Custodial Death is a gross violation of Human Rights – Explain & Illustrate
1. INTRODUCTION
Custodial Death is an unpleasant destruction of Human Rights, No civilized law suggest custodial cruelty. It is 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 crimes 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.
2. Human rights vs. Custodial Death
“Human right refers to the concept of human beings as having universal rights, or status, regardless of legal jurisdiction, and likewise other localizing factors, such as ethnicity and nationality or other group status, such as gender or sexual orientation. [1].”
“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.” Torture in custody against the basic rights of the citizens and is an affront to human dignity.
Human rights are international norms that help to protect all people everywhere from severe political, legal, and social abuses [2]. These rights exist in morality and in law at the national and international levels.
1. http://en.wikipedia.org/wiki/Portal:Human_rights
2. Nickel, James (2009). “Human Rights”. In trse, Edward N. The Stanford Encyclopedia of Philosophy. [http://plato.stanford.edu/archives/spr2009/entries/rights-human/]
3. Conceptual aspect regarding custodial death
There are four main aspects of this violence:-
1. Torture [3] – (a) mental
(b) Physical
2. Sexual Harassment [4]
3. Rape [5]
4. Death
Law has always discouraged the acts or omissions which in general can affect right in force 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 [6] 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.
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3. Torture: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
4. Sexual Harassment: “Hammering upon one’s personal dignity and self respect”.
5. Rape: “A broader pattern of custodial abuse”. It is committed under the shield of uniform and authority within the four walls of a police station, the victim being totally helpless.Rape by police, including custodial rape, is very common. A higher incidence of abuse appeared credible, given other evidence of abusive behavior by police and the likelihood that many rapes were unreported due to a sense of shame and a fear of retribution among victims.
6. Physical abuse: is abuse involving contact intended to cause feelings of intimidation, injury, or other physical suffering or bodily harm.
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.
Custodial violence is indeed a matter of great concern. Thinking of the pain and trauma [7] that a victim suffers due to torture, the protection of his life and liberty from such inhuman treatment becomes the most sacred duty of every organ of justice delivery system.
In custodial crimes, not only the infliction of body pain is worrisome, but also the trauma and mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is third degree torture or death in police custody, the extent of loss caused to the humanity is beyond the purview of law. Repeated incidents of Custody deaths in the country have not only shaken the people’s conscience, forcing them to take to the street against the inhuman torture techniques adopted by the police, but has also highlighted the hostile attitude of law enforcing agencies in containing such dreadful crime against the humanity. Custodial violence [8] including torture, death and staged encounter, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law.
7. Trauma: an often serious and body-altering physical injury, such as the removal of a limb
8. Custodial violence: “An inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation”.
4. Constitution provision regarding custodial death
According to the constitution regarding Fundamental rights: section: 27. Equality before law: All citizens are equal before law and are entitled to equal protection of law. And section: 35 (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens and also aimed at affording procedural safeguards to a person arrested by the police.
a) The Apex Court’s Concern
It ensure, the record of the police personnel arresting and handling the arrestee, the record of arrest, the record of his whereabouts during detention, giving of information to his relative or acquaintance having interest in his welfare, periodic medical examination of the arrestee to ascertain whether any force is used and the state of his health which in custody, preparation of “Inspection memo” recording injuries if any on the arrestee so that the events of custodial violence can be easily detected and the perpetrations are duly dealt with. These requirements which flow from Art. 21 and 22(1) of the Constitution are ordered to be strictly followed not only by the Police agencies but also by the other governmental agencies. The Apex Court through judicial activism evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. This development is disastrous our human right awareness and humanistic constitutional order
b) Human Rights Commission
The official mechanism for the protection of human rights in this country was set in motion by the then President’s assent to the Protection of Human Rights Act came in to force on September 28, 1993. Section 3 of the Act provides for the setting up of the National Human Rights Commission (NHRC) and Section 21 for the setting up of the various State Commissions (SHRC). The National Human Rights Commission in its Annual Report of 1997-98 records that during the year 1996-97, 188 deaths in Police Custody were reported and during the year 1997-98, 193 deaths in Police Custody, and 700 deaths and 819 deaths respectively in judicial custody were reported to the Commission. In the context of addressing the issue of custodial torture, the Commission has reiterated its earlier recommendations by soliciting early action on the suggestion of the Indian Law Commission to the effect that proposed Section 114(B) be inserted in the Indian Evidence Act to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by a Police Officer, as well as the suggestion for amendment in Sec. 197 of the Cr. P.C. to obviate the necessity for governmental sanction for the prosecution of a police officer where a prima-facie case has been established in an inquiry conducted by a Sessions judge in the commission of a custodial offence, as also the suggestion by the National Police Commission that there should be a mandatory inquiry by a Sessions Judge in each case of custodial death, rape or grievous hurt.
5. Recommendations:
Based on the report I made some recommendations,
Ø Adopt an official policy to protect human rights.
Ø Investigate impartially all allegations of torture.
Ø Bring the perpetrators to justice.
Ø Strengthen safeguards against torture.
Ø Inform detainees of their rights.
Ø Compensate the victims.
Ø Train the police and security forces to uphold human rights, and reform the police.
Ø Provide torture victims with medical treatment and rehabilitation.
Ø Investigate the causes and patterns of torture.
Ø Strengthen India’s international human rights commitment.
Limitation of the Study:
Ø Lack of availability of data
Ø Time is a limitation that would mostly with stands a comprehensive study on the topic selected.
Ø Up-to-date information was not available.
Ø Data taken from past years record.
6. Conclusion:
Custodial violence violates the inherent dignity of a person. It not only humiliates the victim but reduces a sub-human level. It is generally the poor, disadvantaged and the weaker sections of the society who are victims of custodial crimes because there is no one to care for them and to protect them. It is therefore, for the government and the legislature to give a serious thought to the recommendation of the Law Commission and National Human Rights Commission and bring about appropriate change in the law both to curb custodial crimes and also to ensure that the guilty are punished. The new beginning of the policy of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary
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