Custodial death and violence represent significant violations of human rights, raising serious concerns about the treatment of individuals in state custody. Custodial death occurs when a person dies while in the custody of law enforcement or correctional facilities, often as a result of excessive force, neglect, or inadequate medical care. Such incidents frequently highlight systemic issues within criminal justice systems, including abuse of power, lack of accountability, and inadequate oversight.
The prevalence of custodial violence is influenced by physical, psychological, or sexual abuse inflicted by authorities. This violence can manifest through torture, inhumane treatment, and other forms of brutality that undermine the dignity and rights of individuals. Vulnerable populations, such as marginalized communities and those with limited access to legal resources, are often disproportionately affected. There are several International human rights instruments, such as the International Bill of Human Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, that emphasize the obligation of states to prevent custodial violence and ensure the safety of individuals in custody.
Despite these legal frameworks, custodial deaths and violence continue to persist globally, often shrouded in a culture of impunity. Addressing these critical issues requires comprehensive reforms in law enforcement practices, enhanced training for officers, and robust mechanisms for accountability. It also calls for public awareness and advocacy to promote justice for victims and to ensure that the fundamental rights of all individuals, regardless of their circumstances, are upheld.
Meaning Of Custodial Death And Violence:
Custody
The term “custody” has not been defined in any statute. Its dictionary meaning include: “Safe-keeping, protection, charge, care, guardianship, confinement, imprisonment, durance of person, guardianship, the act or duty of guarding and preserving, control of a thing or person.
The Supreme Court while dealing with the meaning of ‘custody’ within the purview of Section 439 Cr.P.C. observed:
“No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody. This word is of elastic semantics but its core meaning is that the law has taken control of the person.”[1]
In India, custody is of two types. They are:
Police custody
When a police officer arrests an individual accused of committing a crime and brings him to the police station, it is called police custody. When a person is in police custody, they are detained in a police station for a maximum of 24 hours, during which he is questioned by the station house officer and within the first 24 hours of apprehending him, police must present the suspect to the Magistrate.
Judicial Custody
After being produced before the Magistrate, the Magistrate either orders to keep the accused person in prison, which is called as Judicial custody or upon the request of the police, the custody of such person is given to the investigating officer, i.e., police custody, not more than 15 days in either of the case but which may be extended by the Magistrate.
Custodial Violence
The term custodial violence has not been defined under any law. Custodial violence generally means torturing or inflicting violence on an individual or group of persons while in the custody of the police or judiciary. According to the Law Commission of India, a crime by a public servant against the arrested or a detained person who is in custody is said to be custodial violence. Usually, it results in the death of the victim or trauma to the victim. Custodial violence includes illegal detention, wrongful arrest, humiliating suspects, extorting information under pressure, and physical, mental, and sexual violence.
Custodial Death
Custodial death refers to the death of an accused during pre-trial or after conviction. The death is caused by the direct or indirect act of police during their custody. It includes death occurring not only in jail but also on medical or private premises, or in police or another vehicle. Custodial deaths can be classified into three types:
a) The death occurred in police custody.
b) The death occurred in judicial custody.
c) The death occurred in the custody of army or paramilitary forces.
Custodial death can occur due to some natural sources, where there is no involvement of any kind of foul play by the police, for example- instances when a convict or an accused dies of an illness.
Key concerns of custodial death and violence include:
● Violation of fundamental human rights: These acts violate the right to life, freedom from torture, and other basic human rights which are against the international law, treaties and conventions that have been committed even after being ratified to those instruments.
● Loss of public trust: These acts make the public to lose their trust they have in law enforcement agencies and the justice system which they find as the hope to overcome their socio-economic issues.
● Lack of accountability: Perpetrators of custodial violence often escape justice, which can lead to a culture of impunity. It is because there is a lack of evidence against those who have committed the act.
Hence, in order to overcome this global issue, there have been several provisions that have been incorporated in the Constitution of India guaranteeing the rights of the person accused or in preventive detention, and amendments have been made in the criminal laws accordingly.
Laws Against The Custodial Death And Violence:
The Constitution of India provides certain rights to every person in India against custodial violence. Also, there are several statutory provisions which envisage the right against arbitrary treatment made towards the people.
The Constitution of India, 1950
i. Article 20(3): No person accused of any offence shall be compelled to become a witness against himself. The accused has a right to maintain silence and not to disclose his defence before the trial[2].
ii. Article 21: No person can be deprived of his life and liberty without following the procedure prescribed by law. The Supreme Court has consistently held that custodial torture violates right to life enshrined in Article 21 of the Constitution.
iii. Article 22: Protection against arrest and detention in certain cases. It prohibits detention of any person in custody without being informed of the grounds for his arrest nor he shall be denied the right to consult and to be defended by a legal practitioner of his choice and should be produced before the nearest Magistrate within twenty-four hours of such arrest[3].
Statutory Provisions
i. Indian Evidence Act, 1872
❖ Section 24- 27 deals with the confession made by the accused persons to the investigating officer or police officers at the time of enquiry or in custody. According to these provisions, the confession made is not a valid confession and it cannot be used as an evidence against the accused. It is so because, it is presumed that the confession may be made under the influence of the police like threatening, inducing, promise or by coercion.
❖ Section 132 provides that witness is not excused from answering the question on the ground that answer will criminate him. However, the proviso therefor reads as: “Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
In, R Dinesh Kumar v. State & Ors,[4] the Supreme Court explained the scope of the proviso observing that the proviso to section 132 of the Evidence Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself”. Though such a fundamental right is available only to a person who is accused of an offence, the proviso to section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the “answer” given by a person deposing as a “witness” before a court.
ii. Code of Criminal Procedure, 1973
There are several provisions that are relating to the custodial death and violence, torture. Those are, section 46, 49, 50, 54, 56, 100(3), 132, 160, 162, 167, 176, 357A, 357B, 357C, 358.
iii. Indian Penal Code, 1860
Sections 330, 331, 342 and 348 have, purposely been designed to deter police officers who are empowered to arrest a person and to 43 interrogate him during investigation of an offence resorting to third degree methods, which may amount to torture[5].
Role Of Judiciary In Custodial Violence And Death:
i. Khatri & Ors v. State of Bihar (Bhagalpur Blinding case)[6]
It is an example of cruel and inhuman treatment to the prisoners which are insulting the spirit of Constitution and human values as well as Article 21 as the case dealt with the blinding of under trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture and its implicit endorsement by the State and observed that “Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence.” This could be due to the situation where offenders are hand-in-glove with the local police and the absence of neutral witness.”
ii. Sheela Barse v. State of Maharashtra[7]
In this case, the Supreme Court laid down guidelines regarding arrest in general, and also particular with women directing that four or five police lock-up should be reserved for female suspects and they should be kept away from the male suspects and be guarded by female constables; interrogation of females should be carried out only in the presence of female police officers/constables; the District Judge would make surprise visits to police lock ups periodically with a view to providing the arrested persons an opportunity to air their grievances and ascertaining what are the conditions in the police lock ups, etc.
iii. Joginder Kumar v. State of U.P and others[8]
In this landmark case, the Court observed that the rights under Articles 21 and 22(1) of the Constitution need to be recognised and must be protected. The Court issued a few guidelines to ensure the protection of these rights. They are:
a) The arrested person should be informed about his or her right by the police officer when the arrested person is brought to the police station.
b) An entry needs to be maintained in the register which contains the information about who was informed about the arrest of the accused.
c) Articles 21 and 22(1) should be strictly recognised and enforced.
d) The Magistrate shall determine whether all the requirements are fulfilled and obeyed by the police authority.
iv. D.K. Basu vs. State of West Bengal[9]
This case is important because the Supreme Court in this case recognised custodial violence and police brutality. It stated that custodial violence is an attack on the dignity of a human being. The court noted that enacting recommendations and policies have had no effect as a death in police custody is increasing at an increasing rate and laid down 11 guidelines that are to be followed while making an arrest. These guidelines consist of various rights that are available to every arrested person:
a) The police personnel must bear name tags with their designations while making arrests or conducting an interrogation.
b) Arrest memo to be prepared and copy of it to be attested by a family member or a respectable person of the locality. It must also be signed by the arrestee and must include the date and time of the arrest.
c) In cases where a relative or family member of the arrestee is not present during the arrest, he is entitled to inform one friend or relative or other person having an interest in his welfare, of the arrest and location of detention.
d) Within 8-12 hours, the relative or friend of the arrestee must be informed of the time, place of arrest, and venue of custody if they live outside the district or town.
e) Person arrested to be made aware of his right to inform someone of his arrest.
f) An entry to be made in the diary of the place of detention, name of the friend who has been informed, and names and particulars of police officials in whose custody the arrestee is.
g) Major and minor injuries to be recorded at the time of arrest and to be signed by both the arrestee and the police officer. A copy of it is to be provided to the arrestee.
h) Medical examination by a doctor every 48 hours during the arrestee’s detention.
i) Copies of all documents are to be sent to the Magistrate.
j) Arrestees may be permitted to meet their lawyer during interrogation.
k) A police control room to be provided in all districts and arrests to be intimated within 12 hours to the control room.
v. Dr Ashwini Kumar vs Union Of India[10]
In this case, the petitioner sought directions to the Parliament to enact a standalone legal framework and proper guidelines in terms of the CAT to prevent torture, cruelty, inhuman or degrading treatment to jail inmates. Accordingly, the central government vide its letter dated 8th July, 2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.
As a result the 21st Law Commission of India submitted its 273rd Report titled “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation” on 30th October, 2017. The commission has recommended the government to consider to ratify the Convention and to enable a standalone legislation, to make necessary amendments in the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872. The commission has also gave a draft bill- ‘The Prevention of Torture Bill, 2017 and payment of compensation to the victims.[11]
But the Supreme Court has rejected the prayer sought by the petitioner as the law making power is vested with the Parliament and clarified that this won’t affect this court jurisdiction to deal when there is an individual cases of alleged custodial torture and pass appropriate orders and directions in accordance with law.
Role Of National Human Rights Commission
The National Human Rights Commission was setup under the Protection of Human Rights Act, 1993. This commission ensures the protection of human rights in every aspect. With regard to the custodial death and violence, the commission has issued guidelines that should be followed while making an investigation of the same. District Magistrate and Superintendent of Police are required to report the matters of custodial death to the Commission within 24 hours of the occurrence of death occurred in both police or judicial custody, videography of the post-mortem is must, etc.[12]
Suggestions
In the present days, there arises a much needed situation where the necessity to adopt strict approach as laid down in landmark judgment of Prakash Singh Case[13] in which the Apex Court gave seven directions to the central and state governments to reform the police. There is a concept of State Police Complaints Authority which is a platform for people to file complaints against the police. The other directives are given below:-
i. Establishment of a Police Establishment Board
ii. Formation of the National Security Commission
iii. Formation of a State Security Commission
iv. Formation of a Police Complaint Authority
v. Separation of the investigation and law and order functions of the police
vi. Merit-based system for the appointment of the Director-General of the Police
vii. Two-year minimum tenure for SP and station house officers
viii. Compensation to the victim
a) Police behaviour and Human Rights: – The police behaviour towards the accused is totally against the principles of fundamental rights. There is a need to enhance police training programs to emphasise respect for human rights and dignity. There is an urgent need to change the rude police attitude and promote a culture of accountability, professionalism, and empathy within law enforcement agencies.
b) More Monitoring & Enquiry: The National Human Rights Commission (NHRC) should be allowed to inquire into any matter even after one year from the date of the alleged human rights violation and also the jurisdiction should be expanded on human rights violations by armed forces with appropriate measures.
c) Assistance to Victim & its Family: To maintain the soul of justice, there is a need to provide more legal support to victims and their families who are directly and indirectly affected by the custodial tortures by the public authorities.
In Param singh saini Vs. Baljith Singh & others[14], the Supreme Court held to install CCTV cameras in each and every police station in all the States/ Union Territories with a storage capacity of footages for 18 months, to setup Human Rights Court in every district under S.30 of the act and directed the Executive authorities to implement the order both in letter and in spirit as soon as possible and said to file a compliance affidavit within six weeks.
CONCLUSION
In spite the Supreme Court has issued an order passed in the above said case to install CCTV cameras in the police station, has not been completely been installed in the nation as per the compliance affidavit filed by the concern authorities which shows the wilful disobedience and disrespect rather the number of custodial violence has been anonymously increasing in the recent days. The data released by the NHRC for the month of September, 2024[15] is,
a) Custodial Death (Police) : 14
b) Custodial Death (Judicial) : 168
c) Death in Police Encounter (Police) : 3
As per the NCRB data, 1888 custodial deaths have been reported all around the country during the period 2000- 2020. From 2015- 2019, 36% of death in police custody was due to suicide.
From the above discussion it is known that, though there are effective measures being taken from the legislative and the Judicial system, the role of executive in implementing those measures is always leads to questioning the entire system which reduces the belief of the legal system not only in the citizens but affects the International value. Thus there should be committee exclusively for monitoring this aspect of violation of Human rights and it is the duty of the legal system to hold up the human dignity at any cost.
References
1) Report No.273- “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation”, Law Commission of India.
2) NHRC GUIDELINES– Custodial Death and Violence-
3) Human Rights Cases Statistics | National Human Rights Commission India.
4) Dr Ashwini Kumar vs Union of India.
5) https://main.sci.gov.in/jonew/judis/28072.pdf
[1] Niranjan Singh v. Prabhakar Rajaram Kharote, 1980 AIR 785.
[2] Yogendra Kumar Jaiswal & Ors. v. State of Bihar & Ors., AIR 2016 SC 1474
[3] The Constitution of India, 1950, art. 22(2).
[4] AIR 2015 SC 1816
[5] State of Madhya Pradesh v. Shaym Sunder Trivedi, (1995) 4 SCC 260
[6] AIR 1981 SC 928
[7] AIR 1983 SC 378
[8]1994 AIR 1349
[9] AIR1997 SC 3017
[10] W.P. (Civil) No. 738 of 2016
[11] Law Commission of India, 273rd Report on “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation” (October, 2017).
[12] NHRC, Selected NHRC Guidelines
[13] Prakash Singh v. Union of India (2006) 8 SCC 1
[14] SLP (Criminal). NO.3543 of 2020
[15] Human Rights Cases Statistics | National Human Rights Commission India
Author: Lokesh R, 1 st Year- LL.M student at Pondicherry University, Puducherry.
