“No one can truly know a nation until one has been inside the jail. A nation should not be judged by how it treats its highest citizen but its lowest one.”
One of the most dangerous cocktails in a democracy is when those who are meant to enforce the law take the law into their own hands.
Custodial violence involves torture, death, and other excesses. Abuse of power by police authorities is not only applicable to certain countries or states but is a worldwide phenomenon. I’m sure many of you have thought you were in the most miserable place on Earth. Whether it was elementary school as a child, a bad job, or just a bad day, you have probably felt at some point like you were in the unhappiest spot imaginable. But unless you were in prison and being treated inhumanly, you weren’t scientifically correct. Custodial violence is a fearful, incurable thing, so horrifying that you dare not mention it. People who have been a part of this don’t want to hear the word spoken aloud for fear that they might too be afflicted or it might tempt fate into visiting a similar horror upon them.
It is observed by the law commission that the majority of the victims of custodial death and violence are the poor and the weak. They are illegally detained and harassed.it is said: “when every card in the deck is stacked against you, the only way to win a hand is to break the rules.” This doesn’t apply with the victims but surely it does apply with the authorities in charge. Facts and pieces of evidence against police officers are often manipulated to save them. Police officers need to know that they are not superior just because they see the world in an odious light. We should be thankful that we are living in the 21st century where people and press have become more vigilant. Hence the custodial death cases are more frequently exposed and taken to the court.
Article 21 of the constitution says that no person shall be deprived of his life or personal liberty and according to article 22, no person who is arrested shall be detained in custody without being informed on the ground of his arrest. He has the right to consult the legal practitioner of his choice. Every arrestee has to be produced before the nearest magistrate within 24 hours of his arrest.
Courts are intolerant on custodial violence and award heavy compensation in case of custodial death or custodial torture.
JUDGMENT THAT CHANGED INDIA
NILBATI BEHERA V. STATE OF ORISSA
It was a case involving the high-handedness of Orissa police officials that provided the supreme court an opportunity to systematically analyze the right to seek the compensation for infractions of Article 21. In this case, the court took a simple letter sent by Nilabati Behera to the supreme court stating that her twenty-two-year-old son Suman Behera had died in police custody and converted it into a writ petition.
The Orissa police had arrested Suman for allegedly committing a theft. Barely a day after he was taken into custody, his dead body was found near a railway track. The lacerations on his body suggested that he had died an unnatural death. His mother sought compensation, claiming that the police had violated her son’s right to life under Article 21.
The court distinguished between the ‘public law’ remedy of compensation for the violation of fundamental rights from ordinary remedies via private law proceedings like civil suits. The court also took into account ‘sovereign immunity’ on account of which the state and its officers are immune from legal proceedings relating to any act done in the exercise of the state’s ‘sovereign functions.’ In NILBATI BEHERA, the court asserted that the
sovereign immunity defense would not be available in public law proceedings under Article 32 or 226 of the constitution, though it could apply to proceedings in private law involving torts committed by the state.
The Supreme Court directed the respondent State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as to be paid to the Supreme Court Legal Aid Committee.
"Justice is the bread of the nation, it is always hungry for it."