Injustice anywhere is threat to justice everywhere
- Martin Luther
In our daily lives we sometimes totally ignore many important topics but slowly
or gradually this ignorance becomes acceptance and everything looks very normal.
After the death of George Floyd in the USA and the custodial death of Jayaraj
and Fenix at a police station in Tamil Nadu rose a lot of concern and also a new
debate have been started with regard to the 3rd degree torture done by the
police. The death of George Floyd in the USA resulted in heavy protests due to
which Congress has decided to pass a Police Reform Bill and along with this it
is discussed to maintain a National Database'' which will register all police
In India as well, a certain Anti-torture Bill was discussed in 2010 which has
been discussed in the Parliament many a times but has not been passed yet.
Globally it was discussed for the first time by the United Nations on UN
Convention against Torture in 1975. Since India being the member of the United
Nations, if the UN passes any law, and for that to apply in India as well, the
Parliament has to pass a law regarding the same. So, a bill was presented in the Lok Sabha to make the UN Convention against Torture, 1975, a law. A bill was
presented in 2010 in the Lok Sabha to make the UN Convention against Torture a
law, naming it as Prevention of Torture Bill, 2010.
Under Prevention of Torture Bill, 2010, if any public servant commits torture
on any person who is his custody, then that public servant will be punished
under the bill. The objective of the bill is to provide punishment for torture
inflicted by public servants or any person inflicting torture with the consent
or compliance of any public servant. The bill defines torture as an act by a
public servant or by a person who is subordinate to a public servant, causing
grievous hurt or danger to life, limb or health, be it mental or physical.
Further the bill proposes punishment of minimum 3 years which may be extended up
to 10 years and fine, for torture inflicted for purpose of extorting confession,
or for punishing or on the ground of religion, race, place of birth, residence,
language, caste or community or any other ground. This bill is still pending in
the Parliament and is yet to be passed.
The word 'torture' can be described as infliction of physical or mental pain,
hurt or discomfort by one or more person to force another person to yield
information, to get confession or any other reason.
Custodial torture is a naked violation of human dignity. It has become a
common phenomenon and a routine practice of interrogation or questioning by the
police these days. These include the use of 3rd degree methods to get
confession, custodial deaths, sexual harassment and custodial rape, fake
encounters, etc. Human Rights activists have been raising voice against all such
practices since a long time, but nothing has changed yet.
Some of the examples of custodial torture talks about the death of Maulvi
Mujahid the accused of the Lucknow court blasts, who died under the custody of
the police when he was being transported back to jail after his appearance in
court. The incident of Maulana Asad Raza, also talks about the custodial torture
of the police officials, a Muslim Cleric in Muzaffarnagar who along with almost
100 of his students was stripped naked and beaten on private parts by the police
after the eruption of violence in the city during a protest against the CAA and
NRC and there are many more incidents.
Data Of Custodial Deaths
The number of custodial deaths increased as in 2019 according to the Crime in
India report by the National Crime Records Bureau (NCRB), 70 people died in
police custody in the year 2018 and 85 died in police custody in the year 2019.
The National Human Rights Commission (NHRC) has alleged that at least 117 deaths
in police custody were reported to them.
According to the annual reports released by the National Campaign Against
Torture (NCAT) on 26th June 2020, 1,731 persons died in custody in the year
2019 which is almost 5 deaths each day. Out of these, 125 people died in police
custody while the rest died in Judicial custody. According to the report Uttar
Pradesh tops in the number of reported deaths due to torture by police. The
NCAT's report states that: Out of the 125 deaths, 93 persons (74.4%) died
during police custody due to alleged torture or foul play while 24 persons
(19.2%) died under suspicious circumstances in which police claimed they
committed suicide (16 persons), illness (7 persons) and injuries (1 person)
while the reasons for the custodial death of five (4%) persons were unknown.
The Asian Centre for Human Rights (ACHR) has alleged that 7,468 persons, an
average of 1,494 persons per year or around 4 persons per day have died or being
killed in prison or in police custody by the police. The major point of
contention being that the victims of such torture majorly belongs to the poor
strata of the society who cannot afford justice and hence, the culprit often
All of these reports show that deaths that occur in police custody are a result
of torture or foul play and many committed suicides or died of illness or
accidents as allegedly claimed by the police personnel.
Punishment And Training Of The Police
The NCRB data shows that even after registration of so many cases against the
police personnel for violation of human rights which includes custodial deaths
or killings and illegal arrest or detention, not a single police officer was
convicted of the crime which was reported against him.
The reports also show that more than 10% police personnel never received any
sort of human rights training. Even the officers who received the training in
human rights, many said that it was only at the time of joining the police force
which is clearly not enough.
The findings also showed that the police in India suffer from illegitimate
political interference, inadequacies, which lead to such behavior.
The Hon'ble Supreme Court directed in Prakash Singh v. Union of India,
2006 the government to constitute:
- Gore Committee on police training:
The committee recommended adding a greater sensitivity and understanding of
human behavior and human rights in police training.
- National Police Commission, (1977-81):
The committee recommended insulating or protecting the police from
illegitimate bureaucratic and political interference and biases.
- Padmanabhaiah Committee, 2000:
This committee recommended providing greater training in soft skills such as
communication and counselling the constables and the police force in general
as they need to deal with the public and society on a daily basis.
- State Security Commission: in every state to ensure that the state
governments do not exercise unjustified or unwarranted influence or pressure
on the police personnel and to evaluate the performance of the police.
- Police Establishment Board: to decide the transfers, promotions,
postings and other matters related to service for the officers ranked below
Deputy Superintendent of Police (DSP).
- Police Complaints Authority: at both state and district levels to
inquire into complaints of serious misconduct and abuse of power by the
Provisions Related To Custodial Torture With Case Laws
- In Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, it was held that the
police is obliged under law to register FIR as soon as the commission of
cognizable offence such as, custodial torture or death, comes to their
knowledge. Sec 154 of Code of Criminal Procedure, 1973 involves compulsory
registration of FIR.
- Section 197 of Code of Criminal Procedure, 1973 provides for prior
authorization and endorsement of central or state governments for taking
actions against public servants for offences committed by them in the course
of their duty. While dealing with the use of Section 197, in the case of Devinder Singh
v. State of Punjab, (2016) 12 SCC 87, the Hon'ble Supreme Court has observed
that Protection of 'sanction' to Govt. servants cannot be camouflaged to commit
crime. The offence must be directly and reasonably connected with social duty to
require sanction or authorization. It is no part of social duty to commit
- In Nilabati Behra v. State of Orissa, (1993) 2 SCC 746, the Hon'ble Apex
Court awarded monetary compensation to Nilabati, after the death of her son in
police custody. In this case the Supreme Court also held that it has a wide
range of powers under Article 32 of the constitution and it also has the power
to award compensation.
- In Sube Singh and Anr. v. State of Haryana and Ors., (2001) 7 SCC 545,
the division bench held that even after conviction, if the parties have settled
the dispute amicably and have decided to live in peace and harmony, the court,
in exercise of its powers under Section 482 of CrPC can compound the offence.
- In Joginder Kumar Vs. State of U.P, (1994) 4 SCC, the apex court held
that ''the arrest should not be merely on suspicion about the person's
complicity in the crime and the police officer must be satisfied about necessity
and justification of such arrest on the basis of some investigation and the
reasons for arrest must be recorded by the police officer in his diary and the
arrest should normally be avoided except in cases of heinous crime.''
- United Nations Convention against Torture and Other Cruel Inhuman or
Degrading Treatment or Punishment (UNCAT), which was adopted by the UN General
Assembly in 1984 but was failed to ratify the same through the process of
- The Prevention of Torture Bill 2010, providing for punishment for the
act of torture committed by public officials. It was passed by Lok Sabha on 6
May, 2010 but was referred to Rajya Sabha and was then lapsed. The bill still
remains pending in the Parliament. The bill would have been a positive step in
enacting a strong law against such practices of tortures and implementing the
objectives of UNCAT
- Sections 7 and 29 of the Indian Police Act provides for dismissal,
penalty or suspension of police officers who are negligent in the discharge
of their duties or are unfit to perform their duties.
- Sections 330, 331, 342 and 348 of the Indian Penal Code have been
designed to deter a police officer, who is empowered to arrest a person and
to interrogate him during investigation of an offence from resorting to
third degree methods causing torture.
- A confession to a police officer cannot be proved as against a person
accused of any offence under Section 25 of the Indian Evidence Act, 1872 and
confession caused by threats from a person in authority, in order to avoid
any evil of a temporal nature would be irrelevant in criminal proceedings as
provided under Section 24 of the Act.
Custodial Rape Against Women
The Indian Penal Code, 1860 defines 'custodial rape'
under Section 376(2) (a),
(b) and, (c). Custodial Rape is rape committed by a public servant on a woman in
his custody or in custody of a subordinate public servant. The Mathura rape
is a horrendous incident of custodial rape in India. The case that made
the government to wake up from its long slumber. It reflected the patriarchal
biases of the entire legal system. The incident of Mathura Rape Case opened
the eyes of everyone and created awareness of women's legal rights issue,
oppression, and patriarchal mindsets in the society.
In the late 1970s and early 1980s, the issues of custodial rape came into light
when a chain of events of women being raped in the in the custody of police came
into picture. The concept of custodial rape not only includes security forces
but also hospitals, mental institutions, shelter homes and juvenile homes. The
punishment for custodial rape is rigorous punishment of at least 10 years and
fine or both.
Landmark Judgements On Custodial Rape:
TukaRam v. State of Maharashtra
, 1979 AIR 185, 1979 SCR (1) 810, the famous
Mathura Rape Case that has been one of the landmark cases of custodial torture
talks about a girl named Mathura and also the injustice delivered to the girl.
Mathura, the victim lived with her brother and was employed as a domestic worker
with a woman named Nushi. Mathura and Ashok (Nushi's nephew) had sexual
relations and they wanted to marry each other. This they came to knowledge of
Mathura's brother and he lodged a police complaint to the local police claiming
that Mathura was being kidnapped by Ashok and his family members. The officials
started their investigation and brought Ashok and his family to the police
station. Later Mathura was raped by two policemen.
The case came for hearing in the court and it was stated that since Mathura was
habituated to sexual intercourse therefore her consent was voluntary and these
circumstances only proved sexual intercourse and not rape. The medical
examinations stated that her hymen revealed old ruptures but there was no bodily
injury found in the examinations.
Later the High Court found the accused guilty and sentenced him but the Apex
Court reversed the decision of the High Court and acquitted that police
constable Ganpat and Tukaram stating that no penetration was found and also
showed no marks of bodily injuries which showed that Mathura did not resist and
consented to the officials.
In Maya Tyagi, Meerut v. Ito, Baraut, the victim was travelling in a car with
her husband Ishwar Tyagi and two of her husband's friends when their car broke
down near Baghpat police station. Then Maya's husband along with his two friends
left to get the tyre repaired. After they left, a police officer in plain
clothes came in and molested Maya. When Maya's husband saw this, he slapped the
Then the police officer returned with 10 policemen. Then they shot Ishwar Tyagi
and his two friends who accompanied Maya Tyagi and died there. Maya was then
dragged out of the car, stripped naked and paraded her through the marketplace.
When she resisted, they attacked her by inserting the police stick into her.
Later, the officers had taken her to the police station and subjected her to
brutal torture and false accusations were charged on her, which stated that she
was a dacoit's mistress and was covering up for their killings.
Later during the inquiry, the policemen tried to justify their actions by
calling her a woman of 'easy virtue' as her marriage to Ishwar Tyagi was her
On the allegations put on Maya Tyagi, her husband and two of his friends the
Court held that all those allegations were false as they were not dacoits and
were falsely framed by the police officials. It was found that all the torturous
incidents told by Maya Tyagi upon her by the police officials as true. However,
since there was no penetration, the police officials were acquitted.
These cases brought out many changes in the custodial rape laws in India which
Suggestions And Solutions
- The concept of custodial rape was added.
- The burden of proof shifted upon the accused and has to prove the women's
- A rigorous punishment of 10 years or life imprisonment or fine or both
- Failure to assist rape case victims by government officials came under
the purview of punishable offence. Under section 166A of IPC, punishment of up
to 2 years imprisonment is prescribed for a public servant disobeying the law.
- Even after having all such provisions in place, women in these vulnerable
conditions are usually forced to live with the trauma or suffering and continue
with their lives as they see no hope in pursuing any legal action or help
against the men in uniform who take oath to protect them and the society. The
sad reality is that more than half of such cases go unreported.
The ratification or confirmation of the UN Convention against torture. This
convention was never ratified. No official law relating to custodial deaths and
police torture has yet been passed by the legislation. Even after several
suggestions and concerns shown by the NHRC and the Hon'ble Supreme Court,
nothing has been done with regard to Anti- torture or police reforms.
The implementation of Section 144B of the Indian Evidence Act, as mentioned in
the Law Commission Report, 1985 which states the accountability of police
officer if any person is found dead or tortured in his/ her custody.
General public awareness of the right to free legal aid to the poor and
underprivileged as stated under Article 39 of the constitution.
The need for the codification of the rights of the alleged accused and the
arrested persons as mentioned in The Malimath Committee report.
The need for appropriate amendments in the Code of Criminal Procedure which
makes police officers responsible of assuring the safety of the person accused
in custody and making them aware of their rights while they remain in custody,
as recommended by the 16th Law Commission.
Passing of the Prevention of Torture Bill, 2010
as a law in the Parliament.
The burden of proof which lies on the plaintiff need to be reversed.
The proper enactment and follow up of the guidelines laid down by the Hon'ble
Supreme Court in Joginder Kumar v. State of U.P, (1994) 4 SCC and D.K Basu v.
State of West Bengal, AIR 1997 SC 610, which includes installment of CCTV in
prisons and police stations, rules relating to arrest and detentions and rights
of the person accused.
The word custody
means protective care or guardianship. It is expected that
being in custody, a human being will be protected from any violence or any
torture. But what's happening around us is somewhat different.
With regard to the same, the court should change their approach towards the
officials, etc. by seeing whether that officer is a habitual offender. There
must exist stringent rules and laws regarding custodial torture and it must be
made a crime. This could be achieved by making certain specific custodial laws.
Also, the police officers must follow the pre-existing laws regarding arrest and
detention. And those who fail to comply must be held punishable.
There is a need now for the Central Government to ratify the UN Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
The various existing laws are more than enough but the implementation of the
said laws is yet in question. If only the laws were more stringent, the practice
we are seeing today would not have been persisted.
Award Winning Article Is Written By:
- State of Madhya Pradesh v. Shyamsunder Trivedi, (1995) 4 SCC 262
- Simranjeet Kaur I am pursuing LL.B from Amity Law School, Noida. I am currently in 2nd year. I want to go into litigation after getting my degree. I am interested in Criminal Litigation as well as Intellectual Property Rights like Copyright, Trademark and Patents, etc. and
- Shivangi Paliwal I'm pursuing my LL.B From Amity Law School, Noida (2nd Year). I joined this institution in 2019 to enhance my knowledge of law and make way through it. I further want to pursue Judiciary and help in bridging the gap in the society.
Authentication No: JA32634326941-20-0121