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Custodial Death: Violation Of Human Rights

Prisoners sometimes die in prison, either due to natural illness, violence, suicide, or a result of imprisonment. The purpose of this study is to understand deaths in custody and compare India with South Africa. India and South Africa are similar to the very extent as both Countries have their constitution in which certain fundamental rights are provided to the citizens and have a multiparty parliamentary democracy in which constitutional power is shared among the executive, judiciary, and parliamentary branches. Both Countries have the same primary responsibility for internal security. Deaths in custody are not uncommon.

They may be due to natural causes, but they may also be instances of unlawful killing or the result of ill-treatment or inadequate conditions of detention. In India, deaths in custody are poorly investigated. In some cases, legislation providing for mandatory investigation does not exist. Otherwise, clear procedures are not in place, or the skills and investigative resources required are unavailable.

More often than not, detaining authorities are unaware of proper investigation's importance and benefits. Where detaining authorities are implicated in foul play or incompetent, officials may also be particularly interested in preventing an investigation. Systematic identification of violence within prison institutions is critical, and efforts are needed to prevent unnecessary prison deaths and protect vulnerable prisoners.

Understanding something as its whole is the only way to determine its essence and solution. First, we must recognize human rights to understand custodial death. And to understand the enormous meaning of this term, which the United Nations so eloquently described as "All human beings are born free and equal in dignity and rights." This implies that everyone on the planet is born with inherent dignity and equal rights and that everyone can respect the rights of others out of a sense of brotherhood.[1] In layman's terms, "custodial death" refers to any individual who died while in the care of a public official. The term "custodial death" refers to an accused person who died before a trial or after being found guilty.

The notion of custodial death is not new, particularly in India where it has been used ever since the British held the country's sovereignty. Over the past four to five years, violence and cruelty by police have increased dramatically. The killing of George Floyd in the United States because of police brutality sparked the "Black Lives Matter" movement. Public outrage over the death of Jayaraj and Bennix while in Tamil Nadu's custody led to calls for an effective system to stop police torture.[2] These are only a few instances; there are a plethora of cases where police officers have killed and tortured people. As there is no room for progress when a human right is violated.

Situation In India

Police custody occurs when a suspect in a crime is taken into custody by a police officer and brought to the police station. When in police custody, the suspect is questioned by the officer in charge while being kept for not more than 24 hours in a prison at a police station. Within 24 hours of their custody, police must produce the suspect to the Magistrate according to Article 22(2) of the Indian Constitution. In judicial custody, the accused is held in the custody of the local magistrate rather than in the physical custody of the police as in police custody.

Sections 25 and 26 of the Indian Evidence Act, of 1872, Section 76 of the Criminal Procedure Code of 1973 and Section 29 of the Police Act of 1861, Sections 330, 331 and 348 of the Indian Penal Code,1860 prohibit the torture of police officers, although they are not sufficiently strong to prevent such abuse or assault. According to the national campaign against torture, the prevalence of custodial death and torture has reached its greatest level, claiming that there were almost 1700 deaths.[3] No civilized legislation presupposes the occurrence of brutal treatment in custody.

According to data from the National Crime Record Bureau (NCRB), the findings indicate a 53% increase from the estimated 15 deaths while under custody in 2020. A total of 4,484 deaths in police custody and 233 in alleged police encounters were reported in the country in the last two years, the home ministry informed Lok Sabha. While Uttar Pradesh reported a total of 952 cases (451 in 2020 and 501 in 2021) in the past two years, Bengal registered 442 (185 in 2020 and 257 in 2021) during this period. With 396 cases, Bihar reported the third-highest number of custodial deaths in two years (159 in 2020 and 237 in 2021), Overall, 1,940 cases of custodial deaths were registered in 2020 and 2,544 in 2021.

In the exception to section 300 of the Indian Penal Code, it is stated that a public employee is guilty of culpable homicide not amounting to murder if they use excessive force and kill someone. That means a police officer cannot commit murder against the accused with malafide intention. In addition, section 330 of the Indian Penal Code makes it quite plain that any public employee who injures a person to obtain a confession is punishable by up to seven years in imprisonment. These sections are just a tool until or unless someone uses this for the welfare of the people but in India.

Half of the people does not aware of these sections and half of the people are afraid of the police and the high cost of litigation. The phrase "no one can be held guilty until proven" is well-known in the legal system, yet society and the media have created the perception that the accused is guilty of the crime before the trial ever begins. The Indian Constitution and the Code of Criminal Procedure, 1973 offer several rights to the accused under Article 22 and Section 57, respectively, and the accused are both human and citizens of India born with fundamental human rights.

Situation In South Africa

Deaths in custody are divided into two categories in South Africa. The first category consists of deaths which are frequently during pursuing operations or during the apprehension of suspects. The second category consists of fatalities of people who have been held in jail, either before a bail, during a trial, or following a court judgement. The Independent Police Investigative Directorate (IPID) was established in South Africa under the Independent Police Complaints Investigative Directorate Act (Act 1 of 2011), among other things, to provide impartial control of the South African Police Service.

Section 15(1) of the Correctional Services Act 1989 (Act 111 of 1998) mandates that any prisoner fatalities that cannot be verified as the result of natural causes by a medical professional be reported to the police for an inquest under the Inquests Act 1959. (Act 58 of 1959). All inmate fatalities, both natural and unnatural, must be submitted to the inspecting judge of the Judicial Inspectorate of Correctional Services (JICS) for examination, according to paragraph 15(2) of the Correctional Services Act.[4]

In SA, 792 people died because of police action or while in detention in 2007�2008, and 912 such incidents were documented in 2008�2009, according to official yearly reports provided by IPID. In the past, the Judicial Inspectorate of Prisons (JICS) has recorded a far higher number of prisoner fatalities. Among the roughly 166 000 inmates who were incarcerated during those years, JICS recorded 1047 fatalities in 2009/2010 and 852 deaths in 2011/2012, resulting from unnatural causes, respectively.

South Africa's police watchdog said it arrested 13 officers over the death of a man in custody, the first breakthrough in several cases of alleged brutality during the Covid lockdown. According to Amnesty International, some 115 people were reported to have died in custody.[5]

Comparison Of India With South Africa

India and South Africa have several human rights for the citizens in their Constitutions and have three separate organs viz. Legislative, Executive and Judiciary. Every Human being has the basic right to life whether it is given by the Constitution or not, India and South Africa specifically mentioned the right to life in their Constitution, but the countries do not execute human rights effectively.

The lack of an anti-torture statute in India was brought to light by these instances, and appeals have been made for legislation to be put in place to stop this kind of thing from happening again. The inability to hold law enforcement officials accountable for utilizing cruel tactics and resorting to torture by citing "performance of duty" as a defence reveals a lack of legislative protections in our judicial system.

"A hundred culprits can be freed but a single innocent cannot be punished", only appears in fiction and not in real life since every day many inmates were killed by the police while they are detained. How can a person live fearlessly and in peace when those people who are supposed to safeguard citizens are suddenly murdering residents?

In South Africa, Thousand of inmates were killed by the police initially, and to regulate this problem legislative play a significant role by enacting Correctional Services Act, 1989 and Independent Police Complaints Investigative Directorate Act, 2011 and establishing The Independent Police Complaints Investigative Directorate (IPID) to monitor all the activities of the Police officer and registered and resolved all the cases of unnatural custodial death and in India, people already afraid from the police Officer and also not aware about the laws of Custodial death and even not aware that police Officers can be prosecuted. If India adopts this thing and formulates an authority who monitors them, and the police would have pressure that their activities would get monitored by someone.

In South. Africa, the legislature enacted a special law for this issue i.e., the Independent Police Complaints Investigative Directorate Act 2011 and Correctional Services Act 1998 and execute it very gently and efficiently. But, in India, there are few sections in IPC, 1860 which people are not aware of it and for the punishment, there is only section 302 of IPC,1860 which is a general provision but, the law and order maintained by these police officers and to monitor them, the legislature should enact a special statute and formulate an authority to look after the cases related to custodial death. If we see the statistics of India NCRB just presents a big number of cases of custodial death but, did not initiate any proceedings against custodial death.

And, in South Africa, initially, there was a huge number of cases but after time, cases are fewer in number but did not come to zero, at least some action was taken by the authority and right now, according to the data 13 police officers got punished in South Africa.[6]

The statistics presented by NHRC and NCRB reflect horrifying numbers of custodial deaths. It must be changed. The protection that police get from the state despite misusing their power is a big issue. There is a need for monitoring police actions in cases of custodial death, and police officers who act in mala fide must be convicted. A precedent need to be set to make the authorities realize that they cannot exercise their power beyond their limits.

If the current scenario is to be considered, it is very difficult to say that there will be any improvement regarding custodial deaths. There is a need for stringent legal action and execution of that legal action is must necessary which will be solely dedicated to punishing the personnel who misused their power and whose brutal force led to a loss of life.

To ensure the reduction of custodial death instances, the guidelines laid down in the landmark cases of D.K. Basu v. the State of Bengal and Prakash Singh v. Union of India[7] need to be strictly implemented. India needs to adopt South Africa's approach to establishing ICID and the execution of something is most important because it's not that difficult to legislate the law, but the execution is.

  1. Quotes on human rights: (2019) Biography Online. Available at: (Accessed: November 13, 2022
  2. S.M. et al. (2022) Custodial deaths, iPleaders. Available at: (Accessed: November 13, 2022).
  3. India News, India News Live and Breaking News Today (no date) Hindustan Times. Available at: (Accessed: November 13, 2022).
  4. Barit, S., du Toit-Prinsloo, L. and Saayman, G. (no date) Deaths due to police action and deaths in custody - a persistent problem in Pretoria, South Africa, SA Crime Quarterly. Institute for Security Studies (Pretoria). Available at: (Accessed: November 13, 2022).
  5. Barit, S., du Toit-Prinsloo, L. and Saayman, G. (no date) Deaths due to police action and deaths in custody - a persistent problem in Pretoria, South Africa, SA Crime Quarterly. Institute for Security Studies (Pretoria). Available at: (Accessed: November 13, 2022).
  6. AFP / Jul 19, 2022 (no date) South Africa arrests 13 police officers over lockdown violence - times of India, The Times of India. TOI. Available at: africa-arrests-13-police-officers-over-lockdown-violence/articleshow/92988934.cms (Accessed: November 14, 2022).
  7. Shri Dilip K. Basu vs state of west Bengal & Ors on 24 July 2015 (no date). Available at: (Accessed: November 14, 2022).

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