03/07/2020
No one can truly know a nation until one has been inside the jail. A nation should not be judged by how it treats its highest citizen but its lowest ones"
In any democratic society, work in a prison is public service; prisons are places like school and hospitals, which should be run by civil power with object of contributing to the public good. Jails are a critical part of the justice system and, as a public sector responsibility, most states require counties to either operate a jail or house their prisoners in other local government facilities. Custodial crimes infringe upon human rights and the confessions so extracted often fail to stand the legal scrutiny. Violence at the hands of the police is counter-productive. It can turn innocent suspects into hardcore criminals. The grouse they have against a particular policeman motivates them to rebel against the country, but by making custodial management vital to overall jail management program, authorities will be able to accomplish their mission despite these challenges.
Custodial Violence is among the worst crime in a civilized society. It is a blatant violation of human dignity. It strikes at the very roots of the rule and law. 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) .No doubt, the police officers have contributed towards the maintenance of public order and their plans are also enforced with purity, activity, vigilance and description. But more often that, the police officers have been abused and condemned for torturing the public, particularly those who are in custody and detention, and inflicting injuries to their life and property. It is a calculated assault on human dignity. Custodial violence and abuse of police power is not only peculiar to this country but it is also widespread. However in our country it is considered second to none. It has been a concern of the international community because the problem is universal and the challenge is almost global. In recent years, third degree torture and custodial deaths have become an intrinsic part of police investigations and the injury inflicted on the prisoners is sometimes unbearable. Custodial Death can be because of: Negligence by the concerned authorities. This includes safety provided to the arrestee, medical aide 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 Su***de) the majority of the victims of custodial death and violence as observed by the Law Commission are the poor and weak. The lower level of society who in almost a majority of the cases cannot revolt back and do anything about the injustice done to them or one of their family members In March last year; the Delhi High Court observed that courts must not overlook the fact that custodial death is the worst crime in a civilized society. It called for an amendment in the Evidence Act so that the policemen guilty of custodial torture do not escape for lack of evidence
Safety and security, both for the public and within the institution, is the core of a jail's mission. Unlike most state and federal prisons, local jails must achieve this despite diverse inmate populations that vary by age, gender, legal status, charge severity, medical and health condition, intellectual capacity, threat level, escape risk, and length of stay. The huge number of custodial deaths is not only manifestation of violence, but also the abysmal health conditions. The major complaint of many prisons is skin disease and many prisoners complain that no matter what the ailment is, they are given a standard treatment of two to three types of tablets.
Inmates being harmed or exploited by jail personnel, especially custodial personnel in a position of power. Sometimes these people are inadequately trained and supervised or, worse, they may have behavioral problems of their own. Of course, most staff does not fall into this category and jails must be concerned about protecting their personnel, especially those who work directly with potentially violent or mentally ill inmates and who are therefore most vulnerable to harm. And this can be achieved by custodial management
Essence custodial management comes down to three key objectives: (1) protecting the safety of the, inmates, jail personnel and visitors, (2) preventing property damage and loss, and (3) preserving inmate rights.Even training and recruitment are the other important areas that need to be addressed promptly. The training programme should be reoriented to bring about a change in the police attitude and mindset in regard to investigations. They must recognize and respect human rights and adopt scientific investigation methods. Arguably, a dramatic improvement in the working conditions of the police could lessen brutality and that will help in total custodial management.
If we talk about custodial justice lot of emphasis has been given to importance of custodial Justice. The Government of India has promulgated the Protection of Human Rights Act 1993 and in terms of this Act, the National Human Rights Commission has been set up in 1993.
The Hon'ble Supreme Court of India had also issued important guidelines in the case of D.K. Base vs. State of West Bengal which are to be followed by all authorities making arrest of individuals. One of the guidelines provides that a person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other persons known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. These guidelines of the Supreme Court which have to be mandatory followed have been circulated to all State Governments for compliance by Ministry of Home Affairs, Government of India
The recent amendment in Section 176 of the Criminal Procedure Code to provide that in the case of death or disappearance of a person or r**e of a woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be conducted within twenty four hours of death and this will go a long way to ameliorate the situation in the Cases of custodial justice.
Similarly, there have been a number of important judgments delivered by the Hon'ble Supreme Court of India providing for payment of compensation to the persons affected by custodial crimes and such judgments have helped in curbing the tendency of committing custodial crimes
The National Police Commission (NPC) long ago recommended surprise visits by senior officers to police stations to deter the use of excessive force in lockups. The Law Commission too recommended that custodial deaths should be deemed as murder unless proved otherwise, placing the onus of disproving it on the police. The Law Commission of India has recommended that a Section 114(B) should be inserted in the Indian Evidence Act, 1872, to introduce a presumption that injuries sustained by a person in police custody may be presumed to have been caused by the police officer. Such a provision will perhaps have a restraining effect on officers indulging in torture. Similarly, amendments in CrPC provide an examination of the arrestee by a medical practitioner, where compulsory physical examination of the arrested person should be done
Guidelines
the Commission has taken a view that a direction should be issued forthwith to the District Magistrates and Superintendents of Police of every district that they should report to the Secretary General of the Commission about such incidents within 24 hours of occurrence or of these officers having come to know about such incidents. Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident.
It is accordingly requested that the District Magistrates/Superintendents of Police may be given suitable instructions in this regard so as to ensure prompt communication of incidents of custodial deaths/custodial r**es to the undersigned.
A perusal of the reports received from DMs/SPs in pursuance of the above mentioned communication reveals that reports are received in the Commission from some of the States, only on deaths in police custody. The objective of the Commission is to collect information in respect of custodial deaths in police as well as judicial custody.
The post-mortem report was intended to be the most valuable record and considerable importance was being placed on this document in drawing conclusions about the death. The Commission is of a prima-facie view that the local doctor succumbs to police pressure which leads to distortion of the facts.
The Commission would like that all postmortem examinations done in respect of deaths in police custody and in jails should be video-filmed and cassettes be sent to the Commission along with the post-mortem report. The Commission is alive to the fact that the process of video-filming will involve extra cost but you would agree that human life is more valuable than the cost of video filming and such occasions should be very limited. We would be happy if you would be good enough to immediately sensitize the higher officials in your state police to introduce video-filming of post mortem examination with effect from 1st October, 1995
Commission. With a view to preventing such frauds, the Commission recommended to all the
States to video-film the post-mortem examination and send the cassettes to the commission
It was felt that the Autopsy Report forms now in use in the various States, are not comprehensive and, therefore, do not serve the purpose and also give scope for doubt and manipulation.
The Commission, therefore, decided to revise the autopsy form to plug the loopholes and to make it more incisive and purposeful. The Commission, after ascertaining the views of the States and discussing with the experts in the field and taking into consideration, though not entirely adopting, the U.N. Model Autopsy protocol, has prepared a Model Autopsy form enclosed as Annexure-I. In this connection, it was felt that some incidental improvements are also called for in regard to the conduct of inquests. For proper assessment of "Time since death"15 or 'the time of death', determination of temperature changes and development of Rigor Mortis at the time of first examination at the scene is essential. This can conveniently be done by following some easily understandable and implement able procedure.
The procedure to be followed by those in charge of inquest is indicated in Annexure-II to this letter. This is a small but important addition to the inquest procedure. The Commission recommends your Government to prescribe the Model Autopsy Form (Annexure-I) and the additional procedure for inquest as indicated in Annexure
Conclusion
Indian criminal justice system must be based on respect for human rights, in particular the rights of the accused and the rights of victims. Whichever criminal justice system is adopted, it has to be inconformity with the international human rights obligations of India. Any reform of the criminal justice system must take into account and seek to eradicate the root causes of its malfunctioning; The authority conducting the investigation should be separate and independent from the detention authority. The length of police custody should not be extended. The heart of the matter is that the basic rule of the police and its structure did not undergo any change, the working conditions of the policemen. The lower ranks of police officials working conditions are quite pathetic. They are highly dissatisfied with their pay structure. They do not have any fixed hours of work; family accommodation is not available to a majority of them and their promotion prospects are nil. Hence they adopt the short cut methods. It becomes difficult for them to be sensitive towards human rights under these conditions and another thing is lack of accountability -As we see, for the past few years, there has been a total lack of control and accountability in the police system. This can be seen in the ambivalent attitude of the police to use third degree methods and the informal detentions. Indian criminal justice system must be based on respect for human rights....swati Rathi Adv
