Topic: Custodial death is a gross violation of human rights
The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking. It is one of the worst crime in the civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.
Prisoners have human rights and prison torture is the confession of the failure to do justice to living man. For a prisoner, all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Simply stated, the death of a person in custody whether of the Police or Judicial will amount to Custodial Death. No doubt, the police plays vital role in safeguarding our life, liberty and freedoms. But the police must act properly, showing fall respect to the human rights of the people, remembering that they are also beneath the law, not above it and can be held liable for the violation of human rights. One can always argue that prisons formed islands of lawless discretion in a society guided by the values and often the practice of the rule of law, where the authorities exercised arbitrary power over the prisoner’s lives. The charge of brutal custodial violence by the police often resulting in the death of the arrestees is not new. Needless to say, a large number of custodial violence incidents go unreported. Even in the case of persons who were arrested, in an overwhelmingly large number of cases they were all accused of petty offences n fact, the victims of custodial violence are people from poor and backward sections of the society with little political or financial power to back them. Personal enmity, caste and political considerations and at times pecuniary benefits become important considerations for custodial deaths rather than investigation of cases.
Conceptual aspect regarding custodial death
Law has always discouraged the acts or omissions which in general can affect right and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society. Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture. Since time immemorial man has been attempting to subjugate his fellow human beings. Those in power are used to twisting and turning the people through violence and torture, and torture under custody has become a global phenomenon. Men, women and even children are subjected to torture in many of the world’s countries,even though in most of these countries, the use of torture is prohibited by law and by the international declarations signed by their respective representatives. A problem of increasing occurrence and repugnance had been the methods of interrogation and torture perpetrated upon prisoners and detainees. Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person.in custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s inquest and in recent year’s information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored.
Police atrocities: some concern
Custodial violence, including torture and death in the lock-ups, are committed under the shields of “uniform” and “authority” between the four walls of a police station, lock-up and prison, where the victims are totally helpless The custodial deaths are neither usual nor unknown. Such deaths take place not only in India but also in various other countries. These deaths definitely lead to custodial violence. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence of confession often resort to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the newspaper almost everyday carrying reports dehumanizing torture assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder.
The arrest of a person suspected of crime does not warrant any physical violence on the person or his torture. But, when the captive exercises his fundamental right to silence against self-incrimination during his interrogation, the police often abuse their authority by use of criminal force to extort information. There must be punishment to one who voluntarily caused hurt or grievous hurt to extort the confession or any information which may lead to detection of an offence or misconduct. The ambit of these sections is wide enough as to extend to all policemen then present, but, who do nothing to prevent torture and either stand unconcerned or withdraw from the scene for fear of getting themselves implicated therein.
The international human rights instruments of which Bangladesh is a party unequivocally outlaw all kinds of torture, cruel, inhuman or degrading treatment or punishment. Our Constitution guarantees complement this prohibition, which is not barely ornamental and declaratory, but entails precise enforceable legal obligations. Remedial and reform measures pertaining to the law and procedures of police custody are long overdue. To this end, this piece pursues a triangular reformist approach to promote lawful maintenance of order and protect the human rights of persons in custody. These measures reinforce the application of the rule of law and due process in dealing with police custody cases.
Preventive measures: Transparency in dealing with the person in custody is an important procedural aspect of the fair application of law. A minimum threshold of objectivity and openness in law enforcement may be adopted in the following ways:
1. The proper identification of the police officer/s involved in dealing with the detainees is paramount. Such police officers should bear accurate, visible, and clear identification (name tags and designations). Their particulars must be recorded in a register. Sometimes the perpetrators wear masks making it difficult to identify whether they are hired or regular forces. Dr Mohiuddin Alamgir testified before the court that he was brutally tortured by three masked men.
2. The police must be required to notify immediately the relatives of the arrestee about the time, place of arrest and venue of custody. There are instances where the relatives of detainees had to resort to writ petitions to know the whereabouts of the detainees.
3. The requirement that an arrestee must be presented before a competent magistrate within 24 hours must be enforced. Such a magistrate must release the arrestee should the arresting police fail to file a case within the specified time. There are instances where the arrestee died (Jamal case, Star 30/4/2002) or was taken to doctor (Nipu Rani case, Janakantha 12/6/2002) after arrest but before producing to the court required by the Constitution Article 33 of and the Code of Criminal Procedure s61.
4. The lawyer/s of the arrestee’s choice must be allowed to meet him/her and stay during interrogations. If unaffordable, legal aid may be made available, or a human right organisation representative of the arrestee’s choice could be allowed to be present during interrogations.
5. If the arrestee is unwilling to make any confession before the magistrate, the magistrate shall send such person to judicial, not police, custody. Any confession by the arrestee recorded in police custody will bear no evidentiary value, as confessions may have been extracted by employing ‘third-degree’ methods. Involuntary confessions made under coercion is inadmissible under CrPC ss 163-164, the Constitution Article 35(4), and State v Munir (1BLC 345).
Punitive measures: Punitive measures are remedial and impose strict liability on the law enforcing agencies for the abuse of power. Custodial violence is a punishable offence with imprisonment under s29 of the 1861 Police Act and s53 of the 1976 Dhaka Metropolitan Police Ordinance. There are past and present instances where the police have been punished for custodial deaths. The law enforcing personnel responsible for torture during custody must be brought to justice routinely pursuant to the Penal Code 1860. The commanding officers can take actions against their subordinates for torture under s33(b) of the Police Regulations. Being their immediate controlling authority, the commanding officers should also bear legal responsibility for the crimes committed by their subordinates, which will render them more vigilant about acts of their subordinates.
Curative remedies: Curative remedies offer compensation to the victims and/or their relatives for custodial deaths or injuries. It imposes vicarious liability on the State. The maxim salus pouli suprema lex (the safety of the people is the supreme law) lies at the heart of this liability regime. Custodial crimes include not only the infliction of body pain but also the mental agony which an arrestee undergoes within police lock-up. Sufferings of the defendants are of paramount significance in cases, where the victim was the sole breadwinner for the whole family. The victims and their families are entitled to compensation, the amount of which will be determined on a case by case basis by the court.
Judicial inquiry: Incidents of custodial violence must be investigated by a senior judge. The police department undertaking such investigation appears patronising, as it invariably records custodial deaths as unnatural deaths and finds no fault with the police. Investigating alleged police crime by the police is contradictory to the principle of natural justice, as no one can act as a judge of his/her own cause. An objective and impartial result of judicial inquiry is mirrored in the verdict on the Rubel custodial murder case (June 2002) in which 13 police officers were sentenced for life, which happened on the recommendations of a judicial committee headed by a judge of the Supreme Court.
Role of the Supreme Court: The paramount duty of any judiciary is to protect the legal rights of every citizen. The Indian Supreme Court in State of M P v Shyamsunder Trivedi (4 SCC 273-74) held that the death in police custody is one of the worst kind of crimes and suggested that the judiciary must adopt a realistic rather than a narrow technical approach in dealing with custodial crimes so that the guilty should not escape and the victim has the satisfaction that the majesty of law has prevailed. It would be a double jeopardy for poor citizens if financial constraints inhibit them from receiving redress. In such circumstances, the Court can play a pro-active role by taking actions suo motu to dispense justice. In Re Death of Sawinder Singh Grover (4 SCC 4500), the Indian Supreme Court took suo motu notice (from the media) of the custodial death of Sawinder Singh Grover and directed the authority to compensate the widow. The Indian Supreme Court decision on custodial violence in the Basu case (1997 AIR 615) was an outcome of a letter from a legal aid organisation addressed to the Chief Justice of India drawing his attention to deaths in police custody. The letter was considered as a writ petition. Stories of custodial violence are frequently and readily available in the media. Human rights NGOs can take the initiative by referring those stories to the attention of the Chief Justice, who can trigger the jurisdiction of the HCD to play its crucial constitutional role of judicial activism against custodial violence.
Human rights campaigns: Good governance presupposes respect for human rights. Nationally, the Human Rights Commission should take a stand against all custodial violence. The citizens need to be made aware of their rights. Human rights organisations can form pressure/lobby groups to launch a public consciousness-raising campaign about the constitutionally guaranteed rights through easily available and accessible publicity means and educational programs. This would help remind the general public and the law enforcing agencies about the due treatment during police custody. Readily available free legal aids may be the only option to protect the powerless and voiceless poor victims of custodial brutality. Internationally, there are individual complaint procedures. Pressures may be brought to bear on the government to ratify these procedures to enable the victims of police custody to invoke international remedies as a last resort.
Custodial violence has become a pervasive feature of law enforcement, in which nobody is seemingly accountable to anybody for anything pertaining to custodial deaths or injuries. Reforms to create mechanisms for transparency and accountability of actions of the law enforcing agencies is in order and indeed imperative to protect potential victims of custodial violence. The suggested reforms merely underscore the need for a judicial mind to ensure a just and lawful maintenance of order. Law cannot be enforced by breaching the law. Members of the law enforcing agencies are not above the law. Police custody and interrogations should be derived from and exercised by the limits of the law. It would be rewarding for those victims who despair in police custody, should the government becomes self-reflective in bringing its law enforcing functionaries within the bounds of law. Bangladesh cannot have a dignified existence unless the barbarous acts of custodial violence are subject to the law and their perpetrators are brought to justice.