Custodial Violence

What is Custodial Violence?

Custodial violence has not been defined under any statute. It is composed of two terms: custody and violence. While custody means keeping a person under protective care, by lawful means; violence means using force in order to cause an injury to someone. Together, the term custodial violence means using force against a person detained and kept under protective care and inspection. Custodial violence can take many different forms, and authorities will employ different tactics depending on the situation and their goals. Illegal imprisonment, erroneous arrests, humiliating suspects, coercing information  under duress, and physical, psychological, and sexual abuse are all examples of custodial violence.

Official definition of Custodial Violence

There is no official definition of custodial violence under any statute.

Custodial Violence as defined in Official Government Report

As per the 152nd Report by the Law Commission of India, custodial violence is defined as a crime committed by a public servant against an arrested or detained person while they are in their custody.

As per NHRC, torture has become a routine in India. Out of the 17,146 cases recorded over a decade in NHRC data, there were 1,387 deaths in police custody. It provides rules on the procedure to be followed in the event of a death in police custody.The committee’s recommendations state that:

• a magisterial inquiry will be carried out in cases of deaths that occur while a person is in custody;
• the magistrate is required to visit the scene of the crime, record all pertinent information, locate witnesses, and take evidence;
• public notice is given to the witness;
• the cause of death, the circumstances surrounding the victim’s passing, potential suspects in the aforementioned crime, and the victim’s medical care should all be considered in an investigation;
• the recording of witness and family member statements; and
• a thorough report that must be finished on schedule.

Custodial Violence as defined in the International Convention

Torture is when somebody in an official capacity inflicts severe mental or physical pain or suffering on somebody else for a specific purpose. Sometimes authorities torture a person to extract a confession for a crime, or to get information from them. Sometimes torture is simply used as a punishment that spreads fear in society.

As per Article 5 of the Universal Declaration of Human rights (UDHR), 1948, no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Moreover, as per Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1976, states that no one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.

Custodial Violence as defined in Indian Statutes

Custodial violence is not a recent phenomenon, and it finds mention in various statutes, both directly and indirectly.

Under the safeguard of the Constitution of India, first Article 21 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. Second, Article 20(1) states that no person shall be convicted of any offense, 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 offense. And third, 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.

Other than that, as per Section 76 of The Code of Criminal procedure (CrPC), a Person arrested to be brought before Court within twenty-four hours of the arrest, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

As per Section 29 of the Police Act, 1861, every police-officer who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment with or without hard labor, for a period not exceeding three months, or to both.

Lastly, as per Section 330 and 331 of the IPC, 1860, whoever voluntarily causes hurt or grievous hurt respectively, for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offense or misconduct, shall be punished with imprisonment of either description for a term which may extend to seven years and ten years respectively, and shall also be liable to fine.

Custodial Violence as defined in Case Laws

The case of D.K. Basu vs. State of West Bengal, 1997 also holds significance as it marked the Supreme Court’s acknowledgment of custodial violence and police brutality. The court emphasized that custodial violence represents an assault on the dignity of an individual.

In a recent Public Interest Litigation plea of Re-Inhuman Conditions in 1382 Prisons, the Supreme Court addressed the four major concerns regarding: (i) Overcrowding in prisons; (ii) Unnatural death of prisoners; (iii) Gross inadequacy of staff; and (iv) Available staff being untrained or inadequately trained. The court directed to identify the next of kin of the prisoners who have admittedly died an unnatural death as revealed by the NCRB during the period between 2012 and 2015 and thereafter award suitable compensation, and it shall be overseen that due medical assistance and facilities to inmates in prisons is provided. Further, the State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy, and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties, and responsibilities as also the rights and duties of prisoners.

Types of Custodial Violence

Cases of torture in detention are still being documented in the nation, even though it is illegal under both domestic and international law. Apart from causing instantaneous physical and psychological trauma to the victims, torture in custody also compromises the credibility of the criminal justice system and erodes public confidence in law enforcement.

Custodial torture and death

There are no particular legal measures in India for police-instigated violence against those in custody. However, if a person in police custody passes away, the court is required to order that the body be transferred to a civil surgeon for a postmortem examination no later than 24 hours after the death. In case of a failure to do this, the Judicial Magistrate is required to document his reasons. This parallel Magisterial investigation is thought to be crucial since it serves as a backup in situations where witnesses or evidence have been tampered with.

The NHRC has also provided a set of guidelines to be followed to ensure proper compliance of this parallel inquiry. They call for, inter alia, a prompt initiation of the inquiry. It involves the Enquiry Magistrate personally visiting the scene, recording statements from witnesses, and issuing public notices to inform relatives. This ensures a thorough understanding of the death.

Data shows that, in the last 20 years, 1,888 custodial deaths have been reported across India. In 893 of these instances, cases were registered against police personnel. A total of 358 police personnel were charge-sheeted in cases of custodial deaths in this period. However, only 26 police personnel have been convicted for custodial deaths.

Custodial rape

In the infamous case of Tuka Ram and Anr. v. State of Maharashtra, 1978, two police officers had viciously raped a young Harijan girl named Mathura in the police station but the Supreme Court stated that it was a consensual act since there were “no marks of injury” on her body. This verdict led to numerous demonstrations across the country, such that the Criminal Law (Amendment) Act of 1983 was passed. Additionally, the IPC’s Section 376 was changed, making custodial rape a crime. The Amendment further stipulated that rape trials must be conducted in camera and forbade the publication of the identity of the victims.

Thereby, Section 376(2) of Indian Penal Code (IPC) and 64(2) of Bhartiya Nyaya Sanhita (BNS), state the punishment for committing rape by a police officer, for any of the following: (a) rape within the boundaries of the police station to which they are assigned; (ii) on the property of any station house; or (iii) on a woman under their custody or in the custody of a police officer who is subordinate to them, will be punished with rigorous imprisonment for a term that cannot be less than ten years, but can be for the entirety of their life, as well as a fine. This punishment for custodial rape was intended to be a deterrent.

Appearance in Official Databases

Human Rights Cases Statistics on Cases Registered and Disposed

According to the NHRC data for December 2023, there is a pattern that most cases involving deaths in police and judicial custody, as well as events affecting women and children, have been resolved, nonetheless, the overall backlog is alarming and needs to be addressed promptly. Moreover, the conviction rate for such heinous crimes is negligible. For instance, according to the NCRB data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India.

Monthly Salient Statistics of Cases Registered/Disposed by NHRC During January, 2024

Cases where NHRC commended Monetary relied during December, 2023

Human Rights Cases Statistics on Crime in India Report, 2022

41 deaths were reported nationwide for Police Custody / Lockup (Persons Not on Remand). Interestingly, though, there have only been 12 cases filed against police officers, and no one has been taken into custody as of yet. Moreover, of the 75 people who have died in police custody or lockup (Persons in Remand), only 34 have been officially recorded across India.

Research that engages with

India has ratified the International Covenant on Civil and Political Rights which prohibit torture and cruel, inhuman, and degrading treatment or punishment. They also provide for the authorities to prosecute the officials responsible for such behavior. These commitments are reflected in Indian central and state laws that condemn torture, and provide some procedural safeguards against it.

Human Rights Watch

In India, the number of criminal suspects dying in custody is far too high. The National Crime Records Bureau reports that 591 persons passed away while in the custody of the police between 2010 and 2015. The majority of deaths are attributed by police to natural causes, sickness, or suicide. Nevertheless, relatives claim that torture was the cause of death in many of these cases. According to the research, the primary reason for deaths that occur while a person is in custody is police misconduct related to improper arrest procedures. The research claims that if the rules outlined in D.K. Basu v. West Bengal are adhered to carefully, the same could be avoided. For instance, official data shows that in 67 of the 97 fatalities in custody in 2015, the suspects either passed away within 24 hours of being detained or the police did not present the suspects to a magistrate within the statutory 24-hour period.

The Society for Advancement of Criminal Justice

Every custodial death must be investigated by a judicial magistrate in accordance with the Indian law. Every instance must be reported to the NHRC and the police are required to file a First Information Report. But as evidenced by media reports, court rulings, and Human Rights Watch research, these procedures are routinely disregarded. The research references Munshi v. M.P. case, in which the court found that police personnel had a tendency to keep quiet and even distort the truth out of “ties of brotherhood” in order to save their colleagues.

Custodial Violence and Human Rights: Legal Implications

Custodial violence is mostly done at the weaker section of the society. This is because of the difference in power dynamics along with lesser credibility as would have been needed if the victim of such violence would be an affluent and well-connected person. So, this report highlights that, when the public is even ignorant of such tortuous and inhumane activities on fellow human beings, the police get a free license to work on their whims and fancies. In this regard, there can be even times, when police gets social support for their action, such as when:

• The public demands quicker solving of cases, and the third degree acts as a short act to quick results for the police.
• Lack of knowledge of application and experience of scientific methods in crime investigation and interrogation of accused.
• Political and bureaucratic influence and interference, collusion with rich and influential people and dancing to their tune.
• Disproportionate ratio between crime rate and manpower.
• Erring police officials go unpunished due to lack of evidence.
• Psychological aberrations of the custodian - sadism, sexual weakness, social hatred, etc.
• Inability to keep a person for longer duration in custody for interrogation than 24 hours are such factors which induce police to keep suspects in 'unofficial custody' which ultimately encourage the police to indulge in custodial violence.

India: Annual Report on Torture 2020

As per this report, every week, at least one individual takes their own life as a result of suspected police abuse. The National Campaign Against Torture (NCAT) reported that 55 suicide deaths occurred in 2020 as a result of police torture. In 2020 alone, the NCAT recorded several instances of torture, including the deaths of tribal and Dalit individuals while under custody of the police. Torture of women in custody and custodial rape of women including two minors and victim of a gang rape; four children dying as a result of torture while in the care of the police; instances of child abuse and illegal detention in flagrant violation of the Juvenile Justice (Care and Protection of Children) Act, 2015, were reported.

Also known as

Custodial rape- Custodial rape is a serious crime and a grave violation where the aggressor not only takes undue advantage of his authority to control the individual, usually a woman, but also violates the individual’s bodily integrity and the duty to care for and protect the citizens and their rights. Custodial rape generally takes place in the detention by the state via police or army or other security forces which are appointed to safeguard the lives of individuals but instead outrage the modesty of a woman.

Custodial torture- Custodial torture is committed while a person is detained by the police or other authorities and it includes inflicting bodily injury or psychological distress. It entails brutal atrocities perpetrated by the police, jail authorities, armed forces, and other law enforcing agencies on the suspects/accused person and prisoners.