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'Probe All Custodial Deaths, Not Just Suspicious Cases': NHRC Revokes Its 2010 Order

The 2010 NHRC order limited the scope of inquiry to only cases where there was reasonable suspicion of foul play, resulting in a scenario where most cases were registered as 'natural' deaths.

New Delhi: Overturning its 2010 order that limited the scope of inquiry into custodial deaths to only cases where there was reasonable suspicion of foul play, the National Human Rights Commission (NHRC) has made inquiry into all cases of custodial deaths, including natural deaths or deaths relating to illness, mandatory, according to a Hindustan Times report.

Although the latest order was issued to all states and the Central governments in September 2020, it had not been made public thus far. According to experts, the latest order ensures that a diligent enquiry is carried out into all cases of custodial deaths, which earlier more often than not were registered as natural deaths or due to an illness, giving the police a free run. Judicial magistrates or metropolitan magistrates are now mandated under this order to conduct an inquiry.

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The latest order can be seen as correcting a wrong on the part of NHRC that resulted from its misinterpretation of Section 176 (1A) of the Code of Criminal Procedure (CrPC), inserted in the statue in 2005.

While the said section mandates an inquiry by a judicial magistrate or metropolitan magistrate in cases of death, rapes and disappearances in custody, a full bench of NHRC on April 5, 2010, misread the law and issued an order stating that “when there is no suspicion or foul play or where there is no evidence or allegation of an offence, an enquiry by a judicial magistrate is not mandatory”.

National Human Rights Commission, New Delhi. Photo: PTI

This has had serious repercussions that led state police forces to register most of the custodial deaths as natural deaths or suicides. The figures of custodial deaths registered in 2019, as per the National Crime Records Bureau, indicates this worrying trend.

Of the total 85 cases of custodial deaths in 2019, 33 were recorded as suicides and 36 due to illnesses. Only two deaths were recorded due to physical assault in the police custody. Similarly, almost 70% of deaths in police custody in the past decade (out of a total 1,004) were attributed to illness, suicide or death from natural causes.

In order to right the wrong, NHRC full commission, under its former chairperson H.L. Dattu in September 2020, withdrew the 2010 order.

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NHRC’s full commission, led by Dattu, observed the anomaly in the 2010 order and decided to withdraw it. “…in three circumstances viz. death, disappearance or rape alleged to have been committed on any woman within the police or judicial custody, there must be an inquiry to be conducted by the Judicial Magistrate or Metropolitan Magistrate, in whose jurisdiction, the incident has taken place,” the latest order read, according to the Hindustan Times report.

The order categorically told the law enforcement agencies that the NHRC September 2020 order should be followed in toto and cannot be diluted with the qualifier that an inquiry would be commissioned only in the cases of custodial deaths with “suspicious circumstances”.

Dattu, who completed his five-year tenure as NHRC chairperson in December 2020, told the national daily that the commission was receiving several complaints stating that investigation was not being ordered into several custodial deaths citing ‘natural death’ and ‘death due to illness’. It was then, he said, the commission had decided to make amends for the 2010 order and to ensure that the spirit of Section 176 (1A) was followed.

Meenakshi Ganguly, South Asia director at Human Rights Watch (HRW), told HT that in most cases to cover-up the abuse of power on the part of the police, deaths were being recorded as ‘natural’. Ganguly also said it is important there is a course correction.