A few days back we witnessed a massive movement in the USA and across the
world regarding the killing of a black man, George Floyd by a police officer.
Police brutality has been seen in almost every country and India is no exception
to this and only a few days after Floyd's killing India witnessed a massive
outrage over the custodial torture and death of a father-son duo by police
officers at Sathankulam police station in thootukudi district, Tamil Nadu and
what was more surprising is the alleged charge against them, that they kept
their shop opened beyond the permitted time. In this case, the role of
magistrate is also under scanner as this was a petty offense and the accused
should have been granted bail.
This case would have gone under the scanner but an RJ posted the video regarding
this incident and people started to show outrage and this outrage has again put
the limelight on Police actions, this case is under investigation and accused
officers have been arrested. People started voicing their opinions about police
reforms, anti-torture law, and many other things that need to be changed in
India has a big way to go in this field, according to a report by the National
crime bureau, between 2001-2018, there have been 1727 reported custodial deaths
and out of these custodial deaths, only a mere 26 police personals have been
Between the same period, the National Human Rights Commission has recorded 2000
human rights violations against police out of which only 34 have reached the
level of conviction. India has a mere 5% conviction rate in cases of custodial
torture and death. Police brutality and atrocities are mainly towards
underprivileged and poor people.
Here in this article, I will be writing about custodial torture, steps to be
taken to reduce and stop this, and mainly about reforms required in police
Custodial Torture: Definition and Indian ContextTorture
in the normal dictionary means the action and practice of inflicting
of severe pain on someone as a punishment or in order to force them to do or say
a form of torture that generally happens when a
person alleged of any crime is under the custody of law enforcement officials.
The Supreme Court has held that Custodial torture is a naked violation of human
dignity and degradation which destroys, to a very large extent human
Custodial torture is a punishable offense under the existing laws but due to
various reasons, the accused do not get convicted. Certain modification in the
law is required and what's more important is the implementation of the existing
and newly enacted laws in the right manner.
Enacting a law is not an important step; implementation of the law is an
important step. India is a signatory of United Nations convention against
torture and other cruel activities since 1997 but it has not ratified it as
India does not have any comprehensive law on torture. Law commission in 2017 has
proposed anti-torture law still the government has not taken any action in this
Indian constitution has granted rights to every person and under fundamental
rights enshrined under Article 21: Right to life, it includes the person who has
been detained or convicted or arrested. Basic human rights cannot be taken away
plus under Article 22, rights are laid down for people who are being arrested
Reasons and Steps to be taken to completely curb the custodial torture:
Strict implementation of existing laws and guidelines
Governments have again and again have said that existing laws are enough,
even I am of the same view just a few exceptions:
At present times, existing laws include judgments of
the Supreme Court laying down guidelines, Police Act, 1861, and sections of
the Indian Penal Code and Code of Criminal Procedure.
- change in the evidence act, where the burden of proof still lies on the
plaintiff, this needs to be reversed
- A Comprehensive law on torture. Barring these two changes, existing laws
are more than enough if implemented in the right manner.
If the guidelines laid down by the Supreme Court, first in Joginder Kumar V.
State of Uttar Pradesh (1994) 4 SCC and later on in D.K Bose V. State of
West Bengal AIR 1997 SC 610 is followed in the manner in which it has been
prescribed, there would be no need for new laws.
Guidelines laid down in
these cases include rules relating to detention, arrests, and rights of the
person. It also includes CCTV in prisons and police stations, setting up
State human rights commission which will look after the prisoners and under
trails. Non-official visitors would do surprise checks on the prison.
Monitoring and implementation of all this by an independent agency at each
level under Court's Guidance is sufficient to stop the custodial torture.
Role of media and People's mindsetMedia's role in many cases has been questioned by the people of the legal
fraternity and even by the courts. Medic many times portrays an accused person
as criminal even before the judgment of the court comes out. The media have to
understand its responsibility. It affects the thinking of a person.
Whenever we see a person being beaten by police, we ignore that and our
perception regarding that beating is that the person being beaten should have
done some wrong. Whenever a bail is rejected by the court, we think that he/she
must be done wrong. This mindset needs to change. We don't need to ignore these
things. These things only make police personals think that they are doing
correct things. It's only in cases like the death of father-son due comes up in
news then we show our anger asking questions.
This will also help in keeping a check on police administration
Pressure by the Public, Senior officials, and GovernmentA huge amount of unwarranted pressure is being created on police officers
working at lower posts by the senior officers and government to solve a case
and this unwarranted pressure makes officers use the way of torture to extract
out the truth or confession. This pressure is one of the reasons of custodial
torture. The Supreme Court in Prakash singh V. Union of India 2006 directed to
state and central governments to ensure that no unwarranted pressure is created
Pressure by the public in the recent Hyderabad rape case led to the encounter of
accused and people glorified that, this has to stop. Vengeance is not an option
in a democratic country.
- Reforms in Police administration
The Supreme Court in Prakash singh V. Union of India 2006 directed to state and
central governments to try to address the problems in the present law and bring
about necessary changes in the Police act, 1861.
The National Police commission felt the need for reform and hence it went on to
draft a model police act and submitted its draft in 1981 but no action has been
taken in this regard.
There is abundant power given to the police force, more responsible use of
abundant power is required.
Reforms required in the police department:
- The liability of senior officials for the acts done by his/her
subordinate officers. This concept under the law of torts is known as
Vicarious Liability. This will bring some accountability which at present
is lacking in the present police administration.
- The police department should be creating different divisions and the
posting, transfers and promotion should be done within that division only.
No transfer or promotion should be done across the divisions.
Such as : As of today a huge number of police personals does security work, they
do not have the idea about how to solve a criminal case. So a separate division
only for security posting should be created and these people's transfers should
happen within the security division only. Similarly, certain divisions should be
created and posting, transfer; promotion should be done in that particular
- Use of Mind and science: Police today work on torture and confession.
Our country still lacks the application of forensic science in solving the
crime. Today science and technology have developed so much still in the
police department that not much attention is given towards using mind and
science, this needs to change. Forensic science can help crack the case
without any torture.
Mind intelligence should be used in playing with the minds of the accused
person, intelligence can be used to collect proof and evidence and science can
validate those evidence.
- Creation of a system that deals with the mental health of a police
personal. This would help them seek help, have a counseling session. That
will be good for their mental health and their work efficiency will be
Political game in police administrationNot all police personals look for custodial torture to extract out the truth and
confession. Some of them do very good work and that is when frequent transfers
of those officers let down the good work done by them.
In my experience few officers who uphold the dignity and right of persons
detained or arrested, who do actual police work face frequent transfers as they
do not follow the normal torture procedure and do not bow down on pressure
tactics from the governments.
This bureaucratic policy needs to change. The attitudes of governments in this
field really need to change.
Investigation and Punishment in cases of Custodial torture
In cases of custodial torture either suspension or termination is the formal
mode of punishment. Hardly any independent inquiry is done.
There has to be an independent inquiry in every case of custodial torture under
the supervision of a magistrate. A greater degree of punishment should be
Along with existing laws and some of the reforms which I have suggested above,
the problem of custodial torture will be solved. It is our moral responsibility
to keep things in check and it also a fundamental right of a person who is being
detained or arrested. Police officers should uphold fundamental rights. We are
not a banana republic or a police state. Police are our protector and they
should start acting like that. Existing laws are not used in the right manner.
People hailing encounters soul stop glorifying that, this makes police personal
think that they are doing great, but this is not the right thing. The encounter
in the Hyderabad rape case was not right. Police are not there to serve justice.
To serve Justice, Judiciary is there I hope these changes and efforts of certain
people pay dividends and the officers responsible for the death of the
father-son duo will get convicted.
- Joginder Kumar V. State of Uttar Pradesh (1994) 4 SCC
- D.K Bose V. State of West Bengal AIR 1997 SC 610
- Prakash singh V. Union of India 2006