Abstract
Custodial violence is one of the most serious forms of violation of human rights in India. It includes physical and mental torture, unlawful detention, and custodial deaths, which directly violate the fundamental rights guaranteed by the Constitution. Despite several legal safeguards, the issue remains the same due to weak enforcement, lack of accountability, and silence around police misconduct. This paper discusses the causes and effects of custodial violence, and how it harms the victims and public trust in the legal system. It also examines important laws, constitutional provisions, and landmark judgments that deal with custodial abuse. The paper suggests practical legal reforms to prevent such violations. The aim is to highlight the need for stronger accountability and better enforcement of existing laws.
Keywords
Custodial Violence, Unlawful Detention, Human Rights Violation, Constitutional Safeguards, Custodial Death.
Introduction
Custodial violence is a harsh reality that continues to affect the Indian justice system, even in today’s democratic and rights-based society. Such violence including torture, illegal detention, and deaths in custody directly violates the right to life and personal liberty guaranteed under Article 21[1] of the Indian Constitution. Even though laws exist to prevent such abuse, cases of custodial torture and deaths are still being reported across the country.
I chose this topic because it is a real-life problem that often goes unnoticed or unpunished. Many people are unaware of their rights when they are in custody. As a law student, I strongly believe that understanding this issue is important to protect individual rights and promote justice.
Research Methodology
This research is primarily doctrinal in nature and is based on the review of secondary data sources. It involves the study of constitutional provisions, statutory laws, reports, judgements, and articles related to custodial violence in India. The paper examines the existing legal framework, landmark judicial decisions, and reports by bodies such as the National Human Rights Commission (NHRC) and Law Commission of India.
Review of literature
The issue of custodial violence in India has been explored by various scholars and jurists who emphasize the need for stronger safeguards and institutional accountability.
Dr.Paranjape in his book Criminology and Penology, clearly described about custodial violence as a persistent challenge in the Indian legal system. He emphasized that, while strong legal safeguards exist, the failure lies in their implementation and the need for better police training and human rights awareness.[2]
Yes, in my opinion I completely agree with Dr.Paranjape, there is a strong need for proper enforcement of laws because law alone cannot bring change unless it is actively implemented. One of the main reasons custodial violence continues is the lack of awareness among people especially in rural areas about their legal rights. If people are better informed and officials prevented are held accountable, many of these cases can be .I strongly believe that change is possible through a combination of legal reform, education, and responsible law enforcement.
Types of Custodial Violence
Custodial violence can be in different forms, and authorities will use different tactics depending on the situation and their goals.
1.Physical Violence
This includes the use of force that causes bodily injury. Common practices include: Beating, Use of electric shocks.
2.Psychological or Mental Torture
This includes tactics designed to break a person’s will through threats, isolation, humiliation, or sleep deprivation. The long-term impact of psychological torture is often more devastating than physical abuse, as it leaves invisible scars.
Examples:
Threatening family members.
Keeping prisoners in solitary confinement for extended periods.
Verbal abuse.
3. Sexual Violence
Sexual abuse of prisoners, particularly women is a grievous and underreported form of custodial violence. This includes:
Rape or molestation.
Harassment or coercion.
Causes of Custodial Violence
There are various contributing factors for existence of custodial violence.
1.Lack of Police Accountability
Many cases of custodial violence go unpunished due to weak accountability mechanisms. Internal inquiries are not always fair, and very few officers face strict legal action for custodial violence. It is one of the most important cause that contributes to custodial violence.
2. Absence of CCTV and Monitoring Mechanisms
In many police stations and lock-ups, there is no proper CCTV surveillance. This lack of transparency gives officials unchecked power and reduces the fear of consequences.
3. Pressure to Solve Cases Quickly
Police officers often face pressure to show quick results in criminal investigations. This leads to the use of force, torture, or illegal methods to collect information.
4. Lack of Legal Awareness
Most victims, especially from rural or economically weaker backgrounds, are unaware of their legal rights while in custody. This ignorance makes them more vulnerable to abuse, as they do not know how or where to complain.
5. Weak Implementation of Human Rights Laws
While India has laws and constitutional safeguards but their implementation is often poor. For instance, Supreme Court held guidelines in D.K. Basu vs. State of West Bengal[3] case are not strictly followed at ground level.
6. Social and Economic Bias
People from poor, Dalit, or tribal backgrounds are more likely to face violence in custody. Prejudices within the system lead to unfair treatment and use of excessive force against these groups.
7.Greed for Money
In some cases, police officers use their power to get money from the accused or their families. When demands are not met, the person in custody may be tortured or threatened.
8. Lack of Proper Training
Many police officers are not trained well in handling suspects or following human rights standards. Without proper training, they often use violence as a way to control or intimidate people.
Custodial violence does not only affect the person who have gone through it, but also lowers the trust of the entire society on the legal system.
Impact of Custodial Violence on Victims and Society
1. Physical and Mental Harm to Victims
Victims often suffer serious injuries, disabilities, or even death. Even if they survive, the trauma stays with them for years. They may also face depression, fear, anxiety, and a complete loss of trust in law enforcement.
2. Loss of Dignity and Human Rights
Torture and abuse in custody violates the basic rights and dignity of a person. Victims are treated as if they have no value, which goes against the spirit of justice and the Constitution.
3. Fear Among Common People
When people hear about custodial deaths or torture, they start fearing the police instead of trusting them. This fear reduces cooperation between citizens and law enforcement, which is harmful to a peaceful society.
4. Damage to Family and Community
When a person is tortured or killed in custody, their family suffers greatly. They face emotional pain, financial struggles, and social stigma. It also spreads anger and unrest in the community.
5. Loss of Faith in the Legal System
Frequent incidents of custodial violence make people lose hope in the legal system. If justice is not delivered in such cases, citizens may feel helpless and believe that the law only protects the powerful.
6. Violation of Rule of Law
Such violence goes against the rule of law, which says everyone should be treated fairly and equally. If those who are supposed to protect the law break it themselves, it weakens the entire justice system.
Indian Laws Dealing With Custodial Violence
1.Article 20(1)[4] of the Constitution:
According to Article 20(1) of the Indian Constitution, a person cannot be punished for an act that was not a crime at the time it was committed. Also, punishment cannot be harsher than what was allowed under the law at that time. This protects individuals from being unfairly penalized under retroactive laws.
2.Article 20(2)[5] of the Constitution:
This provision ensures that no one can be tried or punished more than once for the same offence. It protects individuals from being harassed through repeated prosecutions for a single act.
3.Article 20(3)[6] of the Constitution:
According to Article 20(3) of the Indian Constitution no person accused of an offence can be compelled to be a witness against themselves. This protects the accused from being forced into confessions or giving evidence under pressure or torture.
4.Article 21[7] of the Constitution:
Article 21 of the Indian Constitution guarantees that no person shall be deprived of life or personal liberty except according to the procedure established by law. Custodial torture or death is a clear violation of this right.
5.Article 22[8] of the Constitution:
Article 22 of the Indian Constitution plays a crucial role in protecting individuals from unlawful arrest, detention, and custodial violence. It sets out specific rights and safeguards for people who are taken into custody, aiming to prevent abuse of power by the police.
6.Bharatiya Nyaya Sanhita (BNS), 2023:[9]
The BNS criminalizes the use of violence to obtain confessions, illegal confinement, and deaths in custody. It makes it clear that:
Using physical force or causing injury during interrogation is a punishable offence,
Wrongfully detaining someone for confessions or personal motives is unlawful,
Deaths in custody caused by police actions are treated with the seriousness of a criminal offence.
These provisions send a strong message that torture and abuse by police officers are not tolerated under the law.
7. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023:[10]
BNSS outlines new and clearer procedures that the police must follow while arresting or detaining a person. It:
Restricts arbitrary arrests and makes written justification mandatory,
Promotes transparency in arrests and detention,
Ensures that arrested persons are medically examined,
Mandates inquiries in case of deaths or abuses in custody.
These procedural rules reduce the chances of abuse during custody and hold officers accountable if any violation takes place. The law also gives the accused a better chance to protect their rights, and ensures judicial oversight at every stage of detention.
8.Bharatiya Sakshya Adhiniyam (BSA), 2023: [11]
Section 23 – Confession to Police Officer Not Admissible.
This section retains the old protection from Section 25[12] of the Indian Evidence Act.
Any statement made to a police officer is not admissible as evidence in a court, unless it is made in the presence of a magistrate.
This protects the accused from being forced to confess under torture or pressure.
9. Police Act 1861:[13]
According to Section 29 of the Act, a police officer faces fine up to three months of pay, up to three months in jail, or both if he uses violence against a person when they are under their care.
Suggestions By Judiciary[14]
Judiciary has made following suggestions for improvement of police image:
1.Police officers must be clearly informed that their primary responsibility is to serve and assist the public, not to intimidate or mistreat them.
2.The application of physical force should be reduced to an absolute minimum to encourage public cooperation and build trust in law enforcement.
3.To gain the confidence and support of citizens, police personnel should act fairly and without bias, especially by resisting pressure from political leaders or external influences.
4.All levels of police personnel should receive regular and updated training on modern investigation techniques and scientific methods of crime detection.
5.The police force should be well-staffed and equipped with updated tools and technology to effectively meet present-day challenges.
6.The old Police Act made in 1861 should be cancelled, and the new Police Act of 2006 should be used instead because it is more suitable for today’s needs and helps improve the working of the police.
7.Political interference in police work should be eliminated, and the force should function independently, as recommended by the Dharam Vira Commission.
8.Senior officials should conduct regular surprise inspections of police stations to detect and prevent illegal detentions and instances of custodial mistreatment.
9.Victims of custodial torture must be treated with compassion and offered appropriate compensation, medical care, and rehabilitation. At the same time, those responsible for such abuse should face strict legal consequences.
NHRC Guidelines on Police-Public Relations[15]
The National Human Rights Commission (NHRC) issued certain guidelines on December 22,1999 for all police departments to help improve their interaction with the public in a way that respects human rights standards. The following are the main suggestions:
1.Toll-Free Helpline:
Police departments should provide a free phone number for the public to report crimes or share important information.
2.Transparency in Investigations:
There should be openness in how investigations are carried out. This includes registering cases properly and keeping complainants informed about the progress.
3.Monthly Meetings with Public:
Station House Officers (SHOs) should hold regular monthly meetings with the public. These meetings will allow citizens to express their concerns and complaints and also learn about the law and local safety issues.
The Commission stressed the importance of involving the public in policing. It stated that police must consider the views and needs of the community while maintaining law and order. A transparent and fair police system is key to earning public trust.
Landmark Cases Relating To Custodial Violence
Indian judiciary has played a crucial role in addressing custodial violence through various landmark judgments. These cases have not only exposed the harsh realities of custodial torture and deaths but have also laid down vital principles and guidelines to ensure accountability, transparency, and justice.
1.D.K. Basu vs. State of West Bengal (1997)[16]
This is one of the most significant cases on custodial violence in India. The Supreme Court laid down detailed guidelines for arrest and detention to safeguard the rights of the accused. It mandated that:
- Police officers making an arrest or conducting an inquiry must wear badges that clearly show their identity and rank.
- A written arrest memo must be prepared and signed by a close relative or a respected person from the locality. The memo should consist of the exact time and date of the arrest, and the arrested person must also sign it.
- The arrested person has the right to inform a friend, family member, or any individual concerned about their welfare regarding the arrest and place of detention. If no family or friend is present, the authorities must still notify someone designated by the arrestee.
- If the person to be informed lives in another city or district, they must be notified of the arrest details and detention place within 8 to 12 hours.
- The detainee must be informed of his legal right to communicate with someone about his arrest.
- A record must be maintained in the official register noting where the person was arrested, the name of the individual informed, and the contact details of the officers handling the arrest.
- Both the arresting officer and the person taken into custody must sign a document listing any visible injuries at the time of arrest, and the arrestee should receive a copy of this document.
- A medical examination must be conducted every 48 hours while the individual is in custody, to monitor health and prevent abuse.
- The copy of all necessary documents and records must be sent to the local magistrate.
- During interrogation, the accused must be allowed to consult with a lawyer if they request it.
- Every district must have a designated police control room, and all arrests must be reported there within 12 hours of the event.
2. Nilabati Behera vs. State of Orissa (1993)[17]
In this case, the petitioner’s son died in police custody. The Supreme Court awarded compensation to the mother for violation of her son’s fundamental rights. This case established the principle of monetary compensation for custodial deaths under public law remedy, recognizing the victim’s right to be compensated for state-inflicted harm.
3.Joginder Kumar vs. State of Uttar Pradesh, (1994)[18]
Joginder Kumar, a lawyer, was taken by the police for questioning. However, they kept him in custody without officially arresting him or telling his family where he was. His family kept asking the police about him, but the police gave false information and kept moving him to unknown places.
Honourable Supreme Court held that the police cannot arrest someone just because they have the power to do so. There must be a proper reason for the arrest. If there is no urgent or legal need, the arrest is wrong.
This judgement gave following insights –
- Arrest must have a valid reason.
- The arrested person’s family must be informed quickly.
- Keeping someone in custody without reason is a violation of their rights under Article 21 (Right to Life and Personal Liberty).
4.Rudal Shah vs. State of Bihar (1983)[19]
In this case, Rudal Shah was kept in jail for 14 years even though he had already been found not guilty by the court. He should have been released immediately after his acquittal, but the authorities continued to keep him in prison without any legal reason.
The Supreme Court held that this was a clear violation of his rights under Article 21, which protects the right to life and personal liberty. The Court also ordered the government to pay him compensation for keeping him in jail without any reason.
Conclusion
Custodial violence is not just a violation of rights , it is a failure of justice, humanity, and the rule of law. Through this research, I have come to understand that despite having constitutional rights, legal safeguards, and court guidelines, custodial violence continues to exist because of weak implementation and lack of accountability.
It is deeply concerning that those meant to uphold the law sometimes become violators of it. Many cases show how people especially from poor and vulnerable backgrounds are illegally detained, tortured, or even killed in custody. What I have learned is that laws alone are not enough. There must be strict enforcement, quick punishment for guilty officers, and to provide protection for victims and their families.
In my opinion, India must take following steps to end this injustice.
- Install CCTV cameras in all lockups and interrogation rooms, with real-time monitoring.
- Ensure that police officers are trained regularly on human rights and ethical conduct.
- Provide fast-track courts for such cases to ensure timely justice.
Custodial violence is not just a crime it is an attack on democracy and basic human dignity. To create a fair and just society, we need to put an end to this practice. Every individual, whether they’re innocent or accused, deserves to be treated with dignity and respect. The system must protect this right, not violate it.
Ending custodial violence is not impossible but it needs strong will, honest implementation, and public awareness.
Name – Mahathi Sangannagari
College Name – Pendekanti Law College, Hyderabad.
[1] India Const. art. 21.
[2] N.V. Paranjape, Criminology and Penology306 (12th ed. 2005).
[3] D.K. Basu v. State of W.B., (1997) 1 SCC 416
[4] India Const. art. 20, cl. 1.
[5] India Const. art. 20, cl. 2.
[6] India Const. art. 20, cl. 3.
[7] India Const. art. 21.
[8] India Const. art. 22.
[9] Bharatiya Nyaya Sanhita, 2023
[10] Bharatiya Nagarik Suraksha Sanhita, 2023
[11] Bharatiya Sakshya Adhiniyam, 2023
[12] The Indian Evidence Act, No. 1 of 1872, sec 25, India Code (1872)
[13] The Police Act, No. 5 of 1861
[14] N.V. Paranjape, Criminology, Penology, Victimology 448 (17th ed. 2017).
[15] N.V. Paranjape, Criminology, Penology, Victimology447 (17th ed. 2017).
[16] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 .
[17] Nilabati Behera v. State of Orissa, (1993) 2 SCC 746
[18] Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260
[19] Rudal Shah v. State of Bihar, (1983) 4 SCC 141