The Hindu : SC frowns on custodial deaths

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Thursday, Sep 11, 2003

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SC frowns on custodial deaths

By Our Legal Correspondent

NEW DELHI SEPT. 10. The Supreme Court has expressed concern over the increasing number of cases of custodial violence, torture and lock-up deaths in the country posing a serious threat to human rights of citizens.

The court attributed this to the "devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' rights".

A Bench, comprising Justice Doraiswamy Raju and Justice Arijit Pasayat, made these observations while awarding Rs. 1 lakh to a family, which lost its breadwinner due to torture in police custody.

The judges said that life or personal liberty under the Constitution included the right to live with human dignity. "There is an inbuilt guarantee against torture or assault by the state or its functionaries. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution".

"The dehumanising torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures," it added. "The vulnerability of human rights assumes a traumatic torture when functionaries of the state, whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them".

Finding fault with the present justice delivery system, the Bench said the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies were themselves fixed in the dock, ignoring the ground realities, often resulted in miscarriage of justice.

Only a very few cases of this type came to light, the Bench said and added that the government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in law not only to curb custodial crime but also to see that such crime "does not go unpunished".

Recalling the words of Abraham Lincoln, the Bench said: "if you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem".

"Torture in police custody receives encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them once the prisoner dies in lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture." By way of caution to the trial and High Courts, the Bench said: "courts must deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise, the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which, if it happens, will be a sad day for any one to reckon with".

In this case, though the death of Abdul Gafar Khan in Mumbai in 1983 due to police torture could not be established, the Bench directed the Maharashtra Government to pay Rs. 1 lakh as compensation to the mother of the victim and his children. Since the victim's wife had remarried, she was not entitled for compensation, it said.

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