Custodial Torture : Injustice by the

protectors of Justice.
By: Sankalp Malik & Alok Saxena1

“Injustice anywhere is a threat to justice everywhere”

-Martin Luther King Jr.

Introduction

A standout amongst the most basic elements of the state is to keep up lawfulness and guarantee
poise of its citizens and this capacity is endowed to a body known as the "Police". Policeman, as
an overseer of law has a multifaceted character in a society, viz. conservation of lives and
property, security of guiltless people against abuse and terrorizing nipping the reprobate
inclinations and to act unremittingly to guarantee peace and request in the general public, where
freedom, uniformity and equity saturate all men are the esteemed beliefs of a policeman. To
execute these lawful obligations, extensive variety of forces of capture and examination are
vested in police by law yet these forces are regularly mishandled by the police to torture the
suspects either to unravel a crime or for sadistic pleasures in the so called bona fide name of
investigation, which stands contrary to the duties of the police.

As per the Oxford dictionary “custody” means protective care or guardianship of someone or
something. In the legal parlance Custody is defined as any point in time when a person’s

1
B.B.A LL.B(H), Amity Law School, Noida.

Page | 1
freedom of movement has been denied by law enforcement agencies, such as during transport
prior to booking, or during arrest, prosecution, sentencing, and correctional confinement.2

Emergence of Custodial Torture

The practice of torture by the law enforcement agencies is not a new phenomenon but was a
feature of the administration of criminal justice even in the Vedic and post Vedic period in India.
The trial by ordeals of fire, water. poison etc. was in vogue to determine the guilt of the accused
and sometime a person proved his innocence by death, as the ordeal was very painfiil and
dangerous.3 In Medieval India and during Mughal rule the policing duties were entrusted to an
officer Imown as "Kotwal." He was perceived to be ruthless, cruel, arbitrary and effective when
it was so in his interest. The position of police during British rule did not see much change.
During this period the police were exclusively concerned with the detention of crimes or
prevention of infringements of law. They were generally callous or harsh and, on occasions
ruthless, in administering the law and especially in the task of investigation of crimes.4

Though during this span of time a number of amendments were brought forward like designating
various Police Commissions and establishment of Police Act in the year 1861. In the days
precedent to independence agitations, uprisings and even constitutional movements were
undertaken as human liberties were mercilessly suppressed with the aid of the police and hence
The police was looked upon with doubt and abhorrence by substantial segments of the general
population who considered it as simple motor of mistreatment. The Police Act of 1861 still
remains the central piece of legislation that governs all aspects of policing in India. The Police
Act of 1861 was an absolute consequence of Indian Mutiny of 1857 and therefore, was intended
to promulgate a police regime upon the citizens. The Police Act,1961 introduced a police
mechanism designed to be absolutely submissive to the executive and highly authoritarian. The
managerial ideology of the police hierarchy was based as skepticism of the lower ranks.

2
Gill J, Koelmeyer TD. Death in Custody and Undiagnosed Central Neurocytoma. Am J Forensic Med Pathol
2009;30: 289–291
3
V.D. Kulshershtra, Landmarks in Indian Legal and Constitutional history, Eastern Book Company, Lucknow, 6
Edition, 1992, P. 8-10
4
P. Lakshmi & K. Vijaya Lakshmi "Custodial Violence- Stripping of Human
Dignity" Criminal Law Journal, Vol. 114, part 1300, April. 2008, P. 9

Page | 2
The British government also observed that the Police Act of 1861 had defeated the purpose to
emerge as an effective and competent police force. An extensive attempt to advance the police
system was made in 1902, when the government formed a commission under the chairmanship
of Sir A.H.L. Fraser to introduce changes in the police system. The commission made numerous
proposals however the pioneer arrangement of policing stayed unaltered. Even after the
termination of the British Raj in India, the police system wsas more or less the same. Post-
independence, the Indian political system was reconstructed into a democratic one but the police
system remained its colonial substructure remained the same as the Police Act of 1861 remained
unchanged. Unfortunately, all police manuals and new Acts are drafted almost exactly on the
blueprint of 1861 Act. There is no critical change in the execution or conduct of the police.
Police frameworks in India can even now be portrayed as an administration constrain, which puts
the whims of legislators or the highly authoritarian over the lead of law and the necessities of
citizens. In 1960's initiatives were taken by the State Governments to set up commissions for
advancement of the police system. Amid the 1970's the Central government appreciated setting
up the advisory group on police Training in 1971 and later the National Police Commission in
1977, in the new thousand years, Malimath Committee detailed in 2003 and Soli Sorabji
Committee drafted another Police Act in 2006.

Custodial Torture

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.5 The former Supreme Court judge, V.R. Krishna Iyer, has aforementioned that “Custodial
torture is worse than terrorism because the authority of the State is behind it.”6

5
K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice Process in India, (Eastern Book
Company, Lucknow, 1st Edition, 2004) p. 219
6
The Hindu, Custodial Torture Worse than Terrorism, http://www.thehindujobs.com/the
hindu/2003/07/27/stories/2003072703510500.htm (Visited on January 23, 2010)

Page | 3
A 20-year-old Dalit R. Jay Kumar died due to alleged torture at the Chitilapakkam Police Station
in Kanchipuram district of Tamil Nadu. The deceased, a school van cleaner, was picked up for
questioning in connection with a case of assault on 14 November 2010. The deceased was
released on 15 November 2010 after his mother allegedly paid a bribe of Rs. 1000. However, he
had to be hospitalized at the hospital where he died. The deceased’s mother alleged that her son
sustained injuries due to torture by two constables, which resulted in his death.7

In another case, Babu (58 years), a laborer, died due to alleged torture at Kattakada Police
Station inThiruvananthapuram in Kerala. Babu was taken into custody on a warrant in
connection with a clash over a land dispute in 2002. Police claimed Mr. Babu collapsed at the
police station and was rushed to hospital where he died. However, the deceased’s family alleged
that he was tortured resulting in the death.8

Today the society has nearly succumbed to the syndrome of lawless tensions, psychic penury and
miseries of conflict, at individual, domestic, local, national and international levels. The legal
mutiny far from salvaging man is gnawing at him from within. Incarcerating barbarity has been
validated by the popular retributive-deterrent philosophy, this is current sentencing coin in many
criminal jurisdictions.9

Infringement of Human Rights:

The forbiddance of torture and other brutal or corrupting treatment has been upheld as far back
as the reception of the Universal Declaration of Human Rights 1948 and the Geneva
Conventions 1949, yet it was just in 1948 that the UN Assembly surprisingly embraced the
tradition against torture. The tradition, other than different things conveys the meaning of torture.
It characterizes torture as follows: “Torture means any act by which severe pain or suffering
whether physical or mental is intentionally inflicted on a person for such purposes as obtaining
from him on a third person information or a confessions, punishing him for an act he or a third
person has committed or intimidating or coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of

7
Complaint of Asian Centre for Human Rights to National Human Rights Commission, 3 December 2010
8
Complaint of Asian Centre for Human Rights to National Human Rights Commission, 14 January 2010
9
V.R Krishna Iyer : Constitutional Miscellany , 2 nd Edn ( 2003) p. 149, 151

Page | 4
or with the consent or acquiescence of a public official acting in the official capacity. It does not
include pain or suffering arising only from inherent on incidental to lawful sanctions"10

The motto of the National Human Rights Commission is “Sarve Bhavantu Sukhinah”. Happiness
and health for all is sought to be achieved through a rights-based regime where respect for
human beings and their dignity is cardinal. President’s assent to the Protection of Human Rights
Act was a major breakthrough in this direction. Section 3 of the Act provides for the setting up of
the National Human Rights Commission (NHRC) and Section 21 provides for the setting up of
various States Commissions (SHRC)11

Factors Responsible for Custodial Violence

Evidently talking about our nation, we are usual to think as far as tit for tat and a tooth for a
tooth. Thus, our society inherently expects and impliedly consents for inflicting physical force
i.e. violence on suspects to solve the crime. Complainants themselves, instigate the police to use
force on the suspected or the accused. In this way, policemen get figuratively speaking, social
support for these illicit demonstrations. In this way there is no social disgrace appended to the
custodial violence executed by the police, which is a critical social element. There are many
purposes behind the custodial violence conferred by the cops inside the four dividers of police
stations. A portion of the purposes behind such wrongdoings are as under:

A. PSYCHOLOGICAL REASONS:
The use of scientific methods of investigation may at times be a long drawn process.
Investigating officers lacking proper orientation in scientific methods like resort to third
degree for eliciting confession and for unearthing mystery or motive behind the
commission of offence.12
There are different psychological reasons because of that police regularly resort to
custodial savagery. They are specified as under:

10
Article 1 of the 1984 UN Convention Against Torture or other Cruel ,Inhuman Degrading Treatment , General
Assembly Resolution 39/46 of 10th December 1984.
11
The Protection of Human Rights Act, 1993. Act 10 of 1994, with Amendment Act, 2006. Springborn RR. Outlook:
Death in custody. Department of Justice Criminal Justice Statistics Centre, California. May 2005.
12
Puppul Srivastava & Shukti Trivedi, "Custodial crimes in India: A Grave
violations of Human Rights" Criminal Law Journal, Vol. Ill , Part 1267,
August, 2005, P.299.

Page | 5
 1. The law implementation officers regularly depend on third-degree torture because of
the poor relationship between the police and the society.
2. The absence of legitimate training and familiarity with human rights laws.
3. They follow old methods which are used for training given to budding police officers.
The accentuation is still more on muscle than on brain. They trust that Aggressive
implementation of law also, arranges as a fast settle answer for the issue of rising
crime, without discussing the main reasons for increasing crime
4. Stress due to pitiably working states of the cops.
5. Corruption because of a poor state of administration in regard of pay,
payments and various promotions.

B. PRESSURE OF JOBS
An examination of the National Police Commission demonstrates that an examining
officer commits just 37 percent of his time in investigational work while whatever is left
of 63 percent his time is taken up by different obligations associated with upkeep of VIP,
band bust, petitions, enquiries, court participation and so on.
The outcome is constrained well to open and careful examination and
reliance on an alternate way, additional lawful techniques and torture this will, be that as
it may necessitate substantially bigger group of police officers to handle the heavy work
load.

C. INADEQUACY OF INFRASTRUCTURAL FACILITIES

Lack of independent female and juvenile lockups due to lack of infrastructural facilities
in many police stations has made it hazardous for women and juvenile denounced for
confinement at the police stations after their arrest. The security of women corrodes as
there is an inadequate number of woman police officers and woman constables at the
police station leading to custodial rapes. In most cases sexual harassment in the form of
molestation or rape in the custody are committed on women accused person who are left
alone in the custody of sentry constables and duty officers at odd hours of night. 13 The
Asian Centre for Human Rights reported that there have been 45 cases of custodial rape
in India between 2002 and 2010 but in reality, this figure could be much higher.14

D. TORMENT ROOTED DUE TO LOW JOB SATISFACTION

The society doesn't place much confidence and respect for the police officers. Also, the
basic minimum working conditions are denied to them. They are poorly paid, they
execute their work in poor working conditions, are denied housing and have scarce job
security. All of this leads to frustration and aggression in the police officers which then
13
Ibid P. 230
14
The Asian Centre for Human Rights, report 13th March 2011.

Page | 6
 treat the accused with severe means amounting to violence in the custody. Cops regularly
see themselves as to be pawns in the hands of effective government officials. A large
portion of the deaths in police custody is particularly credited to political impedance.

INTERNATIONAL & NATIONAL CONCERN FOR

CUSTODIAL VIOLENCE

Custodial torture has been an International concern which can be traced back to the 19 th Century
where the movement to eradicate slavery began. The Universal Declaration of Human Rights in
its preamble acknowledges the constitutional dignity and equality as inviolable rights of every
member of the society as a bedrock for Justice, Peace and Freedom. The General Assembly
proclaimed that the declaration of human rights as a common standard of achievement that all
nations shall constantly keep in mind and shall strive by teaching and education to promote
respect that all human beings are born free and equal in dignity and rights.15 Therefore measures
have been taken by countries to safeguard the victims of custodial violence. Article 5 of
Universal Declarations of Human Rights states that no one shall be subject to torture or cruel,
inhuman or degrading treatment or punishment. 16 Article 9 of the Universal Declaration of
Human Rights guarantees that human has the right to security of persons. No one shall be
subjected to arbitrary arrest or detentions.17 Article 6 of the International Covenant on Civil and
Political rights defines that every state shall keep proper check on techniques used by the police
officers for interrogation and arrangements shall be made for custody and treatment of persons
who are in custody.18 Manoj Yadav, 28, was crying when his father Dayanand Yadav met him in
the lock-up of Sadar police station in Bihar's Nawada district. The police torture had left him in
excruciating pain. He could not even eat the home cooked food his father had brought. The next
day, Manoj's body was found in a barren field, sprawled in the dust, saliva oozing from his
gaping mouth. This was the second time the police had arrested Manoj, who had no criminal
record. First time he was arrested for using a murdered businessman's mobile phone, which he
had found abandoned in the streets. The police released him after interrogation when he was
found innocent. But with pressure mounting to crack the murder case, the police picked up
Manoj again and this time, the police thrashed him in an effort to make him talk, killing him in
the end. The incident sparked off a furore, forcing the police to file an FIR against five

15
Article 1 of the Universal Declaration of Human Rights, 1948 – “Everyone has the right to life, liberty and security
of person.”
16
Article 5 of the Universal Declaration of Human Rights, 1948 – “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.”
17
Article 9 of the Universal Declaration of Human Rights, 1948 – “No one shall be subjected to arbitrary arrest,
detention or exile.”
18
Article 6 of the International Covenant on Civil and Political Rights.

Page | 7
policemen. Superintendent of Police, Nawada, Surendra Lai Das claims Manoj was never
arrested, but he fails to explain why, in that case, was the FIR lodged against the policemen.19

LEGAL REMEDIES AGAINST CUSTODIAL TORTURE

Detention does not deprive one of his Fundamental Rights.20 It has been adjudicated in a number
of cases that an arrestee is not deprived of his fundamental rights for the sole cause that he is in
the police custody and is detained, the violation empowers the arrestee to approach the Apex
Court under Article 32.21 They don’t flee the persons as he enters the prison although they may
suffer shrinkage necessitated by incarceration.22 In any case, the degree of shrinkage can and
ought to never achieve the phase of torment in authority of such a nature, to the point that the
people are decreased to a mere animal presence.

Constitutional Provisions
A. ARTICLE 20 of the Constitution of India
Article 20 predominantly gives a person rights against conviction of offences. This
incorporates the principle of non-retroactivity of penal laws (Nullum crimen sine lege.)23
therefore, ex-post facto laws in this way making it an infringement of the people’s
fundamental rights if endeavors are made to convict him and torment him according to
some statute. Article 20 also acts a safeguard against Double Jeopardy ((Nemo debet pro
eadem causa bis vexari)24 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.

ARTICLE 21:
The Indian judiciary has interpreted the purpose of this article in a catena of cases that it is 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.25 The expression "life or personal liberty"

19
http://indiatoday.intoday.in/story/bihar-custodial-deaths-on-riseinindia/l/
182367.html, Article name, 'Policemen are killers in khaki' by Amitabh
Srivastava Visited on 06/03/2017.
20
Prabhakar Pandurang v. State of Maharashtra, AIR 1966 SC 424
21
V.N. Paranjape, Criminology and Penology, (Central Law Publishing, Allahabad, 12th Edition, 2005) p. 381
22
Sunil Batra (II) v. Delhi Admn., (1980) 2 SCR 557
23
"No crime, no punishment without a previous penal law", Article 22 of the Rome Statute of the International
Criminal Court
24
“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)
25
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 746a; Bandhua Mukti Morcha v. Union of India,
(1997)10SCC549; People's Union for Democratic Rights and Ors v. Union of India (UOI) and Ors, AIR 1982 SC 1473

Page | 8
 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 arising due to such criminal use of force over the captive
person.26.

ARTICLE 22
Article 22 renders four key fundamental rights in espect to conviction. I) being formed of the
grounds of arrest. II) legal practitioner of the accused’s choice. III) preventive detention laws.
IV) Accused to be produced before the magistrate within 24 hours of arrest. In this manner,
these arrangements are intended to guarantee that a man is not subjected to any evil
treatment that is without statutory support or outperforms recommended abundances.

Other Statutory Provisions

Indian Policw Act

26
D.K.Basu v. State of W.B, (1997) 1 SCC 416

Page | 9