Caste based custodial violence : A State sanctioned

Tool
SUBMITTED TO
CHANAKYA NATIONAL LAW UNIVERSITY

FOR THE PARTIAL FULFILLMENT OF

LLM COURSE – COLLECTIVE VIOLENCE

Supervised by

Prof. Preety Anand

Submitted by

Rashmi Singh
Roll No - 459

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 Acknowledgement

Writing this research project has been fascinating and extremely rewarding. I would like to
thank several people who have contributed to the result in numerous ways.

To commence with, I express my sincere and deepest gratitude to my faculty and supervisor,
Prof. Preety Anand, for her immense support and guidance throughout the course of my
research. She has played an instrumental role in the development of this research work. While
she allowed this paper to be worked upon independently, she steered me in the right direction
whenever she thought it was needed. I will forever be thankful for her patience and motivation.
I am also thankful to my family and friends for their constant support and encouragement
during this research.

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 Contents

Abstract ........................................................................................................................................... 4
Introduction ..................................................................................................................................... 5
Research methodology..................................................................................................................... 8
Earlier reports of custodial death and torture in India .................................................................. 9
Torture: Definition and Practices ................................................................................................. 11
Causes assumed for using torture by law enforcement ................................................................ 12
Most vulnerable sections to custodial torture and death: ............................................................ 13
Lack of intervention by legislature and Impunity of the police ................................................... 15
Statistics on Custodial and Judicial Violence in India ................................................................. 17
What do Courts have to Say? ........................................................................................................ 18
Recent Cases .................................................................................................................................. 20
Observations, suggestions, and solutions ...................................................................................... 22
Conclusion ..................................................................................................................................... 25

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 Abstract

“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.”1

An important articulation of the subject matter has been seen in a judgement in which the
Supreme Court observed,

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of
law, which demands that the powers of the executive should not only be derived from law but
also that the same should be limited by law. Custodial violence is a matter of concern. It is
aggravated by the fact that it is committed by persons who are supposed to be the protectors of
the citizens. It is committed under the shield of uniform and authority in the four walls of a
police station or lock-up, the victim being totally helpless. The protection of an individual from
torture and abuse by the police and other law-enforcing officers is a matter of deep concern in
a free society.” [DK Basu v. State of Bengal (1991) 1 SCC 416]

1
[Joginder Kumar v. Uttar Pradesh (1994) 4 SCC 26].
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 Introduction

To what extent can impunity and oppression be quantified? An answer can be found in the
chambers of the Lok Sabha, where the Union government shared data on the rise of custodial
deaths in India. At least 4,484 people died in police custody over the last two years, with the
state of Uttar Pradesh recording the highest share of custodial deaths. Overall, India’s
documented custodial violence has steadily increased, with there being at least 2,544 cases in
the last year itself. Between 2001 and 2020, at least 1,888 custodial deaths were reported
in India; out of the 893 cases registered against police personnel, only 26 policemen
were convicted during the period, according to the National Crime Records Bureau’s
data.

The data was presented by Union Minister of State for Home Affairs Nityanand Rai in
response to a question by Indian Union Muslim League Minister of Parliament Abdussamad
Samadani.

As per the Data shared by the Ministry of Home Affairs in response to a question in Lok
sabha these were the Total Custodial Deaths in India State wise with Uttar Pradesh leading
followed by states like Bihar, Madhya Pradesh, and Maharashtra.

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These numbers are conservative estimates of the degree of violence and torture that forms the
rot in incarceration in India. Versions of this reality have been documented in different ways:
at least 90 people die in police custody annually, which means at least one person dies in
police custody every five days, as per a 2019 report. In April, a 25-year-old man was arrested
in Chennai for possession of marijuana, and died the next day; experts alleged it was a case of
custodial torture. In June last year, Ambadipudi Mariyamma, a 40-year-old woman from the
Mala caste, was arrested in a robbery case and later died allegedly due to custodial torture.
Activist Stan Swamy a Catholic Priest who defended the rights of marginalized groups died
in custody last year; with many calling it a “custodial murder” and pointing out the “inhuman
treatment” he was subjected to.

Specific individual deaths when enumerated tell a morbid tale of how power intersects
with caste, class, and religious exploitation — and how people continue to valorise these
displays of oppression. It also speaks to the consequences of leaving state-sanctioned forms
of violence unchecked, calling for a re-evaluation of our justice system and the arm of the
law itself.

It is important to note who is the subject of incarceration too; reports have increasingly
shown it is people from Scheduled Castes, Scheduled Tribes, Other Backward castes,
and Muslim communities are more likely to be arrested and kept in custody.

The current iteration of this wilful neglect tells us two things. One, the systems of punishment
betray the degree to which state violence is normalized and used as a tool of silencing. “The
high incidence of death in custody demonstrates complete acceptance of violence as the
universal first response used in investigations at police stations,” said Maja Daruwala, chief
editor of the India Justice Report and adviser to the Commonwealth Human Rights Initiative.
“It also signals acceptance of illegality and impunity within the force by those with the
responsibility of supervising the force.” Other rights groups have noted that torture remains a
routine practice in police interrogations, and deaths become an “unintentional consequence”
in many cases.

The method of torture remains unscrutinised because of the cultural misconception

around prisons holding “bad people”; “it is okay to treat bad people badly,” the social
conscience mistakenly remains. There is impunity and incompetence too (if custodial
violence has no consequences, it becomes the preferred way for police officials to resort to

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these methods over the long-drawn process of investigation. Saumya Dadoo, the founding
editor of Detention Solidarity Network, also told The Swaddle: “it’s important to note that
prisons are also patriarchal institutions — this is not to say that it is only men who
abuse their power — it means that prison spaces embody aggressive masculinity which
leads to violent behaviour.”

Two, and more worryingly, it shows how neglect and wilful incarceration conspire to result
in needless deaths — a landscape where the easiest way to dehumanize people marginalized
by class, caste, and religion comes through violence and torture. In these spaces of
confinement, the power dynamic between people who hold state authority and those arrested
on spurious grounds allows for human rights violations.

India’s Supreme Court has described custodial deaths as “one of the worst crimes in a
civilized society governed by rule of law,” reiterating the need to address the menacing
persistence of state violence behind bars. The court did take note of the macabre reality, and
in a landmark judgment in 2015 directed police stations to install CCTV cameras, but the
implementation has proven wanting as many defy court orders. In many cases, custodial
deaths lack evidence of torture, with police officials citing “disappearances” of CCTV
footage, warrants, memos, diary entry, interrogation records, recoveries.

Daddoo noted the need to distinguish between abuse that happens due to the system itself,
and abuse that draws from oppressing the person’s identity. “The criminal justice system
targeted towards certain communities – namely poor people, people who are Dalit, Bahujan,
and Adivasi, and like all of society, is also disproportionately violent towards women, gender
minorities, and people with disabilities. In other words, prisons reproduce many of the forms
of oppression and dehumanization of certain groups that we see in society that would be
understood as human rights violations and because of the lack of impunity endemic to such
spaces, these violations are part of the culture of these spaces,” she said.

The recent data once again bolsters concern human rights activists raise that India, despite a
consistent rise and cases in custodial deaths, still hasn’t criminalized custodial violence.
“Custodial deaths should be considered murders unless proven otherwise. But for that to
happen, we Indians must stop being proud of murderous cops (sic),” noted author Kavita
Krishnan.

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 Aims & Objectives
• To examine the history of police brutality, death under custody;
• To inquire into which sections of society are vulnerable to illegal detention and abuse;
• To identify violation of human rights in police custody using relevant statistics;
• To explore foul play, legal loopholes and impunity enjoyed by the police in such cases.

Review of Literature
For the purpose of this study, the researcher has consulted vast literature, various judgments
delivered by courts, reports of Law Commission, collected relevant data from published
sources. The researcher also relied on the Bare Act judicial pronouncements, research article
and journals AIR, SCC, Cr. L.J., journals of Indian Law Institute (ILI) etc. The researcher
took help of internet also.

Research methodology
This research is based on information that has been already available and analysed those facts
to make an evolution of this research. The author in this research paper have used basic,
analytical and descriptive research. Various reports, articles, legal provisions and case laws
will be used to study and prepare the present work.

The researcher in his research work has opted for doctrinal methodology. A uniform mode of
citation is followed throughout the project.

Limitations of Research
Due to time constraint the research will be limited to specifically mentioned cases and
provisions only.

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 Earlier reports of custodial death and torture in India

In pre–independence India, Under the Regulation of 1816 police officers were authorized under
all revenue functionaries and routinely involved with revenue collectors for extortion of
revenue and delay in payment of taxes. The testimonies and evidence of torture were so
many and so serious that it was discussed in the British House of Commons as well, thus,
establishing the Torture Commission of 1855. The commission found conclusively that
“personal violence practiced by the native revenue and police officials generally prevails
throughout the Presidency, both in the collection of revenue and in police cases.” They also
held that the law-and-order administration in the province was in a bad shape. The remedies
they suggested included a “moral agency” (European) at appropriate levels, separation of the
judiciary from the executive and, more importantly, that of the police from the revenue. The
commission went on to suggest major reforms in the organisation of the police as an
independent agency.2 These reforms were the first of its kind on the subject.

The Law Commission Report of 1985 cited the case of State of U.P v. Ram Sagar Yadav [AIR
1985 S.C. 416] wherein a farmer, falsely accused of cattle trespass by his neighbour over a
dispute, was allegedly threatened for bribes by the concerned police officer, who then, at first,
relented but then reported this incident to the police station which as a response appointed
another officer to inquire into the farmers allegation against the officer. The police officer in
charge of the enquiry arrested the farmer and tortured him severely, within 6 hours of the
registering of the initial case the farmer then succumbed to his injuries and died. This matter
was then taken up to the Apex court which then acknowledged the advent of custodial death
and torture as well as the indemnity enjoyed by police officials, saying,

“Police officers alone and no one else can give evidence regarding the circumstances in which
a person in their custody comes to receive injuries. Bound by the ties of brotherhood, they often
prefer to remain silent in such situations and when they choose to speak, they put their own
gloss upon facts and pervert the truth”.

2
P. Jegatheesan, Law and Order in Madras Presidency, 1850-1880 (1987).

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According to a previous Amnesty Report of 1992, approximately 415 people died in the
custody of police and security forces due to torture between 1st January 1985 to 1st November
1991. In all these 415 cases, the detainees including women and children, were beaten, and
tortured till they died. The report also states that laws pertaining to this phenomenon are
commonly flouted, specifically section 176 of the Code of Criminal procedure which makes
an investigation by a magistrate obligatory in all cases of deaths in police custody. Thus, in all
415 cases of custodial death between 1985 to 1991, only 42 magisterial enquiries and 20
judicial enquiries were conducted. 3

The Nation Crime Records Bureau has recorded 591 cases of death in police/judicial custody
between 2010 and 2015, with the reasons of death commonly cited as suicide, death during
hospitalization or natural death/illness. Between 2016 and 2018 reports by NCRB 265 deaths
were recorded with 0 convictions by the state.4

The Law Commission Report of 1985 strictly citing the Apex Court’s verdict in the case
of State of Up v. Ram Sagar Yadav [AIR 1985 S.C. 416], suggested changes to the Indian
Evidence Act, 1872 pertaining to section 114 of the act. As said in the report on the dire need
of reform,
“The general principles deductible from the sections of the evidence act, 1872, is that it is for
the prosecution to prove the essential elements of the offence charged and if those essential
elements are proved, it is for the accused to prove that the case falls within the general or special
exceptions to the criminal liability recognized by the criminal law. In certain special situations,
this position does undergo modifications. For e.g., where a particular fact is within the special
knowledge of a person it is for him to prove it. As the law stands at present however, there is
no special provision as to the burden of proof where the injuries were received by a person in
police custody.”5
In the working paper provided by the commission in response to this social concern, a broad
outline of a provision which has still yet not been inserted in the Evidence Act of 1872, as
section 114B was put forth stating,

3
https://www.amnesty.org/download/Documents/192000/asa200061992en.pdf.
4
https://ncrb.gov.in/hi.
5
113th report of the law commission of India on “Injuries in police custody – suggested section 114B, Evidence
Act.” Dated 29th July,1985.

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“Section 114B (1) In a prosecution (of a police officer) for an offence constituted by an act
alleged to have caused bodily injury to a person, if there is evidence that the injury was caused
during a period when that that person in the custody of the police, the court may presume that
the injury was caused by the police officer having custody of that person during that period.”
The government itself had acknowledged in Rajya Sabha that 46 persons had already died in
police custody due to torture within 3 months, i.e., January – March 1993 in Delhi alone6. This
situation gives a glaring effect on the situation in tribal and minority communities far from the
capital.

Torture: Definition and Practices

Torture (from Latin tortus: to twist, to torment) is the act of deliberately inflicting severe
physical or psychological suffering on someone by another as a punishment or in order to fulfil
some desire of the torturer or force some action from the victim.7 The purpose of torture is
not just severe trauma but a deliberate and systematic dismantling of a person’s identity and
humanity through physical or psychological pain and suffering.8

Usage of torture by law enforcement personnel for aiding in solving cases are a routine practice
which come under other titles such as “questioning”, “sustained interrogations”, “extra judicial
executions” etc. however these practices by the police exhibit various tendencies of going
overboard with such third-degree techniques. NCAT recorded that torture methods used by the
police also included hammering iron nails in the body (victims: Gufran Alam and Taslim
Ansari of Bihar), applying roller on legs and burning (victim: Rizwan Asad Pandit of Jammu
& Kashmir), ‘falanga’ wherein the soles of the feet are beaten (victim: Rajkumar of Kerala),
stretching legs apart in opposite side (victim: Rajkumar of Kerala), hitting in private parts
(victims: Brijpal Maurya and Lina Narjinari of Haryana), stabbing with screwdriver (victim:
Pradeep Tomar of Uttar Pradesh), electric shock (victims: Yadav Lal Prasad of Punjab; Monu
of Uttar Pradesh), etc.

6
The Hindustan Times.
7
https://en.wikipedia.org/wiki/Torture#cite_note-1.
8
https://healtorture.org/faqs/what-torture.

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 Causes assumed for using torture by law enforcement

This information was provided by police officers in an interview on the condition of anonymity
and answers are limited to their perspective:

• Inadequate strength of police forces compared to increase in rate of crime. Their task is
overwhelming which goes far beyond the duties of enforcing law and controlling crimes.
They hardly find adequate time for proper investigation and detection of crime so the
adoption of third-degree techniques become inevitable.
• Hardened and professional criminals understand the language of violence only. Third degree
methods are the only way to acquire any information from them.
• There is no harm in using violence (apathy) against criminals like dacoits, terrorists, and
arsonists as they do the same to others in society.
• Apathy with respect to their rights due to the nature of their crimes and their backgrounds.
• The legal procedure is very complicated and always in favour of criminals. The police have
to work under heavy legal odds. They have to establish the crime in the court beyond doubt.
This leads to solving of the case “by any means”.
• Presence of virtually no facility for scientific investigation and detection of crimes in most
police stations. Also leaving no choice but to use third degree methods.
• People want the police to prevent and control crime but are unwilling to cooperate. They
seldom give witness against the criminals. So the police have to elicit information about the
crime from the criminal concerned which is seldom voluntary.
• People expect the police to give corporal punishments to the criminals as an act of “teaching
them a lesson”. 9

Apart from these, other influential causes are colonial era use of violence, the media in
exaggerating crimes sparking public demand and political pressure of the mistreatment and
encounters of criminals and apathy of the executive branches towards such cases.

9
Saini, R. (1994). CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA.
Journal of the Indian Law Institute, 36(2), 166-192. Retrieved July 20, 2020, from
www.jstor.org/stable/43951530.

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 Most vulnerable sections to custodial torture and death:

The most vulnerable groups in society are the poor and marginalized. Unfortunately, this
applies to the majority of the cases of the death and torture in police custody as well.

The NCAT report states this as a fact, saying SC’s (Scheduled Castes) and ST’s
(Scheduled Tribes) face caste/ethnic based violence by the police/security forces as well
as by the upper caste/general category people, that majority of the victims of police
torture belonged to the poor and marginalised sections of the society who are often the
soft targets because of their socio-economic status. The NCRB has registered 50,291 cases
of crimes against SCs in 2020 over 45,961 cases in 2019, however several cases against SC’s
and ST’s go unreported as well.

NCAT documented 13 cases of death of Dalit and tribal people in police custody during 2019.
These included eight tribals and five Dalits. Out of the deaths of 125 persons in 124 cases of
deaths in police custody documented by NCAT in 2019, 75 persons or 60% belonged to the
poor and marginalised communities. These included 13 victims from Dalit and tribal
communities, 15 victims belonged to Muslim minority community, 37 victims were picked up
for petty crimes which indicate their economic status, three were farmers, one was labourer,
one was a refugee, two were security guards, one was a rag-picker and two worked as drivers.

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These communities are usually provided no adequate aid either, owing to their weak financial
status and illiteracy or ignorance of pursuing legal remedies. Thus, it’s safe to assume that
though painted necessary for crimes in big cities, the resulting echo of these malpractices
severely impact the safety and dignity of the vulnerable as well.

Women and children in custody:

The treatment of women and children in custody is no less concerning, women in police
custody always have the threat of rape and sexual assault along with other forms of physical
torture, not only from police officials but also male inmates, and even more so if they are of
lower caste or economically disadvantaged. For example, a 35-year-old Dalit woman was
allegedly illegally detained, subjected to torture and was raped in police custody by nine
police personnel at Sardarshahar police station in Churu district, Rajasthan. Beside
custodial rape, the victim was also allegedly subjected to torture including plucking of her
nails. 10
A parliamentary panel in 2017 expressed concern over the high occurrences of custodial rape
cases in Uttar Pradesh, from where over 90 percent of such cases in the country were
reported.

NCRB’s official website does not data on this after 2013.

The panel looked at data from 2015 in its report on “Women in Detention & Access to
Justice” in which, 95 cases of custodial rape were reported from UP, followed by two cases
from Uttarakhand and one each from Andhra Pradesh and West Bengal.

During 2019, the death of at least four women in police custody was reported, the NCAT
said.

In response to this the Criminal Law Act, 2013 of the IPC provides a ground for punishment
in case of rape/molestation by a police officer wherein whoever,

1. Being a police officer, commits rape-

2. Within the limits of a police station to which the police officer is appointed; or

10
Rajasthan: Dalit Woman Gang Raped in Police Custody, The Wire, 16 July 2019,
https://thewire.in/rights/rajasthan-dalitwoman- gang-rape-police-custody.

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 3. In the premises of any station house; or
4. On a woman in such police officer’s custody or in the custody of a police officer
subordinate to such police officer; or
5. Being a public servant, commits rape on a woman in such public servant’s custody or
in the custody of a public servant subordinate to such public servant;
m) while committing rape causes grievous bodily harm or maims or disfigures or endangers
the life of a woman; shall be punished with rigorous imprisonment for a term which shall not
be less than 10 years, but which may extend to imprisonment for life, which shall imprisonment
of the persons natural life, and shall also be liable to fine.11
Even with such provisions in place, women in these vulnerable conditions are usually forced
to live with the trauma and continue on with their lives as they see no hope or way in pursuing
legal action against the men in uniform. These conditions further aggravate the despair of
sexual violence against women in the country even more so when the perpetrators are those in
uniform and under oath. Unfortunately, they are no such remedies for the cases which go
unreported.

Children are also next in line to be victims of grave torture in custody especially due to the lack
of implementation of the Juvenile Justice (Care and Protection of children) Act, 2005. This
usually results in several juveniles being illegally detained and tortured. The NCRB in its
annual report of 2018 also reported 3,164 cases of simple and grievous hurt against children
by the police on 3,467 minors. This is a shocking fact considering children who have not yet
been developed to the capacity of adults still have had to experience such a traumatic and life
changing thing by the very ones who should do the most to protect them in lieu of the future of
our nation.

Lack of intervention by legislature and Impunity of the police

There exist several regulations and code of conducts to demand accountability and proper use
of authority by the police, however, that can only be called naïve considering a great long
culture in the police authorities to use and ignore those laws which are convenient to them or
their case with no one to question them.

11
S. 376 (2).

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Under the Criminal Law (Amendment) Act, 2018,

1. When any person who is or was a Judge or Magistrate or a public servant not removable
from his office save by or with the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or purporting to act in the discharge
of his official duty, no Court shall take cognizance of such offence except with the
previous sanction
2. in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of the
Union, of the Central Government;
3. in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a State,
of the State Government.12
This means that no police officer or public servant can be arrested for any criminal activity
he/she be accused of doing while they are assumed to be acting out their duty, without a
sanction of the central or state government.

Given below is the data released by the National Human Resources Commission for the
month of April 2021 in regard to the complaints registered for custodial violence:

Nature of Incidents No. of cases Disposed Pending

Registered

CUSTODIAL DEATH (POLICE) (Inc. 13 8 301

Code 807)

CUSTODIAL DEATH (JUDICIAL) (Inc. 178 151 3029

Code 301)

12
S. 197 (1)
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 Statistics on Custodial and Judicial Violence in India
Between 2015-2019, 36% of deaths by suicide in police custody have been reported

2014 onwards, physical assault by police has been recorded in only 6% of the cases

In the last 10 years, 403 of 1,004 deaths (40%) in police custody are listed as due to
“Hospitalisation/ Illness/ Natural deaths” – a majority of such deaths

As per the Crime in Indian Report 2019 released by the National Crime Records Bureau, the
following have been the major reasons for custodial deaths in 2019:

There are several cases of custodial death wherein the corpses of the victims are incinerated
before families were allowed to see the corpse, and the police tamper or dispose of all
remaining evidence before any substantial case or FIR can be filed against them or their
subordinates. It is an evil that’s been rotting the system for several years and has only seem to
have gotten worse.

Statistics on Police Conviction in India

As many as 1,888 custodial deaths were reported in India in over the last 20 years, 893 Cases
registered against Police Officers and 358 Police Personnel charge sheeted. However only 26
Policemen were convicted during this period. The official record compiled from the National
Crime Records Bureau’s (NCRB) annual Crime in India reports from 2001-2020 assumes
significance in wake of the custodial death of Altaf from UP after he was detained for missing
complaint of minor girl in UP.

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 What do Courts have to Say?

The Courts have highlighted time and again that the Constitution is a great landmark of
human liberty, and it should serve its purpose of ensuring human dignity, human
survival, and human development. It highlights that the State must strive to give a new
vision and peaceful future to its people where they can cooperate, co-ordinate and co-exist
with each other so that full protection of Article 21 of the Constitution is ensured and
realized.

Article 21 strictly lays down that, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”

But this procedure not only refers to the enacted law but also extends to the principle of
natural justice.

Article 21 is not a mere platitude or dead letter lying dormant, decomposed, dissipated and
inert. It is rather a pulsating reality throbbing with life and spirit of liberty, and it must be
made to reach out to every individual within the country. It is the duty and obligation of the
State to enforce law and order and to maintain public order so that the fruits of democracy
can be enjoyed by all sections of the society irrespective of their religion, caste, creed, colour,
region, and language.

Third-Degree Method is unconstitutional – Kishore Singh Vs State of Rajasthan13

One of the petitioners, in a telegram to one of the Judges of this Court complained
of insufferable, illegal solitary confinement. He also complained that he was kept in iron
fetters along with the other two petitioners. The Hon’ble Supreme Court of India in this case
held that the third-degree method used by the police to be in violation of Article 21 of the
Constitution. The Court has also directed the government to educate the police to inculcate
respect for the human person. It is rather very unfortunate that even after 39 years of this
principal judgment, the number of deaths did not reduce, instead, it paced up.

Compensation by State – Phoolwati Vs NCT of Delhi14

13
Kishore Singh Vs State of Rajasthan 1981 SCR (1) 995.
14
Phoolwati Vs NCT of Delhi 2000 Cri LJ 1613: (2000) 84 DLT 177.

18
In a writ petition whereby the petitioner Phoolwati claims compensation on account of
custodial death of her husband Jaswant Singh.

In this case, the Court held that the petitioner, wife of the deceased, can claim compensation
by invoking Article 226, making the State vicariously liable for acts of police personnel.
Hence, the Court directed the State Government to pay compensation to the petitioner.

Fair investigation by the CBI in matters of custodial deaths – Moheela Moran Vs State
of Assam15

The Court in this case highlighted that there is an increasing regularity in referring cases of
custody death to the CBI, since it is not seen as realistic to expect that the police will carry
out an unbiased investigation in a matter where the police are themselves in the dock. It was
seen in this case that there was no proper investigation in this matter as the police personnel
are involved in the matter to investigate the killing of the son of the petitioner, in police
custody

The prosecution of errant officers is not unknown in law. Courts too may suggest prosecution
where it is not already underway or to leave it open for the state authorities to proceed against
the erring officers both departmentally and criminally. In, and in other cases of custodial
deaths, the court gave the verdict upholding the applicability of the doctrine of vicarious
liability.

The regularity with which the cases of custodial violence and death have reached the courts
has been one of the reasons for the increasing credulity, and lessening disbelief, when
complaints are made of police violence. However, the doctrine of Res Ipsa Loquitur has
been imported into this arena.

Extent of State’s responsibility – State of Andhra Pradesh Vs Challa Ramkrishna

Reddy16

Some persons entered the premises of Sub-jail and hurled bombs as a result of which Challa
Chinnappa Reddy sustained grievous injuries and died subsequently. His son Challa
Ramakrishna Reddy, however, escaped with some injuries. Challa Ramakrishna Reddy and

15
Moheela Moran Vs State of Assam (2000) 2 Gau LT 504.
16
State of Andhra Pradesh Vs Challa Ramkrishna Reddy (2000) 5 SCC 712.

19
his four other brothers along with his mother filed a suit against the State of Andhra Pradesh
claiming a sum of Rs. 10 lacs as damages on account of the negligence of the defendant
which had resulted in the death of Challa Chinnappa Reddy.

The remedy of compensation as a palliative or as it is more frequently being characterized, as

an interim measure is now firmly rooted in the law. Any doubts that might have persisted
about the state’s responsibility for the safety of persons in its custody have now been laid at
rest by the decision of the Supreme Court in this case

Vicarious liability of State – Challa Ram Konda Reddy Vs State of Andhra Pradesh,17.

This affirms the decision of the Andhra Pradesh High Court in this case that an early decision
that went beyond situations of custodial violence perpetrated by instrumentalities of the state,
to the responsibility of the state when persons are held in its custody, even where injury or
death is caused by third persons.

The remedy of compensation has been extended to these situations and it has begun to be
used in a range of other cases of death in custody where the state or its instrumentalities may
not have been directly the cause of the harm caused. Excessive, or unwarranted, use of force
by the police constitutes a ground for seeking relief – both compensatory and asking for
investigation and prosecution – from the court.

Recent Cases

The National Crime Records Bureau (NCRB), in its reports from 2005 to 2018, revealed
that with respect to the death of 500 persons in remand, 281 cases were registered, 54
policemen were charge-sheeted, but not a single policeman was convicted during that
period.

And among the 700 deaths of persons before remand, 312 cases were registered, 132 persons
were charge-sheeted and merely 7 persons were convicted. The deaths before remand are
during the first 24 hours after the arrest before the suspect is produced before the magistrate.

17
Challa Ram Konda Reddy Vs State of Andhra Pradesh AIR 1989 AP 235.

20
In the seven months up to July 2020, the National Human Rights Commission, India
(NHRC) reported 914 deaths in custody, 53 of these in police custody. As per their data, 714
people were reported to have died in police custody in cases registered between 2013-14 and
2017-18.

A total of 348 people have died in police custody and 5,221 in judicial custody in the country
in the last three years, Rajya Sabha was informed in the Parliament Monsoon Session.18

The Delhi High Court transferred investigation into the alleged murder of Tihar inmate
Ankit Gujjar to the CBI, saying he lost his life to custodial violence.19 The Court observed
that the nature injuries sustained by inmate Ankit Gujjar who died in Tihar jail clearly show
that it was a case of custodial violence.

In another case, Rizwan Asad Pandit was picked up from his house for questioning. His
eventual death in police custody had set in motion a chain of events, beginning from outrage
among people and ending in an inquiry now being undertaken by the Jammu and Kashmir
Police. The imagined trauma of a schoolteacher suffering in a camp of the state police’s
Special Operations Group (SOG) had stirred civil society once again.20

The most prominent case in recent times was the alleged beating by the police personnel
resulting in the deaths of J Benniks and his father RP Jeyaraj on 20 June and 23 June,
respectively, has evoked strong criticism from political parties as well as civil society
members who said it was akin to the George Floyd incident in the US.21

It also triggered demands for police reforms in the country and prompted the state
government to recommend a probe by the CBI. According to laid down procedure, the CBI
on Tuesday evening re-registered the case filed at Kovilpatti police station related to the
deaths under Indian Penal Code, section of custodial death with suspected offences to be
illegal detention, murder, and destruction of evidence.

18
Press Trust of India, “348 Died In Police Custody, 5,221 In Judicial Custody In 3 Years: Centre”, Delhi News,
August 11, 2021.
19
Press Trust of India, “Life Lost To Custodial Violence: Gangster Death Case Transferred To CBI”, Delhi
News, September 8, 2021.
20
FP Staff, “Kashmiri teacher Rizwan Pandit’s custodial death is neither the first in the Valley, nor a singular
event in India”, India News, March 21, 2019.
21
Press Trust of India, “Jayaraj-Fenix custodial deaths: CBI takes over probe into torture and killing of father-
son duo”, India News, July 8, 2020.

21
 Observations, suggestions, and solutions

1. Ratification of the ‘UN convention against torture’. This convention was signed by
India in 1997 but never ratified. No official law has been passed by the legislation on
Anti – torture or police reforms concerning custodial deaths despite the frequency of
such acts for so long as well as several suggestions and concerns shown by the NHRC
and the Apex court. The sustained apathy of the legislature can be interpreted as a quite
observance to such practices, thus making it harder for any likelihood of ratification
happening in the future either.
2. The various suggestions made by the Apex court in judgements like DK Basu v. State
of Bengal 22must be enforced and any default by reluctance or ignorance of any police
station or public authority should be strictly penalized. Some mainly include:
• All police officers should wear their name tags clearly indicating their name and
designation.
• Police must enter the complete details of police officers conducting investigation in
a register.
• The arrested person has the right that his/her relative/friend is informed about the
arrest.
• The police must contact and inform the relative/friend of the time and place of arrest,
and the exact location where the arrested person is detained.
3. Implementation of section 114B 23mentioned in the law commission report 1985 which
raises the notion of holding the officers accountable or with criminal culpability if
anyone is found tortured or dead in their custody.
4. Though torture is completely normalized in custody for extracting confessions, legally,
suspects have the right to withhold any self-incriminatory information or evidence that
can be used against them. This is under the presumption of innocent until proven guilty.

22
(1997 (1) SCC 416)
23
Indian Evidence Act, 1872

22
In India, Article 20(3) dictates:

No person accused of any offence shall be compelled to be a witness against himself. The
privilege against self-incrimination is a fundamental canon of criminal law jurisprudence.
The characteristics of these provisions are,

• That the accused is presumed to be innocent,

• That it is for the prosecution to establish his guilt,
• That the accused need not make any statement against himself.

Nandini Satpathey v. P.L Dani 24 also holds that these rights extend to witness and accused
alike, and that they must be formally accused in the present and not the future. This applies to
every stage in which furnishing of such information and collection takes place. However,
implementation of this law has been lacklustre in the justice system, as it is subject to
constant violations by police and law enforcement authorities. This is owed to the police’s
impunity and apathy towards both the judicial system and moral obligations towards rights of
the detainees or criminals, and necessary changes must be implemented.

5. Public awareness of protections such as Article 39 – A of the constitution which providing

free legal aid to the poor or disadvantaged sections of society so the provision of justice
can be extended to all citizen despite economic or educational hindrances. Proper
implementation of the D.K Basu judgement as well as greater public awareness of certain
rights and provision of citizens and detainees will compel the police to pursue other far
more productive methods than third degree methods. Similarly, another recommendation
can be the presence of a lawyer during the interrogation by the police with the interest of
protecting the accused’s rights.
6. Immediate amendment and reform of the “Police act of 1861” which contains several
provisions that enable violation of rights by the hands of police officers. This act born in
the era of pre independence was made only to hold the lives of our countrymen on a leash,
it contains several loopholes wherein the police get away with lesser consequences
compared to the gravity of the crimes they have enabled over and over.

24
AIR 1978 SC 1025

23
The fact that this act exists to this day is a gross indignation of our people’s rights and must
be amended promptly.

7. Also, the recommendations in the 117th law commission report by the 16th law commission
recommends appropriate amendments in the Code of Criminal Procedure which makes
police officers responsible of assuring the safety of the accused in custody and making
them aware of their rights while they remain in custody25.
8. The last suggestion is the need for the codification of the rights of the arrested persons as
mentioned in The Malimath committee report.26

25
117th law commission report of India on “Law relating to arrest” dated December 14, 2001.
26
Malimath Committee Report, Volume I, Para 7.26.8-7.26.9.

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 Conclusion

Criminal Justice and more specifically the Criminal Punishment system require huge
investment in terms of money, time, and energy. Therefore, there must be compensating
benefits to justify this exorbitant burden on public exchequer. We had better know what they
are and establish whether they are sufficient or not.

We still confide in our authorities because they are trying fervently to doff the dust off their
coats. They have the courage to lose the sights of the shore and by carrying this attitude only
new oceans can be discovered.

In a civilized society, which is governed by the Rule of Law, custodial crime is one of the
worst crimes and poses a serious threat to a tidy civilized society. Torture in custody scorns
the basic rights of the citizens and is an aspersion to human dignity.

The law can’t be prejudicial in its approach and can’t deny basic rights like the right to
liberty, dignity to someone who is in the police custody. Moreover, the torturous and cruel
approach of police in dealing with arrestees required a strong change.

25