Torture is despair and fear and rage and hate. It is a desire to kill and
destroy including yourself.--Adriana P. Bartow
Custodial violence primarily means violence in the judicial and the police
custody, involving the victim subject to rape, torture, and even death.
Custodial violence is a clear violation of Human rights, which include all types
of physical and mental torture inflicted upon the victim. It is widely accepted
as one of the cruelest forms of human rights abuse. Various torture methods like
beating on the spine, beating the bare sole of the feet, denying medical
treatment, burning with the lighted cigarette, forcible extraction of teeth,
forcibly lying victim nude on ice slabs, submersion in water, still applied by
the police and other agencies.
Such is the heinous nature of this crime, despite
being forbidden by many institutions like the Supreme Court of India, National
Human Rights Commission, and United Nations, police across the country defy
these institutions. According to the recent annual report by the National
campaign against torture, there were numerous cases of custodial death in the
year 2019, over 1700 people died in custody. Estimating 5 deaths every day in
Police authorities are considered the custodians of law and are entrusted by the
nation's people to protect their rights. But when these men who are ushered with
the power to regulate their civil life, turn to degrade the power they hold, the
trust of the common people get crushed. The present work focuses on the issues
of this heinous crime, causes, and legal perspective on custodial torture
committed by mainly police officers.
The term custodial Violence has not been defined under any law. It is a
combination of two words 'custody' and 'violence'. The word custody denotes
guardianship and protection, it does not hold any evil symptoms even when
applied to arrest or imprisonment under judicial and penal safekeeping. The
term violence in literal sense is the behavior of inflicting injuries to a
person or property by the use of unjustified force.
Indian movies portray the police torture as entertainment, where the protagonist
of the story encounters a villain, consequently encourages the crime of
custodial violence or we can say it makes crime seems less grave or serious to
Custodial violence is a widespread unaccounted ailment and rarely prosecuted. It
escalates the state of lawlessness in many parts of the country. In a recent
report by National Crime Record Bureau, a total of 591 cases of death were
recorded in police/judicial custody between 2010 and 2015, cited with the
reasons of death as suicide, death during hospitalization, or natural death
through illness. 
According to reports by NCRB, around 265 deaths were
recorded with zero conviction by the state between the period of 2016 and
2018. Violence serves as the easiest and cheap method of investigation and as
a tool for oppression. Police officers are notorious for using third-degree
torture techniques as means of investigation to get a confession or any
This show of 'instant justice' demonstrated by the police, a civil
force of state vested with authority and duty to maintain law and order in
society by themselves, ruins the pillars of social order and justice in our
society. This gives an impression of courts and lawyers being mere accessories
and the power of imparting justice vested in the hands of unauthorized
The court in Joginder Kumar Vs. State of Uttar Pradesh
 considered several
ways of the misuse of the power of arrest by police and opined:
"No arrest can be made because it is lawful for the police officer to do so. The
existence of the power of arrest is one thing. The justification for the
exercise of it is quite another...There must be some reasonable justification in
the opinion of the officer effecting the arrest that such arrest is necessary
Concept of custodial violence
Types and Forms:
Section 167 of the CrPC talks about two types of Custody i.e police custody and
judicial custody. Therefore we can divide Custodial violence into two types
Violence in police custody
This type of violence occurs when police torture the accused to sustain
interrogation and find the truth. There are hardly any safeguards to ensure the
person in the custody will have timely access to his lawyer or record of his
detention, or a proper medical examination.
Violence in judicial custody
This type of violence can usually be seen in prisons or detention centres where
the violence is acted out by the inmate gangs who have unrestricted power to
commit ill acts. Innocent prisoners get caught in the clutches of these gangs
and beaten up if they don't show allegiance to them. This kind of violence
pushes the victim to commit suicide.
Forms of custodial violence
Human Rights and Custodial Violence
It attacks the mental composure and stability of the person by the methods like
injecting false information, threats, humiliation, or depriving the victim of
water, food, sleep, and toilet.
It involves causing disfiguration and exhaustion also, causing the victim
torture to such degree that the victim feels fear of instant death.
The violence of sexual nature impacts the mind of the victim socially and
psychologically. It targets the victim's dignity.
The highest form of fundamental rights is human dignity, respected even by our
Constitution which is considered to be the most prestigious statute book of our
nation. Article 21 of the Indian constitution guarantees an individual the
right to life with dignity and personal liberty. Whenever an individual is taken
into custody it becomes the legal property of the state, wearing the cloak of
legal guardian. All the institutions working under the state are at obligation
to guard them. This notion has been blurred by the activity called custodial
violence, the trait against human rights and dignity that brings out the
perverse desire to commit such an act when there is almost no possibility of
The recent incident that shook the nation and invited the rage of the nation, is
the case of P.jeyaraj and J. bennix, father, and son were inhabitants of the
Santhakulam in Tuticorin, Tamil Nadu, they were arrested and taken into custody
by the local police under the accusation of opening the shop beyond the limit of
curfew hours. They were beaten brutally by the police officers and were
succumbed to death in the local government hospital. This is the case of gross
human rights violation.
The Code of Criminal Procedure, 1973, and Constitution of India, 1950 ensure the
detained individual some rights as an arrestee:
- Right to know the ground of arrest
- Right to be presented before the magistrate within 24 hours
- Right to be released on bail
- Right to a fair and speedy trial
- Right to get a medical examination before and after detention.
With the persistent inhumane cases of violence and torture under custody, it's
apparent that India should protect violence by police. India is one of the five
countries that are yet to ratify the 1987 UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
Supreme Court cases on the matter
National and International legal framework
- In the case Rudul Shah v. State of Bihar the petitioner Rudul Shah
was kept illegally in jail for 14 years, the writ of habeas corpus was filed and
his immediate release was demanded. The court realized for the first time that
if by any state any individual's constitutional rights have been violated, then
the individual will get compensation.
- In the case of D.K Basu v. State of West Bengal  the apex court
recognized custodial violence and police torture and said 'custodial violence is
an attack on the human dignity.' Court also said after having many
recommendations and policies still the cases of torture and deaths in police
custody are increasing. So the court issued a list of 11 guidelines that every
police officer has to follow while arresting someone.
Along with that court also gave some constitutional and statutory
safeguards, here as follows:
- Whichever police officer is handling the interrogation or arrest should
carry their name tag in which their name and designation must be seen
clearly. Police have to maintain a register of those officials who are
handling the case or interrogation.
- Police officer arresting someone has to maintain an arrest memo in which
all the details related to arrest should be there like the signature of any
witness person, time, date, and place of arrest.
- The arrested person's relatives or friends must be informed about the
arrest and the place where he has been detained and a diary of the same is
to be maintained.
- All the major and minor injuries of the arrestee have to note down in
the form of an Inspection Memo. It has to be duly signed by both officer and
arrestee and the arrestee will get a copy of the inspection memo.
- The arrestee should be medically examined every 48 hours after that
copies of all these documents medical report, inspection memo, arrest
memo will be sent to the magistrate for their records. And while at the time
of interrogation an arrested person can meet with his lawyer.
- There should be a police control room in every district and state
- The Court in Nilabati Behera v. State of Orissa Observed that every
prisoner and the arrestee has the right to enjoy all the fundamental rights and
the police have to ensure that they don't deprive the right to life of the
prisoner mentioned under article 21. The petitioner Suman Behera was arrested by
the police and the very next day her body was found on a railway track with
multiple injuries, she was awarded a compensation of Rs 1.5 lakh.
Growing incidents of abuse of power by public officials are not only peculiar to
the country, but it is widespread worldwide. Thus, it has been a concern of the
international community to come up with an effective and solid legal framework.
The United Nations Convention Against Torture (UNCAT) prohibits torture globally
by monitoring the governments to make them accountable.
India became a signatory
back in 1997 almost after a decade after the convention was adopted in
1984. As the convention was adopted by the UN General Assembly in 1984
defines torture as an intentional act that causes severe pain and suffering,
inflicted on a person to extract information or a confession.
During World War II, custodial torture needed special attention, UN General
Assembly inserted the Universal Declaration of Human Rights, 1948 article 5
No one shall be subjected to a cruel or inhumane or degrading treatment or
Remedies against custodial torture can be approached in two ways, one is a legal
regime that provides constitutional safeguard through article 20, 21 & 22,
sections 25 and 26 Indian Evidence Act (1872), and section 76 of the procedural
law, Code of Criminal Procedure (1973), contains provisions that protect the
legal rights of a person in custody. Section 330, 331, & 348 of IPC provides
punishment for causing injury to the person in custody. The second is judicial
precedents, where the Supreme Court has on many occasions adopted many important
judgments to review the criminal justice system. And have supplemented the
constitutional and statutory provisions.
It is pertinent to mention that provisions of rape under section 376 IPC have
gone under changes after the Mathura rape case
, section 376(2) was inserted
which specifically talks about the rape committed in the custody and penalizes
such act of crime.
Police are the machinery that safeguards society from crime and injustice, but
when this irreplaceable entity, which is necessary to maintain law and order
does otherwise and violates the public's fundamental rights. The justice we all
seek is annulled ultimately. In the recent custodial death case of P. Jeyaraj
and J. Bennix, both the victim would be alive today if the magistrate has
applied his mind and didn't act lackadaisically while accepting the plea for
remand. Therefore police are just one part of the problem.
The question here arises that how would people of the country follow the rules
and regulations where legal authorities themselves are negligent?
Further are some of my solutions and suggestions to the system:
The wrongdoer law enforcement authorities like police officials should be held
accountable to their crimes, and penal punishment should be imposed on them
instead of just futile administrative actions.
Proper training and sensitization must be provided to promote legal
principles among public authorities. In fact, in the recent report of Common
Cause and CSDC by Lokniti 12% of police personnel have never received any human
There is a need for amendment of section 197 of CrPC which mandates the
government's approval if one intends to file a case against a police official.
Strict implementation of the Guidelines issued under D K Basu judgment
(1997) (refer to page 6)
To ensure police accountability, a national-level independent complaint
authority should be formed as suggested by the Prakash Singh judgment on police
- National Campaign Against Torture : Annual report on torture 2019
- P. Ramanatha Aiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992)
: Wadhwa & Company Nagpur, India
- Joginder Kumar v. State Of Uttar Pradesh [(1994) 4 SCC 260
- Available at: https://theprint.in/opinion/dont-just-question-police-for-custodial-killings-of-jayaraj-bennix-courts-also-responsible/451971/
- India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
- Rudul Shah v. State of Bihar 1983 AIR 1086, 1983 SCR (3) 508
- D.K. Basu v. State of West Bengal, (1997) (1) SCC 416
- Smt. Nilabati vs. State of Orissa AIR 1993 SC 1960
- Aston J, 'International Legal Framework In Prohibition Of Torture And
Custodial Violence'  Torture Behind Bars
- Tukaram v. State of Maharashtra, (1979) 2 SCC 143
- Sh. V.S.K. Kaumudi, et al, Special issue on the occupational stress and
mental health issue among uniformed personnel, Vol. 66, no. 3, IPJ, 6, 90
Award Winning Article Is Written By: Mr.Gaurav Gautam -
- National Campaign Against Torture : Annual report on torture 2019
- P. Ramanatha Aiyer , The Encyclopedic Law Dictionary with Legal Maxim
, Wadhwa & Company Nagpur, India;
- Joginder Kumar v. State Of Uttar Pradesh  4 SCC 260;
- Maneesh Chhibber, 'Don't just question the police for custodial
killings of Jayaraj-Bennix. Courts are also responsible' The Print ( 1 July
- India: Annual Report on Torture 2019, < http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf>
- Rudul Shah v. State of Bihar  AIR 1086,  SCR  508
- D.K. Basu v. State of West Bengal,   SCC 416
- Smt. Nilabati vs. State of Orissa AIR  SC 1960
- Joshua N. Aston, 'International Legal Framework In Prohibition Of
Torture And Custodial Violence'  Torture Behind Bars.
- Tukaram v. State of Maharashtra, [ 1979] 2 SCC 143
- Sh. V.S.K. Kaumudi, et al, Special issue on the occupational stress and
mental health issue among uniformed personnel,  66(3), IPJ , 6, 90
BA.LL.B. (Hons.) II Year - ICFAI University, Dehradun
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