ABSTRACT: –

Introduction –
Since ancient times, there has been many attempts by man to dominate other fellow human
beings. Those who holds power in their hands seems to suppress the minority by using
different means of suppression. Instance of such suppression is the torture against those
people who are under the custody often called as custodial torture. This has become a
global phenomenon. Many countries prohibit the custodial torture by their laws.
International treaties are also signed in this matter and it makes the respective country
abide by the treaty it signs.

Purpose –
To make a critical appraisal on the present existing state of custodial torture in India and the
rights guaranteed to those who are under the custody. Also, taking a look at the political
reasons which lead to such torture in the custody.

Methodology –
The study is being carried out through, both the doctrinal and nondoctrinal methods; more
importance was laid on non-doctrinal method to arrive the real issues and problems of
those who suffer from this evil of custodial torture. Also, using primary and secondary
sources of information to derive the real statistical data.

Findings –
As per the records of National Human Rights Commission (NHRC) there has been 14,231 i.e.,
4.33 deaths in police and judicial custody in India every year. deaths under the police and
judicial custody is the consequence of torture during the custody.

Conclusion –
Custodial violence, torture and abuse of police power are not peculiar to any particular
country, but it is a common problem across the globe. As the problem is universal it is a
matter of concern of International community. The Universal Declaration of Human Rights
took a historical initiative by proposing certain protection and guarantee of basic human
rights. For instance, in Article 5 it states that, “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment”. Despite of such an amazing
declaration the crime continues unbated.
 Introduction

Ensuring freedom and protection dignity of an individual is the supreme concern of every
democratic state. Living in this eon of globalisation, any incident violating human rights is of
pivotal importance to the world at large. Expanding ambit of human rights on one hand and
increasing counts of crime rate on other hand, poses a challenge to all law-enforcing
machineries to strike a balance between the two.

Human rights and custodial torture are in contradiction with one another Torture in custody
at the hands of protectors of law i.e. police are considered to be the harshest form of
human rights violation.
Grit of human rights can be guaranteed only by curbing this unnecessary evil. The
expression “torture” has neither been defined in the Constitution of India nor in any other
penal law. Issue of custodial torture is concern of international community and a universal
subject.

The former supreme Court judge, V.R. Krishna Iyer, J., has held that “custodial torture is
worse than terrorism because the authority of the State is behind it”.
According to Mark Sumner, “Favouring the use of torture is not a political position it is a
mental illness”.

Thus, custodial forcefulness, suffering and abuse by police authority are not peculiar to this
country but a widespread phenomenon. India, being the biggest democracy of the world,
embedded in its laws, protection of life and
personal liberty as one of the fundamental rights. Still, existence of cases of custodial
torture and third degree upon under-trails and suspects is an integral part of investigation.
 Concept of Torture

Torture (from Latin tortus: to twist, to torment) is the act of deliberately perpetrating
severe physical or psychological pain on someone by another as a punishment or in order to
accomplish some desire of the torturer or force some action from the victim. Torture, by
definition, is a knowing and intentional act; deeds which unknowingly or negligently inflict
suffering or pain, without a specific intent to do so, are not typically considered torture. i

Torture has been carried out or authorized by individuals, groups, and states throughout
history from ancient times to modern day, and forms of torture can vary greatly in duration
from only a few minutes to several days or longer. Reasons for torture can
include punishment, revenge, political re-education, deterrence, coercion of the victim or a
third party, interrogation to extract information or a confession irrespective of whether it
is false, or simply the brutal indulgence of those carrying out or observing the torture. ii

On the other hand, some forms of torture are designed to inflict psychological pain or leave
as little physical injury or evidence as possible while achieving the same psychological
destruction. The torturer may or may not kill or injure the victim, but torture may result in
a deliberate death and serves as a form of capital punishment. Depending on the aim, even
a form of torture that is intentionally fatal may be prolonged to allow the victim to suffer as
long as possible (such as half-hanging). In other cases, the torturer may be indifferent to the
condition of the victim.iii
 Custodial Torture

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The
Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC)
and the United Nations forbid it. But the police across the country defy these institutions.
Therefore, there is a need to strike a balance between the individual human rights and
societal interests in combating crime by using a realistic approach.iv

Custodial torture ranging from assault of various types to death by the police for extortion
of confessions and assertion of evidence are not uncommon. Such a method of investigation
and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of
criminal justice, not only disregards human rights of an individual and thereby undermines
his dignity but also exposes him to unwarranted violence and torture by those who are
expected to ‘protect’ him.

In India where rule of law is inherent in each and every action and right to life and liberty is
prized fundamental right adorning highest place amongst all important fundamental rights,
instances of torture and using third degree methods upon suspects during illegal detention
and police remand casts a slur on the very system of administration. Human rights take a
back seat in this depressing scenario. Torture in custody is at present treated as an
inevitable part of investigation. Investigators retain the wrong notion that if enough
pressure is applied then the accused will confess. The former Supreme Court judge, V.R.
Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of
the State is behind it.
It is a paradox that torture continues to exist in India. This is because India is a liberal
democracy with very clearly articulated constitutional and statutory provisions against
torture that are constantly being developed and monitored by a strong and independent
judiciary. This raises the question: how does torture continue to persist in India?

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The
Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC)
and the United Nations forbid it. But the police across the country defy these institutions.
Therefore, there is a need to strike a balance between the individual human rights and
societal interests in combating crime by using a realistic approach.v

Custodial torture, often known as extra-judicial executions has been on a rise in India
especially between 2002 and 2007. According to Asian Centre for Human Rights, the
nationwide figures are four custodial deaths per day. There have been 7468 reported
custodial deaths in this five-year period. However, the severity of the torture in India is far
worse than statistics suggest. This is because victims rarely report cases against the police
due to fear of reprisals. More than half the cases of custodial torture are not even
reported.vi
Safeguards by Indian Laws against Custodial Torture

There are numerous laws to guarantee the basic human rights to the citizens of India by the
constitution and various legislative acts.

• The Prevention of Torture Bill, 2010

“Whoever, being a public servant or being abetted by a public servant or with the
consent or acquiescence of a public servant, intentionally does any act for the purposes
to obtain from him or a third person such information or a confession which causes—
i) grievous hurt to any person; or
ii) danger to life, limb or health (whether mental or physical) of any person, 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 in accordance with any
procedure established by law or justified by law.”

Constitutional Safeguards:
It has been held in a catena of judgements that just because a person is in police custody or
detained or under arrest, does not deprive of him of his basic fundamental rights and its
violation empowers the person to move the Supreme Court under Article 32 of the
Constitution of India. Detention does not deprive one of his fundamental rights. They don’t
flee the persons as he enters the prison although they may suffer shrinkage necessitated by
incarceration. However, the extent of shrinkage can and should never reach the stage of
torture in custody of such a nature that the persons are reduced to a mere animal
existence.vii

Article 20 of the Constitution of India:

Article 20 primarily gives a person the rights against conviction of offences. These include
the principle of non-retroactivity of penal laws (Nullum crimen sine lege) i.e. ex-post facto
laws thereby making it a violation of the persons fundamental rights if attempts are made to
convict him and torture him as per some statute. Article 20 also protects against double
jeopardy (Nemo debet pro eadem causa bis vexari). This Article most importantly protects a
person from self-incrimination. The police subject a person to brutal and continuous torture
to make him confess to a crime even if he has not committed the same.

Article 21 of the Constitution of India:

This article has been understood in the Indian judiciary to protect the right to be free from
torture. This view is held because the right to life is more than a simple right to live an
animalistic existence. The expression "life or personal liberty" in Article 21 includes a
guarantee against torture and assault even by the State and its functionaries to a person
who is taken in custody and no sovereign immunity can be pleaded against the liability of
the State arising due to such criminal use of force over the captive person.
Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction. These include
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. Thus, these provisions are designed to ensure that a person is not
subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed
excesses.
 Custodial torture in India

India expressed specific reservation to the effect that Indian Legal System did not recognize
a right to compensation for victims of unlawful arrest or detention and thus did not become
a party to the Covenant. Notwithstanding all this, the Apex Court through judicial activism
evolved a right to compensation in cases of established unconstitutional deprivation of
personal liberty or life.viii

The ‘Bhagalpur blinding case was the first case where the question of monetary
compensation was considered by the Hon’ble Supreme Court. The working principles for
calculating the quantum of the compensation was laid down in another case from Bihar. In
1994, the Hon’ble Supreme Court introduced the concept of “personal liability” wherein the
State could recover the compensation paid to the victim or his family from the official
concerned, as a deterrent to the said officers indulging in the atrocities.

It has been furthered that this compensation was based on strict liability and was
recoverable from the State, which shall have the right to be indemnified by the wrongdoer.
It was observed that the objective was to apply balm to the wounds and not to punish
the transgressor or the offender, as awarding appropriate punishment for the offence
(irrespective of the compensation) must be left to the criminal courts in which the offender
is prosecuted, which the State was duty-bound to do under the law.

In a proceeding in the Supreme Court regarding this, the state government admitted in
court that it was aware of the existence of the interrogation and torture centres. The
government also admitted that in several cases the officers might have also killed the
witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat
experience, while being a shocking revelation of the state of policing in that state is also the
proof that the public could be forced to silence, if the state so requires, by imparting fear. ix
 Conclusion

The legal custody though by asset of law authorize police to arrest accused/ suspect and put
them behind bars, but it is no manner authorising these officials to abuse the due process of
law by taking law into their own hands. Being an under-trial does not eradicate the basic
rights of humans.

Law sets procedure, devotion to which is the duty of all regardless of one’s designation. Fear
of being punished on breaking law should prevail amongst police officials as well, especially
in country like ours that preach the principle of rule of law.

Cases stated in previous chapter depicts there still exists fear of power of Khaki wardi in
India. Despite independence practises of colonial era wherein power triumphed over weak
still survive. Flashing of such cases day in and day out creates fear in mind of civilised society
and convert these officials into rogue that are supposed to limit crime and keep our society
safe as per the due process established by law.x

Probable solutions to this inhumane practise could be:

• Central and State governments should evolve apparatus wherein police is allowed to

perform its duty to curb crime present in any form, ensuring privileges and rights of a
common man is not infringed.

• Further, police training programs should take place more frequently focused on

teaching them what ethical and moral duties they too hold to society.

• Any complaint of torture in police custody should not be taken lightly rather court should

try to deal with it rigorously that would rebuild trust of public in our justice delivery
system.

i
Wikipedia contributors. "Torture." Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia,
20 Jan. 2019. Web. 21 Jan. 2019.
ii
ibid
iii
ibid
iv
“Custodial Torture And Its Remedies”
http://www.legalservicesindia.com/article/297/Custodial-Torture.html

v
ibid
vi
ibid
vii
The Constitution of India [India], 26 January 1950, available at:
https://www.refworld.org/docid/3ae6b5e20.html [accessed 21 January 2019]
viii
“Custodial Torture: A Gross Violation of Human Rights” by By Komal Kapoor & Sarthak Kapila
jlsr.thelawbrigade.com/wp-content/uploads/2016/04/Komal-Sarthak.pdf
ix
ibid
x
ibid