Balancing the Scales: A Critical Analysis of Custodial Violence, Capital Punishment, and Victim Rights in India

Introduction

The true measure of a robust criminal justice system (CJS) lies in its capacity to simultaneously uphold fundamental rights, ensure accountability for state action, administer just punishment, and deliver substantive justice to those harmed by crime.^[1] However, in India, the persistence of custodial violence, coupled with the systemic prejudices embedded in capital sentencing and the historical marginalization of victims, presents critical challenges that demand an integrated and rigorous reform agenda.^[2] This article provides a detailed legal analysis of three pivotal areas demanding immediate attention: firstly, the custodial deaths in India (legal framework, accountability, and reforms), secondly, revisiting the death penalty debate in India and lastly, the victimology in Indian criminal justice system.

I. Custodial Deaths in India: Legal Framework, Accountability, and Reforms

Custodial death, characterized as the death of an individual resulting from torture or degrading treatment by police officials during investigation or detention, constitutes a grave violation of the fundamental right to life and personal liberty guaranteed under Article 21 of the Indian Constitution.^[3] The law mandates that the state, having deprived an individual of liberty, assumes a compulsory duty to care for the imprisoned citizen and protect them from avoidable harm.^[4]

A. Judicial Recognition of the Duty of Care (Case Law Analysis)

The judicial system, recognizing this constitutional imperative, has established clear guidelines which are discussed below through case law:

1. Constitutional mandate against Torture: In Francis Coralie Mullin v. Union Territory of Delhi,^[5] the Supreme Court confirmed that the right to protection against torture is implicitly included within Article 21.^[6]
2. State responsibility for compensation: The case of Nilabati Behera v State of Orissa,^[7] affirmed that the state, not the individual officer, bears the primary responsibility for providing compensation in cases of custodial death.^[8] Conversely, in Saheli v Commissioner of Police (1989),^[9] the police official responsible for the death of a 9-year-old child was personally ordered to pay the compensation of Rs. 75,000.^[10]
3. Mandatory procedural safeguards: The critical judgment in D.K. Basu v State of Bengal,^[11] established eleven mandatory guidelines to be followed during arrest and interrogation, including the requirement for arresting officers to wear name tags, maintain a detailed arrest memo (attested by a witness), and ensure the arrestee’s family or relative is informed. The person arrested also has the right to a medical examination by a qualified doctor every two days.^[12]

Comparative law emphasizes this specialized duty: the Australian case of Howard v Jarvis, established the constable’s duty to exercise reasonable care for the safety of Jarvis during detention, as the constable had deprived him of his liberty and assumed control of his person.^[13] This duty is deemed “special” and requires the custodian to control one person to prevent damage to a third, as recognized in Dixon v Western Australia and Lees.^[14]

B. Systemic Failures and Accountability Gaps

Despite the legal framework, custodial deaths average five per day in India.^[15] The system suffers from a critical accountability deficit due to the following reasons:

1. Data Discrepancy: The National Crime Records Bureau (NCRB) data frequently differs significantly from that of the National Human Rights Commission (NHRC). In 2019, the NCRB reported 84 police custodial deaths, while the NHRC reported 117.^[16] The NCRB often attributes the majority of deaths (69%) to “natural ailments” or “suicides,” even though such claims often conceal torture.^[17]
2. Procedural Evasion: Police frequently violate statutory mandates to suppress evidence. This includes flouting Section 50A CrPC (duty to inform relatives), a calculated move that allows violence to be inflicted at their discretion.^[18] Police may also violate Section 41-B CrPC by purposefully recording the wrong date and time of arrest to claim the deceased fell ill shortly before death, evading charges for prolonged torture.^[19]
3. Judicial Inquiry Roadblocks: Even when a magisterial inquiry is initiated under Section 176(1A) CrPC, police have been known to attempt intimidation and destroy evidence, as alleged by the magistrate in the highly publicized Jayaraj and Fenix case (2020).^[20] Basic rights, such as the limit on detention under Section 57 CrPC, were also violated in this case.^[21]

C. Legislative Imperatives

Reform requires fundamental legislative action:

1. Anti-Torture Law: Despite being a signatory since 1997, India has not ratified the UN Convention Against Torture (UNCAT).^[22] The Prevention of Torture Bill must be passed, incorporating recommendations such as elaborating the definition of torture and establishing an independent authority to investigate custodial deaths.^[23]
2. Shifting the Burden of Proof: To combat the lack of direct evidence (Roadblock 2), the Law Commission has twice attempted to introduce Section 114B into the Indian Evidence Act, 1872.^[24] This section would create a rebuttable presumption that if a person suffers injury or dies in custody, the police officer-in-charge inflicted the injury. This measure is deemed absolutely necessary by judicial experts.^[25]
3. Coronial System Reform: The function of the modern inquiry authority should be revised to inquire into and report upon deaths without artificial legal constraints, acting as a “poor man’s Royal Commission”.^[26] This would necessitate enabling authorities to identify the particular individuals who failed in their duty and ensure timely accountability.^[27]

II. Revisiting the death penalty debate in India: Law, morality and reform

Capital punishment is deeply entrenched in Indian law, having been held constitutional by the Supreme Court on multiple occasions.^[28]

1. The Legal Standard: ‘Rarest of Rare’ Doctrine (Case Law Analysis)
2. Constitutional validity affirmed: Jagmohan Singh v. State of Uttar Pradesh upheld the validity of the death penalty, provided its execution follows a “fair, just, and reasonable” process.^[29]
3. The sentencing doctrine: Bachan Singh v. State of Punjab introduced the “rarest of rare” doctrine, stipulating that the death penalty should only be applied when the alternative of life imprisonment is “unquestionably foreclosed”.^[30] Section 354(3) CrPC mandates that the court must state special reasons for imposing the sentence, considering both aggravating and mitigating factors related to the offence and the offender.^[31]
4. Defining the criteria: Machhi Singh v. State of Punjab further categorized cases suitable for capital punishment, focusing on factors like the grotesque or repulsive manner of the crime, the criminal act’s motivation, or murder that incites social resentment, for example, homicide of a member of the Scheduled Caste or a minority population.^[32]
5. Fragility of application: In Shankar Kisanrao Khade v. State of Maharashtra,^[33] the Apex Court observed that the application of the ‘rarest of rare’ principle was “exceptionally friable,” proposing a “triple test” (Crime Test, Criminal Test, and Rarest of Rare Case) to guide sentencing. Furthermore, the evidence used to determine a defendant’s “future dangerousness” in capital sentencing jurisprudence in India is argued to be so unreliable that it threatens the constitutionality of the death penalty.^[34]

Moral Critiques and Call for Abolition.

The ethical case for abolition is grounded in the principle that punishment should not imitate the crime.^[35] Critiques include:

1. Irreversible error: The system is error-ridden; the Supreme Court acknowledged making mistakes in 15 out of 60 executions between 2000 and 2015 (a 25% error rate).
2. Social bias: An empirical study highlighted that 93.5% of existing prisoners sentenced to death for terror offenses belong to Dalit and religious minority communities, showcasing systemic prejudice.
3. Torturous delay: Long delays in trials, appeals, and final execution are themselves considered a form of torture. Moreover, the President’s mercy powers have sometimes failed to act as the final safeguard against miscarriage of justice. The SC noted in Shatrughan Chauhan & Anr v. Union of India that long delays in investigation and trial must be considered when reviewing mercy pleas.^[36]

Alternatives: Life Imprisonment Without Parole (LWP)

The Law Commission’s 262nd Report (2015) concluded that India should move towards the eventual abolition of the death penalty, excluding cases of terrorism and waging war. Life Imprisonment Without Parole (LWP) is presented as a viable and proportional alternative. This sanction, adopted in countries like New Zealand (since 1989) and Australia, forces the convict to endure indefinite social isolation.^[37] In Australia, this involves detention in highly guarded prisons where inmates spend up to 23 hours a day in isolation, depriving them of the “social element” essential to human existence. This method is argued to be more traumatizing than death, making the punishment enduring rather than easy.^[38] Furthermore, Germany observed a drastic declination in the number of intense crimes after abolishing executions and substituting LWP, supporting the view that “over strict punishments raise the best criminals”.^[39]

III. Restorative Imperatives: Victimology in Indian Criminal Justice System: Rights and Remedies

Victims are frequently marginalized in the Indian CJS, treated as “mere informants” and subjected to “secondary victimization” at the hands of investigation agencies and courts.^[40] Victims often come from low-income, uneducated backgrounds and suffer non-availability of medical aid, social stigmatization, and psychological distress (shock, anxiety, depression).^[41]

1. The Right to Compensation (Case Law Analysis)
2. Public law compensation: In Rudal Sah v. State of Bihar,^[42] the Supreme Court used public law remedies to award Rs. 35,000 as “palliative” compensation to a victim wrongfully imprisoned for 14 years after acquittal.^[43] This constitutional ground for compensation was further used in Delhi Domestic Working Women Forum v. Union of India, where the court laid down guidelines for granting compensation.^[44]
3. Statutory mandate: Section 357 CrPC permits courts to order compensation from the accused. Following the Criminal Procedure (Amendment) Act, 2008, section 357A introduced the mandatory Victim Compensation Scheme.^[45] The Supreme Court held in Ankush Shivaji Gaikwad v. State of Maharashtra that section 357 must be regarded as a mandatory provision, seeking to eliminate judicial discretion in compensation awards.^[46]
4. Compensation in sexual assault: In Bodhisattwa Gautam vs. Subhra Chakraborty, the court ordered interim compensation in a rape case and issued guidelines in conformity with the UN Declaration on Justice for Victims of Crime and Abuse of Power, 1985.^[47] However, compensation remains poorly implemented; Nipun Saxena v. Union of India highlighted that only 5-10% of sexual assault victims receive compensation.^[48]

The Need for Participatory and Post-Trial Rights

Victim emancipation requires expanding rights beyond mere monetary relief:

1. Right to speedy trial: The right to a speedy trial, encompassing investigation, inquiry, and appeal, is enshrined under Article 21 and was upheld in Hussainara Katoon v Home Secretary,^[49] State of Bihar (1979) SC 1360. Delays in court proceedings exacerbate victim misery and diminish public faith in the CJS.
2. Victim Impact Statements (VIS): VIS allows victims to present their views, concerns, and opinions regarding the length and type of sentence before sentencing is decided.^[50] The Supreme Court recognized the need to incorporate VIS provisions in Mallikarjun Kodagali v. State of Karnataka (2019) 2 SCC 752.^[51]
3. Restitution and Compensation: While compensation is often state-funded, restitution is the payment made directly by the offender to restore the victim to the pre-crime condition. Currently, India lacks statutory recognition of the victim’s right to restitution.^[52] Adopting a system, similar to Russia’s, which links civil and criminal liabilities could minimize the time gap for payment.^[53]
4. Post-Sentencing Rights: Post-sentencing rights, such as the right to be informed about the custodial status or release of the convict, such as parole, are recognized in countries like the US and UK, but India generally does not recognize these rights for victims.^[54]

Conclusion

The three critical issues examined, custodial violence, capital punishment, and victim marginalization, reveal a systematic imbalance within the Indian CJS. Custodial violence persists due to the lack of political will to enforce strict accountability, demonstrated by the failure to pass anti-torture legislation and adopt mandatory safeguards like section 114B of the Evidence Act. Furthermore, the continued imposition of the death penalty, despite acknowledgment of its “exceptionally friable” application (Shankar Khade), raises severe moral and constitutional questions, favoring reform towards Life Imprisonment Without Parole. Finally, for victims, justice must be delivered not just through inadequate compensation, but through the realization of participatory and post-trial rights, thereby validating the victim’s voice as central to the criminal trial process. Ultimately, achieving a system that upholds the rule of law requires coordinated legislative and administrative change to ensure that the clear duty of care imposed by the law is sheeted home to those responsible.

Bibliography

Case Law

• Ankush Shivaji Gaikwad v State of Maharashtra (2013) 6 SCC 770.
• Bachan Singh v State of Punjab (1980) AIR 898 (SC).
• Bodhisattwa Gautam v Subhra Chakraborty (1996) AIR 922 (SC).
• K. Basu v State of West Bengal (1997) AIR 610 (SC).
• Delhi Domestic Working Women Forum v Union of India (1995) 1 SCC 14.
• Francis Coralie Mullin v Union Territory of Delhi (1981) AIR 746 (SC).
• Howard v Jarvis (1958) 98 CLR 177.
• Hussainara Khatoon v Home Secretary, State of Bihar (1979) SC 1360.
• Jagmohan Singh v State of Uttar Pradesh (1973) AIR 947 (SC).
• Kodagali v. State of Karnataka (2019) 2 SCC 752.
• Machhi Singh v State of Punjab (1983) AIR 957 (SC).
• Nilabati Behera v State of Orissa (1993) AIR 1960 (SC).
• Nipun Saxena v Union of India (2019) 13 SCC 715.
• Saheli v Commissioner of Police (1989) AIR 185 (SC).
• Shankar Kisanrao Khade v State of Maharashtra (2013) 5 SCC 546.
• Shatrughan Chauhan & Anr v Union of India (2014) 3 SCC 1.

Journal Articles

• Harsha A and Aaditya SR, ‘Custodial Death – Need for Reforms’ (2021) 2 Indian Journal of Law and Legal Research
• Leonetti C, ‘The Death Penalty Issue’ (2019) 22 New Criminal Law Review 137.
• Saxena DP, ‘Victims and Criminal Justice System – A Study in Victimology’ (2005) 33 Indian Journal of Criminology 57.
• Singh R, ‘Victim Justice: A Paradigm Shift in Criminal Justice System in India’ (2016–2017) 4 Journal of National Law University, Delhi
• Spandan Roy Basunia, ‘Is Death Penalty Necessary?’ (2022) 4 Indian Journal of Law and Legal Research 1, 9.
• Swain P, ‘Alternatives to Death Penalty’ (2022) 4 Indian Journal of Law and Legal Research
• Temby I, ‘Preventing Custodial Deaths: A Systemic Approach’ (1989) 22 Australian and New Zealand Journal of Criminology
• Thiruthi A, ‘Victimology in the Criminal Justice System’ (2022) 4 Indian Journal of Law and Legal Research
• Tripathi S, ‘Victim Emancipation in Indian Criminal Justice System’ (2020) 48 Indian Journal of Criminology 115.
• Tripathi S, ‘Victim Emancipation in Indian Criminal Justice System’ (2020) 48 Indian Journal of Criminology
• Vaishali N, ‘Abolishing the Death Penalty’ (2022) 3 Jus Corpus Law Journal 14.

Legislation

• Code of Criminal Procedure 1973.

[1] Ranbir Singh, ‘Victim Justice: A Paradigm Shift in Criminal Justice System in India’ (2016–2017) 4 Journal of National Law University, Delhi 115, 115.

[2] Singh (n 1) 120.

[3] Constitution of India 1950, art 21.

[4] Ian Temby, ‘Preventing Custodial Deaths: A Systemic Approach’ (1989) 22 Australian and New Zealand Journal of Criminology 193, 193.

[5] Francis Coralie Mullin v Union Territory of Delhi (1981) AIR 746 (SC).

[6] A Harsha and S Rahul Aaditya, ‘Custodial Death – Need for Reforms’ (2021) 2 Indian Journal of Law and Legal Research 1, 8.

[7] Nilabati Behera v State of Orissa (1993) AIR 1960 (SC).

[8] Harsha (n 5) 1,6

[9] Saheli v Commissioner of Police (1989) AIR 185 (SC).

[10] See n 6 above.

[11] D.K. Basu v State of West Bengal (1997) AIR 610 (SC).

[12] Harsha (n 5) 1,7.

[13] Howard v Jarvis (1958) 98 CLR 177.

[14] Dixon v Western Australia and Lees (1995) WAR 65.

[15] Harsha (n 5) 1,6.

[16] Harsha (n 5) 7.

[17] Harsha (n 5) 4.

[18] Sanjana Saha, ‘Custodial Deaths: Accident or an Eye-Wash?’ (2022) 4 Indian Journal of Law and Legal Research 1, 959.

[19] Saha (n 18) 960.

[20] Namrata Kandankovi, ‘Custodial Death of Jayaraj and Fenix and the Exposure of Police Brutality in India’ (2020) 3 International Journal of Law Management & Humanities 760, 768.

[21] Kandankovi (n 20) 160, 165.

[22] Harsha (n 5) 1, 2, 7.

[23] Harsha (n 5) 1.

[24] Kandankovi (n 20) 160, 168.

[25] Harsha (n 5) 9.

[26] Temby (n 4) 193, 198.

[27] emby (n 4) 200.

[28] Spandan Roy Basunia, ‘Is Death Penalty Necessary?’ (2022) 4 Indian Journal of Law and Legal Research 1, 9.

[29] Jagmohan Singh v State of Uttar Pradesh (1973) AIR 947 (SC).

[30] Bachan Singh v State of Punjab (1980) AIR 898 (SC).

[31] Section 352(3) of Code of Criminal Procedure 1973.

[32] Machhi Singh v State of Punjab (1983) AIR 957 (SC).

[33] Shankar Kisanrao Khade v State of Maharashtra.

[34] Carrie Leonetti, ‘The Death Penalty Issue’ (2019) 22 New Criminal Law Review 137, 139.

[35] Vaishali N, ‘Abolishing the Death Penalty’ (2022) 3 Jus Corpus Law Journal 14, 15.

[36] Shatrughan Chauhan & Anr v Union of India (2014) 3 SCC 1.

[37] Pragnyasa Swain, ‘Alternatives to Death Penalty’ (2022) 4 Indian Journal of Law and Legal Research 1, 3.

[38] Swain (n 37) 7.

[39] Swain (n 37) 9.

[40] Shivam Tripathi, ‘Victim Emancipation in Indian Criminal Justice System’ (2020) 48 Indian Journal of Criminology 115, 116.

[41] D. P. Saxena, ‘Victims and Criminal Justice System – A Study in Victimology’ (2005) 33 Indian Journal of Criminology 57, 61.

[42] Rudal Sah v State of Bihar (1983) 3 SCR 508.

[43] A. Thiruthi, ‘Victimology in the Criminal Justice System’ (2022) 4 Indian Journal of Law and Legal Research 1, 10.

[44] Shivam Tripathi, ‘Victim Emancipation in Indian Criminal Justice System’ (2020) 48 Indian Journal of Criminology; Delhi Domestic Working Women Forum v Union of India (1995) 1 SCC 14.

[45] Section 357A Criminal Procedure (Amendment) Act 2008.

[46] Ankush Shivaji Gaikwad v State of Maharashtra (2013) 6 SCC 770.

[47] Bodhisattwa Gautam v Subhra Chakraborty (1996) AIR 922 (SC).

[48] Nipun Saxena v Union of India (2019) 13 SCC 715.

[49] Hussainara Khatoon v Home Secretary, State of Bihar (1979) SC 1360.

[50] Tripathi (n 40) 115, 118, 127.

[51] Kodagali v. State of Karnataka (2019) 2 SCC 752.

[52] Tripathi (n 40) 115, 127.

[53] Tripathi (n 40) 118.

[54] Tripathi (n 40) 127.