Custodial violence primarily refers to violence in police custody and judicial custody. Custodial violence, which includes torture, death and other excesses in police custody or prison.

In 2020, the Supreme Court asked the Government’s response pertaining to the implementation of Section 176(1A) of the CrPc, which calls for mandatory judicial inquiry related to incidents of deaths, disappearance, rape, etc. in judicial custody.

Custodial Violence – Key Points

• Custodial violence is the violence that takes place in judicial and police custody where an individual who has done a crime is tortured mentally or physically
• Most of the custodial deaths were attributed to reasons other than custodial torture, which included suicide and death in hospitals during treatment
• One of the biggest issues with custodial violence is that it has put human rights at stake. This crime is an outburst against humanity and is one of the many root obstacles in a Democratic country
• Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some of the factors of death in police and judicial custody, but custodial violence remains the common cause of deaths in prisons and lock-ups
• Many human rights activists and social workers have found that the worst violations of human rights take place during the course of an investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as “prolonged interrogations”

Types of Custodial Violence

There are different types of custodial violence. Discussed below are the same:

• Physical Violence
  • Through physical force or bashing which may lead to the exhaustion and fear of death
• Psychological Violence
  • Not providing correct information and mentally torturing them. This may also be done through humiliation and threats
• Sexual Violence
  • This may include verbal sexual abuse and humiliation of one’s dignity. This may leave a long-lasting psychological impact on the victim.

Legal Provisions for Custodial Violence in India

The following provisions were enacted to curb the tendency of policemen to resort to torture to extract confessions, etc.:

• Sections 330, 331 & 348 of Indian Penal Code (IPC)
• Sections 25 & 26 of the Indian Evidence Act
• Section 76 of Code of Criminal Procedure (CrPC) and Section 29 of the Police Act, 1861

Other important constitutional provisions are as follows:

• Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution
• Section 41 of the Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation
• Article 21 of the Indian Constitution provides that no person shall be deprived of life or personal liberty except according to the procedure established by the law

Indian Police Act, 1861:

• Sections 7 & 29 of the Police Act, 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same

• Role of State Government:
  • Police and public order are State subjects as per the  7th Schedule of the Constitution of India.
  • It is primarily the responsibility of the state government concerned to ensure the protection of human rights.
• Role of Central Government:
  • The Central Government issues advisories from time to time and also has enacted the Protection of Human Rights Act (PHR), 1993.
  • It stipulates establishment of the NHRC and State Human Rights Commissions to look into alleged human rights violations by public servants.

Case Laws:

1. D.K. Basu v. State of West Bengal 1997 : Laid down 14 guidelines regarding custodial torture and police brutality ( Also read : https://lawwire.in/custodial-death/ )

• “….Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. “

2. Om Prakash and Ors. v. State of Jharkhand 2012 : Police and State Authorities vis-a-vis Extra-Judicial Killings

• “….It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court [The Hon’ble Supreme Court] has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism”

3. People’s Union of Civil Liberties (PUCL) v. State of Maharashtra 2014 : 16 point guidelines were laid down as the “standard procedure to be followed” for thorough, effective, and independent investigation in the cases of death during police encounters

i) Any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence must be recorded either in writing or electronic form
ii) If encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and forwarded to the Court under Section 157 of the CrPC, whilst following the procedure u/s. 158
iii) The investigation, as far as such death is concerned shall be conducted by an independent CID/ a police team of ANOTHER police station
iv) Mandatory magisterial inquiry (under Section 176 of the CrPC) into all cases of encounter deaths MUST be held and a report thereof must be sent to the Judicial Magistrate
v) The information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be
vi) Medical Aid to be provided to the criminal/victim
vii) No delay shall be caused in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
viii) To ensure the trial to be carried out expeditiously, a report shall be sent to the competent court under Section 173 of the CrPC post investigation
ix) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest
x) Bi-annual statements of all encounter killings MUST be sent to the NHRC by the DGPs ( set date + format )
xi) Disciplinary Action, where death is caused by a firearm amounting to an offence under the Indian Penal Code, 1860 SHALL be promptly initiated and the said officer be placed under suspension
xii) Victim Compensation Scheme (Section 357-A of the CrPC) to be invoked/extended for the benefits dependants of the dead
xiii) Subject to Article 20 of the Constitution, the concerned police officer(s) MUST surrender their weapons for forensic and ballistic analysis
xiv) An intimation about the incident must also be sent to the police officer’s family and legal aid services to be offered
xv) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers SOON after the occurred
xvi) Lastly, the family of the victim may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident if aggrieved by the (lack) of abovementioned procedure followed by the Police