Published on 1st August 2025
Authored By: Aditya Naduvinamani
KLE Law College, Bengaluru
INTRODUCTION
Custodial Violence. A word a very common to India. Seen many times in the newspaper titles and then forgotten over time. The term “custodial violence” encapsulates the physical and mental torture inflicted upon individuals held in police custody, reflecting a stark violation of their human rights[1]. This hasn’t been new but prevalent for a long time. What has been done to curb such acts, the types, the solutions are to be questioned. The crimes done by a civil servant brings down to sensitizing police personnel and their mental training. These issues highlight the issues of law and its enforcement problems, various challenges, and the need for proper reforms. Custodial Violence remains an area of clear violations to human rights through abuse of police power. It is believed that custodial deaths are the worst form of fundamental rights violations. With a few legal provisions at place, the issue withstands all the public outcry.
WHAT IS CUSTODIAL VIOLENCE?
It is a combination of two words i.e., custody and violence. ‘Custody’ refers to the state of being detained by the police, arrested, or imprisoned as defined in Chamber’s dictionary whereas ‘Violence’ describes the usage of force by one individual against another causing harm. This harm may include physical, psychological, or any other forms of injury. The term “custody” does not have a precise definition in both substantive and procedural law, but it is commonly interpreted as a form of guardianship. According to general dictionary meaning, custody implies a legal duty or authority to care for someone. In the present context, it refers to a state of being under the supervision of prison officials, where an individual’s liberty to move freely is constrained. With various forms of torture intentionally inflicted on an individual, it remains an essential custodial violence.
The Law Commission of India delineates custodial violence as a transgression committed by a public servant against an individual who is arrested or detained, thereby in custody[2]. It involves acts such as unlawful imprisonment or confinement, unwarranted arrests, demeaning treatment to suspects, coercing to extract information, as also various forms of physical, psychological, and sexual abuse. It is noteworthy that the notion of custodial violence remains devoid of a formally codified legal definition within the established framework of law.
Custodial violence manifests in various forms, with authorities often adapting their methods based on the circumstances and intended outcomes. These acts violate fundamental human rights and undermine the rule of law. The direct usage of physical force which results in bodily harm and physical exhaustion of people in custody by public servants. The Supreme Court in D. K. Basu v. State of West Bengal [3] provided guidelines related to the arrest or detention to prevent custodial violence. The safety of prisoners was given importance as it was reiterated that prisoners and detainees should not be deprived of their fundamental right under Article 21[4] and only the restriction permitted by law could be levied on the enjoyment of fundamental rights.
GUIDELINES ISSUED
The Court laid down 11 preventive measures to be followed during arrest and detention, including:
- Police must bear accurate identification and name tags.
- Arrest memo must be prepared at the time of arrest, attested by a family member or a respectable member of the locality.
- Information of arrest must be given to a friend or relative of the arrestee.
- Medical examination must be conducted every 48 hours by a doctor on the panel.
- Copies of all documents must be sent to the magistrate.
- The arrestee should be permitted to meet their lawyer during interrogation.
These guidelines were put forth,
- Police Identification: Officers making an arrest must wear clear and accurate identification tags. This prevents anonymity, which often enables abuse without consequences.
- Arrest Memo: A memo of arrest must be prepared at the time of arrest and should be attested by at least one witness – either a family member of the arrestee or a respectable member of the locality.
- Communication of Arrest: The person under arrest has the right to have their friend, relative, or well-wisher informed of the arrest and the location of detention, promoting transparency.
- Medical Examination: A medical examination of the detainee must be conducted every 48 hours by a government-approved doctor to document any signs of physical abuse or torture.
- Magisterial Oversight: Copies of all relevant documents, including the arrest memo, must be sent to the Magistrate, ensuring judicial scrutiny. vi)Legal Access: The detainee must be allowed to consult with a lawyer during interrogation, helping safeguard their legal and constitutional rights.
Though these guidelines exist, arrest memos are either not prepared or fabricated, and relatives are mostly not informed in a timely manner, the requirement of a medical examination every 48 hours is rarely being followed, especially in remote areas. While detainees have the right to consult a lawyer, access is often denied or delayed, especially for the poor or uneducated who are unaware of their rights. Many police stations lack basic facilities to maintain transparency, such as CCTV cameras, proper documentation systems, or digital arrest records, even when CCTV cameras exist, footage is often tampered with, missing, or of poor quality.
With these guidelines being violated in various places, The Thoothukudi Custodial Deaths were the ones that brought more light to the improper enforcement of these guidelines. Police officers in Thoothukudi, in Tamil Nadu, tortured and sexually brutalised Jayaraj and Bennix after they were taken into custody for allegedly keeping their shop open beyond permitted hours. The two men succumbed to injuries days later.[5] These deaths were conflicting with the guidelines issued by the D K Basu case as well as Section 377 of IPC[6](now repealed). The law enforcement officials perpetrate acts of violence against individuals in their custody, masquerading these actions as legitimate procedures of investigation and interrogation. The nature of this transgression lies in the fact that it is enacted upon the citizenry by those individuals who are tasked with safeguarding their welfare. Such acts transpire under the protection of official attire and authority within the confines of a Police Station or detention facility, leaving the victim entirely defenceless in these circumstances. The safeguarding of individuals against torture and the misuse of power by police constitutes a matter of profound concern in a society that values freedom. Police officials frequently exploit their authoritative capacity to alter evidence that may implicate them. Incidents of mortality occurring in custody are typically not documented within the records of detention facilities, and law enforcement agencies exert considerable effort to either dispose of the remains or to construct a narrative suggesting that the individual who was apprehended passed away after their release from jail.
WHAT DOES THE LAW SAY?
The legal framework in India, encompassing both constitutional and statutory aspects, thoughtfully incorporates provisions aimed at safeguarding individuals against arrest, detention, custodial torture, and other offenses occurring in custody. Article 20(3)[7] gives that no person accused of any offence shall be compelled to be a witness against himself, Article 21 gives Protection of life and personal liberty whereas Article 22[8] puts forth protection against arrest and detention in certain cases. Under Bharatiya Nyaya Sanhita, Section 120[9] explains voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property and Section 68 defines Sexual intercourse by a person in authority without consent(rape). Under Bharatiya Nagarik Suraksha Sanhita,2023, Section 47 and 48[10] explains various provisions around arresting procedures and Section 53 and 56 provides for medical examination of arrested individuals and their health safety. On the other hand, Bhartatiya Sakshya Adhiniyam, 2023, give out various provisions for confessions i.e., Section 22-24[11].
The substantive law, namely the Bhatatiya Nyaya Sanhita,2023, stipulates appropriate penalties for individuals found responsible for causing harm, torture, or fatality to those under custody. The procedural law, as encapsulated in the Bharatiya Nagarik Suraksha Sanhita,2023 and Bharatiya Sakshya Adhiniyam, 2023, enshrines numerous provisions that diligently protect the legal rights of individuals in custody. The constitutional and pertinent statutory provisions on this matter have been greatly enhanced by pivotal judicial interpretations.
Furthermore, the Protection of Human Rights Act of 1993 establishes institutions such as the National and State Human Rights Commissions, along with Human Rights Courts, to ensure the effective safeguarding of the human rights of individuals in custody. India has formally ratified, acceded to, and signed a series of International Declarations, Covenants, Conventions, and treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT). Moreover, the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power holds significant relevance in this context.
JUDICIAL RESPONSES
The Indian judiciary has been a steadfast guardian of human rights, stepping in time and again to tackle the problem of custodial violence which remains to be a brutal misuse of authority that undermines justice, dignity, and freedom. When the government and lawmakers have fallen short in curbing this issue, the courts have taken charge, delivering groundbreaking rulings that not only set up safeguards but also hold wrongdoers accountable and ensure victims or their families receive compensation. These efforts breathe life into the constitutional promise of protecting rights, even for those behind bars.
Be it D K Basu case or Nilabati Behera v. State of Orissa[12]in which a boy died in custody. The court held the State liable and granted compensation. It laid that that right to life means nothing if there’s no way to make things right when it’s violated. This case opened the door for victims of violations of human rights to use public law to pursue justice. A similar pivotal event occurred in Sheela Barse v. State of Maharashtra[13]. The Court intervened after a journalist and activist expressed concern about the abuse of women and children in detention. They demanded that detainees receive legal assistance, that men and women be kept apart in prisons, and that these facilities be routinely inspected. They also brought attention to the psychological damage that these circumstances inflict on those who are most at risk.
With Prakash Kadam v. Ramprasad Vishwanath Gupta[14], the Court decided on fake encounters and custodial killings. It was a lauded that policemen don’t have to play judge and executioner.Through these important rulings, the judiciary has stood high for our constitutional rights to liberty and dignity. Sure, putting these rulings into practice and fixing the system isn’t easy. The slow rise in custodial violence and death calls for possible solutions to bring down this evil. It might not end with passing precedents but maybe with proper training and education of Police force. Making NHRC stronger and State Human Rights Commissions can be another such solution.
CONCLUSION
Custodial violence is beyond just a legal issue, it’s a human one, it daggers the heart of justice, and questions the trust in the people meant to protect us. Regardless of precedents and public outcry, the violence continues. This issue indicates towards a bigger problem of how our systems works and the meagre power victims have. To change the plethora of problems related, we must transcend legalities and focus on sensitising police forces and teaching them how to not tamper with human rights. It is only then that the faith over humanity can be restored and the trust on public servants can be regained. For the world be a better place to live in, the protectors must actually protect.
REFERENCES
[1] Shephalika Srivastava, Custodial Violence: Horrendous Crime in a Civilised Society, 5(5) International Journal of Law Management and Humanities (2022).
[2] Ibid
[3] D. K. Basu v. State of West Bengal, (1997) 6 SCC 642
[4] The Constitution of India
[5] https://www.thehindubusinessline.com/blink/know/thoothukudi-custodial-deaths-a-dangerous-blindspot/article32033670.ece
[6] Section 377 in The Indian Penal Code, 1860- Unnatural offences
[7] The Constitution of India
[8] Ibid
[9] BNS, 2023
[10] BNSS, 2023
[11] BSA, 2023
[12] Nilabati Behera v. State of Orissa1993 AIR 1960
[13] Sheela Barse v. State of Maharashtra 1983 (SC) 378
[14] Prakash Kadam v. Ramprasad Vishwanath Gupta AIR 2011 SC
