CUSTODIAL VIOLENCE LEGAL SAFEGUARDS & JUDICIAL RESPONSE

INTRODUCTION

By the term “Violence” what first comes in our mind? Violence, it is the intentional use of force, power, threats or coercion to harm or control a particular individual or a group of individuals. A violence can be manifested in various forms it may be physical, psychological, sexual like rape and structural violence. So, Now to answer what is custodial violence to as we often hear or read, we need to understand what it actually means. Custodial Violence is a term we all keep hearing now & then. So as violence as we all know it is the intentional harm of an individual, custodial violence too corelate as the intentional harm of an individual but in custody by the police. This act of violence is not something very new, it’s been a very long time and today is quite been a tradition of Custodial Violence all over the world.

CUSTODIAL VIOLENCE

According to the Chambers Dictionary, the condition of being held by the police, arrest or imprisonment is termed to be Known as “Custody“.

And Custodial violence basically defined as torturing or committing a violence on an individual or a group of individuals. while in the custody of the police or Judiciary. Custodial Violence includes wrongful arrest, illegal detention, physical and mental harassments, violation to extort information, etc. Custodial Violence has not been defined under law so a public servant who is appointed by the administration should not inflict violence or torture against the arrested or a detained person who is in custody leading to the death of the victim or the trauma to the victim. According to the theories of Jurisprudence, the primary theory of punishment is to deter people from committing crimes and to prevent the wrongdoer from doing a crime a second time, by putting him in custody. But, if by being in custody if he gets violated then it’s a double torture to the individual, first to be in custody leads to a different mental pressure and second getting tortured or accused by the public servant. 

STATISTICS

According to the recent statistics released by National Human Rights commission (NHRC), which are discussed below.

2022. a) 669 people died in Police custody across India In the last 5 years from April 1, 2017 to March 31,2022. A total of 175 cases of death in police custody were reported during 2021-22 as per NHRC.
2023. b) A total of 2152 cases relating to death of persons in Judicial custody were recorded in 2021-22 (until February 28,2022) by the National Human Rights Commission.

TYPES OF CUSTODIAL VIOLENCE

1. Physical Violence: The most and widely used form of violence used by the police to cause bodily harm leading the victim to death.
2. Psychological/Mental Violence: This type of custodial violence leads to the mental torture by depriving the victim of basic needs like, food, water, sleep, toilet or threats to harm the members of the family leads to a mental violence.
3. Medical Negligence: Denial of medical care, refusal to provide proper treatment for injuries sustained in custody leading to deterioration of health.
4. Death in Custody: Results from excessive torture, denial of medical assistance often leading to suicide or natural death.

LEGAL SAFEGUARDS AGAINST CUSTODIAL VIOLENCE

India has several constitutional, statutory, safeguards to prevent and address custodial violence. These legal provisions aim to protect individuals from torture, illegal detention, and abuse by law enforcement agencies. These are as follows:

1. Constitutional Safeguards:
2. a) Article 20 – Protection Against Self-Incrimination and Double Jeopardy

• Article 20(1): Prevents retrospective punishment (a person cannot be punished for an act that was not a crime at the time of commission). (Kedar Nath v. State of Bihar, AIR 1962 SC 955)
• Article 20(2): Protects against double jeopardy (no person can be punished twice for the same offense). (Maqbool Hussain v. State of Bombay, AIR 1953 SC 325)
• Article 20(3): Provides protection against self-incrimination, meaning that a person cannot be forced to confess under duress or torture. (Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025)

1. b) Article 21 – Right to Life and Personal Liberty (Francis Coralie Mullin v. UT of Delhi, AIR 1981 SC 746)

Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This means that:

• Any form of torture, inhuman treatment, or custodial death is a violation of this fundamental right.
• The State is responsible for ensuring the safety and well-being of detainees.

1. c) Article 22 – Protection Against Arbitrary Arrest and Detention

• Article 22(1) & (2):
  • Any arrested person must be informed of the reason for arrest.
  • The person has the right to consult a lawyer of their choice.
• Article 22(3) & (4):
  • A person must be produced before a magistrate within 24 hours of arrest.
  • Preventive detention beyond three months requires approval from an advisory board.

1. d) Directive Principles of State Policy (DPSP) – Article 42

• Article 42: Protects prisoners and detainees from inhumane treatment.

2. Statutory Safeguards
3. Indian Penal Code, 1860 (IPC)

(a) Section 166 – Public Servant Disobeying Law

• If a public servant disobeys legal procedures, causing harm to a person, they can be punished with imprisonment up to 1 year or a fine, or both. (State of UP v. Mohd. Naim, AIR 1964 SC 703)

(b) Section 167 – Public Servant Preparing False Documents

• If a police officer fabricates records to falsely implicate someone, they can face imprisonment up to 3 years and a fine. (R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821)

(c) Sections 330 & 331 – Torture to Extract Confessions

• Section 330: If a police officer voluntarily causes hurt to obtain a confession, they face up to 7 years of imprisonment and a fine.
• Section 331: If the hurt is grievous, the punishment extends to 10 years of imprisonment and a fine.

(d) Section 348 – Wrongful Confinement to Extract Confession

• Imprisonment up to 3 years with a fine for wrongful confinement to force a confession.

(e) Section 376(2)(b) – Custodial Rape

• Any police officer committing rape in custody faces rigorous imprisonment of at least 10 years, extendable to life imprisonment. (Tukaram v. State of Maharashtra, AIR 1979 SC 185)

(f) Section 302 – Punishment for Murder (Custodial Deaths)

• If custodial violence results in death, police officers can be charged with murder, leading to the death penalty or life imprisonment. (Raghbir Singh v. State of Haryana, AIR 1980 SC 1087)

(g) Section 304 – Punishment for Culpable Homicide (Negligence in Custody)

• If death occurs due to police negligence (without intent to kill), punishment includes life imprisonment or up to 10 years in jail with a fine.

(h) Section 306 – Abetment of Suicide in Custody

• If custodial violence leads to suicide, the officer responsible can face up to 10 years of imprisonment and a fine.

(i) Section 120B & 34 – Criminal Conspiracy & Common Intention

• If multiple officers collectively engage in custodial violence, they can be punished equally under these sections. (State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820)

1. Code of Criminal Procedure, 1973 (CrPC)

(a) Section 41 – Conditions for Arrest Without Warrant

• Police can arrest a person only when necessary, such as:
  • To prevent further crimes.
  • To ensure the accused appears in court.
  • To prevent evidence tampering.
• Police cannot make arbitrary arrests. The Supreme Court ruled that officers must justify an arrest under Section 41. (Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756)

(b) Section 41A – Notice Before Arrest

• If a person is not required to be arrested immediately, police must issue a notice to appear for questioning instead of making an arrest.
• Prevents unnecessary custodial violence due to arbitrary detention.

(c) Section 41B – Procedure for Arrest

• Police must identify themselves and provide reasons for the arrest.
• Arrest records must be maintained to ensure accountability.

(d) Section 41D – Right to Legal Representation

• The arrested person has the right to meet a lawyer during interrogation.

(e) Section 50 – Right to Be Informed of Grounds of Arrest

• Police must inform the arrested person about the reason for the arrest.
• If arrested without a warrant, police must also inform them of their right to bail (if applicable).

(f) Section 54 – Medical Examination of Accused

• Mandatory medical examination of the accused after arrest.
• Helps detect any custodial torture and ensures the arrested person’s well-being.

(D.K. Basu v. State of West Bengal, AIR 1997 SC 610)

(g) Section 56 – Arrested Person Must Be Taken Before Magistrate

• The police must present the arrested person before a magistrate within 24 hours of arrest.
• This prevents illegal detention and custodial abuse.

(h) Section 57 – No Detention Beyond 24 Hours Without Magistrate’s Permission

• Police cannot keep an arrested person in custody beyond 24 hours without judicial approval.

(i) Section 167 – Remand Procedure

• If police need custody beyond 24 hours, they must obtain permission from a magistrate.

1. The Indian Evidence Act,1872

(a) Section 24 – Confession Made Under Threat, Inducement, or Promise is Inadmissible

• Any confession made by an accused under coercion , inducement, or threat is not admissible in court. (State of Punjab v. Barkat Ram, AIR 1962 SC 276)
• Example: If police torture a person into confessing, the confession cannot be used as evidence. 

(b) Section 25 – Confession to a Police Officer is Inadmissible

• Any confession made to a police officer is not valid evidence in court.
• This prevents police from extracting forced confessions through torture.
• Example: If an accused admits guilt while in police custody, this statement cannot be used against them.

(c) Section 26 – Confession in Custody Not Valid Unless Made Before a Magistrate

• A confession made while in custody is only valid if recorded before a magistrate.
• Prevents police from forcing confessions inside lockups.

(d) Section 27 – Recovery Based on Confession is Admissible

• If a confession leads to discovery of evidence (like a weapon), that specific part is admissible in court.
• However, the confession itself remains inadmissible if obtained through coercion.

(e) Section 145 – Protection Against Contradictory Statements

• If a police officer or witness makes contradictory statements, the defense can challenge their credibility in court.

(f) Section 155 – Impeaching the Credibility of Witnesses

• If a police officer gives false testimony, their credibility can be questioned, preventing fabricated evidence.

(g) Section 165 – Powers of Judge to Ensure Fair Trial

• The judge has the power to question witnesses and investigate facts to prevent injustice due to false evidence.

(h) Section 164 – Recording of Confessions by Magistrate

• If an accused wants to confess, the confession must be made voluntarily before a magistrate.
• The magistrate must:
  • Ensure the accused was not tortured or pressured into confessing.
  • Give the accused time to reconsider before recording the statement.
  • Reject any confession that appears coerced.

1. Protection of Human Rights Act,1993:

Established by the National Human Rights Commission (NHRC) and State Human Rights Commission (SHRCs) to investigate custodial violence cases and recommend action against guilty officers.

JUDICIAL RESPONSE

Judicial response can be basically known as a court’s actions to address a violation of the law, human rights, or constitutional rights, the responses may be in a lower court like a District court or a High court or The Supreme Court. Judicial responses include judicial review, justiciability, and remote court hearings. 

Here are some of the most landmark judgements made by the Supreme Court of India where measures have been taken against custodial violence:

1.Khatri v. State of Bihar (1981) : Bhagalpur Blinding Case

Facts:

• In the Bhagalpur district of Bihar, police officers poured acid into the eyes of 31 undertrial prisoners, permanently blinding them.
• The Supreme Court took suo motu cognizance after media reports exposed the brutal torture.
• The State Government tried to justify the police actions.

Judgment:

• The Supreme Court held that police brutality in custody is unconstitutional.
• Directed free medical treatment and rehabilitation for the victims.
• Ruled that prisoners do not lose their fundamental rights even in custody.
• Stressed that the state must compensate victims of custodial torture.

Impact:

• Highlighted the inhumane treatment of prisoners and forced stricter oversight of jail conditions.
• Established that custodial torture violates the right to life under Article 21.

2.Sheela Barse v. State of Maharashtra (1983) – Protection of Women in Custody

Facts:

• Sheela Barse, a journalist, exposed the torture of women prisoners in Maharashtra jails.
• She filed a Public Interest Litigation (PIL), demanding judicial oversight.

Judgment:

• Supreme Court ruled that women prisoners must be kept in separate lock-ups.
• Only female officers should handle women detainees.
• Magistrates must regularly visit jails to check for violations of rights.

Impact:

• Led to strict procedures for handling female prisoners.
• Influenced amendments in CrPC and prison laws to ensure women’s safety in custody.

3. Nilabati Behera v. State of Orissa (1993) – Right to Compensation for Custodial Death

Facts:

• Suman Behera, a 22-year-old man, was arrested and later found dead with multiple injuries on a railway track.
• His mother, Nilabati Behera, filed a case, alleging police brutality and custodial death.
• The state denied responsibility, claiming the death was an accident.

Judgment:

• The Supreme Court ruled that custodial violence and death violate Article 21 (Right to Life).
• It held that the State is liable for the actions of police officers.
• Ordered compensation of ₹1.5 lakh to the victim’s family as a public law remedy.

Impact:

• Recognized the Right to Compensation for victims of custodial violence.
• Strengthened state accountability for police excesses.
• Influenced further cases where monetary relief was granted for human rights violations.

4. D.K. Basu v. State of West Bengal (1997) – Custodial Safeguards

Facts:

• In 1986, D.K. Basu, a social activist, wrote to the Supreme Court about rampant custodial deaths and torture in India.
• The court took suo motu cognizance and treated the letter as a Public Interest Litigation (PIL).
• The case revealed multiple incidents of police brutality in custody, prompting the need for strict guidelines.

Judgment:

• The Supreme Court established 11 guidelines for arrests and detentions, including:
  1. Police officers must carry identification (name tags and designations).
  2. The time, date, and place of arrest must be recorded.
  3. Relatives must be informed of the arrest within 8-12 hours.
  4. The arrested person must be medically examined every 48 hours.
  5. A lawyer must be allowed during interrogation.
  6. Magistrates must verify that the accused was not tortured.
  7. Strict action against officers found guilty of custodial violence.

Impact:

• These guidelines became legally binding and were later included in the Criminal Procedure Code (CrPC) under Sections 41B, 41D, and 50A.
• This case remains the cornerstone of custodial rights in India.

CONCLUSION

Custodial violence remains a serious human rights violation, undermining the rule of law and principles of justice. Despite constitutional safeguards and judicial pronouncements, cases of torture, illegal detention, and extrajudicial killings continue to surface. The Supreme Court has played a crucial role in addressing this issue through landmark rulings, emphasizing the need for accountability, transparency, and adherence to due process.

However, effective implementation of legal safeguards, police reforms, and independent oversight mechanisms are essential to curb this menace by strengthening human rights commissions, and promoting custodial accountability through stringent action against offenders can serve as effective deterrents. Ultimately, a justice system that prioritizes human dignity and upholds constitutional rights is crucial for eradicating custodial violence and fostering public trust in law enforcement agencies.

 

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