Between 22 and 27 March, two dead bodies were kept at the Kolkata Police Mortuary waiting for an inquest. The two persons, Mr. Paran Molla and Mr. Mohammad Shamim, reportedly died while in the custody of the state government authorities in West Bengal. Paran died at Kasipur Police Station and Mohammad at the Presidency Central Jail. Finally, when the inquest was carried out on 27 March, it was done only by an Executive Magistrate, Mr. Rashbihari Das, which is in clear violation of the law, the Criminal Procedure Code, 1973.
This is not the first occasion where a person has died in custody in West Bengal state. It is neither a rare incident in West Bengal where dead bodies were kept waiting for days for concluding an inquest and a post-mortem examination. Additionally, it is a common breach of law in India where inquests are carried out by Executive Magistrates, though the criminal procedure law in India mandates that such inquest has to be done by Judicial Magistrates. Executive Magistrates are government officers who entertain limited quasi-judicial authorities; whereas Judicial Magistrates are judges of the Magistrate Courts.
A death in custody is one of the most mysterious circumstances in which a person could die. In India, whenever a person dies in custody, it is the duty of the officer who was in charge of the person to immediately inform the nearest Judicial Magistrate about the death. On receipt of the information, it is the duty of the Judicial Magistrate to conduct an inquest and further make arrangements for the body to be sent for a post-mortem examination. This is an express provision vide Section 176 of the Criminal Procedure Code, 1973.
The Supreme Court of India, The National Human Rights Commission and the National Law Commission, have on several occasions, expressed concern about the number of custodial deaths being reported in India.
In one occasion Justice Arijit Pasayat and Justice C. K. Thakker, said “It is 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.”
This observation was made by the Supreme Court in November 2004 while deciding a case of four police officers who had appealed to the Supreme Court against their conviction for murder rendered by the Madhya Pradesh High Court. Justice Pasayat and Justice Thakker are two senior judges of the Supreme Court.
The National Law Commission of India in its 185th Report released in 2003 has categorically stated that the conduct of the law enforcement agencies in India is at an alarming rate of deterioration and had recommended to the Government of India specific steps to contain this. This, however, was not the first occasion where the Commission has made such derogatory remarks about the police in India. Right from its first report, published 155 years ago, the then Commission, quoting the ‘Parliamentary Committee on Indian Affairs’ had said that “…circumstances show gross abuse of powers by the police officers in India leading to oppression and extortion…“.
The Commission in 2003 recommended to the Government that amendments have to be made in the Indian Evidence Act, 1872 to incorporate an additional provision that would fasten an adverse presumption against a police or any other law enforcement officer, should any person die while in custody. The Asian Legal Resource Centre (ALRC) and its sister organisation the Asian Human Rights Commission (AHRC), have documented cases of custodial deaths from India in the past four years which strongly suggests that the situation has not improved but has only deteriorated further.
When a person dies in custody it raises several questions. In most jurisdictions a death in custody is taken seriously. In any jurisdiction where custodial crimes are a rarity, there are mechanisms to ensure to investigate the reason for the death and other injuries caused to a detainee. Most of these mechanisms, if not entirely foolproof, are good enough to explore the reason for the injury and/or the death. For this, these jurisdictions employ advanced scientific procedures, including an on the scene investigation by an independent officer and a state of the art forensic examination of the place of the incident as well as the person/s in question. Most of these jurisdictions are also developed countries.
In these jurisdictions, it is accepted as a matter of utmost importance, that if the authorities fail to conduct independent and impartial investigations using the most advanced technologies in cases of custodial violence and deaths, the law enforcement agents responsible for the violation of the rights of a detainee will have umpteen opportunities to escape from the criminal liability. This flows from the understanding that such an opportunity if provided would generate indiscipline within the agencies and also will result in the breakdown of the rule of law. In short, there is a directly proportional and a non-severable relationship between the protection, promotion and fulfilment of the rule of law in a jurisdiction and the accountability of the law enforcement agencies. The not so old histories of these jurisdictions show that the protection, promotion and fulfilment of the rule of law and its guarantees are directly related to development.
In South Asian countries like India, where custodial violence is common, a death in custody require no less seriousness in approach. Pertaining to India, the National Human Rights Commission of India has issued at least four guidelines to the state as well as the central government in India calling for their immediate action to address the lack of transparency while dealing with deaths in custody. While expressing concern about the number of instances of custodial deaths reported in the country and its alarming increase, the Commission has recommended video recording of the inquest as well as the post-mortem of the victim. The Commission has even recommended using a standardised ‘post-mortem examination report form’ by the forensic surgeons. These recommendations however have not been implemented in most states in India.
The ALRC as well as the AHRC has been expressing serious concerns about the state of policing in India since long. Each year, through its reports, statements and appeals, the ALRC and the AHRC has been calling upon the Government of India to reconsider its approach towards local policing. The Supreme Court of India has also been expressing similar concerns. The judgment delivered in the Prakash Singh case in early 2007 by the Court was the latest. In this judgment, the Court has directed all state governments in India to implement certain specific policies and procedures to fasten accountability to policing in India. Thus far, the response of the state governments in India regarding the implementation of this judgment has been very cold.
Concerning post-mortem procedures in India, the ALRC and the AHRC has been continuously calling upon the authorities in India to ensure that the basic facilities are made available, as it is lacking in several states currently.
The AHRC and the ALRC has documented cases, particularly from West Bengal, that depicts the utter neglect regarding this issue by the West Bengal State Government. It has also been brought to the notice of the authorities in India that as of now, the post-mortem examination, if conducted, lacks every aspect of independency, transparency and legal propriety. In most cases, the body, before, during and after the examination, is under the exclusive control of the state police leaving ample space for the police to tamper with the evidence. Cases where the bodies have putrefied before the post-mortem examination, leaving just the skeletons to be examined are common. In an alarmingly high number of cases the examinations are carried out by unqualified persons.
Since early this year, the state governments across India are desperately trying to implement namesake programmes for ‘improving the public image’ of the state police. Farcical attempts like ‘people friendly policing’ and ‘village policing’ are sought to be implemented, spending huge amounts of public money. Yet, incidents indicating police impropriety and its cover-ups are reported from India. Unfortunately only in rare cases such incidents are brought to the notice of the public eye, as it happened in the recent attacks on foreign tourists in the state of Goa. However, the response by the authorities in India is still not focused in addressing the improprieties — legal or otherwise — within the policing in India, but to appear to have done something to appease the people for the time being.
These attempts have invited much criticism from some corners. The state of policing in India and the often preposterous dramas enacted in the name of addressing serious issues concerning policing in the country is summarised in the comment made by the Supreme Court while deciding the case sited earlier.
The Court said “…if it (custodial violence and custodial deaths) is assuming alarming proportions nowadays all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from the roof tops to be the defenders of democracy and protector of people’s rights. Yet they 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 citizen’s rights.”
