step backward. The flag of humanity on each occasion must fly half- mast.”
NHRC [1996-1997]
References:
[1] 1981 SCR (2) 408
[2] 1990 AIR 513
[3] 1994 AIR 1349
[4] W.P. (Cr.) No.592 of 1987
4 Comments
Mahima Khandelwal · 01/07/2020 at 8:10 PM
Very well researched article
Vinayan Singh · 02/07/2020 at 3:39 AM
Thank you !
Udayan Singh · 07/07/2020 at 9:38 PM
Despite a suggestion by the law commission of India that if a person dies in police custody the burden should be on the police to show that they are not responsible for it,the law still requires the prosecution to prove that the police caused death.
India’s political commitment to address torture is symbolised by its failure to ratify the UN convention against Torture.
There is an institutional and public culture that breeds ,protects and even celebrates this kind of violence.
Udayan Singh · 08/07/2020 at 1:30 PM
It is also important to delve into the dull-witted remand plea which was accepted by the magistrate.In deciding such pleas ,the magistrates often accept the police version as Gospel truth.In doing this the magistrates are in contravention of what the honourable Supreme Court laid in Manubhai Ratilal Patel vs State of Gujarat. The court held “The act of directing remand of an accused is fundamentally a judicial function.While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand .It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.”
I suggest that a constitutional bench should be formed and the Supreme Court should rewrite the “custody jurisprudence”.