National Law Institute University,

Bhopal
4thTrimester

Subject: Criminology

Analysis of:
Custodial
Violence
in
India:
Causes,
Consequences and Preventive Measures

Submitted to:
Prof. P K Shukla

Submitted by:
AveakGanguly
2012BALLB80

Index
Index................................................................................................................................................2
Introduction......................................................................................................................................3
Objectives and Methodology...........................................................................................................4
Objectives:...............................................................................................................................4
Methodology:...........................................................................................................................4
Aspects of Custodial Violence.........................................................................................................5
Torture:.....................................................................................................................................5
Sexual Harassment and Rape:.................................................................................................7
Classification of Custodial Crimes..................................................................................................8
Torture in Police Custody:.......................................................................................................8
Cases of Torture in Police Custody:........................................................................................8
Torture in Judicial Custody:.....................................................................................................9
Cases of Torture in Judicial Custody:......................................................................................9
Statistics of Custodial Deaths in India...........................................................................................10
Deaths in police custody between 2000 and 2011.................................................................10
Deaths in judicial custody between 2000 and 2010...............................................................10
Remedies Available........................................................................................................................11
ICCPR:...................................................................................................................................11
Constitutional Safeguards:.....................................................................................................11
Statutory Safeguards:.............................................................................................................11
Points to combat torture.................................................................................................................12
Recommendations forwarded by NGOs.......................................................................................12
Conclusion.....................................................................................................................................13

Introduction
Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is despair and fear and rage and hate. It is a
desire to kill and destroy including you.
-Adriana P. Bartow
Custodial Violence is a trait against human dignity and human rights that springs out of a
perverse desire to cause suffering when there is no possibility of any retaliation.
-OrIt is any senseless exhibition of superiority and physical power over someone who is
overpowered.
The word custody implies guardianship and protective care.1The violation of human rights
under the shield of uniform and authority between the four walls of a police station, lock-up and
prison where the victims are totally helpless.Custodial Violence is a dark reality in our
democratic country governed by rule of law. In a democratic society, the police have the
predominant role of protecting the rights of citizens as enshrined in the constitution.But it is well
known that they systematically violate their powers and employ torture as part of their
investigation process. The poor, the deprived classes, women & political activists are the worst
victims of police brutality.The police constitute major party in the administration of criminal
justice, & its with them that the average man first comes into contact when wronged.
The main reason why torture continues to be practiced on such a wide scale throughout India is
that the police feel themselves to be immune, they are confident enough that they will not be held
accountable, even if they kill the victim & even if the truth is revealed.
Whilecustodial crimes have drawn attention of legislature, judiciary, media, NGOs and human
rights commissions etc little attention has been given to the plight of the victims in such cases.
It is pertinent to mention that even though the judiciary through its creativeinterpretation has
upheld rights of the victims of custodial crimes over the years, however, the incidents of
custodial crimes in police custody are still continuing.2

1 KSU-BJ PL, Vol.3, No.2, 2010

2 NHRC 2004; A Report on Custodial Violence (UP)

Objectives and Methodology

Objectives:
The project aims to:
1. Study the nature and extent of custodial crimes in police custody;
2. Analyze causes of custodial crimes in police custody;
3. Understand consequences of custodial crimes in police custody;
4. Examine critically preventive measures to combat custodial crimes;
5. Assess the role of Human Rights Institutions and Civil Society Organizations inaddressing
issue of custodial crimes; and
6. Suggest ways and means to control custodial crimes in police custody.

Methodology:
The current effort seeks to conduct a doctrinal study of the various reports on custodial violence
published in India and collate the information in an attempt to map out the full extent of the
crime in the country.

Aspects of Custodial Violence

Torture:
Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment provides the internationally agreed legal definition of torture:
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 a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity.
This definition contains three cumulative elements:

the intentional infliction of severe mentalor physical suffering

by a public official, who is directly or indirectly involved
For a specific purpose.

The World Medical Association in its "Declaration of Tokyo" (1975) defines torture as follows:
Torture is defined as the deliberate, systematic or wanton infliction of physical or mental
suffering by one or more persons acting alone or onthe orders of any authority, to force another
person to yield information,to make a confession, or for any other reason.
Article 3 of The Prevention of Torture Bill, 2010 defines torture as follows:
Whoever, being a public servant or being abetted by a public servant or with the consent or
acquiescence of a public servant, intentionally doesany act for the purposes to obtain from him or
a third person suchinformation or a confession which causes,
(i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical)
of anyperson,is said to inflict torture:Provided that nothing contained in this section shall apply
to any pain,hurt or danger as aforementioned caused by any act, which is inflicted inaccordance
with any procedure established by law or justified by law.
Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.It is
one of the worst crimes in the society, governed by the rule of law and imposes a serious threat to
an orderly civilized society.It is a naked violation of human dignity and degradation which
destroys, to a very large extent, the individual personality.In all custodial crimes what is of real
concern is not only the infliction of body pain but the mental agony which a person undergoes
within the four walls of police lock-up.

The Convention against Torture and other Cruel, Inhuman and Degrading Treatmentor
Punishment was adopted by the United Nations General Assembly on 9th December,
1975[Resolution 3452(XXX)]. India signed the Convention on 14th October, 1997. Ratification
ofthe Convention requires enabling legislation to reflect the definition and punishment
for"torture".
It would beimpossible to create an exhaustive list all of methods of torture currentlyin use in the
world. Torturers continue to develop new and moresophisticated methods of torture and ways to
hide evidence of the torture.
Physical Torture

Blunt trauma: beating, punching, kicking, slapping, whipping, truncheons, falling down
Positional torture: forced body positions, suspension, stretching limbs, constraint of
movement, binding, crash injuries
Burning: instruments, cigarettes, scalding liquid, caustic substance
Stabbing with knife, cutting with knife
Wires under nails, electric shock
Mutilating body parts, traumatic removal of body parts
Amputation of digits and limbs, removal of organs
Asphyxiations: drowning, smothering, choking, chemicals
Chemical exposures in wounds, body cavities
Attacks by animals, dental torture
Exhaustion, forced labor, starvation

Psychological Torture

Threatening to harm or kill the victim or the victim's relatives

Forced witnessing or hearing the torture of others
Mock execution, forced to harm others
Denigration and humiliations, threats of attacks by animals
Violations of taboos, violation of religion

Sexual Harassment and Rape:

Custodial rape can be defined as "rape perpetrated in any state-owned institution by a state
agent." State-owned institutions typically include prisons and jails, but can also include nursing
homes, hospitals, and institutions for the mentally ill.
Custodial sexual assault can also occur outside of an institutional setting. As the former United
Nations Special Rapporteur on Violence Against Women, RadhikaKumaraswamy, has explained,

"when police or military personnel enter homes to search, question, intimidate and/or harass,
there is at the very least an unspoken presumption, if not an overt order, that those within the
home cannot leave, thereby placing them in de facto, albeit in many cases unofficial, custody of
the State." Such situations, particularly prevalent during breakdowns of the rule of law, can be
called "constructive custody."
The most particularized element in custodial violence against women is the sexualization of
torture. Although the sexual anatomy of men as well as women is targeted in the physical stages
of torture, rape and the threat of rape, as well as other forms of sexual violence such as sexual
harassment, forced impregnation, virginity testing, forced abortion, forced prostitution and
forced miscarriage, are perpetrated more consistently against women detainees.
Women are sometimes taken into custody for their own "protection." The former Special
Rapporteur notes that women who are victims of certain crimes or who have done acts that put
them in danger of retaliationsuch as retaliation in the form of "honor killings"are often
placed in protective custody. These women include "(a) girls marrying outside their religious
community or against their parents' will; (b) rape victims; (c) women and girl children rescued
from brothels; (d) destitute women forcibly evicted from their homes due to domestic violence;
(e) victims of trafficking; and (f) lost and mentally handicapped children." These women are
vulnerable to custodial violence while in such protective custody.
As Amnesty International explains, female inmates are totally dependent on correctional officers
in all aspects, including for basic necessities. They are also subject to the guards' abilities to
withhold privileges. Some women are thus coerced into sex for 'favors' such as extra food or
personal hygiene products, or to avoid punishment.
Certain populations of female prisoners are especially vulnerable to custodial sexual assault. For
example, all women, but especially poor and illiterate women, can be coerced into confessing to
crimes for which they are innocent under the threat of sexual abuse.Women are also at
particular risk of abuse by staff during prison transfers and transfers between pre-trial detention
facilities and courts. Finally, juvenile detainees are at an increasedrisk for sexual victimization.
For example, in the United States, the US Bureau of Justice Statisticsreported that 3.2 percent of
juveniles held in both prisons and jails suffered sexual misconduct involving staff, which was
higher than the victimization of adults in prisons (2.4 percent) and jails (1.8 percent).

Classification of Custodial Crimes

On the basis of collected information, crimes of a custodial nature can be divided into two
categories. This categorization is based on the type of custody the victim was taken under when
the crime happened.

Torture in Police Custody:

Torture in Police Custody is mainly used as a tool to extract relevant information related to cases
and criminals. It is a widespread practice and results from systematic administrative failure or
inefficiency to guarantee detainees rights. The first 24 hours following detention constitutes
highest risk for perpetration of such acts.Police custody is defined as the immediate physical
custody by the police of a person who committed a crime. The person is arrested and brought to
the police station for processing. The person is then confined in the police stations jail.
The jail detention is usually a short duration because the custody can be revoked when the person
is produced before the judge within the 24 hours of arrest and was granted bail by the judge.
The suspect can be interrogated by the police while in this type of custody assuming that the
suspect is read his rights before actually sending him to the police station. An attorney is usually
present in an interrogation to assure that the suspects rights are being respected and no physical
harm or brutality of any kind will occur. Also, police custody is often the type of custody for
suspects with non-bail-able offenses.There hardly any effective safeguards to ensure that a
person taken into custody will have their detention recorded or have prompt access to a lawyer.

Cases of Torture in Police Custody:

Case 1 7thApril, 2010: Mr. VeljiParmar, who was accused of theft died due to alleged torture at
the Tajada Police Station in Bhavnagar District of Gujarat. The Police claimed that the deceased
complained of a chest pain and was thus taken to a hospital, where he was declared dead.
However, Mrs. Manjula, the deceaseds wife alleged that her husband succumbed to torture in
custody. On further investigation, the post mortem report revealed around 37 brutal injury marks
on the body.
Case 2 27th October, 2012: A man nicknamed Balister (40 years) died at Nababad Police
Station in Jhansi District of Uttar Pradesh. The deceased was picked up by the Special
Operations Group (SOG) on that very day in connection with a robbery case. Police claimed that
the deceased committed suicide. However the victims relatives alleged otherwise and further
claimed that they had not allowed his relatives to meet the victim when his condition deteriorated
and had only taken him to the hospital once he was already dead in a bid to conceal their crime.
Case 3 On 13 July 2010, one Sneha Kumar Chakma, son of DirendraChakma of Silkur village
in Lunglei district was assaulted by a personnel of Mizoram Armed Police (MAP) at Demagiri
market place in Lunglei district. The victim had come to sell dry fish in the market and was
reportedly assaulted when the victims wife objected to the MAP personnel who forcibly tried to
take away dry fish without paying its price.

Torture in Judicial Custody:

Judicial custody differs from police custody in many aspects. Judicial custody is ascribed by a
judge or the court itself. The custody is ordered by the judge, depending on the circumstances of
the case. The custody can be awarded because the judge refused bail, the suspect earned the
citation of contempt of court, and many other circumstances which include being imprisoned
when convicted.
Judicial custody is one of the two options of the judge regarding custody. Depending on the
situation, the judge may order the suspect back into police custody or into judicial custody. This
type of custody is often given if the suspect manifests risks to his rights while in police custody.
There is no interrogation done during judicial custody unless the situation calls for the action
with the permission of the judge. Even though, judicial custody appears to be the safer sphere of
action, the worst forms of custodial violence occur in prisons. It is also seen in many state
prisons that prisons tend to have a group of individuals who are sometimes favored by the jail
authorities, which enables them to take the prison premises as their personal fiefdom. The use of
torture in Indian Prisons is a documented fact by the National Crime Records Bureau under the
Ministry of Home Affairs.

Cases of Torture in Judicial Custody:

Case 1 12th January, 2010: Under-trial prisoner, Mr. Krishna Kumar died due to alleged torture
at Bhondsi Jail, Gurgaon in Haryana. The Jail officials claimed that he died due to medical
complications but investigation revealed injury marks.
Case 2 23rd March, 2013: Mr Jahangir Khan, an under-trial prisoner died under mysterious
circumstances in Chas Jail in Bokaro, Jharkhand. The jail authorities had claimed that Mr
Jahangir had attempted to set himself on fire after pouring kerosene from a lamp in his ward,
whereupon he was rushed to the nearest hospital but succumbed to his injuries the next day.
However, Mr. Khan had previously alleged before media personnel that he was being tortured
and an investigation was launched.
Case 3 Nandagopal in Annamalai Nagar was held by 4 policemen on suspicion of theft. After
picking him up on May 30, 1992, the cops kept him in custody for five days where he was beaten
to death. The cops also allegedly gang raped his wife Padmini, the court was told.
Judgment We are surprised the accused were not charged under Section 302 IPC (murder) and
instead the courts below treated the death as suicide. They should have been charged under that
provision and awarded death sentence, as murder by police in custody in our opinion comes in
the category of rarest of rare cases deserving death sentence, the Bench observed.

Statistics of Custodial Deaths in

India
Figures according to the National Human Rights Commission Report (NHRC, 2012):

Deaths in police custody between 2000 and 2011

Year No. Of Deaths

2000-2001 - 127
2001-2002 - 165
2002-2003 - 183
2003-2004 - 162
2004-2005 - 136
2005-2006 - 139
2006-2007 - 119
2007-2008 - 187
2008-2009 - 127
2009-2010 - 124
2010-2011 - 147

Deaths in judicial custody between 2000 and 2010

Year No. Of Deaths

2000-2001 - 910
2001-2002 - 1140
2002-2003 - 1157
2003-2004 - 1300
2004-2005 - 1357
2005-2006 - 1591
2006-2007 - 1477
2007-2008 - 1789
2008-2009 - 1532
2009-2010 - 1389

Remedies Available
ICCPR:
ARTICLE 10 (1):- All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
ARTICLE 10.2(1):-Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate to their status as
unconvinced persons.
ARTICLE 14:- Right to speedy trialall persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and obligations in a suit
at law, everyone shall be entitled to a fair and public hearing by a competent independent and
impartial tribunal established by law.
ARTICLE 14.3(4):- It provides free legal aid to the prisoners.
ARTICLE 9(5):- RIGHT TOCOMPENSATIONFor Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation.

Constitutional Safeguards:
Article 20- Primarily gives the rights against conviction of offences
Article 21- Right to life or personal liberty (to protect the right to be free from torture)
Article 22- Provides four basic fundamental rights with respect to conviction
These include,
1.
2.
3.
4.

Being informed of the grounds of arrest,

To be defended by a legal practitioner of his choice,
Preventive detention laws and
Production before the nearest Magistrate within 24 hours of arrest of the person

Statutory Safeguards:
Indian Evidence Act, 1872
A confession to police officer cannot be proved as against a person accused of any offence (Sec.
25 Evidence Act).
Code of Criminal Procedure, 1973
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an
offence punishable with death or imprisonment for life.

Points to combat torture

Adopt an official policy to protect human rights

Investigate impartially all allegations of torture
Bring the perpetrators to justice
Strengthen safeguards against torture
Inform detainees of their rights
Compensate the victims
Train the police and security forces to uphold human rights, and reform the police
Provide torture victims with medical treatment and rehabilitation
Investigate the causes and patterns of torture.
Strengthen Indias international human rights commitment

Recommendations
NGOs

forwarded

by

Various reports by NGOs around the country have urged the Government of India,

To book cases of murder against police personnel who use 3rd degree torture on
detainees and kill detainees in the name of encounter killings.
To dismiss such inhuman , cruel personnel from police service and to forfeit all
monetary benefits due to them like gratuity , pension ,etc
To pay such forfeited amount together with matching government contribution as
compensation to family of the victims of 3rd degree torture & encounter killings.
To review, all cases where false confessions were extracted from innocents by
3rd degree torture.
To make liable the executive magistrate of the area, in whose jurisdiction torture
is perpetrated by police on innocents.

Conclusion
The existing scenario in the country is appalling, with an increment in reported cases all around.
Acts of custodial violence should be dealt with foremost as they undermine the legitimacy of our
justice administration system. Its ironical that the hands meant to protect you are the ones that
end up killing you.
Hence, Custodial torture must be made a crime by special law. The existing laws under the
constitution and the rules established by the Supreme Court--though not a complete remedy-should be applied without failure.The public--and especially concerned professional groups,
including rights groups, NGOs and the media--must closely monitor police practices.The central
government should be urged to ratify the UN Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment.It is hoped that the current scenario would
improve and it would result in renewed trust in our police bodies.