Introduction : Anyone with limited legal knowledge would be able to make out
that this term means something negative. So what is custodial violence and why
is it in the news so often? To answer why we hear or read about it so often, we
need to understand what it means. Custodial violence is the term given to the
inhuman treatment of individuals in custody by the police.
This act isn't something new, as it has been in existence for a very long time.
But then why haven't we been able to solve this problem? What are the various
forms of custodial violence? Up until now, what steps have been taken by our
country to solve this problem? All these questions are answered in this article.
What is custodial violence
According to the Chambers Dictionary, the condition of being held by the police,
arrest, or imprisonment is called 'custody'. Violence means the use of force by
one person over another so as to cause injury to him. The injury may be
physical, mental, or otherwise.
Custodial violence basically means torturing or inflicting violence on an
individual or group of persons while in the custody of the police or judiciary.
According to the Law Commission of India, crime by a public servant against the
arrested or a detained person who is in custody amounts to custodial violence.
Usually, custodial violence results in the death of the victim or trauma to the
victim. It is important to note that the term custodial violence has not been
defined under any law. Custodial violence includes illegal detention, wrongful
arrest, humiliating suspects, extorting information under pressure, and
physical, mental, and sexual violence.
Some of the statistics released by the National Human Rights Commission (NHRC),
National Crime Records Bureau (NCRB), and National Campaign Against Torture (NCAT)
are discussed below:
- 151 people died in police custody in the year 2021 as per NHRC.
- 1,569 deaths in judicial custody were recorded in the year 2020 by NHRC
- 55 deaths by suicide due to police torture were recorded in the year
2020 by NCAT
- Torture of women in custody, custodial rape of women, and gang rape were
Types of custodial violence
The authorities come up with different types of violence for different
circumstances for purposes like extracting information or abusing authority.
- Physical violence
This is the most common form of violence used by the police. This involves
using physical force to cause bodily harm and exhaustion to the victim. In
some instances, this form of custodial violence can cause the victim to fear
- Psychological violence
The next type of custodial violence deals with the mental aspect of the
victim. This involves depriving the victim of basic needs like food, water,
sleep, or toilet thereby causing the victim to lose confidence and morale.
Humiliation or threats to the dear ones of the victim can cause them mental
- Sexual violence
Any sexual or attempt to obtain a sexual act by violence or coercion is
called sexual violence. This includes rape, sodomy, etc.
Causes of custodial violence in IndiaThere are various causes of custodial violence by the police:
Indian laws dealing with custodial violence
- One of the biggest causes can be attributed to the absence of an
Anti-Torture law in the country.
- Due to loopholes in the system, the policemen do not fear being caught
in the act. This encourages them to continue with their violent methods of
extracting information or to teach their enemies a lesson.
- Lack of awareness among the public about their rights makes them easy
victims. When victims are not aware of their rights, it gives the policemen
the confidence to carry on with violent means to deal with people.
- Lack of proper training also is another cause. The policemen are not
properly trained to deal with suspects. Little attention is paid to their
emotional intelligence which remains unchecked, thereby leading to them
being violent easily.
- Lastly, the huge responsibility on their shoulders, pressurises them to
use faster methods to solve a case. Some policemen crack under this pressure
and resort to violent means to get information quickly.
The lawmakers have kept this possibility of custodial violence in mind while
drafting laws that provide safeguards to citizens and place limits on the powers
of the authorities. Let's look at each one of these safeguards:
Article 20(1) of the Constitution:
Article 20(1) of the Indian Constitution provides that, no person shall be
convicted of any offence except for the violation of law in force at the time of
the commission of the offence. No person shall be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of
the commission of the offence. This article thus stops the authorities from
charging people with offences not in force at the time and also they can not
subject them to a greater penalty.
Article 20(2) of the Constitution:
Article 20(2) of the Indian Constitution provides that, no person shall be
prosecuted and punished for the same offence more than once.
Article 20(3) of the Constitution:
Article 20(3) of the Indian Constitution provides that no person shall be
compelled to be a witness against himself. This stops the authorities from
coercing the accused to provide evidence.
Article 21 of the Constitution:
The ambit of this article is quite extensive. It states that no person can be
deprived of life and liberty except according to the procedure established by
law. Hence it guarantees to safeguard against any form of torture, assault, or
Article 22 of the Constitution:
Article 22(1) and Article 22(2) are there to ensure certain checks exist in law
to prevent abuse of power by authorities. Article 22(1) provides that no person
shall be arrested without being informed about the grounds of arrest nor shall
he be denied access to a lawyer. Article 22(2) provides that every person who is
arrested shall be produced before the magistrate within 24 hours of such arrest
excluding the time taken for the journey from the police station to the
The Code of Criminal Procedure (CrPC) 1973:
Section 41 of the Code of Criminal Procedure, 1973 was Amended in 2009 to
include safeguards under 41A, 41B, 41C, and 41D so that procedures for arrest
and detention for investigation purposes have reasonable grounds and the
procedures to be documented. Also, family members, friends, and the public to be
informed of the arrest, and legal representation to be allowed for the arrested
Section 163 of the CrPC prohibits the investigating officers from inducing,
threatening, or promising under Section 24 of the Indian Evidence Act (1872).
Section 164(4) of the CrPC provides that confessions be recorded and signed in a
proper manner and confirmation by a magistrate that the confession has been made
voluntarily. Section 49 states that more restraint than necessary cannot be
exercised to prevent one's escape.
Indian Penal Code (IPC) 1860:
Section 220 provides for the punishment for an officer who maliciously confines
any person. Section 330 of the IPC provides that whoever causes hurt to extract
information or confession which may lead to detection of offence shall be liable
to be punished with imprisonment which may extend to 7 years and a fine. Section
331 states the same about grievous hurt but with imprisonment which may extend
to 10 years and a fine. Section 348 of the IPC prohibits wrongful confinement
and any such confinement for extorting any confession or information for
detecting crime. Such confinement is punishable with imprisonment of up to three
years and also liable to a fine.
Indian Evidence Act 1872:
Section 25 states that no confession made to a police officer can be used to
prove any offence against the suspect. Section 26 makes confessions made during
custody inadmissible unless made in the presence of a magistrate.
Police Act 1861: Section 29 of the Act provides that if a police personnel
inflicts violence on a person in his custody, he shall be liable to a penalty
not exceeding 3 months of pay or imprisonment not exceeding 3 months or both.
Role of a Magistrate
Article 22(2) provides that every arrested person has to be brought before the
nearest Magistrate within 24 hours of arrest excluding the time taken to travel
from the place of custody to the magistrate. Also, no one can be kept for more
than 24 hours without the order of a magistrate. So the arrested person is
brought before the Magistrate whose duty is to examine if the arrested person
has been subjected to custodial violence. The arrested person is questioned
regarding the same and the magistrate is required to inform him of his right to
get medically checked. The magistrate has the duty to decide if the arrested
person is to be sent to remand.
Since the Magistrate is the first stop where the arrested person is presented
after arrest. It is also the first stop where the victims of custodial violence
get the chance to be heard. Here, the role of the Magistrate becomes crucial in
deciding the fate of a custodial violence victim. If the victim is not heard or
examined properly, then sending him to remand would worsen his situation. Hence,
the Magistrate should be vigilant and be proactive while dealing with cases of
custodial violence and make necessary interventions to protect the rights of the
Recent instances of custodial violence
The most recent instance of custodial violence took place in the State of Tamil
Nadu in the year 2020. Jayaraj and his son Fenix were picked up by the police
for inquiry into their alleged violation of the Indian Government's COVID-19
lockdown rules. They were sexually assaulted and tortured by the police which
led to their deaths. The torture continued for 7 hours and the police staff took
turns in beating the two. They were stripped naked which added to the brutality.
In another case, 4 men accused of raping and murdering a 27-year-old
veterinarian were taken into custody. The news of rape had sparked a huge
outrage all over the country. The police during the investigation, fired upon
the accused leading to their death. This raised concerns about custodial
violence and an inquiry was set up. A panel headed by former SC Judge V.S.
Sirpurkar found that the police fired at the accused with an intention to cause
death. The panel recommended filing murder charges against the 10 policemen
responsible for it.
Recently Vikas Dubey, a gangster, was arrested for killing eight police
personnel in Kanpur. While he was being transported the next day, the vehicle
carrying him met with an accident and overturned. The police alleged that while
a policeman was fixing a flat tire, Dubey snatched his gun and tried to flee.
This provoked the police and he had to be shot. There have been several clues
indicating that this was staged and that it was another case of custodial
In the month of June this year, five policemen were booked for torturing a man
suspected of a crime in Uttar Pradesh. The policemen reportedly inserted a stick
inside his rectum and gave him multiple electric shocks. After realising that
they had arrested the wrong person, they paid him Rs. 100 and let him go.
Landmark cases relating to custodial violence
There have been several judgements made by the Supreme Court where they have
taken steps to curb police brutality or custodial violence.
Nilabati Behera vs. State of Orissa, 1993Facts of the case
In this case, Suman Behera, the petitioner's son, was arrested by the police and
on the very next day, his dead body was found on the railway tracks with
multiple injuries. The police claimed that the victim had escaped from the
Police Station and was found dead on the railway tracks the next day.
Issues involved in the case:
Judgement of the Court
- Whether the victim suffered injuries due to custodial violence.
- Whether the police are liable for the death of the victim.
The Supreme Court found that the injuries were inflicted on the victim while he
was in custody, thereby indicating that he was subjected to custodial violence.
The court held that providing compensation is the responsibility of the State
and not the police and awarded a compensation of Rs. 1,55,000.
D.K. Basu vs. State of West Bengal, 1997
This case is important because the Supreme Court in this case recognised
custodial violence and police brutality. It stated that custodial violence is an
attack on the dignity of a human being. The court noted that enacting
recommendations and policies have had no effect as a death in police custody is
increasing at an increasing rate. In this case, the Supreme Court laid down 11
guidelines that are to be followed while making an arrest. These guidelines
consist of various rights that are available to every arrested person.
- The police personnel must bear name tags with their designations while
making arrests or conducting an interrogation.
- Arrest memo to be prepared and copy of it to be attested by a family
member or a respectable person of the locality. It must also be signed by
the arrestee and must include the date and time of the arrest.
- In cases where a relative or family member of the arrestee is not
present during the arrest, he is entitled to inform one friend or relative
or other person having an interest in his welfare, of the arrest and
location of detention.
- Within 8-12 hours, the relative or friend of the arrestee must be
informed of the time, place of arrest, and venue of custody if they live
outside the district or town.
- Person arrested to be made aware of his right to inform someone of his
- An entry to be made in the diary of the place of detention, name of the
friend who has been informed, and names and particulars of police officials
in whose custody the arrestee is.
- Major and minor injuries to be recorded at the time of arrest and to be
signed by both the arrestee and the police officer. A copy of it is to be
provided to the arrestee.
- Medical examination by a doctor every 48 hours during the arrestee's
- Copies of all documents are to be sent to the Magistrate.
- Arrestees may be permitted to meet their lawyer during interrogation.
- A police control room to be provided in all districts and arrests to be
intimated within 12 hours to the control room.
Joginder Kumar vs. State of Uttar Pradesh, 1994Facts of the case:
In this case, the petitioner, an advocate, was illegally detained after being
called for questioning by the police. After frequent inquiries by the
petitioner's family members about his whereabouts, the petitioner was taken to
some undisclosed location. The police constantly lied about his whereabouts.
Issue involved in the case
Judgement of the Court
- Whether the police are guilty of illegally arresting the petitioner.
The Supreme Court held that arresting someone without justification would make
it illegal. It also stated that the police have been given certain powers but
they cannot misuse them for illegal purposes.
Rudul Shah vs. State of Bihar, 1983Facts of the case
In this case, Rudul Shah, the petitioner, was detained in prison for over 14
years after his acquittal. A writ of habeas corpus was filed demanding his
immediate release. A plea was also made seeking compensation for his illegal
Issue involved in the case:
Judgement of the Court
- Whether the detention of the petitioner was justified or not.
The Supreme Court held that the detention was wholly unjustified. It also stated
that ensuring his release and not awarding compensation would be mere lip
service to the petitioner's fundamental right to liberty. It held that if an
individual's fundamental right is violated by the wrongful act of the State,
then that individual is entitled to compensation. The Government of Bihar was
ordered to pay a sum of Rs. 30,000 in addition to the Rs. 5000 paid by it.
Bills introduced to curb custodial violence
The Prevention of Torture Bill, 2010
was introduced to curb the problem
of custodial violence. The objective of the proposed law was to provide
punishment for torture inflicted by public servants or any person inflicting
torture with the consent or acquiescence of any public servant. The bill had
defined torture and had proposed a punishment of a minimum of 3 years and
extended to 10 years in prison along with a fine for the perpetrators of this
The bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the
Bill to a Select Committee which then proposed certain changes to the bill.
However, the bill lapsed due to the dissolution of the 15th Lok Sabha.
In 2017 the bill was introduced as a private member bill in Rajya Sabha and in
2018, it was introduced in the same manner in Lok Sabha. The latter lapsed due
to the dissolution of the 16th Lok sabha.
Role of NHRC in prevention of custodial violence
The National Human Rights Commission (NHRC)
was set up on 12th October
1993. Its objective is to ensure better protection and promotion of human
rights. It acts as a watchdog over the police and issues guidelines on the
process to be followed in case of custodial deaths. It has been given powers
that are equivalent to a civil court. One of its main features includes the
ability to conduct suo motu inquiries. This ability somewhat acts as a
deterrent. This is because, when the policemen are aware of the fact an
organisation is actively keeping a tab on their malpractices, they refrain from
continuing with such practices to avoid falling into trouble.
The guidelines issued by the committee include:
- In cases of custodial deaths, a magisterial inquiry would be conducted.
- The magistrate must visit the place of crime, note all relevant facts,
record evidence and identify witnesses.
- Issue of public notice to the witness.
- An inquiry should include reasons for death, events leading to the death
of the victim, suspects of the said crime, and medical treatment provided to
the victim taken into account.
- Recording of statements of family members, relatives, and witnesses.
- A detailed report to be prepared on time.
Recently in 2020, the Supreme Court of India in the case of Paramvir Singh Saini
v. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020 directed the State
governments to install CCTV cameras in the police station. The court also
reiterated the 9 directions it issued to the State governments apart from the 11
it had issued in the year 1996. Some of the notable directions include:
- State governments to install CCTV cameras in police stations in a phased
- Deployment of at least two women constables in police stations where
women have been taken for interrogation.
- Setting up of State Human Rights Commission (SHRC).
- Filling up of vacancies in SHRC as and when they arise.
- Setting up of Human Rights Courts.
- The CCTV must have night vision and audio recording capability.
- The recording should be preserved for a period of 18 months.
If implemented properly and quickly, this would help curb instances of
custodial violence in the country.
Prohibition of custodial violence - the way forward
In order to curb cases of custodial violence there needs to be major changes in
Some of the sources from which India can take inspiration include:
- Body cams � Just like police in some foreign countries are required to
wear body cams at all times, the police in India need to do the same. Body
cams with all the requirements like audio recording, GPS tracking, etc. need
to be made available as soon as possible as they would act as a deterrent
for the police.
- Even though the CCTV cameras are being installed in the police stations
gradually, there has to be a proper procedure to ensure that the cameras
work properly and are being checked on a regular basis. During
interrogations, there has to be a higher level officer keeping a watch from
the CCTV cameras.
- Physiological-Physical-Medical tests need to be conducted periodically
to ensure that all the police personnel are in the right state of mind to
carry out their duties.
- All the police stations must be made to put up posters which contain the
rights of arrested persons. The instructions should be in English as well as
in the language of that locality. This would ensure that the unaware people
who are brought into custody get to know their rights and exercise it.
- Awareness programs should be run by the government by making the Police
- Lastly, an Anti Torture law must be made as soon as possible containing
strict punishments for the offenders.
- Section 2340A of Title 18, United States Code:
It provides for the prohibition of torture including custodial torture. It
applies to acts of torture outside the country. It aims to hold people of US
nationality liable for torture inflicted upon anyone including victims of
other countries. It also applies to foreign offenders residing in the
country. Such wide provisions enable the justice system of the USA to hold a
person liable for committing torture even if he is a foreign national. India
must also make provisions such as this to give itself wide-reaching powers
to hold the perpetrators liable.
- Human Rights Act, 1998:
In the United Kingdom, human rights are protected by this Act. Section 3 of
the Act talks about the right to not be ill-treated. It clearly defines what
constitutes ill-treatment and degrading treatment, what to do when these
rights are breached, etc. Such clarity allows its justice system to deal
with cases of custodial torture in a better way. India would benefit from a
codified law dealing with custodial torture as it would enable the justice
system to convict the perpetrators using well-established procedures and
- United Nations Convention against Torture and other Cruel, Inhuman,
and Degrading Treatment or Punishment:
Even though India has been a signatory to this Treaty, it has still not
ratified it. This Treaty laid down in detail the various methods the
signatory countries must adopt in order to effectively deal with the crime
of torture. The Prevention of Torture Bill, 2010 was a step in this
direction. India can take inspiration from countries that have ratified this
Treaty and make better legislation to protect people from torture, including
Implementation of Law Commission of India's 273rd Report:
The Commission in the 273rd report focused on the "Implementation of 'United
Nations Convention against Torture and other Cruel, Inhuman and Degrading
Treatment or Punishment' through Legislation." It made some important
- It suggested that the definition of torture should include inflicting
injury, either intentionally or voluntarily, or even an attempt to cause
such an injury which will include physical, mental or psychological injury.
- The Commission prepared a draft "The Prevention of Torture Bill, 2017"
which provides for punishment for torture, inhuman treatment inflicted by
public servant on persons while in custody and protect the interest of
victims, their compensations etc.
- The Commission suggested the ratification of Convention Against Torture.
This will aid the government in getting criminals extradited and ensure
individuals' right to life.
- The CrPC and the Indian Evidence Act require amendments to incorporate
payment of compensation and a provision in IE Act which would put the burden
of proof on the police in case a person sustains injuries in custody.
- It suggested stringent punishments for perpetrators of this heinous
- It also recommended a compensation policy for the victims and the power
will lie with the courts to allocate justiciable compensation.
- An effective mechanism must be put in place to protect the victims,
complainants and witnesses against ill treatment and threats.
- The commission believed that the State should own the responsibility for
injuries caused by its agents and sovereign immunity should not override the
rights given by the Constitution.
The implementation of these recommendations would help curb the menace of
custodial violence by the authorities.
Custodial violence is indeed a disgraceful act against humans. It has been used
by people having authority to get what they want without considering the immense
trauma the victim has to face. Although international bodies and commissions
have taken steps to curb this act, we are still far from our goal. In India,
even though there are rights available to citizens, the cases of custodial
violence keep on increasing.
The Hon'ble Supreme Court has tried to fill the gap
by pronouncing landmark judgements and laying down guidelines, but it still
doesn't seem enough. Some ways in which this problem could be solved further
could be the enactment of the Prevention of Torture Bill, 2010, equipping
officers with body cameras, physiological-physical-medical tests, and
assessments of the investigating officers be undertaken every year, etc.
Award Winning Article Is Written By: Mr.Shvet Sharma
Authentication No: AP348037665934-24-0423
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