Custodial Death and Abuse of Power, A Human Right Violation: Indian And International Perspective

By | October 5, 2020
Custodial Death and Abuse of Power

Custodial Death and Abuse of Power has been synonymous with human rights violations in India, since the British period, when Indian Imperial Police was established in 1905. Whereas Police Force is expected to be the most accessible, interactive and dynamic organisation in the administrative structure of any society. Recent incidents across the globe have revealed a grim reality where abuse of power under the garb of “uniform” and “authority” has become the norm in law enforcement agencies.

Extra-judicial use of force and abuse of power by police officers, including unjustified use of lethal force, extrajudicial encounters, severe beatings, etc even after 73 years of independence seems out of the place in a democratic country like India. The police remain virtually a terror to the people and almost absolutely unaccountable for the violations of human rights of people in their custody.

The author has aimed to analyse this menace from the perspective of human rights violations and her research shall broadly focus on various international declarations, conventions and other instruments of law, in regards to the norms related to protection from police torture and abuse. In addition to this, the author also aims to discuss the judicial position on custodial torture and abuse of power under the Constitution of India under Article 21. Through the curse of this study, the author will try to provide a deeper insight into the legal mechanism envisaged to prevent this problem and will suggest ways how these mechanisms can be better implemented.

Introduction

Article 1 of The Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession“.[1]

Torture is universally condemned, and no country publicly supports torture or opposes its eradication.

The Supreme Court of India in the case of D.K Basu v. State of West Bengal[2] has recognized custodial torture as violating the very fabric of human dignity which is an important component of our Constitution under Article 21. It has laid down a certain set of guidelines to prevent custodial abuse and torture that have since been incorporated in the Code of Criminal Procedure.  Also, in the landmark case of Prakash Singh v. Union of India[3], Apex court delivered an order instructing the central and state governments to comply with a set of certain directives to kick start police reforms.

However, the reality seems far fetched as the problem is still engraved in the Indian society as the recent case of Jayaraj and Benicks grievously highlights the issue. Their death has sparked the debate of police brutality and an extent to which the law enforcement are allowed to inflict atrocities upon the general public.

The duo were inhabitants of Tamil Nadu and was arrested for allegedly keeping their mobile shop open beyond the permitted hours as the state was witnessing lockdown due to COVID -19.[4] Further, they were kept in police custody as criminals overnight and the policemen thrashed the duo the whole night in the police station with batons and a table with bloodstains bears testimony to this leading to their death.[5]

In Nilabati Behera v. State of Orissa[6], the Court held that there is a great responsibility on the police authority to ensure that the citizen in its custody is not deprived of his right to life”. However, it seems that custodian of law has become the law-breakers. Such deaths definitely lead to custodial violence which is a punishable offence with imprisonment under section 29 of the 1861 Police Act[7].

The recent Hathras gangrape incident also underlines that the powerful policemen have justified its excesses in the name of maintaining law and order by violating the sanctity of a 19-year-old girl’s last rites.[8] They cremated the victim without allowing a last glimpse to the grieving parents. It must be taken into consideration that even they are also beneath the law, not above it and can be held liable for the violation of human right.

Custodial Torture Across The Globe

Custodial deaths and abuse of police powers is not only peculiar to this country but is widespread and has been the concern of the international community as well. The latest killing of George Floyd, an African American man has emphasized on the issue of black empowerment after Derek Chauvin, a white police officer, knelt on Floyd’s neck for almost eight minutes while he was begging for his life and repeatedly saying “I can’t breathe”[9]. But the brutal killing is certainly not the first selective prejudice against such sections.

A similar incident took place on July 2014, when Eric Garner, an African-American man was killed by Daniel Pantaleo, New York City police department officer by having him in a chokehold while arresting him despite chokehold being banned in New York city since 1993.[10] Similarly, in August 2014, Michael Brown Jr., an 18-year-old black man, was shot dead by 28-year-old white Ferguson police officer Darren Wilson for stealing a pack of cigarillos from a shop.[11] Such instances aggravate the fact that it is committed by those persons who are supposed to be the protectors of the citizens thereby abusing their power of authority.

Violation of International Conventions

Human rights are identified and protected by national and international law as well. In December 1979, the Code of Conduct for Law Enforcement Officials[12] was adopted by the United Nations General Assembly. Article 1 provides that Law enforcement officials shall fulfil the duty by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. Also, One of the purposes included in the UN charter is to promote and encourage human rights and fundamental freedom which is also inculcated in International Covenant on Economic, Social and Cultural Rights (ICECSR), under article 6  International Covenant on Civil and Political Rights (ICCPR) and  Article 3 of the UDHR.

Prohibition against torture is a jus cogens norm under international human rights law which means it has the highest standing in customary law and supersedes all other treaties and customary laws. The same is provided in Article 5 of the UDHR and Article 7 of the ICCPR. In addition to this, there are standard minimum rules for the treatment of prisoners; declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment and code of conduct for law enforcement officials.

Suggestions

Custodial violence strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Such killings have stimulated demand for police reforms in the country which should address the problem of Human rights violation in custodial situations.

  • It should incorporate international human rights standards, particularly those relating to arrest and detention procedures and safeguards against discrimination.
  • A code of ethics for police officers should also be inculcated and a stringer punishment for not adherence to it.
  • The Government should also take steps for the prompt and effective investigation of all reports of torture through an independent and impartial body.
  • The Supreme Court and the High Courts should conduct suo moto cognizance whenever a victim alleges torture or illegal detention in a habeas corpus petition.
  • Criminal proceedings should be initiated against police officials who abuse their position and yield to corruption and political influences which result in the violation of human rights of the accused.

Conclusion

Human rights are paramount, eternal, sacrosanct and transcendental in nature and ought to be treated as inalienable and unavoidable for preserving the dignity of people. The precious rights guaranteed by Articles 21 and 22 of the Constitution of India cannot be denied to anyone, except according to the procedure established by law. With the rapid increase in cases of police torture, it is clear that the governments at the centre and in the states have failed to adequately implement clear accountability mechanisms that can punish such officers who repeatedly abuse their powers.

No doubt, the police plays a vital role in safeguarding our life, liberty and freedoms, however, police must act properly, showing fall respect to the human rights of the people keeping in mind no one is above the law and the end cannot justify the means.


[1] Article 1, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987

[2] 1997 (1) SCC 416

[3] 1997 (11) SCC 339

[4] BBC News, Jeyaraj and Benicks: Five policemen arrested over India custody deaths, July, 2, 2020, Available here,  (Last accessed on September 5, 2020).

[5] PTI, Jayaraj-Fenix custodial deaths: CBI takes over probe into torture and killing of father-son duo, Available here

[6] (1993)2 SCC 746.

[7] Section 29, The Police Act 1861

[8] Hathras gang rape case, a long cast feud, a horrific crime and sudden cremation, The Hindu, October 3, 2020, Available here (Last accessed on October 4, 2020)

[9] Manny Fernandez and Audra D. S. Burch, George Floyd, From ‘I Want to Touch the World’ to ‘I Can’t Breathe’ July 29, 2020, Available here  (Last Accessed September 15, 2020).

[10] Carl Heastie, Assembly Passes Eric Garner Anti-Chokehold Act, June 8, 2020. Available here. (Last accessed on 14 September 2020)

[11] BBC News, Profile: Ferguson shooting victim Michael Brown, November 26 2014, Available here, (Last Accessed September 15, 2020).

[12] Article 1, The code of conduct for law enforcement officials, 1979, Available here


  1. Unfettered Powers of Police and Need for Reforms
  2. Human Rights in India: History & Development

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