The general meaning of the term custody involves "guardianship and protective care". But sometimes the police in India neither act as guardians nor is there any protective care in their custody. A person in custody may be accused of a crime. So, police may use force to extract a confession. The police not only use third degree but at times commit custodial rape and even murder. In the process, protectors of citizens become killers. Many times, they are not punished since the investigation is done by fellow officers who try to protect their colleagues. On occasions, custodial deaths are even suppressed.

According to statistics, there have been 1,888 reported cases in the last two decades. But only 893 cases were registered against police officials and charge sheet was filed against only 358 officials. Just 26 police and government personnel got convicted. According to the National Campaign Against Torture (NCAT), the situation related to custodial death is far worse than what the statistics reflect.

In Bulandshahr, a Somdutt, 28, a resident of Shahjadpur Kanaini in Khurja, was arrested by Khurja Nagar police for kidnapping. He was tortured and was eventually murdered because he had an inter-caste marriage. His mother told the court that police officers along with eight relatives of the girl murdered his son. To protect themselves, the police did not do a post-mortem. And to play it safe, the police cremated the body so that no evidence of murder remains. In such cases, higher officials are supposed to be sensitive to the victim and his family rather than protecting and defending their own department.

Murder most foul

This was a case that came into limelight. The CBI (Central Bureau of Investigation), courts and justice department took it up seriously. Numerous custodial death cases are not even registered by police personnel; if they are, the police portray murder as suicide. To protect their colleagues, the police are known to manipulate the facts and tamper with evidence, which impedes the investigation and leads to miscarriage of justice.

The People’s Union for Democratic Rights (PUDR) says that they met immense resistance from police officials to register complaints in cases of custodial deaths. Said Radhika Chitkara of PUDR: "There has been open defiance of court orders. The Supreme Court gave clear directions last year to install CCTV cameras in every police station but is facing a hard time obtaining compliance affidavits from various states." One of the most serious issues the legal system faces are not the rules, but their implementation.

In custodial death situations, the major question is: why do police personnel commit such a crime. Sometimes police use violence as a weapon while investigating but this does not justify murdering someone in custody. If a theft done for any basic need like food comes under the ambit of crime, then the murder done by the police official should also be deemed a crime and not covered up.

Punish the guilty

One of the most serious defects in the crime of custodial death is that the entire police department and governmental authorities are viewed as criminals. In the case of Bulandshahr, the UP Police were embroiled in the crime although just a few policemen were to blame. Such generalization of guilt is incorrect. The department should not suffer because of a few brutal and reckless policemen.

The explicit duty to respect human rights should be added to the duties of police in the Police Act of 1861. Respect for human rights should be included in training programmes. The State should establish a special team or department to register cases of police torture and custodial death. If the police department is given this work, they will be biased.  

In the case of a custodial death, the burden of proof should be placed on the police to prove that the crime was not committed in their custody. It is extremely difficult for the petitioner to show proof in such cases because officers of police department solely conduct the investigation.  

Unbiased probe

Furthermore, I would like to propose that in cases of custodial death, the investigation should be performed by the CBI or another team other than the police department from the start so that there are no biases. The state should take strict measures in order to implement CCTV camera rules in each police station. The control of CCTV should be vested in hands of another department.

None of the suggestions will be effective until the police officers are given complete knowledge and training about how custodial death affects their career and the image of the police department.

(The author is a LL.M. student at Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. Views are personal. She can be contacted at sharmaharu10@gmail.com)