Custodial Deaths and its Preventive Measures

Prachi Kumari, Student, Law School, BHU, Varanasi

As per Section 57 of the Code of Criminal Procedure, 1973, a police-officer cannot detain an accused person in custody for more than twenty four hours if he is arrested without warrant. Article 22 of the Constitution also mandates the arrested person to be produced before Magistrate within 24 hours.

In case, police-officer considers it necessary to detain such accused person for a longer period for the purpose of investigation, he can do so only after obtaining a special order of a magistrate under section 167 of the Cr.P.C. The object of these provisions is to enable the magistrate to keep check over the police-investigation and to protect the accused from unscrupulous police-officer.

Unfortunately, accused persons are not safe in police custody and are often found dead mysteriously despite these provisions. Following data reveals the story;

As per the data released by the National Crime Records Bureau, “There were 21 deaths in police custody of persons who were remanded to such custody by the Court during the year 2013. Magisterial enquiry was ordered / conducted in 11 of the reported incidents in 2013 and judicial enquiry was ordered/ conducted in 6 deaths during 2013.13 cases were registered against police personnel for such custodial deaths wherein no policeman was either charge-sheeted or convicted during the year ((National Crime Records Bureau, Crimes in India 2013, available at http://ncrb.gov.in/CD-CII2013/Chapters/13-Custodial%20Crimes.pdf)).”

Moreover, “There were 97 incidents of deaths in Police custody of persons who were not remanded to police custody by court 2013, showing an increase of 36.6% in 2013 over 2012. Majority of such incidents were reported in Maharashtra (34), Tamil Nadu (15), Uttar Pradesh (14) and Gujarat (13). These States together have accounted for 78.4% (76 out of 97 deaths) in country during 2013. Magisterial enquiry was ordered in 38 out of 97 such deaths reported and judicial enquiry was ordered in 30 incidents. A total of 48 cases were registered against police personnel wherein 1 policeman was charge-sheeted; however no policeman was convicted during the year 2013.”

Furthermore, “During the year 2013, in Karnataka 5 persons were arrested under custodial rape but due to want of evidence or other reason all 5 persons were released or freed before trial. However, Out of 4 under trial persons whose trials were completed during the year, all four persons was acquitted.”

This is, indeed, an alarming data as we see; most of the guilty policemen have been acquitted due to want of evidence. The Bombay High Court took note of abovementioned data and on 16 August 2014 ordered installation of CCTV cameras in Police Stations in order to collect evidence and prevent custodial deaths. The Division Bench comprising of V.M. Kanade, J. and P.D. Kode, J. directed that compliance report should be filed within four weeks. This data was referred by advocate Yugmohit Choudhary, who has been appointed as amicus curiae in all custodial death cases together.

I think installation of CCTV cameras is a good tool to collect evidence unless it is tampered. But, there are high chances of tampering with this recording. It is significant to note that the Bombay HC has made the senior police-inspector or in-charge of the police station responsible for ensuring that the CCTVs are operational. The police cannot be trusted to keep this recording safe in all the circumstances, since this footage may be used against police itself. Although, the footage goes in favour of police if it has been kind to the person in custody whose death has been caused by any other reason, it may go against police if it has been cruel to the person in custody. Therefore, something more should be added to make this tool tamper-proof. I have following suggestions:-

  • A district-level body should be constituted to monitor whether CCTV cameras are operational.
  • That body should consists of members who are either retired or working judicial officers and are persons of high moral character.
  • That body should be empowered to operate the control-room, and should manage live recording.
  • That body should be made responsible for preservation of recording.

Police is the machinery which controls crime. If crime takes place in police custody, then we must lean towards some other machinery to curb it. Therefore, I would suggest constitution of such body to monitor CCTV footage, which consists of members other than police officers.

Author’s Special Rights

Author: Abhinav Gaur, Research Associate

It was in the eighteenth century that a view that an author of the work shall have an exclusive copyright in his work which he has come up with using his own intelligence and creativity. Since, before the eighteenth century the publishers considered themselves under a major risk as they acquired work from the author and did its printing and publishing. This was time which led to a huge conflict on the concept of ownership and authorship of a work ((W.R. Cornish, “Intellectual Property: Patents, Copyright, Trade Marks and Allied Marks,” (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2003), 2nd Indian Reprint, at 297.)). Then statutory rights were made available to the author of the work to protect his rights and creations, vested in his work.

In India, the copyright in differentworks has been given to its creators bylaw governing the copyright. After independence of India, the Copyright Act of 1957 confers copyright or an ‘exclusive right’ to the author of the work. The Act explicitly provides that no copyright exists in any work, other than provided in the Copyright Act ((Section 16 of the Copyright Act, 1957)).

Copyright is a very distinct and unique kind of intellectual property right as it is produced out of a human intellect and comes into existence as soon as it is created. The copyright law does not require that the intellectual investment in a work must necessarily be absolutely original; rather, the standard of originality required for copyright is low ((Jagdish Prasad Gupta v. Parmeshwar Prasad Singh, AIR 1966 Pat. 1965.)).” The primary function of copyright law is to protect the fruits of man’s work, labor, skill or test from annexation by the other people ((Sulamanglam R. Jayalakshmi v. Meta Musical (AIR 2000 Mad. 454).)). There can be no copyright in an idea, subject matter, themes, plot or historical facts ((R. G. Anand v. Delux Films (AIR 1978 SC 1613).)), but it’s the expression which is of greater value.

AUTHOR’S SPECIAL RIGHTS

It is not just the economic safeguard against a property or material that is important for any author but also such person’s own moral rights and reputation in society that is more important than any materialistic consideration.

Justice Nandrajog has very beautifully said in a very prominent judgment ((Amar NathSehgalvs Union Of India (Uoi) And Anr., 2005 (30) PTC 253 Del)), “In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights”.

Author’s special rights ((P.P. Prabhakarvs Secretary, Government Of India, 1986 (2) Crimes 570, 29 (1986) DLT 248))are also known as moral rights; these rights protect the morals and repute of an author. Section 57 of the Copyright Act, 1957 provides for what are termed as “Author’s Special Rights. Established on Article 6bis of the Berne Convention, moral rights have two key elements:

(1) Right to claim authorship of the work (sometimes referred to as Rights of Attribution/Paternity Rights), and;

(2) Right against distortion, modification or mutilation of one’s work if such distortion or mutilation would be prejudicial to the author’s honor or reputation (or “Integrity Rights”).

The author of the work has the right to preserve and protect his moral rights. The protection guaranteed by the moral rights, yet, is different from the economic rights. Whereas the economic rights protect the economic interests of theauthor by preventing others from exploiting the work without the consent of the author, the moral rights focus on the protection of the author’s personality and repute in the society he stays in.

Section 57 of the Copyright Act strongly adheres to this observation and protects the moral rights along with the right of the author to claim authorship in the work, or in other words the right of paternity asAuthor’s Special Rights. As amended by the Copyright (Amendment) Act, 2012, Section 57 gives the author of the work a right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work.

FEW JUDICIAL PRONOUNCEMENTS

In the case of Wiley Eastern Ltd.v. Indian Institute of Management ((1995 PTR 53 (Del.).)), the Hon’ble court held that the words “Action prejudicial to his honor orreputation” under Section 57 (1) (b) refers only to the author of the work and not to any other person related with the work in any manner. Section 57 is a special provision for the protection of the special rights of the author. The object of the section is to put the intellectual property on higher footing than the normal objects of copyright. Further, that the language used in Section 57 is of widest amplitude and cannot be restricted to the literary’ expression only and also covers other expressions such as visual and audio manifestations, as was held in the case of Mannu Bhandariv. Kala Vikas Pictures Pvt. Ltd ((AIR 1987Del. 13)).

Also, in the case of Amar Nath Sehgalv. Union of India ((2005 (30) PTC 253 Del))the issue of moral rights was substantially discussed. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Sehgal, sued for violation of his moral rights. The court observed: “These [moral] rights are independent of the author’s copyright. They exist even after the assignment of the copyright, either wholly or partially.”

Furthermore, the case of Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr ((AIR 1987Del. 13))elaborated upon scope of Section 57 and observed that “Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright…” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”