Custodial Violence: Legal Safeguards and Judicial Response

“Power tends to corrupt, and absolute power corrupts absolutely.”

-Lord Acton

Introduction

Custodial violence is one of the worst threats to humans while in the custody of police, where the individual or a group behind the bars is treated inhumanly and such treatment also leads to death or severe trauma. Torture spoils the life of anyone and leaves a lifelong negative impression in the mind of the suffering party. This act is done by police for investigation purposes or in order to make an offender confess the crime.[1] In a democratic country like India, it’s unfortunate that enforcers of the law are the one who violates the natural law, it makes us question the credibility of the law.[2] As per the Criminal Procedure Code (CrPC), there are two primary types of custody, Police custody involves the accused being physically detained by the police, whereas judicial custody involves the accused being detained in a jail under a magistrate’s supervision, requiring authorisation for the police to question them.

As per the National Human Rights Commission (NHRC), in the year 2021-2022, there were 2150 deaths reported in the judicial custody and 155 deaths in police custody. Considering the gradual increase in the custodial violence cases, the Law Commission and Courts have enacted various rules and regulations that address this issue. This paper is an effort to highlight the legal safeguards and judge made laws that elaborates the seriousness of this offence.

Legal Safeguards Against Custodial Violence

The most heinous thing that can ever happen to someone which is even worse than death is constant dose of mental/physical torture as this deprives the victim of both the will to live and the peace to die. Most often to complete investigation quickly such path is used by police officials and sometimes they are forced to do such things that are against their religion, dignity and morality. This evil act has been recognised by the Indian government via being a signatory to international agreements and through its own established municipal laws.

1. Constitutional Provisions:

The Indian constitution have recognised the prisoner’s right to live a dignified life via 2 most supportive articles that are enshrined under the part 3 of the constitution making them a fundamental right of victims suffering from custodial torture.

Article 21 – Protection of Life and Personal Liberty :–

No person shall be deprived of his life or personal liberty except according to law. The implied language of this act makes it obvious that no person will be deprived of his life or personal liberty. Here individuals behind the bars are no exception to it and holds the right of life which is a bag of rights that are inalienable by nature and its virtue.

Article 22 – Protection against arbitrary detention:-

• – gives every person a fundamental right to not get detained without being informed immediately after the arrest and they also hold the right to consult a legal practitioner of their choice. Non-compliance of this can held a police officer guilty of disobedience of constitutional provisions.
• – Every person shall be presented before the nearest magistrate and shall not be detained more than 24 hours unless magistrate authorises.

1. Statutory provisions:

• Bhartiya Nyaya Sanhita 2023 (BNS) :

Section 100 – Culpable Homicide :–

The BNS defines the offence of culpable homicide as death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. The wide scope allows custodial death resulting from intentional or reckless actions by law enforcement officers.

Section 106 – Causing death by Negligence :–

Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Section 120 – Voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property:

If the police officer or anyone is deliberately/voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any confession or any information which may lead to the detection of an offence or misconduct or for the purpose of restoration of property shall be punished for imprisonment of up to 7 years and also be liable to fine.

Section 198 – Public servant disobeying law, with intent to cause injury to any person :-

Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will by such disobedience, cause injury to any person, shall be punished with simple imprisonment or fine or both.

• The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNNS)

Section 38 gives right of arrested person to meet an advocate of his choice during interrogations.

Section 47 gives right to a person arrested to be informed of grounds of arrest and of right to bail.

Section 100 – Search for persons wrongfully confined:

Authorises District Magistrate, Sub-divisional Magistrate or Magistrate of the first class to issue a search warrant if they have a reason to believe that any person is confined unlawfully. The person who is directed with the search warrant may search for the person so confined and if found shall be immediately taken before a Magistrate.

Section 182 – No Inducement to be offered:

No police officer or authorised person can use inducement, threat or promise to extract a statement from a person under investigation. This section only allows voluntarily made statements.

Section 196 – Inquiry by Magistrate into cause of death:

Authorises Magistrate to hold inquiry in case of death where any person dies or disappears, or rape is alleged while in custody of the police or in any authorised custody. The section further authorises the magistrate to inquire about the evidence, and magistrate shall make an examination of the dead body and forward the body to nearest civil surgeon for medical examination.

• Bhartiya Sakhsya Adhiniyam, 2023

Section 22 – Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding:

A confession made by an accused person is irrelevant in a criminal proceeding, if the confession was under inducement, threat, coercion or promise having reference to the charge against the accused person.

Section 23 – Confession to Police officer:

No confession made to a police officer shall be proved as against a person accused of any offence. However, to have the statement admissible, it should be made in the immediate presence of the Magistrate.

• Police Act, 1861 – Section 29 bars Police officer from using personal violence to any person in custody or else shall be liable on conviction before a magistrate, penalty not exceeding three months pay, or to imprisonment with or without hard labour, for a period not exceeding three months, or to both.

1. Role of NHRC.

National Human Rights Commission has enacted guidelines regarding Magisterial Enquiry in cases of Death in custody or during police action. That specifies the authority given to the magistrate to enquire at the earliest without undue delay. The magistrate will attempt to identify natural witnesses who are likely to have been present at the scene of crime, take them into confidence, try to record their statements, issue a public notice in the newspaper to inform closed relatives of the victim. In addition to that several other reports like Inquest report, postmortem report, viscera analysis report, histopathological examination report and others are supposed to be verified and examined by the magistrate.[3]

The Magisterial Inquiry Report (MER) should provide a clear and concise summary of the investigation. It must include key points from witness statements, a review of relevant documents, and an analysis of whether the allegations were proven or not, along with the reasoning behind the conclusions. The report should give a definitive opinion on the circumstances leading to the death, addressing whether the use of force was justified and whether the actions taken were lawful. It must also specify any acts of misconduct or negligence by public servants, naming those responsible if applicable. Additionally, the magistrate can recommend systemic improvements or policy changes to help prevent similar incidents in the future.

1. Role of International Agreements and Commissions.

• United Nations Convention Against Torture (UNCAT):

Article 10 – Each state party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. In addition, Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11 – Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

• Universal Declaration of Human Rights, 1948

Article 5 – No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 9 – No one shall be subjected to arbitrary arrest, detention or exile.

Judicial Response to Custodial Violence

Apart from codified provisions, there are judicial pronouncements that displays the seriousness and efforts of the judiciary against custodial violence.

• DK Basu Vs. State of West Bengal 1997.

The Apex court of India tired to address the invalid nature of the police and the issue of custodial violence in the said case via stressing on the mistreatment of individuals in custody which is a direct threat to their dignity and basic human rights. The Court passed 11 key rules that a police official must follow while arresting anyone inorder to ensure transparency and accountability.

Important Protections for Arrested Persons:

1. Clear Identification of Officers: Every Police Officer engaged in any sort of arrest should wear the name tag exposing their rank for better identification.
2. Written Record of Arrest: An arrest memo consisting of date, time and place of arrest and signed by a relative or any respectful local person as a witness. The arrested person must also sign it.
3. Right to Inform a Loved One: The arrested individual has a right to inform family members, friends or any person concerned about their arrest.
4. Timely Notification: In case the arrested person’s relative or friend resides outside the district, they should be informed about their arrest within 8-12 hours of arrest.
5. Awareness of Rights: The arrested individual should be made aware about their right to inform their situation.
6. Police Records Must Be Kept: A diary should be maintained that mentions the place of arrest, the person who has been notified and the details of the officers handling the case.
7. Injury Report: In case of any big or small injury should be written down and signed by both the arrested person and the police officer, a copy of which must be given to the detainee.
8. Regular Medical Checkups: /The detainee must every 48 hours should undergo a medical examination while being in custody for their well-being.
9. Submitting Documents to the Magistrate: All the official documents related to the arrest must be submitted to the Magistrate to maintain transparency.
10. Right to a Lawyer: The detainee should be given opportunity to engage with their lawyer during questioning.
11. Reporting to the Control Room: to avoid unlawful arrest all arrested person should be reported within 12 hours to the all the district police control room.

These guidelines are a step to avoid misuse of power by the police and safeguard the rights of the detainee.

• Nilabati Behera vs State of Orissa

A letter was written by smt. Nialabti behera to the Supreme Court of India alleging the death of her 22 year old son, Suman Behera whose body was found on a railway track and according to her he was subject to serious injury during his police custody. The court entertained her letter as a writ petition under the article 32 of the Indian constitution. The question before the court was whether if the victim’s injuries inflicted during his time in custody and whether victim’s death was the result of a police station. It was held that the victim was indeed subject to custodial torture that gave him serious injuries while he was detained. The court made state responsible to pay 1,55,000 in compensation to the victim’s family.

• Prakash Singh v. Union of India 2006

On November 5, 1977, the Government of India established the National Police Commission to evaluate the role and performance of the police sector, both as a law enforcement force and as an institution responsible for protecting citizen’s rights. The commission conducted in-depth studies for more than 3 years and submitted its final report in May 1981. The report mentioned several key recommendations, including conducting fair and impartial inquiries into complaints of police misconduct, creating the position of ‘Chief of Police’ in every state, and setting up a Statutory Commission in each state to oversee and support police operations. However, like any other commission, the Government of India didn’t comply with it. Aggrieved of which a police officer filed a writ petition under article 32 at the Supreme court of India calling for urgent police reforms. The issue raised before the court was whether there is a need for urgent police reforms and what measures could be taken to address the issue.

The Supreme Court recognized the seriousness of the issue and noted that multiple committees and commissions had already recommended reforms. The court also observed that there was no certainty about when these reforms would be introduced and that the petition had already been pending for ten years. Given these factors, the court decided that immediate action was necessary. To address the situation, the Supreme Court issued guidelines that would remain in effect until the Central or State Governments enacted a new Police Act. To improve police accountability and efficiency, the Supreme Court issued the following directives:

1. State governments must establish a State Security Commission to restrict political interference in police functioning.
2. The Director General of Police (DGP) in each state should be selected from among the three senior-most officers based on their service record and experience. Once appointed, the DGP should have a minimum tenure of two years, regardless of their retirement date.
3. Important police officers, including Inspectors General (IGs), Deputy Inspectors General (DIGs), Superintendents of Police (SPs), and Station House Officers (SHOs), should have a minimum tenure of two years to maintain stability in leadership.
4. The investigation wing of the police should be separated from the law-and-order wing to ensure faster and more effective investigations, as well as better public trust.
5. A Police Establishment Board should be establishes in every states to regulate transfers, postings, promotions, and other service-related matters for officers up to the rank of Deputy Superintendent of Police (DSP).
6. At both district and state levels Police Complaints Authority should be established. Where the district-level authority would handle complaints against officers up to the rank of DSP, while the state-level authority would deal with complaints against senior officers of the rank of SP and above.
7. The Central Government should set up a National Security Commission to select and appoint Chiefs of the Central Police Organizations (CPOs), ensuring that they are chosen based on merit and granted a minimum tenure of two years.

Challenges in addressing Custodial Violence

The fact that there is no specific law that can address the offences occurred in the custody, this gives the police an indirect immunity of not being tried. The police are not trained well in India, there is a dire need to provide proper training on how detainees should be treated and why they should be treated as a human being too. Moreover, the literacy rate in India being low proves the lack of awareness of their basic rights that can help anyone not become a victim of any sort of custodial torture. On the other hand, it is undeniable that the duty of a policemen is stressful as they are in constant pressure from their seniors in which frustration and lack of understanding leads to such violent acts.[4] There is also need for better and stricter implementation of law. Even if there is no anti-torture law in India but still the criminal laws and constitutional law have provision that address this issue though narrowly.

Remedies to address the issue

Establishing an independent authority that looks after the actions of police officials would be a primary step to ensure compliance with the latest law and simultaneously safeguarding the rights of the detainees. Moreover, mandatory visit by the magistrate to visit police stations and jails to check the conditions of prisoners would be beneficial. Ensuring that all the police stations and interrogation rooms are equipped with CCTVs with decent audio and video quality will ensure that police action will stay under control. Compulsory medical check-up of individual before they enter the prison and after their release could also reveal the kind of interrogation in practiced by the police officials. In addition to that, training the police during their recruitment with strong ethical practices might as well help in treating the detainees more like a human being.

Conclusion

Custodial violence is a serious problem that questions the justice delivery system, it turns places of protection into zones of fear. Despite legal safeguards and judicial interventions, the rising cases of torture and deaths in custody show that laws alone are not enough strict enforcement and systemic change are crucial. Real reform means holding police accountable, ensuring CCTV monitoring, mandatory medical check-ups, and independent oversight. More importantly, officers must be trained to see detainees as human beings, not just case files. A just society isn’t measured by how it treats its free citizens, but by how it treats those in its custody. Ending custodial violence isn’t just a legal duty it’s a moral one too.

 

References

[1]Shikha Sodhiya, Human rights and custodial violence: An overview, 1, An International Refereed/ Peer Review Research Journal, 1-10 , 2020, https://nssresearchjournal.com/CertEdiDoc/NSS_April_to_June_2020_volume_1_20240121T222801PM.pdf#page=35

[2] Sandra Jini Saju, CRITICAL ANALYSIS OF CUSTODIAL VIOLENCE AND ROLE OF JUDICIARY IN INDIA 2,5, Indian Journal of Integrated Research in Law, https://ijirl.com/wp-content/uploads/2022/11/CRITICAL-ANALYSIS-OF-CUSTODIAL-VIOLENCE-AND-ROLE-OF-JUDICIARY-IN-INDIA.pdf

[3]https://nhrc.nic.in/sites/default/files/Guidelines_conducting_Magisterial_Enquiry_in_cases_of_CD_or_police_action.pdf

[4] Sambit Rath, Custodial Violence, 2022, Iblogpleaders, (Feb. 12, 01:00 AM) https://blog.ipleaders.in/custodial-violence/