Custodial violence and abuse of police power have emerged a major issue of human
rights concern and one of the root obstacles to democracy and development of
being in contemporary societies. The term ‘custodial violence’ includes all
types of physical
and mental torture inflicted upon a person in police custody. It is a crime
and a naked violation of human rights. The practice of custodial violence in the
countries like India, is however, more difficult and complex. A large number of
police brutality take place not because of individual aberration, but because of
compulsions. The nature of custody may be judicial, police or under any
institution obliged to
take care of the inmates like hospitals, homes etc. or may be in the hands of
organizations or armed groups or insurgents etc. The practice is widespread and
unchecked since British days if there was no tacit support of senior police
bureaucrats, politicians and judiciary.
In recent years, custodial crimes have drawn attention of Public, Media,
Judiciary and even Human Rights Commission. Nevertheless, judicial activisms,
media coverage, initiatives taken by National Human Rights Commission as well as
Society Intervention have shown their concern for combating torture and
Power has the tendency to make men go dizzy and policemen are no exception.
Powers are granted to the police in order to enable them to enforce the law and
effectively. However, it is sometimes the desire to solve a case at the earliest
plain greed that makes them use it illegally. Article 21 of the Constitution
provides that no
person shall be deprived of his life and personal liberty except according to
established by law, which is inbuilt guarantee against torture or assault by the
state or its
functionaries. However, torture and assault have become part of police ways
and in many cases custodial deaths have been found to be little short of
Custodial violence raises serious questions about the credibility of the Rule of
administration of criminal justice system.
An offender has every right to be tried and punished in accordance with the law
any punitive action taken outside the ambit of law is illegal. Besides, no
matter how heinous
the crime be, and howsoever dangerous be the criminal, he or she has every right
to be treated
with human dignity. The courts have even discouraged the practice of handcuffing
accused unless it is necessary. Several international conventions universally
rights as inalienable.
There is ample evidence of increasing police deviance in India. Incidents of
extortion and other crimes committed by police officers in different parts of
the country are
reported in Indian newspapers. The National Human Rights Commission’s data shows
the number of complaints relating to ‘deaths in police custody’ reported to them
from 136 in 1995-96 to 183 in 2002-03. During the same period, ‘illegal
increased from 112 to 3595, and other ‘police excesses’ from 115 to 9622.
Types Of Custodial Violence:
There are different methods to bring or commit custodial violence which are
to bring the desired results by the government agencies.
To break the confidence and morale of the victim following methods are used:
# By communication techniques in which the victim is given wrong information and
# By compulsion or coercion where the victim is compelled or coerced to perform
activities or to witness actions that torture him mentally. Forcing the victim
social taboos or forcing to witness torture of other victims etc.
# By depriving the victim the basic needs like water, food, sleep and toilet
which results into disorientation and confusion.
# Pharmacological techniques like use of various drugs to facilitate torture of
to mask the effect of torture and also as a means of torture.
# Threats and humiliations which are directed towards persons in custody or
family members or friends.
Following are the methods generally adopted to cause physical violence or
# Causing disfiguration and exhaustion.
# Causing torture to such an extent that the victim feels fear of immediate
# Forcing the victims to sleep on damp floor.
# Making the children stay naked in extreme cold weather or under the sun in
temperature for more than 30 degrees.
# Scratches and cuts are made on different parts of the body with sharp objects.
# Use of irritants like chili powder, table salts etc. are applied on delicate
or on open wounds.
Sexual violence has great social and psychological impact in the minds of its
It may start with verbal sexual abuse and humiliation targeting victims’
dignity. It results
into rape or sodomy. The violators or the perpetrators of this crime keep
devising new means
and methods according to their own mental aptitude and imagination to break the
of the subject quickly as well as to satiate his/her own urges.
Various Methods Of Torture:
Following are the methods of torture still applied by police and other agencies
# Beating on the spine.
# Beating with canes on the bare soles of the feet.
# Beating with rifle butts.
# Burning with lighted cigarettes and candle flames.
# Denial of medical treatment.
# Forcible extraction of teeth.
# Forcibly lying the victim nude on ice slabs.
# Hauling the victim on ‘airplane’ position.
# Inserting live electric wires into body crevices.
# Insertion of metal nails under toenails.
# Public flogging.
# Submersion in water
# Victim is crushed under heavy rollers.
# Victim is stabbed with sharp instruments.
Different Forms Of Ill-Treatment:
# Burning alive
# Electric shocks
# Mock amputations
# Mock executions
# Rape and molestation
# Severe beating
# Suspension by arms while these are tied behind the back
Elements Which Constitute Custodial Violence:
1. The infliction of severe mental or physical pain or suffering,
2. By or with the consent or acquiescence of the state authorities,
3. For a specific purposes such as gaining information, punishment or
Protections Under Indian Laws:
The Protections against Custodial Violence under Indian Constitution is as
The prohibitions imposed by Article 20 of the constitution are directly relevant to the
criminal process. Article 20(1) prohibits retrospective operation of penal legislations. Article
20(2) guards against double jeopardy for the same offence. Article 20(3) provides that no
persons accused of any offence shall be compelled to be a witness against himself. These
three clauses may appear to be dealing with different topics or facets. But there is a common
thread running through all of them namely the anxiety to ensure that the various facets of the
criminal justice system – substantive, procedural and evidentiary shall not be used to oppress
the accused person. The common theme is that the administration of the criminal justice
system should not be so designed or implemented as to destroy the deeper and moral values
of justice itself.
The Indian judiciary has expansively interpreted Article 21 requiring all state
to be just, fair and reasonable. This wide – ranging interpretation has been
administrative procedure as well as criminal due process. Article 21 has been
read as an
injunction against torture and inhumane treatment. Article 21 of the
that no person shall be deprived of life or personal liberty except according to
established by law. Though Article 21 does not contain any express provision
or custodial crimes, the expression – ‘life or personal liberty’ occurring in
the article has been
interpreted to include constitutional guarantee against torture, assault or
injury against a
person under arrest or under custody. Following are some illustrative decisions:
# Punishment which has an element of torture is unconstitutional.
# Prison restrictions amounting to torture, pressure or infliction and going
the court order authorizes are unconstitutional.
# As under-trial or convicted prisoner cannot be subjected to physical or mental
# Which is not warranted by the punishment awarded by the court, or
# Which is in excess of the requirement of prisoner’s discipline, or
# Which amounts to human degradation.
The Supreme Court of India declared
Any form of torture or cruel, inhuman or degrading treatment would be
offensive to human dignity and constitute an inroad into this right to live and
on this view, be prohibited by Article 21 unless it is in accordance with
prescribed by law, but no law which authorizes and no procedure which leads to
torture or cruel, inhuman or degrading treatment can ever stand the test of
reasonableness and non-arbitrariness: it would plainly be unconstitutional and
being violative of Articles 14 and 21.
In the landmark case of D.K. Basu v. State of West Bengal, the Supreme court of
India observed in this widely publicized death in police custody that using
impermissible and offensive to Article 21. The court noted the ubiquity of
third-degree methods in police investigations and lamented the ‘growing
torture and deaths in police custody’ and held:
Such a crime-suspect must be interrogated – indeed subjected to sustained and
scientific interrogation determined in accordance with the provisions of law. He
however be tortured or subjected to third-degree methods or eliminated with a
elicit information, extract confession or derive knowledge about his
The Supreme Court of India ruled that the burden of explaining a custodial death
on the police rather than the victim. The court granted compensation on the
constitutional basis in public law for the infringement of fundamental rights.
referred to its duty to enforce Fundamental Rights under Articles 14,21 and 32
Indian constitution and the need to make the guaranteed remedies effective and
provide complete justice.
Article 21(1) and 22(2) of the Constitution are also relevant for the present
because one of their objects is to ensure that certain checks exist in the law
abuse of power of arrest and detention.
Article 21(1) provides that no person who is arrested shall be detained in
without being informed as soon as possible of the ground for such arrest, nor
be detained the right to consult and to be defended by a legal practitioner of
Article 22(2) provides that every person who is arrested and detained in custody
be produced before the nearest magistrate within a period of 24hours of such
excluding the time necessary for the journey from the place of arrest to court
Magistrate and no such person shall be detained in custody beyond the prescribed
period without the authority of a Magistrate.
Both the provisions referred to above, have a vital importance to the theme of
present issue. Realizing the essential connection between the provisons of
22(1) and 22(2), the courts have held that the provision of clauses (1) and (2)
Article 22 are mandatory.
Protection Under The Code Of Criminal Procedure,1973:
The code of criminal procedure,1973 contains provisions intended to operate
as a safeguard against custodial torture.
# Section 49 provides that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape.
# Section 57 provides that no police officer shall detain in custody a person
arrested without warrant for a longer period than under all the circumstances
of the case is reasonable and such period shall not, in the absence of a special
order of a magistrate under section 167, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the court of the
magistrate. Provision of section 57 is mandatory.
# section 57A provides that when a person arrested without warrant is produced
before the magistrate, the magistrate shall, by inquiries to be made from the
arrested person satisfy himself that the provision of sections 56 and 57, have
been complied with and shall also enquire and record the time and date of
# Section 163 provides that,
(1) No police officer or other person in authority shall offer or make, or cause
to be offered, or make, any such inducement, threat or promise as is
mentioned in section 24 of the Indian Evidence Act,1872
(2) But no police officer or person shall prevent, by any caution or otherwise,
any person from making in the course of any investigation under this
chapter any statement which he may be disposed to make of his own free
Provided that nothing in this sub section shall affect the provisions of sub
section(4) of section164
# Section 164(4) provides that,
Any such confession shall be recorded in the manner provided in section 281
for recording the examining of an accused person and shall be signed by the
making the confession; and the Magistrate shall make a memorandum at the foot of
such record to the following effect:- I have explained to name that he is not
make a confession and that, if he does so, any confession he may make may be
as evidence against him and I believe that this confession was voluntarily made.
was taken in my presence and hearing, and was read over to the person making it
admitted by him to be correct, and it contains a full and true account of the
made by him.
Protection Under The Indian Penal Code,1860
Most of the provisions contained in chapter 16 of the Indian penal code
against human body) cover persons in custody as well as others.
# Section 166 of the code reads as under:
“Whoever, being a public servant, knowingly disobeys any direction of the law as
the way in which he is to conduct himself as such public servant, intending to
knowing it to be likely that he will, by such disobedience, cause injury to any
person, shall be
punished with simple imprisonment for a term which may extend to one year, or
with fine, or
It may be reiterated that the expression injury covers harm illegally caused to
reputation or property.
# Section 167 provides for punishment of a public servant framing an incorrect
document with intent to cause injury etc.
# Section 220 provides punishment to a person with legal authority to confine
persons etc. who corruptly or maliciously confines any person, knowing that
in doing so he is acting contrary to law.
# Section 330 of the Indian penal code is specifically addressed to the causing
hurt to extort a confession (though it covers certain other acts also).
# Section 340 to 348 of the code constitute a group of sections dealing with
wrongful restraint, and wrongful confinement and their aggravations.
# Section 376(2) deals with aggravated form of rape committed by police
officers and other public servants like persons in charge of hospital and
women’s institutions etc.
# Custodial sexual offences are specially taken care of by section 376B to 376D
of the code, dealing with:
a) Intercourse by a police servant with women in custody.
b) Intercourse by superintendent of jail, remand homes etc.
c) Intercourse by member of the management or staff of hospital with an
inmate of the hospital.
# Criminal intimidation is punished by section 503 read with section 506 of the
Indian penal code.
Also , there are many protections in,
# The Indian Evidence Act,1872
# The Indian police Act,1861,
# The Armed Forces (special powers) Act 1958,
# Human Rights Act,1993
Police is the machinery which controls crime. If crime takes place in police custody,
then we must lean towards some other machinery to curb it. Despite, we have many
provisions in our Indian laws, custodial violence continues to exist. It is the duty of the
prison administration to provide proper facilities of medical, sanitation, food, security to the
prisoners and a monitory body to only review it but also keep an eye on the other activities
inside the prison.