Law

Maharashtra Has Strong Legal Provisions but Poor Implementation in Probing Custodial Deaths

A new rule mandating a judicial inquiry into every case of custodial death does not account for deaths reported between when the law was amended in 2006 and when the circular was issued in 2016.

Representational image. Credit: Sudhamshu Hebbar/ Flickr, CC BY-NC 2.0

Representational image. Credit: Sudhamshu Hebbar/ Flickr, CC BY-NC 2.0

In September, 35-year-old undertrial Suresh Kamble was declared dead at Buldhana General Hospital. Buldhana district prison concluded that a “headache” had caused Kamble’s death. Kamble had been brought to the jail just ten days prior to his demise. Charged under several sections of the Indian Penal Code for trespassing and causing hurt, he would have probably been sentenced to seven years of imprisonment.

A few days after Kamble’s death, a prisoner, Vikas Vavalvi, died in Nandurbar civil hospital due to “weakness” while another prisoner, Aakash Shigvane, died of “weakness and loose motions” in Mumbai’s JJ Hospital. As inexplicable as it may sound, all these deaths have been categorised as “natural deaths”.

However, since these deaths occurred after a circular was issued in July making a judicial inquiry mandatory in every custodial death, there is some chance that the real reasons for these deaths, along with 69 others, will be ascertained through inquires. This is the first time the state has been obligated to follow the law – 176 (1A) of Code of Criminal Procedure – that has existed for over a decade. However, this was not a voluntarily decision, but one imposed by the Bombay high court in May after hearing a case regarding the death of a person in a Mumbai police lockup in 2014. While the state’s prison department has finally decided to refer cases of custodial deaths hereafter for judicial inquiry, it does not change the fact that the department has virtually ignored the statutory process when it comes to the 1095 deaths that have occurred in the last decade.

In the circular, the government claims this step had to be taken following the Bombay high court’s order. This, after clearly disregarding section 176 (1A) of the CrPC for over a decade which made judicial inquiry mandatory into every case of death, missing person or rape that occurred in police or judicial custody. Along with this circular, the state prisons authority has also arbitrarily decided to not look into the other deaths that were reported between the time the law was amended in June 2006 and when the circular was issued in July 2016. Bhushankumar Upadhyay, additional director general of prisons in Maharashtra, feels it is “impractical” that the government body is expected to probe into all such cases.

Upadhyay said, “How can we look into past cases? It is not possible,” thereby, dodging accountability in over one thousand deaths.

Data from Maharashtra’s state prisons confirms 111 persons died this year, of which two were women and one a detainee. Barring two, which the record says were suicide cases, the remaining 109 people died of one illness or another. Going by the official data, most deaths were of a non-fatal nature and thus avoidable. The figures show 54% of those who died this year were undertrials. As most of them died just days after their arrests, it is highly probable that they were subjected to custodial violence either in police or judicial custody. But there is no way to ascertain this without independent inquiries to investigate each of these custodial deaths.

Why judicial inquiry?

The only publicly available data on deaths in prison is the one compiled and published by the National Crime Records Bureau every year. This data categorises deaths as “natural” and “unnatural”. In 2014, another column “uncategorised deaths” was created – an inscrutable category with no explanation attached. Unnatural deaths comprise suicide cases of suicides and murders committed by prison officials, inmates or deaths due to other external factors. Although the category itself is inadequate, it is still subjected to a few rounds of scrutiny both by the state and the judiciary. But it is the natural deaths which really go unexamined. No questions are raised about the ‘naturalness’ of these deaths purportedly caused by ‘headache’ and ‘weakness’. The reason, however frivolous, is the only thing taken into consideration by the prisons department in order to classify a person’s death as natural.

Prison experts have called the move for having judicial inquiries into custodial deaths well-thought out. Before the amendment to the law, these inquiries were to be conducted by an executive magistrate.

“The parliament sensed that there was an alarming rise in custodial deaths and international pressure was mounting on the government for a proper statute against torture and deaths in custody,” said Murali Karnam, a faculty at Tata Institute of Social Sciences. He also added that inquiry by the executive was considered insufficient for ensuring accountability, hence sub-section 1A was inserted into section 176 of the CrPC, making judicial inquiry mandatory.

Through this amendment, the parliament had expected to break the possibility and existence of any nexus between the police and other executive bodies. However, even ten years later, most states continue to evade judicial inquiry, especially in controversial cases, which directly points to the state’s negligence or direct involvement.

No inquiry means no prosecution, no accountability and no compensation for the families of the deceased. While approaching the National Human Rights Commission (NHRC) or courts directly could be an option, it becomes an inaccessible option for the families of most of the deceased inmates who come from impoverished communities. In the past, the NHRC has taken up suo motu cases and announced compensation, but rarely has it directed the state to prosecute the erring officers.

What prevented the state from conducting a judicial magistrate inquiry?

Unless explicitly informed – in the form of a circular – most legislations concerning accountability remain unimplemented. Even before the states adopted the amendment, the NHRC issued a ‘guideline’ in 2010 negatively impacting the statute’s effectiveness. In what appears to be a narrow reading of the section, the NHRC’s guideline stated, “When there is no suspicion or foul play or where there is no evidence or allegation of an offence, an inquiry by a Judicial Magistrate is not mandatory.”

The NHRC’s guidelines explained the “practical difficulties” in conducting such inquires. The commission sadly spoke more pressingly about the difficulties of states than the right to life of citizens behind bars. Stressing on the word “offence” as defined under section 176 (5) of the CrPC, the commission obfuscated the entire procedure and said a judicial inquiry was mandatory only when an offence was committed. This move, Karnam said, is seriously concerning.

He said, “When someone dies in an inaccessible custody of the state, how can family members of the deceased have any evidence to suspect the foul play? Doesn’t the state have the constitutional obligation to voluntarily come out clean? When it can imprison citizens, it is the state’s constitutional obligation to come out clean in case of death in its custody.” Also, the law was not amended just to find out whether any offence was committed, but also to identify procedural lacunae that could possibly lead to death. This cannot be identified unless independent inquiries are conducted.

Upadhyay said the NHRC guidelines caused confusion and his judicial officer S.N.Dhamal claimed that in several cases where they sought judicial inquiry; the district session judge felt it was not required. “Not just the prisons authorities, but also lower courts are yet not clear about the applicability of the section,” explained Dhamal.

In reality, most states, including Maharashtra, have been using this guideline as a shield against exposing their police and prison departments to any kind of legal scrutiny.

Prison mortality rate, a serious concern

To measure the intensity of the problem, another indicator is the Prison Mortality Rate (PMR). The PMR is calculated on the basis of number of deaths per one lakh prison population. The PMR for India was 314.4 in 2001, increasing to 406.6 in 2014. The PMR for Maharashtra was 384 in 2015. The gravity of the problem can be understood if we compare it with that of the US, which incarcerates 2.2 million prisoners yet records a PMR only of around 200.

Karnam says, “If the executive is made accountable for very commission and omission that resulted in these deaths, the prisoner mortality rate should come down.” In research he conducted in Andhra Pradesh prisons in 2006, Karnam found that “what is a simple and treatable ailment outside, turns out to be fatal inside prisons.”

This mismatch between the existence of good legal reforms and its poor implementation on ground has had a deep impact on the lives of prisoners. The executive has been reluctant to honour the law; the judiciary, the custodian of fundamental rights has not been able to give a clear direction despite the number of deaths; the rights commission has confused the situation instead of improving it and the civil society has remained a mute spectator. But the brunt of the failing system has been exclusively borne by the hundreds of prisoners who perish each year without a whisper.