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TORTS RESEARCH PAPER
CUSTODIAL DEATHS
Aviral Sahai
Section A
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Custodial Deaths in India
Aviral Sahai*
Abstract
This paper mainly reflects on how custodial deaths/death in
custody in India has risen in the past decade to reflect upon the
state of the police structure in our nation. The paper refers to a few
cases and the reasons behind such activities and also attempts to
draw a pattern between the occurrence of such acts and the
response of the government.
Introduction
“Custodial death is perhaps one of the worst crimes in a civilised society governed by
the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be
jealously and scrupulously protected. We cannot wish away the problem. Any form of torture
of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation, interrogation or otherwise. If the
functionaries of the Government become law-breakers, it is bound to breed contempt for law
and would encourage lawlessness and every man would have the tendency to become law
unto him thereby leading to anarchism.”1
1*Aviral Sahai is a first year student of law at Jindal Global Law School, Sonipat, Haryana.(e-mail - [email protected]) Anand, J. Shri D.K. Basu, Ashok K. Johri v. State of West Bengal, State of Uttar Pradesh, 1997 AIR(SC) 610
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1184 Indian citizens, in the last eight years (from 1 April 2001 to 31 March 2009),
were killed while in police custody, most of them due to extensive mental and physical
torture within the first 48 hours of detention.2
The highest number of custodial deaths was reported in Maharashtra (192 cases)
followed by Uttar Pradesh (128), Gujarat (113), Andhra Pradesh (85), West Bengal (83),
Tamil Nadu (76), Assam (74), Karnataka (55), Punjab (41), Madhya Pradesh (38), Bihar and
Rajasthan (32 each), Haryana (31), Kerala (30), Jharkhand (29), Delhi (25), Orissa (24),
Chhattisgarh (23), Uttarakhand and Meghalaya (16 each), Arunachal Pradesh (11), Jammu
and Kashmir and Tripura (9 each), Puducherry and Chandigarh (3 each), Himachal Pradesh
(2) while Manipur, Goa, Sikkim, and Dadra & Nagar Haveli recorded one case each.3
‘Lilabati Chowdhury, seven months pregnant and a mother of two, was
brutally beaten by a police patrol party, who were looking for her husband,
from Beharampore police station, West Bengal, India at midnight on 7 August,
2004. She was taken to a hospital close by and was declared dead the next
morning.’
These are numbers, however, just of those cases which have been officially reported
by the government itself. In its report: Torture in India 2008: A State of Denial - the first ever
nationwide assessment on the use of torture in India - released on June 25, Asian Centre for
Human Rights stated that 7,468 persons, at an average of 1,494 persons per year or about four
2 ACHR PRESS RELEASE. “Police torture kills 1,184 persons in custody in India in the last eight years”. ACHR INDEX: PR/IND/02/09. 25 June, 2009. <http://www.achrweb.org/press/2009/IND0209.html>
3 ACHR PRESS RELEASE. “Police torture kills 1,184 persons in custody in India in the last eight years”. ACHR INDEX: PR/IND/02/09. 25 June, 2009. <http://www.achrweb.org/press/2009/IND0209.html>
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persons per day, have died and/or been killed in prison and police custody during 2002 to
2007.4
The statistics present are overwhelming and practically shameful when one considers
the nation to be a developing one, with aims of being a global superpower one day. Custodial
Violence means torture in police custody. Torture is no doubt an international phenomenon
but the incidents are much more in developing countries and the overall situation in India is
far from being satisfactory.5 The deaths resulting from the injuries or harm inspired by this
Custodial violence is categorised as Custodial Death/Death in Custody (Custodial Violence
may, at times be used in place of Custodial Deaths, as it is the direct cause leading to
Custodial Deaths). Custodial death in India is defined as is the one occurring during the
period the person is in the custody of police, prison or any other institutions set up by the
State for detention, as mentioned in the Entry-4, State List (List II).6
‘Suman Behera, a 22 year old boy, was taken away by the police authorities,
on 1 December, 1987, at Bisra police station, District Sundergarh, Orrisa, in
connection with an offence of theft. He was detained at a police outpost. The
next day his dead body was found on the railway track near a bridge, some
distance away from Jeraikela railway station.’
The founders of our constitution gave widespread fame to the Indian Constitution by
virtue of their ingenious ideas implemented in formulating, what came to be, the world’s
largest constitution. It was flexible as well as rigid, strict while mentioning Directive
Principles and handing over power to the people with Fundamental Rights. Fundamental
4 Asian Centre for Human Rights. “Torture in India 2008: A State of Denial” First published June 2008.< http://www.achrweb.org/reports/india/torture2008.pdf>
5 Bhatt, Nadeem. “Custodial Deaths in India”. Newstrack India. 31 May, 2009.< http://www.newstrackindia.com/newsdetails/235>
6 CNN-IBN Forum for Students. “Custodial Violence – The Worst Crime in a Civilised Society” 18 August, 2009.< http://ibnlive.in.com/cfs/blog/53758/1541>
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Rights, contained in Chapter II, are an elite feature of our constitution, containing rights such
as; right to equality, right to education right to life, freedom of speech, right to religion, etc.
Legally speaking, Custodial Deaths come under the ambit of constitutional torts. They
can be categorised so on the basis that this offence is in direct conflict with an individual’s
Fundamental Rights as mentioned in the Indian Constitution. A tort is, as very aptly put by
Sir Frederick Pollock, an act which causes harm to a determinate person, whether
intentionally or not, not being the breach of a duty arising out of a personal relationship or a
contract, and which is either contrary to law, or an omission of a specific legal duty, or a
violation of an absolute right.7
‘Mahinder Kumar, on August 16, 1987, got into a scuffle with a constable of
the Vivek Vihar police station in east Delhi. He surrendered a week later and
was brutally beaten up while in custody. The next day on August 25, Kumar
was rushed to a hospital where he was declared dead on account of his bodily
injuries.’
The tortuous offences come within the scope of Articles 19, 21 and often under
Article 22 as well. Art 19 of the Indian Constitution provides for, amongst other things, the
freedom to move about the territory of India. Art 21, which is the main fundamental right
violated, deals with the Protection of Life and Personal Liberty, stating that, ‘No person shall
be deprived of his life or personal liberty except according to procedure established by law.’
Lastly, as prior mentioned, in many cases even Art 22 - Protection against arrest and
detention - of the constitution is violated.
7 Pollock, Sir Frederick. “The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law”. Fourth Edition. Ch 1 The Nature of Tort in General. Ed. Stevens and Sons, 1895. As mentioned at, The Online Library of Liberty, available at, <http://oll.libertyfund.org/index.php?option=com_content&task=view&id=1223&Itemid=284>
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These three fundamental rights when taken together form the basis of serious
offences when violated. The fact that these acts are committed by institutions assigned to be
the protectors of the citizens, aggravates the dilemma further. It is committed under the cover
of a uniform and within the confines of a police station, the sufferer being left totally
helpless.
As and when the dignity of humankind is injured, civilization takes a step backward.
It is a calculated assault on human dignity. Custodial Violence is something so shockingly
prevalent in our country that the Government perhaps has taken it to be a parallel nature to its
systems. The issue, however, of Custodial Deaths is not merely confined to the limitations of
India, it is a global phenomenon affecting almost every country, but the degree of such
violence in India can be said to be much more in comparison to other nations of the world.
‘Abhijnan Basu, was serving his prison sentence at the Presidency Jail, West
Bengal. Officers at the prison murdered him because he dared to complain
about the inhuman conditions and the poor quality of food. Three prison
wardens set him ablaze on 12 November, 2004. The Jailor, who is duty bound
to protect the prisoners, supervised the entire incident.’
Although it has been a signatory of the Convention Against Torture (and Other Cruel,
Inhuman and Degrading Treatment or Punishment) since October 1997, India till date has not
ratified it. It is not the attitude of any specific government as such, but just the conditioned
attitude of the Indian society. People are more or less unaware, or ignorant of these facts.
When and if a case does crop up, the general trend is to condemn it, rarely a case in the court,
a small ten page article in the newspapers and noting more.
Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes
to the state of anarchy and lawlessness in many parts of the country. Torture is used as a
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cheap and easy method of investigation and also as a tool for oppression. In the hands of the
wealthy and influential, Indian law enforcement agencies have also strengthened links with
criminal elements. Even the judiciary in India cannot sever this nexus, between police and
criminals.8
The legal system in India is not well equipped to tackle a problem such as Custodial
Deaths. The importance, as it is, given by the government is low, above which the priority
given to the few cases is not adequate. The legal expenses in our country are too much for the
lower sections of society to afford.
‘Jabed Ali Mahaldar, a fisherman from West Bengal went about doing his
work on 30 April, 2009. He was apprehended by three BSF officers stationed
at Nimtita Border Outpost (BOP). He was beaten without questioning on the
spot, taken to the camp and beaten for hours again. At the hospital, where he
finally succumbed to his injuries, he was declared to have second degree
injuries on his body and head.’
These few examples, these few names mentioned are just a minor fraction of the
people suffering from this atrocious exercise of governmental institutions. These names are
but memories fading away, some have claimed sanctuary under the law, and some have
succeeded, but the fact still remains, the practice and occurrence of Custodial Deaths is still
rampantly destroying the legal rights of individuals.
Hence, we are faced with a few questions to consider: How does the Indian
government prioritise the issue of Custodial Deaths?
8 Asian Legal Resource Centre. “Written Statements - 61st Session of the CHR – 2005” Section 9 Custodial deaths and torture in India < http://www.alrc.net/doc/mainfile.php/61written/276/>
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And immediately we are met with an answer: The government of India is till date
very callous towards the issue of custodial deaths, and its actions towards the
eradication of this issue, are extremely constrained and restricted.
Custodial Death as a Tort
The easiest method to determine whether a certain offence comes within the purview
of being a tort is to break up that offence between other pre-existing tortuous offences. We
know, some of the generally prevalent tort offences are Assault and Battery, Trespass (to
person or property), Intentional Infliction of Emotional Distress (IIED), Negligence, False
Imprisonment etc. Custodial Violence can thus be segregated as violations under such
aforementioned categories.
We can easily decipher that Assault and Battery are one of the key tort offences
constituting Custodial Deaths. Due to the excessive physical and mental torture inflicted upon
the person, Custodial Violence is an apt illustration of Trespass to Person and IIED. Most of
the cases are also of False imprisonment. Thus, it can be clearly deduced that Custodial
Deaths are a tortuous offence by relating different tort offences to the phenomenon of
Custodial Violence.
Furthermore, as mentioned earlier, the offences committed by the governmental
authorities, are in gross violation of the Indian Constitution, hence, labelling Custodial
Deaths as being constitutional torts.
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When an individual is apprehended, may it be for legitimate or illegitimate reasons, it
is required, by Indian law, for the apprehending authority (Police, Army, Border Security
Force, etc.) to firstly, issue a warrant of arrest, secondly, to inform the person of the grounds
of arrest and thus, to file a charge-sheet with the district magistrate. On the occasion of not
obtaining a warrant, the police officers have to present the offender in front of the magistrate
within a time frame of 24 hours. A very high majority of the cases, exhibit an absence of even
these basic procedures which are supposed to be followed by the governmental authorities.
The Government of India – Situation of Custodial Deaths in India
The Indian government, as a parallel to the Declaration of Human Rights (10
December, 1948), had formed both National and State Human Rights Commissions by the
Protection of Human Rights Act of 1993, to keep a check on the nature of human rights
violations within the country. It is of course understandable that monitoring human rights in
India is an enormously difficult task. India has over a billion people and conflict in many
States. A major issue, however, is the system of information collection and reporting. The
whole structure of institutions such as the NHRC (National Human Rights Commission) and
NCRB (National Crime Records Bureau) are flawed, which end up grossly under-reporting
the extent and volume of human rights violations in the country.
“The figures collected by the NCRB are flawed and outdated. In 2007 the NCRB
reported that 139 people died in police custody. 23 people died during production, process of
the courts and the journey connected with investigation; 38 of them died during their
hospitalization and treatment; 9 died in mob attacks/riots; 2 were killed by other criminals; 31
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committed suicide; 7 escaped and 29 died from illness/natural causes. Effectively this is an
official denial of any death resulting from human rights violations.
If these statistics are used to examine the need for reform then there is clearly no need
for reform. But these statistics sit uneasily with the findings of the Supreme Court of India
that has pointed out that the police ‘more often than not seek to pervert the truth’.”9 The
national and the state human rights commissions have no authority to change this situation of
rampant violations by the Indian police. There is no independent body to inquire into reported
cases of torture. Commission orders are mere recommendations and are often ignored by the
national and state governments. Where torture is state-sponsored, the recommendations rarely
get executed. The Human Rights Act is simply eyewash for the international community;
since it cannot be enforced, it is useless.
India has not ratified CAT on the pretext that existing laws have adequate provisions
to prevent torture, in addition to constitutional safeguards. But the provisions of the Criminal
Procedure Code, Indian Evidence Act and Indian Penal Code are worthless, since there is no
procedure for independent inquiries into torture and compensation for victims. Constitutional
remedies as well are meaningless for most victims. The Constitutional Courts are virtually
inaccessible to ordinary people, and even if a victim is successful in getting a case heard,
these usually experience huge delays. The lack of motivated lawyers and legal assistance, and
a defective prosecution system, worsen this situation.10
As it has been stated in India Human Rights Report 2008, by the ACHR11;
9 Asia Centre for Human Rights. “India Human Rights Report 2008”. <http://www.achrweb.org/reports/india/AR08/preface.html>
10 Asian Legal Resource Centre. “Written Statements - 61st Session of the CHR – 2005” Section 9 Custodial deaths and torture in India. Available at < http://www.alrc.net/doc/mainfile.php/61written/276/>
11 Asian Centre for Human Rights. “ACHR Press release” ACHR INDEX: PR/IND/02/08. Published 25 June, 2008. < http://www.achrweb.org/press/2008/IND0208.html>
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“A pervasive system of impunity is the single most important factor for
institutionalising widespread use of torture even in areas where there are no armed conflicts.
Only four police personnel were convicted in 2004 and three in 2005 for custodial deaths.
“Hundreds are killed, dozens are paid compensation but only three to four persons are
convicted each year. Nothing more can expose the pervasive impunity,” stated Suhas
Chakma, Director of Asian Centre for Human Rights. Judiciary’s role has been laudable but
the Courts are hampered by lack of specific legislation against torture, immunities offered to
the law enforcement personnel under the Criminal Procedure Code and national security
laws, and the more general problem of judicial delay.
India is in a worrying state of denial about torture. Home Minister of India attributed
these 7,468 custodial deaths to "illness/natural death, escaping from custody, suicides, attacks
by other criminals, riots, due to accidents and during treatment or hospitalisation.” However,
the Home Minister failed to clarify as to why so many accused had committed suicide in
police detention.
The ACHR lamented that India refuses to address torture by the law enforcement
personnel. It failed to enact a law to provide compensation for custodial crimes and
implement the recommendations of the Law Commission of India’s 152nd Report on
“Custodial Crimes” to make consequential amendments to Indian Evidence Act, 1872
(insertion of Section 114B) to provide that “in case of custodial death the onus of proving of
innocence may be fixed on the police.”
The majority of the victims of custodial death and violence as observed by the Law
Commission are the poor and weak12. The lower level of society who in almost a majority of
12 A.K.Saxena, P.S.V. Prasad and Sankar Sen, Custodial Deaths in India (A Research Study), 1st Ed., 1994, p.1. As observed in: Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>
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the cases cannot revolt back and do anything about the injustice done to them or one of their
family members. Arun Shourie once observed: “The victims were invariably poor. Several of
them hauled in on no formal charges at all. Even in the case of persons who were arrested, in
an overwhelmingly large number of cases they were all accused of petty offences.”13
As a matter of fact, the victims of custodial violence are people from poor and
backward sections of the society with little political or financial power to back them. Personal
enmity, caste and political considerations and at times pecuniary benefits become important
considerations for custodial deaths rather than investigation of cases.14
The problem however, lies, as pointed out by the report by the AHRC as well, in the
fact that the system and structure in place for the government to utilize is very weak and
greatly flawed. The beaurocracy is compromised from the top to the bottom. For a real issue
to permeate through into the minds of those governing, it takes a lot of time and sacrifice.
The government of India is directly responsible for the heinous manner in which its enforcers
behave. May he be a prisoner; an individual still holds the authority to demand his rights by
virtue of being a human being. It is sorry and despicable state in which the image of India is
left when the details of such happenings are made public.
The difficulty lies with the fact that police authorities are under a high level of
pressure to cope up with the rising levels of crime. In order to subside some of these cases,
they force suspects to plead guilty, using practically all possible forms of torture and third
degree violence. These methods result in coarse violations of individuals’ human rights. Even
the Supreme Court of India is averse to these practices and in the judgement of a case of the
13 Kannabiran, K.G. “Creeping Decay in Institutions and Democracy”. The Economic and Political Weekly, August 1992 As mentioned in: Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. < http://students.indlaw.com/display.aspx?3859>
14 Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>
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custodial death of Abdul Gafar Khan, in a Mumbai police station, it ascribed the cause to the
‘devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the
defenders of democracy and protectors of people’s rights and yet do not hesitate to
condescend behind the screen to let loose their men in uniform to settle personal scores,
feigning ignorance of what happens and pretending to be peace-loving puritans and saviors
of citizens' rights.’15
Being a member of the United Nations and on a plain moral basis, the Indian
government is honour bound to uphold the Declaration of Human Rights, 1948, which
declared in the preamble that recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice
and peace in the world.
Article 1 proclaimed that all human beings are born free and equal, in dignity and
rights.
Article 3 proclaims that everyone has the right to life, liberty and security of person
In Article 5 says that no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
Article 11(a) contains the defense of presumption of innocence of a person charged
with a penal offence until proved guilty. It is meant to insulate him against any high-handed
treatment by the authorities dealing with him in the matter.
Additionally, the Indian government needs to rethink on the reservation mentioned on
Article 9 of ICCPR (International Covenant on Civil and Political Rights) which says the
provisions of the Article shall be applied in accordance with Article 22 clauses (3) to (7) of
15 Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Another, 2003 AIR(SC) 4567
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the Constitution of India. It further states that under the Indian Legal System, there is no
enforceable right to compensate a person who claims to be a victim of unlawful arrest or
detention against the State.16
Thus, in short, the attitude of the Indian Government towards the issue of Custodial
Deaths is not adequate enough to combat this issue. If a case by chance is filed against the
government, a maximum of perhaps Rs. 1 lac is provided as compensation, which is nowhere
in proximity to the loss suffered. The citizens of our nation are suffering at the hands of those
assigned to protect us. There are many cases of custodial deaths which have reached the
highest courts of our nation but still neither a police officer, nor any other individual is
convicted of this heinous crime.
Cases of Custodial Deaths in India
The law has established all persons equal (by Art 14 of the Indian Constitution) as the
Supreme Court once said: The protection of the Article extends to all persons not merely
citizens17 and it should also include even persons under imprisonment18, these principles,
however, are often disregarded by the authorities. It is the duty of the State and its officials to
look after every person by offering immediate medical aid to every patient, regardless of the
question whether he is an innocent or a guilty person19, but these have been greatly ignored
by officials especially the Police in general. Almost all the offenders brought in the custody
of the Police have been denied of their right to get the necessary medical aid that they should
be getting, and that is because of the fact that they are under trials, convicts and prisoners and
16 The United Nations Human Rights Treatises. “Reservations, Declarations, Objections and Derogations - CCPR - India” <http://www.bayefsky.com/html/india_t2_ccpr.php>
17 Anwar v. State of Jammu and Kashmir, (1970) 2 S.C.W.R. 276 (279)
18 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (426)
19 Parmanand v. Union of India, AIR 1989 SC 2039
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are, according to a majority of the society, not deemed fit to be a part of the society as they
generally are looked down by the society.20
While the Supreme Court has clearly held that: Even convicts, prisoners and under
trials have right under Article 21, and only such restrictions can be imposed as permitted by
Law21 While Article 21 says no person is to be deprived of his life or personal liberty, the
exception being except according to the procedure established by Law22 the majority of
people are denied of their rights. The Constitution safeguards the fundamental rights of a
prisoner (convicted and imprisoned under sentence of court), excepting those which cannot
possibly be enjoyed owing to the fact of incarceration23 but in the case where the person has
not even been proven guilty by the correct procedure established by our constitution which is
that they should be tried in a court before being deemed an offender.
The following are a few cases of Custodial Deaths that have reached the Indian courts
and received some attention:
Nilabati Behera Alias Lalita Behera v. State of Orissa and Others, 1993 AIR(SC)
1960
As prior mentioned, this is the case of a 22-year old boy, by the name of Suman
Behera. Suman Behera was taken into custody by the police on grounds of theft,
which were not proven, without an arrest warrant. He was found dead, on railroad
tracks the next day, on account of physical injuries. A letter dated September 14, 1988
sent to this Court by Smt Nilabati Behera alias Lalita Behera, was treated as a writ
20 Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>
21 Nilabati v. State of Orissa, AIR 1993 SC 1960
22 Sunil v. Delhi Administration, AIR 1980 SC 1579
23 Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092
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petition under Article 32 of the Constitution for determining the claim of
compensation. The respondents (police) claimed that Suman Behera had escaped from
custody, and was run over by a train. The doctor who was appointed by the court,
however, stated that the injuries to the deceased body could not have been inflicted by
a train but rather from lathi blows. The court concluded in this case that a
compensation of Rs 1,50,000 be awarded to the petitioner. Even though a few officers
of law were mentioned in this case none were prosecuted for their acts.
State (Govt. of Nct of Delhi) v Smt. Iqbal Begum, 2004 (110) CRLJ 3092
The deceased was the husband of Smt. Iqbal Begum, who was summoned to the
Seelampur Police Station, NCT of Delhi (on the basis of F.I.R. No. 475/94) on 27
August, 1994. After about four hours of being in the police station, he was taken to a
hospital, where he was declared dead. The post-mortem revealed that the death was
on account of bodily injuries which aggravated pre-existing inflictions. The court
found the authorities liable and awarded a compensation of Rs. 3,50,000 to the
deceased’s wife.
Swaranjeet Singh v. State of Punjab and Others, C.W.P. No. 16029 of 2008
The petitioner is the unfortunate father of a 25 years old young man who died an
unnatural death inside the Central Jail, Amritsar. The petitioner's son was arrested in
connection with a case under the Punjab Excise Act and was an under-trial prisoner.
According to the petitioner, his son was taken to Guru Teg Bahadur Hospital on 27
November, 2006 at about 5.22 PM where he died within 4-5 hours. No intimation was
sent to the petitioner. It was alleged that the boy died of custodial violence.
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Sunita v. State of National Capital Territory of Delhi and Another, Lpa
No.2552/200524
The deceased was an employee of the Haryana State Electricity Board (HSEB), and
on the morning of 15 August, 1999, was found by the police, carrying Rs. 1,30,000 in
Rs. 500 denominations. He was taken to a nearby police station and was subjected to
third degree torture by the officers present there. The same day he was declared dead
in a hospital, where, yet again, the doctors attributed his demise to physical beatings.
Smt. Sunita was compensated with just Rs. 3 Lacs.
Masooda Parveen v. Union of India and Others, 2007 AIR(SC) 1840
The deceased Ghulam Mohi-ud-din Regoo, was an advocate enrolled and practicing
in the High Court of Jammu and Kashmir before the Srinagar Bench. He got into
some trouble with local merchants with regard to his business, which led these
merchants to approach militant groups for aid. On 1st February, 1998 some
surrendered militants alongwith a unit of the Army (17 Jat) reached Regoo's home in
Chandhara at about 8.30 p.m. and searched his house but found nothing incriminating
therein. He was nevertheless taken to the Lethapora Army Camp, the Head Quarters
of the 17 Jat, and tortured mercilessly leading to his death whereafter explosives were
placed on his dead body and then detonated to camouflage the murder. It is further the
petitioners' case that the morning after the incident, his body was handed over to the
police and was thereafter subjected to a very casual and cursory post mortem
examination. The court in this case however, found that the army being the guilty
party, could not do anything, and thus dismissed the petition believing the story
24 <www.indlaw.com> 2008 INDLAW DEL 882
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concocted by the defendants that Regoo was actually a Pakistani Trained Militant
(PTM).
These few cases are but a menial proportion of the actual happenings that occur in our
country. We have not even made a dent in the vastness of the matter. As we clearly see from
these few cases the compensation provided by the authorities is not in proportion with the
losses that the families of the deceased suffer. To really understand the emotions that run
through the minds, we have to feel the pain that the families go through, but at the same time
hope that we never face the atrocities that these people are faced with.
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Analysis
Having gone through the extensive research conducted and reports produced, we can
clearly decipher that custodial death as an issue in India is not given its due importance. Over
the extensive reports provided to us by various institutions like the ACHR, ACLR or even the
NHRC, a pattern is discernable which depicts nothing but a grossly high level of human
atrocities committed by the least likely bodies.
"Torture" has not been defined in the Constitution or in other penal laws. "Torture" of
a human being by another human being is essentially an instrument to impose the will of the
"strong" over the "weak" by suffering. The word torture today has become synonymous with
the darker side of human civilisation. The authorities in place to prevent such happenings are
the main perpetrators of torture. As Adriana P. Bartow once said, "Torture is a wound in the
soul so painful that sometimes you can almost touch it, but it is also so intangible that there is
no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a
stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and
hate. It is a desire to kill and destroy including the self."
The legal axis of these offences in society is one of great importance and should thus
be thoroughly understood to understand the extent of damage Custodial Violence poses to its
victims. As a tort it does not attract a high level of attention from either the society or the
government itself, the blame of which can be attributed to the low level of recognition a ‘tort’
by itself receives, in India. In the scenario that we live today, torts appeal very little to people.
The common tendency of people is to focus towards a criminal procedure rather than a
tortuous claim as the mindset, which has been fashioned for the society, attracts them towards
the alternative. The damages compensated, as we very well know, are much higher in when
filing for a tort than in a criminal case, but yet still people opt for a way other than torts, to
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retaliate and get their dues. The reason for this substitute to torts, is that, in India, torts is not
given due importance. Due to this fact, the education system in place does not have a medium
to propagate learning and awareness of torts. Consequently, when the system itself is weak in
understanding and comprehending a certain area of expertise, the people, by logic shall not
have a tendency to follow that area.
Custodial Deaths are a menace, and a black spot upon the Indian society. On one
hand, when the need to describe ‘India’ arises, people rise with pride and explain its richness
of culture and heritage, but concomitantly on the other hand, ignore social and legal evils like
custodial Deaths and torture by its own arms of protection.
The image of the police, in the eyes of the general public, has become extremely
downgraded but still the public fails to raise this issue with conviction. The offences
committed by governmental authorities are often noticed by the public and the government
itself, but somehow the attitude that is associated with it is always extremely lax and callous.
If a comparison is drawn with the other common law nations of the world, the
importance and stress given to tort law is close to minimum. Nations like Great Britain, the
United States of America, Canada, Australia, etc. attribute a high amount of importance to the
functioning and implementation of tort law, whereas in India, tort law is somewhat an
undiscovered and grossly under-utilised avenue which till date remains unused.
Custodial Deaths, as prior defined, come under the ambit of constitutional torts. The
constitution is a very strong piece of legal document when it comes to defending the rights of
a person. It is the basis of the formation of the nation we so proudly live in, but when it
comes to the matter of Custodial deaths, even the constitution does not live up to its name. It
is not the case that, if a legal case is filed alleging the custodial death of an individual, it is set
aside and not given legal sanctuary. But the main fact still remains, a few cases get filed,
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fewer get remunerated with compensation so highly disproportionate, but the problem of
Custodial Violence and Death still remain as fixated as the constitution itself.
One of the main aims of the field of torts is to deter offenders from committing
offences once again. This is another reality that the judicial system fails to balance out in its
remedies. Whenever compensation is issued, it comes out of the pockets of the government,
which in turn is nothing but tax-payer money. The offenders themselves do not face any form
of persecution as such.
The need of the hour is to instil a mindset, not only in the thinking of the government
enforcers but also in the public’s thought process, against the concept of custodial violence
that ultimately leads to deaths. The enforcing authorities need to be made aware and held
responsible for their actions, and the people need to be made conscious of the means,
methods and avenues available to them in the wake of such happenings. Of course, before
such a stage is reached, the government itself needs to make sure it has an apt system in place
which is capable to cope up with pressures like Custodial Deaths. The names mentioned, are
but names to us, but they meant a whole lot more to others, and it needs to be respected.
The government of India is till date very callous towards the issue of custodial
deaths, and its actions towards the eradication of this issue, are extremely constrained
and restricted, and should hence, make conscious efforts to undo its ways.