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Custodial death is a gross violation of human rights

Introduction

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 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.

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. 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 in ram 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.

Human rights

Fundamental rights which humans have by the fact of being human, and which are neither created nor can be abrogated by any government. Supported by several international conventions and treaties (such as the United Nation’s Universal Declaration of Human rights in 1948), these include cultural, economic and political rights, such as right to life, liberty, education and equality before law, and right of association, belief, free speech, information, religion, movement, and nationality. Promulgation of these rights is not binding on any country, but they serve as a standard of concern for people and form the basis of many modern national constitutions. Although they were defined first by the UK philosopher John Locke (1632-1704) as absolute moral claims or entitlements to life, liberty, and property, the best-known expression of human rights is in the US Declaration of Rights in 1776 which proclaims that “All men are by nature equally free and independent and have certain inherent natural rights of which when they enter a society they cannot by an compact deprive or divest their posterity.”Called also fundamental rights.

Human Rights against Custodial Deaths:

The most fundamental part of human rights is the right to life.This type of human rights which protect people detained by the State falls under the law of Human Rights Act 1998. A death penalty or even custodial deaths violate these rights according to many human rights activists from around the world. A state ensures protection of its people enforced by law. They have more responsibility about a person’s protection when they take them into custody in doubts of unlawful acts. Therefore, whenever a person dies in custody, it raises a major human rights issue.

Besides people who are serving whole-life sentences, many others die in custody. These custodial deaths maybe caused due to natural causes or diseases, attacks by other prisoners, self-infliction, third-degree tortures while in remand, and many other reasons. Many of those people who die in custody are held on remand in either police custody or prison for doubts of unlawful acts, and are convicted of no criminal offence. These are serious violations of human rights as every individual has the right to life, which is protected by the State and these deaths “are not” enforced by law.

Human rights and dignity in police custody

When the police arrest a person, the latter is thought to be in a safe custody. Every treatment the arrested person gets from the police must be in line with legal provisions. Our laws explicitly declare the inherent rights of an arrested person or a person in the police custody. Our laws not only urge that the arrested shall not be subjected to more restraint than is necessary to prevent his escape, but also allocate 36 square feet space in the police lock-up for one prisoner.

Our constitution ensures the human rights of all persons coming to the custody of their regulating machinery. We are pledge-bound to uphold the provisions of the International Convention on Human Rights that states, ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. It also urges that ‘No one shall be subjected to arbitrary arrest, detention or exile.’

The police cannot keep a person in their custody for as long as they wish. The constitution never allows a person to be in the police custody more than 24 hours without the permission of the appropriate magistrate. ‘Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the staid period without the authority of a magistrate.’

While a police officer Endeavour’s to arrest a person, he/she may use ‘all means necessary to execute the arrest.’ He can use force, including deadly force, to execute the arrest. He may cause the death of the person if he/she is accused of an offence punishable with death or with imprisonment for life. But once the person comes in the custody of the police, he/she is entitled to a plethora of legal and constitutional rights. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Our criminal procedures code, enacted in 1898, much before the creation of our Constitution, has duly guaranteed the rights of the arrested persons.

‘No police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court.’

The arrested person must be provided with all the legal and constitutional comfort and dignity while in police custody. In our society arrest is always thought to be very degrading. Once a person comes to the police custody for any reason good or bad, society regards him or her with disdain. On the other hand, the use of handcuff is also degrading for a reputed person. So, the PRB often declares the use of handcuffs or ropes an unnecessary indignity. In no case shall women be handcuffed, nor shall restrain be used to those who either by age or infirmity are easily and securely kept in custody. Witnesses arrested under section 171 of the Code of Criminal Procedure shall, in no circumstances, be handcuffed. In bail able cases, prisoners should not be handcuffed unless violent and only then, by the order of the officer-in-charge of the police station, with the reason for the necessity of this action entered in the general diary. In non-bail able cases, the amount of retrain necessary must be left to the discretion of the officers concerned.

The human rights groups of the country claim and the public perception prevails that most of the arrested people in police custody are physically tortured, especially during interrogation. Most often police investigators inflict physical torture on a person for extorting confession or restoring lost or stolen property. If the police officer voluntarily causes simple injury to the arrested person while in his custody, he might be awarded with an imprisonment of up to seven years of either description, and shall also be liable to fine. On the other hand, if the police officer inflicts injuries of grievous nature to the arrested person in the name of interrogation, he might be punished with up to ten years of imprisonment of either description and shall also be liable to fine.

The death of a suspect in the police custody results in serious controversy. The human rights groups brought this issue to the High Court Division for several times. On June 2, 2010 the High Court Division reiterated its intolerance on death in police custody. Earlier, on April 7, 2003, after hearing a writ petition in connection to the death of a university student, the High Court Division issued two sets of directives for handling suspects in the police custody. The court recommended, ‘The investigating officer shall interrogate the accused, if necessary for the purpose of investigation, in a room specially made for the purpose with glass wall and grill in one side, within the view but not within hearing of a close relation or lawyer of the accused.’

It is noteworthy that the death of a person in custody is not totally avoidable. The more people will be in custody, the higher the chances of natural death. The lockup is not inaccessible to the angel of death. Even the developed countries with clean chit of human rights are not free from allegations of custodial death. In the United Kingdom, 34 persons on an average die every year in the police custody. But, as their investigation system of custodial death is very clean, the common people have not much to say against it.

Human Rights Law:

There are many human rights law assigned by the sovereign authority for the well being of a society by ensuring the safety of every individual. The law which concerns with the deaths in custody is Article 2 of The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), The Human Rights Act 1998, which states that:

“1. 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.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 2 clearly provides that the state should not deprive you of your life, except in very limited circumstances.According to the article, whenever someone is killed by a police, army or prison officer, the incident will always link to “right to life”. In such a circumstance, investigations will be called and a failure in the investigation at the hands of a state official is likely to be a breach of Article 2.

Bangladesh Study

THE issue of custodial deaths has, once again, become the focal point of discussion in both the press and the court. The human rights organization Ain O Salish Kendra put the number of people killed in custody of law enforcers in 2009 at 229. Moreover, it said, 133 people were killed in 2010 in ‘encounters’ with the police and the Rapid Action Battalion.A huge battalion of Bangladesh Rifles (BDR) killed more than seventy army officers and others dead in February 25 and 26, 2009. After that, most soldiers of Bangladesh Rifles were held in prisons as suspects for the massacre. More than a thousand soldiers including twenty civilians were detained, and the others are still in the police custody. From a statement of the Bangladesh Rifles on April 23, 2009, it was said that “Sixteen detainees have died in custody – four from suicide, six from heart attacks, and six from other diseases.” But Brad Adams, Asia Director at Human Rights Watch, said that he couldn’t find a solid reason for which the detainees have committed suicide, and thus, he has urged the government to take immediate actions to stop such deaths in custody.

From credible sources in Bangladesh, reports were found by the Human Rights Watch on torture of detainees while they were in custody. One of the suspects told that he was tortured with electric shocks for seven days by the Rapid Action Battalion (RAB). After the death of another suspect, a family member said that he was in good health before taken into custody and has no reason of sudden death. In a medical report of a dead suspect, wounds of torture were inflicted, which the authority denied by saying that the wounds may have been caused while they were trying to escape following the rebellion.

In Bangladesh, the system of investigation of death in police custody is not much appreciable. When a person dies in custody, according to the direction of the criminal procedure code and the PRB, an executive magistrate makes an inquest report and then the dead body is sent for post-mortem examination. So, the medical report is expected to bring legal action against the responsible persons. However, there will also be an enquiry to find out the immediate causes of the death. But, the public perception in this concern matters. Though the executive magistrate makes the inquest, the whole process, in the roundabout way, is managed by the police. The best thing to do to win people’s acceptance in the enquiry of the death in police custody is to formulate a legal framework to oversee the process. In the developed countries, highly professional bodies independent of police influence normally enquire into custodial death cases. The Independent Complaints Commission of Great Britain deals with the matters ‘from which it appears that a person has died or suffered serious injury during, or following, contact with a person serving with the police.’

In Bangladesh some positive proposals have already been made in this concern. The Draft Police Ordinance, 2007 has duly addressed this issue. There shall be a police complaint commission under chapter eight, headed by a retired justice who will receive from the national police commission or the range police officers or head of units any report of death, rape or serious injury to any person in police custody and take steps to preserve evidence relating to such incidence. However, the passing of the draft is still uncertain and the people have no other ways but to live with suspicious deaths in the police custody for the time being.

Conclusion

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. Such cruel demeanors of human beings would put to shame even wild carnivorous beasts and terrify and benumb tigers witnessing the skinning of a mighty tigress in the helpless custody of her captors supposed to protect and preserve the specie. 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. Section 37 of the Protection of Human Rights Act, 1993 empowers the Government to constitute: one or more special investigative teams consisting of such police officers as it thinks necessary for the purpose of investigation and prosecution of offences arising out of violations of human rights .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.

Bibliography

1.      Davidson, Scott, Human Rights, USA: Open University Press,1993

2.      Rehman, Javaid, International Human Rights Law-A Practical Approach, England: Pearson Education Limited, 2003

Web Site searched:

1.      http://www.nfh.org.uk/law/human_rights_act_1998/index.php#1,

2.      http://www.yourrights.org.uk/yourrights/the-hum

3.      http://www.google. www.custodial death .bd.com

4.      www.businessdictionary.com/definition/humanrights.html

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