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CUSTODIAL DEATH: A VIOLATION TO HUMAN RIGHTS- BY A.SHARREN

INTRODUCTION 
“If the criminal law as a whole is the Cinderella of Jurisprudence, then the law of sentencing is Cinderella’s illegitimate baby.”
The occurrence of Custodial deaths in the world’s greatest democracy has raised eyebrows of every citizen and shaken the very faith in democracy. Our constitution has enshrined fundamental rights to guarantee certain basic rights and liberties to our citizens and several institutes are making a praiseworthy effort to assure the reach and exercise of such rights by the common man. It has been observed that in the past decade the toll of deaths in police lock-ups is on the rise. Many deaths have occurred while in detention but so far no attention has been paid. In India police lock-ups are solely managed by the police personnel and such incidents are only possible by their actions. Recently, there was a public uproar in Tamil Nadu against the monstrous acts of the police. Taking into account the intensity of the present problem National Human Right Commission has proposed that in cases of custodial deaths the police officer in-charge must be held responsible and not the state. The UN Convention against torture and Other Cruel, Inhuman and Degrading Treatment provides that the human dignity of the arrestees must be maintained. Although our domestic law in this regard is not so effective, we need to mould the domestic law on the guidelines of international treaties and conventions and together with the necessary institutional implementation custodial deaths shall diminish.
CUSTODIAL DEATH
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 can be because of:Negligence by the concerned authorities. This includes safety provided to the arrestee, medical aid to be provided to the detainees,Torture and misconduct on behalf of the authorities,Unlawful detention of a person more than the stipulated time,Duress resulting to the person taking his own life to avoid the authorities or punishment (Abetment to Suicide).
CUSTODIAL DEATH VS. FUNDAMENTAL RIGHTS 
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. From judicial perspective ‘the right to life and personal liberty’ contained in Article 21 of Indian Constitution encompasses all basic conditions for a life with dignity and liberty. Such an approach allows it to come down heavily on the system of administration of criminal justice; custodial justice in particular, and law enforcement. The right to life guaranteed by Article 21 of the Constitution of India is not merely a fundamental right but is the basic human right from which all other human rights stem. In the case of Sunil Batra II (AIR 1980 SC 1579), the Supreme Court held that: “The Prison administration will be liable in a case where the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment”. Thus, the said case gave the opportunity for the court to condemn torture. In case of Khatri vs. State of Bihar (AIR 1981 SC928) the Supreme Court in a public Interest litigation case ordered to investigate and punish the guilty Police officers who barbarically blinded about 30 prisoners by piercing their eyes with needles and pouring acid into their eyes. Further, Supreme Court condemned this barbaric torture as violative of Art. 21 and awarded compensation to the victims. A telegram sent by a under trail prisoner was treated as writ petition in Prem Shankar Shukla VS. Delhi Administration (AIR 1980 SC 1535), when an under trial prisoner was handcuffed and chained, he sent a telegram to the court which was treated as writ petition, The Supreme Court specifically referred Art.5 of Universal Declaration of Human Rights and Article 10 of the Covenant on civil and Political Rights and held that handcuffing as under Trail is impermissible torture and in violative of Article 21. 
JUDICIAL RESPONSE 
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 behaviour of authorities or may be due to physical abuse and torture. In the case of judicial custody the accused is sent to jail (prison) where for the purpose of investigation the police requires the permission of jail authority. So the deaths that occur in jail while in Judicial Custody are called as judicial custody death. Judicial custody deaths are basically classified into two parts that are Natural death and Unnatural death. In the case of Natural death the SDM has the right to conduct magisterial enquiry under 176 CrPc and in such case no compensation is provided by state. But the exception is Tamil Nadu and Andhra Pradesh as they provide a compensation of Rs. 20,000 in the case of Natural death also. The Unnatural deaths are consider under four sub points that are Suicide (309 IPC), Accidental death (304A IPC), Murder (302 IPC), Medical Negligence (304 IPC). In such cases the Judicial Magistrate under 176 Crpc conduct magisterial enquiry and in all such cases compensation are provided to the victims. To ensure justice to the oppressed, the High Court in the case of Mariayappan v State of Tamil Nadu (2000 Cri Lj 4459), directed to initiate criminal proceeding against the police officials and ordered State to pay a compensation of 2 lakhs to the family. Custodial deaths invoke the criminal liability of the officer-in-charge, additionally the tortuous liability of the State helps to render adequate justice in such cases. In Moheela Moran v. State of Assam (2000) 2 Gau LT 504), Phoolwati v. NCT of Delhi (2000 Cr Lj 1613), and in other cases of custodial deaths, the court gave the verdict upholding the applicability of the doctrine of vicarious liability.
LAST BREATH IN CUSTODY
According to the report published by the National Campaign Against Torture (NCAT), 1606 of the deaths happened in judicial custody and 125 in police custody. Out of the 125 deaths in police custody, Uttar Pradesh topped with 14 deaths, followed by Tamil Nadu and Punjab with 11 deaths each and Bihar with 10 deaths. Of the 125 cases in police custody, 93 persons (74.4%) died due to alleged torture or foul play, while 24 (19.2%) died under suspicious circumstances in which the police cited suicide (16), illness (seven) and injuries (one). The reasons for the custodial death of five others (4%) were unknown, the report said. Torture methods included hammering iron nails in the body (Gufran Alam and Taslim Ansari of Bihar), applying roller on legs and burning (Rizwan Asad Pandit of Jammu and Kashmir), ‘falanga’ wherein the soles of the feet are beaten (Rajkumar of Kerala), stretching legs apart in opposite side (Rajkumar of Kerala), and hitting in private parts (Brijpal Maurya and Lina Narjinari of Haryana). The other methods of torture included electric shock, pouring petrol or applying chilli powder on private parts, beating while handcuffed, pricking body with needles, branding with a hot iron rod, beating after stripping, urinating in mouth, inserting a hard blunt object into anus, beating after hanging upside down with hands and legs tied, forcing to perform oral sex, pressing finger nails with pliers, beating with iron rods after victim is suspended between two tables with hands and legs tied, and kicking the abdomen of a pregnant woman. The NCAT’s analysis also revealed 75 (60%) of these 125 belonged to the poor and marginalised communities. 
CONCLUSION 
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.





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