• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

ROLE OF JUDICIARY AND CUSTODIAL TORTURE.


death is one of the worst crimes in a civilized society governed by the Rule of law. Does a citizen shed off his fundamental right to life, the moment a policeman arrest him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic “NO”.

- Supreme Court of India, D.K Basu vs. State of West Bengal.

HISTORICAL BACKGROUND.

We can find the footprint of the modern criminal administration in three great principles. Firstly, “Legality”, which means the accused should be treated equally without taking the rank or wealth into consideration. Second principle is related with the “respect of the person”, who is involved in the criminal trial which states that the dignity of the accused, victim as well as witness must be taken into account both at the substantive level as well as procedural level. The third principle is related with the “Quality of criminal justice”, which implies that the trial must be compliance with certain minimum standards which includes the independent and impartial judiciary, Trial in an open court, access to the legal counsel and free legal aid services in such cases wherever it applies and speedy trial.

CURRENT SCENERIO

Now a days, situation has become worst, where the news of Custodial torture is compared with the news of Road accident, No one cares about the both. On an average almost five people per day is being killed in judicial custody.[1] Cases reported in the year 2019 were 1731 cases only about the death in custody.[2] Recent example on this point is the death of P. Jeyaraj’s death which had taken place in Tamil Nadu. [3]

JUDICIARY APPROACH TOWARDS CUSTODIAL TORTURE.

But, when we start Writing on this point we must write it with great satisfaction that judiciary has played a vital role and has deliberated landmark judgments time to time in providing justice and eliminating the injustice. In several cases, the Hon’ble Court has recognised the right of prisoner and has gone to such an extent that he had stated that Human rights belong to inmates also and no one including the state can take their rights.

The worst Violation of human rights and custodial torture takes place during the investigation time, when the police act in pressure to secure the most clinching evidence often resort to third degree methods and torture. In Gauri shankersharma v. state[4]Three police officers were booked for the custodial death in the period of investigation. It was came into notice that the deceased was taken into custody without recording the arrest in the general diary on actual day on which the arrest was taken place. Justice Ahmed observed that the offence was serious in nature and de facto the offence was committed by such a person who was supposed to be the protector of the citizen and not to misuse his uniform and authority. The justice has stated that it must be curbed with a heavy hand, the punishment should be in such a manner that it would casura praemonens others from indulging in such behaviour.

In the judgment of Sunil Batra[5], Krishna Iyer, J. Stated that “even prisoners under death sentence have human rights which are not negotiable and even the dangerous prisoner has basic liberties that cannot be bartered away”. The police officer cannot take the benefit of Sovereign Immunity while they perform the act of giving third degree treatment to an accused and later on that result in the death of the same.[6]

In the judgment of State of U.P vs. Ramasagar Yadav[7] the Supreme Court had stated that “It wished to impress upon the Government the need to amend the law so that the burden of proof in cases of custodial deaths will be shifted to the police”. [8]

In case of saheli[9], the court had confirmed that the plea of immunity of state cannot be entertained anymore and the state will be in obligation to answer the action for damages for bodily harm,which includes battery, assault, false imprisonment, physicalinjuries and death.

In the Case of D.K Basu vs. state of W.B[10], The Hon’ble apex court has laid down thirteen directions which not only prohibit certain practices but also made sine quo non to prepare memo of arrest, allow the accused to meet with this lawyer during interrogation, notification of time, place of arrest and custody, telegraphically, getting arresteemedically examined after arrest and every 48 hours, information about arrest to police control room etc.

In case of Smt Selvi and Others v State of Karnataka[11], while addressing the matter on involuntary Administration of scientific techniques, such as Narcro analysis, Polygraph examination and the brain electrical test for improving the investigation in criminal cases, A three- Judge bench has stated that these techniques constitute the ‘Cruel, inhuman or degrading treatment’ in Context of Article 21.[12]

In case of Haricharan and Another v State of Madhya Pradesh and Others[13] the court has held that the expression Life and Personal Liberty’ in Article21 includes right to live with human dignity. Therefore, itincludes within itself guarantee against the torture and assault by the State.

The Supreme Court in the judgment of Dr. MehmoodNayyarAzam vState of Chhattisgarh and Others[14]observed that if an accused is in custody, his fundamental rights are not subject to be abrogated in Toto. His dignity should not be hampered and in any case the inhuman behaviour will not be entertained. The restrictions is imposed by sanction of law by which the enjoyment of fundamental right is curtailed but the basic human rights should not be subject to curtailed at any cost and the police officers cannot be treat in an inhuman manner. Meanwhile, it is the obligation of the police officers to protect his human rights and to prevent all forms of atrocities.

CONCLUSION.

There is no doubt that the judiciary hasplayed his role in order to provide justice and eliminating the injustice but it is an irony that the judiciary has knocked out and the truth speaks something else. The Recent case of P. Jeyaraj’s death and the rate of judicial death is res ipsa loquitur. It clearly shows that the Landmark judgment of Hon’ble court has no applicability in real sense. From above mentioned case, even a lay man can identify how much rules is being followed by the police officers as laid down in the judgment of D.K Basu vs. W.B and other several judgments pronounced by the Hon’ble High court as well by the Supreme Court. The fact is that we have rules and regulations but those rules are not being applied in a proper sense. We need to implicate those rules and guidelines that has been laid down in the judgment of D.K Basu. The time has come where we need to govern by the “rule of law” instead of “Rule by Law”.

Author of the piece is Raju Kumar, a Second year Student of C.N.L.U. Patna.

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[1]https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece last accessed at 24.07.2020 at 11.17PM [2]ibid [3]https://indianexpress.com/article/explained/explained-tamil-nadu-police-custodial-torture-father-son-killed-thoothukudi-6479190/ last accessed at 24.07.2020 at 11.59 PM [4] Gauri shankersharma v. state, AIR 1990 SC 709 (India). [5]Sunil Batra v. Delhi Administration, AIR 1978 SC 1575 (India). [6]Ibid [7] U.P vs. Ramasagar Yadav, AIR 1985 SC 416 (India). [8] ibid [9]Saheli v. commissioner of police, AIR 1990 (1) SCJ 390, (India). [10]D.K Basu vs. state of W.B AIR 1997 SC 610, (India). [11]Selvi and Others v State of Karnataka AIR 2010 SC 1974 (India). [12]Ibid [13]Haricharan v State of Madhya Pradesh (2011) 3 SCR 769, (India). [14]Dr. MehmoodNayyarAzam v State of Chhattisgarh, (2012) 8 SCR 651.

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