–By Thenewsweb Legal Correspondent
Custodial torture is an anathema to democracy which is considered as a naked violation of human dignity. It destroys, to a large extent, the individual personality and violates Article 21 of the Constitution. This issue has created a storm following the custodial death of father-son duo (62-year-old P. Jayaraj and his 32-year-old son J. Bennix) in Tamil Nadu recently.
According to a report, 1731 people had died in police custody in India in 2019 , that is more than five every day. The very unfortunate aspect is that the conviction rate in these cases are very low (i.e. majority of the policemen involved in these crimes remain unpunished).
Section 176(1A) of the Criminal Procedure Code calls for a mandatory judicial inquiry related to incidents of death, disappearance, rape etc. in police and judicial custody. However, either the judicial inquiry does not happen or even if happens, the policemen involved remain unpunished.
Article-22 of the Constitution states that (with some exceptions) person detained in custody shall be informed of the grounds of the arrest and the right to have a lawyer cannot be denied. Also, person arrested and detained in custody shall be produced before the nearest magistrate within 24 hours (excluding journey time).
The Supreme Court in various judgments acted as a protector of Human Rights and has laid down various norms that need to be followed:-
D K Basu guidelines (1996)-
1) policeman arresting the person should have clear and visible ID with name tags.
2) police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest, and such a memo shall be attested by atleast one witness.
3) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
4) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
5) The arrestee should be subjected to medical examination by trained doctors every 48 hours during his detention in custody by a panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. This is to ensure that no torture takes place in the custody.
The Supreme Court in Selvi vs state of Karnataka Case 2010 said that narco-analysis, the lie-detector test, and brain-mapping cannot be done without the prior permission of the person.
The Supreme Court in Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar 1979 said that state is mandated to provide a person with a lawyer if the person cannot afford the same.
Section-46(4) of Criminal Procedure Code says that no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
The Law Commission of India had recommended to insert Section-114B in Indian Evidence Act. In this regard THE INDIAN EVIDENCE (AMENDMENT) BILL, 2016 was introduced in Parliament which has not been passed. The clause that was supposed to be included was:-
Section-114B. (1) In a prosecution of a police officer for an offence constituted by an act alleged to have caused death or bodily injury to a person, if there is evidence that the death or injury was caused during a period when that person was in the custody of the Police, the court may presume that the death or injury was caused by the Police Officer having custody of that person during that period.
India should ratify (although it have signed) the UN Convention against Torture (UNCAT) at the earliest and should come up with strong anti-torture law. Moreover, the above mentioned amendment to Indian Evidence Act needs to be passed.
