Violation of Rule of Law due to Custodial Death

TABLE OF CONTENTS
I. INTRODUCTION: VIOLATION OF RULE OF LAW 2

II. WHAT IS CUSTODIAL DEATH? 3

III. LEGAL PROVISIONS AGAINST CUSTODIAL TORTURE IN INDIA 3

IV. INTERNATIONAL CONVENTIONS 6

V. TWO MOST IMPORTANT BILLS 7

1. OBJECTIVE OF THE BILL 8

2. LAW COMMISSION’S 273RD REPORT 8

3. ANTI-TORTURE BILL, 2010 9

4. ANTI-TORTURE BILL, 2017 9

VI. RIGHTS OF THE ARRESTED PERSON 9

VII. PROCEDURE FOR INQUIRY UNDER NHRC GUIDELINES FOR CUSTODIAL VIOLENCE 10

VIII. INTERNATIONAL TREATIES AND CONVENTIONS AGAINST TORTURE 10

IX. ROLE OF JUDICIARY IN CONTROLLING CUSTODIAL TORTURES 12

X. CONCLUSION AND SUGGESTIONS ON INDIAN CRIMINAL JUSTICE SYSTEM AND THE CASES
OF CUSTODIAL DEATHS 20

1. SUGGESTIONS 20

2. CONCLUSION 25

1
 I. INTRODUCTION: VIOLATION OF RULE OF LAW 
There has long been a serious problem with torture and other forms of police brutality against
those in police custody. In many countries of the globe, including India, the frequency of
such occurrences has grown in recent years. It is a known truth that law enforcement uses
questionable tactics to coerce suspects into making confessions and giving testimonies.
Unfortunately, the use of such tactics often ends in the victim’s death. It is also true that
victims of torture and humiliation often commit themselves because they can no longer take
it.

Custodial violence and abuse of police power have emerged a major issue of human rights
concern and one of the root obstacles to democracy and the development of human well-
being in contemporary societies. The term ‘custodial violence’ includes all types of physical
and mental torture inflicted upon a person in police custody. It is a crime against humanity
and a naked violation of human rights. The practice of custodial violence in the developing
countries like India, is however, more difficult and complex. A large number of cases of
police brutality take place not because of individual aberration, but because of systematic
compulsions. The nature of custody may be judicial, police or under any institution obliged to
take care of the inmates like hospitals, homes etc. or may be in the hands of terrorist
organizations or armed groups or insurgents etc. The practice is widespread and gone
unchecked since British days if there was no tacit support of senior police officials,
bureaucrats, politicians and judiciary.

There has been widespread outcry over the issue, with calls for reforms in policing and the
implementation of adequate mechanisms to hold the responsible officers accountable for their
misdeeds, following the brutal killing of George Floyd in the United States and the custodial
deaths of Jayaraj and Benix in Tamil Nadu, India. In order to deal with this matter, we may
use the remedies provided by the IPC. The Supreme Court has on occasion given directions
and instructions to both the Federal and state governments, urging them to address the
problem head-on, find ways to reduce the number of deaths that occur in custody, and hold
absent authorities accountable. However, the growing incidence of custody fatalities in the
nation demonstrates that measures have not been fruitful. This issue is being discussed at
length again, and it is interesting to note that India does not have a statute against torture. 

2
 1. WHAT IS VIOLATION OF RULE OF LAW?
People and ideas are falling apart into conflict and turmoil in a society that is becoming more
and more polarised and politicised. In some ways, the current era is characterised by an
absence of stability and order. The decline of democracy and its principles is, alas, plain to
see. Certain democratic ideas guarantee stability and accountability in our troubled and
uncertain world. Rule of law is one aspect of a well-established, free, and effective
democracy. The rule of law is a cornerstone of a modern democratic democracy and one of
the most important ideas of all time. Tom Bingham's words capture the core of the Rule of
Law perfectly-

“All persons and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly and prospectively promulgated and publicly
administered.”1

Rule of law will be held in the highest regard in any democracy. The rule of law provides
security and order and, more significantly, limits the abuse of power and the abuse of
authority. Part III of the Indian Constitution, for instance, “governs the laws passed by the
parliament and ensures that such laws in existence or henceforth passed, which are violative
of or abridge fundamental rights, can be declared void.” Judges and lawyers alike should be
subject to the law. All citizens, including legislators, police officers, and judges, are
accountable to the law under a system based on the rule of law.

The rule of law and the concept of the supremacy of law both have their origins well before
the renaissance. The Rule of Law thesis has its roots in Ancient Rome during the
establishment of the first republic and has been defended by various European Renaissance
intellectuals, including Hobbes, Locke, and Rousseau, on the basis of the social contract
theory. The phrase “Rule of law” derives from the French phrase “la principe de legalite,”
which meaning the principle of legality; its creator, Justice Coke, argued that English
common law should take precedence even above the king's power. However, it was AV
Dicey who brought the phrase back into use and wrote extensively about it. In his
explanation, he boiled down the concept of rule of law to its two most salient and
recognisable characteristics. The first distinguishing characteristic is the absolute power and
absolute supremacy of the national government. In earlier eras of our history, the Crown

1
Tom Bingham, The Rule of Law (London: Allen Lane, 2010) p. 8

3
embodied this governmental or national authority. Law and order originated with the King
and were upheld by his authority. It was once believed that the judicial phrase “tout fuit in luy
et vient de lui al commencement,” which translates to “all was his and all proceeded
originally from him,” was an unchallengeable and unrivalled truth. To a lesser extent, the
monarchy's power has been transferred to Parliament. The rule of law is the second
component, and it is intrinsically linked to the first. An old judicial proverb says it best: “La
ley est le most haute inheritance, que le roy ad; car by la ley it même et
toutessessujetssontrulés, and if la ley nefuit, nulroi and nul inheritance sera.” This maxim
captures the essence of our special political order. He claims that in England, the concept of
legal equality—that is, the idea that all social strata should be subject to the same law,
administered by the same regular Courts—has been taken to its logical extreme. Despite this,
Dicey's theory is widely regarded as a clear romanticization of England at the expense of the
rest of Europe.

Scholars in India's philosophical tradition have long held that the rule of law is superior to
that of any monarch. Chanakya in Arthshastra discusses how the King should be regulated by
law, and the Upnishads make reference to law as the King of Kings. There have been ups and
downs in the application of the rule of law in India. The rule of law in pre-independent India
was a failure because the laws had been perverted and corrupted by the colonial regime's
exploitative aims.

It was extremely rare for Englishmen to be found guilty by white jurors in the American
colonies. One of the most egregious examples of this flagrant contempt for “Rule of Law” is
the Raja Nandkumar case (1775), sometimes regarded as the first judicial murder in India.
However, the concept of rule of law was bolstered in the post-independence age, ushering in
significant and commendable reform that demonstrated the concept's ability to endure the
rigours of time and political upheaval. The New Delhi Congress or Declaration of Delhi was
the earliest occurrence of this array's modern growth. The Rule of Law in a Free Society” was
the overarching subject of the New Delhi Congress. The Congress refined the concept of the
Rule of Law by expanding on its underlying concepts and procedures. The Commission's aim
was to safeguard the greatest traditions and the highest values of the administration of justice,
with the stated goal of promoting public awareness and appreciation for the Rule of Law.

In its view, respect for basic freedoms and acknowledgment of individual civil and political
rights may be advanced by rallying jurists around the world in support of the Rule of Law.

4
The rule of law is implicit, if not explicit, in India's constitution. Articles 14 and 21 of the
Constitution embody the first two Dicey principles.

2. CUSTODIAL VIOLENCE AND DEATHS VIOLATION OF RULE OF LAW

Custodial violence and deaths, which involve the deaths of the accused or the suspects under
trial in the police or judicial custody, are contrary to the principle of Rule of Law, which is
enshrined in the Constitution and states that no one is punishable or made to suffer except for
a violation of law established by legal procedure in a court of law.

It is the responsibility of the Judiciary to uphold the rights of the person as outlined in Article
III of the Constitution.

The right not to incriminate oneself is guaranteed under Article 20(3) of the United States
Constitution. It states that an accused person cannot be forced to testify as a witness against
himself. It serves as a safeguard against custodial abuse in order to get truthful testimony
from suspects.

Article 21 states that no one may be deprived of his life and personal liberty except the
method authorised by law, although it does not explicitly denounce violence and deaths that
occur in prisons.

As an example of how the law is superior to all other forms of human authority, consider the
case Kesavananda Bharati v. State of Kerala [AIR 1973 SC 1461]. The court ruled that the
Rule of Law is an integral part of the constitution's framework and, as such, cannot be
changed by any Act of Parliament.

The individual arrested must be brought before a Magistrate within 24 hours, under Article
22(2) of the constitution, and may not be held for longer than that.

Regarding the case of Joginder Kumar v. State of Uttar Pradesh (AIR 1994 SC 1349) 2,
Articles 21 and 22 of the Constitution provide citizens the right to an attorney and the right to
know the basis for their detention, among other basic procedural protections important to the
Rule of Law, as the Supreme Court has ruled.

2
Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349.

5
Regarding the case of D.K. Basu v. State of West Bengal [AIR 1997 SC 610], 3 The Supreme
Court issued rules in this case to safeguard defendants from abuse while in custody.

Here are a few examples of regulations:

1. Within 24 hours following the arrest, the suspect must be brought before a Magistrate,
as required by sections 56 and 57 of the Code of Criminal Procedure of 1973.
2. Any time during an interview conducted according to Section 41d of the Code of
Criminal Procedure, 1973, the detained individual shall be allowed to speak with his
attorney.
3. Innocent people deserve a fair trial.
4. The right to life, dignity, and personal liberty, as well as the right against any violent
or humiliating treatment, must all be taken into account while deciding how to
conduct interrogations.

II. TWO MOST IMPORTANT BILLS

About three sessions of Parliament this year were dedicated to discussing the issue of prison
reform and the regulations needed to reduce custodial fatalities. Vikas Dubey, a former
Kanpur gangster turned politician, was apprehended by police in Uttar Pradesh, and four
suspects in the rape of a veteran in Hydrabad were also apprehended, heightening the urgency
with which harsher punishments must be applied.

The Indian Union Muslim League’s Abdul Wahab noted that India had signed the UN
Convention against torture of victims of crime and had requested separate statistics on the
number of victims’ deaths in each state. He then inquired whether there were any plans to
introduce new legislation regarding fatalities that occur in government custody. In response
to the UN Convention, the Ministry of Home Affairs (MHA) said as follows:

“The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment prescribes that each state shall take effective legislative, administrative, judicial,
or other measures to prevent acts of torture. The offences of causing hurt or grievous hurt to
extort confession are punishable under Sections 330 and 331 of the Indian Penal Code,
1860.”

3
D.K. Basu v. State of West Bengal AIR 1997 SC 610.

6
According to the MHA, “government is seized of the subject” after reviewing the 273rd
Report of the Law Commission and the draft of “The Prevention of Torture Bill, 2017,” as
well as comments from State Government.

1. Objective of the Bill

The purpose of the legislation is to ensure that public officials don’t abuse their positions of
trust by punishing those who abuse their power or those who torture with the knowledge of a
public official.

India has ratified the Convention against Torture and other Cruel, Inhuman, or Degrading
Treatment or Punishment, as stated in the Bill. Torture is defined as inflicting severe bodily
harm or risking the victim’s life on purpose.

If a public servant tortures a victim to extract a confession or other information because of the
person’s language, religion, community, race, place of birth, caste, or any other basis, that
official must serve a minimum of three years in prison and possibly up to ten years in prison
and pay a hefty fine.

2. Law Commission’s 273rd Report

Former Indian law minister and UN convention administrator Mr. Ashwani Kumar filed a
Writ Petition with the Supreme Court of India, which prompted the Law Commission to issue
its 273rd report as a response to the Central Government. Several instances of torture
committed by Indian government officials are detailed in the study. The Supreme Court’s
observation that custodial violence (death in police custody/lock-up, torture, rape) is a topic
of profound concern is cited in this article. Article 21 of the Constitution is violated, along
with other fundamental human rights and the rule of law. In contrast, state action must be
“right, reasonable, and fair.”

Having legal representation present during questioning may prevent police from resorting to
abusive interrogation techniques and so increase public trust in the justice system. It’s time to
pay the bills, which are-

3. Anti-Torture Bill, 2010

To fulfil the requirements of the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, to which India is a party, the Lok Sabha
tabled the Prevention of Torture Bill, 2010 during the budget session. The proposed law not
only falls short of the requirements established by the UN Convention against Torture but

7
also goes against the fundamental principle of adhering to at least the minimal standards laid
out with regard to the right to freedom from torture.

4. Anti-Torture Bill, 2017

The Supreme Court has granted the states and union territories (UTs) three weeks to provide
their views and answers on the Prevention of Torture Bill, 2017 in response to the growing
calls for a stand-alone law to prevent torture and violence in prisons. In February of 2018, the
Centre first reached out to them for a response; following reminders were made in June,
November, and December of the same year.4

III. RIGHTS OF THE ARRESTED PERSON

Additionally, to being reasonable and lawful, the arrest must be carried out in accordance
with all of the rules and regulations set out by the applicable legal authorities. There are
limits on the police’s ability to use their different arresting powers. When an arrested
individual is restrained, it is possible to argue that this is a kind of respect for that person’s
rights. “However, there are additional clauses that have generated significant rights in favour
of the detained person in a more explicit and direct manner. The ‘Fundamental Rights’
section of India’s constitution guarantees the rights of an arrested individual. To clarify, the
rights are:

● Information to be provided to arrestee (Section 50)5

● Arrested person to be presented before a magistrate (Section 56)6
● Arrested individual cannot be detained for more than 24 hours (Section 57)7
● Consultation with lawyer/ Legal aid (Article 22(1) of the Indian Constitution and
Section 303 of the code)
● Examination by the medical practitioner (Section 54)8
● Special protection to females (Section 53(2))9
● Compensation for an unlawful arrest (Section 357(3) of the code)”10

4
Shreya Tandon, Problems, perspective, and laws surrounding custodial deaths, a dire need of anti-torture law,
IPleaders (June 22, 2022, 13:10 PM), https://blog.ipleaders.in/problems-perspective-laws-surrounding-
custodial-deaths-dire-need-anti-torture-law/#Legislations_by_the_Ministry_of_Home_Affairs_till_date.
5
The Code of Criminal Procedure Code 1973, s 50.
6
The Code of Criminal Procedure Code 1973, s 56.
7
The Code of Criminal Procedure Code 1973, s 57.
8
The Code of Criminal Procedure Code 1973, s 54.
9
The Code of Criminal Procedure Code 1973, s 53(2).
10
The Code of Criminal Procedure Code 1973, s 357(3).

8
 IV. PROCEDURE FOR INQUIRY UNDER NHRC GUIDELINES FOR CUSTODIAL VIOLENCE
The National Human Rights Commission (NHRC) in India established rules for the conduct
of magisterial necessary for intimidation of custodial fatalities to address the rising problem
of custodial violence in the country.

Protection of Human Rights Act, 1993, which established the NHRC in India, was passed by
parliament on October 12 of that year (PHRA). It was passed for the purpose of “better
protecting and promoting human rights.” It is a branch of government that works in tandem
with the judicial branch to ensure that everyone in the nation enjoys the protection and
promotion of the basic human rights guaranteed by the country’s constitution.

The National Human Rights Commission (NHRC) has published updated recommendations
to State Governments to facilitate the whole process of disclosing information regarding
custodial fatalities. In 1993, the organization issued blanket rules requiring immediate
notification of the commission upon discovery of any custodial fatality. Videos, autopsies,
and magisterial inquiry reports would be generated as part of the subsequent evidence
gathering procedure.11

V. RULE OF LAW: THE INTERNATIONAL PERSPECTIVE

Inmates have the right to be treated humanely, according to international human rights and
humanitarian law. This primary responsibility applies as well in times of peace and conflict,
and it carries both negative and positive implications for the authorities who are entrusted
with detention.

Regarding prohibitions, it should go without saying that no one has the right to order the
summary execution of a captive. Torture and other forms of cruel, brutal, and degrading
treatment are also unacceptable.12 In summary, even for questioning purposes, the use of
coercion against detainees is strictly forbidden. Individuals who commit such acts may face
criminal charges on both the domestic and international levels, and States will be held
accountable for them under international law. If detaining authorities neglected to take

11
Shreya Tandon, Problems, perspective, and laws surrounding custodial deaths, a dire need of anti-torture law,
IPleaders (June 22, 2022, 13:10 PM), https://blog.ipleaders.in/problems-perspective-laws-surrounding-
custodial-deaths-dire-need-anti-torture-law/#Legislations_by_the_Ministry_of_Home_Affairs_till_date.
12
art. 6 of the International Covenant on Civil and Political Rights (ICCPR), art. 2 of the European Convention
on Human Rights (ECHR), art. 4 of the American Convention on Human Rights (ACHR), art. 4 of the African
Charter on Human and Peoples’ Rights (AfCHPR), art. 3 common to the four Geneva Conventions (GC), art. 12
GCI, 12 GCII, 13GCIII, 32 GCIV, art. 75§2 Additional Protocol I to the Geneva Conventions (API), art. 4§2 a)
Additional Protocol II to the Geneva Conventions (APII).

9
proactive measures that could have avoided a detainee's death, the state may be held liable.
Inadequate health care, lack of hygiene, and insufficient nutrition can lead to a violation of
the prohibition of inhumane and degrading treatment, as evidenced by numerous decisions
and recommendations from universal and regional human rights bodies such as the European
Court of Human Rights (ECtHR) and a growing body of soft law. Increased mortality and so-
called “natural” deaths in custody can be caused by inadequate health care, lack of hygiene,
and insufficient nourishment, all of which are directly tied to inadequate circumstances of
custody. If a prisoner dies because of substandard conditions, that constitutes a violation of
their right to life. The obligation to provide enough food and drink, medical attention, etc.,
are just some of the many regulations addressing the treatment of those deprived of their
liberty in connection with an armed conflict that may be found in IHL. Indeed, detaining
authorities have been given the additional responsibility of guarantor, and it is incumbent
upon them to take all precaution necessary to ensure the safety of the detainees in their care.
The obligation to protect detainees from the violence of other inmates, from suicide, from
external attacks/threats (fire, bombs, etc.), and from the violence of third actors in the context
of extraditions or other removals, for example, must also be included in these measures to
ensure the security of detainees from “external” threats. Sometimes, the failure to take
preventative steps to safeguard detainees' lives can lead directly to the commission of a crime
against international law, making those in charge of the inmates personally culpable. In
accordance with article 6c of the International Criminal Court Statute, genocide occurs when
a person or group “inflicts on [a national, ethnical, racial, or religious] group conditions of
life calculated to bring about its physical destruction in whole or in part.” Furthermore, States
are obligated to do things after someone dies. Whenever a person dies in detention, an
investigation must be done. This is an automatic (ex officio) responsibility of the State and
does not need any action on the part of the deceased detainee's loved ones. It's not always
about finding criminal activity when conducting an inquiry. A simple administrative inquiry
might be adequate in the instance of a seemingly natural death. Any investigation into this
matter must be performed by a neutral and objective party. Things's on you to start it off and
make sure it gets done right. The deceased person's next of kin must be included, and the
process must be open to at least some degree of public observation. Investigations into
suspicious deaths that may involve a violation of the right to life should entail, at a minimum,
a comprehensive collection and examination of all relevant physical and documentary
evidence, statements from witnesses, and a proper autopsy (See “Minnesota Protocol”).
Human rights treaties, which provide judicial protections, form the international legal basis
10
for the duty to investigate (right to an effective remedy essentially). The duty to investigate
deaths that occur in police custody is likewise inextricably bound up with the protection of
human life.

3. Why India Must Ratify the Convention Against Torture

The persistence of inhuman treatment makes it apparent that the India is determined to
protect violence by the police. India is one of only five countries that have yet to ratify the
1987 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT). The others include Sudan, Brunei and Haiti.

The Prevention of Torture Bill, 2010, which was enacted by the Lok Sabha just before US
President Barack Obama's 2010 visit to India, was a reluctant and utterly insufficient first
step towards India ratifying the UNCAT. The lip service has remained notwithstanding the
change in administration. The Law Commission's continuous review of amendments to
existing criminal legislation, not a unique anti-torture Bill, was addressed when India
delivered its third Universal Periodic Review (UPR) to the UN Human Rights Council in
2017.

Even after the Lok Sabha's Bill was significantly modified by a multi-party Rajya Sabha
select committee in 2010, the court continued to disregard senior lawyer Ashwani Kumar's
and the Indian people's requests in 2017 for the Supreme Court to urge the government to
enact the Bill.

One-sixth of the world's population is exposed to arbitrary police brutality under the worse-
than-colonial Indian State. Not all of them, however; most likely, the 39% of them who
identify as Dalit, Muslim, or Adivasi. This demographic makes up a disproportionate 53
percent of Indian convicts. According to the Pew Research Centre, US Blacks made up just
12% of the adult population but 33% of those doing time for a crime.

The cause of police torture in both countries is not addressed by "Dalit Lives Matter" or other
memes that mimic "Black Lives Matter" in the US. The difference is crucial. The focus in
America has suddenly shifted to racism (whose corrections are, quite rightly, inclusive
measures such as seeking greater Black presence in more diverse areas of employment and
education). Sadly, just mentioning societal problems like "racism" or "casteism" does not
address the criminal in the room—the police officer whose use of force the state condones. In

11
India, the US, and everywhere else, social and criminal concerns must be addressed in very
different ways.

Each district has Social Justice and Human Rights Unit of the Tamil Nadu police. To react to
crimes against SC and ST populations, they have mobile police squads, but the units also
employ economists and sociologists. It is ineffective for either goal to combine social justice
(for equitable access to resources) with human rights (for the suppression of violence). There
is confusion outside of Tennessee. Reservations for at-risk groups haven't stopped the
violent'reservation' for them in institutionalised jail and torture systems throughout India.

A new norm of connection between the state and the people is necessary, as Anne Gallagher,
director-general, Commonwealth Foundation, said during a recent webinar on "UNCAT and
India: Perspectives on Ratification." How can the government of India hesitate on a
fundamental law barring everyday violence by its own agents, when millions of Indians seek
humanitarian protection against forced migration, exploitation, and bondage?

The right to humane treatment for prisoners is guaranteed by both international human rights
law and humanitarian law. This basic commitment, which is valid in both peacetime and
times of war, imposes both negative and positive responsibilities on those in charge of
holding people.

As regards negative obligations, it is self-evident that summary executions of detainees are

absolutely prohibited.13 The same can be said of torture or any other form of cruel, inhuman,
or degrading treatment.14 In short, it is forbidden to use any kind of coercion on prisoners, not
even for the sake of questioning. For these types of transgressions, States will not be the only
parties held accountable on an international level; the offenders may also face criminal
prosecution on a national and international scale.15 State liability may also result from
detention officials' failure to take action that may have saved a detainee's life. Numerous
decisions and recommendations from international and regional human rights organisations,

13
art. 6 of the International Covenant on Civil and Political Rights (ICCPR), art. 2 of the European Convention
on Human Rights (ECHR), art. 4 of the American Convention on Human Rights (ACHR), art. 4 of the African
Charter on Human and Peoples’ Rights (AfCHPR), art. 3 common to the four Geneva Conventions (GC), art. 12
GCI, 12 GCII, 13GCIII, 32 GCIV, art. 75§2 Additional Protocol I to the Geneva Conventions (API), art. 4§2 a)
Additional Protocol II to the Geneva Conventions (APII).
14
art. 7 ICCPR, art. 3 ECHR, art. 5§2 ACHR, art. 5 AfCHPR, art. 3 common to the four GC, art. 12 GCI, 12
GCII, 17GCIII, 32 GCIV, art. 75§2 API, art. 4§2 a) APII.
15
arts. 6-8 of the International Criminal Court (ICC) Statute

12
including the European Court of Human Rights (ECtHR), as well as a growing body of soft
law show that poor nutrition, unsanitary living conditions, and inadequate health care can
result in violations of the ban on cruel, inhumane, and degrading treatment. 16 Increased
mortality and so-called “natural” deaths in prison may be attributed to poor circumstances of
detention, but they may also be caused by inadequate health treatment, cleanliness, and
nutrition. The right to life might be seen as having been infringed if poor detention
circumstances result in death.17 IHL also lays down a number of specific guidelines for how
people who are deprived of their liberty as a result of hostilities should be treated, such as the
need to provide them access to enough food and drink and medical care. Authorities in charge
of holding people are in fact given a special responsibility as guarantors and are required to
take all reasonable precautions to ensure the safety of the people they are responsible for.
These precautions must also include those to guarantee the security of detainees from
“external” threats, such as the duty to safeguard detainees from the violence of other
prisoners, suicides, external attacks/threats (fire, bombings, etc.), and violence by outside
parties during extraditions or other removals, for example. 18 Rarely, the failure to take
effective steps to preserve prisoners' lives may even result in the commission of an
international crime, making those responsible for the detainees personally criminally liable.
According to article 6c of the ICC Statute, genocide is the purposeful act of “imposing on [a
national, ethnical, racial or religious] group circumstances of existence designed to bring
about its bodily annihilation in whole or in part.” States also have post-mortem duties. Every
time a person dies while being held, an inquiry must be done. 19 This is an immediate (ex
officio) obligation of the State and it does not depend on an action from the relatives of the
detainee who died. The investigation has not always to be a criminal one. In case of
apparently natural death, an administrative investigation may be enough.20 In every situation,
an objective and independent organisation must undertake the inquiry. It must be started,
carried out, and relentlessly pursued. Additionally, it must include the involvement of the
dead person's relatives and some kind of public scrutiny. A comprehensive gathering and
16
Mukong v. Cameroon, Human Rights Committee, comm.. 458/1991, Kalashnikov v. Russia, ECtHR,
15.7.2002, Juvenile Reeducation Institute v. Paraguay, Inter-American Court of Human Rights (IACtHR),
2.9.2004
17
Titiahongo v. Cameroon, Human Rights Committee, 26.10.2007, Ahmet Özkan v. Turkey, ECtHR, 6.4.2004,
Ximenes-Lopes v. Brazil, IACtHR, 04.07.2006
18
Paul and Audrey Edwards v. United Kingdom, ECtHR, 14.3.2002 (violence among detainees), Barbato et al.
v. Uruguay, Human Rights Committee, 21.10.1982 (suicide), Juvenile Reeducation Institute v. Paraguay,
IACtHR, 2.9.04 (fire), Haitian interdiction v. United States of America, InterAmerican Commission on Human
Rights, 13.3.1997 (repatriation).
19
Concluding Observations: United States of America, Human Rights Committee, 15.9.2006, §14, Salman v.
Turkey, ECtHR, 27.6.2000, “Juvenile Reeducation Institute” v. Paraguay, IACtHR, 2.9.2004
20
Balci v. Turkey, ECtHR, 17.2.2009, §34

13
examination of all pertinent physical and documentary evidence, witness testimonies, and a
complete autopsy should all be part of any inquiry into suspicious deaths that may have
included a breach of the right to life (see “Minnesota Protocol”). Human Rights treaties that
include judicial protections provide the international legal foundation for the need to
investigate (right to an effective remedy essentially). The need to look into fatalities that
occur while people are being held is thus inextricably tied to the right to life.

Human rights organisations have repeatedly emphasised the importance of upholding the
duty to look into suspicious deaths in order to effectively protect the right to life (See General
Comment: Right to Life (article 6), Human Rights Committee, 1982, 3 (implicit in the duty to
prosecute), McCann v. United Kingdom, ECtHR, 27.09.1995, and Myrna Mack Chang v.
Guatemala, IACtHR, 25.11.2003). Therefore, a breach of the right to life under its procedural
component may occur if there is no inquiry into a detainee's death or if the investigation is
insufficient. International Humanitarian Law accords such as the 1949 Geneva Conventions
and its 1977 Additional Protocol I do require the investigation of suspicious fatalities or
deaths for which there is no known reason in relation to prisoners of war and civilian
internees (art. 121 GCIII and art. 131 GCIV). The duty to conduct an investigation is also
implied in the duty to bring charges for serious offences (Articles 49 and 50/50 and 51/129
and 130/146 and 147 of the four GC). See also API Articles 11, 85, and 86. Yes, it would be
hard to bring war criminals to justice without first conducting a thorough investigation. It
should be remembered that murdering prisoners of war or civilian internees with the intent to
commit murder constitutes a war crime. For both international and domestic armed conflicts,
it is seen as part of customary law to investigate war crimes (See Henckaerts & Doswald-
Beck, Customary International Humanitarian Law, Rule 158). As a final point, it should be
noted that the adoption of the International Convention for the Protection of All Persons from
Enforced Disappearance (United Nations, 2006), which entered into force in December 2010,
is a major milestone for the purpose of establishing a comprehensive framework for
preventing and investigating a death in custody. This convention stands in parallel to the
ICCPR and the UN Convention against Torture.

14
 VI. ROLE OF JUDICIARY IN CONTROLLING CUSTODIAL TORTURES
In India, a high number of fatalities that occur in prison are associated with a criminal
prosecution or conviction. All the victims died of natural reasons, committed suicide, were
tortured to death, or were killed by the police. Due to the fact that many people believe that a
death while in police custody is immoral, this is a contentious issue. Investigations into
suspicious deaths are time-consuming and challenging because authorities sometimes
suppress key information. It has been argued that the execution of prisoners is a breach of
both human rights and the Bill of Rights. Accused persons in India have the right to be
protected from harm and to have a fair trial, according to the country’s constitution.
Nonetheless, they do not comply with constitutional mandates to interview suspects
following large incidents.21

Starting with the basics, Article 32 of the Constitution guarantees that anybody whose rights
have been infringed by a third party may petition the Supreme Court for relief. Rights to
one’s own life and privacy are among those guaranteed by Article 21. That someone’s rights
cannot be denied only on the basis of suspicion of criminal activity by the police is a result of
this. The Supreme Court ruled in Inderjeet v. State of Uttar Pradesh that any kind of torture is
always a violation of Article 21. The very existence of Article 20 serves as a powerful
deterrent against the kinds of misconduct that might result in a detainee’s untimely death.
Article 20 stipulates that no person may be arrested for a reason unrelated to criminal activity.
In addition, the individual should have no legal ramifications. Contrary to what is stated
above of Article 20 nevertheless, multiple punishments cannot be imposed for the same act.
The imposition of two punishments for the same crime is an example of double jeopardy, a
legal concept. Article 20 guarantees the right to self-defense testimony for every suspect. In
case you were thinking of resorting to torture or other forms of coercion in order to get
evidence, this article should serve as a strong deterrent. The suspect has the right to know the
legal basis for his arrest (Article 22). A person who has been arrested is entitled to discover
the nature of the charges against them and to consult with an attorney. A person who appears
before the closest magistrate and wants bail has the right to a speedy trial, as guaranteed by
Article 22. Criminal Procedure Code When a death occurs in detention, the following steps
must be taken in line with the Code of Criminal Procedure of 1973. According to Section

21
Saini, R. S. "Custodial torture in law and practice with reference to India." Journal of the Indian Law
Institute 36.2 (1994): 166-192.

15
163, law enforcement agents are not allowed to threaten, entice, or promise the subject. As it
so happens, this is also alluded to under Section24 of the Indian Evidence Act. A confession
record should be signed and dated by the offender before being presented to a magistrate, as
required by Section 164. (4). The employment of additional shackles inside a correctional
institution is prohibited under Section 49. It is the duty of the police to notify the public of an
arrest under Section 50A. The suspect’s health and safety must always come first in
accordance with Section 55A. As per Section 75, the suspect must be provided with a copy of
the drug warrant prior to the arrest. The Use of a New Method In India, the Penal Code
makes it illegal to falsely imprison someone in order to coerce a confession or other kind of
information out of them. It is explicitly stated in Section 348. Confessions given to law
enforcement officers are not admissible in court under Section 25 of the Indian Evidence Act
of 1872. However, according to section 26 of the aforementioned law, any confession made
while in jail is not admissible. Section 25 of the Act does not apply, however, if Section 27 of
the Indian Evidence Act of 1872 is relevant.

Between 2001 and 2010, there were 14,231 incidents of custodial violence, as documented in
annual reports by the National Human Rights Commission (NHRC). It is estimated that 4.33
persons died while under the protection of India’s legal system. There were 1,504 fatalities
that were investigated by police and 12,727 deaths that were under police surveillance
between 2001-2002 and 2009-2010. The bulk of these fatalities are attributable to abuse
experienced by individuals while in treatment. Torture is a major contributor to the high
death toll in Indian prisons and jails; these killings are simply the top of the massive iceberg.
The NHRC does not have access to data on the number of people who have died while in
police or prison custody. On a related note, the NHRC does not keep track of torture that does
not result in death. Still, severe treatment is institutionalized, regulated, and at the center of
equality and anti-psychological-warfare strategies. These are only ballpark estimates; in
reality, it’s very uncommon for things to far surpass one’s wildest expectations. Asian Center
for Human Rights released a study in 2011 titled “Torment in India 2011” that provided a
comprehensive overview of the dire situation. Many instances of state evangelical
disillusionment are not identified, despite the NHRC’s focus on human rights violations. Also
included are fatalities that happened in jails but were not included in the official statistics
published by the country’s common liberties body (along with the nuances of the case from
East-Indian settings). In many cases, even relatively small crimes like burglary may lead to

16
interrogation conditions as harsh as torture and prolonged solitary confinement. Speculators,
who are often members of the lowest socioeconomic strata, are particularly vulnerable. A
global rights organization fighting jail abuse found that 1,731 people in India died in
institutional settings in 2014. Most of the victims belonged to marginalized groups, such as
the Dalit and the poor. There were 1,606 deaths in jurisdictions that recognize death and an
additional 125 deaths in police-ordered conservatorships. All the worst forms of torture
known to man are included here as well. 22 These findings provide a true picture of a
widespread horrible practice in this country: deaths unconcerned with anything except
statistics, and equality denied forever due to the severe anxieties of the administration.
Officers routinely use to physical force in order to coerce confessions from detainees and, in
many cases, to exert control over the truth. Nearly one hundred people died while in police
custody in 2017, according to the National Crime Records Bureau. Human Rights Watch
published a study in 2016 investigating the ways in which law enforcement authorities
erroneously attribute fatalities that occur while in police custody to suicide, natural causes of
death, or other analogous circumstances. The Supreme Court of the United States has always
paid special attention to the issues of police brutality and the preservation of individual rights
in its many judgements.

The Supreme Court said as follows in Prakash Kadam Vs. Ramprasad Vishwanath Gupta,
(2011) 6 SCC 189, Police officials are responsible for maintaining order and enforcing the
law. We believe that lawbreakers on the street should get the standard penalty, whereas
officials who breach the law while acting dishonorably should be subject to a far more severe
punishment. There seems to be no decline in prisoner fatalities despite numerous decisions
from this Court and, presumably, the High Courts, as stated in the Supreme Court’s
judgement in Re Inhuman Conditions in 1382 Prisons versus State of Assam, AIR 2016 SC
993. This government’s apparent lack of concern for its citizens’ security and freedom,
especially those who are incarcerated, is appalling. No one seems especially driven to find a
solution, despite the fact that there has been plenty of time to do so. With the recent murders
of persons of color at the hands of white police officers and the growing number of deaths

22
Nirmal Singh Heera, A., and N. Prabhavathi. "Police Brutality and Custodial Torture in Technological Era:
Need for Anti-Torture Law in India-A Critical Analysis." Indian Journal of Forensic Medicine &
Toxicology 15.2 (2021).

17
related with policing in general, several questions have been raised about how to properly
handle racial minorities within the context of the criminal equity framework. Some experts
believe that if government data were centralized in line with Congressional directives, it
would significantly minimize the amount of time required to find a solution to the poor
connection between the police and the general public. Even looking at the international
aspects, there has been widespread interest amongst those in positions of power and early
users of internet technology in the total number of persons who have died while in police
custody, in transit, or in prison.23 How does that number compare to the total number of
persons of all races and ethnicities killed by police each year? There has been no response to
these inquiries, and no one seems to know why. However, despite the fact that the Death in
Custody Reporting Act of 2013 was passed by parliament which introduced a measure to
reinstate a legislation that expired in 2006 and required quarterly reporting on deaths that
happened while the state was acting as legal guardian. The new law mandates that all state
and local law enforcement agencies report to the Attorney General “data with respect to the
passing of any individual who is kept, in custody, or is currently being captured, is on the
way to be imprisoned, or is detained at a metropolitan or area prison, state jail, state-run
training camp jail, training camp jail that is contracted out by the express, any state or nearby
agreement office, or other nearby neighbor.” It is unclear how widespread an issue the United
States has with guardianship deaths, as Nadler and Bass note. Issues in the Act’s execution
have been documented in a 54-page study by the Justice Department’s Office of the Inspector
General. “will be postponed until at least FY 2020,” the memo states of state-level data
collecting. By September 30, 2020, the current fiscal year will have ended. For this report to
be timely under DCRA, it had to be sent to lawmakers by December 18, 2016 (exactly two
years after the report’s initial delivery date), and a report released in December 2018 stated
that the Justice Department “does not have plans to submit a necessary report that examines
aftereffects of an assessment on DCRA [Death in Custody Reporting Act] information.” If an
organization does not have access to a centralized database containing management data, it
will likely create one on its own. A database of Fatal Confrontations was created to
memorialize those who lost their lives in police interactions. On June 1st, Authorities updated
their database of police shootings to better inform the public. The judicial system and society
as a whole are affected. When someone is tortured, it forges an unhealthy bond between them
23
Mishra, Jitendra. "CUSTODIAL ATROCITIES, HUMAN RIGHTS AND THE JUDICIARY." Journal of the
Indian Law Institute 47.4 (2005): 508-521.

18
and their abuser that leaves them feeling powerless, defenseless, and terrified. Or, to give it
its true name, the destructive loop. This is the crunch time; the real test begins now. Some
people seek out suicide techniques on purpose so they may avoid having to live with the guilt
and regret that would come with their actions once they’re dead. Some individuals are killed,
either intentionally or by accident, and then abandoned. Torture has both practical and
psychological ramifications, the level of which varies widely from person to person and from
technique to technique, regardless of whether or not they are liberated from it. Depending on
the methods used, the scars of cruelty may not become apparent for a very long time. Some
treatments may cause scars on the skin, but inside damage like amputation or organ failure
might be far more damaging. Dwelling on one’s sorrow, remembering bad memories, being
emotionally disconnected, avoiding social connection out of fear of losing the past, and
feeling terribly despondent are all symptoms of post-traumatic stress disorder, which has
been identified by counsellors and other experts in mental health. Extreme force and violence
have unfortunately become the norm while questioning or investigating claims. Section 51 of
the Criminal Procedure Code stipulates that an individual detained by law enforcement must
be informed of the circumstances behind their detention and provided with instructions. In
addition, Section 41 of the CrPC specifies circumstances under which a warrant is not
required to apprehend a suspect; however, in many cases, police have thrown suspects in jail
on the appearance of doubt, then brought in outside assistance for further investigation,
without first confirming the basis for their suspicions. Sometimes, police hold defendants for
more than 24 hours without a formal hearing or the chance to consult with an attorney.
Human Rights Watch found that police do not adhere to these legal conditions because they
believe that 24 hours is insufficient to get information from a suspect. Those who are
incarcerated for any length of time often commit themselves because of the unbearable guilt
and pain they experience.24 While only a Judicial court is authorized to record confessions
and statements extracted against a person’s will according to Section 164 of the Criminal
Procedure Code, the police have resorted to harsh means, including exposing their observers
to torture, in order to extract information (CrPC). Measures to prevent custodial misery and,
in fact, such brutality, as well as those to reduce the occurrence of custodial deaths as much
as is possible in different settings, have been proposed as potential answers to this problem.
Reasonable precautions against accidents and self-destruction are incorporated. In order to
24
Arora, Nirman. "Custodial torture in police stations in India: A radical assessment." Journal of the Indian Law
Institute 41.3/4 (1999): 513-529.

19
accomplish these goals, effective frameworks and tactics for providing prompt and effective
therapeutic support when required have been developed. Providing context for these
happenings may be a powerful tool for shifting people’s perspectives. In hospital settings, the
various suggestions may help cut down on fatalities and pain. The Supreme Court and the
National Human Rights Commission have been in the forefront of India’s fight against
torture in jails. The Supreme Court justices are quite worried about the widespread accounts
of police brutality and torture. The Supreme Court of India ruled that the use of the third
degree by police officers is a violation of Article 21 of the Indian Constitution in [Kishore
Singh Vs. State of Rajasthan, AIR 1981 SC 625]. If the report’s proposal that “The State
must re-educate the constabulary out of their sadistic skills and teach a respect for the human
being” (emphasis added) is to be taken seriously, officers should set an example rather than
merely be told what to do. Thirdly, no feeling of police brotherhood or in-service comity
should cause the authorities to hide the crime if any of these escort officers are found to have
mis-conducted themselves. Claims like “everything is good with the police, the naysayers are
always in the wrong” are less likely to restore public trust in law enforcement than swift,
honorable action. Beating someone up while they are in police custody is the worst
conceivable crime in our constitutional system and the height of cowardice, in my view. The
problem of arbitrary imprisonment was litigated in the Supreme Court in the matter of
Joginder Kumar vs. State of UP & Ors. (AIR 1981 SC 625). The Third Report of the National
Officers Commission was reviewed, which recommended against making arrests unless
absolutely required. When asked what they would say to those who have been victims of
police brutality, the Supreme Court Justices responded as follows: The officer is not required
to make an arrest if he or she does not believe it is necessary. Holding the ability to make an
arrest is a different matter. However, defending its use is a another story. In order to make an
arrest, the police officer must have probable cause to use discretion outside the scope of his
authority. Having been taken into police custody, a person’s reputation and sense of self-
worth may take a major hit. An accusation of wrongdoing is insufficient for a standard arrest.
Keep in mind the precautionary principle, which argues that an individual should not be
detained unless there are reasonable suspicions that person is implicated in a crime and an
arrest is warranted. The loss of someone’s freedom is a major issue. In light of the
Constitution’s guarantee of individual liberty, the Police Commission’s suggestions make
perfect sense. Someone shouldn’t be detained on suspicion of a crime alone. To make an
arrest, the arresting officer must have probable cause to believe doing so is in the public’s
best interest. An arrest is not required if a police officer instructs you to report to the Station
20
House and remain there until you are released. As stated in [D. K. Basu Vs. State of West
Bengal AIR 1994 S. C. 1349], the procedures to be followed in the event of an arrest or
detention were established by the Supreme Court. There is no legal or constitutional
definition of torture. Using the threat of bodily or mental harm to coerce compliance is a kind
of torture. Many people think of the evil side of human civilization when they hear the term
“torture.” Human rights are violated and the rule of law is compromised when convicts are
subjected to torture or killed. The Supreme Court of India had already issued a ruling on the
matter [D. K. Basu vs. State of West Bengal AIR 1997 SC 610], which might be used in this
scenario as a precedent. Officers are expected to conduct suspect questioning properly and
without using “third degree” techniques. Therefore, it is important to evaluate the
compatibility of Police Officials’ working conditions, training, and orientation with universal
human values. There must be a change made to implement Section 114-B, as suggested by
the Law Commission. When questioning potentially dangerous suspects, police officers
should use caution. The arresting officer is required to write down the details of the arrest,
and a family member must be present. Articles 21 and 22 (1) of the Indian Constitution are
binding on all members of the Indian police force. The person being arrested has the right to
be informed of and given the opportunity to exercise his legal rights. When making an arrest,
the police officer must also follow certain procedures mandated by the court. The Supreme
Court has spoken out against police brutality and the use of handcuffs in the cases of [Sunil
Batra Vs. Delhi Administration AIR 1978 SC 1675], [Prem Shankar Vs. Delhi
Administrative A I R 1980 SC 1595], [Altemesh Rein Vs. Union of India AIR 1988 SC
1768], and [“Sunil Gupta V. State of MP (1990) 3 SCC 119]. The full weight of this
aggressive judiciary’s crackdown has only recently been felt by the police. The burden of
evidence is not on the police to refute that the officer was at fault when a person is killed or
injured while in police custody, according to a recent court ruling.25

Hence, it is clear that Human rights-conscious judiciary is crucial. In a democratic society, it

is the role of the state to safeguard its people and uphold their rights. All arms of the State’s
governmental machinery, including the police, the military, the courts, and the civil
administration, have a responsibility to defend people’ rights, prevent abuses of those rights,
25
Kaur, Jaskaran. "A judicial blackout: judicial impunity for disappearances in Punjab, India." Harv. Hum. Rts.
J. 15 (2002): 269.

21
and promote those rights. When thinking about this, the significance of the police cannot be
understated. Maintaining order and upholding the law are two of the police’s key tasks. To
that goal, it is the obligation of the police to bring people who violate human rights
legislation before the criminal court system. While it is the police’s role to preserve the peace
and serve the community, there are situations when doing so may infringe on the rights of the
people they have pledged to protect. In the line of duty, police personnel are under persistent
time pressure and frequently have unofficial assurances that they may resort to any tactics
needed to attain a desired aim. As law enforcers, however, police officers have a specific duty
to operate in a way that is respectful of individuals’ rights and in compliance with the
Constitution. The Constitution of India is the ultimate legislation of the country, and it
guarantees the rights of every Indian citizen. The “heart” of the Constitution is typically
regarded to be the Fundamental Rights Clause located in Title III. The same basic level
protections are supplied to anyone in this region. Individuals’ rights to liberty, security, and
privacy against government interference are protected. The Supreme Court has, over the
course of its existence, defined and broadened the scope of Fundamental Rights. To
safeguard their rights and dignity, they have fought back forcefully whenever federal
authorities have sought to invade their privacy. The Court has laid forth regulations for police
enforcement to follow. These guidelines apply to both administrative and operational facets
of police work, and they include such topics as case filing, investigation, arrest, detention,
bail, interrogation, and protection of the rights of women, the poor, and the disadvantaged. In
addition to their practical use, they also have legal weight. 1 If a government employee
knowingly or negligently disobeys a court order, the Supreme Court may file charges under
the Contempt of Courts Act of 1971 and the Indian Penal Code.

VII. CONCLUSION AND SUGGESTIONS ON INDIAN CRIMINAL JUSTICE SYSTEM AND THE
CASES OF CUSTODIAL DEATHS
1. Suggestions
Respect for human rights is a hallmark of a well-run state. Human rights are safeguarded and
promoted by the state in democracies. Cops have a critical role here. Order and law are
maintained by the police. Criminals, especially those who violate human rights, must be
brought to justice by law enforcement. Human rights are occasionally violated by police
officers in the course of their duties. Officers are often given unofficial authority to utilise all
means necessary to complete a task while under time constraints. They are obligated by both

22
law and morality to preserve human rights standards while enforcing federal and state laws.
Human rights are protected by the Constitution for all Indian citizens. The Fundamental
Rights part of the Constitution preserves the rights of all citizens.

Since its inception, the Supreme Court has interpreted and expanded the scope of
fundamental rights. Invasion attempts by the government have been rebuffed because of their
insistence that the rights and dignity of all people be respected. As a result of a Supreme
Court ruling, police guidelines have been formed. Case registration, investigation, arrest,
treatment of an arrestee, release on bond, suspect interrogation, and protection for women,
the disadvantaged, and the impoverished are all included in these guidelines.

Custodial violence is a serious problem that has to be dealt with at the state level both in
terms of planning and execution. The following recommendations, if implemented, might
help alleviate this problem, whether or not they are made with appropriate modifications:

● There should be an external team of police officers that may be called upon in
specialised and exceptional criminal cases, once police remand orders have been
sought from the learned judges. If necessary, the Deputy Commissioner of Police or
the area’s Senior/Superintendent Police Officer should be in command of the team in
question.

● An annual physical, mental, and medical examination of the investigating officers is

required to guarantee that only those in good health are assigned to the case. The tests
in question should be carried out in a random fashion, with no prior notice to the
officers, and with the involvement of reputable organisations and authorities.26

● The police officers’ uniforms should be photo-resistant and multilingual. If a member

of the public requests/demands a photo of a police official during an arrest or
detention, that person must be required to show their identity card and allow a photo
to be taken if the arrest or detention is being carried out by officers who do not belong
to the local/area police station (s).

● Torture and other forms of incarceration-related violence should not be excluded from
the scope of the Victim Compensation Scheme, but rather should be evaluated on an

26
Mohit Kumar Gupta, Suggestions to curb menace of Custodial Violence and Brutality: Targeting the ill-
conceived notion of ‘My Area, My Custody, and My Law’ TAXGURU (Nov. 8 2021), https://taxguru.in/corporate-
law/suggestions-curb-menace-custodial-violence-brutality-targeting-ill-conceived-notion-my-custody-law.html.

23
 individual basis by a district legal services authority in the area in question. 27
Custodial violence claims must be investigated and legal assistance must be supplied,
even if a simple request for compensation has been submitted. “Competent Legal Aid
or Assistance” should be the norm and reality in every instance.

● In situations of custodial violence, departmental action within the police must be

exemplary in order to create trust in the mind of the aggrieved person and prospective
aggrieved people of society. No one should think that this approach is incompatible
with the normal course of criminal prosecution in cases of such prison assault.

● According to the judgement in Paramvir Singh Saini v. Baljit Singh & Others 28, the
CCTV cameras must be placed and operationalized in accordance with the specific
instructions contained therein When it comes to implementing CCTV cameras in
police stations, it is imperative that they cover all entry and exit routes, not only
according to the police station’s approved layout plan, but also in accordance with the
structure of the actual building. This will allow for proper co-relation of arrests and
detentions with entries in the daily and general diary/memos. In addition, CCTV
cameras should be placed and continuously monitored in every detention and
interrogation facilities. The GOs (Gazetted Officers i.e., Assistant Commissioners of
the Police and higher) shall supervise the questioning using CCTV cameras. What’s
important here is that after the CCTV cameras are installed, the relevant agency or
organisation must certify that there are no blind spots remaining, unless an officer of
the rank of ADGP/Special Commissioner posted at the Police Headquarters has
explicitly stated that there are no such blind spots.

● Due to the Hon’ble Bombay High Court’s decision in Pravin Vijaykumar Taware v.
the Special Executive Magistrate29, the government’s SEMs require thorough training
and orientation, and capacity building should be implemented to ensure proper
evaluation is made before remanding the accused to judicial custody or magisterial
custody. It is important to remember that a single day in prison might be a lifelong
trauma that can’t be remedied with medication or other treatments, thus punitive
theory should be used with prudence.

27
Kamlesh Kumar, Custodial crimes in police custody: causes, consequences and preventive measures,
SHODHGANGA (2009), https://shodhganga.inflibnet.ac.in/bitstream/10603/2714/11/11_chapter%202.pdf.
28
Paramvir Singh Saini v. Baljit Singh & Others, SLP (Criminal) No. 3543 of 2020.
29
Pravin Vijaykumar Taware v. the Special Executive Magistrate, Case No. 2682/2008

24
 ● First-class or second-class magistrates or metropolitan magistrates must always
request and sign the appropriate entries of the case diary of the investigating officer, if
an application is made for police or judicial detention. Whether or not any police
officer(s) in custody were involved in inflicting the injuries on the body of the
accused, the learned magistrate must personally assess and undertake further
investigation, if necessary, in order to determine whether or not the accused needs
medical attention before he or she is remanded or granted bail. There should be no
reluctance on the part of knowledgeable judges to oversee inquiries, and the cause of
convenient justice should be pursued in every respect, not least in court, with strict
regard to the norms of natural justice. As soon as a suspect is taken into custody, he or
she should be examined for any signs of a medical condition. In the event that it is
discovered, appropriate medical care must be administered very away. During the
course of a prisoner’s time spent locked up, if the offender complains of feeling
unwell, he should be sent to the hospital without delay. In order to be prepared for any
unexpected events that may arise, the police station should always have a first-aid kit
on hand. In a similar fashion, a fire extinguisher needs to be installed in the lock-up as
well.30

● Even in light of the fact that direct recruits to the posts of Civil Judges/Judicial
Magistrates (or Metropolitan Magistrates) are not required to have prior practical
experience, the role played by the judicial academy in imparting rigorous training in
aspects of court administration and craft, technical know-how, people dynamics, and
law and its procedures cannot be understated.31

● Magistrates, who are both police and judicial remand officers, must be particularly
careful. For an accused individual to be remanded into police custody, the Magistrate
must make certain that their constitutional and statutory rights are not violated. It is up
to the Magistrate, as a guardian of the accused’s rights, to take the initial move in this
respect if the same occurs. Whether an accused person has been arrested or has been
released from police custody, it is the Magistrate’s job to question the suspect about
whether or not he has been subjected to any type of violence while in police custody.

30
Human Rights Watch, “Bound By Brotherhood” India’s Failure to end Killings in Police Custody,
COMMONWEALTH HUMAN RIGHTS INITIATIVE (Dec. 2016),
https://www.humanrightsinitiative.org/in-the-news/human-rights-watch-publishes-report-on-deaths-in-indian-
police-custody-chri-contributes-to-study.
31
The Hindustan Times, Supreme Court Directive on Custodial Death 6 Nov. 1993 (New Delhi).

25
 As noted in the case of Sheela Barse v State of Maharashtra32 “We would direct that
the Magistrate before whom an arrested person is produced shall enquire from the
arrested person whether he has any complaint of torture or maltreatment in police
custody and inform him that he has right under section 54 of the Code of Criminal
Procedure 1973 to be medically examined. we are giving a specific direction requiring
the Magistrate to inform the arrested person about this right of medical examination in
case he has any complaint of torture or maltreatment in police custody. We have no
doubt that if these directions which are being given by us are carried out both in letter
and spirit, they will afford considerable protection to prisoners in police lock ups and
save them from possible torture or ill- treatment.”

● Sections 25 and 26 of the Evidence Act, which only apply to police officers, should
be broadened to include all public officials with the authority to make arrests and hold
people in custody indefinitely. S. 27 of the Act (until it is abolished as per our first
choice) should likewise be extended to these public officials if our suggestion is
implemented.33

● It is imperative that a particular provision be added to the Code of Criminal Procedure

to guarantee that claims of custodial crimes be investigated promptly, effectively, and
independently. While at the same time, I would not propose recommending the
formation of a new agency for this reason. Even assuming that administrative issues
would not occur, a new agency may not be possible due to budgetary constraints.
When a police officer refuses to record a custodial (cognizable) offence, a researcher
proposes a plan in which a judge may undertake a preliminary investigation and then
order the filing of a complaint before a magistrate if he or she is convinced that such
action is necessary. Court of Session in cases of (alleged) custodial death and Chief
Judicial Magistrate in cases of (alleged) custodial offences that did not end in death
would be the proper judicial authorities. S. 154-A should be included to the Code of
Criminal Procedure, 1973, according to the researcher’s recommendations.
Alternatively, the Court of Sessions or the Chief Judicial Magistrate (depending on
the circumstances) may instruct the Ministerial official to file a complaint in the
manner outlined above, if they are of the opinion that such action is necessary.34

32
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
33
The State of Rajasthan v. Mst. Vidhyawati And Another, AIR 1962 SC 933.
34
Bharat Bhushan v. State, 1986 Cri LJ 1624 (Del).

26
27
 2. Conclusion
In certain cases, the methods do not justify the ends. In appropriate instances, police officers
have a legal obligation and a lawful right to arrest a criminal and question him throughout the
course of an investigation. However, this process of questioning and inquiry must adhere to
the letter and spirit of the law. To investigate a crime, police cannot expose an individual to
humiliation or torture. Most people have never heard of or witnessed the benefits of “third
degree” approaches.35 Such activities have no place in a welfare state. Violence in the custody
of a guard is an insult to human rights. Civilized nations are tarnished by this practise. The
criminal justice system is in danger of collapsing if the malady is allowed to spread. An FIR
or a written complaint may be used by the victim of police custody abuse to bring charges
against the officer who perpetrated the abuse. A Magistrate’s position in this article, on the
other hand, focuses exclusively on situations in which the same does not occur.

Even though the IPC and the Police Act provide criminal penalties for custodial assault, they
have been shown to be ineffective. Custodial police abuse is not explicitly addressed under
the criminal code. Custodial abuse disproportionately affects people from the poorest
socioeconomic groups. They are reluctant to use the various legal options and risk a
confrontation with the police. All police personnel who commit misconduct cannot be
prosecuted because of a legislative necessity for punishment. Of course, limited prosecution
is feasible. Contempt is also a possibility. However, in order to effectively combat this threat,
author believes that specific legislation is required that defines torture and establishes an
independent institution tasked with investigating claims of police abuse. Inquiries and trials
on allegations of incarcerated torture must follow a certain set of rules set out by the law.

Recently, Former Indian Law Minister Ashwani Kumar filed a PIL. The Supreme Court left
the Legislature to approve a bill. The application supposes to be “an attempt to further expand
and enhance the institutional framework for minimizing custodial death and custodial torture,
provide intrinsic and substantial safeguard to citizens and public to minimize such
transgressions.”36 As a result, we are keeping a keen eye out for any additional developments
on this matter, whether they come from the legislative or the judicial branches.

35
Naresh Mahipal, The Protection of Human Rights Act 1993 (No. X of 1994), Expert Column
(2009), http://expertscolumn.com/content/protection-human-rights-act-1993-no-x-1994. 
36
Law Commission of India, Implementation of United Nations Convention Against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment Through Legislation, Report No. 273 (Oct. 2017).

28