WHY?

What is custodial violence? This term has not been defined under law, it however can be derived if the words are read and understood individually and later as a combined aspect. Custody generally means and implies protective care and guardianship. If the word is read as per the Chambers Dictionary, it means imprisonment or arrest or the condition of being held by the police. As per the Legal Glossary Dictionary, it is the detaining of a person by virtue of lawful authority or power. Violence is the quality of being violent and includes any excessive unjustified force. In other words, it is the use of force of one person on another to cause injury. The injury caused can be mental, physical or otherwise. Custodial Violence is hence any violence in police or judicial custody.

Such type of violence can take various forms, some of which are torture, rape, and death. There are various provisions which have been enacted to curb such violence; some of which include Section 330, 331 and 348 of IPC; Section 25 and 26 of the Indian Evidence Act; Section 29 of the Police Act, 1861 and Section 76 of CrPC.

Section 167 of the Code of Criminal Procedure provides for two types of custody namely, police and judicial custody. Today, we will be restricting our approach to police custody. It is basically police remand with the purpose of interrogation. Section 167 (1) of CrPC mentions that police custody can be granted for a maximum period of 15 days only. As per law, there are only 2 instances as per which a person can be kept in custody. The first is the time period from the arrest of the accused till the time the person is produced in court, i.e. the first 24-hour time period from the time of the arrest. Second is when the police get remand from the court after the accused is produced in court and this can be extended up to a maximum time period of fifteen days after which the accused has to be sent in judicial custody.

Article 21 of the Indian Constitution states that “no person shall be deprived of his right to life or personal liberty except according to the procedure established by law.” Right to life over here doesn’t just mean the bare existence of a person but living life with dignity that is necessary for his/ her existence in a society. Article 22 discusses personal liberty by providing that the person arrested has the right to be informed about the grounds of his/ her arrest and shall be produced before the magistrate within 24 hours of the arrest.

Despite the existence of these Statutory and Constitutional provisions which are aimed at safeguarding the life and personal liberty of a citizen, there is an increase in deaths and torture in police custody. It has been observed that such violations against human rights takes place most while securing confessions or evidences, and in that process resort to third- degree methods.

The DK Basu judgements were expected to inspire hope that the judiciary would present before us; a solution to prevent illegal and arbitrary acts of police brutality on individuals who are in custody. This judgement has been known for a set of 11 guidelines that have been laid down with an aim to hold custodial police officers accountable for their actions and to ensure that the aggrieved parties have appropriate remedies in the event of custodial violence or death. The fundamental idea was to prohibit abuse of power by the police personnel, however there is very little evidence to suggest that it has the effect it had imagined. Until efforts are made to de- normalize such violence or brutality and hold the authority accountable, with the latest incident that has come to light in Tamil Nadu, India is doomed to repeating this cycle.

This incident took place on the 19th of July, 2020 when P Jayaraj, a 59- year old and his son, Bennicks, 31-year old kept their cellphone shop open over business hours by violating the lockdown guidelines. For this violation, they were picked up by the Sathankulam police in the district of Thoothukoodi. They then died on June 23rd, 2020 in a hospital in Kovilpatti. The relatives alleged that the accused were thrashed brutally by the police personnel after which the social media platforms blew up with a nation- wide furore. This put a spotlight on such violence and deaths. After looking into the judicial magistrate’s report and by citing bodily injuries, the Madras high court allowed investigation.

Another instance of such an act was one in September 2019, when a pregnant woman Minuwara Begum, aged 28 was picked up by the police in a kidnapping case and was kicked in the belly after which she lost her child (miscarriage) as a consequence of the ignorant and ruthless treatment by the police.

Custodial violence and death however is not a recent phenomenon. It has been prevalent in our society since ages and despite the various initiatives that have been taken over the past years, the use of torture and other such third- degree methods is in existence throughout India. It continues to deny the basic right to life and liberty of a person. These crimes and violence has become so common that not only the bureaucracy and the police but the people also take it for granted as a part of the police interrogation routine. What does happen is that such outrageous acts cause nothing but a momentary shock to people of the society. There is a public uproar, there is a media presence and then it dies down with time or by constituting an enquiring committee. However, all this response comes for that specific incident and not for the root cause of the incident.

As per the data of National Crime Records Bureau (NCRB), from 2001 to 2018, of 1727 deaths of custodial violence that were reported, only 26 policemen were convicted. In 2019, 1731 people died in custody of which 125 died in police custody and these reports highlight the usage of some horrifying torture methods. This depicts the gruesome practice that is in existence across the nation. All of these deaths are conveniently misreported as deaths due to natural causes or illness, or suicides. These deaths at the end of the day just add up to some statistics and the justice is denied forever in the shadow of power politics.

Now, why is it that we shall wait for some public uproar for justice to be served? Why is it that we shall wait for the public to recognize the root cause when it is the duty of the police personnel to protect the society? Why is it that we shall wait for an investigation when there shouldn’t have been any cause for allowing it? Why is it that we shall wait for a solution when there shouldn’t have been any issue in the first place? WHY?

-Madhavaram Sreshta Rao,

Symbiosis Law School, Hyderabad