INTRODUCTION AND HISTORY

One of the most dangerous cocktails in a democracy is when those who are meant to enforce the law into
their own hands. Every week in India, several citizens- usually the poor and those from the weaker
sections of society- are killed in police custody. According to the Asian Centre for Human Rights, as
many as 1504 custodial deaths were reported to the National Human Rights Commision 1 from April 2001
to March 2010. Most of these deaths occurred in forty eight hours of the victims being taken into police
custody.
As per Article 21 of the Constitution of India provides: No person shall be deprived of his life or
personal liberty except according to procedure established by law. The Supreme Court has clearly held,
Even convicts, prisoners and under-trials have right under Article 21 and only such restrictions can be
imposed as permitted by law. Still persons condemned by law to imprisonment and custody are hardly
ever given their rights. There are a number of people who are denied of their rights and the lawmakers
from time to time have taken the law into their own hands and used it to their own ends, resulting in harsh
punishments for those people who havent even been convicted or have been falsely implicated for a
crime they havent committed. Even if a person is proven guilty in the court of law, this still does not
empower the police to act arbitrarily. The Constitution safeguards all the Fundamental Rights enshrined
therein to a prisoner excepting those which cannot possibly be enjoyed owing to the fact of incarceration.
Even then we see the police taking the law into their own hands and using methods which infringe on the
Human Rights of that person and not using the necessary directions issued by competent authorities and
Statutes. Despite the attempts towards reforms, most of these changes towards improvements go
unrecognized due to reasons like highly autocratic leaders, the rampant rate of corruption and undue
advantage or misuse of authority by the officials on several occasions resulting in a lack of respect and
co-operation from the community.

The main issue involved here is the existence of human rights of inmates as laid down under the
International and National legislations and the repressive approach of the policemen towards these
inmates thereby grievously violating such rights and hence committing an act of crime against the State.
1.1 RESEARCH METHODOLOGY
This work is an empirical study, based on various articles, books, commission reports, declarations, Acts,
Indian precedents and websites. The current effort seeks to conduct a doctrinal study of the various
reports on custodial violence published in India and collate the information in an attempt to map out the
full extent of the crime in the country.

1 An autonomous statutory body established under the protection of Human

Rights Act, 1993 which performs various functions to safeguard human rights in
India.

1.2 HYPOTHESIS
There has been a gross violation of human rights in police custody in India. This study analyses the main
reasons behind custodial deaths and the measures to curb it. The paper also clarifies the present situation
of custodial deaths in our country. It helps in making it clear that the loopholes in the criminal
administration system are the reason behind it.
The present research study proceeds on the following hypothesis:

In spite of various constitutional and legislative safeguards, custodial deaths are still a
continual phenomenon.
Failure on the part of investigating agencies in safeguarding personal liberty and life of
prisoners.
Lacuna in the existing enforcement machinery to protect the right of accused person.

1.3 OBJECTIVES OF STUDY

The main objectives of the present research study aims at

Studying the nature and extent of custodial crimes in police custody;

Analyzing the causes of custodial crimes in police custody;
Understanding the consequences of custodial crimes in police custody;
Critically examining preventive measures to combat custodial crimes;
Assessing the role of Human Rights Institutions and Civil Society Organizations in
addressing the issue of custodial crimes; and
Identifying the methods and measures for combating the heinous effects of custodial
violence.

WHAT IS CUSTODIAL TORTURE & POLICE BRUTALITY?

And how exactly the two are related?
Custodial torture has been frequently practiced in India. As the term suggests, torture is, that takes place
in custody by the savagery practiced by the police in order to get the confession. The two terms are
closely connected as one cannot take place without the other. The term torture has a wide spectrum and
can have different levels all together. But, the term Police Brutality only relates to physical violence that
takes place in the custody.
CAUSES OF CUSTODIAL TORTURE
Many factors can be attributed to the causes of the custodial torture such as, psychological, infrastructural
and administrative reasons. Various studies undertaken by government and non-government organizations
have identified the following causes of custodial crimes:

LEGAL CAUSE
The Indian Evidence Act, 1872 section 27 states, a confession made by a person in police custody in
not admissible in court of law as evidence under Section 25 of Indian Evidence Act. But the section
27 states that if a person in the custody of a police officer makes a statement leading to the discovery

of a fact, the same is admissible, whether or not it amount to a confession. Different interpretation &
vagueness have been generated by the placing and the inept language of the section.
Lack of Supervision of Lock Ups & Lack of Judicial Vigilance
The lack of supervision & judicial vigilance also plays a vital role. Inquiries by Magistrates in cases
of allegations of custodial deaths is mandatory in law 2, the lack of it in many cases is significant and a
matter of deep concern. The relevant statutory provision is silent on the subject as to whether the
inquiry is to be conducted by the Executive or Judicial Magistrates. In practice, most inquiries are
conducted by Executive Magistrates, who have their own limitation in collecting evidence and
examining the officers who are accused of torture 3.

ORGANIZATIONAL CAUSE

Work Pressure
Outdated Police Structure.

Performance Pressure
Defects in Recruitment and Training

SOCIAL CAUSE
The police have this immense social pressure to protect the law and order in the states and hence, end up
victimizing the non resourced citizens. The use of force is related to the social distance between the police
and the members of the public. Therefore, it creates a social pressure over the police to deliver justice
which at the end comes up as a failed attempt.
ECONOMIC CAUSE
We all have been a victim of corruption in our life on a day to day basis and for the policemen its no new
territory. More and more cash is offered every day in order to keep the non resourced citizen in police
custody. The one with no economic resources is left in the custody and gets rotten in the cell.
POLITICAL CAUSE
The one who has all the right political connections gets his work done very swiftly and smoothly. Political
power plays a huge role in detaining a person in the police custody as long as one wants to and the
policemen can do nothing in order to keep their jobs.

Legal framework to combat custodial death in India.

The principle of law articulates that nobody can be denied of his freedom from the power of law and
every person should be equivalent under the watchful eye of the law. Even the Constitution of India has
2 The Code of Criminal Procedure, 1973, s. 176.
3 Pandey, E.C., Search for an Action against Illegal Arrest 22 JILI 331 (1980)

incorporated such a provision. 4 Under the Indian realm, the police as representative of the State whose
sovereignty lies in the people are public servants and the police station is a public property. Therefore the
conduct of police officers should conform to the law and must reflect the basic human freedom so as to
inculcate a feeling of confidence and trust in the general public with respect to the custodians of law.
The Constitutional provisions
The Constitution of India in its Part III deals with Fundamental Rights. Articles 20, 21 and 22 of the
Constitution levies some preventions which are directly relevant to custodial deaths under the criminal
process

Article 20: Article 20 gives the rights against conviction of offenses and also protects against the rule
of double jeopardy. Most importantly, it protects a person from self-incrimination hence a person
under custody can be protected from custodial torture since the police may subject a person to brutal
and continuous torture to make him confess to a crime even if he has not committed the same. Article
20(3) of the Indian Constitution is the most important piece of constitutional safeguards in regard to
custodial deaths. It provides that, no individual blamed for any offense should be constrained to be an
observer against him. The Constitutional safeguards against testimonial impulse on the reason that
such impulse may go about as unpretentious type of pressure on the denounced and it is likewise the
fundamental subject of a few statutory5.
Article 21: The judgment of Maneka Gandhi v. Union of India6 marked the beginning of judicial
activism under the Indian realm regarding the interpretation of Article 21. 7 Although the Article does
not contain any express provision against torture or custodial deaths, the Supreme Court in a catena of
judgments, has interpreted it as a right against custodial death as well. This view is held because the
right to life is more than a simple right to live an animalistic existence. The expression "personal
liberty" in Article 21 incorporates an assurance against torment and ambush even by the State and its
functionaries to a man who is taken in authority and no sovereign invulnerability can be argued
against the obligation of the State emerging due to such criminal force over the captive person.
Article 22: Article 22 (1) of the Constitution of India accommodates the privilege to be educated of
the ground of capture. This Article is taken after on the lines of Article 9 of the International Covenant
on Civil and Political Rights. Section 49 of the Code of Criminal Procedure, 1973 likewise gives that;
the person arrested should not be subjected to more limitation than is important to keep his departure.

The Statutory provisions

I.

The Indian Penal Code, 1860: Sections 330, 331, 342 and 348 of the IPC ostensibly been intended
to deter a police officer in charge, who can arrest a man and interrogate him amid investigation of an
4 The Constitution of India, Article 21.
5 Dastagir v. State of Madras, AIR 1960 SC 759.
6 AIR 1978 SC 597.
7 Jacobsen Knut A. (ed.), Routledge Handbook of Contemporary India 52 (Routledge, New York,
2016).

offense from depending on third degree techniques, creating custodial torment and passing 8 Crime of
custodial torture against prisoners can be brought under Sections 302, 304, 304A and 306 too.
Punitive provisions are contained in the Indian Penal Code, 1860 which seeks to prevent violation of
the right to life and personal liberty of a person in custody. The same is recorded in Chapter XVI of
the Code under the head "Of offenses affecting life". Section 220 accommodates discipline to an
officer or power that confines or keeps a man in restriction with a degenerate or a vindictive thought
process. section 340 to 348 of the IPC deals with managing wrongful restraint , wrongful confinement
and their aggravations
II.

The Code of Criminal Procedure, 1973 : Sec. 46 and 49 of the Code shield those under custody
from the torment who are not blamed for an offense punishable with death or life imprisonment. Sec
50-56 are in consonance with Article 22. As per Sec 54, when a claim of ill treatment is made by a
man in care, the Magistrate is without further ado required to analyze his body and should put on
record the after-effect of his examination and reasons thusly 9 It gives them the privilege to convey to
the Court's notice any torment or attack they may have been subjected to and have them analyzed by a
medical professional all alone demand. 10 A compensatory component has additionally been utilized by
the courts. At the point when that Magistrate does not take after methodologies concerning the
exciting protest of custodial torment, it invites for interference by the High Court under Sec. 482 of
the Code. Another critical arrangement as for custodial torment prompting passing is Sec. 176 of the
Code where a necessary, authoritative request is to occur on the death of a charged brought about in
police care. Section 167 and 309 of the Code have the object of bringing the blamed people under the
watchful eye of the court thus defend their rights and interests as the confinement is under their
authorization.

III.

The Indian Evidence Act, 1872: An admission to police can't be demonstrated as against the accused
for any offense (Sec. 25 Evidence Act) and any admission made by dangers from a man in power with
a specific end goal to maintain a strategic distance from any malice of a worldly nature would be
immaterial in criminal procedures as, between inter- alia, gave in Sec. 24. In this way, despite the fact
that custodial torment is not explicitly disallowed by law in India, the proof gathered by illicit means,
including torment is not acknowledged in courts.
The Indian Police Act

IV.

Section 7 and 29 of the Act accommodate release, punishment or suspension of police who are
careless in the release of their obligations or unfit to play out the same. This can be found in the light
of the officer abusing different protected and statutory shields alongside rules given in D.K Basu v.
Condition of West Bengal11
8 State of Madhya Pradesh v. Shyamsunder Tviwedi, (1995) 4 SCC 262 at
9 A.K Sahdev v. Ramesh Nanji Shah, 1998 CrLJ 2645 at 2650 (Bom.)
10 Shakila Abdul Gafar Khan v. Vasanttraghunath Dhoble, 2004 (1) GCD 812 at 823 (SC)
11 AIR 1997 SC 610

 The Legislative Initiatives

While handling the 'standardizing of law reforms", the Law Commission of India had, on various
events, inspected the forces and capacities, the rising part and the operational issues of police, and
mentioned various important objective facts and suggestions, however a large portion of these
proposals were not implemented and couldn't see light of the day. Various reports of law commission
dealt with the issue of death in custody; such as the 48th Report and the 69th Report managed the
issue of tolerability of admissions made to a senior cop as proof (an admission recorded by
Superintendent of Police or higher rank ought to be permissible in court of law. The Commission
prescribed an insertion of Section 114 B(1) in the Indian Evidence Act, 1872 for indictment of a cop
for an offense constituted by a demonstration claimed to have brought about substantial damage to a
man. On the off chance that there is confirmation that the damage was brought about amid period
when that individual was in care of the police, the court may assume that the harm was created by cop
having authority of that individual amid the time of police guardianship.
The 152nd Report watched that for, the casualties of custodial wrongdoings are poor, ladies, kids,
hindrance individuals and other weaker areas of the general public. Poor people, the discouraged and
the uninformed with next to zero political or budgetary force can't ensure their interests. The real
proposal of the report was obsession of remunerations sum (Rupees a quarter century if there should
arise an occurrence of real damage and Rupees One Lakh in the event of death). Further
recommendation was that the Government may recoup any sum paid by it as remuneration under this
segment completely or somewhat as it might think appropriate, from the reprobate cops. This was a
creative methodology of remedial equity taking into account singular responsibility proposed by the
report while managing custodial wrongdoings.
The 177th Report made certain proposals for well being and prosperity of prisoner in care of police
furthermore proposed to revise the Code of Criminal Procedure, 1973. Right to quiet is a
characteristic culmination of the saying that no individual can be compelled to give proof against one'
own self. The Prevention of Torture Bill, 2010 was additionally presented in the Lok Sabha by Sh. P
Chidambaram, the then Minister of Home Affairs, and Govt. of India.

THE JUDICIAL PERSPECTIVE

Role of the Indian Judiciary

Custodial death in police custody is a crime of such a nature that only a very few cases come to light.
However, even after the paucity of such cases, the Courts have given such landmark judgments which
help in giving a shape to the laws of custodial deaths. The Supreme Court of India is heralded as a beacon
of rights against custodial deaths. In 1990, the Supreme Court came up with two innovative ways of
dealing with custodial death cases, namely, the right to compensation for custodial deaths and the

formulation of custody jurisprudence. The judiciary has delivered landmark decisions on matters relating
to arbitrary arrest & detention, dehumanizing methods of interrogation or torture in custody,
compensation to the victims of custodial crimes and prosecution and punishment for the torturer 12. The
Supreme Court has likewise called for stern measures to battle the hazard as generally the general
population's trust in the nation's criminal equity framework will be devastated.

Judicially Laid Guidelines on Arrest and Detention

The following cases reflect the outlook of the Indian Judiciary. With respect to the rights of the persons in
custody and regarding their protection against exploitation and torture.

a)

b)
c)
d)

In Joginder Kumar v. State of Uttar Pradesh 13, The Supreme Court said, existence of power of arrest is
one thing, the justification for the exercise of it is quite another. The police officer must be able to justify
the arrest14. The Supreme Court set four major guidelines that are to be followed by the police in all
cases of arrest. These are:
An arrested person in custody is entitled, if he so requests, to have one friend or relative or other person
known to him or likely to take an interest in him told as or relative or other person known to him or likely
to take interest in him told as far as is practicable, that he has been arrested and details as to where he is
being detained;
The officer shall inform the arrested person of the above rights;
An entry is to be made in the case diary as to who was informed of the arrest (in the concerned case); and
Departmental instructions are to be issued that a police officer making arrest should record in the case
diary, the reasons for making the arrest.
The Court had also declared that it shall be the duty of the Magistrate to satisfy that these requirements
have been met, in order to ensure compliance with the above mentioned directions.

In the memorable instance of D. K. Basu v. Condition of West Bengal ,15

The Supreme Court conveyed a striking judgment which set down tenets for custody statute. The summit
court felt the criticalness of streamlining the structure and elements of the law authorization apparatus in
charge of affecting captures in the nation. The Court watched that there ought to be more
straightforwardness and responsibility in the framework so far as captures and detainments of the guilty
12 Dr. Deepa Singh, Human Rights and Police Predicament 217(The Bright Law House, Delhi,
2002)
13 AIR 1994 SC 1349.
14 Ibid.
15 AIR 1997 SC 610.

parties are concerned. Notwithstanding the statutory and established necessities, it was made compulsory
on part of the law requirement offices to take after the accompanying rules (procedural measures) at the
season of affecting capture of a guilty party:- 16
a)The police staff completing the capture and taking care of the cross examination of the arrestee ought to
hold up under precise, obvious and demonstrate ID and name labels with their assignments.
b) The cop completing the capture of the arrestee might set up an update of capture at capture and such
notice should be authenticated by no less than one witness, who might be either an individual from the
group of the arrestee or a respectable individual of the region from where the capture is made.
c) A person who is captured or kept and in authority in a police headquarters or cross examination or other
lock-up, should be qualified for having one companion or relative, friend or any individual known not or
having enthusiasm for his welfare being educated, when practicable, that he has been captured and is
being confined at the specific spot, unless the capturing observer of the reminder of capture is himself
such a companion or a relative of the arrestee.
d) The time, spot of capture and venue of authority of an arrestee must be informed by the police.
e) The individual captured must be made mindful of his entitlement to have somebody educated of his
capture or confinement when he is put in custody or is kept.
f) The arrestee ought to, where he/she so demands, be additionally analyzed at the season of his capture and
major and minor wounds, if any present on his/her body, must be recorded around then.
g) Copies of the considerable number of archives including the update of capture alluded to above, ought to
be sent to the 'Illaqua Magistrate' for his record.
h) The arrestee might be allowed to meet his legal counselor amid cross examination, however not all
through the cross examination
i) A police control room ought to be given at all area and state base camp where data in regards to the
capture and the spot of authority of the arrestee might be conveyed by the officer creating the capture,
inside 12 hours of affecting the capture and it ought to be shown on a prominent notification board at the
police control room.
These rules now shape a part of the statute. They have been implemented and each police headquarters
will undoubtedly show these rules at a notification board or on their site, just to make overall population
and/or arrestees mindful of their rights so entitled.

In a matter identifying with custodial savagery and capture of female individual, the Supreme Court on
account of Sheela Barse v. State of Maharashatra 17 has issued the accompanying pertinent rules as
under:

a) Four or five police lock ups ought to be chosen in the sensibly great territories where just female suspects
ought to be kept and they ought to be monitored by female constables.
b) Female suspect ought not to be kept in a lock up in which male suspects are confined.
c) Interrogation of female suspects ought to be done just within the sight of female cops/constables.
16 D. K. Basu v. State of West Bengal, AIR 1997 SC 610.
17 AIR 1983 SC 378.

d) Whenever a suspect is taken to the police lock up, the police shall immediately give implication of the
reality to the closest legitimate person at the earliest.
e) Surprise visits to the police lock ups in the city ought to occasionally be made with a perspective to giving
captured individual a chance to hear their grievances and find out the states of police lock up

BURDEN OF PROOF ON POLICE

In State of U.P. v Ramasagar Yadav18 , the casualty made a protestation against a policeman who
requested fix from him. He was captured for his "dreariness" and in a matter of seconds thereafter, while
in authority, was found in a genuine condition with 19 wounds on his body in the long run bringing on his
passing. The Supreme Court while asserting the discipline of 7 years thorough detainment for punishable
crime not adding up to kill under Section 304 , communicated it's "wished to urge the Government the
need to revise the law so that the weight of verification in instances of custodial passings will be moved
to the police".

STATE LIABILITY

In Nilabati Behera v. Condition of Orissa19 , a 22-year old kid named Suman Behara was arrested by the
police on grounds of burglary, which was not proved, without a capture warrant. He was discovered dead,
on railroad tracks the following day, by virtue of physical wounds. A letter was composed to the Supreme
Court by, mother of the expired, which was dealt with as a writ request under Article 32 of the
Constitution for deciding the claim of remuneration.
The principles regarding state liability and the requirement for state to make reparations for such
obligation was perceived. It was highlighted that the court, under Articles 32 and 226 of the Constitution,
has wide sufficiency to give any cure under Public Law for any negation of Fundamental Rights. The
Supreme Court honored harms against the State to the applicant. Various statutory arrangements
additionally try to ensure individual freedom, pride and essential human privileges of the subjects. The
Supreme Court watched that any type of torment or pitiless barbaric corrupting treatment or discipline
falls inside the domain of the Constitution of India. Court has commitment to concede help formally and
rejected the protection of sovereign safety since it is not accessible if there should be an occurrence of
infringement of key privileges of torment casualties. The judgment likewise alluded to Article 9(5) of the
International Covenant on Civil and Political Rights, which shows that an enforceable right to
remuneration is not outsider to the idea of requirement of an ensured right.

18 AIR 1985 SC 416.

19 AIR 1993 SC 1960.

In Haricharan and Another v. Condition of Madhya Pradesh and Others , the Court held that the
expression 'Life and Personal Liberty' in Article 21 incorporates right to live with human nobility. Along
these lines, it incorporates inside itself ensure against the torment and ambush by the State or its
functionaries.

ROLE OF NHRCs AND NGOs

As indicated by Section 2(d) of the Protection of Human Right Act, 1993 "Human Rights"
signifies "Rights identifying with Life, Liberty and Dignity of an Individual ensured by the
Constitution and epitomized in International Covenant endorsable by court in India. The Act
gives the constitution of a National Human Rights Commission, State Human Rights
Commissions and Human Rights Courts for better assurance of human privileges of natives in the
nation. The National Human Rights Commission, since its origin, has been tending to the issue of
custodial passings in police authority. On 14 December 1993, the Commission issued of its
guidelines to the All Chief Secretaries of the considerable number of States, requesting that they
coordinate all District Magistrates and Superintendents of Police to report specifically to the
Commission any example of death or assault in police guardianship inside twenty four hours of
its event, inability to send such reports, it was clarified, twisted lead to an assumption by the
Commission that the exertion was made to smother the actualities. It is insufficient for the
Commission to respond to check the torment, the Commission is of the perspective that the
proposals of the Indian Law Commission (ILC) on a reference by the Supreme Court of India,
ought to be followed up on. In that proposal, the ILC recommended the insertion of a Section 114
B in the Indian Evidence Act, 1872, to present a rebuttable assumption that wounds supported by
a man in the police guardianship might be attempted to have been created by a cop. Further, the
NHRC bolsters the proposal of the ILC that Section 197 of the Criminal Procedure Code be
revised to join the need of legislative assent
The NGOs have a potential in assuming definitive and urgent part in the assurance of Human
Rights, these incorporate :
The closeness to the general population and the affinity set up with them at gross root level.

The validity they have earned as champions of the reason for the general population.

Awareness and
improvement.

advancement

of

all

encompassing

methodology

in

human

A viable option energy to compose individuals and to bolster individuals developments.

A personality and voice of their own.

Capacity for support and campaigning.

Democratic style of working.

Greater adaptability and openness for change.

Capacity to embrace as indicated by connections and requirements of individuals.

Capable of submitted initiative.

Availability of submitted proficient

CONCLUSION
The foremost observation of the study related to custodial deaths as a whole reveals that
individual victims are mostly from weaker section of the society with a low educational
background. People who have no means to protect themselves from such brutality.
The court should never have a casual approach in cases where a complaint has been filed for
custodial torture. As, it is necessary to maintain law and order and prevent the commission of any
crime even when its done by the protectors of the state.
If there is a strong implementation of the existing laws relating to arrest and detention, then there
are chances that many cases of custodial torture & violence can be easily avoided.
The public, especially the media should look out for cases of custodial torture and whether or
not the promises made by the government are upheld. The failure on the part of the government to
ratify treaties related to custodial violence is also seen as one of the many reasons for such cases.
There is a need for better enforcement of such laws and efficient working on the part of the
government. Also, need to create awareness among people about their rights in cases of such
arrests. Through awareness and education we can eradicate any causes that are there and could
diminish the number the number of cases of custodial death to greater extent.