CHAPTER-1

INTRODUCTION
Man is the most accomplished of all creatures of our universe. He is so
immeasurably admirable in his faculties of thought, action and reason that
Shakespeare declares him, as 'the beauty of the world\ It is perhaps due to this
celebrated glory of man that human community, right from the early days of
civilization, has consistently held certain basic values which are inviolable under
any circumstance. These basic values of life and personal liberty have come
to be termed differently as civil liberties and human rights. History is replete with
instances of successful and relentless struggles whenever persons in authority
whose primary duty is considered the 1protection of human rights infringed upon
these basic rights of human beings.1

India is a democracy marching ahead with sustainable development. But

democratic values of India have suffered a huge loss due to non-democratic
approaches in governance. It needs not mention that a true democracy
assures its citizens the protection of person and property, and where life is
free from fear and repression. The mere existence of a Constitution and the
possibility to cast a vote once in a while is not what democracy means.
Democracy involves and demands good governance. Good governance must be
reflected in every aspect of public life where State agencies are respected and
considered as instruments and institutions of service, not as sources of
suspicion and fear.

Views formed by ordinary person about his State institution are one of the best
indicators of good governance. The defect in governance is showed by
failures of any State institutions. The situation worsens when there is no credible
attempt made to remove the defects in those law enforcement agencies. In India,
the institution that is primarily responsible for law enforcement is the State
police.

1
By Jai Parikh, NUJS, Kolkata; available at [Link] last visited on
APRIL 2024.

1
There are serious concerns about policing in India. Instances of custodial torture
are reported all over India. It appears that in general, investigation of a crime
begins and ends with a confession. In most cases the arrest of a suspect
precedes the investigation of a case. The arrest is often followed by a
prolonged period of illegal detention during which the detainee is tortured. If
the police are certain, according to their “conviction”, that the suspect in custody
was involved in a serious crime, often the suspect is killed, allegedly in an
“encounter”. In fact, “encounter killings” are reported in alarming numbers in
India.

Torture in police custody means Custodial Violence. However, “torture” has not
been defined in the Constitution or other penal laws of India. No doubt, the
police plays vital role in safeguarding our life, liberty and freedoms. But the
police must act properly, showing fall respect to the human rights of the people,
remembering that they are also beneath the law, not above it and can be held
liable for the violation of human rights. In fact, what the society needs is well
led, well trained and well disciplined force of police which help in
protecting and promoting human rights.2

While practicing Criminal Law, it has been experienced that torture of human
being by another human being is essentially an instrument to impose the will of
the “strong’ over the “weal? by suffering. Most of the victims of custodial
violence are the poor and the downtrodden. Records are manipulated and
evidence destroyed to shield the policemen responsible of the offence. Political
influence is used to hush up the matter and thus crime goes unpunished. The
relatives and friends of the victims are unable to seek justice because of fear,
poverty and ignorance of law. Most of the tortures and other violation of human
rights occur while the police try to extract confessions from the accused during
interrogation. It is the shadow of civilisation. Torture is an international
phenomenon but the incidents are much more in developing countries and the
overall situation in India is far from satisfactory.

The word custody imp2lies guardianship and protective care. The idea of a
human being in custody is to provide him/her protection. Even when applied to

2
[Link], Prisoners and Human Rights, (1st ed., [Link], Delhi, 1999).

2
indicate arrest or incarceration, it does not carry any sinister symptoms of
violence during custody. No civilized law postulates custodial cruelty an
inhuman trait that springs out of a perverse desire to cause suffering when there
is no possibility of any retaliation; a senseless exhibition of superiority and
physical power over the one who is overpowered or a collective wrath of
hypocritical thinking.

Coming to the Indian scene, one notes with dismay that the structure of the
Indian Police is governed even today by the Police Act, 1861, an Act
passed by the British rulers to suit their imperial interests. A new Police Act
which can redefine the role of the police and lay down in no uncertain terms that
the duties of the police include safeguarding the rights of the people is urgently
necessary.

But it appears that India is not serious about safe-guarding the human rights
of its citizens as it denies of any custodial violence by police. It seems that the
government is increasingly tolerating the misuse of authority by law enforcing
agencies. The Union Home Minister attributes deaths in police custody to
“illness/natural death, escaping from custody, suicides, attacks by other criminals,
riots, due to accidents and during treatment or hospitalisation”.

Figure 1: Torture by Police

This untowardly attitude shows unwillingness of government in legal and political

arenas to overcome the serious problem of custodial violence by police. Torture
causes a traumatic experience to the victim and creates a deep wound in his

3
psyche. It cannot be easily healed. ‘Custodial Torture’ is a naked violation of
human dignity and it destroys the overall personality of the victim. The word
‘torture’ has become synonymous with the darker side of civilization.

One of the central themes of this research is that reform were needed for a very long
time. Custodial violence in India is part of an inherited legacy. Indian criminal
and penal laws and their accompanying institutions derive from archaic and
punitive colonial legislation and institutional practice. Part of the solution to custodial
violence by police in India is an imperative need for an inclusive public
debate on reform of the police and indeed a public debate on custodial violence
as part of that reform process. Arguing for reform is not particularly contentious;
indeed there is widespread acceptance, at least in the domain of the police and
prison service, of its need. Yet a reform process has not happened despite
establishment of repeated commissions and their endless recommendations.3 The
mounting evidence of human rights violation by the police make it hard to
argue that our police and security forces follow the legal and constitutional
provisions intended to safeguard the rights of the person accused of committing
crime. On the contrary, the situation is that those who are meant to uphold
the law quite often break it, and seek to justify their actions on the ground that
such steps are necessary to maintain law and order. Unfortunately, police has created
an impression that whenever there is crime, it will round up the suspects and
subject them to third degree torture in hope that someone will spill out the beans.

There is new urgency of reforming the policing system in India. The reform will
require substantial political will. As the Prime Minister has pointed out, the
threat from India’s armed opposition groups is increasingly serious. If human
rights violations, committed both by the security forces and armed groups,
are not promptly, thoroughly, independently and impartially investigated and those
responsi3ble brought to justice, the system which allowed them to commit those
crimes will remain intact. It is difficult to see how reform would succeed under
such circumstances.

India is a sovereign, socialist, secular, democratic republic. Every attribute of the

Republic is bed-rocked on human rights-the sovereignty of the people over the

3
Torture in India 2008-A State of Denial”, a report by ACHR (July 2008) published by ACHR.

4
entire resources of the nation, the secular, liberation which interdicts
discrimination against individuals and groups on religious grounds, the
socialist harvest of economic, cultural and other rights. These are meaningful
implicit in the system of the republic and made more explicit in the
Preamble and parts III and IV which have been called the conscience of the
Constitution.4
1.1. Literature Review

Most of the violations of human rights take place in the management of law and
order, by the police. In India, the history of human rights violations in police
custody can be traced to British period. Even after 57 years of independence,
in a democratic country like India, the police remains virtually a terror to
the people and almost absolutely unaccountable for the violations of human
rights of people in their custody. Though custodial torture, custodial deaths and
other forms of human rights violations in police custody are very common today
and the people are being fed up with hearing and talking of such custodial
abuses, no static steps have been taken so far for a permanent solution.

Since conviction rate is considered as the yardstick to measure the ability of an

investigating police officer, every police officer would try to accomplish the
maximum conviction rate to his credit by hook or crook. This will definitely
help to increase the rate of police torture. It is really pathetic that the successive
governments have persistently refused to investigate the abuses reported in
newspapers.

Guy Norflok and John Cartwright, “Death in Police Custody are being
analyzed Restropectively” (1996) in there article on deaths in police custody
over 1 year per4iod shows that there were 32 deaths occurred in this period of
which most common cause of deaths is suicide. Suicide by hanging in 14
cases, Second common cause is drug or alcohol intoxication in 13 cases and 4 cases
died due to injuries to skull and brain. Natural cause of deaths accounts for only
two deaths.

4
Available at: [Link] last
accessed on APRIL 2024.

5
Bayley, “Police and Political Development in India” (1969)5 in his book
he has conducted a pioneer study on Police and Political Development in
India found that police brutality varied from rural and urban set up. The rural people
are less critical than urban people as well as north are significantly more critical than it
is in the South. Citing reasoning of increasing complaints of police brutality in Northern
part5 of India as Bihar, Delhi, Madhya Pradesh, Rajasthan and Uttar Pradesh.

Ghosh “Torture and Rape in Police Custody” (1993) in his book he has
drawn attention towards the main cause of the persistence of torture is the
failure or unwillingness of governments to hold an inquiry and punish those
found guilty. Particularly disturbing is the fact that redress for the victims or
their familiar is almost impossible to obtain; most of them have neither the
information nor the resources required it seek it. Moreover, these cases are
difficult to substantiate because custodial deaths take place in ‘out of the view
‘situation which seldom are monitored by supervisions or witnessed by
complainant. Even when a few witnesses are available, they are intimated or
even killed to prevent them from giving evidence. The victims of police
brutality are often minority people.

Mishra, “Police Brutality-An Analysis of Police Behaviour” (1986) in his

book in an empirical study on Police Brutality-An Analysis of Police Behaviour
has focused four main causes of the malady. First is a colonial tradition of
our police as instrument of the executive or oppression by the rulers; second is the
subculture of our police includes brutality. The police subculture is strengthened
by alienation cynicism, low esteem in society, conflicting demands made of
policemen inconsistent judgment of their work, all forcing them into a corner,
their backs to the wall. Third is very important reason for the continuing brutal
behavior of policemen is under pressure and finally the most hateful reason for
brutality is to extract money from suspects and innocent persons. It concluded
with the remedies is the real reforms pushed through with some severity will
produce enduring improvement. It would help it the emphasis within and outside
the police organization is shifted from results to behavior. This shift will be
perceptible and effectual only it notice is taken not merely of deaths in police
custody or where bones have been broken out also every act of discourtesy and

5
Bayley, David, Police and Political Development in India, (New Jersey : Princeton University Press, 1969)

6
punishment given .Besides, improvement in behavior should in the long run, by
increasing public acceptance of policemen and their work and eliciting
public cooperation, lead to better and better police work resulting in higher
percentage of conviction.

Bureau of Police Research and Development (1993) in the report on ‘Custodial

Crimes’, has identified the following causative factors for occurrence of custodial
crime in our county; sadism in police, unrealistic public expectations about crime
control, Failure of criminal justice system; Inadequacy of strength and resources
in police; Inadequacy of laws; Lack of scientific temper and non-availability of
facilities. This study has also suggested the various remedial measures to tackle
the menace of custodial crimes. These include tightening recruitment standards,
improving training standards, improving the machinery for enquiring into
complaints, improving supervisory and leadership standards, review and
implementation of reports submitted by commissions/ committees and review of
laws.

Talwar “Violation of Human Rights by State: A Case Study of Custodial

6
Violence in Delhi” (2003) in her doctoral thesis on custodial violence in Delhi
found that political interference in day to day police functioning, public
expectation of quick results, archaic colonial oppressive laws, malfunctioning of
criminal justice system, lack of infrastructure facilities, pathetic working
condition poor supervisory and absence of accountability are main causative
factors for custodial violence. Further, the study suggested awareness, education
and training of human rights to police personnel, use of scientific investigation,
supervisory of interrogation in custody stringent, women officer needs to
interrogate women detainee, legal action to the guilty officers and
transparency in institution of magisterial inquiry or inquest for custodial death.
1.2. Hypothesis
1. Whether the organizational, and administrative and psychological
factors contribute to the use of torture in police stations?
2. Whether a separate compensatory mechanism is required in India to cope
with the problem of custodial crimes?

6
Talwar, Pooja, Violation of Human Rights by State: A Case Study of Custodial Violence in Delhi, (unpublished
Ph.D. Thesis, New Delhi: Department of Political Science, Jamia Millia Islamia University, 2003)

7
 3. Whether the investigating officers working in the police stations are
sensitized to the Human Rights jurisprudence?
4. Whether the working of the National Human Rights Commission in order to
prevent custodial crimes is praiseworthy or not, if not, what measures
should be taken to make the working more effective?
1.3. Objectives of the Study

In the backdrop of description about the custodial violence and its various
dimensions and the questions raised therein following objectives have been
formulated:
(1) To study critically, the legal status of accused in custody in India through
Constitution, various special legislations, recommendations and
guidelines, etc.
(2) To assess the role of regulatory bodies in curbing the problem of custodial
violence.
(3) To critically analyse contribution of the judiciary to prevent custodial
violence.
(4) To evaluate the role of National Human Rights Commission in
preventing the custodial violence in India.
(5) To suggest certain measures for improving the legal and administrative
framework for the prevention and regulation of custodial violence in
India.
1.5 Research Questions

The major research questions dealt under this topic are:-

1. What is the pattern of human rights violation in police custody?

2. How far the rights of a person in custody are protected by the

international covenants, Constitution of India and other laws?
3. What are the socio-economic and Political circumstances which
lead to torture in police custody?

4. How to strike a balance between the authority of police and

protection of rights of Person in custody?

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1.4. Research Methodology

The reliability and dependability of any research problem depends upon the
method that is adopted for the investigation of a problem. The methodology that
is adopted is basically case law method in nature, consulting primary and
secondary sources such as statutory Act, Judicial decisions. Reports and other
studies. The present study is aimed at to the magnitude of custodial crimes in
India and to know the causes for such violence in India. The study is also
aimed at to look into the existing legal regime for curbing custodial crimes in
India. The study is intended to examine the judicial contribution in revitalizing
the protection against custodial violence in India.

The main methodological tools applied in the study are: Historical method to
trace the origin and evolution of custodial crimes/torture in India; policy oriented
method to examine the policy considerations, case law method within the
framework of hierarchical model, the hierarchical model analyzes the system
to a pyramid with the Supreme Court at pinnacle for the interpretation of laws.
According to this model7 to analyze and elucidate various landmark judicial
pronouncements from the point view of policy and reform perspective. In short,
the work is based on case laws and is basically analytical in nature. The
study is a modest attempt made on a narrow conspectus and is confined within
the limits of its own objectives. The conclusions drawn are applicable to Indian
conditions only.
1.5. Tentative Chapterisation

CHAPTER 1: INTRODUCTION
This chapter will cover the introduction of the custodial violence and how it is
effecting the society.
CHAPTER 2: Custodial Violence By Police In India: Current Problems and
Issues

The problem of police atrocities has been with us for a long time. It is an old
concept as old as the police force. Nor is it confined to any one country. The
police is the first line of defence against the criminals. A distinction must be

7
The Court establishes important policy and the lower court implement the policy automatically. Sec J
l-'rank, Courts on Trial. Myth and Reality in American Justice System, 222 (1963)

9
drawn between the legitimate use of force by the police and its illegal use. The
nature of police work is such that sometimes it has to use force in the
legitimate discharge of its duties. It is only when force not sanctioned by
law is used that one talks of police brutality.

CHAPTER 3: Victims of Custodial Violence and Prison Administration:

National and International Perspective.

The protection to life and property and observance of due process of law by the
enforcement agencies particularly the police is an important issue today
before the society. Police have a paramount role in protecting human rights and
preventing custodial crimes. In fact victims of crime whose rights are violated
come to police to set the law in motion and it is the duty of police to
bring the wrong doer to face the legal consequences of his action.

CHAPTER 4: Role of Judiciary In Preventing Custodial Violence:

Custodial Violence is so endemic in Indian penal system that even human rights
bodies look tired of producing voluminous reports on custodial violence by
police in India. Jails and police lock-ups are living hells, hellish enough to
degrade human beings. For all practical purposes custodial crimes are on the
rise. The International Court of Justice has suggested that the victims of
custodial violence be compensated. The Government of India has accepted the
suggestion in principle without showing any political will to implement it in
action.

CHAPTER 5: Conclusion and Suggestions:

Despite the fact that we have detailed provisions safeguarding against custodial
violence it is seen that a steady process of devaluation even demonetisation of
human dignity and personality is irresistibly advancing and brutal betrayal of
those basic rights, which are enshrined in International Bill of Human Rights
and Constitution of India, becomes a common scenario. Custodial Violence not
only humiliates the victim but reduces him to a sub human level.

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 CHAPTER-2

ANALYSIS OF REPORTED CUSTODIAL VIOLENCE

CASES

2.1. Prologue

The problem of police atrocities has been with us for a long time. It is an old
concept as old as the police force. Nor is it confined to any one country. The
police is the first line of defence against the criminals. A distinction must be
drawn between the legitimate use of force by the police and its illegal use. The
nature of police work is such that sometimes it has to use force in the
legitimate discharge of its duties. It is only when force not sanctioned by
law is used that one talks of police brutality. Even in the case of legitimate use
of force, the police are expected to keep it to a minimum. The use of force
can be termed as illegal if, in its use, due care and caution is not exercised
and it is more than the required minimum, Unlike its counterpart in many other
democracies, the Indian Police has rarely been held in high esteem by its
compatriots. Though many in the police may feel deeply distressed when
confronted with the late Justice A.N. Mulla’s much quoted description of the
police as ‘a uniformed gang of criminals', they do reluctantly admit that ‘no
self-respecting person would willingly associate with the police - whether as a
witness, a complainant or a defendant.’ Why do police officers indulge in brutal
and inhuman acts? One answer could be that like every large organization the
police force has its quota of rotten eggs, and it is they who indulge in these
illegal acts for sadistic reasons or for personal ends. But that is only a part
of the answer. If these were the only factors, the solution to the problem
would not be that difficult, and the tightening of disciplinary control and
punishment of the delinquent police officers would achieve the desired objectives.
The gulf separating the police from the public is not a new development.

The descriptions of the village chowkidar, the medieval kotwal, daroga orpatil,
more 231 often than not, are about their venality and cruelty. Equally, the
modem police force which can trace its constitution to the colonial Indian Police
Act of 1861, modelled interestingly on the Irish rather than the British

11
framework, was structured more as ‘a defender of the establishment’ than as an
impartial and professional organisation owing essential accountability to
the citizens and the rule of law. Expectations that an independent, democratic
India would radically overhaul the inherited colonial legacy-structure, role and
function-have been unfortunately belied, and perception about the police as an
anti-citizen force continues to hold sway. To argue, as some indeed have done,
that alienation from the public is to be expected since the police are
mandated to exercise force on behalf of the state smacks of essentialism. It
takes away from the need to Institute changes in structure, composition and
working style so that the police is experienced more as a friend and protector. There
is direct relationship and inter dependence between policing and custodial
violence. Police is one of the means by which state seeks to meet its obligations to
protect 'Fundamental Rights’- Right to life, liberty and security of persons, Right
to fair trial and equal protection of law. Thoughtless and unlawful police on the
other hand resort to the custodial violence which can only result in
oppression of those ‘Fundamental Rights’. It is often witnessed as paradox
that those rights are protected by law and are often at risk at the hands of
law enforcers.8

Figure 2: Rising death in police custody

8
D.K. Basu, IPS, Discussion on case related to Human Rights and Custodial crime, a paper in Human Rights and
Custodial Crimes, a Central Detective Training School, Kolkata Publication at 22

12
The widespread dissatisfaction with the functioning of the police-both its
behavior and efficacy-has led to the setting up of many a commission, the latest
being the National Police Commission (NPC). It is a marker of the times that
since the NPC submitted its recommendations nearly two decades back,
state response, irrespective of the regime, has been one of stonewalling if not active
disregard. True, we hear periodic fulmination about police reform; also about the
constitution of further expert subcommittees. But concerted action remains a
distant cry.

Many of the standard criticisms/suggestions focus on the lack of skills, training,

orientation and leadership qualities of the force; a command structure suited more to
the armed forces resulting in a perception of the citizen as ‘enemy’; a skewed
distribution of scarce resources towards high profile activities like VIP security as
against strengthening the Thana and the beat constable; whirlwind countrywide and
state wide tours of ministers and provision of bandobast all along the route has
become a nightmare for the police; a tendency to create special forces (Rapid
Action Force, National Security Guard) while neglecting the main force; and
above all, a persistent and unhealthy interference by the bureaucratic and political
class. Every scholarly study, reports of official commissions, or accounts by retired
police officers highlight the same malaise, come up with similar suggestions.

Citizen ire against the police is, however, insufficiently cognizant of the
conditions under which the force operates-poor pay, abysmal housing conditions,
tortuously long hours of work etc. Self-esteem and professional pride can hardly
be expected to flower in an environment of scarce materialities, further
compounded by deep suspicion and hostility. Regardless of these, the
standard of police is of paramount importance and should be maintained as
high a level as possible, for the peace and happiness of a country depend on a
very large extent on the type of police it has and how they do the work.

2.2. The Problems That Are Observed During This Research In Relation To
Custodial Violence By Police In India Are As Following:
1. Colonial Legacy

The first problem concerns the composition of the police. The Indian Sepoy
Mutiny of 1857 jolts the British into taking steps to consolidate their rule in

13
India, including the establishment of an authoritarian police force to support the
colonial government. The British structured the organisation in such a way that
the senior positions in the force would be occupied by them and the
junior ranks would be kept for “natives.” Hence, the problem lies in the Police
Act, 1861 itself which is basic law and it has remained unchanged practically
due to non-cooperation by the government to re-define the role and
responsibilities of the police officials 233 with recent developments. The British
realised that to perpetuate their rule in India they must have a police force that
was totally subservient to the executive. Section 3 of the 1861 Police Act vested the
superintendence of the state police forces in the state governments. The same
law introduced a system of dual control at the district level. It put police forces
under the command of the district superintendents of police but subject to the
“general control and direction” of district magistrates. This was done
deliberately, for the functioning of the district magistrate as the chief officer of
the district was considered essential for the maintenance of British rule in India.
Under the system of police governance established by the 1861 act, the police
forces in India were unaccountable to anyone except their own hierarchy and
the colonial political and administrative executive. Making the police accountable
to the community or other democratic or local indigenous institutions did not fit
into the British colonial model of control. Section 7 of the Police Act of 1861
uses the words inferior officers for those occupying the lower ranks in the
police. Even when the senior posts were indianised, in due course, the elitist
bias was not forsaken. One’s family background always weighed heavily in
picking candidates for senior vacancies. They realised that a system based on
the feudal values prevalent in Indian society would work effectively in ensuring
that the rank and file, which constituted the bulk of the force, remained loyal,
subservient and accountable to their seniors within the police and government.
This system gave rise to a managerial philosophy that was based on distrust of
the lower ranks in the police. This distrust is reflected in the provisions of the
law also. For example, under Section 162 of the Criminal Procedure Code
(Cr.P.C), the statement of a witness recorded by the police during an
investigation is not to be signed by the person making the statement, and it
cannot be used during the trial for any purpose other than to contradict the
witness if they differ from it. Similarly, Section 25 of the Indian Evidence

14
Act of 1872, states that confessions recorded by a police officer shall not be
admissible as evidence. 234 Meanwhile, the police were raised on a militaristic
and authoritarian pattern. There was tremendous emphasis on the maintenance of a
type of discipline, bordering on regimentation that required the lower ranks to blindly
obey orders.

The system did not require the constabulary to think while performing their duties.
Recruitment to the constabulary stressed brawn and not brains-the taller and heftier
the recruit the better. During training, their physical fitness and endurance must
improve. Thus, police training programmes were biased heavily in favour of
outdoor activities, like drills. Education was not required, but they must have an
intimidating presence that should deter, not only criminals, but also ordinary
citizens. In their presence, no one should raise questions or demand answers.
The Indian Police Commission appointed in July 1902 under the chairmanship
of Sir A. H. L. Fraser concluded: “The police force is farfrom efficient; it is
defective in training and organisation; it is inadequately supervised; it is
generally regarded as corrupt and oppressive; and it has utterly failed to secure
the confidence and cordial cooperation of the people.” Personality traits of
aggression in people get developed when there is conducive environment for their
development. The more the favourable environment for the development of
aggressiveness, the greater will be its development. May be due to the historical
disadvantages that the police in India have inherited from the British oppressive
police system or may be that the police after independence did not want to
deviate from such oppressiveness which guarantee certain amount of physical,
psychological, monetary benefits for them, the environment prevailing in police
stations or at the cutting edge level of police administration has been one
favouring the use of oppression and torture, however little or severe it may
be. This has doubtlessly an adverse effect upon the development of proper
police personality in individuals in the right and desirable direction which accepts
and appreciates human rights, civil liberties and dignity of a human person.9

They are as silent and remiss about the requirements of democratic policing
as the colonial legislation. In fact, some state acts, like the Bombay Police Act of

9
The 264 James Vadackumchery, “Human Rights & Police in India” at 130

15
1951, further tightened executive control over the police force without
introducing any safeguards to prevent the misuse of the police for partisan
purposes and without incorporating effective mechanisms to ensure police
accountability. The result was clearly evident during the communal riots in
Gujarat in 2002. It will be found that the use of force, a certain degree of
violence or brutality is legally built into the role ofpolice and the present
organization of police based on the Police Act of 1861 was not intended for
rendering courteous service.

The question of brutality, therefore, resolves itself in the question of unnecessary

force. This is very difficult question indeed because how much force was
necessary, how much was in excess of the necessary cannot in most cases, be
determined in retrospect which means the man on the spot usually has the final
word on it. Discussing the extent of brutality the Torture Commission quoted a
minute of Sir Thomas Munro which was recorded in 1827: 236 “It is no doubt
too certain that many irregularities are used in obtaining confessions and that in
some instances atrocities acts are committed, but when we consider the great
number of prisoners apprehended, and the habits of the people themselves,
always accustomed to compulsion where there is suspicion, how difficult it is to
eradicate such habits, and how small the proportion of cases in which violence
has been used is to the whole mass, the number of these acts is hardly greater
than was to be expected, and is everyday diminishing10 During the British
Raj the police, as an instrument of the Executive, were an instrument of
oppression by the rulers; the people were meant to be oppressed, suppressed,
beaten up, tortured, lathi-charged and fired upon, particularly if they opposed the
sarkar or any instrument of it. After independence they failed to learn that they
are not merely the instruments of the Government but also the servants of the
people. Our rulers also want to use the police force for protecting their own
interests. They do not want to loose control over the police.

2. Worrisome Women Representation In Police

The representation of women in police is dismal and stands at less than 1%.

10
Sutherland is known as father of Criminology. He was a great social scientist who propounded theories on
criminal behaviour.

16
This is particularly worrisome in view of the increasing custodial crimes against
women. It is well recognised that in crimes such as rape, molestation, dowry
deaths, kidnapping and so on, victims would be more forthcoming if questioned
by women police. The same is true of the representation of religious minorities,
SCs, STs, and other weaker sections. It must be our endeavor to ensure that the
composition ofthe police reflects, as closely as possible, that of the society itself.
It is unfortunate that no serious effort has been made so far to change the
profile of the police to remedy these deficiencies. Women were employed
mainly as spies and 237 armed women who guarded the harems of kings of
Ancient India. There are references also to Mauryan Kings who were guarded by
Amazons trained in the use of swords and archery. It is also said that trained tribal
women resisted invaders alongside their men folk in the Northern part of India.
However, there is no record about the induction of women on a regular basis
in the police organisation until the 20th Century. Historical sources mention the use
of women police by the British Government to aid the suppression of brothels
in 1919, and the need for women police to handle the labour strike in Kanpur in
1938. Police women were appointed in Kanpur for the first time in India in
1939, but the force was disbanded after the strike was over. The princely state of
Travancore also appointed one woman Head Constable and 12 women Special
Police Constables, who in 1942, were regularised in the Police force. It is also
reported that few women were appointed in the Port cities of Mumbai, Calcutta
and Chennai for frisking duty. Women were also inducted in the police force in
greater Mumbai in the year 1939, and subsequently in the districts of Sholapur,
Kolhapur, and Pune in 1950. It was only after Independence that women were
appointed in the police force on regular basis in different states, after the
partition of India in 1947, which brought endless misery and degradation to
women. It was therefore necessary for the Ministry of Relief and
Rehabilitation to appoint women police for recovery of abducted women and girls
for rehabilitation. Since then there has been regular induction of women
police in the states of India. It is also seen from the available sources that
women police were employed in maximum numbers in the lowest subordinate
ranks, in keeping with the general universal trend of the police organization. The
need for women police increased with the rise in number of women accused,
criminals, and victims of crimes such as rape, kidnapping, sexual harassment,

17
dowry deaths, etc. The Indian Police Service (IPS) has been appointing
women in the IPS cadre at par with men. These women are expected to
have the same qualifications and training as is expected of their male
counterparts. Similarly, the other police based services such as the Border
Security Force, CRPF, CISF, NSG, Railway Protection Force and the Home
Guards all recruit women in various capacities. Today young women are opting
for the unconventional career of police service. It 238 is no longer a strange
sight to see a group of police women handling a riot situation, and performing
other duties along with men.

The main duties expected of women in the regular police force are the
following:

1. Attending to complaints as duty officers in the Reporting Rooms of police

stations.

2. Escorting female accused or undertrials to the courts or to lock-ups.

3. Interrogating women victims in case of rape, unnatural deaths of women,

family disputes, etc.

4. Performing law and order duties.

5. Recording FIRs.

6. Communicating with women victims

7. Traffic regulations

8. Security jobs

9. Supervision

10. Controlling and tackling juvenile delinquents

11. Controlling and supervising women demonstrators

12. Counseling women victims

13. Mediating in Family Disputes and solving family problems related to

dowry, etc.

14. Performing miscellaneous jobs.

18
Though women are expected to work with men on equal terms, in a country
like India, people’s perception of their role goes beyond the regular routine
job of police personnel. Women police can play a major role in social change. It
is felt that they need not copy the behavior pattern of their male counterparts, as
women police can, in addition, help in sensitizing the police force towards the
problems of women in society and family. Women police can help in upholding
values, which can change the public’s perception of police as a whole. There
have been women in the police sendee who have gone beyond their job of
policing the state alone. One of the most important police officers is Ms. Kiran
Bedi, the first woman IPS officer of India. She has not only brought about great
changes in the lives of the in mates of the Tihar Jail, but she has become an
icon of 239 the new independent woman of India. She was awarded the
prestigious Magsaysay Award for her active role in bringing about social
change.11

Figure 3: Death in custody

3. Non-Technical Police

World over, the emphasis within the uniformed services is changing from large
manpower to its technology orientation. Even after taking into account the

11
National Resource Centre for Women, Department of Women and Child Development, Govt, of India: See
[Link] last visited APRIL 2024.

19
differences in the role of the armed forces and the police, this should be equally
applicable to the police. Mere addition to numbers has to give way to
making the police more efficient, productive and effective by provision of modem
aids and equipment, mobility and communications, As a part of this effort, the
minimum educational qualification for recruitment as police constable has to be
increased to at least passing the 12th Standard. Advance increments could be
given to those possessing higher educational standards. Police constables,
particularly in metropolitan areas, should have even higher minimum educational
qualifications. But, this will be possible only if the entire gamuts of issues such
as promotional avenues for constables are looked at afresh. Specific determinants
to evaluate police performance should be laid down to replace the current
practice of depending on crime statistics. The members of state legislatures and
Parliament should be educated about the harm this practice has done to police
functioning. The over 100 year old system of maintaining police records of
crime and criminals has become non-functional because of a huge increase in
crime and the number of criminals. The technological revolution in information
and communication technology has opened new vistas for a complete
transformation of the system. Computerisation of police records cannot be
postponed any longer.

4. Un-Utilizffd Centralfunds Police,

Law and order are subjects which fall in the State list. It is, therefore, the
responsibility of the States to provide funds for these requirements. But, due
to the repeated demands of the state governments, the central government has
implemented a centrally sponsored scheme for modernization of police forces in
the States. The scheme is funded equally by the centre and the State concerned.
Central funds are made available on the basis of a 50% grant and 50%
loan. The amount has to be spent on prescribed items such as mobility,
communications, scientific aids to investigation, and crowd control equipment.
State wise allocation is based on population, sanctioned strength of police,
number of police stations and crime per lakh population. It is seen that the
central funds are not being used by a number of States due to a lack of
matching funds from the State budget. In several States the budget of the police
department is under severe strain and there are shocking news reports that

20
police do not have funds even to buy petrol for their vehicles or ammunition for
weapons.

5. Inadequate Housing Facilities

Yet another sign of the apathy of states is the lack of adequate housing facilities
for the police. Ideally, looking to the nature of their responsibilities, all
policepersons should be provided accommodation by the government.
Unfortunately, in a number of cities and towns, policepersons have to stay in
slums for want of government accommodation. How can a person living in such
squalor and filth and in close contact with criminals and the underworld be
expected to uphold the rule of law? Unfortunately, even the central
government is remiss in its responsibilities towards the central paramilitary forces
in this regards. It is amazing to see that the government has prescribed that residential
accommodation be provided only to 14% of the constables in these forces.
However, in practice, the percentage satisfaction is even lower than 10%.
Only in respect of the Indo-Tibetan Border Police, it is marginally higher at
about 12%.

This takes us to the image of the police and the respect which the police
enjoy in society. As a Parliamentary Standing Committee12 report brings out,
during one year from 1 July 1995 to 30 June 1996, 200 Delhi police
officials-5 Inspectors, 22 Sub-Inspectors, 19 Assistant Sub-Inspectors, 47 Head-
Constables, 106 Constables Thirty Second Report on Demands for Grants 1996-
97, August 1996 241 and one class IV employee - were arrested in 160 criminal
cases. Custodial crimes and human rights abuses by the police have continued to
cause concern.

The Parliamentary standing committee rightly stressed the importance of

improving the image of the police and creating public confidence that it is the
saviour and not tormentor of society. But this is easier said than done. For, the
police, though a uniformed service, have lost all the characteristics of such a
service.

12
Rajya Sabha Secretariat, Department Related Parliamentary Standing Committee on Home Affairs (1996-97),

21
6. Politicisation Of Police Force
This is not a new development. The Indian Police has a long tradition of
being a partisan instrument in the hands of the rulers since colonial times.
At the heart of the problem is the fact that a section of police officers instead
of fighting crime and criminals decided to join them, because doing so was more
profitable and less risky. Organised crime cannot flourish without some police
connivance. The increasing politicisation of the police in India has seriously
affected its morale and discipline. The resulting polarization in some of the
states has been along religious, caste and ethnic lines, eroding its credibility. The
emergence of armed senas in Bihar and U.P. was a consequence of this loss of
faith in the state police to protect people’s life and property. An unholy nexus
has developed between corrupt police officers and unscrupulous politicians.

The criminalisation of politics has affected police performance more than the
performance of any other state institution. The wholesale transfer of police
officers with each change of government has become a routine matter. Officers
have to undergo the humiliation and harassment of being transferred again and
again, sometimes within 24 hours. How can a police force led by such
demoralised officers perform in a fair and effective manner? The genesis of this
is to be found in the politicisation of the police and dilution of its disciplinary
standards. The command structure has totally broken down. It was not, therefore,
surprising to read the lament of an outgoing director general of police (DGP) in
Maharashtra that he was head of the police force only in name without the
power even to transfer a sub-inspector. According to another news report, the
powers to transfer subordinates had been withdrawn from the 242 DGP, Uttar
Pradesh, and taken over by the chief minister. The same is the situation in
varying degrees in almost all states. In several cases, the DGP s has been
summarily shifted to innocuous posts. The situation, in fact, has become worse
since the National Police Commission made its recommendations. Over the last
few decades, there has been a large influx of criminals into the Indian
polity.

The Election Commission of India estimated in the late 1990s that 40 members
of Parliament and 700 members of State legislative assemblies had criminal
records. As the nexus between criminals and politicians becomes stronger, it is

22
able to subvert the loyalty of functionaries at different levels in the government,
including the police. The criminalization of politics has gradually led to undermining
the authority of the police leadership and consequently the discipline of the
force. The police are a hierarchical organisation, and thus, if the effectiveness
of the leadership is undermined, the entire force becomes vulnerable to wrong
influences with functionaries at different levels looking elsewhere for protection
and rewards. In addition to breeding indiscipline in the force, it promotes a
climate in which impunity flourishes, and it ultimately shakes the public’s
confidence in the police. The police under the influence of politicians resort to
practice the custodial violence.

7. Failure Of Criminal Justice System

The public is unhappy, not only with the police, but also with the
functioning of other agencies of the criminal justice system. The system has
not been able to control crime that has increased significantly during the last few
decades. The total cognizable crimes registered under the Indian Penal Code
(IPC), for example, increased from 6.25 lakhs in 1951 to 55 lakhs in 2003,
including 37.8 lakhs registered under local and special laws (one lakh equals
100,000). When there is an upsurge in criminal activities or a particularly heinous
crime is committed, the public tends to blame the police. This attitude is
reinforced by the manner in which the police react to public criticism. They either
quote crime statistics, which are not very impressive, or point out inadequacies of
manpower and equipment. Crime statistics, in any case, are not very reliable. A
common complaint against the police is that they do not fully register crime.
Concealment or suppression of crime is quite common.

One major reason for this deliberate omission is that the police’s performance
is evaluated on the basis of crime statistics. As a result, the police adopt
questionable methods of recording and controlling crime and even resort to
illegal acts such as custodial violence. Maurice Punch in a perceptive study
called “Conduct Unbecoming” has stated that the roots of police deviance are
deep-seated and multi-dimensional. It seems 244 from, as seen in various
countries of the world, ambiguous legislation, vulnerability to legal sanctions,
occupational culture and a desire to produce quick results. In countries like
India, the pubbc expect the police to take laws in their hands because of the

23
working of the criminal justice system at a snail’s pace. There is demand for
ruthless counter-measures in spite of the price to be paid in terms of human
rights. It is responsibility of the police leaders to resist such pressures and check
drifts of this kind. They have to keep in mind that in any democratic society
order maintained by repression is the worst form of disorder. It establishes a
linkage between social order and atrocity.13

8. Failure Of The Judiciary Activism

More than an increase in crime, it is the failure of the judiciary to deal

promptly, justly and effectively with those who commit it that has
been responsible for the loss of faith and confidence of the public in the
effectiveness of the system. When a large number of people are allowed to
escape after committing crimes and justice is not provided to the victims or when
cases drag on in the courts for an innumerable number of years, it results in an
erosion of faith and public confidence in the effectiveness of the legal
system. For example, there has been a steep decline in the conviction rate. In
1971, the conviction rate of IPC offences was 62 percent; in 2003, it had
declined to about 40 percent. Moreover, justice is being delayed as well as
denied. The courts are clogged with a huge backlog of cases. According to the
61st Report of the Parliamentary Standing Committee on Home Affairs, 25
million cases were pending trial in different courts in the country.

The criminal procedure code provides that trials be conducted publicly, except in
proceedings involving official secrets, trials in which statements prejudicial to the
safety of the state might be made, or under provisions of special security
legislation. Sentences must be announced publicly, and defendants have the right
to choose counsel independent of the government. There are effective channels
for appeal at most levels of the judicial system, and the state provides free legal
counsel to indigent defendants.

Defendants were allowed access to relevant government-held evidence in most

civil and criminal cases; however, the government had the right to withhold
information and did so in cases it considered sensitive. In 2003 the Delhi High

13
Sankar Sen, “Police Accountability and Civilian Oversight”-a paper published in SVP, NPA Journal, Volume
52 No. 2, July-December, 2000 at 75

24
Court issued new witness protection guidelines to reduce the number of
witnesses who recanted their testimony under threat from defendants. As a result
of severe overloading of the courts, thousands of persons awaiting trial spent
longer in prison than the maximum sentences for the crimes for which they
were charged.

In N. Nagendra Rao & Co. Vs. State of A.P.274, the learned Justice [Link]
in his illuminating judgment observed: “No civilized system can permit an
executive to play with the people of its country and claim that it is entitled
to act in any manner as it is sovereign. No legal or political system today
can place the State above law as it is unjust and unfair for a citizen to be
deprived of his property illegally by negligent act of officers of the State without any
remedy. The modem social thinking of progressive societies and the judicial
approach is to do away with archaic State protection and place the State or the
Government at par with any other juristic legal entity. Any watertight
compartmentalisation of the functions of the State as “Sovereign and non-
sovereign” or “Governmental or non-governmental” is, not sound. It is
contrary to modem judicial thinking.14

2.3. Judicial Response To Violence In Police Custody

One of the most noteworthy clauses and a cornerstone of the foundation of

fundamental rights is Article 21 of the 1950-adopted Indian Constitution.
According to this paragraph, no one may be deprived of their life or their
personal freedom unless it is done so legally. There are built-in protections
against abuse by the state or its representatives, including torture. The police's
power to make arrests and the security precautions they must take to safeguard
the interests of people they have taken into custody are covered in Chapter 5
of the Code of Criminal Procedure of 1973.

Section 114(B) of the Indian Evidence Act of 1872 must be added in order to
provide a rebuttable presumption that injuries sustained by people in police
custody were the result of police misconduct. The Supreme Court did so after
citing the 135th report of the Judiciary Committee. Such provisions might deter
law enforcement from torturing detainees. "Make the necessary revisions to these

14
AIR 1994 SC 2663 2

25
laws to ensure that such offences are not only punished but also to prevent
imprisonment. It also required to alter its ideas, methods, conclusions, and
attitudes, with experts pointing out that it needed to be more cautious and take a
pragmatic approach rather than a narrowly focused technical one.
2.4. Judicial Response To Violence In Judicial Custody

When detaining people, police and prison staff have a big obligation to make sure
their right to life is respected. I respect his enthusiasm in the limited independence he
still has. States are bound by a rigid duty of care that cannot be waived. The state is
liable and the criminal is guilty if a detainee is denied life in a way that violates the
legal process. States are not permitted to use "sovereign immunity" as a defence in
these circumstances.

In order to ascertain how the Supreme Court's guidelines were applied to police
arrests and detentions in the Orissan towns of Bhubaneswar and Kutak, the People's
Union for Civil Liberties (PUCL) 2003 performed a study. Findings demonstrate that
police continue to imprison and mistreat people against their will despite court
rulings. Furthermore, there has been a major violation of his right to make an
appearance before a judge within 24 hours of his arrest. Although the Supreme Court
ordered that they be shown in each police station in turn, none of the police stations
had posted the rules on walls or notice boards to educate the public or increase
awareness. The police department's chief objects that neither he nor the budgetary
allotment got clear instructions from the higher authorities in this regard.

The amount allocated for convicts' meals is really meagre. According to a police
officer who was interrogated, captives were given an allowance of two rupees every
meal. Police officers apparently pay their own costs to print stationery, and arrest
records are preserved in all police stations. However, irregularities in the issuance of
inspection and arrest paperwork were found. He maintains the registration as of May
2002. There didn't seem to be a way for monitoring compliance with the guidelines
before. There are no areas set aside for female captives, with the exception of a small
number of police stations. Some police stations treat it like a trash can. The list of
people detained maintained by police headquarters is not current.

In 1993, in response to an increasing awareness of domestic and international human

rights challenges, Parliament established the Human Rights Protection Act. Human

26
rights are described as "the rights to life, liberty, and dignity of a person guaranteed
by the Constitution and embodied in international treaties as may be legislated by the
courts of India" under Section 2(d) of the Human Rights Protection Act, 1993.

The law calls for the creation of National Human Rights Commissions, State Human
Rights Commissions, and Human Rights Courts in order to safeguard the human
rights of the nation's citizens. The National Human Rights Commission has
concentrated on the problem of violence perpetrated in detention, including as torture,
rape, death, and enforced disappearance, from its creation. It became evident that the
Commission would assume there had been an attempt to conceal the facts if such a
report hadn't been provided.

On December 14, 1993, the Commission delivered instructions to all secretaries of

state in every state directing them to direct district judges and police commissioners to
send any cases of rape or death in police custody to the Commission within 24 hours.
I requested that they send me information on who I should report the incident to
(NHRC Annual Report, 1994-95). In response to a Supreme Court of India inquiry,
the Committee determined that it was essential to put the Indian Law Commission's
(ILC) recommendations in its 113th Report dated 29 July 1985 into practise in order
to put a stop to torture. conjuring up.

In order to create a rebuttable presumption that injuries received while a person is in

police custody may result in charges being brought against the police, the ILC
suggested adding section 114(b) to the Indian Evidence Act, 1872. did. A clause like
that would, in the commission's opinion, discourage the use of torture. We support the
Judiciary Commission of India's suggestion to remove the need for administrative
clearance when an official is charged with a prison sentence by amending Section 197
of the Code of Criminal Procedure.

The Commission also supports the National Police Commission's stance that every
instance of a person dying from rape or suffering a serious injury while detained
requires an investigation to be launched by a hearing judge (NHRC year next report,
1995-96). The NHRC suggested that states and federal territories provide autopsy
videotapes to the commission in order to stop falsified autopsy results from assisting
individuals responsible for major human rights violations.

27
The Commission went even farther and suggested that the Indian government think
about joining the UN (NHRC, Annual Report, 1997-98). The National Human Rights
Commission requests criminal prosecution of negligent police personnel and financial
compensation for victims or their families in cases of jail violence because the
majority of complaints it receives are against the police. (NHRC Annual Report for
2003–2004).

No society that values civility would let cadres to harm others while claiming the right
to act in their own best interests. did. Today, no political or legal system can elevate
the state above the law. Considering that it is unjust and wrong for citizens to be
violently robbed of their lives and property by careless government officials while
being denied the chance to defend themselves. Instead of the honesty, efficiency, and
dignity of the state as a corporation, which were advanced in the nineteenth century as
a solid sociological justification for sovereign immunity, the emphasis today is on
liberty, equality, and the rule of law.

The state or government should be treated equally with all other legal bodies in
accordance with contemporary sociological theories in contemporary nations and
judicial techniques that do away with outmoded state protections. It is no longer
appropriate to divide obligations of the state into "state and non-state" or "sovereign
and non-state" categories. This is against current legal doctrine. The necessity for
excellence in the state is obvious. Public officials must be held vicariously liable for
their conduct, and in some cases, the only suitable remedy is monetary or other forms
of restitution.

28
 CHAPTER 3

CONCEPT OF CUSTODIAL VIOLENCE AND HUMAN

RIGHTS

3.1 Introduction

Regardless of viewpoint, no one contests the value of the criminal justice system
to society. People are finally shielded from all significant harm caused to
them by human acts by this law.

The main objective of criminal law is to maintain security and stability. Safety,
in Bentham's view, is the main objective of the legal system. Law is necessary
for security, and equality and material prosperity cannot be upheld in the absence
of security. The criminal justice system, however, differs from other divisions of
the law in that it imposes stigmatising punishments on violators of its laws,
and convictions are counted as convictions.

The "huge stick" of punishment is used to enforce these standards and secure
compliance in order to represent the fundamental societal norms that serve as the
foundation of our lives. Only the traditional goals of the state were thought to be
acceptable due to the police state ideology that is no longer in effect. The
criminal code of today safeguards a person's fundamental rights from any
deliberate interference by others.

3.2 Meaning And Definition Of Police, Custody, Custodial Violence And

Human Rights
Pre-trial custody, often known as pre-conviction detention, typically has a legal
and police component. Any additional detention must be authorised by a judge
and cannot last longer than 15 days overall. Suspects are held in judicial
detention in prisons apart from police jails and are permitted entry by a judge
while the matter is being looked into or tried. On the basis of a specific court
order, only investigative agencies are given access to such offenders who are
being held in judicial custody.

29
In all other situations, the police and other law enforcement organisations like
the Narcotics Control Board, the Enforcement Department, the Central
Authority for Excise and Customs, and if the offence resulted in death, must
file the indictment within 60 days. If so, it needs to be delivered in 90 days. If
an indictment is not delivered within the specified time frame, detainees have
the right to be released.

Pretrial imprisonment can extend for months or even years, although in some cases, if
charges are made in a timely manner, trials must be quick. If the offender is
given at least half of the maximum punishment for the offence being tried, bail
may be granted under Section 436A of the Criminal Procedure Code. Post-
conviction detention, however, necessitates incarceration for the entirety of the
term.

3.2.1 Dictionary Meanings

The terms "cruelty," "brutality," and "injury" are used to characterise the purposeful
inflicting of severe bodily or mental suffering in order to punish, collect data, or
elicit a confession. Torture and other types of common forms of torture are
also included in this category. According to the definition, violence is any action
that uses a lot of force or energy while inflicting physical hurt or harm. To
torture someone is to subject them to severe suffering as punishment or to coerce
them into saying or doing anything. Death follows acts of violence and suffering.

Torture is not defined by the Indian Constitution or any other criminal legislation,
nevertheless. The purpose of torture is to inflict pain on the weak in order to
make them bow to the strong's will. Society is negatively impacted by it. This
crime ranks among the worst ever committed in a nation where the rule of law is
upheld, and it poses a significant threat to societal order.

Today, the most repulsive feature of human society is what we refer to as

"torture." When a judge gives the criminal justice system custody of an offender, he
or she acknowledges that the system has authority over the offender and must use
that authority to advance the offender's health. The phrase "custody" implies that
protection and surveillance are required. The unpleasant signs of violence while
in captivity are not even mentioned when it is used to indicate arrest or
imprisonment. Even if it means being detained or arrested, there are no foreboding

30
indicators of violence being captured.
Violence committed when a person is in custody is referred to as "violence
in custody," regardless of whether it is legal or not. Subtle or severe types of
violence might include beatings, rape, emotional or physical abuse, or even
death.
3.3.2 Definition Under Custodial Crimes (Prevention, Protection And
Compensation) Bill, 2006
The Custodial Crimes (Prevention, Protection and Compensation) Bill, 2006
defines custody crimes as "an offence committed against any arrested person or
person in custody while that person was in the custody of a police officer or a
public servant who has the authority under any law to arrest and detain a person
in custody during that period."

3.2.3 The Prevention Of Torture Bill, 2010

In order to ratify the 1975 United Nations Convention Against Torture, a

measure was filed in Parliament (CAT). By defining torture as "severe injury" or
a threat to life, limb, or health, the measure seeks to make acts of torture
committed while a person is being held in custody unlawful. The bill's
definition of "torture" restricts the use of force during interrogation to get a
confession, differing from the Criminal Arrest and Torture Act (CAT).

3.2.4 Special Rapporteur On Torture

Sexual attacks against women in detention include rape, threats of rape,

genital groping, nudity stripping, intrusive dressing room searches, and sexual
assault, according to the UN Special Rapporteur on Torture (2008). There are
frequently other types of sexual assault included as well, such insults. Many
governments and societal institutions use harsh beatings and mental torture on people
to achieve a variety of objectives, including humiliation.

Violence, which can take three various forms of her: physical, mental, and
emotional, is the most frequent technique used to tear and bend an inmate. The
majority of individuals reflexively consider some therapies to be improper.
Culture may have an impact on others. International processes require proof,
not just an opinion, that the incident qualifies as assault or abuse in the
context of a prison.

31
3.2.5 Types Of Cutodial Violence

To achieve their objectives, the government authorities employ a number of

methods to instigate or carry out acts of custodial violence.

Psychology Torture
The victim's self-assurance and spirits are lowered using the following
techniques:
a) Disinformation and torturous communication techniques that are used on
purpose.
b) By coercion or threats, in which the victim is forced or intimidated into
engaging in or witnessing behaviours that cause emotional distress. The
sufferer is forced to pick between two terrible possibilities that are physically
and mentally agonising. causing the victim to break societal taboos, making
them see other victims' pain, etc.
c) By depriving the victim of basics including food, water, sleep, and access to the
bathroom, which results in confusion and disorientation. Sensory deprivation of
light and sound, social deprivation brought on by prohibiting visitors from
gathering, religious ceremonies from being observed, and imprisonment in solitary
confinement, among other things, all affect a victim's sense of time and
location.
d) Pharmacological methods, such as utilising various drugs to aid in
torturing a victim, cover up the torment's effects, or both.
e) Threats and humiliations directed at those who are being held, their family
members, or friends.
Physical Violence
Techniques that result in pain, discomfort, and dysfunction throughout the body are
considered physical torture. Not killing the victim is the aim of torture.
Additionally, the tormentor makes sure the prisoner is concealed during a routine
inspection. The torturers, however, cannot be trained to do their crimes in a
way that makes it hard to identify them. Despite precautions, physical abuse
always leaves a trace that is eventually found. Because of breakthroughs in
medical knowledge, internal damage can still be discovered years after a
torture happens.

32
The common methods used to physically injure or torture captives include the
following:

a) Causing weariness and deformity.

b) Suffering excruciating pain that causes the afflicted to dread instant death.
c) Setting the mattresses of the sufferers on a wet floor.
d) Making the children stand in the heat or in the sun when they are entirely
naked.
e) Cuts and scratches are made on numerous body parts using sharp objects.
f) Hitting him with anything sharp or forcing him to walk barefoot on a
glass or uneven floor.

g) Twisting or striking the joint might rip its ligaments, causing agonising
agony.
h) Supporting oneself by holding the victim's wrists, feet, or hair. The most
frequent hybridizations involve species like falanga, electric shock, heat,
and cold.
i) Twisting or pricking fingers, ears, or hair; ripping out nails; and impairing
hearing by simultaneously striking both ears with both hands.

j) Apply irritants to sensitive areas and open wounds, such as table salt, chilli
pepper, etc.

Sexual Violence
Sexual assault victims face serious social and psychological repercussions. It starts
with sexual assault and degrading comments that go against the victim's common
sense. It results in rape and sodomy.

3.2.6 Human Rights

Neither the Indian Constitution nor any UN declarations or treaties provide an official
definition of the word "human rights." But these liberties, which we cannot
survive without, are typically regarded as being basic to us as humans. These
rights are granted to us just for being human. These fundamental human rights have
been acknowledged for as long as human civilization has existed.

The Universal Declaration of Human Rights was decisively ratified and

proclaimed by the United Nations General Assembly on December 10th, 1948.

33
The Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights both come into force on January 3, 1976, and on
March 23, 1976, respectively, providing the Articles a legal framework. India
joined two international treaties on April 10, 1979, after depositing its documents of
accession and signing the Universal Declaration of Human Rights.

3.2.7 Police

Even in the event of natural or man-made calamities, the police can keep the
calm of the community by working day and night. The formal and official
functions and obligations of the police are set forth through laws and executive
orders. The public, however, owes the police a bigger duty. The police, who are
the most noticeable part of the government, are available all year and have various
responsibilities that are not required by the law. Police battle crime and uphold
order using their authority.

Only if they behave morally, legally, and compassionately will they be able
to carry out their duties successfully with the assistance and collaboration of
the general public. People don't want to engage with the police because of the
general perception that they frequently travel abroad to uphold the law. a breach of
human rights. When someone is arrested, they have less freedom.

3.3 International Convention On Torture

The scope of the definition is broad as it takes into account both the physical
and mental pain or suffering of the victim. However, "pain or suffering merely
resulting from inherent or supplemental lawful sanctions" is expressly excluded
from the definition.

Under the Convention, "torture" can continue where and within the limits of
local law. This means that "legal" torture can continue in countries that have ratified
the Convention. Violence committed in custody is a deliberate violation of human
dignity. There are many reasons for the increase in violence in prisons of all
kinds. When someone is caught and put in jail, they are treated cruelly to force
them to tell the truth. This type of treatment lowers self-esteem, and when the
suffering becomes unbearable, prisoners may commit suicide.

Under the pretence of upholding law and order, guardians or guardians frequently

34
murder prisoners. This cruel treatment causes the majority of convicts to pass away.
Especially if individuals pass away while being held in prison, the police are
solely to blame for these tragedies. Prisoners who have been detained or kept
in facilities or facilities under the control of law enforcement or prison
officials frequently die.

3.4 Custodial Violence: A Human Rights Approach

Many questions are raised by the idea that deaths and violence committed in
institutions are among the worst crimes ever done in human history. Unjustified
deaths and other atrocities committed while in detention have an effect on law
and order, calm, and community ways of life. Public perceptions of society's
safety are impacted by police violence and other crimes.

When horrible crimes are committed frequently, people are more affected.
Torturing suspects has been deemed inhumane, demeaning, and cruel by law
enforcement, and defendants' human rights have been maintained by courts all
around the world. All laws that affect courts should be prohibited. These crimes
are conducted within the confines of a police station, prison, or jail when the
victim is utterly defenceless under the pretences of "power" and "unity."

A nation's level of civilisation can be determined by the methods utilised to

carry out its criminal laws. In recent police investigations, third-degree torture
and custodial fatalities have occupied increasing space, and the harm done to
individuals in prison is frequently severe.

For inmates, all fundamental rights are upholdable but are constrained by
incarceration. A someone dies while they are in the care of the police, a court, or
another agency, which is known as a "custodial death." Police personnel who violate
someone's human rights can be held accountable because they are a part of the
legal system and not above it.

India has a clear history of violating human rights on all fronts. It is absolutely
shocking that a state whose responsibility it is to uphold and defend human
rights has turned into the main perpetrator. Human rights activists and civil rights
organisations have often criticised the federal and state administrations for failing
to uphold fundamental rights and human dignity. Nevertheless, despite all of

35
these initiatives, there are still more human rights breaches and more state-
sponsored violence, which puts people's lives and liberties in peril.
There is nothing new about police and other legally designated authority breaking
the law. Nevertheless, despite all of these initiatives, there are still more human
rights breaches and more state-sponsored violence, which puts people's lives and
liberties in peril. Police have a lengthy history of breaching the law in our
situation. Their success story of not completely honouring human rights carries
on to this day. Basic rights and dignity are violated when violence is done when
an individual is in detention.

When police go above and above and abuse suspects, inmates, and detainees
while they are awaiting trial, the reputation of a civilised nation is damaged. The
"khaki" man appears to be above the law as a result of these deeds, and
occasionally even appears to be the law itself. The very foundations are being
threatened, and entire civilizations risk experiencing consequences that could
lead to their near extinction.

The electronic media also raises awareness of these concerns so that the
greatest number of people can think about and react to such situations. This puts
pressure on the governments and concerned officials to punish the guilty and
close any gaps in the law's application that may exist.

Inhumane and unlawful actions, as well as violence in detention, continue to be

a concern despite several rules, public awareness of the issue, advancements
in education, and major societal gains over time. If every person is to be granted
liberty or rights in the genuine spirit of the Constitution, this brutal reality must
be removed from our reality. The unalienable rights of all citizens should be
respected by everyone, whether they are civil servants or not, and they should
never be infringed.

Individual liberty is a valuable and prized right that is significant in every

citizen's life. There are inherent protections against violations of the right to life,
the right to personal liberty, and the right to a dignified existence. It is
understandable why the locals are outraged. Every time the law is broken, more
people call for justice, which justifies taking prompt corrective action. In many
nations, including India, the physical and psychological torture of people has

36
long been accepted as a legal or efficient kind of inquiry or interrogation.
Governments must set the example because they are the all-knowing, all-present
teachers. Laws are disrespected and everyone is urged to uphold them when the
government begins to break them.

In a civilised society, custody is one of the most significant and challenging

human rights concerns. Detainees' fundamental human rights are flagrantly violated
under all detention circumstances, legal or otherwise. Organizations like the
police, law enforcement agencies, reserve intelligence agencies, coast guards,
central reserve police, border security forces, central security forces, traffic
police, and mounted police are responsible for the majority of human rights
violations in jails. is brought on by an overabundance of personnel who are
involved in judicial or military administration, such as law enforcement.

To maintain competent state legislatures, a number of procedures are available

under the terms of the Indian Constitution, the mandates, the rules and
regulations created by their own bodies to regulate them, or the laws issued
by the Indian Parliament. In some locations, it helps to reestablish order and
harmony in society. The Indian Evidence Act of 1872, the Criminal Procedure
Code of 1973, the Civil Procedure Code of 1908, the Prison Manual, the Police
Manual, and the Indian Penal Code of 1860 are further legal documents.
Individual Rights The Prohibition against Torture and Other Inhuman or
Degrading Treatment, as well as other national and international conventions,
provide further protection for people who are detained.

He is a lawless group with a violent history that rivals that of one organised
force, said A.N. Mulla, a former judge on the Allahabad High Court.

Public order refers to the police's authority to maintain local calm, although this
authority must originate from the statute that created the police organisation. It's
not enough to just enforce the law. Law is the source of its authority, and law
may only be administered legitimately and not unlawfully. The rights of
perpetrators, victims, and witnesses must all be balanced, according to the police.
The power to regulate behaviour in accordance with social law strengthens the
police charter in a democracy.

While the police limit freedom and foster a sense of freedom between

37
citizens and the police, democracy places an emphasis on freedom. generate
conflict Police officers are viewed as superior to ordinary individuals, just as
preachers. He is in charge of maintaining the rule of law and the criminal justice
system. He has the option of applying the law there or not. He must uphold and
exhibit the highest ideals of humanity. The public relies on the police to act
and never anticipates a refusal or abandonment from the police. Police must
conduct themselves with courtesy, consideration, and humanity.

The police department was used as a uniformed social worker for the
impoverished and was therefore meant to provide "rapid aid" to civilian
concerns. Only a mindset of regard for human dignity, acceptance of human
rights, and obedience to norms and rules can bring about this. From antiquity
until the middle ages, rape and other horrifying acts that have an impact on the
victim's total presence were common in India. Both psychological trauma and
physical abuse rob the sufferer of their capacity to reconstruct their own bodies
and their selves. All societal segments, especially government officials, must make
a determined effort to change their attitudes.

It is crucial to create an environment free from all types of barriers so that

officials can fulfil their duties with dignity (legal, administrative, financial, etc.).
Appropriate training and orientation must be provided in order to lessen the
forces' aberrations.

38
 CHAPTER 4

CONTROL MECHANISM AND ACCOUNTABILITY

4.1. Prologue

There is a beautiful shaloka in Bhagavath Gita which says: “Brahma bootha

prasannathma na choshathi na kangshathi Santa saroeshu bootheshu madh
bakthim labhatheparam” Which means Lord says, “Those are dear to me who
treat all living beings as equal and with compassion and love.” The
protection to life and property and observance of due process of law by the
enforcement agencies particularly the police is an important issue today before
the society.

Police have a paramount role in protecting human rights and preventing custodial
crimes. In fact victims of crime whose rights are violated come to police to set
the law in motion and it is the duty of police to bring the wrong doer to
face the legal consequences of his action. Police action involves registration of
complaint, sending the first information to court duly investigating the case and
sending final report to court. Investigation involves examination of witnesses,
arrest of accused, and interrogation of accused in police custody, collection of
evidence and remand of accused.

It is in the process of these stages that police get criticised for commissions and
omissions with allegation of resorting to custodial violence. In the course of
maintenance of law and order police are authorized to use minimum force
and the quantum of force used is always a subject matter of controversy. Police men
invariably find themselves at the receiving end when they violate set procedures,
transgress law, misapply criminal law and overstep their legally sanctioned
authority. Police should realise that days of highhandedness are over. People are
increasingly becoming aware of their rights. Supreme Court has observed in
Kishore Singh Vs. State of Rajasthan as follows:

“No Police life style which relies more on fists than on wits, on torture than on
culture can control crime because means boomerang on ends and refuel the vice
which it seeks to extinguish. Secondly, the state must re educate the

39
constabulary out of their sadistic arts and inculcate a respect for human
persons a process which must begin more by example than by precept iflower
rungs are really to emulate. Nothing is more cowardly and unconscionable
than a person in police custody being beaten up and nothing inflicts a deeperwound
on our constitutional culture than a State official running berserk regardless of
human rights.” Police abuse of authority is so prevalent in the country that
the Allahabad High Court responded in outrage in a 2001 opinion: “A large
number of petitions are coming up before this court with allegations against the
Police that they are behaving like bandits, thieves, rapist and petty criminals...
The police are supposed to protect the people and not to rape, black mail or
loot them... it is high time that the police also start behaving in a civilised
manner.” Police are the peace keepers of the nation and have played a stellarrole
in keeping the diverse states together. As Mr. B.N. Mulick former Chief
ofI.B. said: “Without the constant vigilance and directing hand of the
Policeman society would disintegrate and without the Policeman’s guiding influence
society would not prosper as a corporate body.” The Supreme Court, in a memorable
judgement, in the case of D.K. Basu Vs. State of Bengal, stated: “Whenever the
human dignity is wounded, civilization takes a step backward.

The flag of humanity on each such occasion must fly at half-mast.” In Sube
Singh’s case a three-Judge Bench comprising Chief Justice Y.K. Sabharwal,
Justice B.N. Srikrishna and Justice R.V. Raveendran expressed concern over the
growing number of custodial violence in the country and the police using third
degree methods to interrogate the accused. The Bench said: “Unfortunately,
police in the country have given room for an impression in the minds of the
public; that whenever there is a crime, investigation usually means rounding up
all persons concerned and subjecting them to third degree interrogation in the
hope that someone will spill the beans” The Bench also noted, “Police are
branded as inefficient even when there is a short delay in catching the
culprits in serious crimes. The expectation of quick results in high profile or
heinous crimes builds enormous pressure on the police to somehow catch the
offender. The need to have quick results tempts them to resort to third degree
methods.” Even in this day and age, many sincerely believe that investigations cannot
be successfully handled without recourse to third degree methods.

40
There is a need to battle this mind-set. It is a challenge to our civilization
and to all values we cherish. Custodial crimes deliberately seek to destroy not
only the physical and emotional well-being of individuals but also, in some
instances, the dignity and will of entire communities. It seeks to destroy the
spirit. Research has shown that psychological wounds often are the most
devastating and the most difficult to repair. These psychological ailments prevent
them performing at optimal levels. Torture victims suffer from Post Traumatic Stress
Disorder and depression. Many of them typically have reduced learning ability
and their concentration ability and memory is also diminished.

4.2. Victims Of Custodial Violence

The majorities of victims of custodial violence are detainees held in connection

with criminal investigations, and include members of all religious communities
and social groups. Most of those who are the victims of custodial crimes and
brutality belong to sections of society that are economically poor or
disadvantaged, dalits, women, children, human rights activities and minorities.

4.2.1. The Poor

Increasingly the poor and the uneducated-the most vulnerable sections of society
have become targets of police abuse. They do not have influential acquaintances
that can put pressure on the police or money for bribes to secure their
release. A large number of reported cases of torture and custodial death result
from attempts to extract a confession relating to theft or other petty offences.
Clearly this suggests that the suspects belonging to the lower economic and social
strata are particularly vulnerable. On 18 May 2007, Mr Fumman Singh, resident
of Kotu Wala village in Feroze pore district of Punjab, was subjected to
torture after he was arrested on the charges of theft. The police allegedly
stripped him in the presence of other suspects in the police lock up and subjected him
to humiliation. Then, he was allegedly bound with ropes and beaten. Four police
personnel allegedly stood on his legs during the beating and extracted a
confession. He denies the crime and later retracted the confession. On 9 June
2007, 30-year-old Jawahar (surname unknown), a truck driver, was beaten to
death by a Traffic Sub Inspector (SI) for allegedly jumping the traffic signal at
Man Sarover Garden near Uttam Nagar in West Delhi. According to a relative,

41
the SI had asked for a bribe which Jawahar refused. The medical report
confirmed multiple injuries, primarily on the head. On the night of 16 August
2007, Mr Ashok, a physically challenged painter, went to lodge a First
Information Report at Nasirpur police post of the Sihani Gate Police Station
in Ghaziabad of Uttar Pradesh. According to his statement, a drunken police
constable attacked him. During the attack he was repeatedly kicked and punched
and Mr Ashok’s artificial leg was disposed of. The policeman hit the victim
repeatedly with a rifle butt until the victim lost consciousness. Doctors at the
Ghaziabad District Hospital in Uttar Pradesh had to amputate half of two fingers
of the right hand of Mr Ashok because of the injuries sustained during the
attack.15 It is a fact that the victims of custodial violence mostly are people
coming from poor unit backward sections of the society with little political or
financial power to back them. Personal enmity, caste and political considerations,
and at times peculiarly benefits because improvement considerations for custodial
deaths rather than investigation of cases. Members of the weaker or poorer
sections of society are arrested information and keep in police custody for days
together without any entry of such arrests in the police research. During the
informal detention they are subjected to torture, which at times results in death.
In the event of death in custody, the body of the deceased is disposed of
stealthily or thrown to a public place making out a case of suicide or accident.
Records are manipulated to shield the police personnel. The relatives or
friends of the victim are unable to seek protection of law on account of their poverty,
ignorance and illiteracy. But even if some voluntary organizations take up their
case or public interest litigation is initiated against the erring public officers no
effective or speedy remedy is available to them, as a result of which erring
public officers go scot-free. This situation gives rise to a belief that the laws’
protection is meant for the rich and not for the poor. If the incidents of
custodial crimes are not controlled or eliminated, the Constitution, the law, and
the State would have no meaning to the people which may ultimately lead to
anarchy destabilizing the society.16

The Law Commission recommended that confessions made to a police officer

15
“Painter thrashed by cop, loses fingers”, The Times ofIndia, APRIL 2024
16
Introduction to the 152nd Report ofthe Law Commission of India “Custodial Crimes”, August 1994

42
of the rank of deputy superintendent of police and above should be made
admissible in evidence provided that the investigation has been carried out by
such an officer himself. This recommendation of the Law Commission seems to
be funny, for the simple reason that the deputy superintendents of police are
not generally the Station House Officers who are empowered to investigate
crimes in majority of criminal cases. Hence, conferring of these powers to a
category of officers who do not have much to do with crime investigation does
not serve any purpose. In a South Indian State, 45 people died in police
Custody during the period from 1980 to 1993 (June) and all of them died in
police stations or while they were taken to hospitals after the torture in police
stations. Actions for torturing people in custody were taken against 58 police
personnel. Out of them 50 were constables and head constables. I was ASI, 6
were Sis and I was a Circle Inspector of Police. This shows that the deputy
superintendents of police normally do not figure as the accused in custody
deaths. The most revealing aspects of these custody deaths were that the
deceased were not involved in very heinous crimes. 13 people were taken
into custody in connection with theft cases, 5 were just suspects in crime, 8
were caught while they were quarrelling on some issues, one was caught while
he was witnessing a card-play, and finally one was tortured and killed as a result
of arguing with the constables. Again 3 people were handled by the police
on their suspicion that they were involved in illicit ganza trafficking, and another
for causing arson in a bazar, 3 were caught in connection with murder cases.
Majority of these who died to police custody were daily wage labourers and
people who come form the poor strata of the society. 26 people out of 45 were
in the age group of20-40 years.17

4.2.2. Dalits & Minorities

Member of dalit communities (formerly known as “Untouchables”) are also

particularly easy targets of custodial violence, as in many cases they are in a
situation of double vulnerability resulting from their poverty and perceived low
social status. The use of torture and other cruel, inhuman or degrading treatment
or punishment have been explicitly recognized by the government in a
number of legislation concerning “atrocities” against the Scheduled Castes (Dalits)

17
9 James Vadackumchery-Human Rights & Police in India-APH Publishing Corporation, Delhi at 124

43
and Scheduled Tribes under the Prevention of Atrocities Act, 1989, the Dowry
Prohibition Act, the Protection Of Women From Domestic Violence Act, 2005
etc. In particular, Section 3 of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 which defines “atrocities” is relevant.
Atrocities could be defined as: “Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe”, Among others: “

i. forces a member of a Scheduled Caste or a Scheduled Tribe to drink or

eat any inedible or obnoxious substance;

ii. acts with intent to cause injury, insult or annoyance to any member of a
Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter,
carcasses or any other obnoxious substance in his premises or
neighborhood;

iii. forcibly removes clothes from the person of a member of a Scheduled

Caste or a Scheduled Tribe or parades him naked or with painted face or
body or commits any similar act which is derogatory to human
dignity;

iv. compels or entices a member of a Scheduled Castes or a Scheduled

Tribes to do ‘begar’ or other similar forms of forced or bonded labour other
than any compulsory service for public purposes imposed by Government; (v)
intentionally insults or intimidates with intent to humiliate a member of
a Scheduled Caste or a Scheduled Tribe in any place within public
view;

v. assaults or uses force to any woman belonging to a Scheduled Caste or a

Scheduled Tribe with intent to dishon or or outrage her modesty;

vi. being in a position to dominate the will of a woman belonging to a

Scheduled Caste or a Scheduled Tribe and uses that position to explo it
her sexually to which she would not have otherwise agreed;

vii. corrupts or fouls the water of any spring, reservoir or any other source
ordinarily used by members of the Scheduled Castes or the Scheduled
Tribes so as to render it less fit for the purpose for which it is
ordinarily used;

44
viii. denies a member of a Scheduled Caste or a Scheduled Tribe any
customary right of passage to a place of public resort or obstructs such
member so as to prevent him from using or having access to a place of
public resort to which other members of public or any Section thereof
have a right to use or access to;

ix. forces or causes a member of a Scheduled Caste or a Scheduled Tribe to

leave his house, village or other place of residence.” Many of the
elements of abuses above are also included in the Article 1 of the
Convention against Torture. Nonetheless, despite legal protection, lower
castes continue to be particularly vulnerable to violation because of the
failure to implement these laws.

The 2005 Annual Report of the National Crime Records Bureau reported a
total of 26,127 cases-8,497 cases under the Protection of Civil Rights Act and
291 cases under the SC/ST (Prevention of Atrocities) Act of 1989-against the
Scheduled Castes. Although the average charge-sheeting rate for the crimes
against the SCs was 94.1 per cent, the average conviction rate was only
29.8%. A total of 46,936 persons (82.4%) out of 57,804 persons arrested for crimes
committed against Scheduled Castes were charge-sheeted but only 28.3% were
convicted consisting of 12,691 persons out of 44,842 persons against whom trials
were completed.18

On 4 August 2007, a dalit identified as Mr Ram Kagan (25)(son of Ram

Kishor) of Pani village under Meza police station in Allahabad district of Uttar
Pradesh was beaten up while in custody in the local police station by Sub
Inspector Arun Kumar Pathak. He was arrested following a complaint lodged by
another villager purportedly in an attempt to take over the victim’s land. Often the
upper castes file frivolous cases or use the law enforcement personnel to grab
lands from dalits. According to the information the Sub Inspector allegedly
placed bricks on the victim’s back and hit his backside with a stick. After
torture, the victim was kept in the police station overnight and then
released.

18
Report of National Crime Records Bureau, Ministry of Home Affairs, 2005 available at
[Link]

45
On 31 August 2007, women and children of the dalit caste, including Ms.
Gyanti Devi and her infant daughter Sarita were tortured by upper castes at
Siwalapar village on the outskirts of Patna in Bihar. According to the report,
members of the upper caste villagers beat up some Dalit children for playing
inside the premises ofa Hindu temple. When Ms. Gyanti Devi objected, Mr.
Ramavtar Yadav and his three sons barged into Gyanti Devi’s house
and attacked her. Gyanti Devi was cooking at the time with her six-moth-
old daughter Sarita in her lap. Mr Ramavtar Yadav apparently poured the hot
idaaV over Ms. Gyanti Devi’s back some of which splashed the child. Both
suffered serious injury.

Mr. Ramavtar Yadav and his three sons subsequently beat up three other Dalit
women identified as Gauri, Kamla and Usha. On 19 August 2007, a Class IV
student identified as Navin Kumar Paswan (9), (son of Shivji Paswan), a dalit,
was so badly beaten up by his teachers that he lost the use of an eye in a
government school at Aujapauchha village in Pumea district of Bihar. The little
boy’s apparently requested more food during a midday meal. He was beaten up
by the headmaster of the school, Mr Rajendra Jaiswal and class teacher Mr
Shekhar Bharti.19

On 2 October 2007, police picked up a low caste dalit identified as Mr Ram

Milan (22), (son of late Bairagi) of Mitawa village, under Maharaj Ganj police
station in Jaunpur district of Uttar Pradesh. He was detained in connection
with a murder. While taking him to the police station, the police beat him
up.

In the Maharaj Ganj police station, the station officer, Mr Kanchan Singh,
allegedly forced the victim to confess to the crime. When he protested his
innocence, they put planks of wood on his knees and two policemen walked on
the wood. On 3 October 2007, he was released on the condition that he would
present him self to the police station when called to do so.

Although the country has numerous laws protecting human rights, enforcement
was lax and convictions were rare. Social acceptance of caste-based
discrimination remained omnipresent, and for many, validated human rights

19
ACHR complaint No BH/05/2007

46
violations against persons belonging to lower castes.

4.2.3. Women

There has been an overall increase in crimes against women recorded in the post
independence period, particularly in the context of custodial violence by police.
Women are particularly vulnerable to police abuse. Their humiliation is often
greater as they are often tortured solely as a means of putting pressure on
the nhusbands and families. In its report to the Seventh Session of the UN
Human Rights Council (3- 28 March 2008), the UN Special Rapporteur on
Torture dealt with the issue of torture of women at length. The Special Rapporteur
held that: “Custodial violence against women very often includes rape and other
forms of sexual violence such as threats of rape, touching, "virginity testing",
being stripped naked, invasive body searches, insults and humiliations of a
sexual nature, etc torture and by regional jurisprudence that rape constitutes
torture when it is carried out by or at the instigation of or with the consent or
acquiescence of public officials.”

In a 1997 decision on a case of custodial rape the European Court of Human

Rights acknowledged that: “rape of a detainee by an official of the State
must be considered to be an especially grave and abhorrent form of ill-treatment
given the ease with which the offender can exploit the vulnerability and
weakened resistance of the victim (...) rape leaves deep psychological scars on
the victims which do not respond to the passage oftime as quickly as other
forms of physical and mental violence,”20

430 This is crucial because in many countries rape is still defined as “carnal
access”, reducing it to penetration with the male sexual organ. It is noteworthy
that other forms of sexual violence, whether defined as rape or not, may
constitute torture or ill-treatment431 and must not be dealt with as minor
offences. The Special Rapporteur held that:

“When Government officials use rape, the suffering inflicted might go

beyond the suffering caused by classic torture, partly because of the intended
and often resulting isolation of the survivor. In some cultures a rape victim
may be rejected or formally banished from her community or family. This
20
See E/CN.4/1992/SR.21, at para 35 and E/CN.4/1995/34, at para 19

47
rejection greatly hinders the psychological recovery of the victim and often
condemns her to destitution and extreme poverty. Even when rape survivors are
not rejected they still face important difficulties in establishing intimate
relationships.433 Furthermore, raped women are often infected with sexually
transmitted diseases or may experience unwanted pregnancies, miscarriages,
forced abortions or denial of abortion.™ Because of the stigma attached to
sexual violence, official torturers deliberately use rape to humiliate and punish
victims but also to destroy entire families and communities. This is particularly
clear when State officials force family members to rape their female relatives
or to witness their rape.

The Akayesu decision, in which the International Criminal Tribunal for Rwanda
(ICTR) recognized rape as a form of genocide in the same way as any
other act committed with specific intent to destroy a particular group, is a striking
acknowledgment of the destructive potential of rape. The ICTR made it explicit
that these rapes resulted in the physical and psychological destruction of Tutsi
women, their families and their communities,”21

Torture of women in custody including rape is reported regularly in India.

Custodial rape remains one of the worst forms of torture perpetrated on women
by law enforcement personnel. Official reporting is nothing short of appalling.
According to National Crime Records Bureau (NCRB), two custodial rape cases
were reported in India (one each from Andhra Pradesh and Maharashtra) in
2006, seven custodial rape cases in 2005 and two custodial rape cases in
2004.

On 21 May 2007, Ms Geeta Devi (30) committed suicide by consuming poison.

She alleged that she was tortured diming detention in police custody at Gourihax
police station under Chhattarpur district in Madhya Pradesh. She was
detained by the police on 20 May 2007 in connection with the theft of a motorcycle
and released late in the same night. She committed suicide at her residence the
next day.

Women belonging to Scheduled Castes and Scheduled Tribes remain particularly

vulnerable. On 16 May 2007, Ms Suman Kale (45), a tribal woman, died after

21
Prosecutor Vs. Akayesu, ICTR-96-4,13 February 1996, amended 17 July 1997

48
she was allegedly tortured for three days while held illegally in police
custody at Ahmednagar in Maharashtra. She was arrested on suspicion of
providing shelter to dacoits.438 On 27 March 2007, a Dalit woman, (20 years
old) of Bhimnagar area of Kashipur town was allegedly raped by a Sub-
inspector and the ‘in-charge’ ofthe police post at Industrial Training Institute, Mr
R.K. Saklani and two other policemen at Chaiti Mela camp in Udham Singh
Nagar district of Uttaranchal. The victim was raped when she went to lodge
a First Information Report against three youths for gang raping her on 24 March
2007. The police later charged both the victim and her legal representative
Sanjay Rohilla with theft.

4.2.4. Children

Though the government of India has not ratified the UN Convention against
Torture, it has ratified the United Nations Convention on the Rights of the Child
that expressly forbids the use of torture against children. Article 37(a) of the
Convention on the Rights of the Child (CRC) states: “No child shall be
subjected to torture or other cruel, inhuman or degrading treatment or
punishment. Neither capital punishment nor life imprisonment with outpossibility
of release shall be imposed for offences committed by persons below 18
years of age:'

Article 37(b) ofCRC forbids illegal detention. It states:

“(b) No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time? India has made attempts to
criminalise these practices in the Juvenile Justice (Care and Protection) Act of
2000 that outlaws illegal detention and torture of children. However while there are
clear legal protections for children the reality is very different. Children are
regularly subjected to torture, placed in illegal detention and at high risk of
further violation (detained with adults).
A commitment to protecting children would require a step change in the overall
environment. It is difficult to see why the torture of children is likely to end
before ending of general torture. Police personnel of the Shastri Nagar Police

49
Station in Patna of Bihar detained two minors identified as Rakesh (8 years old)
and Rahul (6 years old) for nearly six hours without food and water for
allegedly stealing berries from a local market.

The minor boys say that they were beaten-up and locked up along with several
convicts. It was only when the local residents and media teams arrived at the
police station that both minors were released. On 6 August 2007, two tribal
children identified as Bhutan Khalko (6) and Bhuto Khalko (4), residents oftribal
colony near the Barasat Municipality, were picked up by the police on the
charges ofstealing and illegally detained at Barasat police station in North 24
Parganas district in West Bengal for three days from 6-8 August 2007.
They were released without charge .Once girls are taken into custody, the risks
of sexual violence including rape and torture is high. On 15 August 2007, a 17-
year-old Dalit girl identified as Seema, resident of Jagadishpur village, was
arrested after she was found near the Gaur Police Station in Basti district
of Uttar Pradesh. The police detained her overnight at the police station.

The victim was allegedly tortured. She was released from the Gaur Police
Station on 16 August 2007 without charge. She died a few hours after her
release.23 On the night of 25 December 2007, a minor girl (name withheld) was
allegedly raped by Station House Officer (SHO), Manoj Rai at Raniganj police
station in Jethwara in Pratapgarh district of Uttar Pradesh. On 25 December
2007, the victim was picked up by the police while eloping with her boyfriend.
She was illegally detained at the Raniganj police station by the SHO Manoj
Rai. Her family tried to gain access to her but the SHO told them to return in
the morning.

She was illegally detained overnight. At some point in the night of 25

December 2007, Mr. Rai raped the minor.443 The UN Standard Minimum
Rules for the Administration of Juvenile Justice (The Beijing Rules) were
adopted by the General Assembly on 29th November, 1985 upon the
recommendation of the Seventh Congress. Prior to it, the Committee on Crime
Prevention and Control had contributed to the development of these rules, in
co-operation with the United Nations regional and inter regional institutes.
These rules had been further elaborated by the inter-regional preparatory
meeting for the Seventh Congress on “Youth, Crime and Justice.”

50
The rules take into account diverse national setting and legal structures reflect
the aims and spirit for juveniles. They represent the minimum conditions
internationally accepted for the treatment of juveniles who come into
conflict with the law. The Beijing Rules state that the aims of Juvenile Justice
are to enhance the well-being of the juvenile and to ensure that any
reaction to juvenile offenders shall always be in proportion to the circumstances of
both the offender and the offence. The Rules contain specific provisions
covering various stage of juvenile justice. They ensure that the placement of a
juvenile in an institution shall always be a disposition of last resort and for the
minimum necessary period. Riyadh Guidelines set forth standards for the
prevention of juvenile, delinquency including measures for the protection of
young persons who are abandoned, neglected, abused and exposed to different
parts of “social risk?’.

The guidelines cover the pre-conflict stage, i.e., before juveniles come into
conflict with the law. They have a “child-centered” orientation and are based
on the premise that it is necessary to offset those conditions that adversely
influence the healthy development of die child. To end this, comprehensive and
multidisciplinary measures are suggested to ensure to the young a life free from
crime, victimization and conflict with law.24

The guidelines focus on early preventive and protective intervention modalities

and aim at promoting a positive roe on the part of various social agencies,
including the family, the educational system, the mass media and the
community, as well as the young persons themselves. Street Children are
routinely detained illegally, beaten and tortured and sometimes killed by police.
The police generally view street children as vagrants and criminals. While it
is true that street children are sometimes involved in petty theft, drug-trafticking,
prostitution and other criminal activities, the police tend to assume that
whenever a crime is committed on street, street children are either involved
themselves or know the culprit. They force them to clean police stations, beat
them and even extort money from them.

It does not require much time or effort to detain and beat a child to extract a
confession and the children are unlikely to register formal complaints. The

51
Committee on Crime Prevention and Control elaborated the United Nations
Rules for the Protection of Juveniles deprived of their Liberty in close
cooperation with several inter-governmental and non-governmental organizations
such as Defence for Children International.

They advocate the least possible use of deprivation of liberty, especially in

prison and other closed institutions. The rules provide specific principles that
apply to all juveniles held in any form of detention, and in any type of
facility. They call for the separation of juveniles from adults in detention and
the classification of juveniles according to their sex, age, and risk situations.
They set forth special provisions covering various aspects of institutional life, such
as physical environment and accommodation, education, recreation, religion,
medial care, contact with outside world, inspection, complaints and return to
the community.

4.2.5. Human Rights Activists

Although government complicity was not always confirmed, scores of persons

disappeared in strife and insurgency-tom areas during the year. During the
militancy period many lawyers and human rights activists attempted to alert the
International community about the human rights abuses and to pursue human
rights cases in the courts. As a result, they were themselves targeted by the
police and a number of lawyers and journalists disappeared. Human Rights
defenders continue to be under constant surveillance and have been subjected to
harassment, threats and violent attacks by the police in attempts to
intimidate and silence them. False criminal charges have been brought against
some as a form of harassment.

4.3. Basic Principles Of ‘Justice For Victims Of Crime And Abuse Of

Power’

The word victim conjures up a multitude of images, each tragic and sorrowful.
The Oxford Dictionaiy’s definition of the word amounts to a person or a thing
injured as a result of circumstances. With crime rates increasing around the
world more and more people are falling prey to “illegal circumstances One
of the reasons for this increase is that modem man is slowly disassociating
himself from nature, beauty and spirituality and becoming increasingly obsessed

52
to the pursuit of material wealth. In today’s industrialized society the words of
Keats, “Truth is beauty and beauty is truth” seem to have lost their
validity.

Indeed today it would be more apt to “Truth is wealth and wealth is truth.” In
order to combat the onslaught of crime the State must play a critical role
as the rulers required to deal with the citizens in a just manner. It is the
principal right of every human being to demand justice and equality indeed
it is these very things which are the foundations and landmarks of any
civilized social system. Under every constitution it is responsibility of the
State to protect the life and property of its citizens. Hence, any path that
leads to justice and accords with basic human rights leaving aside
constitutional policy for a moment and seeking into religion again one
immediately becomes aware that practically every faith expands those very same
values.

25
The Declaration of basic principles of justice for victim of crime and abuse of
powers was adopted by the General Assembly on the recommendation of the
Seventh Congress. The declaration recommends measures to be taken at the
national, regional and international levels to improve access to justice and fair
treatment, restitution, compensation and social assistance for victims of crime. It
outlines the main steps to be taken to prevent victimization linked to abuses of
power and to provide remedies for the victims of such offences. A guide for
practitioners regarding the implementation of the declaration was prepared with
the assistance of the Helsinki Institute for Crime Prevention and Control
affiliated with United Nations. The Economic and Social Council emphasized
the need for the development of international means of recourse and redress for
victims where national channels may be insufficient.

The Eighth Congress, in a resolution entitled “Protection of the Human Rights

of Victims of Crime and Abuse of Power” urged the International
community to adopt the Declaration of the 7th Congress of the subject in
order to protect the rights of victims of crime and abuse of power. “Victims”
of abuse of power means persons who, individually or collectively, have suffered

53
harm, including physical or mental injury emotional suffering, economic loss or
substantial impairment of their fundamental rights through acts or omissions that
do not yet constitute violations of national criminal laws but of internationally
recognized norms relating to human rights.

It was desired that States should consider incorporating into the national law
norms prescribing abuses of power and providing remedies to victims of such
abuses. In particular, such remedies should include restitution, compensation and
necessary material, medical, psychological and social assistance and support.
States should consider negotiating multilateral international treaties relating to
victims.26States should periodically review existing legislation and practices to
ensure their responsiveness to changing circumstances should enact and
enforce, if necessary, legislation prescribing acts that constitute serious abuses of
political or economic power, as well as promoting policies and mechanisms for
the prevention of such acts and should develop and make readily available
appropriate rights and remedies for victims of such acts.

4.4. The Prison Administration In India

The criminologists maintain that Indian jails have grown onto new crime
factories, producing hardened criminals.

The horrifying stories of prison management hardly need any documentation.

The use of torture in Indian penal institutions is routine. For example, Asia's
largest prison and India’s prison reform showcase, Delhi’s Tihar Jail was the
subject of media concern in the year 2007 over the evidence of the use torture
against inmates. The use of torture is a matter of documented fact. In June
2007 alone, at least nine prisoners died in the Tihar jail. Post mortem reports
confirmed at least three of the deaths were a result of ill treatment that may
amount to torture.450 Similarly miserable conditions in Indian jails are not a
matter of assertion. On 18 June 2007,27 the Delhi High Court criticised the
Tihar Jail officials over the “extremely harsh” conditions of the Jail. The
treatment of suspects held on suspicion of acts of terrorism is an issue of
particular concern. On 30 May 2007, the Asian Age revealed that it had
received numerous letters from Tihar Jail inmates, especially those from Jammu
and Kashmir, alleging “terrible atrocities.” According to the inmates’ letters, the

54
excesses included “methodical torture”, as well physical and psychological
abuse enforced labour.

However, as with torture in other domains, and despite clear medical evidence,
the authorities appear unable to accept the current reality. India’s Home Minister
Shivraj Patil in a reply before the Rajya Sabha on 12 March 2008 stated that:
“The reasons generally attributed to these deaths are illness/natural death,
escapingfrom custody, suicides, attacks by other criminals, riots, due to
accidents and during treatment or hospitilsation.”

Prison conditions are very poor across India. According to the statistics of the
National Human Rights Commission, there were a total of 3,32,112
(international: 332,112) prisoners against the total capacity of 2,38,855 (238,855)
prisoners in the 1315 jails in India as on 31 December 2004. Out oftotal
prisoners, 2,32,731 (232,731) inmates were awaiting trial. This equates to 70%
ofthe total prisoners. This included 12,276 women and 1,570 children. The
highest overcrowding rate was reported from Jharkhand with 195.2%
overcapacity Delhi with 149.7%, Chhattisgarh with 94.5% and Gujarat with
91.5% sanctioned capacity.453 Jail conditions do not conform to international
standards and most lack basic amenities such as adequate food, drinking water,
sanitation, and health services. In its 2007-2008 Annual Report, the Ministry of
Home Affairs accepted that, “the deterioration of the condition of prisons,
prisoners, and prison staff because of inadequate allocations for the maintenance
and upkeep of prisons from the States.” They noted the need to increase the
capacity in jails to accommodate those awaiting trial and for convicted
prisoners as well as the need to improve sanitation in prisons and provide
adequate housing to prison personnel. For instance, the showpiece of India’s
prisons, Tihar Jail continues to suffer from significant overcrowding: there are
12,300 prisoners against sanctioned capacity of 6,200 prisoners in the Tihar
Jail.454 Of these, more than 83% of Tihar Jail’s population comprises of
under trial prisoners.

The Orissa High Court also made similar interventions. Orissa’s seventy
jails have a total capacity of 9,125 prisoners. However, as of August 2007,
there were more than 15,500 prisoners.457 Conditions are very poor. Health

55
provision and conditions are a particular concern. Nutrition is another
concern.

In August 2007, Orissa High Court issued a ruling designed to reduce

overcrowding, including the release of under trial prisoners on bail, in
cases where the charge sheet has not been filed within the time limit; release
on bail of inmates who had spent over a year in custody against charges
punishable by less than seven years; release of prisoners, who had been
granted bail, but had not been released because of inability to pay a surety
bond or cash deposit.458 In Andhra Pradesh, the conditions of all 10 sub-
jails in Anantapur district were of concern as a result of overcrowding and
the failure of the authorities to provide basic facilities. Of Asom’s 27 jails,
the conditions in the Hailakandi District Jail were reported to be die worst.
As many as 139 prisoners, 77 of them serving life terms, were held into a semi-
permanent structure meant to accommodate only 55 convicts. This jail was
supposed to be shifted to a 20- bigha plot 17 years ago.460 In Bihar, there
were more than 42,000 people lodged in various jails against a capacity of
about 20,000 as in April 2007.28

In Punjab, there were over 16,000 prisoners as of early May 2007 against
sanctioned capacity of 11,000 prisoners in 26 jails. The same was the cases
with the jails in Uttar Pradesh. According to the findings of an inquiry
conducted by the police and administration, 3,112 prisoners were lodged against a
sanctioned capacity of 670 in the Dasna jail in Ghaziabad district as of
mid-April 2007. The report also revealed that there were no watchtower, no
metal detectors, no public address system, no wireless sets, no generator, no
helmets or tear gas and a jail superintendent. Even the walls were below the
official norms and standards.463 In West Bengal, the jails which have been
renamed as ‘Correctional Home’ showed no improvement. It made little
difference.

The Krishnagar District Correctional Home remained overcrowded and lacked

basic services including sanitation. There were 1,072 prisoners as against the
sanctioned prisoners in the Correctional Home as of July 2007. Most of the
inmates were undertrials. While the Jalpaiguri District Correctional Home

56
had 846 under trial prisoners against sanctioned capacity for 551 inmates as
of21 May 2007.465 In Himachal Pradesh, 50 prisoners were shifted from
Nahan Model Central Jail to Kanda jail in Shimla due to overcrowding in
September 2007. Yet, 360 inmates continued to be lodged at the Nahan Model
Central Jail against the sanctioned capacity of 198 inmates as on 12 September
2007.466 In the Shillong jail of Meghalaya, 291 prisoners were lodged as
against its sanctioned capacity of 150 as of March 2007.29

Budgetary allocations are insufficient to realize these goals. During 1987 to 2002,
Central government provided Rs.131.72 crore468 to improve prison conditions.
According to 2007-2008 Annual Report of the Ministry of Home Affairs, to
modernize prisons (scheduled to be implemented over a period of five years
2002- 07 in 27 States), the Central government allocated Rs.1800 crore or
about US$ 45 million (1 USD= Rs. 40) to be share 75:25 between the Central
and State Governments. The scheme has been extended by a further period of
two years without additional funds to enable the State Governments to complete
their activities by 31 March 2009.

Against a target of 168 new jails, the State Governments have completed the
construction of 56 jails and 60 jails are expected to be completed by 31 March
2008. It appears that funds are in the majority committed to building new penal
institutions. 5.5 Penal System of India: An urgent need of reform Under the 7th
Schedule of the Constitution of India, prisons, reformatories, borstal and other
detention facilities come under the jurisdiction of the States. Prisons in
different states vary in their organization, rules and models. The Prisons Act of 1894
and various Jail Manuals govern prisons.

Like the Police Act the rules are inappropriate and archaic, written by an
administration that cared little for the value of Indian life. Given the
evidence of very poor living conditions and the high levels of human rights abuse,
unsurprisingly, there have been repeated calls for reform. However, as with
most other countries, political will for reform of penal institutions is limited.
The All India Committee on Jail Reforms (1980-83), more popularly known as the
Mulla Committee, drafted a model prison bill on the lines of standards
recommended by the United Standard Minimum Rules for Treatment of

57
Prisoners. The National Human Rights Commission of India has proposed
two model prison bills for consideration by state governments. Delhi, Jammu &
Kashmir and Rajasthan have enacted new legislation.

The Ministry of Home Affairs, responsible for administration of prisons in India,

circulated a Draft Bill of 1998 to all the State governments for
consideration. In the absence of system wide reform, there have been
limited attempts at partial reforms. Sub-section 25 of Section 59 of the Prisons
Act 1894 provides for rules regarding the appointment and visits by official
and non official visitors to improve the prison conditions and look after the
welfare of prisoners. The ex officio visitors consist of the District Collector,
District and Sessions Judge, Chief Judicial Magistrate, Director of Health
Services, Director of Industries, Director of Agriculture, Executive Engineer,
District Education and District Health Officer. Non-Official Visitors are
notified in the State Government Gazette and they consist of members of the
Legislative Assembly, social workers and those interested in correctional work:
psychiatrists, psychologists etc. Under the Human Rights Protection Act of
1993 (amended in 2006), the NHRC has the power to “visit, notwithstanding
anything contained in any other law for the time being inforce, anyjail or other
institution under the control of the State Government, where persons are detained or
lodged for purposes of treatment, reformation or protection, for the study of the
living conditions of the inmates there of and make recommendations thereon
to the Government.” In addition, the Courts-both High Courts and the
Supreme Court have had to intervene when reports of violations of the rights
of the prisoners have come to light in the media.

For example, on 7th November 2007, the Delhi High Court directed officials in
the Capital's Tihar Jail to install complaints/suggestion boxes in various cells to
enable prisoners to express concerns as they were unable to approach the courts
and other authorities. The NHRC could then collect the complaints and
petitions for appropriate action.30

If these attempts at reform have not improved the conditions of prisoners in

India’s penal system we should not be surprised. Piecemeal reform of the
Indian penal system is unlikely to change an archaic, abusive and resource

58
starved system. The very high levels of abuse in Indian jails points to the need
for wholesale reform. Taken individually many of these cases are media reports that
reflect the claims of the local prison authorities against allegations of
torture often made by the families of people who have died in Prison. But these
claims and counter claims should be read in the context of the environment: the
existence of a well documented institutional practice of torture; an institutional
practice itself an inherited practice as well as a legal and institutional legacy
designed to discriminate and punish.

The present study does not suggest that all these claims are necessarily valid,
rather that the cases are cause for concern for the authorities. The central
concern of this study is that the State is not fulfilling its obligation to
appropriately address these concerns. Under international law the burden is
on the State to provide the means, laws and mechanism to protect all citizens,
even those deprived of liberty, from abuse either by the state or other body or
individual. Where these protections fail and there is cause for concern, the state
should equally initiate impartial investigation, establish the facts based on the
available evidence and, should there be sufficient evidence, proceed to trial.
Again, the issue of eradicating the use of torture in Indian jails turns on
the issue of impunity.
As the cases demonstrate, there are mechanisms that can be implemented. In a
few of the cases presented below the authorities have launched inquiries. But
these cases are the exception rather than the rule. The numbers which
proceed for prosecution are even more limited. The failure to provide adequate
protection mechanisms, the failure to investigate and the failure to prosecute allows
the perpetrators of abuse to perpetuate abuses in the knowledge that they are,
effectively above the law.

And as long as the real extent of abuse in penal institutions remains a

matter of conjecture the chances of reform are poor. And the systems that allow
torture to take place are maintained. In 2007 there were repeated allegations of
torture throughout the penal system. This study provides a selection of the
reports of deaths where there were allegations of alleged torture. On 13
February 2007, under trial prisoner Mr Naqibullah Ali (30), an Afghan national,
reportedly died in circumstances of concern inside Tihar Jail in Delhi. The

59
interim post-mortem report revealed that the deceased's body had injuries
over the neck, lips, legs, and back of head.31

On 1 April 2007, an undertrial prisoner Mr K. Chandrabalan (30) of Sirkazhi

allegedly died after a beating inflicted by a warder at Cuddalore Central
Prison in Tamil Nadu. The jail authorities claimed that he fell ill and was
immediately taken to the Cuddalore Headquarters Government Hospital where
he later died. But, prisoners alleged that Chandrabalan’s death was a result
of the beating.

On 15 April 2007, an under trial detainee identified as Ajit, resident of Raj

Nagar, allegedly committed suicide by hanging himself from a ventilator grill
inside a jail at Jind in [Link] 17 April 2007, under-trial prisoner Mr
Makhan Singh Kushwah died under unclear circumstances at Joura Sub Jail in
Morena district of Madhya Pradesh. According to the Jailor of Joura Sub Jail,
Poonam Singh Baredia, the deceased suffered from an epileptic fit and died in
transit to hospital. The deceased's family claimed that he was tortured to
death.

The Orissa High Court also made similar interventions. Orissa’s seventy
jails have a total capacity of 9,125 prisoners. However, as of August
2007, there were more than 15,500 prisoners.457 Conditions are very poor.
Health provision and conditions are a particular concern. Nutrition is another
concern. In August 2007, Orissa High Court issued a ruling designed to reduce
overcrowding, including the release of un dertrial prisoners on bail, in cases
where the charge sheet has not been filed within the time limit; release on
bail of inmates who had spent over a year in custody against charges
punishable by less than seven years; release of prisoners, who had been granted
bail, but had not been released because of inability to pay a surety bond or
cash deposit.

In Andhra Pradesh, the conditions of all 10 sub-jails in Anantapur district were

of concern as a result of overcrowding and the failure of the authorities to
provide basic facilities.459 Of Asom’s 27 jails, the conditions in the Hailakandi
District Jail were reported to be die worst. As many as 139 prisoners, 77
of them serving life terms, were held into a semi-permanent structure meant to

60
accommodate only 55 convicts. This jail32 was supposed to be shifted to a 20-
bigha plot 17 years ago.460 In Bihar, there were more than 42,000 people
lodged in various jails against a capacity of about 20,000 as in April
2007.461 In Punjab, there were over 16,000 prisoners as of early May 2007
against sanctioned capacity of 11,000 prisoners in 26 jails.462 The same was
the cases with the jails in Uttar Pradesh. According to the findings of an
inquiry conducted by the police and administration, 3,112 prisoners were
lodged against a sanctioned capacity of 670 in the Dasna jail in Ghaziabad
district as of mid- April 2007. The report also revealed that there were no
watchtower, no metal detectors, no public address system, no wireless sets,
no generator, no helmets or tear gas and a jail superintendent. Even the
walls were below the official norms and standards. In West Bengal, the jails
which have been renamed as ‘Correctional Home’ showed no improvement.

It made little difference. The Krishnagar District Correctional Home remained

overcrowded and lacked basic services including sanitation. There were 1,072
prisoners as against the sanctioned 498 prisoners in the Correctional Home as
of July 2007. Most of the inmates were undertrials.464 While the Jalpaiguri District
Correctional Home had 846 under trial prisoners against sanctioned capacity
for 551 inmates as of21 May 2007.465 In Himachal Pradesh, 50 prisoners were
shifted from Nahan Model Central Jail to Kanda jail in Shimla due to
overcrowding in September 2007. Yet, 360 inmates continued to be lodged
at the Nahan Model Central Jail against the sanctioned capacity of 198 inmates
as on 12 September 2007.466 In the Shillong jail of Meghalaya, 291 prisoners were
lodged as against its sanctioned capacity of 150 as of March 2007.467
Budgetary allocations are insufficient to realize these goals.

During 1987 to 2002, Central government provided Rs.131.72 crore468 to

improve prison conditions. According to 2007-2008 Annual Report of the
Ministry of Home Affairs, to modernize prisons (scheduled to be implemented
over a period of five years 2002- 07 in 27 States), the Central government
allocated Rs.1800 crore or about US$ 45 million (1 USD= Rs. 40) to be share
75:25 between the Central and State Governments. The scheme has been
extended by a further period of two years without additional funds to enable
the State Governments to complete their activities by 31 March 2009.

61
Against a target of 168 new jails, the State Governments have completed the
construction of 56 jails and 60 jails are expected to be completed by 31 March
2008. It appears that funds are in the majority committed to building new penal
institutions. 5.5 Penal System of India: An urgent need of reform Under the 7th
Schedule of the Constitution of India, prisons, reformatories, borstal and other
detention facilities come under the jurisdiction of the States. Prisons in different
states vary in their organization, rules and models. The Prisons Act of 1894 and
various Jail Manuals govern prisons. Like the Police Act the rules are
inappropriate and archaic, written by an administration that cared little for the
value of Indian life. Given the evidence of very poor living conditions and the
high levels of human rights abuse, unsurprisingly, there have been repeated calls
for reform. However, as with most other countries, political will for reform of
penal institutions is limited.33

The All India Committee on Jail Reforms (1980-83), more popularly known as
the Mulla Committee, drafted a model prison bill on the lines of standards
recommended by the United Standard Minimum Rules for Treatment
of Prisoners. The National Human Rights Commission of India has proposed two
model prison bills for consideration by state governments. Delhi, Jammu &
Kashmir and Rajasthan have enacted new legislation. The Ministry of Home
Affairs, responsible for administration of prisons in India, circulated a Draft Bill
of 1998 to all the State governments for consideration.

In the absence of system wide reform, there have been limited attempts at
partial reforms. Sub-section 25 of Section 59 of the Prisons Act 1894 provides
for rules regarding the appointment and visits by official and non official visitors
to improve the prison conditions and look after the welfare of prisoners. The ex
officio visitors consist of the District Collector, District and Sessions Judge,
Chief Judicial Magistrate, Director of Health Services, Director of Industries,
Director 384 of Agriculture, Executive Engineer, District Education and District
Health Officer. Non-Official Visitors are notified in the State Government
Gazette and they consist of members of the Legislative Assembly, social workers
and those interested in correctional work: psychiatrists, psychologists etc.

Under the Human Rights Protection Act of 1993 (amended in 2006), the NHRC

62
has the power to “visit, notwithstanding anything contained in any other law for
the time being in force, any jail or other institution under the control of the
State Government, where persons are detained or lodged for purposes of
treatment, reformation or protection, for the study of the living conditions of the
inmates therefore and make recommendations thereon to the Government.” In
addition, the Courts-both High Courts and the Supreme Court have had to
intervene when reports of violations of the rights of the prisoners have come to
light in the media.

For example, on 7th November 2007, the Delhi High Court directed officials in
the Capital's Tihar Jail to install complaints/suggestion boxes in various cells to
enable prisoners to express concerns as they were unable to approach the courts
and other authorities. The NHRC could then collect the complaints and petitions
for appropriate action.469 If these attempts at reform have not improved the
conditions of prisoners in India’s penal system we should not be surprised.
Piecemeal reform of the Indian penal system is unlikely to change an archaic,
abusive and resource starved system.
The very high levels of abuse in Indian jails points to the need for wholesale
reform. Taken individually many of these cases are media reports that reflect the
claims of the local prison authorities against allegations of torture often
made by the families of people who have died in Prison. But these claims and
counter claims should be read in the context of the environment: the existence of a
well documented institutional practice of torture; an institutional practice itself an
inherited practice as well as a legal and institutional legacy designed to
discriminate and punish.34

The present study does not suggest that all these claims are necessarily valid,
rather that the cases are cause for concern for the authorities. The central
concern of this study is that the State is not fulfilling its obligation to
appropriately address these concerns. Under international law the burden is
on the State to provide the means, laws and mechanism to protect all citizens,
even those deprived of liberty, from abuse either by the state or other body or
individual. Where these protections fail and there is cause for concern, the state
should equally initiate impartial investigation, establish the facts based on the
available evidence and, should there be sufficient evidence, proceed to trial.

63
Again, the issue of eradicating the use of torture in Indian jails turns on
the issue of impunity.

As the cases demonstrate, there are mechanisms that can be implemented. In a

few of the cases presented below the authorities have launched inquiries. But
these cases are the exception rather than the rule. The numbers which
proceed for prosecution are even more limited. The failure to provide adequate
protection mechanisms, the failure to investigate and the failure to prosecute allows
the perpetrators of abuse to perpetuate abuses in the knowledge that they are,
effectively above the law. And as long as the real extent of abuse in penal
institutions remains a matter of conjecture the chances of reform are poor. And
the systems that allow torture to take place are maintained. In 2007 there were
repeated allegations of torture throughout the penal system. This study
provides a selection of the reports of deaths where there were allegations of
alleged torture. On 13 February 2007, under trial prisoner Mr Naqibullah Ali
(30), an
Afghan national, reportedly died in circumstances of concern inside Tihar Jail in
Delhi. The interim post-mortem report revealed that the deceased's body had
injuries over the neck, lips, legs, and back of head.

On 1 April 2007, an undertrial prisoner Mr K. Chandrabalan (30) of Sirkazhi

allegedly died after a beating inflicted by a warder at Cuddalore Central
Prison in Tamil Nadu. The jail authorities claimed that he fell ill and was
immediately taken to the Cuddalore Headquarters Government Hospital where
he later died. 35 But, prisoners alleged that Chandrabalan’s death was a result
of the beating. On 15 April 2007, an under trial detainee identified as Ajit, resident
of Raj Nagar, allegedly committed suicide by hanging himself from a ventilator
grill inside a jail at Jind in [Link] 17 April 2007, under-trial prisoner Mr
Makhan Singh Kushwah died under unclear circumstances at Joura Sub Jail in
Morena district of Madhya Pradesh. According to the Jailor of Joura Sub Jail,
Poonam Singh Baredia, the deceased suffered from an epileptic fit and died
in transit to hospital. The deceased's family claimed that he was tortured to
death.473 On 5 June 2007, Mr Anil Boraik died in judicial custody in
Golaghat jail of Asom. He was arrested on suspicion of theft on 12 May 2007.
He was sent to judicial custody on 14 May 2007. His mother Swagmoni

64
Boraik alleges that the deceased was tortured in police custody. She alleged
that the Officer-in-Charge of Khoomtai police outpost, Mr Narendra Nath
Gogoi, demanded Rs 20,000 from her in return for her son's release. Mr Anil
Boraik was then subjected to further illtreatment and denied medical treatment in
Golaghatjail. On 12 June 2007, Mr Gurdev Singh (35), a prisoner died under
unknown circumstances while lodged at Ferozepurjail in Punjab.

The jail authorities stated that Gurdev Singh’s medical condition was a concern
and had vomited twice. When his condition deteriorated, he was transferred
to the local hospital at 21:45 hours and declared dead at 21:55 hours. However,
Prabjit Kaur, wife of the deceased, stated that she had met her husband in the
Court on the same day and reported that he showed no visible signs ofill health.
On 31 July 2007, an undertrial prisoner Mr Abedali Molla (21) was
allegedly found hanged in Diamond Harbour Correctional Home in South 24
Pargana district of West Bengal. He was arrested following a complaint by Mrs
Taslima Khatun of Alipara village in Kulpi in South 24 Parganas district
alleging that Abedali had promised to marry her and they had cohabited.

According to Abedali’s cousin, Abdul Rahaman, Taslima Khatun’s family hired

people in the detention facility to murder Abedali. Abedali's brother was present
when the dead body was taken to Medical College & Hospital Morgue (Kolkata
Morgue) on 2 August 2007. He saw a blistering on the left side of upper back
and legs. According to advocates Muktikam Das and Pronil Roy, in the
Correctional Home a criminal gang extort from families of remand prisoners for
money. If they fail to pay, then the prisoners are subjected to physical and
psychological ill-treatment that amounts to torture. The victims are denied proper
sustenance and access to their family. The law firm alleges that Abedali died
as a result of torture in jail.

They allege that the victim was first killed. His body was later placed in a
manner designed to suggest suicide. On 21 August 2007,36 a 36-year-old convict
identified as Mr Balram Sharma allegedly committed “suicide” inside his prison
cell at the Raipur Central Prison in Chhattisgarh. The deceased’s hands were
bound and his body covered with a blanket. The Rajpur facility did not to
explain how the deceased managed to tie his own hands, cover himself in a

65
blanket and then commit “suicide” inside a prison cell where other prisoners
were also detained. On the night of 2 September 2007, a convict identified only
as Mr Virender (22) from Kabarchha village, died at barrack No. 1 in Jind
Prison in Haryana. The jail authorities claimed that he committed suicide by
hanging himself in the bathroom. However, the deceased’s family alleges that he
was hanged and the prison authorities conspired to present his death as a
suicide. The district administration has ordered a magisterial probe. On 1
November 2007, the Punjab and Haryana High Court directed the police to
register a case against the custodial death of Kewal Singh in Central Jail, Feroze
pore in Punjab on 20 April 2007.
The court acted on the post mortem report which identified 13 injuries on the
deceased’s body.37 In Prem Shankar Shukla Vs. Delhi Administration the
Supreme Court gave a number of directions with a view to reforming and
humanizing the jail administration. Unfortunately, for a variety of reasons, the
directions of the Supreme Court are not being followed properly in most of the
jails in the country. Similarly, in the case of Sheela Barse the Court dealt
with the question of treatment of women in police lock-ups and gave detailed
directions for improving conditions in the lock-ups and providing adequate
protection of the arrested persons and particularly to women kept in the
lock- ups.

Describing the conditions of police lock-ups, Justice A.N. Mulla Committee on

Jail Reforms has pointed out: “most of these lock-ups have insufficient
accommodation and are without even such basic facilities as lavatories, light,
water and ventilation. Sanitary conditions in these lock-ups are also utterly
unsatisfactory. The very first encounter of a person with the criminal justice
system thus invokes in him a reaction of abhorrence for and distrust in the
criminal justice system. Conditions of police lock-ups need to be urgently
improved.” He has further added that: “the conditions of living in sub jails are
worse than in many bigger jails mainly because the buildings are old,
improvised and badly maintained.

66
 CHAPTER-5
CASE STUDIES AND COMPARATIVE
5.1. Prologue

Custodial Violence is so endemic in Indian penal system that even human rights
bodies look tired of producing voluminous reports on custodial violence by police
in India. Jails and police lock-ups are living hells, hellish enough to degrade
human beings. For all practical purposes custodial crimes are on the rise. The
International Court ofJustice has suggested that the victims of custodial violence
be compensated. The Government of India has accepted the suggestion in
principle without showing any political will to implement it in action. As for
torture in custody-police usually resort' to third degree methods; a legacy left by
the British police administration-it is business as usual. In India Supreme Court
has taken a pioneering role in protecting the rights of citizens.

Supreme Court clearly declared that custodial torture is violative of right against
self-incrimination and an arrested person cannot be bound to answer self
incriminatory questions. On February 6th 2007, the concern of the Apex Court
against custodial violence materialized into the safeguards, it has devised, breach
of which would warrant departmental action on failure of the official concerned
to comply with any of the eleven requirements to be followed in all cases of
arrest or detention till legal provisions are made in that behalf, and also render
such officer liable to be punished for contempt of Court.

A Three-Judge Bench comprising Chief Justice Y.K. Sabharwal, Justice B.N.

Srikrishna and Justice R.V. Raveendran expressed concern over the growing
number of custodial violence in the country and the police using third degree
methods to interrogate the accused. The Bench said: “Unfortunately, police in
the country have given room for an impression in the minds ofthe public; that
whenever there is a crime, investigation usually means rounding up all persons
concerned and subjecting them to third degree interrogation in the hope that
someone willspill the beans.”

The Bench further noted: “Police are branded as inefficient even when there
is a short delay in catching the culprits in serious crimes. The expectation of quick

67
results in high profile or heinous crimes builds enormous pressure on the
police to somehow catch the offender. The need to have quick results tempts
them to resort to third degree methods.” The Bench further said the functioning
of lower level police officers should be monitored and supervised by their
superiors to prevent custodial violence and ensure adherence to lawful standard
methods of investigation. The Bench also opined that the endeavour should be
made to achieve a balanced level of functioning, where police respect human
rights, adhere to the law, take confidence-building measures and, at the same
time, firmly deal with organised crime, terrorism, white collared crimes and
deteriorating law and order situation, etc. Police should realise that days of
highhandedness are over. People are increasingly becoming aware of their rights.
The questions arise how far the government is liable for the police atrocities
violating the constitutional and legal norms and to what extent the judiciary has
controlled and curbed the irresponsible and illegal actions of the police officials,
which are perpetrated by them during the course of the performance of their
duties.

5.1. Hurdles Before The Indian Judiciary

The Indian judiciary despite powerful case precedents and rulings on custodial
violence and other human rights violence is restricted by a number of
factors:

[Link]:

At least 28.6 million cases are pending before the courts in India. According to
Chief Justice of India K.G. Balakrishnan, India needs at least 5,000 more
courts,22 1,539 more judges in the High Courts and 18,479 more judges in
subordinate courts to clear the backlog of cases within one year. Presently, India
has only 10.5 judges per million people485' In addition, vacancies are seldom
filled on time. There were four vacancies in the Supreme Court of India
(out of sanctioned strength of 26 judges, there were only 22 judges) as of 10 My
2007, 142 vacancies in the 21 High Courts of the country (there were 583
judges against the sanctioned strength of 725 judges) as on 1 My 2007 and
2,768 vacancies in the district and subordinate courts (there were 11,951 judges

22
More Courts required to clear pending cases: CJI, The Tribune dated 5 November 2007

68
against the sanctioned strength of 14,719 judges) as on 31 March 2007.

While dealing with the bail petition in Babu Singh Vs. State of U.P., Justice
Krishna Iyer remarked: “Our justice system even in grave cases, suffers from
slow motion syndrome which is lethal to ‘fair trial‘ whatever the ultimate
decision. Speedy justice is a component of social justice since the
community, as a whole, is concerned in the criminal being condignly and finally
punished within a reasonable time and the innocent being absolved from the
inordinate ordeal of criminal proceedings.” In Hussainara Khatoon Vs. Home
Secretary, State of Bihar, Justice Bhagwati declared that the right to speedy trial
is an essential part of fundamental right to life and liberty enshrined in Article 21
of the Constitution. In Sheela Barse Vs. Union of India Court reaffirmed that:
“the right to speedy trial is a fundamental right implicit in Article 21 of the
Constitution” and observed “the consequence of violation of fundamental right to
speedy trial would mean that the prosecution itself would be liable to be
quashed on the ground that it is in breach of the fundamental right.”23

5.2.2 Inconvenience And Harassment

While attending the courts: An important reason for reluctance of the public to
cooperate with the criminal justice system is the fact that their attendance in
Court entails a lot of inconvenience and harassment. In Bhim Singh Vs.
State of J&K the Supreme Court deprecated the manner of passing remand
order by the Judicial Magistrate without physical production of the accused person.
The arrested accused has a right to medical examination during his detention in
custody. In Sheela Barse’s Case, the Supreme Court has made it obligatory on
the part ofthe magistrate to enquire from the arrested person whether he has any
complaint of torture or maltreatment in police custody and to inform him
that he has a right to be medically examined.

5.2.3 Right To Privacy:

Right to privacy has been recognized as both a fundamental right and a right
guaranteed under the UDHR. Article 12 of UDHR reads, “No one shall be
subjected to arbitrary interference with his privacy everyone has a right to the
protection of the law against such interference or attacks.” The Supreme Court
23
CJI blames Govt, for Backlog, The Hindustan Times dated 8 April 2007

69
has accepted it as a fundamental right for the first time in Kharak Singh’s
case where U.P. Police regulation authorizing surveillance by way of domiciliary
visit and secret picketing were declared ultra-vires the Constitution. In Raja
Gopala’s case the Apex Court has observed that, “a citizen has a right to
safeguard the privacy of his own, his family, marriage procreation, motherhood,
child-bearing and education among other matters, because right to privacy implicit
in the right to life and liberty guaranteed to the citizen of this country under
Article 21 of the Constitution.

The privacy of a rape victim is violated during a criminal case. Taking

advantage of the lacunae in legal procedure the shrewd defense lawyer will
invariably encroach upon the privacy of the prosecutrix. It is time we
ponder over this problem faced by the victims of rape during court trial and
make in- camera trial mandatory for all rape cases. To protect the privacy of the
rape- victims, it is desirable that the identity of the victims must not
bepublished in any manner by any agency at any time.”

5.2.4 Impunity To Erring Police Officials:

About 1500 persons die in custody of Hie State each year. Only 4 police
personnel were convicted in 2004 and 3 in 2005. In 2004, 37 personnel were
charge sheeted and 25 personnel were charge-sheeted in 2005 for custodial death
& other criminal offences.488 In terms of mounting prosecution, the Court is
hampered by the immunities offered to law enforcement personnel under various
laws such as sections 45 and 197 of the Indian Criminal Procedure Code,
Section 6 of the Armed Forces Special Powers Act (see the relevant section on
the police). The government of India justifies these provisions as a means to
protect the armed forces from frivolous or vexatious penal as well as civil
actions that may arise from the acts committed in the discharge of official duty.
Torture is a grave crime.

The cases provided in this report and other human rights reports and supported
by the view of the Courts and the NHRC, demonstrate that this protection while
well intended, provides State officials with ‘cover’ to abuse their positions, break
Indian law and abuse the rights of India’s citizens. Through these provisions of
the Criminal Procedure Code as well as other National Security Laws, the

70
Executive is in effect undermining the Judiciary.

It is the role of the Judiciary to rule on whether allegations are vexatious,

abusive or frivolous or whether acts which have been done are part (or indeed
not part) of discharging an official duty. It is not for the Executive to act as
supra-judicial body through a “procedure established by laW\m Liability of
Government for its erring employees: The society’s cry for justice becomes
louder. Any form of torture or cruel, inhuman or degrading treatment,
whether it occurs during investigation, interrogation or otherwise needs the severest
condemnation. Ifthe functionaries of the Government become law-breakers, it is
bound to breed contempt for the law and no civilized nation can permit that to
happen.24

The government of India justifies these provisions as a means to protect the

armed forces from frivolous or vexatious penal as well as civil actions that may
arise from the acts committed in the discharge of official duty. Torture is a
grave crime. The cases provided in this study and other human rights
reports and supported by the view of the Courts and the NHRC, demonstrate that this
protection while well intended, provides State officials with ‘cover’ to abuse
their positions, break Indian law and abuse the rights of India’s citizens. “Rarely
in cases of police torture or custodial death, is direct ocular evidence
available of the complicity of the police personnel, who alone can only explain the
circumstances in which a person in their custody had died. Bound as they
are by the ties of brotherhood, it is not unknown that police personnel prefer to
remain silent and more often than not even pervert the truth to save their
colleagues - and the present case is an apt illustration-as to how one after the
other police witnesses feigned ignorance about the whole /watter.”-Supreme
Court of India on State of M.P. Vs. Shyam Sunder Trivedi and Ors.

1995 (4) SCC 262 The Judiciary’s role has been laudable, but the courts are
hampered by lack of specific legislation against torture, immunities offered to
the law enforcement personnel under the Criminal Procedure Code and national
security laws. It is pertinent to discuss the difficulties being faced by the courts
in bringing the erring police to justice. The first hurdle is gathering the evidence

24
UnstaiTed Question No. 1145 answered on 22.08.2007

71
against erring policemen.

The offence is committed in the dark rooms of the police stations in the
presence of other police personnel who will never speak against their colleagues
or superiors whoever had committed the torture; it becomes difficult to
collect the ocular evidence. To help the prosecution a suggestion was made by the
Law Commission in its 113th Report25 which recommended amendments to the
Indian Evidence Act so as to provide that in the prosecution of a police officer
for an alleged offence of having caused bodily injuries to a person while in
police custody, if there is evidence that the injury was caused during the period
when the person was in police custody, the Court may presume that the injury
was caused by the police officer having the custody of that person during that period
unless, the police officer proves to the contrary. The onus to prove the contrary
must be discharged by the concerned police official. The recommendation,
however, appears to have gone unnoticed and the crime of custodial torture, etc.
flourishes unabated. Secondly, criminal justice system of the Indian sub-continent
is based on the Anglo-Saxon accusatorial system under which the focus of the
judiciary is not on truth, but on evidence.

In a Gory murder case a man killed another man with an axe by splitting his
head in the middle. Investigating police officer did not find the original axe with
which the man was killed and he took another axe and put it within the split
head of the deceased and collected some of the dead man’s blood on it. The
murderer was arrested some days later and the axe was shown as “recovered1,5
from him on his confession and this axe (not the original one) was
considered a very important piece of evidence.

Article 300(1) of the Constitution declares: “The Government of India or of a

State may sue or be sued in relations to their respective affairs in like cases as
the Dominion of India and the corresponding State might have sued if this
Constitution had not been enacted.” This is however, subject to any law
made by made by Parliament or a State Legislature. Parliament has not yet
enacted any Act defining the limit of the liability of the Government for its
erring servants.

25
Introduction of 114 B to the Indian Evidence Act, Law Commission of India, 113th Report, at 5

72
There is no express mention of the extent of liability of Union of India or of a
State under Article 300, which refers back to Section 176 of Government of
India Act, 1935. Under Section 176 of the Government of India Act, 1935 this
liability was coextensive with that of Secretary of State for India under
Section 32 of the Government of India retained the provision of Section 65 of
the Government of India Act, 1858 which laid down that on the assumption of the
Government of India by the British Crown.

The Secretary of State for India-in-Council would be liable to the same

extent as the East India Company was previously liable. In a leading case, P &
O Steam Navigation Co. Vs. Secretary of State,26 which arose under Section 65
of the Government of India Act, 1858, distinction was made by the Supreme
Court of Calcutta between the acts done by the public servants in the
delegated exercise of sovereign powers and acts done by them in the conduct of
other activities. It was held that there would be no liability of the government in
the former case whereas in the latter case it would be liability of the
government.

While delivering the judgment Peacock CJ. observed: “It is clear that the East
India Company would not have been liable for any act done by any of its
officers or soldiers in carrying on hostilities, or for the act of any of its naval
officers in seizing as prize property of a subject under the supposition that
it was the property of an enemy, nor for any act done by a military or
naval officer or by any soldier or sailor whilst engaged in military or naval duty,
nor for any acts of any of its officers or servants in the exercise of judicial
functions.” But “if the company were allowed, for the purpose of the
Government, to engage in undertakings such as the Bullock Train and the
conveyances of goods and passenger for hire, it was only reasonable that they
should do so, subject to the same liabilities as individuals.” The Court further
opined that: “There is a great and clear distinction between acts done in the
exercise of what are usually termed sovereign powers and acts done in the
conduct of undertakings which might be carried on by private individuals
without having such powers delegated to them.” No action would lie in the

26
(1868-69 Bombay H.C. Reports Vol.-V Appendix-A at 7) followed by the same High Court in N.C. Dey Vs.
Secretary of State for India (1875-76ILR Cal. II)

73
former case. The sovereign powers were, according to the Court, “powers
which cannot be lawfully exercised except by a sovereign or private
individual delegated by a sovereign to exercise them.” The Court said that
the Secretary of State is liable for damages occasioned by the negligence of
servants in the service of Government, if the negligence is such as would render an
ordinary employer liable.

The Madras High Court in Secretary of State for Indian Council Vs. Hari
Bhunji27 and the Bombay High Court in P. V. Rao Vs. Khushaldas S. Advani
495 did not follow the P & 0 Navigation Co.’s case. In Hari Bhunji’s Case the
Madras High Court held that the immunity of the East India Company was
limited only to the Act of State and the distinction between sovereign and non
sovereign functions was not justified. In State of Rajasthan Vs. Mst.
Vidhyawati496 the Apex Court held that the Government will be vicariously
liable for the tortuous acts of its employees. Sinha CJ. referred to the Steam
Navigation Company case as of far-reaching importance, but departed from its
ratio. The learned Chief Justice held that the English Common Law rule of
immunity based on the old feudalistic notions of justice has no validity in this
country. The learned Chief Justice observed, “In India, eversince the time of the East
India Company, the sovereign has been held liable to be sued in tort or in
contract and the common law immunity never operated in India.

Now that we have by our Constitution established a Republican form of

Government, and one ofthe objectives is to establish a socialistic State, there
is no justification, in principle or in public interest that the State should not
be held liable vicariously fort he tortuous acts of its servants.” In Kasturi Lai Vs.
State ofU.P.497 the Supreme Court took a different view. In this case, the Court
affirmed the distinction made in the P & O Case between sovereign and non-
sovereign functions of the State and observed: “If a tortious act is committed
by a public servant and it gives rise to a claim for damages, the question to
ask is-Was the tortious act committed by the public servant in discharge of statutory
functions which are referable to, and ultimately based on the delegations of
sovereign powers of the State to such public servant? If the answer is in the
affirmative, the action for damages for loss caused by such tortuous act will
27
(1882) ILR Madras 273

74
not lie. On the other hand, if the tortuous act has been committed by a
public servant in discharge of duties assigned to him not by virtue of the
delegation of sovereign power, an action for damages would lie.” Gajendra
Gadkar, CJ observed as under: “The act of negligence was committed by police
officers which dealing with the property of Ralia Ram which they had seized in
the exercise of their statutory powers. Now, the power to arrest a person, to
search him, and to seize property found with him, are powers conferred on
the specified officers by statute and in the last analysis, they are powers which
can be properly characterized as sovereign powers, and so, there is no difficidty
in holding that the present claim of damages has been committed by the
employees of the respondent during the course of their employment, but the,
employment in question being of the category which can claim the special
characteristic of sovereign power, the claim cannot be sustained.” No clear and
articulate test has been laid down by the judiciary to determine the character
of the function of the State as sovereign and non-sovereign. The criterion for
determining the character of the Governmental function as laid down in Kasturi
Lai’s Case is whether the activity could have been carried on by a private
individual or not. But this criterion is not sound.

5.2.5 No Stern Laws For Compensation:

There is no law for compensation. India’s ratification of the International

Covenant on Civil and Political Rights expressed a reservation to Article 9
on the grounds that “under the Indian Legal System, there is no enforceable
right to compensation for persons claiming to be victims of unlawful arrest
or detention against the State.” Though the courts have regularly awarded
compensation, there is no coherence to the awards, the amount of compensation
depending on individual judges.

Nonetheless, Courts across India continue to award compensation and prosecute

the guilty law enforcement personnel. Increasingly, the courts have been
directing the State to recover compensation from guilty personnel.28

Speaking at the inaugural session of a seminar on “Custodial Justice”

organized by the National Human Rights Commission on 30 March 2006,

28
Replying to the Lok Sabha Starred Question No. 455 answered on 16 May, 2006

75
Union Home Minister, Mr. Shivraj Patil stated that government of India's has been
considering enactment of “a legislation to provide compensation to victims of
custodial violence”. However, replying in Parliament on 16 May 2006498, India's
Home Minister stated, “There is no proposal for a separate legislation to provide
compensation to victims of custodial violence”.

The Minister however added: “The Law Commission in its 154th Report on the
Code of Criminal Procedure, 1973 had recommended that in view of the
weakness of the existing provisions for compensation to crime victims in the
Criminal Law, it is necessary to introduce a new Section 357A in the Code
providing for a comprehensive scheme for compensating victims. Implementation
of the recommendation made by the Law Commission is subject to the
Government taking a final view, introduction and passage of an amendment Bill
in Parliament for which no time-frame can be fixed'.29

The Government of India has reiterated that it is considering amending Section

357 ofthe Criminal Procedure Code to enhance the scope of compensation to the
victims of all crimes (including custodial crimes).500 6.3 New Trend in the
Judicial Approach The decision in the Kasturi Lai’s case501 has not been
followed by the Supreme Court in subsequent decisions and therefore it is no
longer good law. A large number of cases do not refer to Kasturi Lai.502 The
theory of immunity has been rejected.503 in matters of violations of
Fundamental Rights by police officials during the course of the performance of
their official duties.

5.4. New Trend In The Judicial Approach

The decision in the Kasturi Lai’s case30 has not been followed by the Supreme
Court in subsequent decisions and therefore it is no longer good law. A large
number of cases do not refer to Kasturi Lai.502 The theory of immunity
has been rejected.503 in matters of violations of Fundamental Rights by police
officials during the course of the performance of their official duties.

In Kasturi Lai’s case, the Apex Court did not consider the State liability for
violation of Fundamental Rights of a citizen. Where on account of tortious

29
Id
30
AIR 1965 SC 1039

76
act of the servant of a State a person’s Fundamental Right to life and liberty was
violated, the Supreme Court granted damages and compensation to that person.
This liability is a new liability, which is not hedged in by any limitations
including the doctrine of sovereign immunity.

In N. Nagendra Rao & Co. Vs. State ofA.P, the learned Justice R.M. Sahai
in his illuminating judgment observed: “No civilized system can permit an
executive to play with the people of its country and claim that it is entitled
to act in any manner as it is sovereign.................No legal or political system
today can place the State above law as it is unjust and unfairfor a citizen
to be deprived ofhis property illegally by negligent act of officers of the State
without any remedy.............The modem social thinking of progressive societies
and the judicial approach is to do away with archaic State protection and place
the State or the Government at par with any other juristic legal entity. Any
watertight compartmentalisation of the junctions of the State as “Sovereign and
non- sovereign” or “Governmental or non-governmental is not sound. It is contrary to
modem judicial thinking. T!ie need of the State to have extraordinary powers
cannot be doubted.31

But with the conceptual change of statutory power being statutory duty for sake
of society and the people the claim of a common man or ordinary citizen
cannot be thrown out merely because it was done by an officer of the
State even though it was against law and done negligently.” (emphasis supplied)
The Court further opined that in a welfare State functions of the State are not only
confined to defense of the country, administration of justice or maintaining law
and order, but it extends to regulating and controlling the activities of people in
almost every sphere-educational, commercial, social, economic and even marital.
The Court laid down in the instant case that excepting those functions
which are primary and inalienable functions of a constitutional government, such as
administration of justice, maintenance of law and order and repression of crime
etc. the State is not immune from liability.

Courts all over the world have upheld the human rights of the accused and
observed that the torture of innocent people by the police is inhuman,

31
4 [Link] Rao & Company Vs. State of A.P

77
degrading and barbaric, that death in police custody is perhaps one of the worst
kind of crime in a civilised society, governed by the rule of law and poses a
serious threat to an orderly civilised society.

Nonetheless, the Supreme Court had issued directions in number of cases to

prevent custodial violence in India to prevent custodial violence by awarding
compensation to the victims and prosecuting the guilty law enforcement
personnel. Increasingly, the courts have been directing the State to recover
compensation from the erring police officials.

Indeed, no amount of compensation can revive a physical frame battered and

shattered by torture but it would be some solace to the victim or his heirs
if the courts express the society’s intolerable behaviour of the tormentor and award
compensation as recompense. The State should be made liable to pay the
compensation initially with its right to recover it from the delinquent so that the
victims or their heirs are not left to the mercy of the tormentor to recover the
amount of compensation awarded by the courts.

5.3.1 Latest Judgments Awarding Compensation:

In a plethora of cases, the Supreme Court of India time and again awarded
compensation to the victims of the custodial violence under public law
remedy. In Sube Singh Vs. State of Haryana and Ors,32 the question whether
compensation should be awarded under Articles 32 and 226, and for every
violation of Article 21 of the Constitution of India where illegal detention or
custodial violence was observed.

The Apex Court laid down the parameters to award the compensation and said
that: “In cases where custodial death or custodial torture or other violation of
rights guaranteed under Article 21 of the Constitution was established, courts
may award compensation in a proceeding under Articles 32 or 226 of the
Constitution but before awarding compensation, the court would have to pose
the following questions to itself: (a) whether the violation of Article 21 of the
Constitution was patent and incontrovertible, (b) whether the violation was gross
and of a magnitude to shock the conscience of the court, (c) whether
the custodial torture alleged resulted in death or whether custodial torture was
32
AIR 2006 SC at 1117

78
supported by medical report or visible marks or scars or disability.”

In Vikram Dhillon Vs. State of Haryana and Ors,sm the Supreme Court said,
“award of compensation in a proceeding under Article 32 or 226 of the
Constitution is a remedy available in ‘public law’ based on strict liability for
contravention of fundamental rights to which the principle of sovereign immunity
does not apply” On the report of The Times of India on 22 April 2007, The
Punjab and Haryana High Court took suo moto action based about the custodial
death of Mr. Kewal Singh on 20 April 2007. The deceased Kewal Singh was
facing trial in case FIR No. 27 dated 5 April 2007 registered at Police Station
Sadar, Moga under Sections 382, 506,148, 149 Indian Penal Code (IPC). He was
also arrested on FIR No. 34 dated 12.4.2007 registered at Police Station Sadar,
Moga under Sections 307, 324, 323, 382, 341 and 506 IPC read with
Section 34 PC.

In judicial custody he was detained in Sub Jail, Moga. On 20 April 2007

he was transferred to the Central Jail, Ferozepur on administrative grounds. In the
evening of20 April 2007, Kewal Singh died in custody. The inquiry by the
Additional Sessions Judge stated: “But as per post-mortem report at page 93
there are 13 injuries mark on the body of Kewal Singh. The nature of injuries
raises many questions. Even if his hand had got injured due to glass on the
wall, there is no explanation for the injuries on the body of Sh. Kewal Singh
especially head, back and lower part of back. It appears that excessive force
was used and he was given a severe beating by the jail staff. The
Superintendent of Jail both Moga and Ferozepur has not shown any justification
for shifting the prisoner Kewal Singh. The Superintendent, Central Jail,
Ferozepur, did not even bother to get the medical examination of Sh. Kewal
Singh done before admitting him in the Ferozepur Jail.”

On 15 February 2008, the Division Bench of Chief Justice Vijender Jain and
Justice Kanwaljit Singh of the Punjab and Haryana High Court (Court on its
own Motion Vs. State of Punjab) directed the State Government of Punjab
to pay compensation of Rs. 10 lakh to the next of kin. The Court observed that:
“The instrumentalities of State, and the jail authorities, who are responsible
to provide adequate facilities for the persons cannot deprive a person of his life.

79
Nothing can be more serious than custodial death of an inmate in a jail.

The whole concept of human rights, life and liberty will be put to naught
if this Court does not come down heavily on the State and its officers for taking
out the life of an under-trial without the authority oflaw.”509 On 5 February
2007, two-Judge Bench of the Madras High Court admitted the Writ Appeal
Petition (Writ Appeal No. 1018 of 2006) filed by Rajammal, the widow of a
custodial death victim, for enhancement of compensation.

The two Judge Bench ruled in her favour stating that it was: “appropriate to
enhance the compensation ordered by the learned single Judge from Rs. 3,00,000
to Rs. 5,00,000 as has been prayed for by the petitioner in the writ petition.”33
On 11 April 2007 a Two-Judge Bench of the Madras High Court in Writ
Appeal No. 1169 of2004 and WAP No. 2198 of2004 held that “justice
would be met” by awarding compensation of Rs 5,00,000 (USS 12,5000) to the
family of Mr Rajmohan who had died as a result of torture in police
custody.

On 3 May 2007, the High Court of Gujarat in the case of Premilaben R.

Jaishwal and Ors. Vs. Respondent: B.M. Jadeja and Ors (Spl. Cri. Appln. No.
328 of 1998) ordered the State government of Gujarat to provide interim
compensation of Rs. 40,000 (US$ 1,000) each to the petitioners. The court ruled
that the compensation should be recovered from the guilty police personnel
"considering the loss, shock and suffering and the delay.” The Court also
ordered for an investigation into the case by “an independent and competent
police officer of a higher rank.”

The High Court observed that:

“The departmental enquiry and its conclusion appear to be an eye-wash in so far

as the version of the police officers concerned appears to have been accepted in
to to without reference to the statements of the eye witnesses who were
examined at the magisterial inquiry.” The High Court further stated: “Rarely, in
cases of police torture or custodial death is there direct ocular evidence of
the complicity of the police personnel who alone could explain the circumstances in

33
Id at 64

80
which a person in their custody had died.

Bound as they are by the ties of brotherhood, it is not unknown that the police
personnel prefer to remain silent and more often than not even pervert the truth
to save their colleagues. Torture in custody flouts the basic rights of the citizens
recognised by the Indian Constitution and is an affront to human dignity. Police
excesses and maltreatment of detainees/undertrial prisoners or suspects tarnishes
the image of any civilized nation and encourages the men in “khaki” to consider
themselves to be above the law and sometimes even to become a law unto
themselves. Unless stem measures are taken to check the malady of the very
fence eating the crops’, the foundations of the criminal justice delivery system
would be shaken and civilization itself would risk the consequence of
barbarism.”

On 19 April 2007, the Bangalore Division Bench of the Karnataka High

Court in the case of S. Srinidhi Vs. State by K.G. Nagar Police Station and
Anr. (Writ Petition No. 3 of 2007) stated: we are of the view that a sum of Rs.
50,000/- would be an adequate amount of compensation payable by the State for
the illegal detention/torture on 7-1- 2007 by the Police.”

The Court while noted in its ruling: “Unfortunately, of late, on account of some
officials in the Police Department, the entire Police Department is getting a bad
name despite their good work. To arrest this bad name to the Police Department
and to see that the guilty are properly punished, we deem it proper to
direct the Director General of Police to get hold of the entire records and conduct an
independent enquiry to decide the (sic) hold that the person who is with
regard to illegal detention/torture in the case on hand.

In the event of any finding in terms of this order, the Director General of Police
may proceed against such erring official in accordance with law.”513 On 20
December 2007, a two judge bench of the Madras High Court dismissed the
appeal petition (W.A. No. 1328 of 2001) filed by the State of Tamil Nadu
against the order of the Single Judge of the Madras High Court of 8 December
2000 ([Link].11231 of 1997) asking the state government to pay Rs.2,00,000
(US$ 5,000) as compensation. While dismissing the appeal petition of the State
authorities, the Court stated: “Further more, it is not disputed that the

81
appellants are liable to pay compensation if at all the death was the result of
custodial violence. Therefore, the finding of the learned Single Judge
regarding the fixation of liability to pay compensation for the death of
Pancharaju due to custodial violence cannot be interfered with.”514 In Crl. O.P.
No. 8543 of2006 and M.P. No. 1 of 2006, (S. Krishnamoorthy and K. Palani Vs.
The State of Tamil nadu and Ors.) the Madras High Court ordered the State
Government of Tamil Nadu to pay Rs. 1,00,000 (US$ 2,500) to each petitioner
as compensation.

The Court also ordered: “Of course, it is true that the Police are, no doubt,
under a legal duty and have legitimate right to arrest a criminal and to
interrogate him during the investigation of an offence but the law does not
permit use of third-degree methods or torture of accused in custody during
interrogation and investigation with a view to solve the crime. End cannot
justify the means. The interrogation and investigation into a crime should be in
true sense purposeful to make the investigation effective. By torturing a person
and using third degree methods, the police would be accomplishing behind the
closed doors what the demands of our legal order forbid. No society can permit
it.”34 While making an award for compensatory damages in proceedings other
than through private law remedies, it is not the harm suffered by an individual
that is an issue; it is the quality of conduct committed by the delinquent upon
which attention must be focused. The delinquent should pay a sum which marks
the society’s condemnation ofhis behaviour and which is ofsufficient significance
to punish it effectively. Award of exemplary and punitive damages can be made
only to provide recompense to the party for conduct that requires condemnation
by the courts. These are not aimed at compensating the victim or his heirs
but to punish the delinquent for his high-handed disregard of the victims’
rights.3166.3.2 Latest Judgments awarding punishments: 517 On 24 January
2007, Additional Sessions Judge of Karkardooma Courts, Delhi, sentenced the
then Station House Officer (SHO) of Geeta Colony Police Station, New
Delhi, Mr. H. P Singh to seven years rigorous imprisonment for beating the
victim to death. It also issued a fine of Rs. 100,000 (US$ 2,500) out of which a
sum of Rs. 50,000/- (US$ 1250) be paid to the successors of deceased. The

34
Id at 74-75

82
court also ordered to register a case against IO, Assistant Sub-Inspector (ASI)
Prakash Chand.318 On 22 March, 2007, the Bombay High Court in the case
of The State of Maharashtra Vs. Subhash Gangadhar Panhale and Ors (Criminal
Appeal No. 1084 of 1988) after hearing both parties and their witnesses, the
Bombay High Court sentenced accused police officials Subhash Panhale, Ananda
Bhosale and Sunil Jadhav to “imprisonment for life with fine of Rs. 5,000/-
(US$ 125) in defaidt to suffer rigorous imprisonment for two years”, One year
rigorous imprisonment with fine of Rs. 1,000/- (US$ 25) in default to suffer
R.I. for three months for illegal confinement, “three years rigorous
imprisonment with fine of Rs. 3,000/- (US$ 75) in default to suffer [Link]
months”319 On 2 February 2007, Additional Sessions Judge (Delhi) SP Garg
sentenced three policemen: Head Constable Rajbir Singh and Constables Ramesh
Hooda and Bachchu Singh to seven-years rigorous imprisonment for the custodial
death of Mr. Indal Singh at Mehrauli police station in South Delhi on 3 January
1996 (Sessions Case No : 17/2003).520 On 4 April 2007, the High Court of Gujarat
dismissed the Criminal Appeal (Criminal Appeal No. 1301 of 1999) in the Case
of Govindbhai Shivabhai Jadav Vs. State of Gujarat, which was filed against the
judgment and order dated 30th November 1999 passed in Sessions Case No.
172/91 by the Additional Sessions Judge, Kheda atNadiad. The Gujarat High
Court upheld judgment and order dated 30th November, 1999 passed in Sessions
Case No. 172/91 by the Addl.

Sessions Judge, Kheda at Nadiad. The Additional Sessions Judge, found

Govindbhai Shivabhai Jadav guilty of an offence punishable under the provisions
of Section 304 ofthe Indian Penal Code relating to culpable homicide not
amounting to murder and sentenced him to rigorous imprisonment for 10 years
with a fine of Rs.10,000/- (US$ 250), in default of payment of fine, to undergo
rigorous imprisonment for 2 years. Mr. Yadav was also convicted of an offence
punishable under Section 331 ofthe IPC relating to “voluntarily causing hurt to
extort confession” and sentenced to rigorous imprisonment for 10 years and
fined of Rs. 5,000/- (US$ 125), in default ofpayment offine, to undergo rigorous
imprisonment for 1 year. The substantive sentences have been ordered to run
concurrently.

83
The appellant-accused Govindbhai Shivabhai Jadav, was a Senior Police Sub-
Inspector at Petlad Rural Police Station.521 On 23 June 2007,35 a fast track
court in Bikaner (Sessions Case No. 12/2007) sentenced four persons, including Jail
Superintendent Om Prakash Chavadia, Jailor Ram Kumar Jat and two
prisoners to life imprisonment for their involvement in the custodial death
ofprisoner Lakhvinder Singh.522 After trial, the main accused Om Prakash Chavadia
was convicted under Sections 302, 147 and 323 IPC and sentenced to undergo life
imprisonment under Section 302 IPC and fined Rs. 2,50,000/- (US$ 5,625)
and in default thereof to further undergo six months imprisonment, under
Section 147 IPC sentenced to two years imprisonment and a fine of Rs. 5,000/-
(US$ 125) and in default thereofto further undergo one month’s imprisonment
and under Section 323 IPC sentenced to one year’s imprisonment and fine of
Rs. 1,000/- (US$ 25) and in default thereof to further undergo one month’s
imprisonment. The conviction and sentence were challenged by the Om Prakash
Chavadia (Division Bench Criminal Appeal No. 548/2007) and requested an
“order for suspension or stay of his conviction On 25 March 2008, the High
Court of Rajasthan, in the case of Om Prakash Vs. State of Rajasthan (Criminal
Appeal No. 548/2007) dismissed the appeal.

The Court stated: “Unblemished service record and chance of promotion itself
cannot be ground for suspension of conviction in all the cases. In K.C. Saree’s
case Hon’ble Apex Court held that the court has the duty to look into all aspect
including the ramifications of keeping such conviction in abeyance. It is for the
person who is seeking relief from court on the ground of special reasons to
plead and prove existence of special reasons. We do not find any special reason
for suspension of conviction of the petitioner from the facts of the case and if
look into ramifications of suspension of conviction of accused we find from the
facts that consequence of suspension of conviction may damage the public faith
and may increase indiscipline in disciplined service.36

The petitioner was Dy. Superintendent of Jail and therefore, was in

employment in disciplined service of the State and employees of jail service are
supposed to maintain the law and order and poor public goes to them for

35
Id at 78
36
Supra note 6 at 81-82

84
their protection and it can be only when public may have full faith in the
officer. The present is not a case where a poor clerk or even officer is facing
the conviction on the alleged allegation of committing crime because of some
private vengeance and which conviction may not have affect on his duties.
The allegations in the present case are of very serious and of heinous nature,
which we do not want to narrate here in detail to avoid any observation, which
directly or indirectly have any bearing on the merit of the appeal preferred by
the petitioner against his conviction, but so far as prayer for suspension of
conviction of the petitioner is concerned, we do not find any reason much less than
any special reason for suspending the conviction of the petitioner.

The Hon’ble Supreme Court in K.C. Sareen’s case observed as under:

“When a public servant is found guilty of corruption after a judicial
adjudicatory process conducted by a court of law, judiciousness demands that he
should be treated as corrupt until he is exonerated by a superior court. The mere
fact that an appellate or revisional forum has decided to entertain his
challenge and to get into the issues and findings made against such public
servants once again should not even temporarily absolve him from such findings.
If such a public servant becomes entitled to hold public office and to continue to
do official acts until he is judicially absolved from such findings by reason of
suspension of the order of conviction, it is public interest which suffers and
sometimes, even irreparably.... ” 20. In the K.C. Sareen’s case (supra)
allegation was of corruption while holding the post and in the present case,
allegation is on an officer now holding the post of Superintendent of Jail and the
conviction is for committing murder ofa accused lodged in jail and allegation is
not only murder but brutal murder and after inhuman torture.

As a convict for charge of corruption is not entitled to hold the post even
during challenge to his conviction, the jail officer is normally not entitled to
continue on post during his challenge to conviction and until no special reasons
are there.”

On 13 April 2007, three Tihar (Delhi) jail officials-Deputy Superintendent K.S.

Meena, Assistant Superintendent Dhananjay Rawat and Chakkar Chief Mange
Ram were taken into custody on the orders of Additional Chief

85
Metropolitan Magistrate (ACMM) Kamini Lau. The Tihar officials were sent to jail
on the complaint of a 51 year old convict, Christopher James, who was
allegedly beaten up and critically injured by the trio when he tried to expose
their extortion-cum-smuggling racket in Jail No. 7. ACMM Lau had took
cognizance of offence under IPC sections 323 (punishment for voluntarily causing
hurt), 384 (punishmentfor extortion) read with section 511 (attempting to commit
offence punishable with imprisonment for life or other imprisonment)37.

On 17 August 2007, six persons, including a woman Sub Inspector (SI) and
three woman constables, were sentenced to life by Mahila Sessions Court Judge
Vs. Appa Rao for the custodial death of Kona Krishna Kumari of
Ghantasala in Krishna district in a women’s police station. The then SI of the
women’s police station, Jyothi Rayudu, constables Santoshamma, P.V. Ragini and
K. Raghavarani and drivers of the Vijayawada Municipal Corporation Gandikota
Venkateswarlu and Ranga Rao were also fined Rs. 9,000.525 On 7 December
2007, Additional Sessions Judge of Sangrur, Punjab sentenced five policemen,
including Deputy Superintendent of Police Rajinder Pal Singh Anand, to life
imprisonment for the custodial death of a man in 1996. The Judge awarded
a two year sentence to another policeman Jasdev Singh for the custodial death of
Balbir Singh, a mason at Shahpur village in Sangrur district.

Mr. Indal Singh at Mehrauli police station in South Delhi on 3 January 1996
(Sessions Case No : 17/2003).520 On 4 April 2007, the High Court of Gujarat
dismissed the Criminal Appeal (Criminal Appeal No. 1301 of 1999) in the Case
of Govindbhai Shivabhai Jadav Vs. State of Gujarat, which was filed against the
judgment and order dated 30th November 1999 passed in Sessions Case No.
172/91 by the Additional Sessions Judge, Kheda at Nadiad.

The Gujarat High Court upheld judgment and order dated 30th November, 1999
passed in Sessions Case No. 172/91 by the Addl. Sessions Judge, Kheda at
Nadiad. The Additional Sessions Judge, found Govindbhai Shivabhai Jadav guilty
of an offence punishable under the provisions of Section 304 of the Indian
Penal Code relating to culpable homicide not amounting to murder and
sentenced him to rigorous imprisonment for 10 years with a fine of

37
Id at 82-83

86
Rs.10,000/- (US$ 250), in default of payment of fine, to undergo rigorous
imprisonment for 2 years. Mr. Yadav was also convicted of an offence
punishable under Section 331 of the IPC relating to “voluntarily causing hurt to
extort confession” and sentenced to rigorous imprisonment for 10 years and fined
o Rs. 5,000/- (US$ 125), in default of payment of fine, to undergo rigorous
imprisonment for 1 year. The substantive sentences have been ordered to run
concurrently. The appellant-accused Govindbhai Shivabhai Jadav, was a Senior
Police Sub-Inspector at Petlad Rural Police Station.

On 23 June 2007, a fast track court in Bikaner (Sessions Case No. 12/2007)
sentenced four persons, including Jail Superintendent Om Prakash Chavadia,
Jailor Ram Kumar Jat and two prisoners to life imprisonment for their
involvement in the custodial death of prisoner Lakhvinder Singh.522 After trial,
the main accused Om Prakash Chavadia was convicted under Sections 302, 147
and 323 IPC and sentenced to undergo life imprisonment under Section 302 IPC
and fined Rs. 2,50,000/- (US$ 5,625) and in default thereof to further
undergo six months imprisonment, under Section 147 IPC sentenced to two years
imprisonment and a fine ofRs. 5,000/- (US$ 125) and in default further undergo
one month’s imprisonment and under Section 323 IPC sentenced to one year’s
imprisonment and fine of Rs. 1,000/- (US$ 25) and in default thereof to further
undergo one month’s imprisonment.

The conviction and sentence were challenged by the Om Prakash Chavadia

(Division Bench Criminal Appeal No. 548/2007) and requested an “order for
suspension or stay of his conviction On 25 March 2008, the High Court of
Rajasthan, in the case of Om Prakash Vs. State of Rajasthan (Criminal Appeal
No. 548/2007) dismissed the appeal. The Court stated: “Unblemished service
record and chance of promotion itself cannot be ground for suspension of
conviction in all the cases. In K.C. Saree’s case Hon’ble Apex Court held that
the court has the duty to look into all aspect including the ramifications of
keeping such conviction in abeyance. It is for the person who is seeking relief
from court on the ground of special reasons to plead and prove existence of
special reasons.

87
We do not find any special reason for suspension of conviction of the petitioner
from the facts of the case and if look into ramifications of suspension of
conviction of accused we find from the facts that consequence of suspension of
conviction may damage the public faith and may increase indiscipline in
disciplined service.

The petitioner was Dy. Superintendent of Jail and therefore, was in

employment in disciplined service of the State and employees of jail service are
supposed to maintain the law and order and poor public goes to them for
their protection and it can be only when public may have full faith in the
officer.

The present is not a case where a poor clerk or even officer is facing the
conviction on the alleged allegation of committing crime because of some
private vengeance and which conviction may not have affect on his duties.

The allegations in the present case are of very serious and of heinous nature,
which we do not want to narrate here in detail to avoid any observation, which
directly or indirectly have any bearing on the merit of the appeal preferred
by the petitioner against his conviction, but so far as prayer for suspension of
conviction of the petitioner is concerned, we do not find any reason much less
than any special reason for suspending the conviction of the petitioner. The
Hon’ble Supreme Court in K.C. Sareen’s case observed as under:

“When a public servant is found guilty ofcorruption after ajudicial adjudicatory

process conducted by a court of law, judiciousness demands that he should be
treated as corrupt until he is exonerated by a superior court. The mere fact that
an appellate or revisional forum has decided to entertain his challenge and
to get into the issues and findings made against such public servants once again
should not even temporarily absolve him from such findings.38

If such a public servant becomes entitled to hold public office and to

continue to do official acts until he is judicially absolved from such findings
by reason of suspension of the order of conviction, it is public interest which suffers
and sometimes, even irreparably.... ” 20. In the K.C. Sareen’s case (supra)

38
4 Id at 82-83

88
allegation was of corruption while holding the post and in the present case,
allegation is on an officer now holding the post of Superintendent of Jail and
the conviction is for committing murder of a accused lodged in jail and
allegation is not only murder but brutal murder and after inhuman torture. As a
convict for charge of corruption is not entitled to hold the post even during
challenge to his conviction, the jail officer is normally not entitled to
continue on post during his challenge to conviction and until no special reasons
are there.”523 On 13 April 2007, three Tihar (Delhi) jail officials-Deputy
Superintendent K.S. Meena, Assistant Superintendent Dhananjay Rawat and Chakkar
Chief Mange Ram were taken into custody on the orders of Additional Chief
Metropolitan Magistrate (ACMM) Kamini Lau.

The Tihar officials were sent to jail on the complaint of a 51 year old convict,
Christopher James, who was allegedly beaten up and critically injured by the
trio when he tried to expose their extortion-cum-smuggling racket in Jail No. 7.
ACMM Lau had took cognizance of offence under IPC sections 323 (punishment
for voluntarily causing hurt), 384 (punishment for extortion) read with section 511
(attempting to commit offence punishable with imprisonment for life or other
imprisonment).524 On 17 August 2007, six persons, including a woman Sub
Inspector (SI) and three woman constables, were sentenced to life by Mahila
Sessions Court Judge Vs. Appa Rao for the custodial death of Kona Krishna
Kumari of Ghantasala in Krishna district in a women’s police station.

The then SI of the women’s police station, Jyothi Rayudu, constables

Santoshamma, P.V. Ragini and K. Raghavarani and drivers of the Vijayawada
Municipal Corporation Gandikota Venkateswarlu and Ranga Rao were also fined
Rs. 9,000.525 On 7 December 2007, Additional Sessions Judge of Sangrur,
Punjab sentenced five policemen, including Deputy Superintendent of Police
Rajinder Pal Singh Anand, to life imprisonment for the custodial death of a man
in 1996. The Judge awarded a two year sentence to another policeman Jasdev
Singh for the custodial death of Balbir Singh, a mason at Shahpur village in
Sangrur district.526 If the judiciarv goes a step further and also gives directions
for ensuring the Departmental enquiries, prosecutions and punishments of the
guilty police officials in the cases of custodial violence, it would have a great
deterrent effect and would go a great deal to curb the misuse of police

89
powers.
5.4. Fundamental Rights And Liabilities Of State Under Article 226 Of The
Constitution,39
The High Court has been given the power and jurisdiction to issue appropriate
Writs in the nature of Mandamus, Certiorari, Prohibition, Quo Warrants and
Habeas Corpus for the enforcement of Fundamental Rights or for any other
purpose. Thus, the High Court has jurisdiction not only to grant relief for the
enforcement of Fundamental Rights but also for “any other purpose” that would
include the enforcement of public duties by public bodies. Similarly, the
Supreme Court has the jurisdiction to issue orders, directions or writs in the
nature of Mandamus, Certiorari, Prohibition, Quo Warrants or Habeas Corpus of
the enforcement of Fundamental Rights under Article 32.

The Supreme Court and the High Courts being the protectors of the civil
liberties of the citizen, not only the power and jurisdiction but also an obligation
to grant relief in exercise of the jurisdiction under Article 32 or Article
226, the case may be, to the victim or the heir of the victim whose Fundamental
Rights are established to have been flagrantly infringed by calling upon the State
to repair the damage done by its officers to the Fundamental Rights of the
citizen, notwithstanding the right of the citizen to the remedy by way of a civil
suit or criminal proceeding.

The State, of course, has the right to indemnified by and take such action as
may be available to it against the wrongdoer in accordance with law. Relief in
exercise of the power under Articles 32 or 226 would be granted only if it is
established that there has been an infringement of the Fundamental Rights of the
Citizen and no other form of appropriate re dressal by the Court in the
facts and circumstances of the case is possible.528 The power of the Court to
grant such remedial relief includes the power to grant compensation in
appropriate cases.40

39
By H.H. Singh, Reader, Law Department, University of Allahabad, ‘Importance of Judicial Activism in
Preventing Custodial Violence’, Article based on research work of its writer, published by Central India Law, Vol.
XVI
40
AIR 1983 SC 1086

90
The decisions of the Apex Court beginning with Rudal Shah Vs. State of
Bihargranted monetary relief to the victims for deprivation of their
Fundamental Rights in proceedings through petition tiled under Article 32 or
Article 226 of the Constitution notwithstanding the right available to the
aggrieved party where the Court found that grant of such relief was
warranted.53' It is not in every case where there is a breach of a Fundamental
Rights committed by the violator that compensation would be awarded by the
Supreme Court in a petition under Article 32.

The infringement of Fundamental Rights must be gross and patent i.e,

incontrovertible and ex facie glaring and either infringement should be on a
large scale affecting the Fundamental Rights of a large number of persons, or it
should appear unjust or unduly harsh or oppressive on account of their
poverty or disability or socially or economically disadvantaged position to require
the person or persons affected by such infringement to initiate and pursue action
in the Civil Courts. Ordinarily, a petition under Article 32 cannot be used as a
substitute for enforcement of the right to claim compensation for
infringement of fundamental Rights through the ordinary process of Civil
Court.

5.5 Role Of Judiciary In Curbing Inhuman Acts And Custodial Violence:

In our country to preserve peace and protection of fundamental rights of the

citizens the judiciary performs important function. It keeps a check over the
abuse of power by police in India and fixes its accountability. On various
occasions the Supreme Court of India has issued directions and guidelines in
number of cases to prevent custodial violence by police in India. In Kishore Vs.
State of Rajasthan, the Apex Court observed that: “..............No police life style
which relies more on fist than on wits, on torture more than on culture can
control crime because means boomerang on ends and re-fuel the rice which it
seeks to extinguish. Secondly, the State must re-educate the constabulary out of
their sadistic arts and inculcate a respect for the human person-a process which
must begin more by example than by precept, if the tower rungs are really
emulate. Thirdly, if any policemen are found to have misconduct themselves, no
sense of police solidarity or in service comity should induce the authorities to

91
hide the crime.
Nothing is more cowardly and unconsciousable than a person in police custody
being beaten up and nothing inflicts a deeper wound on our Constitutional
culture than State official running berserk regardless of the human rights T In
Sheela Barse Vs. State of Maharashtra,the Supreme Court issued detailed
instructions to the concerned authorities to provide security and safety to
detainee in police lock-up, here special regard given to if any woman is in
custody. In State of U.P. Vs. Ramsagar Yadav,41 Supreme Court pointed out
that: “..............we woidd like to interferers upon the government, the need to
amend the law appropriately so that policemen who commit atrocities on persons
who are in their custody are not allowed to escape by reason of paucity or
absence of evidence”
In People’s Union Democratic Rights Vs. Police Commissioner, Delhi
Administration, it was held and directed that if a person in police custody was
beaten to death the compensation be paid to the family of the deceased and this
amount be recovered out of the salaries of guilty officers after giving them
opportunity to show cause. In Saheli Vs. Delhi Commissioner of Police,5'" the
Apex court directed the State government to pay Rs. 75,000/- as
compensation to the mother of the victim, a 9 year child who succumbed the
beating and assault by police officers. On the same guidelines it was
decided by Gauhati High Court in Kangujam Ongiri’ case, where the death of
15 years boy was occurred in the custody of police and his mother claimed from
the State to pay Rs. 3 lakh as compensation for loss of life of her son.
However, it was held that State is at liberty to make necessary investigation
to fix responsibility including recovery of compensation from such persons who are
found responsible for his death. In D.K. Basu Vs. State of West Bengal, with
Writ Petition (Cri.) No. 592 of 1987540 supreme Court observed that to check
the abuse of police power, transparency of action and accountability perhaps are
two possible safeguards which must be strictly adhered to and issued the
following orders to comply with strictly: “35.
We, therefore, consider it appropriate to issue the following requirements to be
followed in all cases of arrest or detention till legal provisions are made in the

41
SCC 1989 at 730

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behalf as preventive measures:

1. The police personnel carrying out the arrest and handling the interrogation
of the arrestee should bear accurate, visible and clear identification and
name tags with their designation. The particulars of all such police personnel
who handle interrogation ofthe arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare
a memo of arrest at the time of arrest and such memo shall be
attested by at least one witness, who may either be a member of the
family of the arrestee or a respectable person of the locality from
where the arrest is made. It shall also be countersigned by the arrestee
and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in

custody in a police station or interrogation centre or other lock-up, shall be
entitled to have one friend or relative or other person known to him or
having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a friend or
a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be

notified by the police where the next friend or relative of the arrestee lives
outside the district or town through the Legal Aid Organisation in the
District and the police station of the area concerned telegraphically within
a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.

6. An entry must be made in the diary at the place of detention regarding

the arrest of the person which shall also disclose the name of the next
friend of the person who has been informed of the arrest and the
names and particulars of the police officials in whose custody the
arrestee is.

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7. The arrestee should, where he so requests, be also examined at the time
ofhis arrest and major and minor injuries, if any present on his/her
body, must be recorded at that time. The “Inspection Memo” must be
signed both by the arrestee and the police officer effecting the arrest and
its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained

doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the State
or Union Territory concerned. Director, Health Services should prepare
such a panel for all tehsils and districts as well.

9. Copies of all the documents including the memo of arrest, referred to

above, should be sent to the Illaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.

11. A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest, within 12 hours of effecting the arrest and at the police control
room it ,should be displayed on a conspicuous notice board.

12. Failure to comply with the requirements hereinabove mentioned shall apart
from rendering the official concerned liable for departmental action, also
render him liable to be punished for contempt of court and the
proceedings for contempt of court may be instituted in any High Court of the
country, having territorial jurisdiction over the matter.

13. The requirements, referred to above flow from Articles 21 and 22(1) of the
Constitution and need to be strictly followed. These would apply with
equal force to the other governmental agencies also to which a
reference has been made earlier.

14. These requirements are in addition to the constitutional and statutory

safeguards and do not detract from various other directions given by
the courts from time to time in connection with the safeguarding of the

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 rights and dignity of the arrestee.

15. The requirements mentioned above shall be forwarded to the Director

General of Police and the Home Secretary of every State/Union Territory
and it shall be their obligation to) circulate the same to every police
station under their charge and get the same notified at every police
station at a conspicuous place. It would also be useful and serve larger
interest to broadcast the requirements on All India Radio besides being
shown on the National Network of Doordarshan and by publishing and
distributing pamphlets in the local language containing these requirements
for information of the general public.

Creating awareness about the rights of the arrestee would in our opinion be a
step in the right direction to combat the evil of custodial crime and bring in
transparency and accountability. It is hoped that these requirements would
help to curb, if not totally eliminate, the use of questionable methods during
interrogation and investigation leading to custodial commission of crimes.” (D.K.
Basu Vs. State of West Bengal (1997)1 SCC 416, Paragraphs, 35-39) In Bhim
Singh Vs. State of J&K, the apex Court held that the appellant was illegally
detained by police personnel in collusion with Magistrate who ordered for
remand without production of the arrested before him. The police authority
violate the fundamental right of Bhim Singh as enshrined under articles 21
and 22 (2) of the Constitution by acting in a malafide way. In Nilabati Bahera
Vs. State of Orissa,542 the Apex Court observed that the award of
compensation in a proceeding under Article 32 of the Supreme Court and
Article 226 of the High Court is a remedy available in a public law based on strict
liability for contravention of fundamental rights. It was held that award of
compensation of Rs. 1,00,000/- to the families of each deceased would be
appropriate and just and so this amount should be paid by government of the
Manipur inter alia. In Ravikant Patil Vs. D.I.G. of Police, Maharashtra,42 the
arrest of Ravikant Patil was made in this case. He was surrounded by large
number of policemen followed by a....of state of Reserve Police which carried some
members of State Police. Nothing is on record to show that the accused
was dangerous or desperate or an escape from custody. The police officers
42
AIR 1986 SC 494

95
who put him handcuffed are in the violation of law enunciated by the Supreme
Court in die Prem Shanker Shukla’s case held to be violative of article 21 of
the Constitution. In this case after investigation the Bombay High Court directed the
police officer who arrested and put handcuffed to the accused to pay Rs.
10,000/- to the arrested person Mr. Patil within the two months.

This case recorded as a defamatory libel in the said police officer’s service
book. Later the decision of the high Court with slight changes as now compensation
affirmed by Supreme Court to the State of Maharashtra instead of that police
official but the said police official is liable for violating the fundamental
right of the accused by handcuffing him.

In 2003, The Law Commission Report on Review of IEA, 1872 stated that: “Till
today, the guidelines or precautions indicated in D.K. Basu have not been
implemented by the police. In fact, most police officers are ignorant of them.
Question also is whether in India we can accept the statement of any police
officer that these precautions were indeed taken. ”In Shakila Abdul Gafar Khan
Vs. Vasant Raghunath Dhoble and Anr. (2003) the Supreme Court showed great
concern that custodial violence is on the increase and a failure of the custody
jurisprudence developed 1990 onwards.

The aspect of the Court showed in this judgment reflected a new concern about
avoiding any encouragements to false and frivolous cases. The Court observed
that: “But at the same time there seems to be disturbing trend of increase in
cases where false accusations of custodial torture are made, trying to take
advantage of the serious concern shown and the stem attitude reflected by the
courts while dealing with custodial violence. It needs to be carefully examined
whether the allegations of custodial violence are genuine or are sham
attempts to gain undeserved benefiting masquerading as victims of custodial
violence.”43
5.6. Inquest By Judicial Magistrate:

A mandatory provision under the new Cr.P.C amendment Another check on the
police excesses is already in place in the Code of Criminal Procedure., a special
provision is made in [Link] under sub-section (1) of Section 176 of the Code,

43
Ibid, emphasis added

96
when a person dies while in police custody, a magistrate may hold an inquiry
into the cause of death.

The recent amendment made in 2005 extended the ambit of the sec 176 to
disappearance and custodial rape also. When a person is killed in an
encounter or in police custody or in exchange of fire, inquiry shall be conducted
by a judicial magistrate and Section 176 of the Code must be made applicable to
all the above said cases because as the law stands now it applies to
custodial deaths only, but not to deaths caused in exchange of fire orin
encounter. During the study it was observed that the Judiciary has made a
great contribution by its various pronouncements in the direction of protecting
the fundamental rights of the citizens from the arbitrary, unwarranted and
barbarous acts practiced by some police officials in India.

The discussion of some recent cases above attempts to theorize and come up
with innovative ways of dealing with custodial violence immediately leads to an
actual or perceived challenge by the liberal State (and its law enforcement
agencies) regarding its ability to maintain law and order. 6.7 Epilogue The new
trend started by Judiciary by awarding monetary compensation to the victim in
case of infraction of fundamental rights and punishing the erring police officials
is a good signal heralding a new era of remedies and death-blow to the
sovereign impunity enjoyed by the law enforcement agencies. But compensation
so awarded is without any basis or principles for quantifying the amount.

Judges went by intuition rather than any rational basis. Increasing use of
compensation remedy may also give an impression that the state is ready to
compensate ifit can purchase the right to continue to inflict constitutional
deprivations on its citizens. The question remains about the prosecution of those
officials who have committed the crime. It would be more prudent and
beneficial if the Judiciary gives effective directions to the State for
ensuring departmental enquiries, prosecutions and punishments of the erring police
officials in cases of custodial violence.

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 CHAPTER-6
CONCLUSION AND SUGGESTIONS
6.1. Conclusion

Despite the fact that we have detailed provisions safeguarding against custodial
violence it is seen that a steady process of devaluation even demonetisation of
human dignity and personality is irresistibly advancing and brutal betrayal of
those basic rights, which are enshrined in International Bill of Human Rights
and Constitution of India, becomes a common scenario. Custodial Violence not
only humiliates the victim but reduces him to a sub human level. The
descent to the sub human level is not only that of the victim but of the
perpetrator as well. The victim’s descent can be redeemed.

But the perpetrator defies redemption. He develops a cynical contempt for the
values of the democracy, the laws he is paid to enforce and for the courts to
which, he as a witness, is accountable. He becomes impervious to the fact
that he is a part of an institutional setup erected for ensuring greater freedom for
members to progress towards a meaningful, mature and human society.
Unfortunately most of the provisions have remained paper tigers without
teeth.

The State has armed itself with Draconian laws such as Armed Forces Special
Powers Act, Unlawful Activities Prevention Act, and derivative State legislations
which are irrational, unjust and against the principles of natural justice. These
laws justify preventive detention and encourage extracting confessions by any
method.

The custodial violence is a part of deliberate and conscious State administrative

practice for which the Indian government must bear the responsibility. It is seen
that generally the poor, disadvantaged and weaker sections of the society are the
victims of custodial crimes because there is no one to care for them & to
protect them. Everyone has the inherent right to life, liberty and security of
person. This right shall be protected by law.

98
No one shall be arbitrarily deprived of his life. It is therefore, for the
government and the legislature to give a serious thought to the recommendation
of the Law Commission and National Human Rights Commission and
bring about appropriate change in the law both to curb custodial crimes and also
to ensure that the guilty are punished. 423 Torture in custody flouts the
basic rights of the citizens recognized by the Constitution of India and is an
affront to human dignity. Police excesses and the maltreatment of detainees/undertrial
prisoners or suspects tarnishes the image of any civilised nation and encourages
the men in ‘khaki'1 to consider themselves to be above the law and sometimes
even to become law unto themselves. No doubt, excessive and increasing
workload of the police is a major factor contributing to this situation. Also,
inability to cope with the rising crime rate and hierarchical pressures from above
often force police to resort to custodial violence to produce quick results.

The victims of such custodial violence often breakdown and confess to crimes
they may not have committed. Transforming the ‘Unaccountable Police’ into
‘Accountable Police’ is a Herculean effort requiring a multi-pronged approach.
Though it is a mammoth, it is no longer one we can shy from ifwe care to
preserve our democratic ideals. We found that the political leadership, not
respecting the democratic set up, is primarily responsible for not ensuring
highest standards of respect for life and dignity as enshrined in the Constitution
of the country. In a democracy political leadership gives direction to civic life
with its commitment to certain basic values.

By unequivocally disapproving trigger happy trend in police force the political

leadership must send clear signals to police force that custodial violence in any
form is unacceptable. By doing so they would be doing a great service to cause
of a rule based society that retains essential values of civilized living.

An urgent reform is needed to old police laws and manuals that include
categories of offences by the police with penalties for offences graded according
to the level of their gravity and specifying the authorities competent to take
action based on the rank of the erring police officials.

I would felt opportunist enough while making it clear that while expressing the
view point of the police and other law enforcement agencies, I am voicing the

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feelings of the competent and conscientious officers who respect the law, accept
the limitations of their functions and powers and take every professional
challenge seriously. This category excludes the vast majority if police
officers who resent any restrictions on their powers and are easily given to
circumvent the law to seek an easy and quick solution to their problems.

While conducting the research it was observed that rigid and somewhat extreme
stand taken by most human rights groups inevitably brings them into conflict
with the police leadership at various levels. The police officers find the human
rights activists unappreciative of the ground realities and accuse them of a
lack of sensitivity to the sufferings of the victims of crime.

They want Human rights NGOs to understand that human rights cannot be
enjoyed in an atmosphere of terror and intimidation. In their commitment to the
cause of public order, they wonder whether they should observe legal formalities
and constitutional niceties towards those who have openly and definitely rejected
the Indian Constitution and other laws.

I firmly believe that it is possible for the two to bridge their differences and
work unitedly for the cause of eradicating custodial violence. I sincerely believe
that no custodial violence, big or small should be condoned, each cases has
to be viewed in the overall operational context to find out whether the act was
deliberate and mala fide or it was accidental and bona fide. This would help in
determining the gravity of the laps and deciding commensurate punishment.

It must be understood by the police that custodial violence-the widely prevalent

form of human rights violations considered, as a short cut to success by police
has invariably proved counter-productive. It exposes its perpetrators to legal
action and punishment, which cannot be taken lightly in view of the growing
trend in the judicial pronouncements to make the guilty police officials liable
for payment of compensation to the victims.

It has a sure effect of brutalizing the rank and file, alienating the police from
the public and eroding the faith of the citizens in the system. Custodial violence
of any form is the greatest obstacle in the way of integrating the police system
into the fabric ofa democratic society. We have reached a dangerous point where
even in urban cities, the utter breakdown ofthe rule of law is met with harsher

100
punitive measures and terminal solutions that restrict rather than enhance
accountability and transparency.
In such an atmosphere of apparent lawlessness, officers of the law have become
vocal proponents of swift, terminal solutions that have not borne out the
test of careful examination and scrutiny. However, it is a relief to notice that
there is a new emerging world of legal order. The Indian experiment in enacting the
protection of Human Rights Act is a hopeful start. The human rights
jurisprudence is gaining judicial reverence in India especially where life and
liberty are violated by State violence.

No doubt, the media and courts have been instrumental in checking this serious
menace but much remains to be done. There is positive trend of the judicial
policy for compensating victims in torture. But the judges awarding
compensation should act on some rational basis rather intuition. The question
also remains about the prosecution of those officials who are involved in
custodial crimes. To conclude, India inherited a regimented and extremely
repressive and highly corrupt police organization and there is need to get
down to the task of police reforms at the very outset. As the police persons
of all ranks across the length and breadth of the country are increasingly
working beyond the limits of law, many a times with political patronage, there is
an express need to turn attention to comprehensive reforms in police and criminal
justice system. The police leadership at all levels of command has to accept the
fact that observance of human right is mandated by law and they can not be
allowed to achieve their objectives by practicing custodial violence.

The custodians of law cannot be allowed to become its transgressors under a

mistaken belief that they are serving the larger interest of the society as a
whole. They can ask for more powers if they find the challenge to be
beyond the reach of the existing laws. However, such demands will receive
favorable response only if they enjoy the confidence and support of the civil
society.

Only good ends can be achieved by good means and it can be earned only by
professional competence and high standards of character and integrity. Any
compromise on this point is bound to harm the basic rights of citizens

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guaranteed by the Constitution and other penal laws of India. Unless stem
measures are taken to check the malady, the foundations of the criminal
justice delivery system would be shaken and the civilization itself would risk the
consequence of heading towards perishing.

6.1. Suggestions In View Of The Study Above The Following Suggestions Are
Recommended To Effectively Combat Custodial Violence Practiced By
Police In India:
6.1.1 To The Government Of India:

1. Government should enact a legislation to criminalise custodial violence

including putting the onus of proving innocence on the State in all cases of
crimes in custody and provide compensation to the victims;

2. Repeal all laws promoting impunity including Sections 45 and 197 of the
Criminal Procedure Code and Section 6 of the Armed Forces Special Powers
Act,1958 which make prior permission of the government mandatory for
initiating any legal proceedings;

3. Amend section 58 of Cr.P.C and substitute “Chief Judicial Magistrate” in

place of“District Magistrate” and thereby provide forjudicial supervision of
exercise ofpower to arrest without warrant;

4. Clarify by suitably amending section 154 (2) Cr.P.C and provide forjudicial
supervision of crime investigation;

5. Amend section 176 Cr.P.C and provide for judicial enquiries into all custodial
deaths within the given time frame;

6. Section 161, 162, 164 of Cr. P.C and Section 25, 26 and 27 of the Indian
Evidence Act should be recast to remove shackles on police testimony.
Section 162, Cr.P.C provides that the maker ofstatement before the police is
not to sign it;

7. Section 114(B) should be inserted in the Indian Evidence Act, 1872 to

introduce a rebuttable presumption that injuries sustained by a person in police
custody may be presumed to have been caused by the police officers. Such a
provision perhaps will have a restraining effect on officers indulging in

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 torture;

8. Amend the Human Rights Protection Act of 1993 in particular Section 19 in

order to bring the armed forces under the purview of the NHRC;

9. Suitably amend Section 30 of the Protection of Human Rights Act, 1993 and
prescribe powers and procedures of Human Right Courts;

10. Reform the Criminal justice system and the Indian Penal code, beginning
the process by repealing all special legislation that enable a culture of
torture and culture of impunity;

11. Stop discrimination and custodial violence against women, indigenous peoples,
dalits and minorities and ensure genuine safe guards;

12. Strengthen the statutes of the NHRC, State Human Rights and Minorities
Commission and other statutory bodies;

13. Establish a National Register of the Missing and of Victims of torture,

custodial deaths and encounter killings under the supervision of the
NHRC;

14. Protect and rehabilitate the victims and survivors of encounter killings and
other police atrocities, and give them affirmative compensation;

15. Ratify the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) and its Optional
Protocol;

16. Withdraw reservations to Articles 20, 21 and 22 ofthe CAT and Article 9
of the International Covenant on Civil and Political Rights;

17. Cooperate with the United Nations and extend invitation to the UN Special
Rappoprteur on Torture whose request for visit has been pending since
1993;

18. Prioritise reform of the Penal Code and Prison legislation to bring them in
line with international standards;

19. Steps should be taken to restore the victim to the situation they were in
before the violation occurred, including restoration of their legal rights, social

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 status, family life, place ofresidence, property and employment;

20. Steps should be taken to compensate for any economically assessable damage
resulting from violations including physical or mental harm, emotional distress,
lost educational opportunities, loss of earnings, legal and/or medical costs;
21 Steps should be taken to ensure medical and psychological care to the
havenots, ifnecessary as well as legal and social services. It is generally
the poor, disadvantaged and the weaker sections of the society who are victims of
custodial crimes because there is no one to care for them and to protect
them. It is therefore, for the government and the legislature to give a
serious thought to the recommendation of the Law Commission and National
Human Rights Commission and bring about appropriate change in the law
both to curb custodial crimes and also to ensure that the guilty are
punished;
22 Steps should be taken to ensure cessation of continuing violations, public
disclosure of truth behind violations, official declaration of responsibility and/or
apologies, public acknowledgement of violations, as well as judicial or
administrative sanctions, and preventive measures including human rights
training;
23 Establish public grievance redressal mechanisms on the pattern of Lokayukta
and Ombudsman to take cognizance of excesses committed by police and armed
personnel, and to enforce Command Responsibility;

24 It is for the government and the legislature to give a serious thought to the
recommendation of the law commission and National Human right
commission and bring about appropriate change in the law not only to
courts custodial crimes but also to ensure that the guilty are punished;

25 A number of Commissions/Committees have been set up by the contemporary

Governments to look into different cases of custodial crimes. In most
cases, either these reports have not been released at all or their
recommendations have been unimplemented. Some of the important reports of
these commissions, which specially became the target of bureaucratic and
political unwillingness, are those by the Sarkaria Commission on deaths in
police lock-ups, the Bhargava Commission, the Tarkunde Committee and the

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 Shah commission of police excess during the emergency.

26 What is required at this juncture to review is fire recommendations freshly for

the purpose of necessary action and implementation;

27 Human Right cells similar to the Legal aid cells in the Bar Association
should be created. The social institutions, mass-media, social workers, alert
lawyers and educated public must stand united against the type of violation
of human rights by police administration;

28 By unequivocally disapproving trigger happy trend in police force the political

leadership must send clear signals to police force that encounters are
unacceptable; 28. There must be modification in the existing ancient Police
Act of 1861.

29 The Model Police Act 2006 should come into force with no more delay. It
enumerates various chapters for Regulation, Control and Discipline, Police
accountability, General Offences, Penalties and Responsibilities for Police;

30 The NHRC should be given powers by the Supreme Court to accept

complaints from any individual in the State whose relative has been
missing since last seen in the police custody. These would include cases of
“disappearance” and “extra-judicial execution” as recognized under
international law. The NHRC should be given additional resources for
investigating these specific cases;

31 Urgent attention must be given to ensuring that evidence for criminal cases
is collected through proper investigation by police and presented to the courts
after careful consideration by members ofthe prosecution service. It should be
made clear to ail within the criminal justice system that the use of torture
and ill treatment as a means of coercing confessions from the accused or
testimony from witnesses is unlawful and that all, include police, lawyers
(including those provided through legal aid), prosecutors and judicial officers,
play a crucial role in ensuring that such actions do not form part of
processes for bringing people to trail;

32 Mechanisms should be developed to isolate judicial officers from pressure

by police, especially when they prosecute charges of custodial violence;

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33 A mechanism to monitor the effectiveness the Legal Aid Service should be
put in place as a matter of urgency. The problem of the ineffectiveness of
the Legal aid service in the State must be urgently addressed. Magistrates
should be made aware of their duties to ensure that effective legal
representation is provided to every accused, irrespective of their economic situation,
and that absence of a Legal Aid lawyer in court is put on record in the case
proceedings;

34 The link between corrupt practices within the political and administrative
system and the use of threats or force amounting to custodial violence or
illtreatment must be acknowledged and addressed. In particular, political
influence over police and the resulting resort by police to custodial crimes
must be addressed by taking relevant steps to remove the police from such
influence and initiating criminal proceedings against erring police officials;

35 Police powers to arrest during investigation and without warrant should be

strictly limited and adequate safeguards for arrest ensured. Police should be
required to clearly demonstrate in writing the need for arresting an
individual as a means of reducing the number of unwarranted arrests at the
instigation of vested interests;

36 Records of all arrests should be kept in a police record with bound and
numbered pages and including details of the officer arresting, the full name
and details of the arrestee, the time and place of arrest, any witnesses and
other relevant details. There should be periodic unannounced checks by
superior officers or a visiting body and action taken against officials found not to
have followed procedures;

37 Safeguards for detainees on arrest which have been set out by the Apex
Court, particularly in D.K. Basu Case, should be incorporated in relevant
statutory and all police manuals as a matter of urgency. Measures should be
put in place to monitor their implementation and statistics published
periodically;

38 Magistrates should play an active role in monitoring strict adherence to the

guidelines set out by the Supreme Court in D.K. Basu Vs. State of West
Bengal and they must not tolerate any failure by police to comply with them.

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 Any such failure should be construed as contempt of court and should therefore
attract prosecution of the police officers involved;

39 Regular training should be given to police officers incorporating these

safeguards and any future safeguards set out by the courts or in law to
ensure that police officers are aware of how such safeguards can be
implemented in practice and how they are an essential part of their role
in safeguarding the rights of citizens;

40 All detainees and accused should have a right in law to be informed about
their rights in custody. These should be read out to them in a language they
understand (recognizing the low literacy level in many areas of the country)
and be publicly displayed in all police stations in relevant languages;

41 Where unrecorded detentions have been proven, those responsible should be

disciplined and prosecuted for unlawful imprisonment and the victims granted
compensation for illegal detention. Verification mechanisms should be put
in place to ensure that orders for compensation are implemented promptly by the
authorities and that they are paid directly to the awardees. Judicial officers
should, however, take notice that granting compensation to victims of custodial
violence is in no way a substitute to prosecution and punishment of the
police officers involved;

42 Police manuals, codes of practice and standing orders should be publicly

available documents and be presented at police stations on request;

43 It should be a requirement that magistrates ask detainees questions which will

clarify their identity. Resources should be made available so that magistrates
are able to apply themselves fully to the important role they play in assessing the
lawfulness and monitoring the condition of detention of detainees;

44 In order to ensure safe environment in which detainees are able to bring

complaints of torture before a magistrate, there should be an opportunity for
detainees to be heard by the magistrate in the absence of those police
officials who have brought them from the police station and may have been
responsible for their arrest, interrogation and detention;

45 Judges must ensure that detainees are not withholding relevant information

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 form them for fear of reprisals by law enforcement officials.

46 They should pursue any evidence or allegations of torture and order release
if the detention of an individual is found to be unlawful;

47 A Judicial Magistrate should be available round the clock at a designated

place in the city or town to attend to the judicial needs of the arrestees. He
should be vested with all powers to grant bail, record confessions, issue judicial
processes etc. His presence and availability automatically reduce the need for the
police to hold the arrestees overnight or when the courts are closed;

48 Doctors can play a central role in both preventing and detecting cases of
custodial violence as medical evidence is a crucial part of the investigation of
allegations of custodial crimes. A doctor should record the state of health of
detainees in police custody shortly after airest.

49 The D.K. Basu guidelines state that the arrestee should, where he so
requests, be also examined at the time of his arrest and major and minor
injuries, if any, present on his/her body, must be recorded at that time. The
inspection memo must be signed by both the arrestee and the police
officer affecting the arrest and its copy provided to the arrestee.

50 The guidelines also require that the detainee should be subjected to medical
examination by a trained doctor every 48 hours during his detention in
custody;

51 Nevertheless, doctors have a role to play in the detection of torture during

later stages of the detention in relation to any subsequent trial. According to the
Gr.P.C, when brought before a court a detainee may request for a medial
examination (Article 54). Further medico-legal examinations can be
ordered by the court at subsequent stages of detention. In all cases where
there is any doubt regarding the cause of a death, the police must send the
body for examination by a doctor under an NHRC directive in December 2001,
the post- mortem must be videotaped in all cases of death in custody
where the preliminary inquest or a complaint has raised suspicion of foul
play;

52 The inaccuracies and poor quality of many medico-legal reports reflect also

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 the difficult working conditions in which government doctors operate. There
appears to be very little training in medico-legal duties within the three
month general training organized by the Health Department for junior doctors
recruited to government services. Most of this theory is practical.

53 Training of all medical professionals should incorporate medical ethics and in

particular the UN Principles of Medical Ethics relevant to the role of Health
Personnel, particularly Physicians, in the protection of prisoners and detainees
against torture and other cruel, inhuman or degrading custodial crimes;

54 Training of the Health Department for junior government doctors, in

particular, should include suitable sessions of forensic practice, information
on the impact of their reports on the course of justice. The cooperation of
human right organizations in designing these training could be usefully
sought;

55 The shortage of equipments also seriously hampers working in post-mortem

government doctors working in post-mortem centers that often lack basic
facilities such as proper lighting and tools. Doctors found it difficult to
rely upon old techniques of physical examination and outdated X-ray
machines.

56 The Model Autopsy Form issued by the NHRC is routinely not followed by the doctors.
Therefore, quality training with practical exposure to the 433 recruited doctors is the
need of time. The doctors conducting post-mortem must observe the guidelines
issued by NHRC by completing Model Autopsy Form;

57 The doctors who acquiesce in the cover-up of police torture are often
themselves caught in a net of influences and pressure.

58 There have been almost no reports of medical officers being prosecuted for
failing to carry out their duties. Similarly, the criminal law has not been invoked against
doctors who have submitted false or incomplete medical reports to the courts.
Therefore, Health Department should take serious cognizance on the role of doctors
failed to carry out their duties and strict departmental action, including possible
suspension, barring from promotions or removal from service, should be taken by the
Health Department against doctors found to have participated in the cover-up or
facilitation of custodial violence by police. Information about the implementation of

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 these actions should be available to the public. The Judiciary should also take
serious note of attempts of doctors to cover up custodial violence practiced
by police and should respectively recommend and initiate prosecution against
offending doctors, according to the Contempt of Court Act, 1971 and Section 177
of the Indian Penal Code;

59 Detainees should have an enforceable right to a medical examination by an

independent medical practitioner and should be informed of that right.

60 A copy of the examination report should be given to the detainee or their

nominated representative such as their lawyer or relatives.

61 Those who alleged torture or rape and other forms of sexual abuse
during the police custody should be immediately examined by an independent
medical practitioner. Police should not be present during the examination and
detailed records of the examination should be kept in accordance with
Principle 6(b) ofthe Istanbul Principles;

62 Steps should be taken to protect medical professionals carrying out

postmortems and medical examinations of alleged custodial victims from police
pressure. As a step towards this, police officials should not be present during
post-mortems or the medical examination of detainees. Strict departmental
action and legal prosecution should be initiated against police officers found
to be interfering with the medico-legal work of doctors;

63 Women should be detained separately from men and this should be carefully
monitored by some independent mechanisms. Lock-ups where female
suspects are kept should be situated in good localities and these must be
guarded by female constables. Interrogation of female suspects should be
conducted in the presence of female police officers. The Magistrate, before
whom a female suspect is produced, should always make it sure (through
medical examination) that the detainee had not undergone any violence by the
police during the period of detention;

64 Recognizing the practice of arresting or detaining innocent relatives,

particularly women, against whom there are no charges, as a mean offorcing
suspects to surrender or provide information about wanted people, this
practice should be clearly identified as illegal and constituting the offence of

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 “wrongful confinement. Reports of such practices should promptly be
investigated and action taken against those responsible of custodial
violence and ill-treatment;

65 The role of proper investigation within the policing system should be

strengthened to reduce reliance on confession as the lynch-pin of evidence
against the accused. Detailed guidelines should be drawn up for the
interrogation of suspects in consultation with lawyers, Bar Associations,
human rights groups and medical professionals. Guidelines should be
published and reviewed periodically to ensure they remain an effective
mechanism to prevent custodial violence by police;

66 The concerned authorities should keep under systematic review interrogation

rules, instructions, methods and practices with a view to preventing any cases
oftorture in line with the Convention against Torture. Those involved in
interrogation should receive regular training on how to implement such rules and
regulations;

67 Lawyers should be present during interrogation of suspects. Detainees should

be given the opportunity to contact their lawyer or seek the services of
lawyer through Legal Aid prior to interrogation. All officials involved in
interrogation should clearly identify themselves to the detainee and their
lawyer;

68 Female security personnel should be present during the interrogation of women

detainees, and should be solely responsible for conducting body searches in
accordance with the directions of the UN Human Rights Committee and reflected
in the Supreme Court’s judgment in Sheela Barse Vs. State ofMaharashtra (1983 2
SCC 96);

69 The government should ensure that there are in place independent monitoring
mechanisms to scrutinize police and security force behaviour in all districts ofthe
State. Their independence should be assured by ensuring that they consist
ofpersons ofintegrity respected in the local community for their independence
ofjudgement and political impartiality;

70 Monitoring mechanisms should have adequate powers and resources to

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 undertake their work including powers of unannounced, immediate and
unhindered access to all places where people may be held in acknowledged or
unacknowledged detention; access to interview detainees in private and access to
judicial processes.

71 They should also have powers to obtain any documentary evidence necessary to check
for implementation of legal provisions and to promptly obtain any documentary
evidence necessary to check for implementation of legal provisions and to promptly
obtain information on the enforcement of announced departmental action against
offending police officials;

72 Monitoring mechanisms should forward any evidence of nonimplementation

of safeguards to the SHRC or NHRC and to relevant superior officers requesting
further investigation or recommending action to be taken. They should regularly
publish the results of their findings including information on specific
provisions of law which have most commonly been violated during the police
custody, details of the police stations and officers which have been identified
as abusing legal provisions, and information on the background of victims of
human rights violations as a means of identifying particularly vulnerable groups in
society and identifying the need for special protection;

73 The government should ensure prompt independent investigations into all

allegations of custodial violence or ill-treatment. Investigations of allegations of
custodial violence or ill-treatment should incorporate the principles
included in the Istanbul Protocol. Investigators should be fully independent of the
alleged perpetrators and have the necessary powers and expertise required
opening prompt criminal investigations wherever there is reasonable ground
to believe that an act of custodial violence has been committed;

74 Police officials suspected of involvement in custodial crimes should not be

allowed to be associated with the investigation into the allegation of custodial
crime in any manner, and should be removed from any position of
influence over alleged victims or witnesses for the duration of the
investigation and any trial proceedings;

75 Complainants, witnesses and others at risk should be protected from

intimidation and reprisals and a witness protection program should be

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 established in all States;

76 No bail should be granted to erring police officials in non-bailable offences.

The granting of bail to errant involved in the acts of custodial crimes
must be carefully assessed by the courts, in consideration of the fact that the accused,
ifreleased, could intimidate the victims and their families;

77 Police and other officials not promptly or truthfully complying with the
orders of judicial or other investigating officers should be subject to immediate
disciplinary proceedings;

78 Methods and findings of investigations should be made public and the

victim or the victim’s family must be allowed access to the complete records
of the enquiry including post-mortem reports and be given the right to be
represented through a competent lawyer during the enquiry;

79 The government should consider setting up effective, adequately resourced

and independent police complaints investigation mechanisms at district level, the
membership of which should include members of civil society as well as
executive and judicial representatives;

80 The Union Ministry of Home Affairs should take up the job of forming the
official policy on use of force separately. It should explicitly include broad
guidelines for interrogation of suspects by highlighting necessary steps to
be taken to protect vulnerable groups of society; 72. The government of
India should institute a review of the numerous cases of alleged custodial
violence by police which are pending investigation and prosecution to
determine the reasons of delays and to take action against police officials
found to be deliberately interfering in the investigative or judicial process;

81 There is uncertainly as to the ambit ofthe concept ofsovereign function of

the State and therefore the Legislature should come forward and make law to
remove out such uncertainty;

82 The police should free itself ofthe mindset that the human rights groups are
adversaries acting in league with the terrorists and militants. It should
acknowledge the importance and hazards ofthe role assumed by the human right
activists by choice and show respect to their commitment and

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 determination to an extraordinary cause;

83 The police leadership at all levels of command has to accept the fact that
observance of human right is mandated by law and there is no choice in
the matter of achieving their objectives by following lawful methods and legal
practices;

84 In all fake encounters the victim becomes the accused. Police will file an
FIR against the deceased saying that he attempted to commit murder on
them and in self-defence they had to open fire. Therefore, it is high time
that we need a mechanism to check and control the police excesses. An
enquiry commission must be set up in all districts to take cognizance suo
motto of all lockup deaths, fake encounters without waiting for an allegation
or complaint to be made by the victim because in most Of the cases victims
are poor people, they may not come forward to register an FIR even if they
come it is obvious how difficult it is for him to put up a case against
the police in the same police station with the same police asking him to
take action. Let the investigation be impartially conducted if the police is
sincere, they need not be wonied about this mechanism. Leaving the victims
again in the hands of the accused is serious injustice;

85 When a person is killed in an encounter or in police custody or in exchange

of fire, inquiry shall be conducted by a judicial magistrate and Section
176 of the Code must be made applicable to all the above said cases
because as the law stands now it applies to custodial deaths only, but not to
deaths caused in exchange of fire or in encounter;

86 All serious complaints against the police such as encounter killings should
be referred to an independent body competent and mandated to conduct a
time bound inquiry and with binding powers;

87 Attention is required to be paid to properly develop work culture, training

and orientation of the police force consisting with basic human values. A
chapter of Human Rights need to be introduced in police training
programmes. The gap between public expectations and police performance has to
be narrowed. Catchy slogans and public relations exercises will not achieve
the desired objective;

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88 A constable must be treated as a skilled worker, and his working and living
conditions must be accordingly improved. On top of the reform agenda
should be the transformation of the constable, who is the cutting-edge of police
administration, into a more responsive and effective police functionary;

89 A good standard of living helps the police to have a concern for kindness,
tenderness, elegance, and civility. A low living standard retards the police
image, as well as their self-esteem which is reflected in the job;

90 Senior police officers are more sensitive to the needs of the constabulary,
officers of the Indian Police Service should serve for some time as constables
before promotion to higher ranks;

91 Police officers should be encouraged to opt for specialisation in various

streams of police administration. After a few years of exposure to
different police jobs, police officers should be earmarked for different
branches depending on their aptitude and performance; 84. Police officers
must become true professionals if they are to succeed in controlling crime and
criminals. Basic reforms in recruitment methods, training and system of
promotions and posting are necessary to make the force more professional
and less brutal;

92 For success of through investigation permitted under laws and rales an

increase of the investigational staff and separation of the law and order and
investigation staffis absolutely necessary. This suggestion has been made by
expert bodies like Law Commission of India and various Police
Commissions;

93 Security personnel must not forget that even while handling an extraordinary
situation like that created by terrorists or insurgents, it is their responsibility
to protect the lives and limbs of all innocent citizens. Even a single innocent
life lost in a fight against the enemies of the nation is a serious crime.
The umbrella of protection provided to the security personnel under the provisions
of section 197 Cr.P.C., the TADA Act 1993 and under the other Acts enacted
to deal with insurgency and terrorism should not be unqualified;

94 Judicial activism in the form of institution of public interest litigations have

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 contributed greatly towards restraining the reckless members of the Police
Force. The culprits from the police force responsible for indulging in unlawful
acts should be awarded suitable punishment. There is no doubt, that such
effective judicial intervention would sufficiently deter the erring policemen;

95 Therfe should be an opportunity for detainees to be heard by the

magistrate in the absence of those police officials who have brought them
from the police station and may have been responsible for their arrest,
interrogation and detention. Magistrates should question detainees brought
before them to ascertain that they have not been tortured or ill-treated, have
not made involuntary confessions and are not being held in conditions
amounting to ill treatment. In doing so, they must ensure that detainees are
not withholding relevant infonnation from them for fear of reprisals by
law enforcement officials and make it clear to detainees that in the event
that a complaint is made steps will be taken to protect them against
reprisals;

96 The Judiciary has made a great contribution by its various pronouncements

in the direction of protecting the Fundamental Rights (particularly Article 21)
from the arbitrary, unwarranted and naked and barbarous atrocities at the
hands of the errant police officials. It will be better ifthe judiciary
exercises its contempt power suo motto in cases of contravention of the
norms laid down by it in the various cases;

97 The ultimate key to help check custodial violence by police lies in the hands
of the conscious citizens. If the people of the society are sufficiently alert
about their rights and duties, they will be able to combat such unlawful acts
like custodial crime by raising their voices of protest in times of need
and by seeking intervention of appropriate authorities to deal with the
agencies responsible for custodial crime;

98 There should be basic structural reform in the police in insulate it from

external pressures and influence. The attitude and behaviour of police is also
required reorientation through proper education and training;

99 Training methodology of police needs restructuring. It should include practical

methods to prevent torture and not just theoretical teaching of legal provisions

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 and human rights standards. The force needs to be infused with basic human
values and made sensitive to the constitutional ethos. Training should
acknowledge the context in which violence has been become accepted as a
way of “solving” problems and that this situation increases the use of
torture;

100 Policemen must treat their job as a profession and not as an instrument of
exercising power. Only a well-trained, well-equipped and a motivated
police force will be able to perform this role. Training should include the
issue of sensitivity towards groups already suffering discrimination in the
criminal justice system. The training should be provided to all ranks from
highest to the lowest and should be given at periodic intervals, not just at
the start of the job;

101 In selecting and training of law enforcement personnel, the qualification of

respect and sensitivity to human rights protection should be prerequisite, kept
under review and counted toward assessment of their performance and future
prospects;

102 The absolute prohibition against torture and other forms of custodial violence
should be reflected in the training and all orders given to officials involved
in arrest and custody.

These officials should be instructed that they have the right and duty to
refuse to obey any order to participate in any form of custodial violence.

Training Manuals should incorporate the following International Standards:

(i) UN Basic Principles on the Use of Force and Firearms by Law

Enforcement Officials; (ii) UN Code of Conduct for Law Enforcement
Officials; (iii) UN Principles on the Effective Prevention and
Investigation of Extra legal, Arbitrary and Summary Executions; (iv) UN
Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment; (v) UN Convention against Torture, and
Other Cruel Inhuman or Degrading Treatment or Punishment; (vi)
UN Declaration on the Protection of All Persons from Enforced
Disappearance.

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6.2.2. To The National Human Rights Commission:

103 Recognise torture as a crime distinct from custodial death and provide a
separate heading for torture under its Annual Report;

104 Issue directives to all places of detention to provide reports on instances

where torture is alleged;

105 Create a separate Department of Medical Doctors to examine all post mortem
reports submitted to the NHRC in all cases of custodial death;

106 In the absence of resources within the NHRC to carry out systematic
custody visits, examine the potential for lay visiting system for places
of custody;

107 Create a separate Prosecution Department which shall take necessary

measures for prosecution of the guilty should facts and evidence
establish torture;

108 Review the current process for cases management and make it
mandatory to provide equal time, equal opportunity and equal access to the
documents of complainants and authorities while adjudicating complaints of
torture and other human rights violations;

109 While awarding compensation to the victims of torture and other human
rights violations, NHRC must develop guidelines in accordance with
international standards;

110 The NHRC has called for an amendment in the law so that cases
relating to violations of human rights and compensation are tried together
in the same court with one set of evidence being led. This was in specific
response to ground-level realities: victims of torture had to endure two sets
of civil proceedings; this often prevented persons from seeking redress. In
January 1999, then chairperson of the NHRC, Justice Venkatachaliah stated
that “the very concept of immediate interim relief and the purposes for
which it is intended would be defeated ifthis remedy is intervened with the
fortunes of a criminal trial”;

111 The NHRC and other National Commissions must call the guilty to
account for custodial violence against religious minorities, women, dalits and

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 tribals and human rights activists;

112 The NHRC should look beyond monetary compensation and ensure that its
recommendations include means to ensure restitution, rehabilitation,
satisfaction and guarantee of non-repetition of custodial crimes;

113 The NHRC as well as the State should take up any opportunity-and in
particular the one represented by the cremation of ground issues-to elaborate
mechanisms of coordination with willing human rights organizations in the
State in order to shed light into the causes and responsibilities involved
in the cases of custodial violence by police;

114 Amend the Act of confer appellate powers on the NHRC to judge the
legality and propriety of recommendations of the State Commissions;

115 The NHRC should take initiative by calling meetings of all Human Rights
Commission in India to develop common national programme and
strategies.

116 The NHRC should help develop guidelines for financial support to State
Commissions and thereby secure for them the necessary independence.
Follow the Guidelines issued by the NHRC in Encounter Cases:

(i) When the police officer in-charge of a police station receives information
about the deaths in an encounter between the police party and others, he
shall enter that information in the appropriate register;

(ii) The information as received shall be regarded as sufficient to suspect the

commission of a cognizable offence and immediate steps should be taken
to investigate the facts and circumstances leading to death to ascertain
what, if any, offence was committed and by whom;

(iii) As the police officers belonging to the same police station are the
members of the encounter party, it is appropriate that the cases are
made over for investigation to some other independent investigation
agency, such as the state CID;

(iv) Question of granting of compensation to the dependents of the

deceased may be considered in cases ending in conviction, if police
officers are prosecuted on the basis of the results of the

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 investigation;

(v) The high incidence of custodial death and low conviction rate of
delinquent police shows the grimness of the situation. Some changes
in the 443 rules of evidence are to be made owing to the special
nature of the offence. One suggestion in this direction may be to lower
the standard of proof from proof beyond reasonable doubt to clear and
convincing method. Another suggestion is that the legislature must
immediately take notice of the Law Commission’s suggestions made
in its 113th Report and give effect to it by amending the Indian
Evidence Act;

(vi) A suggestion to control the custodial violence may be, as was

suggested by Mallimath Committee and the Law Commission of India
that a special investigation police must be in place to interrogate the
criminal cases rather than a constable who is an SSC pass, investigating the case
using third degree methods to elicit the truth (or the statement they wanted to
have) from the accused;

(vii) Torture in custody flouts the basic rights of the citizens recognized by the
Constitution of India and is an affront to human dignity. Police excesses and
the maltreatment of detainees/undertrial prisoners or suspects tarnishes the
image of any civilised nation and encourages the men in ‘khaki’’ to
consider themselves to be above the law and sometimes even to become
law unto themselves. Unless stem measures are taken to check the malady, the
foundations of the criminal justice delivery system would be shaken;

(viii) With the increasing instances of gross lapses in police conduct we feel that
it necessary to restore bust between citizens and the police. This can only
happen if there is transparency and basic accountability in the day to day
functioning of the police and police stations;

(ix) Our understanding is that there will not be accountability, transparency and
functioning according to the law at times of outbreaks of violence and stress,
if there is no transparency and accountability in normal times, that is, at
peace time. The normal functioning of your police station needs to be understood
and monitored so that we are informed of and confident that, lawful
procedures are being followed. Such a monitoring will also help us in
establishing contact with the police station when needed. The police station

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 needs to become a space for the healthy and active interventions by the
citizenry and not as a place that symbolises discomfort, fear, and even abject
terror;

(x) Arrests should be made only in the case of grave offences. The Third
Report of the National Police Commission has clearly laid this principal out:
“...An arrest during the investigation of a cognizable case may be considered
justified in one or other of the following circumstances: 1) The case involves a
grave offence like murder, dacoity, robbery, rape etc., and it is necessary to
arrest the accused and bring his movements under restraint to infuse confidence
among the terror stricken victims. 2) The accused is likely to abscond
and evade the processes of law. 3) The accused is given to violent behaviour
and is likely to commit further offences unless his movements are brought
under restraint. 4) The accused is a habitual offender and unless kept in
custody he is likely to commit similar offences again It would be
desirable to insist through departmental instructions that a police officer making
an arrest should also record in the case diary the reasons for making the arrest,
thereby clarifying his conformity to the specified guidelines. ”

The National Police Commission report states clearly that the safeguards and
guidelines that it is making are in extension of the already existing powers of
individual liberty enshrined in Articles 21 and 22 of the Indian Constitution;

(xi) Except in heinous offences, an arrest must be avoided if a police

officer issues notice to person to attend the Station House and not to leave
Station without permission would do;

(xii) (xii) N.R. Madhava Menon, leading legal academic in his preface to
“Training Manual for Police on Human Rights” published by the
National Law School commented:

“Higher standards have been set in police conduct and better safeguards have
been developed to ensure observance of human rights. While all these happened
in the Constitutional Jurisprudence of the country, it is unfortunate that the
police organization and management continued in the century-old framework
under the Police Act of 1861”;

(xiii) “Representatives of registered rights groups and NGOs should be

entitled, under law, to visit police stations and examine custodial

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 records”. This is the latest recommendation of the Law Commission of
India based on an assessment of police conduct vis-a-vis protection of
personal liberties as enshrined within the Indian Constitution;

(xiv) Due diligence is supposed to describe the threshold of effort by which

a state must undertake to fulfill its responsibility to protect
individuals from any abuse of their rights.

Due diligence by a signatory state includes Taking effective steps to prevent

such abuses; To investigate them when they occur; To prosecute the alleged
perpetrator and bring them to justice through fair proceedings; To provide
adequate compensation and other forms of redress to the victim; Above all it
means ensuring that justice is done without discrimination of any kind, racial,
ethnic, religious, class, gender or caste-based;

(xv) The instructions contained in the Police Manuals of different states

regarding prohibiting or restricting the use of force by the police
while effecting arrest, interrogating suspects and accused or during
any other stage of police inquiry or investigation, should be brought
to the notice of all police officers for strict compliance and if
necessary, refresher courses may be conducted for the police personnel;
( x v i ) The 113th report of the Law Commission of India has recommended
that Section 114(B) be inserted in the Indian Evidence Act to introduce a
presumption that injuries sustained by a person while in police custody
are presumed to have been caused by a police officer. Several Supreme
Court judgments and NHRC recommendations have pressed the issue;
the section still remains to be introduced with the Indian Evidence
Act;
(xvii) In March 1999, the NHRC announced the establishment of Human
Rights cells within the police departments of all states to deal with
all complaints related to human rights violations. To date there is little
information on the functioning of these mechanisms conceived to
provide protection against increasing rights violations by the police;
(xviii) In its 1995-96 annual report, the NHRC has commented that “The
local doctor succumbs to police pressure which results in distortion of

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 facts.”

The availability of medical reports produced by doctors is crucial to ensure

justice for the victims of torture. The lack of professionalism and independence
among medical personnel required to comment on police cases have invited
comment and censure. In June 1996, the Directorate of Health Services in West
Bengal issued a direction that in “no circumstances” should post mortem reports
be handed over to the 446 “concerned party"..

“The Post Mortem reports should be sent to the concerned police authority only
and in special circumstances to the courts on demand. This directive is in
contravention to all international standards and norms that state that medical
reports should be provided to the subject or his or her nominated representative
and to the authority responsible for investigating the allegation of torture or ill-
treatment; (xix) Recent rulings of the Supreme Court have also ruled that there
should be no time bar in prosecution of cases of torture.

Applications for protection from prosecution sought by policemen in cases related

to torture or custodial death should not only be summarily dismissed by the
Courts but must also invite strict judicial censure; (xx) The NHRC has
called for an amendment in the law so that cases relating to violations of
human rights and compensation are tried together in the same court with one set
of evidence being led. This was in specific response to ground-level realities:
victims of torture had to endure two sets of civil proceedings; this often
prevented persons from seeking redress. In January 1999, then chairperson of the
NHRC, Justice Venkatachaliah stated that “the very concept of immediate interim
relief and the purposes for which it is intended would be defeated if this remedy
is intervened with the fortunes of a criminal tria F.

The victims of such custodial violence often breakdown and confess to crimes
they may not have committed. Transforming the ‘Unaccountable Police’ into
‘Accountable Police’ is a Herculean effort requiring a multi-pronged approach.
Though it is a mammoth, it is no longer one we can shy from ifwe care to
preserve our democratic ideals. We found that the political leadership, not
respecting the democratic set up, is primarily responsible for not ensuring
highest standards of respect for life and dignity as enshrined in the Constitution

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of the country. In a democracy political leadership gives direction to civic life
with its commitment to certain basic values.

By unequivocally disapproving trigger happy trend in police force the political

leadership must send clear signals to police force that custodial violence in any
form is unacceptable. By doing so they would be doing a great service to cause
of a rule based society that retains essential values of civilized living.

An urgent reform is needed to old police laws and manuals that include
categories of offences by the police with penalties for offences graded according
to the level of their gravity and specifying the authorities competent to take
action based on the rank of the erring police officials.

I would felt opportunist enough while making it clear that while expressing the
view point of the police and other law enforcement agencies, I am voicing the
feelings of the competent and conscientious officers who respect the law, accept
the limitations of their functions and powers and take every professional
challenge seriously. This category excludes the vast majority if police officers
who resent any restrictions on their powers and are easily given to circumvent
the law to seek an easy and quick solution to their problems.

While conducting the research it was observed that rigid and somewhat extreme
stand taken by most human rights groups inevitably brings them into conflict
with the police leadership at various levels. The police officers find the human
rights activists unappreciative of the ground realities and accuse them of a
lack of sensitivity to the sufferings of the victims of crime.

They want Human rights NGOs to understand that human rights cannot be
enjoyed in an atmosphere of terror and intimidation. In their commitment to the
cause of public order, they wonder whether they should observe legal formalities
and constitutional niceties towards those who have openly and definitely rejected
the Indian Constitution and other laws.

I firmly believe that it is possible for the two to bridge their differences and
work unitedly for the cause of eradicating custodial violence. I sincerely believe
that no custodial violence, big or small should be condoned, each cases has
to be viewed in the overall operational context to find out whether the act was

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deliberate and mala fide or it was accidental and bona fide. This would help in
determining the gravity of the laps and deciding commensurate punishment.

It must be understood by the police that custodial violence-the widely prevalent

form of human rights violations considered, as a short cut to success by police
has invariably proved counter-productive. It exposes its perpetrators to legal
action and punishment, which cannot be taken lightly in view of the growing
trend in the judicial pronouncements to make the guilty police officials liable
for payment of compensation to the victims.

It has a sure effect of brutalizing the rank and file, alienating the police from
the public and eroding the faith of the citizens in the system. Custodial violence
of any form is the greatest obstacle in the way of integrating the police system
into the fabric ofa democratic society. We have reached a dangerous point where
even in urban cities, the utter breakdown ofthe rule of law is met with harsher
punitive measures and terminal solutions that restrict rather than enhance
accountability and transparency.

In such an atmosphere of apparent lawlessness, officers of the law have become

vocal proponents of swift, terminal solutions that have not borne out the
test of careful examination and scrutiny. However, it is a relief to notice that
there is a new emerging world of legal order. The Indian experiment in enacting the
protection of Human Rights Act is a hopeful start. The human rights
jurisprudence is gaining judicial reverence in India especially where life and
liberty are violated by State violence.

No doubt, the media and courts have been instrumental in checking this serious
menace but much remains to be done. There is positive trend of the judicial
policy for compensating victims in torture. But the judges awarding
compensation should act on some rational basis rather intuition. The question
also remains about the prosecution of those officials who are involved in
custodial crimes. To conclude, India inherited a regimented and extremely
repressive and highly corrupt police organization and there is need to get
down to the task of police reforms at the very outset. As the police persons
of all ranks across the length and breadth of the country are increasingly
working beyond the limits of law, many a times with political patronage, there is

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an express need to turn attention to comprehensive reforms in police and criminal
justice system. The police leadership at all levels of command has to accept the
fact that observance of human right is mandated by law and they cannot be
allowed to achieve their objectives by practicing custodial violence.

The custodians of law cannot be allowed to become its transgressors under a

mistaken belief that they are serving the larger interest of the society as a
whole. They can ask for more powers if they find the challenge to be
beyond the reach of the existing laws. However, such demands will receive
favorable response only if they enjoy the confidence and support of the civil
society.

Only good ends can be achieved by good means and it can be earned only by
professional competence and high standards of character and integrity. Any
compromise on this point is bound to harm the basic rights of citizens
guaranteed by the Constitution and other penal laws of India. Unless stem
measures are taken to check the malady, the foundations of the criminal justice
delivery system would be shaken and the civilization itself would risk the
consequence of heading towards perishing.

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 BIBLIOGRAPHY

Books/Articles/Charters/Documents/Reports

• Deb, R ‘Police and Law Enforcement’, S.C. Sarkar & Sons Pvt.
Ltd.., Cal (1988)
• Pachauri, S.K ‘Prisoners and Human Rights’,1st ed. 1999, [Link],
Delhi
• ‘Torture in India 2008-A State of Denial”, a report by ACHR
published by ACHR, New Delhi, First published in June (2008)
• “On Informal Arrest and Human Rights Violations”, Indian
Journal of Criminology, January March (2000)
• Sen, Sankar, PSV Parsad, AK Saxena “Custodial Deaths in India” (A
research study) - SVP NPA, Hyderabad
• “Police Atrocities vis-a-vis Custodial Violence in Indian Perspective”-a
paper presented in the seminar on “Police atrocities in India” held on
31st August 2000, under the auspices of Institute of objective Study,
Aligarh, published in The Indian Police Journal, July-September (2003)
• Report ofLaw Commission ofIndia, March (2003)
• Unstarred Question No.1281 answered on 12.03.2008
• Unstarred Question No. 1145 answered on 22.08.2007
• Unstarred Question No. 1281 answered on 12.03.2008

Websites/Useful links

• ‘Custodial Dignity’ by Justice R.K. Abichandani, High Court of Gujarat,

[Link]

• [Link]/nhr c/[Link]

• [Link]

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