Acknowledgement

Put your heart, mind, intellect and soul even to your smallest acts. This is the secret of
success.
~Swami Sivananda
I would like to take this opportunity to offer my acknowledgements to all those who
helped me during the course of this project. I thank profusely, Ms. Nida Naqvi, my
teacher and guide, without whose supervision this project would not have been a
success. Indeed, the experience has been insightful and most often, thought provoking.
A deeper understanding of such a contemporary issue has enriched my knowledge.
I also wish to express our gratitude to the all library staff for their patience and
cooperation in helping us find the apt research material and being generous with the
due dates. My thanks further extend to all my other sources of information and of
course, to my friends and seniors, without whose insightful thoughts and relevant
criticisms, the project would not have been complete.
I also hope that I will be provided with similar opportunities to work on such other
interesting topics in the future.

U. Saravna Vasanta,
5th Semester, Section A,
Faculty of Law, JMI

Contents
Introduction3
Origin and Growth of Custodial Violence.5
o Historical Perspective..5

Modern Era7
- Colonial Period7
- Post-Independence Era9

Methods Of Torture..13
Effects Of Custodial Torture....14
Statistical Overview.14
Role Of Law.....16
Remedies Against Custodial Torture...17
o Legal Regime.17
Constitutional Safeguards....17
Other Statutory Safeguards..19
o Judicial Response...20
o Other Authorities24
Preventive Measures.24
Conclusion26
Bibliography.28

Introduction
Torture is wound in the soul so painful that sometimes you can almost touch it, but it is
also so intangible that there is no way to heal it. Torture is anguish squeezing in your
chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture
is despair and fear and rage and hate. It is a desire to kill and destroy including
yourself- Adriana P. Bartow
Custodial torture ranging from assault of various types to death by the police for
extortion of confessions and imputation of evidence are not uncommon. Such a method
of investigation and detection of a crime, in the backdrop of expanding idea of humane
administration of criminal justice, not only disregards human rights of an individual and
thereby undermines his dignity but also exposes him to unwarranted violence and torture
by those who are expected to protect him.1
In India where rule of law is inherent in each and every action and right to life and
liberty is prized fundamental right adorning highest place amongst all important
fundamental rights, instances of torture and using third degree methods upon suspects
during illegal detention and police remand casts a slur on the very system of
1 K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal
Justice Process in India, (Eastern
Book Company, Lucknow, 1st Edition, 2004) p. 219.

administration.2 Human rights take a back seat in this depressing scenario. Torture in
custody is at present treated as an inevitable part of investigation. Investigators retain the
wrong notion that if enough pressure is applied then the accused will confess. 3 The
former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse
than terrorism because the authority of the State is behind it.4
It is a paradox that torture continues to exist in India. This is because India is a liberal
2
The Sikh Coalition, Custodial Deaths in Punjab; 1997-2001,
http://www.sikhcoalition.org/HumanRights4.asp (Visited on
November 7, 2015).

3
Asian Human Rights Commission, INDIA: Government of Kerala must
criminalise torture to prevent
custodial deaths,
http://www.ahrchk.net/statements/mainfile.php/2006state ments/688/
(Visited on
October 23, 2015).

democracy with very clearly articulated constitutional and statutory provisions against
torture that are constantly being developed and monitored by a strong and independent
judiciary. This raises the question: how does torture continue to persist in India?
The crudity of criminal investigation is often blamed on the crudity of resources: the
lack of scientific equipment and professionally-trained persons to do the job properly.
Although this is an element in the problem, it is not the central one. More important is
the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for
want of laws criminalising and punishing custodial torture, and also due to corruption
and the wanton degeneration of courts and other institutions for the maintenance of law
in India. Where a torture victim must wait for years in hope that a judge may one day
take up his/her case, while meanwhile the perpetrator is being promoted, the very
concept of justice is undermined.
Custodial torture is universally held as one of the cruellest forms of human rights abuse.
The Constitution of India, the Supreme Court, the National Human Rights Commission
(NHRC) and the United Nations forbid it. But the police across the country defy these

The Hindu, Custodial Torture Worse than Terrorism,

http://www.thehindujobs.com/thehindu/2003/07/27/stories/200307270
3510500.htm (Visited on October
23, 2010).

institutions. Therefore, there is a need to strike a balance between the individual human
rights and societal interests in combating crime by using a realistic approach.5
Custodial violence, perhaps one of the worst crimes in a civilized society is a matter of
concern for many reasons. Custodial violence, including torture and death in the lockups, strikes heavy blow at the rule of law which demands that the powers of executive
should not only be derived from law but also that they should be limited by law. The law
of arrest expects both individual rights and the states collective responsibility towards
the society. In most scenarios it becomes a challenge to strike a perfect balance between
both. Transparency of action and accountability are two possible safeguards to prevent
any abuse of power to arrest a citizen. Custodial violence broadly includes custodial
deaths, torture and as per the new trend in the crime pattern even custodial rapes.
Custodial Violence in India is widespread, unaccounted for and rarely prosecuted. It
contributes to the state of anarchy and lawlessness in many parts of the country.
Violence is used as a cheap and easy method of investigation and also as a tool for
oppression. It is almost an unwritten understanding that when an officer asks his
subordinates to thoroughly interrogate a suspect it would simply mean torture.

Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.

In the case of D. K Basu v. State of West Bengal6, the highest body of justice, the
Supreme Court had clearly stated that, Custodial torture is a naked violation of human
dignity. The situation is aggravated when violence occurs within the four walls of a
police station by those who are supposed to protect citizens, also paying consideration
to the tediousness of police task in yielding control over its civil population. Human
Dignity is the highest form of fundamental right respected even by our most powerful
and prestigious statute book, the Indian Constitution. When an individual is taken under
custody it means that he/ she becomes the legal property of the state, which also means
the state, and its missionaries become their legal guardians and all its institutions are at
their disposal to reprimand them as well as guard them. But the idea of state custody has
become so alarming that the society fears cooperation and even the notion of police and
police stations.

Origin

And

Growth

Of

Custodial

Violence
Historical Perspective:
Custodial violence, which includes torture, death and other excesses in police custody or
prison, is not a new phenomenon. It has been in the world for ages. The law enforcement
6

AIR 1997 SC 610.

agencies had been practicing this on prisoners, criminals and the wrongdoers. Even in
ancient Indian history, we find ruler like Nanad Mahapadam in Mauryan era who had
put the entire family of Chandra Gupta Maurya into prisons and only as much food was
provided to entire family which was sufficient for survival of one person only. Kautilya
in Arthsastra, speaks about various kinds of torture such as burning of limbs, tearing by
wild animals, trampling to death by elephant and bulls, cutting of limbs and mutilation

etc.7 During the Gupta period (A.D. 320-500 A.D.) trial by ordeal was common. 8 In the
post Gupta period, torture of prisoners became a method of punishment.9
In the Mohammedan period the Shariat, law was applied to crimes; a thief hands to be
cut off; life for life; tooth for tooth was the basic principle of Muslim criminal
Jurisprudence which is still followed in Islamic country. The British Raj was also
notorious for using violence in police custody. Men, women and children were caught,
7

S.K Ghosh: Torture and Rape in Police Custody (An Analysis), 1993,
p.15.

Ibid.

beaten and tortured to make them confess to crimes, which they did not commit. During
this period political workers were picked up for questioning and if they did not provide
the desired reply they were subjected to torture.10 The naked lying on ice, the denial of
food or insufficient quantity of food, excess physical work and physical beatings were
some of the methods employed during British Rule to punish law breakers mostly
political prisoners and workers.

G.P. Sinha : Post Gupta Polity (A.D. 500-750), 1972 p-186.

10

Prakash Chandra : Usually unexpectable face of the Indian Police :

The sentinel (Himachal Pradesh)
24, April 1992.

10

One important point, which needs to be mentioned, is that the perpetrators of atrocities
and immoral acts were the servant of the foreign Government. Their judiciary, police,
jails and all the laws were made for their own benefit and convenience. But we in
independent India follow the same model and the same penal code without many
amendments. Our police system is same which was prevalent during British system. It
was introduced by Britishers; in the year 1861 primarily to enable their administration to
have at their disposal a force at a cheap cost to help them rule the country by suppressing
anti governmental forces and guided by such an objective the police became the symbol
of colonial repression and were for obvious reason hated by the masses. 11 The Prison
Act, which was passed in 1894, has also remained unchanged. The Act gives vast
power to jail officials to punish prisoners if they break jail rule. Probably mind set of
peoples as well as police and rulers i.e. executives both political and bureaucracy has
remained same only power has been transformed from foreign ruler to our native ruler.
The phenomenon of custodial crime is not new in India. We had reference of Torture and
violence with the police in India, even since the Vedic age (2000-1400 B.C.). The
ordeals of fire, water an single combat were used. In the Epic period (1400-800 B.C.)
torture was practiced on prisoners by the police. Torture in various forms was widely
prevalent in age of laws and philosophy (800 B.C. -320 B.C.). Kautilyas Arthashatra
speaks about various kinds of torture such as burning of limbs, tearing by wild animals,
tramping to death by elephants and bulls, cutting of limbs and mutilation etc. Manu, the
11

Dishit, Giri Raj and Aggarwal : Police & Community (1993), p.17.

11

law giver of this age emphasized the necessity of torture to protect the society from the
hands of the criminals. The Buddhist period (B.C. 300-300 A.D) was an age of great
humanitarianism and administration of justice had become correspondingly imbued with
the humanitarian ideals. Torture in any form was strictly forbidden and special favours
were shown to prisoners, who happened to be women, aged or who had many
dependents. In Gupta Period (A.D. 320-500) if the facts against prisoners were not
clearly established by evidence, recourse was to be held to the four kinds of ordeals, trial
by ordeal fairly common. Under the Mughals, no criminal or civil code existed. Torture
to extort confession was widely spread (Ghosh and Rustomji 1993).

Modern Era:
In modern era, violence especially by those persons in authority who have power to keep
a person in custody is a great concern, of the society. The incidence of custodial violence
as well as other atrocities affect the law and order fabric, peace, tranquillity and the life
pattern of the mainstream population, repeated occurrence of heinous crime against
those person who are in custody have, wider impact in people's mind. The victim of
these, violence, are mainly ordinary men and women belonging to the socio-economy
disadvantage strata of the society. Those who have neither will nor resources to oppose
such inhuman treatment meted out to them in custody. They have been deprived of their
basic fundamental right i.e. right to life.

Colonial Period:

In their earlier years of rule the British found the torture used by officials including
Kotwals was prevalent resulting deaths sooner or later. The Select Committee on East
Indian Affairs (1832) found that had discussed the routine use of torture, There is ample
evidence that colonial administration was aware about excessive pain by revenue and
police officials used purposely to extort confessions, money or taxes (Rao 2004).
Torture Commission (1855) appointed by British Government for investigation of
alleged cases of torture in Madras Presidency in its report highlighted that police torture
was quite prevalent in the Madras Presidency. Torture Commission defines the word
torture means as pain by which guilt is punished or confession extorted. The report
drawn attention to the fact that torture is a structural problem of policing, rather than

12

aberrant and extraordinary instances. The recommendation of the torture commission

has laid foundation to set up Police Commission, 1860.
The Police Commission, 1860 recommended the abolition of the military police as a
separate organization and the constitution of a single homogenous force of civil
constabulary under proposed Police Act, 1861. It is noteworthy to mention that present
police system in the country is based on Police Act, 1861. Subsequently, enactments of
criminal law and procedure namely Indian Penal Code, 1860, Indian Evidence Act, 1872
and Indian Code of Criminal Procedure, 1898), had incorporated various sections such
as 162,163,172 and 173 of the Code of Criminal Procedure read with sections 24 and 25
of the Indian Evidence Act prohibited any form of torture of a person under interrogation
along with sections 330 and 331 of the Indian Penal Code which made punishable to
causing hurt or grievous hurt to extort confession or information in the custody of police.
The Indian Police Commission (1902-03) had scrutinized the performance of the police
after forty years of the working of Police Act, 1861. The Commission found that The
police force is far from efficient; it is defective in training and organization; it is
inadequately supervised ; it is generally regarded a corrupt and oppressive; and it has
utterly failed to secure the confidence and cooperation of the people The Commission
concluded that the police force throughout the country was in a most unsatisfactory
condition, that abuses were everywhere and this involves great injury to the people and
discredit to the Government and those radical reforms felt unavoidable and urgently. The
landmark recommendations by the Commission were that the educated Indians to be
recruited in the police force at higher level and law and order wings separates from
investigation wing, a cadre for Sub-Inspector of police at police station and Criminal
Investigation Department ( CID) at state levels. Presently, the police sub-inspector cadre
at the police station level based on the recommendations of Indian Police Commission.
However, in the following decades, the growth areas of freedom movements such as
Swadeshi Movement and the Home Rule agitation, Non-Cooperation and Khilafat, Civil
Disobedience and Quit India Movements, the phases of labour unrest and the emergence
of a communist backed Kishan movement and rural insurrection deposed to favour
coercive solutions rather than investigative grievances by colonial government (Arnold
1986).

13

Post-Independence Era:

After Independence, several Police Commissions were appointed by Union and State
Governments to look into the performance and methods of working of the State Police
during 1950s, 1960s, the early 1970s and 1980s1. All most all these Committees and
Commissions had revealed the tale of third degree or torture in police custody due to
political ends, practice of corruption and lack of infrastructure support of scientific aids
and training etc. The recommendations of most of these Commissions were mainly
concerned with the details of the administrative set up, the strength of the Police Force
in different wings of the system, the relationship between Police and the Principal
District Collector, pay and allowances for the Police in different ranks, qualifications for
recruitments, setting up of training centers and the like.
Shah Commission (1978) observed the police brutality on a wide range during the
emergency from 1975 to 1977. The Commission drew attention of the Government that
the way police behaved during the emergency as they were not accountable to any public
authority. In its recommendations, the Commission told to the Government to take
measures to insulate the police from illegitimate political and executive interference.
The National Police Commission (1979-81) has examined in details the issues
pertaining to police functioning inter alias in eight reports. In its first report, the
Commission observed:
Police are frequttly criticized for their use of third degree methods during investigation
while examining suspected or accused persons. Police brutality in their handling
suspect is referred to in some context or the other in the literature on police forces in
several countries of the world, and the Indian Police is no exception. Interrogation of a
person, whether he be a witness or suspect or accused, is a difficult and delicate
exercise for any police officer and calls for enormous patience and considerable
understanding of human psychology. Unfortunately several police officers under
pressure of work and driven by a desire to achieve quick results, leave the path of
patient and scientific interrogation and resort to the use of force in different forms to
pressure the witness/suspect/ accused to disclose all the facts known to him. While law
recognizes the need for use of force by the police in the discharge of their duties on some

14

specified occasions like the dispersal of the a violent mob or the arrest of a violent bad
character who resists the arrest, etc., the use of force against an individual in their
custody in his loneliness and helplessness is a grossly unlawful and most degrading and
despicable practice that requires to be condemned in the strongest of terms and we do
so. Noting is so documenting as the conduct of police in practicing torture of any kind
on a person in their custody.
The National Police Commission recommended that there should be mandatory judicial
inquiry in cases of deaths and rapes in police custody. The judicial inquiry should be
held by an additional Session Judge nominated for this purposes in every district by the
state government in consultation with the High Court. The nominated judge would be
designated as the District Inquiry Authority (DIA) and assisted by assessor. The DIA
shall send the report of the inquiry to the State Government. It will be mandatory on the
part of government to publish the report and decisions taken thereon within two moths
of receipt of the report. The DIA shall also serve as an independent authority to oversee
the ultimate disposal of complaints dealt with departmentally. To oversee the satisfactory
implementation of the entire scheme, a public complaints Board should be set up that
State level. At district level, surprise visits to police stations and similar units by the
senior officers would help the immediate detection of person held in custody and subject
to ill-treatment. Malpractices, if any, noticed during such visits should be met by swift
and deterrent punishment. Unfortunately, the valuable recommendations of the National
Police Commission were overlooked by the government (First Report of National Police
Commission, 1979).
Rebeiro Committee (1998) examined the relevance of valuable recommendations of the
National Police Commission in changing environment in the country. The Committee
recommended setting up of the Police Performance and Accountability Commissions at
the State level, constitution of a District Complaint Authority to examine the complaints
from the public of the police excesses includes arbitrary arrests and detention, false
implications in criminal cases and custodial violence. Further the Committee
recommended separation of investigation functions from law and order work and
replacement of the Police Act, 1861 with a new Act etc.

15

Padhmanabhaiah Committee on Police Reforms (2000) was constituted to study, inter

alia, recruitment procedures for the police force, training, duties and responsibilities,
police behaviors, police investigation and prosecution. The Committee observed that
every Commissions and Committees in the past have repeatedly stressed the need for
better utilization of scientific aid in investigation and to reduction of custodial violence.
However, the state of forensic science in India and its use by police in investigation of
crime are both in a pathetic state. Therefore the Committee recommended that every
police station should be equipped with investigation kits and every sub-division should
have a mobile forensic science kits.
The Committee on Reforms of the Criminal Justice System (2003) highlighted
various issues associated to the criminal justice system in general and police system in
particular. The Committee has examined the fundamental principles of the functioning of
the Criminal Justice System such as Right to Silence, Rights of the Accused,
Presumption of Innocence and burden of proof, Justice to the victims to crimes etc in
details. The Committee observed:
Manner in which police investigation are conducted is of critical importance to the
functioning of the criminal justice system. Not only serious miscarriage of justice will
result if the collection of evidence is vitiated by error or malpractice, but successful
prosecution of the guilty depends on thorough and careful search for truth and
collection of evidence, whether for or against suspect. Protection of the society being of
paramount consideration, the laws, procedures and police practices must be such as to
ensure that the guilty are apprehended and punished with utmost dispatch and in the
process the innocent are not harassed. The aim of investigation and in fact, the entire
criminal justice system is to search for truth. To achieve this objective, the investigating
officers must be properly trained and supervised and necessary scientific and logical
support should be made available to them.
The Committee further observed, If tortured, an accused should have the freedom to
apprise the Magistrate of the incident, when produced before him. In such cases, the
magistrate can remand him to judicial custody. This should be true of any violence or
sexual offence perpetrated against an accused person in custody. In all such cases, there
must be a detailed inquiry. The Committee recommended Audio/ video recoding of
16

statements of witnesses, dying declarations and confessions should be authorized by law.

Interrogations Centers should be set up at the District Headquarters, in each District,
where they do not exist, and strengthened where they exist, with facilities like tape
recording and or videography and photography etc.
However, the Committee on Reforms of Criminal Justice system (Malimath
Committee) report met with several criticism by the Amnesty International India and
International Commission of Jurists, 2003) including other human rights organizations in
the country. The Apex Court passed the ruling in 2006 that is now a historic judgment on
police reforms known as the Prakash Sigh vs. Union of India 12. The Judgement deals
with three aspects of policing -autonomy, accountability and efficiency. The court held
in discharge of our Constitutional duties and obligations having regard to the aforenoted
position and issued the following directions to the Central Government, State
Governments and Union Territories for compliance till framing of the appropriate
legislations: National Security Commission, State Security Commission, Selection and
Minimum Tenure of DGP, Minimum Tenure of I.G. of Police & Other Officers,
Separation of Investigation, Police Establishment Board and Police Complaint Authority.
In this regard, the Government of India, having visualized the long felt need to replace
the outdated Police Act 1861, set up a Police Act Drafting Committee (PADC) in
September 2005 to draft a new Police Act that could meet, inter alia, the growing
12

Writ petition ( civil- No. 310 of 1996, 22-9-2006).

17

challenges to policing and to fulfill the democratic aspirations of the people. In drafting
the Model Police Act, 2006 the Committee was guided by the need to have a
professional police service in a democratic society, which is efficient, effective,
responsive to the needs of the people and accountable to the Rule of the Law. The Act
provides for social responsibilities of the police and emphasizes that the police will be
governed by the principles of impartiality and human rights norms, with special attention
to protection of weaker sections of society including minorities. It also contains a
provision that the composition of the police will reflect social diversity. The other salient
features of Model. Act include Fuctional Autonomy, Encouraging Professionalism,
Accountability Paramount, Improved Service Conditioned and Role of Protecting
Internal Security In light of New Threats.
The State Governments have started taken actions as pert of the Supreme Courts
directions and PADC drafted new Police Act. As of June 2007, Assam, Bihar, Haryana,
Himachal Pradesh, Karnataka, Kerala, Rajasthan and Tripura have enacted draft police
legislation and many states Andhra Pradesh, Chhattisgarch, Jammu and Kashmir,
Jharkhand, Orissa, Punjab, Sikkim, Tamil Nadu and West Bengal were in the process of
drafting. Goa, Gujarat, Madhya Pradesh, Marahashatra, Manipur, Mahayana, Anrunachal
Pradesh, Mizoram, Nagaland, Uttar Pradesh and Uttarakhand have not complied with
the order of the Supreme Court ( CHRI 2007; ACHR 2008). Most recently , the 5th
Report of Second Administrative Reforms Commission ( 2007) on Public Order and The
Draft Report of the National Policy on Criminal Justice System (2007) emphasized that
the issue of Custodial violence needs to look upon very seriously and dealt with
seriously and with promptitude with a view to eliminating this malaise from the system.

Methods Of Torture
Most common methods of torture applied are: Prolonged solitary confinement, Solitary
confinement coupled with coercive and harsh treatment, Physical assault with or without
marks of violence, Overcrowding of an outrageous nature in rooms reaching to the
extent of intermingling persons under custody with mentally ill persons or with sexual
offenders or with opposite sex or with sadistic senior students, Outraging the modesty of
women under custody, Torture of children in front of parents and vice versa, Lack of

18

sanitation. With this degree of ill treatment it is not only the guilty that confesses but
even an innocent would succumb.

Effects Of Custodial Torture

As torture continues a perverted intimate relationship develops between the victim and
the torturer leading to a feeling of dependence, helplessness, fear and finally to the
breakdown of any vestige of resistance on the part of the victim. This process is aptly
named as DEMOLITION. Confessions are made at this stage. Some prefer death and
find some way to it before this stage. Few are killed accidentally or deliberately and
afterwards disposed off. Even if they are freed from the torture the after- math and the
repercussions are tremendous physically as well as psychologically it definitely would
vary from person to per- son and the methods adopted. Depending upon the methods
used external marks of violence may be absent in comparison to internal injuries.
Certain techniques may not show external scars but the internal damage may be sever
and to the vital organs. Certain psychological reactions noted by mental health experts
were Post traumatic stress disorder characterized by re-experience of the trauma,
flashbacks, emotional numbness, avoidance of contact with the outer world with the fear
of revoking the past and major depression characterized by a low self esteem, loss of
interest an suicidal tendencies.

Statistical Overview
The NCRB Report:
As per the NCRB publication, Crime in India 2012 edition, the number of complaints
reported against police personnels were 57, during the year 2012, out of which 2,289
cases were registered and 42 police personnel were convicted. The highest number of
complaints per 100 Policemen was reported from Delhi (17.0) followed by Madhya
Pradesh (14.7) and Chandigarh (10.1) against the National average of 3.7 during the year
2011. 205 cases of Human Rights Violation by Police were reported out of which 19
were charge-sheeted. The highest number of Human Rights Violation by Police was
19

reported in Assam (102 cases). The total incidences of custodial deaths reported all over
India was 109, in 7 cases out of which charge sheet was filed against the policemen for
involvement in custodial violence but none were convicted. 1 case of Custodial Rape
was reported in the country were as 24 cases of custodial deaths were reported as
suicide.

The NHRC Report:

The custodial violence trend as per the NHRC Annual Reports for the decade (20012011) states as follows- From 2001 to 2010, the National Human Rights Commission
(NHRC) recorded 14,231 i.e. 4.33 persons died in police and judicial custody in India.
This includes1,504 deaths in police custody and 12,727 deaths in judicial custody from
2001-2002 to 2009-2010.1 A large majority of these deaths are a direct consequence of
torture in custody. These deaths reflect only a fraction of the problem with torture and
custodial deaths in India. Not all the cases of deaths in police and prison custody are
reported to the NHRC. The NHRC does not have jurisdiction over the armed forces
under Section 19 of the Human Rights Protection Act. Further, the NHRC does not
record statistics of torture not resulting into death. Torture remains endemic,
institutionalized and central to the administration of justice and counter-terrorism
measures. India has demonstrated no political will to end torture.
Maharashtra recorded the highest number of deaths in police custody with 250 deaths;
followed by Uttar Pradesh (174); Gujarat (134); Andhra Pradesh (109); West Bengal
(98); Tamil Nadu (95); Assam (84); Karnataka (67); Punjab (57); Madhya Pradesh (55);
Haryana (45); Bihar (44); Kerala (42); Jharkhand (41); Rajasthan (38); Orissa (34);
Delhi (30); Chhattisgarh (24); Uttarakhand (20); Meghalaya (17); Arunachal Pradesh
(10); Tripura (8); Jammu and Kashmir (6); Himachal Pradesh (5); Goa, Chandigarh and
Pondicherry (3 each); Manipur, Mizoram and Nagaland (2 each); and Sikkim and Dadra
and Nagar Haveli (1 each). Uttar Pradesh recorded the highest number of deaths in
judicial custody with 2171 deaths, followed by Bihar (1512); Maharashtra (1176);
Andhra Pradesh (1037); Tamil Nadu (744); Punjab (739); West Bengal (601); Jharkhand
(541); Madhya Pradesh (520); Karnataka (496); Rajasthan (491); Gujarat (458); Haryana
(431); Orissa (416); Kerala (402); Chhattisgarh (351); Delhi (224); Assam (165);
Uttarakhand (91); Himachal Pradesh (29); Tripura (26); Meghalaya (24); Chandigarh

20

(23); Goa (18); Arunachal Pradesh (9); Pondicherry (8); Jammu and Kashmir and
Nagaland (6 each); Mizoram (4); Sikkim and Andaman and Nicobar Islands (3 each);
and Manipur and Dadra and Nagar Haveli (1 each).
These are the figurative statistics while the realities in many in- stances are far beyond
any recorded numbers. A 2011 publication by Asian Centre for Human Rights of
Torture in India 2011 painted a variation in picture of the grave situation. Though the
NHRC functions basically for Human Rights Violation many occasions of state
missionary failure goes unreported. The report also mentions cases filed with the NHRC
(along with details of the case from East-Indian states) of custodial deaths where in the
victims family received a compensation from the state yet they do not appear in the
official statistics of this nation body for human rights. The ACHR report also mentions
that NHRC registered only six deaths in police custody in Jammu and Kashmir from
2001-02 to 2010-11. Inspite of the fact that on 31 March 2011 Jammu and Kashmir
Chief Minister Omar Abdullah in a written reply to a question in the Legislative Council
stated that 341 persons had died in police custody in the state since 19903. The NHRC
reports does not include custodial violence cases in armed forces as they have been
denied a mandate to investigate human rights violations by the armed forces under
Section 19 of the Protection of Human Rights Act, 1993 as amended in 2006.

Role Of Law
The undue use of power and authority has been rampant in the pretext of suspicion and
investigation. As per Section 51 of the Criminal Procedure Code every person arrested
has the right to know the reasons for his arrest and have a counsel. And most importantly
warrant is to be issued to arrest a person excepting in certain few cases where a warrant
is not required as per Section 41 of the Criminal Procedure Code, but in most instances
the police in the pretext of suspicion and procuring aid for further investigation has been
throwing people behind bars without even securing the bases for their suspicion. Police
frequently fail to produce suspects before a magistrate within 24 hours, and do not
permit suspects to inform their families of their detention or consult an attorney. Police
interviewed by Human Rights Watch say they do not abide by these legal requirements
because 24 hours is insufficient time to gather information from the suspect. The mere
humiliation and trauma of being locked up in jails for a few hours instigates people to
21

kill themselves. The witnesses have also been put to sever torture of the worst kind with
a view to extract information, even though the Criminal Procedure Code provides that
only a Judicial magistrate has the authority to record confessions and statements coming
out of his own will in and in any case if the person refuses his will in his confessions
then the magistrate shall not authorize his detention in police custody as stated in section
164 of the Criminal Procedure Code. The Law Commission of India has noted that
domestic law confers a vast, sometimes absolute and on some other occasions, an
unguided and arbitrary power of arrest upon police officers.(Amendments to the
Criminal Procedure Code in 2008 that reduce police authority to make warrant-less
arrests are not yet in force). Several studies have shown that many police officers abuse
this power, arresting suspects without sufficient evidence and detaining them without
following the due process.
A large number of reported cases of torture and custodial death are a result of attempts to
extract a confession relating to theft or other petty offences. This implies that suspects
belonging to the lower economic and social strata are particularly vulnerable , and also
defenseless.

Remedies Against Custodial Torture

There are two approaches with respect to the remedies provided for against custodial
torture and subsequent death as well. These two approaches are legal regime and
judicial precedents. They can be explained as follows:

Legal Regime:

Constitutional Safeguards:
It has been held in a catena of judgements that just because a person is in police custody
or detained or under arrest, does not deprive of him of his basic fundamental rights and
its violation empowers the person to move the Supreme Court under Article 32 of the

22

Constitution of India.13Detention does not deprive one of his fundamental rights.14 They
dont flee the persons as he enters the prison although they may suffer shrinkage
necessitated by incarceration.15 However, the extent of shrinkage can and should never
reach the stage of torture in custody of such a nature that the persons are reduced to a
mere animal existence.

Article 20 of the Constitution of India: Article 20 primarily gives a person the

13

V.N. Paranjape, Criminology and Penology, (Central Law Publishing,

Allahabad, 12th Edition, 2005)
p. 381.

14

Prabhakar Pandurang v. State of Maharashtra, AIR 1966 SC 424; D.B.

Mohan Patnaik v. State of A.P,
AIR 1971 SC 2092.

23

rights against conviction of offences. These include the principle of non-retroactivity

of penal laws (Nullum crimen sine lege 16 i.e. ex-post facto laws thereby making it a
violation of the persons fundamental rights if attempts are made to convict him and
torture him as per some statute. Article 20 also protects against double jeopardy
(Nemo debet pro eadem causa bis vexari17). This Article most importantly protects a
person from self-incrimination. The police subject a person to brutal and continuous
torture to make him confess to a crime even if he has not committed the same.
15

Sunil Batra (II) v. Delhi Admn., (1980) 2 SCR 557.

16

"No crime, no punishment without a previous penal law", Article 22 of

the Rome Statute of the
International Criminal Court.

24

Article 21 of the Constitution of India: This article has been understood in the
Indian judiciary to protect the right to be free from torture. This view is held because
the right to life is more than a simple right to live an animalistic existence. 18 The
expression "life or personal liberty" in Article 21 includes a guarantee against torture
and assault even by the State and its functionaries to a person who is taken in
custody and no sovereign immunity can be pleaded against the liability of the State

17

No one ought to be twice troubled or harassed [if it appear to the

court that it is] for one and the same
cause, http://www.wordinfo.info/words/index/info/view_unit/3475
(Visited on January 23, 2010)

18

Sarah Smith, The Right to Life in India: Is It Really the 'Law of the
Land,
http://www.hrsolidarity.net/mainfile.php/2005vol15no05/2446/
(Visited on January 23, 2010), Francis;
Coralie Mullin v. Administrator, Union Territory of Delhi and Ors, AIR
1981 SC 746; Bandhua Mukti
Morcha v. Union of India, (1997)10SCC549; People's Union for
25

arising due to such criminal use of force over the captive person.19

Article 22 of the Constitution of India: Article 22 provides four basic fundamental

rights with respect to conviction. These include being informed of the grounds of
arrest, to be defended by a legal practitioner of his choice, preventive detention laws
and production before the nearest Magistrate within 24 hours of arrest of the person.
Thus, these provisions are designed to ensure that a person is not subjected to any ill
treatment that is devoid of statutory backing or surpasses prescribed excesses.

Other Statutory Safeguards:

Indian Evidence Act, 1872: A confession to police officer cannot be proved as

against a person accused of any offence (Sec. 25 Evidence Act) and confession
caused by threats from a person in authority in order to avoid any evil of a temporal
nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24.
Thus, even though custodial torture is not expressly prohibited by law in India, the
evidence collected by illegal means, including torture is not accepted in courts.

Democratic Rights and Ors v. Union

of India (UOI) and Ors, AIR 1982 SC 1473.

19

Supra note 6.

26

Code of Criminal Procedure, 1973: Sec. 46 and 49 of the Code protect those under
custody from torture who are not accused of an offence punishable with death or
imprisonment for life and also during escape. Sec. 50-56 are in consonance with
Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds
to any infliction of custodial torture and violence. According to it, when an allegation
of ill-treatment is made by a person in custody, the Magistrate is then and there
required to examine his body and shall place on record the result of his examination
and reasons therefore.20 It gives them the right to bring to the Courts notice any
torture or assault they may have been subjected to and have themselves examined by
a medical practitioner on their own request.21 A compensatory mechanism has also

20

A.K Sahdev v. Ramesh Nanji Shah, 1998 CrLJ 2645 at 2650 (Bom.).

21

Shakila Abdul Gafar Khan v. Vasanttraghunath Dhoble, 2004 (1) GCD

27

been used by courts.22 When the Magistrate does not follow procedure with respect
to entertaining complaint of custodial torture, it calls for interference by the High
Court under Sec. 482 of the Code.23
Another significant provision with respect to custodial torture leading to deaths is
Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on
death of an accused caused in police custody. Sections 167 and 309 of the Code have
the object of bringing the accused persons before the court and so safeguard their
812 at 823 (SC).

22

J. Y.V Chandrachud & V.R Manohar, The Code of Criminal Procedure, (Wadhwa Nagpur, 18th
Edition, 2006) p. 114.

23

28

rights and interests as the detention is under their authorisation.24

Indian Police Act: Sections 7 and 29 of the Act provide for dismissal, penalty or
suspension of police officers who are negligent in the discharge of their duties or
unfit to perform the same. This can be seen in the light of the police officers
violating various constitutional and statutory safeguards along with guidelines given
in D.K Basu v. State of West Bengal.25

Mukesh Kumar v. State, 1990 CrLJ 1923 at 1925.

24

Bhai Jasbir Singh v. State of Punjab, 1995 CrLJ 285, (P&H) cf. P.C
Bannerjee, Criminal Trial and
Investigation, (Orient Publishing Co, Allahabad, 3rd Edition, 2003) p.
222.
25

29

Indian Penal Code (IPC), 1860: After the controversial Mathura Rape case26, an
amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises
custodial rape committed by police officers. This was a welcome change made to the
section in question as it finally condemns the acts of police officers who take
advantage of their authority.
Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a
police officer, who is empowered to arrest a person and to interrogate him during
investigation of an offence from resorting to third degree methods causing torture.27

AIR 1997 SC 610.

26

(1979) 2 SCC 143.

27

30

 Judicial Response:
India has signed but not ratified the UN Convention Against Torture (CAT). There has
been a continuous effort of the National Human Rights Commission (NHRC) to pursue
the Government of India to ratify the Convention against Torture so that a new domestic
legislation thereafter can be brought into place. But the effort has gone till date without
success. However, absence of a specific law, the Supreme Court of India has condemned
torture through various judgments, which have contributed to create a national
jurisprudence in cases of combating torture.
The practice of torture by police and other law enforcing officers is a matter of deep
concern; therefore it is the sacred duty of the state to protect these fundamental human
rights of these citizens. The problem of police torture and violence is of universal
nature. The concern regarding the problem was one of the reasons leading to provisions
against torture and inhuman and degrading treatment and punishments in the Magna
Carta and Constitutions of U.S.A and other countries of the world. Though there is no
separate and specific protection in the Indian Constitution against torture, the combined
effect of rights against self incrimination and of life and liberty is too evident.

State of Madhya Pradesh v. Shyamsunder Triwedi, (1995) 4 SCC 262

at 273.

31

In Nandini Satpati v. P.L Dani28, the Court held that not only physical threats or
violence but psychological torture, atmospheric pressure, environmental coercion, tiring
interrogation by police are violation of law.
The clear case of prohibition against torture was delivered by the Court in Sunil Batra
v. Delhi Administration29. The Supreme Court did not find itself handicapped by
absence of specific provisions against torture in the Constitution and gathered support

28

AIR 1978 SC 1025.

29

1978 (4) SCC 494.

32

from Article 14 & 19 in holding against the permissibility of torture vis--vis persons
suspected and accused of crime.
In Raghbir Singh v. State of Haryana30, where the violence employed by the police to
extract a confession resulted in death of a person suspected of theft, the court observed
that the lives and liberty of citizens are at peril when the guardians of law stab human
rights to death. Vulnerability of human rights assumes a traumatic, torturesome
poignancy, the violent violence is perpetrated by the police arm of the State whose
function is to protect the citizen and not to commit gruesome offences against them. The
court awarded life sentence to the police officer responsible for the death of the suspect
in police lock up.

30

1980 ( 3) SCC 70.

33

Khatri v. State of Bihar31 / Bhagalpur Blinding case, was an example of cruel and
inhuman treatment to the prisoners which are insolating the spirit of Constitution and
human value as well as Article 21. Supreme Court in this case tackled the blinding of
under-trial prisoners by the police by piercing their eyeballs with needle and pouring
acid in them. This case shows the pattern of torture, the sanction of torture by state and
local judicial authorities, the routine concealment of torture.
Formidable problem in an alleged case of police torture is to establish the guilt of the
perpetrators of violence. The wrongdoers may either be able to escape conviction due to
lack of required degree of proof or maybe found guilty of lesser offence than the one
warranted by the actual facts. This is primarily due to the situation that the warranted by
the actual facts. This is primarily due to the situation that the offenders are the comrades
and colleagues of the prosecutors and the complete lack of neutral witness. State of U.P
v. Ram Sagar Yadav32, is a case indicative of extreme limits to which police violence
31

AIR 1981 SC 928.

32

34

and highhandedness may extend. The victim made a compliant against a policeman who
demanded bribe from him. He was arrested for his audacity and shortly afterwards
while in custody was found in a serious condition with 19 injuries on his body
eventually causing his death. The Supreme Court while affirming the punishment of
7years rigorous punishment for culpable homicide not amounting to murder under Sec
304, expressed his regret that the trial judge did not find policeman guilty of murder as
indicated by the facts. The Supreme Court is heralded as a beacon of rights against
torture.
Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of
dealing with custodial torture and custodial death cases namely, the right to
compensation for custodial death and torture and the formulation of custody
jurisprudence.
The case of Sheela Barse v. State of Maharashtra33 has provided for guidelines on

1985 (1) SCC 552.

33

1983 CrLJ 1923 (Del).

35

rights of the arrested persons especially women. The court in this case also emphasised
on the need for Magistrates to inform all arrested persons of their rights.
In D.K Basu v. State of West Bengal34, the Court laid down 11 guidelines (procedural
measures) to be followed while, during and after arrest of person till he is in the custody
of police. This case came up before the Court through a petition under art 32 of the
Constitution by an NGO. The Executive Chairman of this NGO had written to Chief
Justice of India drawing his attention to news items published in a newspaper, regarding
deaths in police lock up and in jail in the State of West Bengal. Here the Court observed
that Custodial Torture is a naked violation of human dignity and degrading which
destroys individual personality. It is a calculated assault on human dignity and whenever
human dignity is wounded the Civilization takes a step backward.
However mere formulation of guidelines and safeguards would not be sufficient,
therefore Supreme Court in thiswarned that:
Failure to comply with the requirements mentioned shall apart from rendering the
concerned official liable for departmental action liable to be punished for contempt of
Court may be instituted in any High Court of the country, having territorial jurisdiction
over the matter.

34

Supra note 6.

36

In Joginder Kumar v. State of U.P35, Joginder Kumar was called to the police station in
connection with a case. Thereafter, his whereabouts became unknown to his family
members. His family members filed a writ of habeas corpus before the Supreme Court,
pursuant to which he was produced before the court.
Alarming increase in cases of torture, assault and death in police custody and non
availability to punish the culprits in such cases have been an vexed problem as the
investigation into such matters have been by the custodians themselves. It is therefore, of
utmost necessity that an objective and independent enquiry should be made. Keeping it
in view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of
Assam36, directed the CBI to register and investigate the instant case of custodial death.
35

1994 (4) SCC 260.

36

37

Again in Supreme Court in Ajab Singh v. State of UP37, where the police examination of
a custodial death was a concocted story, directing the CBI to register the case and
conduct an investigation into the circumstances of custodial death. It also directed the
CBI to complete investigation expeditiously and file a copy of the investigation report in
the court.
The UN Convention against Torture provides for redress and compensation to the
tortured victim. Article 14 of the convention categorically emphasizes that every State
party to the Convention must ensure that the tortured victim is provided fair & adequate
compensation and rehabilitation. If death results in the event of torture, the family is to
be provided with compensation. In Nelabati Behara v. State of Orissa38, the principle of

(1995) Supp (3) SCC 736.

37

(2000) 3 SCC 521.

38

38

state liability and the need for state to make reparations for such liability was
recognized. It was highlighted that court under Art 32 and 226 of the Constitution has
wide amplitude to provide any remedy under Public Law for any contravention of
Fundamental Rights.

Other Authorities:
It has been recommended in the 177th Law Commission Report by the 16th Law
Commission that requisite amendments should be brought about in the Code of Criminal
Procedure making it the duty of the police officers in whose custody there are arrested
persons that they should ensure their safety and holding them responsible for failure of
the same. Thirty years hence, this amendment has still not been incorporated. The
presence of an advocate during interrogation of the arrested person is also a
recommendation that has been made. The 185th Law Commission Report also makes
recommendation regarding rights of arrested persons with respect to the Indian Evidence
Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also
emphasised on the need for codification of the rights of the arrested persons.39

1993 (2) SCC 746.

39

39

Despite the above, the abominable figures regarding custodial torture have still not
improved. One very simple reason behind this could be that persons who are supposed to
protect people are themselves the wrongdoers. The criminal justice system in India is
supposed to use the reformist approach; however, the approach is such that animals get
better treatment.

Preventive Measures
Appropriately set preventive measures are required to curb inhumane attitude of the law
enforcement. Check on the police excesses is already in place in the Code of Criminal
Procedure, a special provision is made in CrPC under sub-section (1) of Section 176 of
the Code, when a person dies while in police custody, a magistrate may hold an inquiry
into the cause of death. The recent amendment made in 2005 extended the ambit of the
Sec 176 to disappearance and custodial rape also. When a person is killed in an
encounter or in police custody or in exchange of fire, inquiry shall be conducted by a
judicial magistrate and Section 176 of the Code must be made applicable to all the above
said cases because as the law stands now it applies to custodial deaths only, but not to
deaths caused in exchange of fire or in encounter. Torture and other cruel, inhuman or
degrading treatment or punishment are particularly serious violation of human rights
and, as such, are strictly condemned by international law. The Convention entered into
force on 26-06-1987. The Government of India should ratify the Convention against
Torture and other forms of Cruel Inhuman and Degrading Punishment or Treatment,
which was signed by India on 14th October 1997.
The NHRCs revised guidelines regarding encounter deaths in police rules and manuals
should be codified and the procedures should be implemented and officials should be
trained accordingly. In particular, the NHRC and SHRC should be notified of any
custodial death or encounter killing. And the deceaseds body should be sent for postmortem examination without exception and a written copy of the post-mortem
examination should be provided to the deceaseds family within 24 hours of the
examination. An independent internal affairs or professional responsibility unit should
be established at the state level to promptly and impartially investigate, within a oneMalimath Committee Report, Volume I, Para 7.26.8-7.26.9.

40

year mandatory time limit, all cases of custodial torture and death, and all police
shootings that result in death. Incentives for better policing through increased
opportunities for promotion for junior- and low-ranking police should be created. As a
national body working in favour of Human Rights the NHRC should yield more power
in support of cases where police officers abuse their authority.

Conclusion
The very ideas of a human being in custody save for protection and nurturing is an
anathema to human existence. The word custody implies guardianship and protective
care. Even when applied to indicate arrest or incarceration, it does not carry any sinister
symptoms of violence during custody. Custodial crimes are a social menace that needs to
be tackled framing of and adherence to stringent norms.

In a complaint of custodial torture, the court should not adopt a casual approach to it on
the ground that it has been made by a habitual offender. It is a perennial problem of
statecraft.40 It therefore, becomes imperative to evolve a system of state governance that
allows the police to effectively maintain law and order and to prevent and detect the
40

Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424.

41

commission of a crime without jeopardizing legal rights; privileges and claims of

laymen. Such a system obviously warrants appropriate control over the police in order to
discourage them from exercising their power in a capricious manner. Similarly, an
effective institutional grievance-redressal mechanism to vindicate police excesses is
also the need of the hour.41
As held by the Supreme Court, "custodial torture" is a naked violation of human dignity
and a degradation which destroys, to a very large extent, human personality.
First, custodial torture must be made a crime. This could be brought in by way of a
special law. Secondly, many cases of custodial torture could be prevented if lawenforcing agencies followed the existing laws relating to arrest and detention. The rules
established by the Supreme Court--though not a complete remedy--should be applied
without failure. Those who fail to comply must be prosecuted.
Thirdly, the public--and especially concerned professional groups, including rights
groups and the media--must closely monitor police practices to see that government
promises are upheld. The political opposition must also see to it that the Director
General of Police submits a report to the legislative assembly, and an investigative
report, on every case of custodial death and torture.
41

S.C Sarkar, Sarkar, Commentary on Code of Criminal Procedure,

(Dwivedi Law Agency, Allahabad,
1st Edition, 2005) p. 506.
42

Fourthly, the central government should be urged to ratify the UN Convention against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The
government has failed to ratify the treaty on spurious grounds that existing laws are
good enough to prevent custodial torture, which is evidently not the case. Were that the
case, 60 years after independence and despite numerous concerns and guidelines issued
by courts all over India, torture would not persist unabated as it does today.

Bibliography
43

Books Referred:

V.N. Paranjape, Criminology and Penology, (Central Law Publishing, Allahabad,

12th Edition, 2005)

K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice

Process in India, (Eastern Book Company, Lucknow, 1st Edition, 2004)

S.C Sarkar, Sarkars Commentary on Code of Criminal Procedure, (Dwivedi Law
Agency, Allahabad, 1st Edition, 2005)

J. Y.V Chandrachud & V.R Manohar, The Code of Criminal Procedure, (Wadhwa
Nagpur, 18th Edition, 2006)

Prakash Chandra : Usually unexpectable face of the Indian Police : The sentinel
(Himachal Pradesh) 24, April 1992

Asia Watch Report: Prison conditions in India. (Human Rights Watch, New
York, 1991) (DELNET)

Commonwealth Human Rights Initiative, New Delhi: Behind prison walls:

Police, prisons and human rights. (Commonwealth Human Rights Initiative, New
Delhi, 1995) (NHRC)

Articles:

BAG, Payel: Custodial death and law. (Calcutta High Court Notes, Vol. 1, Part 5,

March 2007, p 1) (SCJL)

BAXI, U: An unfought battle for human dignity. (Seminar, No. 439, March 1996,
p 18) (SCJL)

Reports:

NHRC Annual Report (2007-2008)

Malimath Committee Report, Volume I

44