CUSTODIAL DEATHS AND INIQUITOUS POLICING IN INDIA: A CRITICAL ANALYSIS
The Author of this blog is Mr. Anirudh Tyagi, Student, Dr. RML National Law University, Lucknow
Supreme Court bench, under U.U Lalit J, has allowed hearing a plea seeking a
curb on custodial violence. In the light of these events, the author analyzes
how police brutality has a taciturn camouflage under the pretext of being
saviors of our lives. They are not, most certainly when the number of deaths in
police custody is looked at. Here both the psychological picture of
sadomasochism and legal implications are discussed with suggestions to beef up
and strengthen the police while controlling and condemning the iniquitous
Police, Crime and Torture
dictionary defines police as “the
official organization that is responsible for protecting people and property,
making people obey the law, finding out about solving the crime and catching
people who have committed the crime.”
we are to take excerpts from a report in 1976 submitted before U.S. House of
Representatives delineating the torturous treatment of prisoners in India, we
would find notations such as stamping on bare body with boots, beating with
rifle butt, inserting live body wires into the body cervices etc. The whole
report is too painful to be read and picturesque a society much in similar to that
of hunter-gatherers. Although the report is five decade older and there are
good chances for the conditions to improve, the fact is that they have not. According
to National Crimes Record Bureau (NCRB), there were 11,820 custodial deaths in
India from 2006 to 2012 but only 3,520 have ever got reported and less than 50
policemen have ever got convicted. Another finding by
National Human Rights Commission (NHRC) depicts more than 4,000 custodial
deaths alone in 2015-16. A few testimonies of
police victims (the number is very less given the tortured people ever managed
to reach court) have shown how same kind of cruelty still continues in Indian
police stations. In a case in Bihar, a boy was detained by the police for fourteen
years even after being released by the court.
majority of custodial death cases, police had intentionally neglected the
normal arrest procedure and did not follow basic CrPC provisions. The health checkups of
arrestees have been denied on unscrupulous and unrealistic grounds. When such a
person dies, senior police officers came up from their dozes with a pile of
excusable reports claiming the deaths to be caused by illness, suicide or any
other natural causes. According to government data, in 67 of 92 custodial
deaths, either the police failed to produce the suspect before the magistrate
in 24 hours or the suspect never lived for 24 hours.
A Retrospection on Policing in India
we do a little retrospection, we would find India with a long unending history
of police cruelty. If we link the present context, it would go as far as the
establishment of British rule in India. British modernized the Indian police in
every way possible but continued with the age long practice of custodial cruelty,
something they found beneficial to strengthen their upper hand. With the
development of modern political thought, police became a subject of heavy
discussions in the politico-social spheres and even Englishmen felt disgusted
at the way they used to treat the common people. The rampant beefing up of
rapes, deaths and brutalities persuaded the government to enact the Indian
Penal Code (IPC) in 1860 and the Indian Police Act, the very next year. The IPC
made “wrongful restraint” a crime and included “illegal custody” as one of its
forms. Lord Curzon in 1902 constituted the Police Commission in 1902 which severely
criticized the Indian police for is inefficiency, and being corrupt and
in 1950 became a country with a constitution guaranteeing equality, promoting
fraternity and promising welfare of citizens. This came up as a hope for positive
changes in policing but the hope didn’t last long. The leopard of police
couldn’t change its spots. By the late seventies, some incidents appalled the
nation including the Bhagalpur case where 33 men were blinded by the policemen.
The same happened in Maya Tyagi case where
lady named Maya was molested by a policeman who later on shot down her husband
Ishwar and other relatives. She was then raped by ten policemen and paraded
naked in the market area.
Maya Tyagi to the latest father son custodial death in Tamil Nadu, this country
has had enough of police tortures, iniquities and ignominies.
The Third Degree Tortures: Their
Legality and Justifiability
degree investigations are nothing but euphemisms for barbaric extra-legal
method which are notoriously, and yet very commonly, applied on suspects to
make them speak the truth out of the pain inflicted upon them. This is similar
to an act of a bloodthirsty maniac having a psychopathic compulsion to maim
people without any reason. This is where a policeman degrades to the level of a
expects police to investigate with a keen and sleuthing acumen but in no case
envisages them becoming analogous to criminals. The Article 22 of the Indian
constitution forbids the self-incrimination and unambiguously declares that no
accused “shall be compelled to be a witness against himself”. Section 29 of the Indian
Police Act clearly prohibits any unwarrantable personal violence on any person
International Conventions and
Declaration on Protection of all Persons from being subjected to Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, 1975 under Article 2
declares torture to be a violation of human rights and a gross transgression of
Article 6 in the declaration mandates the state to keep a systematic review of
methods used by police for interrogation and to do special arrangements for
United Nations Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (UNCAT), which came into force in, 1987 prohibits any
kind of exception to allow torture; the prohibition against torture is absolute
and cannot be tolerated. India is a signatory to UNCAT.
Judicial Pronouncements in India
Police with very shoddy backing from politician and discreditable sections of
bureaucracy unethically transcended every limit of humanity, the burden to
safeguard the victims of police brutality and the very fundamental essence of
constitutionalism lied with the courts of the country. As its verdicts address
and bind the whole nation, the Supreme Court has emerged as a redeemer with few
of its spectacular decisions.
In Delhi judicial Service Organization v. State
the SC while condemning the excessive use of force proclaimed that this is
unfortunate and deplorable to see the “police excesses and aberrations to deal
with suspects” even decades after independence.
was followed by Joiginder Kumar v. State
where the apex court held that a police officer should justify the purpose of
arrest and if he fails do to so no arrest could be made. The court noted the
reputational loss an arrest causes and directed the police to refrain from
making any arrest except in heinous offences. A friend or a close relative of
the arrested person should be apprised of whereabouts of the arrested and the
name of such relative must be noted in a diary maintained by police. The
magistrate has to check if these requirements are being complied with.
two decisions had very small or no effect at the ground level. The realities
didn’t change with the fancy articulations of the court and that’s why the time
was ripe for SC to handle the matter more seriously. Here comes a case which
became famous for ages to come.
D.K Basu v. State of West Bengal was
the first case where the Supreme Court “warned” the police department of being
liable to contempt of court as well as departmental proceedings, if the
mentioned guidelines are not complied with. The court laid down certain
guidelines which are to be followed while arresting the suspect and also during
the custodial interrogation. Court wrote that the custodial deaths strike a
blow to the rule of law and directed the state governments to follow the
guidelines as their “primary responsibility”.
subsequent problem was the investigation of custodial deaths. The court was
apprised of the fact of tampering with the evidence by the police to save their
own personnel. Therefore in Secretary
Hailakandi Bar Association v. State of Assam,
the apex court instantly directed the CBI to probe into a matter of custodial
death noting the “futility to assume an independent investigation by the police”.
The stand of SC towards an independent inquiry was strengthened in Mrs. Parmit Kaur case.
but not the least the Maneka Gandhi case
and the advent of the due process of law which further strengthened the hands
of the judiciary, has shown its effect in decisions of court granting heavy
compensations to heirs of victims of custodial deaths. This was seen very
graciously in People’s Union for
Democratic Rights v. Police Commissioner, Delhi Police Headquarters, wherein a damage of Rs.
50,000 was awarded to the family of a police custodial victim. This was
exuberantly followed by a compensation of Rs. one lakh in Shakila Abdul Gafar Khan.
 Jitendra Mishra. Custodial
Atrocities, Human Rights and The Judiciary, Journal of the Indian Law
Institute, 508, (2005).
 G.C Shekhar, Custodial Death of
Father-Son duo in Tamil Nadu, Outlook, Jun 27, 2020, https://www.outlookindia.com/website/story/india-news-custodial-death-of-father-son-duo-in-tamil-nadu-doctors-report-points-to-police-torture/355544.
 Dhananjaya Mahapatra, 11,820
Custodial deaths in Five Years, The Times of India, Nov 24, 2013, https://timesofindia.indiatimes.com/india/11820-custodial-deaths-in-five-years/articleshow/26283098.cms.
 India’s Failure to End Deaths in
Police Custody, Human Rights Watch, Dec 19, 2016, https://www.hrw.org/report/2016/12/19/bound-brotherhood/indias-failure-end-killings-police-custody
 Raja Bagga, Why Custodial Deaths
go unpunished, Hindustan Times, Jul 05, 2020, https://www.hindustantimes.com/analysis/why-custodial-deaths-often-go-unpunished/story-f35QfTkbmuvmxdRn759vII.html
 Mishra, Supra note 1, at 513.
 Sahar Bhog, Who Decides the
Definition of Rape, Feminism I India, May 22, 2019, https://feminisminindia.com/2019/05/22/definition-rape-laws/
 Article 22, The Constitution of
 Section 29, Indian Police Act,
 United Nations,
Declaration on the Protection of All Persons from Being Subjected to Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975, https://www.ohchr.org/EN/ProfessionalInterest/Pages/DeclarationTorture.aspx#:~:text=Any%20act%20of%20torture%20or,Universal%20Declaration%20of%20Human%20Rights.
 Id at Article 6
 United Nations, Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
 (1991) 4 SCC 406
 AIR 1994 SC 1349
 (1997) 1 SCC 416
 (1995) 3 SCC 736
 JT 1995 (8) SC 418
 AIR 1978 SC 597
 (1989) 4 SCC 730
 (2003) 7 SCC 749