Putting the Screws on the Vulnerable – Relooking at the Vulnerable Suspect in Custody
August 25, 2021
While the Constitution of India guarantees numerous rights to the people, the ground reality and application of these rights is lacking. This statement is the most salient in the context of detention and the powers of the police. The suspect has several rights and protections while in custody, but in reality, these protections hardly ever matter, and the suspect has to live in harrowing conditions. This article will outline some of the protections accorded to suspects, and then examine how these are applied in practice, and end with recommendations.
Protecting the Suspect
Whenever someone is arrested by the police and kept within police custody, they are at the mercy of the police and in a very vulnerable position. This power asymmetry between the police and the individual held in custody has been recognized by the Constitution framers and the judiciary, and this has resulted in the formation of an extensive body of protections to these people, at least in theory.
The Constitution contains many such protections. For example, Article 20 confers several rights to the accused. The post-ex-facto or retrospective application of the law, double jeopardy, and self-incriminating actions are all prohibited by Article 20 of the Constitution. Article 21 states that the treatment of people in custody must be humane, and laws governing them must be just, fair, and reasonable. The protections of Article 21 also apply to those within custody. Article 22 provides a catena of rights. Everyone arrested has a right to legal counsel and to be produced by a magistrate within 24 hours of the arrest.
The arrested individual has the right to know the grounds of their arrest, both under Article 22 of the Constitution and Section 50(1) of the Criminal Procedure Code, 1973. Thus, the accused has to be expeditiously informed of why they have been arrested. Further, in Joginder Kumar vs. State of Uttar Pradeshand D.K. Basu vs. State of West Bengal, the Supreme Court has stated that the accused has to also be informed of their rights, the police have to make an entry into their register, and a relative of the accused has to be informed of their arrest.
They also have a right to bail. Under Section 50(2) of the CrPC, if the offense is bailable, then the police have an obligation to inform the accused of the same.
Finally, several judgments have also illuminated the scope of these rights. One of the most important cases is Hussainara Khatoon, which was a case regarding the rights of undertrials in Bihar. Under trials spent massive amounts of time in detention, and often the time spent in detention exceeded the maximum punishment for the crime they were charged for. The Court held that this was an unjust violation of the right to personal liberty and a grave infraction of Article 21 of the Constitution, which applies to all people. It also stated that the right to free legal aid is covered by Article 21.
DK Basu is another landmark case. The case was primarily concerned with custodial violence and police abuse while in police custody. In this case, the petitioner had sent a letter to the Supreme Court highlighting the grave problem of custodial violence, where police commit undue violence in violation of rights, and the administration glosses over them. The Court agreed to treat the letter as a writ petition to settle the law regarding custodial violence.
The Court came down heavily on custodial violence. Stating that it “strikes a blow at the Rule of Law”, the Court held that custodial violence is an affront to human dignity and destruction of an individual’s life, both with physical and mental pain. It ruled that Article 21 covered custodial violence and that custodial violence was blatantly illegal, and laid down 11 guidelines that have to be followed in all cases of arrest in order to curb custodial violence. The Court has come down heavily on deaths in custody. In theState of Andhra Pradesh vs N. Venugopal and Ors.the Court held that custodial torture was a serious crime and imprisoned the perpetrators. A similar outcome was seen in theState of Uttar Pradesh vs Ram Sagar Yadav and Ors.
Protections in Practice for the Suspect
While an elaborate set of rules exist to protect a suspect in police custody, they are rarely applied. The death of Jayraj and Bennix is a somber reminder of this reality. This father-son duo was picked up by the police and was tortured at the police station for over seven hours. Afterward, they had to be taken to the hospital because of severe bleeding, and their clothes were completely soaked in blood. Afterward, they were “produced” to a magistrate, who did not examine the victims but waved at them from the first floor of a building. They were remanded to jail and later died of severe injuries in a government hospital. The CBI noted brutal torture was carried out by the police, where the suspect had to clean up their own blood from the walls, and opined that this was murder.
What happened in the immediate aftermath of the event is also emblematic of what happens in such cases. The responsible policemen were not charged or even suspended for days. The Tamil Nadu Government also initially claimed that the deaths had occurred due to natural causes. It was only after public pressure began to mount was a CBI investigation ordered and officers suspended. Currently, the officers have been charged and are under investigation, but this is the exception rather than the norm.
Custodial torture has been a serious issue from even before Independence, and it seems to be a colonial legacy that has been carried forward. The brutal crackdown on dissent has been linked to custodial torture for decades. Not only the police, but the lower judiciary is also to blame in such cases, as they allow the police to carry out such horrific crimes and do not play the role of check and safeguard, they are meant to. Police often mask custodial deaths as suicides or hospital deaths by getting the victim admitted and then forcing the doctor to change the cause of death.
Despite the outrage over the deaths, change seems very unlikely. Various judgments have made recommendations that have not been accepted to date, and the core reasons that custodial violence occurs still exist.
Recommendations and Conclusion
While the legal structure is largely developed and complete, the issue is that there is hardly any will to apply them. If these are applied, then the issue of custodial violence will reduce significantly.
Various Law Commission Reports have made recommendations, but none of these have been adopted. Their immediate adoption will alleviate the situation. For example, the 113th Report of the Law Commission of India recommended that Section 114B should be inserted into the Evidence Act in order to presume guilt in such cases. While this can make change easier, and was also endorsed by the Supreme Court in D.K. Basu, there is not enough political will to adopt the same. The Indian Evidence (Amendment) Bill has not yet been passed.
Custodial violence is one of the most horrific sets of brutalities that can be committed by the police, who are in a position of authority within society and especially with respect to vulnerable suspect in their custody. Unfortunately, insufficient checks and balances exist, leading to thousands of deaths every year that harm the most vulnerable people. However, it seems that long-held over changes can finally occur, considering the elevated amount of public attention the issue has been getting. As a society premised on the rule of law and the respect of rights, tolerance is currently shown for custodial violence and police violence is unacceptable and must be expeditiously changed.