Custodial Violence in India

Table of Contents

Context: Two police officers have been suspended on the charges of Custodial Violence (Custodial Torture) after the death of a labourer in custody.

Understanding Custodial Torture

Custodial torture refers to the act of subjecting a person who is in the custody of the police or other authorities to physical or mental pain and suffering.
It is a severe violation of human rights and dignity, often resulting in severe physical injuries, psychological trauma, and in some cases, death.
Custodial torture is considered a form of abuse and is widely condemned by international human rights organizations.

Forms of Custodial Torture

Physical Torture: This involves the use of physical force to inflict pain and harm on a person in custody. It may include beatings, electrocution, sexual assault, suffocation, and other forms of physical violence.
Psychological Torture: Psychological torture aims to inflict mental suffering and anguish on the victim. It can involve tactics such as threats, intimidation, humiliation, sleep deprivation, sensory deprivation, and psychological manipulation.
Sexual Torture: This form of custodial torture involves sexual abuse, rape, or other forms of sexual violence inflicted on the person in custody. It is a particularly heinous form of torture that causes severe physical and psychological trauma.
Denial of Medical Care: Authorities may deliberately withhold necessary medical treatment or access to medical facilities, leading to physical deterioration and exacerbation of existing injuries or illnesses.
Other Forms of Abuse: Custodial torture can also include forced confessions, forced labour, deprivation of food and water, forced stress positions, and other inhumane and degrading treatment.

Custodial Deaths

Custodial death refers to the death of a person in jail resulting from violence and torture inflicted by the police while in their custody.
Custody can be divided into two categories: Police custody and Judicial custody.
Police custody signifies that the accused individual is physically held by the police, typically in a police station lockup.
Judicial custody indicates that the accused is in the custody of a relevant magistrate and is housed in a jail facility.

Custodial Deaths in India

The Ministry of Home Affairs (MHA) has reported the following numbers of death in police custody cases in recent years: 146 cases in 2017-2018, 136 cases in 2018-2019, 112 cases in 2019-2020, 100 cases in 2020-2021, and 175 cases in 2021-2022.
During the past five years, Gujarat has reported the highest number of custodial deaths, with 80 cases, followed by Maharashtra with 76 cases, Uttar Pradesh with 41 cases, Tamil Nadu with 40 cases, and Bihar with 38 cases.
According to the National Crime Records Bureau (NCRB) data, in 2019, 85 cases of custodial deaths were reported in the year with Tamil Nadu registering the highest number of cases.
These numbers reflect the concerning issue of custodial deaths in these regions.

Factors Contributing to the Increase in Custodial Deaths in India

Lesser Conviction: The perception that many policemen escape punishment contributes to the increase in custodial deaths. Manipulation of records, intimidation of complainants, and political patronage hinder successful convictions.
Lack of Prompt Action from Senior Officials: Inadequate action by senior officers indirectly endorses brutal torture. When erring personnel are not swiftly and appropriately punished, it sends a message of impunity to other rogue policemen.
Poor Service Conditions and Lack of Police Counselling: Highlighted by various judgments and committees, the poor service conditions of constables lead to increased frustration and stress. This, in turn, may result in some police personnel resorting to violence.
“No Action” or “Extreme Action” Approach: The police in India are often accused of either not taking action or resorting to extreme measures. This lack of a balanced approach contributes to instances of excessive force and abuse.
Lack of Comprehensive and Accurate Data: The absence of consistent and reliable data on custodial deaths hinders a thorough understanding of the problem and the implementation of effective preventive measures.
Marginalized Sections: Custodial deaths disproportionately affect marginalized sections of society. Socio-economic disparities limit their access to legal representation and make navigating the legal system more challenging.
Lack of Awareness: Despite constitutional declarations and guarantees, many people remain unaware of their rights and the protections available to them. This lack of awareness increases the risk of custodial deaths.
Lack of ratification of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT): India has signed the treaty in 1997 but has not yet ratified. This prevents India from being bound by international obligations and standards to prevent and combat custodial torture.

Constitutional and Legal Safeguards

Constitutional Provisions:

Article 21 of the Constitution guarantees the right to life and personal liberty, which includes the right to be free from torture and other cruel, inhuman or degrading treatment or punishment.
Article 20 (1) states that no person shall be convicted of any offence, except those which are in contravention of the law in power at the commission of the Act. Thus, this law prohibits punishment above what is mentioned in the law that deals with the offence.
Article 20(3) prohibits a person to be compelled to be a witness against himself. It is an extremely instrumental law as it protects the accused from giving confessions when the accused is coerced or tortured to do so.
Article 39A provides for NALSA and free legal aid.

Legal Protections:

Section 24 Indian Evidence Act, 1872 declares that all the confessions made by the accused by succumbing to the threat, promise or inducement of investigating agencies would not be admissible in the court of law. This Section primarily works for preventing the accused to give confessions against his will.
Section 330 and 331 of the Indian Penal Code (IPC) criminalize voluntarily causing hurt or grievous hurt to extort confession or information from any person.
Section 41 of the Criminal Procedure Code (CrPC)was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation.

International Conventions for Human Rights

International Human Rights Law, 1948: The provision of this law protects people from torture and other enforced disappearances.
United Nation Charter, 1945: The Charter calls for treating prisoners with dignity. The Charter clearly states that despite being prisoners, their fundamental freedoms and human rights are set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The Nelson Mandela Rules, 2015: The Rules were adopted by the United Nations General Assembly in 2015 to treat prisoners with inherent dignity and to prohibit torture and other ill-treatment.

Supreme Court Judgements on Custodial Deaths

D.K. Basu v. State of West Bengal (1997): This landmark judgment laid down guidelines to prevent custodial torture and deaths. It emphasized the importance of safeguarding the rights of arrested individuals, including the right to legal representation, the right to be informed about their arrest, and the right to protection against torture.
Nilabati Behera v. State of Orissa (1993): In this case, the Supreme Court held that custodial deaths amount to a violation of Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. The court recognized the right to compensation for the victim’s family in cases of custodial deaths.
Prakash Singh v. Union of India (2006): This judgment highlighted the need for police reforms and laid down several directives to ensure police accountability, including the establishment of State Security Commissions, Police Complaints Authorities, and guidelines for police functioning and accountability.
Common Cause (A Regd. Society) v. Union of India (2016): The Supreme Court directed the implementation of police reforms, including the appointment of a Director General of Police (DGP) through a transparent process, fixed tenures for DGPs, and the establishment of Police Complaints Authorities at the state and district levels.
PUCL v. State of Maharashtra (2014): The Supreme Court reiterated the importance of preventing custodial torture and emphasized the need for effective investigation, prosecution, and punishment of those responsible for such acts.

Way Forward

Promoting Police Accountability: Establishing strong mechanisms for holding police personnel accountable for their actions, ensuring thorough investigations, and prosecuting those responsible for custodial deaths.
Improved Training and Counselling: Enhancing training programs for police personnel, including modules on human rights, non-violent conflict resolution, and stress management.
Access to Legal Representation: Ensuring that all individuals in custody have access to legal representation, particularly for marginalized sections of society who may face additional barriers.
Raising Awareness: Conducting public awareness campaigns to educate people about their rights, the safeguards against custodial abuse, and avenues for seeking redress.
Effective Data Collection and Reporting: Establishing comprehensive and accurate data collection systems to monitor custodial deaths, enabling evidence-based policy-making and targeted interventions.