Custodial Death is a gross violation of Human Rights – Explain & Illustrate.
When the state takes away the liberty of an individual and places him in custody, it assumes full responsibility for protecting the person’s human rights- the most fundamental of which is the right to life. This right and other human rights which protect people detained by the state, now form part of the UK law under the Human Rights Act (HRA) 1998. Yet, although the death penalty has finally been abolished in the UK, and few of the prisoner’s instead serve whole life sentences, too many still die in the custody. Some of them of course die from natural causes, a few are killed by fellow inmates, whilst others die as a result of actions of officers of the state often without charges being brought or an effective remedy being made available to family and friends.
Human rights are generally defined as those rights which are inherent in our nature and without which we cannot live as human beings. Recognition of these natural rights of human beings is as ancient as the human civilisation. The human rights trace back to the Magna Carta (1215 A.D) 1, The Petition of Rights (1627 A.D) and The Bill of Rights (1688 A.D) in the UK. The Declaration of Rights of Man 1789 by the French National Assembly influenced the framing of the constitution of the USA and in the 19th century these rights became the basic principles of the constitutional law of the modern civilised states.
In UK one of the major human rights established by jurisprudence of the European Court of Human Rights (ECHR) Art.2, states that; “Everyone’s’ right to life shall be protected by law, no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
The word ‘custody’ indicated guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. Prisoners have human rights and prison torture is the confession of the failure to do justice to living man. No doubt the police play a vital role in safe guarding our life, liberty and freedoms, but the police must act properly showing full respect to the rights of the people, remembering that they are also beneath the law and not above it, and can be held liable for the violation of human rights. Not only Art.2 but also a number of Convention rights are also important in protecting human rights in custody, such as Art.3 2, 8 3 and 14 3.
Hence from the outset and outlines of legal framework it is clearly visible that custodial killing is a gross violation of the human rights.
Explanation of the Conceptual Aspect
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 UK or Bangladesh 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.
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. The expression “life or personal liberty” includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. Judicial conscience recognized human rights of prisoners because of its reformist approach and the belief that convicts is also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened criminals.
We can see that constitutions and conventions do not allow any scope for custodial violence and most certainly not custodial killings. However, it remains to be seen how strongly these human rights are enforced and even today in many developing countries custodial death is not a very unusual or unknown concept and news about such deaths come across local newspapers every other day. Let me illustrate this using India as an example.
Illustration of Custodial Violence
The official machinery for the protection of human rights in India 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.
The law commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police officer, the court may presume that the injury was caused by the police officer having the custody of that person during that period. In Shyamsunder Trivedi’s case the Supreme Court also expressed that hope that the government and legislature would give serious thought to the recommendation of law commission. Unfortunately, the suggested amendment has not been incorporated in the statute so far. The need of amendment requires no emphasis, sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and the court invites Parliament attention to it.
Few Facts From The Other Side
In most cases the police officers are the ones blamed for the custodial violence and eventual deaths. Although there shall be no excuses for such cruelty and inhumanity but some alarming facts should be looked on to in order to understand the total picture. In countries like Bangladesh the fear of violating the law is not as wide spread as it should be. Many policemen believe that they can get away with anything, even murder. They have those who think they are to protect VIPs and the later, in turn, protect them. The police itself are not treated properly. Due to poor education, low salaries, hard working conditions, insufficient holidays, inadequate family life, lack of scientific training and equipment, they solve cases by resorting to violence. The use of third-degree methods during investigations is largely responsible for most custodial deaths. Apart from the above, allurement of getting promotion by obtaining big disclosures during investigation of crime also contributes towards excessive force because promotional avenues for lower rank officials are negligible. Constables, except a few, are not getting a single promotion till retirement despite having more than 36 years of unblemished service record. All these factors are important as well in the whole situation. So to abolish custodial violence from the system steps must have to be taken to fix these problems as well.
Custodial Violence Victims and Their Rights
Right to own life is not the only human right the topic concerns. A person dying in the prison cell doesn’t mean the end of the story there. There are lots of things related to that person. In many cases it has been seen that the issue hasn’t been handled properly after the occurrence. No one ever cares to look into the state of condition of the families of the victims of the custodial death who lost their only breadwinner. The Government whose foremost duty is welfare of the people, not bothered to bring any legislation for the welfare of the families of the victims of the custodial death perhaps their contribution to the vote bank of the political parties who run the government is negligible. The families of the victims of custodial death lost regular income, wife lost a protecting husband and children lost a caring father in this way every member of the family lost some one or the other for no fault on their part. There all hopes dashed to ground. The lump sum monetary compensation is not an appropriate and only remedy in case where the victim is the only breadwinner for the family. In such a case the family is not only in need of lump sum monetary compensation but also requires monthly income to supplement the income lost. The custodial death of a breadwinner also affects the right to education, right to health, right to shelter and right to livelihood of the dependants of the victim. So in all respects it has to be made sure that the victim’s family gets the support as they are ought to according to the legal system. It is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer.
The cases that come to light reflect the cruelty with which the human beings brought in custody or control are treated by their fellow human beings. Detection and deterrence would be the key factors for preventing the recurrence of such incidents. An efficient and independent machinery to detect such cases and prompt action to punish the erring officials can ensure some safety against custodial violence. The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary. Finally prevention of deaths in custody can best be achieved in a system which takes seriously at every level its obligation to protect the right to life under Article 2 ECHR, but which also sustains a culture which respects the dignity, privacy and autonomy of the people it detains and their rights under Article 8 and Article 3 ECHR.
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