Custodial violence has been hogging the limelight of media & it’s a major concern for civil societies, NHRC, ARCH and in recent years we have seen a surge in degrading human rights and it reminds me of famous line by Sudarshan fakir “Mera munsif hi mera qatil hai. kya mere haq me faisla dega?”. Custodial violence pertains to the violence which has been done under police custody or judicial custody. Role played by fourth pillar of our democracy could not be much appreciated because in the recent past we have seen more & more of media trial on superficial terms rather than doing proper research work.
The glaring example is of death of Sunanda Pushkar where in Shashi Tharoor was pronounced convict by one of the news channel even before verdict pronounced by honorable Court. Reason behind picking up this topic is not to speak evil in existing system but to remind that he or she is not a criminal until pronounced. This paper is descriptive in nature and have some limitations too. The word custodial violence pertains to violence in custody whether judicial or police and there are few forms of violence which are as followed torture in custody which may be inform of mental & physical, sexual harassment, rape, last but not the least is death.
As per the rule any custodial death should be reported by the state to NHRC within twenty four hours and death should be followed by postmortem of the detainee death with all the circumstantial evidence un-tampered but people who are there to safeguard the fundamental & constitutional rights themselves turn as a tormentor, again I would say that I am not an advocate of devil here, my only concern is fundamental right should be protected at any cost.
Person who has committed a crime should not go scot free where as one who is not guilty should be given due respect .Law should take its own course .Section 330, 331, 348 of IPC & Section 25 & 26 of Indian evidence act, Section 76 of CRPC,& section 29 of police act was framed specially by upholder of the constitution to restrain police personal from extracting out the confession from people under custody but we know how these are bent by unscrupulous elements because they understand they are here not to serve but to rule, and justice dies an un natural death at every chowki & every thana and every jail. Who will take up the cudgel, you? me? Or Almighty? To improve all this.
Difference between police custodial and custodial death
The word police custody means an accused should be physically under watchful eyes of police and the offence is non-bail able accused will be lodged in police station lockup. As per law anybody who is being taken into custody should be produced before the magistrate within twenty-four hours, after hearing from police it’s under the jurisdiction of the magistrate to decide whether to send an accused under police custody or judicial custody. If police want to interrogate and draw out the confession from the accused, police will request magistrate for the custody of an accused and then it’s for the magistrate to decide.
Data available with NHRC states that as many as 1300 detainee’s death (approximately) were reported during the period 2001-2013(data after 2013 are in process of being compiled). The figure may seem miniscule but then every death is reported I doubt? Even if it is 1300 this shows inhumane face of our system. There are certain section under CRPC,IPC, IPA envisaged by the constitution to safeguard our human rights as stated above, but then if this were adhered to we would not have been seeing the example of police brutality on Ashok Kumar (bus conductor of Ryan in Bhondsi).The way Kumar was tortured to extract confession for a crime could really activate the lachrymal glands of any law abiding citizen (Since the matter is sub-judice lesser we speak better it is).
Role played by journalists of electronic & print media was in bad taste where every other professional associated with media house were hell bent on pronouncing him guilty of the crime even while the matter was sub-judice. The journalists were scandalizing the matter to earn every single TRP and in order to boost the bottom line. Here I have a question to ask from every one sitting here & everyone associated with my fraternity as to why same air time or print space was not allotted to his pain and anguish which he is going through or would have gone through while in jail or after being released from jail. The system could have behaved in a more responsible way and would have not adopted methods like hanging him upside down, or passing electric current through his body or lacing him with drugs to extract confession. Everyone is not as lucky as Kumar who could see the lights of the day even after moving into the clutches of SCORPION’S. “Let ten guilty go scot free but one innocent should not lose his life” famously Known as Blackstone ratio quoted by renowned English jurist William Blackstone.
Judicial custody is ascribed by the judge or court itself and during this period an accused cannot be interrogated by police without an order from concerned magistrate, during this period an accused is lodged in jail. Figure of judicial death is far worse than police custody number of death that were reported in judicial custody for a period ranging from 2001-2010 and the number was 12727. (data from 2011-2016 is under compilation, data source (NHRC). Section 36 (1) in the protection of human rights act 1993 is very often misused by state government to bypass NHRC. This law states that the commission shall not inquire into any matter which is pending before state commission or any other commission duly constituted under any law for the time being in force. I am of the strong opinion that this draconian law should be changed to safeguard human rights & human dignity. Its mandatory that after expiry of remand period of 15 days (under normal circumstances) policy custody a detainee cannot be further sent to police custody apart from this there are custodial death by the armed force services which never gets reported
Custodial Death: An overview
Custodial violence and death are one of the major problems that are being faced by our country and the ratio of the custodial violence and death has gradually been increasing in the recent years. This problem has been hogging the limelight and is the primary threat to the country. People who have assigned to serve the law have itself become the tormentor. To relate the situation NHRC has given an annual report which states death and the brutal face of police custody and judicial custody from the year of 1993 to 2002
|year||Police custody||Judicial custody||Others||Total|
|1993-1994||Not available||Not available||Not available||34|
*Annual report showing states death and the brutal face of police custody and judicial custody from the year of 1993 to 2002.
Judgement view of Supreme Court and High Court
In order to depict the brutal behavior of police we can take up a case where in writ a petition has being filled by Rubab Uddin vs state of Gujarat where in the case pertains to extra judicial killing of gangster Shorab Uddin Sheikh and his wife Kausar Bi on November 25 2003 gangster was travelling with his wife from Hyderabad to Sangli in Maharashtra bus was stopped mid-way by ATS Gujarat , Rajasthan , Andhra Pradesh 3 days later gangster was killed in stage managed encounter and his wife too went missing The matter is subjudice in supreme court and case has travelled a long distance from high court to supreme court.
Countries and Custodial death: A study
There are various countries which have degraded the human rights and people have faced brutality from the agents of law the glowing example of degrading the human rights is in USA a country which has established Guantanamo Bay which is a live example of human torture and brutality.
The Guantanamo bay detention camp is United States military prison located within Guantanamo bay naval base. Since the inmates has been tortured so much that the operations of this camp are considered to be a major breach of human rights by Amnesty International.
Even if we talk about the countries like Afghanistan, Pakistan, Iraq, and Myanmar – The same problem is prevailed in the judiciary system and it is increasing day by day.
Role of Media in special reference to the custodial death
It must have come across every auditory canal that “words are more powerful than swords” and we get a glowing examples role played by print and electronic media during pre-independence era as media had ignited the passion of the people to fight against the colonial rule and the rulers and thereby uprooting them from a country called India. It’s not only pre independence era but also post-independence too. We find n number of examples. Memory & memoirs of ‘the chivalrous girl Nirbhaya’ where in system was made to hear our voices and concerns and was forced to act upon, thereby perpetrators of the crime were behind the bars with in few days of the onset of crime.
On day to day basis we hear and read about stings carried out by electronic & print and later on aired or printed to expose the criminal mindset there by forcing the responsible to act upon. Memory of Bangaru Lakshman must be fresh in our mind. The only things that upsets me is a rat race for TRP, GRP and readership that sensationalizes the event & eventuality. Fourth pillar of our constitution should not be caged and craving for achieving the bottom line should not act as a bait because people in media have got some moral & social obligation towards the society.
Conclusion and Suggestions
Problem of custodial violence is not new or it’s not a gift of current era, these particular methods were employed even during monarchy & it’s being employed today also. We always hear that hands of thieves are chopped off, an eye for an eye and life for life are the methods employed by ruler in Arab countries, we have heard a lot about notorious city of Guantanamo bay in USA incidentally who consider & project themselves as a champion of Human cause and it’s necessary to take a mandatory steps to protect the dignity of human & humanity.
Whenever & wherever there is case of custodial atrocities it shouldn’t go unnoticed and unreported, perpetrators should be brought to book.
The much needed reform in system is that law enforcing agencies should be made to understand that they are here to serve & not to rule and there by teaching them to be courteous, well behaved, and poses courage and dignity to instill sense of confidence among the citizen of country.
Guidelines given by Apex Court in D.K. Basu and Sheela Barse’s case must be followed by police to uphold the dignity of the detains
Police must be made to remember the oath taken by them while joining their duties which states that they should bear true faith & allegiance to the constitution of India where in right and dignity of detainees are guaranteed by the constitution
Severe punishment should be meted to offender who are initiator of custodial torture and rape
Recommendation of law commission in its 113th report, suggestion by NHRC and malimath committee should be implemented in Toto.
The views and opinions expressed by the writer are personal and do not necessarily reflect the official position of VOM.
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