Our constitution has embedded fundamental rights to ensure certain fundamental
freedoms rights and liberties to our citizens, and several establishments like
Human Rights Commission, NGOs are making commendable efforts to ensure the
common man's access to and exercise of such rights. And one such issue which was
highlighted by National Human Rights Commission is Anti torture practice and
custodial deaths in India. Complaints of deaths in police detention facilities
have been made in large numbers to the National Human Rights Commission, and the
protection of civil liberty has been high on its agenda.
It has been noted that the number of deaths in police detention facilities has
increased over the last few decades. Many people have died in detention, but no
one has been held accountable. In India, police lock-ups are entirely managed by
police officers, and such incidents are only possible as a result of their
actions. Justice V.R. Krishna Iyer1., very well said that:
Today the society has nearly succumbed to the syndrome of lawless tensions,
psychic penury, and miseries of conflict, at individual, domestic, local,
national and international levels. The legal mutiny far from salvaging man is
gnawing at him from within. Incarceration barbarity has been validated by the
popular retributive- deterrent philosophy, this is a current sentencing coin in
many criminal jurisdictions.
Custodial Deaths in India:
The Indian government tolerates torture in police detention facilities, deeming
it necessary for the administration of justice while ensuring unchecked power
for law enforcement. It is widely assumed that the judiciary will be in charge
of the court lock-ups. Although it is clear that even magistrates rely on police
officers to carry out their judicial functions. The fact that police officers
have enormous judicial powers is at the root of all evil.
Their job begins with
the arrest and continues until the arrestee is convicted. Reports have revealed
that practically the independence of the judiciary has not been maintained.
This is interpreted as a violation of the Constitution's principles of the Right
to life and personal dignity and goes against the purpose of the Criminal
Procedure Code, 1973, which establishes the judiciary as separate from the rest
of the government.
According to the India Annual Report on Torture 2019 2, there were 1,731 deaths
in custody in India. There were 1,606 people who died in judicial custody and
125 who died in police custody. The report focuses on the most common forms of
torture, such as electric shock, hammering nails into the body, branding with a
hot iron, inserting rods into the body, forcing legs apart, hanging upside down,
and merciless beating, among other things.
These are some of the heinous
treatments that a person who dies in custody is frequently subjected to.
Generally, it is seen that the majority of these people are from oppressed
groups who lack the economic and social resources to fight police atrocities.
An important part has been upheld on this subject matter in the case of DK Basu
v. State of Bengal
Custodial violence, including torture and death in the lock-ups, strikes a blow
at the rule of law, which demands that the powers of the executive should not
only be derived from law but also that the same should be limited by law.
Custodial violence is a matter of concern. It is aggravated by the fact that it
is committed by persons who are supposed to be the protectors of the citizens.
It is committed under the shield of uniform and authority in the four walls of a
police station or lock-up, the victim being totally helpless. The protection of
an individual from torture and abuse by the police and other law-enforcing
officers is a matter of deep concern in a free society.
The Indian Constitution, the Code of Criminal Procedure of 1872, and the Indian
Evidence Act4 all include safeguards to protect the rights of the accused. The
IPC5 contains some legal provisions for the prevention of torture, such as those
relating to causing harm or grievous harm in order to extract confessions,
criminal intimidation, and wrongful confinement.
Moreover, various safeguards against custodial torture and detention are
available which are as follows- Article 20(1); Article 20(2); Article 20(3) of
the Indian Constitution. Other than these, there are various provisions under
the Indian Penal Code (Section 348), Indian Evidence Act (Section 24, 25, and
26) as well as under the Code of Criminal Procedure, 1973 ( Section 164(4) ).
However, the majority of people believe that this is insufficient. A specific
and stable law would be a far better option for persuading the community and
expressing our solidarity for the protection of human rights and the prevention
of torture. An attempt was made in this regard when the anti-torture law was
passed in the Lower House in 20106. However, it was referred to the Rajya Sabha
Select Committee, which recommended substantial changes. The bill then lapsed,
and according to the Central Government's version, it is now with the Law
Commission for its consideration.
It is high time for the Indian Legal system for a strict system that
criminalizes torture which provides for harsh punishment for abusers and
provides the necessary opportunity for victims to express their concerns and
remedy, compensatory damages, and rehabilitation to be passed and enacted in
accordance with the provisions as early as possible.
International Provision on Torture:
Following the brutality of World War II, the United Nations General Assembly
included a prohibition on torture in the pioneer Universal Declaration of Human
Rights in 1948. Article 57 of the Universal Declaration of Human Rights states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
Also, UN General Assembly adopted The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 8 which defines torture as:
"Any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or
third person information or a confessionů."
It may be:
Inflicted by or at the
instigation of or acquiescence of a public official or other person acting in an
Conformity to international principles on the protection of human rights and the
prevention of torture is required for any country to transform into a regime of
freedom, independence, humanity, and compassion, as well as hold directly
responsible officials, whether from the police, army, or paramilitary police,
accountable for their deeds.
It is also necessary to establish an environment in which the criminal justice
system can function without relying on harsh detention and create better
community participation. It is worth noting that the Supreme Court has
recognized that international treaties and covenants dealing with torture should
have domestic jurisprudence.
In Chairman, Railway Board vs. Chandrima Das
9 the Supreme Court observed
that "the principles of the Universal Declaration of Human Rights are very much
relevant in the context of safeguarding our fundamental rights of life and
Also in Peoples' Union for Civil Liberties v. Union of India
Supreme Court stated that "the provisions of the Covenant, which elucidate and
go to effectuate the fundamental rights guaranteed by our Constitution, can
certainly be relied upon by Courts as facets of those fundamental rights and
hence, enforceable as such."
In light of these issues, it is worth noting that India is one of the few
countries that has not ratified the UN Convention Against Torture, which sets us
up for the protection of human rights in our country. India does not have a
separate anti-torture law, and ratifying it would necessitate the formation of
such a law.
India is a welfare system governed by its Constitution, which guarantees
citizens' life and personal liberty in a broad sense, and persons in custody in
particular. However, the increasing burden of custodial crimes in various parts
of the country is causing grave concern. Grievances of abuse of power and
torture of accused persons held in custody by police and other law enforcement
agencies with the authority to detain a person for investigation in connection
with the interrogation of an offender are on the rise.
Custodial crimes are
particularly heinous when compared to other types of crimes because they
represent a deception of custodial trust by a public servant against vulnerable
citizens in custody. As a result, it is imperative that laws that will help to
curb such incidents be put in place as soon as possible.
- V.R. Krishna Iyer: Constitutional Miscellany, 2nd Edition(2003) p.
- India: Annual Report on Torture 2019; Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
- DK Basu v. the State of Bengal (1991) 1 SCC 416
- Indian Evidence Act 1872, Act No. 01 of 1872. Section 114(1), 114B (1)
In a prosecution (of a police officer) for an offense constituted by an act
alleged to have caused bodily injury to a person, if there is evidence that
the injury was caused during a period when that person in the custody of the
police, the court may presume that the injury was caused by the police
officer having custody of that person during that period."
- Indian Penal Code, 1860, Act No. 45 of 1860; Section 330, Indian Pena
Code: Voluntarily causing hurt to extort confession or to compel restoration
of property. Section 331, Indian Pena Code, 1860: Voluntarily causing
grievous hurt to extort confession or to compel restoration of property
- Why we need an anti-torture law, Published at-The Hindu; Available at:
- Available at: https://www.humanrights.com/course/lesson/articles-01-05/read-article-5.html
- Available at: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx
- Chairman, Railway Board vs. Chandrima Das, AIR 2000 SC 988
- Peoples' Union for Civil Liberties v. Union of India, AIR 2005 SC 2419