On June 26, a video clip narrating the incident of custodial death of a father and his son, by the Sattankluam police authority, went viral in India across social media. Ironically, the same day was also United Nations International Day in Support of Victims of Torture, which is when we remember and assert our conscience against custodial torture that mocks human rights and humanity. This incident has not only reflected the ferocious torture at the hands of police personnel but also the failure in applying the judicial mind by the Magistrate to follow the procedure stipulated to grant police custody of the accused. It is an example of how the protectors of law and order abuse the legal setup intended to protect innocent individuals.
Recently, the whole world has witnessed US police brutality which led black lives matter movement across the globe, and now India has witnessed the mayhem of the legal as well as human rights at the callousness of the police authorities in India. In spite of the fact that the judiciary has asked prison authorities to change their attitudes towards prison inmates and protect their human rights for the sake of humanity. In Sheela Barse v. State of Maharastra, the Apex Court on a complaint of custodial violence directed that the state should provide legal assistance to helpless victims of prison injustice at its own cost and to be protected against torture and maltreatment.
P Jeyraj and his son, Fennix, aged 62 and 32 respectively were detained by the police for opening their shop beyond the authorized time during the lockdown. It amounts to a violation of lockdown guidelines along with other minor offenses punishable under section 188, 269, 294(b), 353, and 506(2) of the Indian Penal Code. As per section 41 of the Cr.P.C, police arrested them without a warrant only in exceptional circumstances and opening shops beyond authorized time stands in contradiction with section 188 of the IPC. The magistrate granted police custody of the duo without their physical examination as that standard has been eased in wake of COVID 19 protective measure. Before being shifted to Central Jail, the two were shifted to a sub police station where, as per news reports, the Sattankluam police personnel had beaten P Jeyraj, who is in his sixties; to which, his son, protested this led to an altercation between Fennix and police. Police personnel had then beaten both father and son at Kovilpatti mercilessly.
Fenix was brought to Kovilptti Government Hospital owing to his excessive bleeding where he was declared dead on the evening of June 22. His father, admitted due to respiratory problems, was declared dead too when brought to the hospital the very next day. The autopsy report serves as a testimony of police brutality as it confirms vital injuries to the deceased. The death of the duo, as a result of police brutality, has surged people in anger causing the district to witness mass protests against the police personnel. Currently, the involved police personnel’s stand suspended but the kin of the deceased are demanding a murder inquiry against the involved personnel.
India is subject to human rights violations as per the records of the National Human Rights Commission. Adding to the statistic, this incident has again depicted the lawlessness at the hands of the police and specifically magistrates. This incident has overlooked various mandatory provisions laid down by different statutes. The judiciary is the protector of the individuals and it has failed as article 22(2) of the Indian Constitution necessitates the production of the accused before the magistrate. It is also rooted in section 167 of the Criminal Procedure Code, (Cr.P.C.), sub-clause 2 of the same states that the order of remand by the magistrate can only be made only after the production of the accused in person.
In these exceptional circumstances of COVID-19, the magistrate can order remand of the person via video conferencing as per the judgment of the Karnataka High Court. However, in the present case, the accused were neither physically nor digitally produced before the magistrate. The remand order has not only undermined the Rule 6 of Tamil Nadu Criminal Rules of Practice but also the order of the Karnataka High Court violating the principle of stare decisis engrafted in article 142 of the Indian Constitution. In D.K. Basu v. State of West Bengal, the Supreme Court held that sovereign immunity defense for discharging sovereign functions of the state is not a defense against all the acts of violation of the constitutionally guaranteed fundamental rights. In Nilabati Behera v. State of Orrisa, the Court further held that the police authority has the responsibility of ensuring the right to life to inmates in their custody.
India’s Judiciary has recognized international convention in respect of article 21 in Charan Lal Sahu v. Union of India, observing:
India is committed to uphold human rights as a part of long-standing heritage as enshrined in our constitutional law. Acknowledgment of the inbuilt dignity and equal and inalienable rights to the citizens is the foundation of freedom, justice, and peace in the world. Judiciary should step up to violation of human rights by exercising its majestic judicial authority.
Article 5 of the Universal Declaration of Human Rights, to which India is signatory, states that no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment. Article 11 provides the defense of presumption of innocence of a person until proved guilty which also means protection against any high-handed treatment by the authorities dealing with him in the matter.
Custodial Crimes includes illegal detention, torture, rape, death, and disappearance. It refers to take a person in custody to limit his freedom and by taking advantage of such a situation the custodian attempts to commit a crime on the person under custody. As per article 1 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment Punishment, torture is intentionally inflicting on a person severe, physical or mental, pain or suffering for purpose of punishing him for an act he or any other person has committed or is suspected of founded on any kind of discrimination and such pain or suffering is arising only from inherent or incidental lawful sanctions. India has signed the UN Convention against Torture consequent to which various Commissions & Committees (Sarkaria Commission, and Shah Commission, etc.) have been structured to bring reforms to the institution of police custody but it has not seen much improvement due to their recommendation only used for scholarly work.
Article 1 of Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly, cast a duty upon all the Law enforcement officials including all officers of the law, whether appointed or elected, exercising police powers, particularly the powers of arrest or detention to fulfill the duty imposed upon them by law, by serving the community and protecting all persons against illegal acts, with the utmost responsibility required by their profession. Article 5 of the Code prohibits law enforcement officials from inflicting, instigating, or tolerating any act of torture. This particular incident has also violated The International Covenant on Civil and Political Rights, 1976 as Article 6(1) of the same guarantees the right to life, article 9(1) and 10(1) provides protection against arbitrary detention and the right, if deprived of liberty, to be treated with humanity and dignity respectively.
India has reserved some crucial directions that nullify both the ICCPR and the Torture Convention in true spirit. These reservations have discarded even minimum level of examination by international institutions as envisioned by the Torture Convention. Hence, police custody in India is still governed by centenarian legislation, the Police Act, 1861. It is a worrying state of affair that the custodial deaths in India are overlooked by the authorities and we are failing to fix the problem as well as the constitutional aspirations in a democratic society.
This incident of police brutality in the name of protecting law and order has shocked the conscience of the people. The stipulated procedure and provisions were bypassed by the police authorities to bring the wrath of merciless savagery on the accused. This incident has also violated the Code of Conduct for Law Enforcement Officials, International Covenant on Civil and Political Rights, UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment Punishment, and the Universal Declaration of Human Rights. It’s an important juncture where authorities and judiciary shall step up to stop human rights violations and set examples to honor the basic rights in fixed in Article 21 of the Indian Constitution.
Gaurav Mishra is a third-year B.A.LL.B. (Hons.) student at the National University of Study and Research in Law, Ranchi, India.
Suggested citation: Gaurav Mishra, Custodial Cruelty in India and the Deaths of a Father and Son, JURIST – Student Commentary, July 14, 2020, https://www.jurist.org/commentary/2020/07/gaurav-mishra-custodial-deaths-india/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
