In India, the Rule of Law is of the utmost importance. To uphold this very principle, law enforcement bodies are set up. Consequently, such bodies do have certain powers which having the force of law can trespass on the rights of others. At the outset, the law must protect the rights and enforce the obligations emanating from it, but it must do so with utmost force when such rights are subjected to exceptions created by law itself, ensuring that such exception does not erode the inherent right itself. This is the very issue of Custodial Violence.

Custodial Violence includes physical, psychological or mental hurt, sexual assault and rape on a person while in custody of police or other law enforcement officers by such officers. It is a menace and the worst form of human rights violation[1] as the victim has no control and is subjected to the officers' conduct. It is inflicted on the persons to gain information by intimidating or by punishing the accused extra-judicially.[2] Because the instances of custodial violence have been increasing year-on-year and there is an absence of a framework which provides for investigations, remedies and prevention of the same, the judiciary has tried to fill the gap through certain judgments.

In this article, we will examine how the judiciary has performed its role in tackling the issue of Custodial Violence.

Legal Standing of Custodial Violence

The right to life and personal liberty is recognised by Article 21 of the Constitution but is subject to the exception of infringement of the same by procedure established by law. This exception is what allows arrests, custody and detention of persons. But simply this does not mean that a person's life should be totally in control of the police officers. Rather there must be limitations to such exception so that the right and the intent behind it is not eroded.

The Supreme Court in the case of Maneka Gandhi v. Union of India[3] broadened the interpretation of Article 21 by stating that it is not just the right to live but a right to live life with human dignity. When a person is subjected to custodial violence it is a clear infringement of the fundamental rights, for a police officer is tasked with a fair investigation and it is for the Courts to decide whether the person is guilty or innocent.

Section 176 of the Criminal Code of Procedure (CrPC) and now s. 196 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) provides that a Magistrate shall inquire into the matters of death or rape caused while in the custody of the police. Section 330 and 331 of the Indian Penal Code (IPC) and now s. 120 of the Bharatiya Nyaya Sanhita ("BNS") provides punishment for voluntarily causing hurt or grievous hurt to extort confession or to compel restoration of property.

Custodial Violence and Violation of Fundamental Rights:

Article 21 was afforded wider interpretation in Maneka Gandhi (supra). This very interpretation gave a standing to many landmark judgements including the instant case of custodial violence. But the question arises whether a prisoner's right to life ends when he is put behind bars.

This question was answered by the apex court in the case of Sunil Batra v. Delhi Administration[4], it observed that even though a person is convicted, still such a prisoner is a person and not an animal. It held that when a person is jailed his basic fundamental rights are not lost.
In Nilabati Behera v. State of Orissa, the court stated: "Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21". The court emphasized that:

• The police or prison authorities have a duty to protect the right to life of persons in custody.
• Even the limited liberty a prisoner has is valuable and must be preserved.
   

The case of D. K. Basu v. State of West Bengal (1996) is a landmark judgment which:

• Recognized custodial violence as a serious violation of fundamental rights.
• Framed guidelines to prevent illegal detention and custodial torture.
• Described such violence as a "naked violation" of human dignity and a blow to the Rule of Law.
• Stated: "Custodial violence... is committed under the shield of uniform and authority... the victim being totally helpless."
• Held that custodial violence constitutes a violation of Article 21.
• Clarified that while the police can arrest and interrogate, third-degree methods are impermissible.
   

Conclusion from the above cases:

• Conviction or imprisonment does not strip a person of their fundamental rights except as lawfully restricted.
• Custodial violence, torture, mental deprivation, and custodial rape are egregious violations of these rights.
• Victims are often helpless and authorities have control over records and outcomes.
   

• Ubi jus ibi remedium – Remedy for violation under Article 21:
  • Supreme Court has examined whether compensation can be provided under Articles 32 and 226.
  • In Rudul Sah v. State of Bihar:
    • The petitioner remained in jail for 14 years post-acquittal.
    • The Court held that merely declaring a violation of Article 21 is not enough - compensation must be awarded.
       
  • In Nilabati Behera:
    • Compensation is a public law remedy available under Articles 32 and 226.
    • State has strict liability for its officers' violation of fundamental rights.
    • Sovereign immunity is not a valid defence in public law claims.
    • Such remedies are in addition to private or criminal proceedings.
    • The Court has the power under Article 32 to forge new tools for complete justice.
       
• Types of remedies available for custodial violence:
  1. Criminal Proceedings
  2. Private Law (Torts – now often under criminal law due to codification)
  3. Public Law (between citizens and the State)
  4. Compensation addresses physical and mental harm and serves justice.

While recognising that custodial violence is one of the worst inflictions on human dignity, we must also acknowledge that there are and will be some false cases, and following the precedents blindly and thereby awarding compensation may rather lead to injustice.

This was the very thing considered in Sube Singh v. State of Haryana[8], where the court laid down the following criteria to decide if compensation is necessary:

1. Whether the violation of Article 21 is patent (clear and apparent) and incontrovertible (cannot be refuted);
2. Whether the violation is gross (deliberate with no sensitivity) and of a magnitude to shock the conscience of the court;
3. Whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability.

While looking at the other side of compensation, let us also look at the other side, that is the police or the officers. The apex court in numerous cases also recognised the fact there needs to be balance and the court must not go beyond what is necessary and encroach thereby on interrogation methods required to deal with hardened criminals. Although that does not mean allowing custodial violence.

It recognised the pressure built up on officers when handling high-profile or serious cases, where people expect the crime to be solved as quickly as possible and therefore the pressure to catch the offender. It further stressed the point of overhauling the mindset of people and police together, the need to train officers in scientific interrogation methods, and inculcating respect for human rights. This brings us to the last and the most important part.

Preventive Measures for Custodial Violence

From the case of Sunil Batra (supra) to the recent case of Paramvir Singh Saini v. Baljit Singh & Ors, numerous directions and guidelines were issued by the apex court. In Sunil Batra (supra), the court gave four directives:

• Prisoner's Handbook must be prepared and inmates be given legal awareness;
• The State shall keep up with Standard Minimum Rules for Treatment of Prisoners by the UN;
• Prisoners Act and Prison Manual shall be overhauled;
• Prisoners' rights to be protected by the court and free legal services to the prisoners shall be promoted.

In Joginder Kumar v. State of Bihar, the court gave certain directions now reflected in CrPC and BNSS:

• Arrestee shall be entitled to inform one person that he has been arrested and the place of his detention;
• Officer shall inform the place of detention to the arrestee;
• Entry in diary about who was informed by the arrestee;
• Magistrate to satisfy himself that the aforementioned requirements were complied with.

In D.K. Basu Case, important directives were laid down, later incorporated into CrPC and BNSS. The 1996 case laid down 11 requirements:

• Arresting and interrogating officers shall bear name tags with designation, and particulars of those who interrogate shall be maintained in a register;
• The officer shall prepare a memo of arrest and get it signed and countersigned;
• Point (a) of Joginder Kumar (supra);
• Time, place and venue of arrest to be notified by police to one person if the arrestee lives outside the district;
• The arrestee shall be made aware of his right under point 3;
• Point (c) of Joginder Kumar (supra);
• The arrestee, on his request, be examined at the time of arrest and injuries if any be recorded;
• The arrestee shall be subjected to a medical examination every 48 hours;
• Copies of all the above documents shall be sent to the Magistrate;
• The arrestee may be permitted to meet his lawyer during interrogation, but not throughout;
• A police control room shall be communicated with the arrest details.

In Dilip K. Basu v. State of West Bengal (2015), the court further directed:

• State Governments shall install CCTVs in all prisons within two years;
• State Governments shall consider installing CCTVs in police stations;
• They shall also consider appointment of non-official visitors for surprise visits to prisons and stations;
• They shall launch prosecution when enquiry establishes culpability of the persons in whose custody the victim suffered;
• Consider deployment of women constables in certain stations.

In Sube Singh (supra), the court gave guidelines aimed at reformation in mindset, particularly:

• Change in the mindset of police officers towards human rights and training in scientific investigation methods;
• Lower-level officers should be continuously monitored;
• Using modern methods of record maintenance, video-recordings, etc.

In the fairly recent judgement of Paramvir Singh Saini (supra), in furtherance of the status of implementation of directions of D.K. Basu, it laid down clear orders namely:

1. State Level and District Level Oversight Committee (SLOC & DLOC) to be set up and both shall oversee the procurement, distribution and installation of CCTVs, continuous monitoring and upkeep of the same, carrying out inspections and addressing the grievances, reviewing footage stored from CCTVs in various police station;
2. State and UTs shall ensure that CCTVs are installed in each station, and CCTVs shall cover all entry, exit points, lock-ups, corridors, areas outside lock-up;
3. Same shall apply to Central Investigation Agencies.

This brings us to the end of the role of the judiciary in the prevention of custodial violence. Precedents mentioned herein have recognised the issue of Custodial Violence as one of the worst violations of human rights, they also have established the standing for remedy under public law proceedings and given clear directives to ensure that custodial violence is prevented, and in the case of such a crime taking place, the victim has proper means and evidence to support his claim. These judgements highlight the need to codify the law and establish a framework for recognition, punishment and compensation for custodial violence.

End Notes:

1. R.S. Saini, 'Custodial Torture in Law and Practice with Reference to India' [1994] 36 Indian Law Institute, New Delhi.
2. Alden D'Souza, 'Judicial Approach and Reformation in the Law Regarding Custodial Violence in India' [2022] II Indian Journal of Integrated Research in Law 1305,1313.
3. Maneka Gandhi v. Union of India 1978 INSC 16, [1978] 2 S.C.R. 621
4. Sunil Batra v. Delhi Administration 1979 INSC 271, [1980] 2 S.C.R. 557
5. Smt. Nilabati Behera Alias Lalit Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Ors. 1993 INSC 113, [1993] 2 S.C.R. 581
6. D.K. Basu v. State of West Bengal 1996 INSC 1508, [1996] Supp. (10) S.C.R. 284
7. Rudul Sah v. State of Bihar and Anr. 1983 INSC 85, [1983] 3 S.C.R. 508
8. Sube Singh v. State of Haryana and Ors. 2006 INSC 67, [2006] 2 S.C.R. 67
9. Paramvir Singh Saini v. Baljit Singh and Ors. 2020 INSC 672, [2020] 13 S.C.R. 770
10. Joginder Kumar v. State of U.P. and Ors. 1994 INSC 170, [1994] 3 S.C.R. 661
11. Dilip K. Basu v. State of West Bengal & Ors. 2015 INSC 524, [2015] 7 S.C.R. 814