Custodial deaths in India

Custodial violence primarily refers to violence in police and judicial custody. It includes death, rape and torture.

The recent death of a father-son duo from Tamil Nadu, allegedly due to custodial violence, has sparked anger across India.

The outrage and debates around the chilling custodial deaths of a father-son duo in Tamil Nadu sound a bit too familiar to Sayyad Khwaja Hussain, 50. It has been happening for years. But nobody seems to care.

Hussain has seen it up close. He has even been at the centre of this discourse. He is the elder brother of Sayyad Khwaja Yunus, an engineer, who allegedly died in the custody of Mumbai Police in January 2003 at the age of 27. “We keep having the same debates after a case but nothing changes on the ground,” says Hussain, “And if the families want justice, the legal formalities take up your life.”Seventeen years since Khwaja Yunus died in Mumbai Police custody, Indian cops still unaccountable for custodial deaths.Deaths in custody are unfortunately not isolated incidents. Police in India routinely use torture and flout arrest procedures with little or no accountability. The magistrate investigating the recent deaths reported that the police did not cooperate during his inquiry, insulted him, and destroyed evidence.

On June 19, police in Tamil Nadu state detained P. Jayaraj, 60, and his son J. Fenix, 31, allegedly for keeping their mobile phone shop open longer than allowed under Covid-19 lockdown rules. Four days later, both were dead.The deaths of Jayaraj and Fenix happened soon after the killing of George Floyd by a police officer in the United States, igniting protests against police use of excessive force against Black people. It has prompted calls for police reform in India as well, including meaningful steps to ensure accountability. India should ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and strictly enforce laws and guidelines on arrest and detention set out in the Code of Criminal Procedure.

Reasons Behind Custodial Violence:

Absence of Strong Legislation: India does not have an anti-torture legislation and is yet to criminalise custodial violence, while action against culpable officials remains illusory.

• The Indian state either denies the existence of torture in the country or defends its resistance to enact a law by claiming there are sufficient provisions in the domestic legal framework to prohibit and penalise torture.
• These claims however remain superficial and without any such protections.
• Excessive Force: The use of excessive force including torture to target marginalised communities and control people participating in movements or propagating ideologies which the state perceives as opposed to its stature.
• Constitutional and Legal Provisions:

• Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution.
• The right to counsel is also a fundamental right under Article 22(1) of the India constitution.
• Section 41 of Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation.

What should be done?

• India should ratify the UN Convention Against Torture: It will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment.
  • It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.
• Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
• Implementation of Law Commission of India’s 273^rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.