CONTENTS

1 CHAPTER 1: INTRODUCTION
1.1 OVERVIEW
1.2 FACTS AND FIGURES
1.3 CHAPTERS OVERVIEW

2 CHAPTER 2: CUSTODIAL DEATH: VIOLATION OF HUMAN RIGHTS

2.1 CUSTODIAL DEATH: A PREVIEW
2.2 PREVIEW OF THE RIGHTS OF THE PRISONER’S
2.3 CUSTODIAL DEATH AND ENCOUNTER
2.4 RATIONALE BEHIND POLCE ABUSE
2.5 LIABILITY OF THE STATE

3 CHAPTER 3: RULE OF LAW AND CUSTODIAL DEATH

3.1 CONCEPT OF RULE OF LAW
3.2 EXCEPTION TO THE RULE OF LAW
3.3 RULE OF LAW AND CUSTODIAL DEATH

4 CHAPTER 4: CONSTITUTIONAL AND OTHER SAFEGUARDS

4.1 CONSTITUTIONAL SAFEGUARDS
4.1.1 ARTICLE 20: RIGHT AGAINST CONVICTION
4.1.2 ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY
4.1.3 ARTICLE 22: SAFEGUARDS AGAINST ARBITRARY ARREST AND
DETENTION
4.2 OTHER SAFEGUARDS
4.2.1 INDIA EVDENCE ACT, 1872
4.2.2 CODE OF CRIMINAL PROCEDURE, 1973
4.2.3 INDIAN POLICE ACT
4.2.4 INDIAN PENAL CODE (IPC), 1860
4.2.5 OTHER AUTHORITIES

5 CHAPTER 5: JUDICIAL CONCERNS

5.1 JUDICIAL CONCERNS
5.2 CASE LAWS
6 CHAPTER 6: CONCLUSION AND SUGGESTIONS
 1

INTRODUCTION

“If you once forfeit the confidence of our fellow citizens you can never regain their respect and
esteem. It is true that you can fool all the people some of the time, and some of the people all the
time, but you cannot fool all the people all the time."
- Abraham Lincoln
1.1 OVERVIEW

‘Innocent until proven guilty’, that’s the notion that everyone is supposed to follow in the case
of criminal law and other laws as well. That is from the Judges to Police to general public and
the family of the Defendant and the Accused. However, this word is supposedly a big assumption
for all four of them, especially the Police. But what happens when the accused is not given the
fair chance to prove his innocence or when the suspect is not even allowed to be presented before
a Magistrate? That is the general idea when a complaint is filed that they are supposed to be
brought in front of the Magistrate. But in maximum cases they are not. They are beaten, they are
starved, they are tortured in the worst scenario possible and if they are lucky enough they are
shot down. That is what Custodial Death is. They are brought to the police station, put behind
bars and then they are killed.

A death in custody is a death of a person in the custody of the police, prison service or
other authorities. Death in custody remains a controversial subject, with the authorities often
being accused of abuse, neglect, racism and cover-ups of the causes of these deaths. Instances
have come to the notice where the Police has arrested a person without warrant in connection
with the investigation offense without recording the arrest, and arrested person has been
subjected to torture to extract information for the purpose of investigation, under such
circumstances injury caused on the body of the arrestee has sometimes resulted to his death, - a
custodial death. In simple words the death of a person in custody whether Police or Judicial will
amount to Custodial Death, more than it being just about torture by the Police, Custodial Death.

The Constitution safeguards our right to life and privacy and these are infringed when illegal
detention of a person is conducted. Detention does not deprive one of his fundamental rights.
They don’t flee the persons as he enters the prison although they may suffer shrinkage
necessitated by incarceration. However, the extent of shrinkage can and should never reach the
stage of torture in custody of such a nature that the persons are reduced to a mere animal
existence or death.

But custodial deaths are still a part of the speedy justice of the police system. The Officers in
their defense say that this amount to speedy trials or that it saves the time for judicial process. A
fair view of the victims (i.e. the suspect in this case) innocence is lost. The Judiciary that
frequently relies on the concept of a saving a life than putting them up for hanging loses its
significance here completely, where custodial death is on its toll.\

The present dissertation is an attempt to highlight the increase in the custodial death. Also how
the authorities neglect such deaths in lock ups and in the name of awarding compensation to the
family of the victim they insult his very soul. The amount of torture and violence the victim
suffers has also been touched upon. The main victim being the poor class who are uneducated are
not aware of the safeguards that are provided to them by the constitution as well as other rights
that other enactment provides for.

It is a matter of concern for the society where there is abuse of power by the hands that are
responsible for our very protection against wrong. It is because of the failure of the legislature,
executive and the judiciary together that curtails such instances.

This dissertation also outlines few cases that are popular and which were important in context to
the custodial deaths, and also provides for the safeguards against the same. It also tries to give
the atrocities of the police officers who violate the rights of the prisoners in their custody. The
concerns of the judiciary regarding their rights have made them give landmark judgments
providing for the guidelines when an arrest is suppose to be made.

1.2 FACTS AND FIGURES

Table 1.1 shows the statistics relating to the States which have the highest number of
judicialcustodial deaths for the year of 2005-06 to 2009-2010. It can be seen that there is no
decrease in the deaths but a substantive amount of increase.

Table 1.1 1

1
Uttar Pradesh Sorry records for custodial deaths, http://www.indiaspend.com/investigations/uttar-pradeshs-sorry-
record-of-custodial-deaths-16389
The report is by the National Human rights Commission, which is a body incorporated by the
government of India to deal with such matters. This institution has made it mandatory for the
police to report the deaths that happens in their custody, within the period of 24 hours. One when
compares this figures with the Union home Ministry list can see a contrast between the actual
and fictional figure.

The Table 1.2 on the next page shows the alarming figures of deaths in the custody of the police
for the year 2007-08 to 2010-11. Maharashtra tops the chart with 119, and uttar Pradesh also
follows suit with 103. This reflects the casual, candid behaviour of the police officers who
engage in such barbaric act and the reluctance of the state to accept it easily that are suppressed
by them.

Table 1.3 gives the number of deaths that took place within the Indian prisons for the year 2009-
2011. Both Unnatural and natural deaths have been provided but it is difficult to believe that the
natural deaths are more than the unnatural deaths. Lack of sanitation, health problems, no proper
medical facilities available at the prisons, being subjected to the cruelty, third degree and torture
sometimes all three together, ultimately leads to the death of the person. The police officers are
the most skilled in the art of deception and fabrication of data and find gaps and excuses for the
corruption of their powers.

Table 1.2

1.3 CHAPTERS OVERVIEW

This particular chapter gives a view about the extent of the problems and rise in the Custodial
deaths. It also provides for content of the other chapter in the dissertation.

Chapter 2 briefly gives the preview of what custodial death is and also gives certain figures of
custodial deaths in the country. The sub topics explains the rights of the prisoners both from the
Indian and International context. The difference between custodial deaths and encounter has also
been explained. The Liability of the state is also provided and the NHRC guideline for torture.
The rationale behind the abuse of power by the police officers has also been dictated.

Chapter 3 talks about the rule of law and its concept within the territory of India. The exceptions
have also been marginalized. There is also an effort within the dissertation to understand how the
rule of law is misinterpreted and misused by the police officers resulting in custodial deaths.

Chapter 4 talks about the safeguards that are available to the prisoners under the constitution of
India as well as in the other statutes like the Indian evidence act, the Indian Police Act, the Indian
penal code and other authorities that may not be included otherwise in any of the codes and acts
given above. It ends with the note that everyone should be educated about their rights and
safeguards, specially the victims of the lower middle class families, the poor people who are the
major victims. Such initiative should be taken by the State as well as the Centre.

Chapter 5 is concerned with the problems that the judiciary has to face, such as no separate laws
for dealing with torture and deaths in the custody to police fabrications. It also ponders on the
fact that India has not yet ratified any conventions of the United Nations dealing with Torture on
prisons. There are case laws also in the chapter, which have brought effective change to the
concept and dealing off custodial deaths.

The final chapter 6 concludes bygiving suggestions of what could be essential to tackle the
problems of the increasing events of custodial deaths and violence by the Police. It tries to draw
a picture where a strong bill for prevention against torture can be introduced and brought into
effect as a start of a new era which may in the recent times put an end to the Custodial deaths.