International Journal

of Law and Social Sciences (IJLS)

Volume 8, Issue 1, 2022
Print ISSN: 2454-8553, Online ISSN: 2583-8644

Custodial Violence in India with Reference to the

Prevention of Torture Bill and International Legal Framework
Arif Majruddin1
Pooja Singh2
DOI: https://doi.org/10.60143/ijls.v8.i1.2022.71

Abstract Keywords: Prevention of Torture Bill, Custodial Vio-

lence, Convention against Torture, Human Rights, Po-
Torture in custody is a confession of failure to do jus-
lice brutality, etc.
tice. It is one of the worst crimes against humanity and
a naked violation of human rights governed by the rule
of law. It is the brink of disaster, specifically for the Introduction
economically backward class and socially deprived “Torture is a wound in the soul so painful that some-
section of the society. We claim ourselves as ‘Vishwa times you can almost touch it but is also so intangi-
guru’ even though many instances of police savagery ble that there is no way to heal it. Torture is anguish
occur not because of individual aberration, but because squeezing in your chest, cold as ice and heavy as a
of systematic compulsions. India is a member of the stone, paralyzing as sleep and dark as the abyss. Tor-
Convention against Torture but failed to give effects ture is despair and fear and rage and hate. It is a desire
to its provisions. The cases of torture are rising at an to kill and destroy, including yourself.”
unpredictable and unprecedented rate; it is raising so
-“Adriana P. Bartow”
many burning questions about the quandary motive of
the government to not take any appropriate steps to- Torture in custody is a sword of Damocles in the civi-
wards protecting the rights of victims from inhuman lized society, is governed by the rule of law, and poses a
torture. The researcher divided this paper into several grave threat to an orderly society. It is a breach of human
parts as they attempt to study the International Conven- rights and a violation of the basic fundamental rights
tion on Torture with a detailed analysis and interpreta- of the citizens, and today, no civilized law presumes
tion of the Prevention of Torture Bill 2010 and 2017 such inhuman violence. In India, custody is two types
with a historical overview of torture in India in its first Police Custody and Judicial Custody. The Supreme
part, similarly, the second part focused on the infamous Court of the United States, in the case of Miranda v.
techniques used by the police authorities to torture the Arizona, implies the word custody means apprehending
accused. A comparison study with other countries’ laws someone for protective care and depriving them of their
also focuses on landmark decisions by the respective liberty. Children are in the custody of parents; patients
Hon’ble courts. In the third part, the researcher dealt are in the custody of hospitals and doctors, and so on.
with the existing domestic legislation on inhuman and updated few more pages
degrading treatment and ended with some short recom- The term ‘custodial violence’ “includes all types of
mendations and a conclusion. physical and mental torture inflicted upon a person in
police custody. It is a crime against humanity and a

1 4th Year B.A.LLB(Hons) Student, Jamia Millia Islamia University, New Delhi.
2 4th Year B.A.LLB(Hons) Student, Jamia Millia Islamia University, New Delhi.

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Arif Majruddin, Pooja Singh

naked violation of human rights.” After various Law Historical Overview of
commission Reports, the National Human Right Com- Torture in India
mission’s note to the government, and the guidelines of
There is a long history of torture as a major investiga-
D.K Basu, the cases of custodial violence still rise. Dur-
tion technique in the Indian sub-continent. The Madras
ing the year 2019, it was reported that “there was a rise
Torture Commissions Report of 1865 shows that tor-
in the number of custodial death cases as 5 people die
ture, force, and coercion date to the 2nd Century AD.6
each day in custody, and it has become a burning ques-
tion today.” By accepting the grain of salt incidents, the
Torture during ancient India
‘Prevention of Torture Bill was introduced two times
in the parliament of India to give effects to the provi- Amongst the authors of Dharamshastra, Manu is con-
sions of the UN Convention called Convention Against sidered to be the eldest. “He speaks of the four forms
Torture (Hereafter UNCAT), but all went in vain; after of punishment- Vak Danda (admonition), Dhik Danda
several discussions and due to lack concern of the gov- (censure), Dhanadanda (pecuniary punishment in-
ernment it sits on the fence, and the bill lapsed.3 cluding fine), and Bandhadanda (all sorts of physical
punishment including the death penalty)”.7The Band-
While in the opening speech to pull the strings to the hadanda includes beating, severance of the limbs,
UN Human Rights Council, India’s Attorney-General marks embedded on the body, capital punishment, and
cited Mahatma Gandhi, and Gautam Buddha on state- pouring hot oil on the body. 8 The trial by danda (rod),
sponsored or state-sponsored torture in 2017, stating, ordeal, and caste system were the three factors by which
“India believes in peace, non-violence, and upholding the punishment was decided in ancient India.9
human dignity. As such, the concept of torture is com-
pletely alien to our culture, and it has no place in the In the Veda, the Upanishads mentioned the trial by or-
governance of the nation4” If ever, it would be an exam- deal as a feature of Indian law. They were used mainly
ple of hypocrisy in the textbook.5 in cases where the witnesses were unavailable or con-
sidered not reliable. In some ordeals, the accused was
Custodial violence and abuse of power by police of- required to prove his innocence with the mode of pay-
ficers or other government authorities continue, and it ment. “Sometimes the accused was required to hold
emerged as a significant issue of human rights concern hot iron in his hand to prove his innocence. Also, the
at the brink of disaster. It is one of the root obstacles to accused was thrown in the water; if he were innocent,
democracy, the rule of law, and the development of hu- he would not drown.” Ktesias and Greek historians of
man well-being in contemporary societies. the 5th century BC speak of a more severe form of an
ordeal. “He mentions a fountain from which he says
that water coagulates like cheese. If a person drinks,
he becomes delirious and confesses everything he

3  Jasir Aftab & Nausheen Khan, Custodial Torture And Deaths: The Dark Side Of Indian Police, Livelaw (Jan. 07, 2022,
19:45 PM), Custodial Torture And Deaths: The Dark Side Of Indian Police (livelaw.in).
4  Mr. Mukul Rohatgi, Former Attorney General of India at United Nation Human Right Council, Reviewed by Universal
Periodic Review (May 04, 2017, 14.30 – 18.00) OHCHR | India’s human rights record to be reviewed by Universal Pe-
riodic Review.
5 Baljeet Kaur, India’s Silent Acceptance of Torture Has Made It a ‘Public Secret’ 53(36) Economics & Political Weekly
EPW 01, 14 (2018).
6 Anuj Bhuwania, Very Wicked Children: ‘Indian Torture’ and the Madras Torture Commission Report of 1855, 06 Inter-
national Journal on Human Rights IJHR 09, 10 (2009).
7  Graves Champney Haughton & Standish Grove Grady, Institutes of Hindu Law, or, The Ordinances of Menu, accord-
ing to the Gloss of Cullúca: Comprising the Indian System of Duties, Religious and Civil London: Wm. H. Allen, 164
(1869).
8  Qadeer Alam, Historical Overview of Torture and Inhuman Punishments in Indian Sub-continent 31(2) Journal of the
Punjab University Historical Society JPUHS 127, 128 (2018).
9  Arthur Llewellyn Basham, The Wonder That Was India: A Survey Of The History And Culture Of The Indian Sub-
Continent Before The Coming Of The Muslims 122 (New York Taplinger Publishing Company 1968).

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
has done. ” Similarly, in danda prakriya, it was said
10
force. The practice of torture during this period was
that “Law is nothing but danda itself.11” “The laws of seen.17
Manu, the Arthashastra of Kautilya Chanakya, and the
Mahabharata all state that danda must be wielded with Torture and Legislation during the British
maximum discretion by the King to uphold justice.12” Period
The criminal justice system did not exist during India’s
During the rule of the Mughal initial years of British rule. Men, women, and children
Muslims started ruling in the 13th century and flour- were tortured into confessing the crimes, even though
ished until the beginning of the 18th century. 13There they did not commit them. The revenue collector also
are various instances14 in which it has been mentioned tortured people during the revenue collection if they
that they followed the Islamic Principles of justice and could not pay it sufficiently. In 1854, an allegation was
equity. Still, they induced heavy penalties on the peo- put against the East India Company in the session of
ple, especially in the case of robbery and murder. “The The House of Commons.18 “The revelations in the Par-
traditional execution method was used to get the crimi- liament and the press coverage that followed in 1854
nals trampled under the elephants’ feet.15” The execu- made the Madras government constitute a three-mem-
tion used to be conducted in public in broad daylight ber commission to ‘conduct a fullest and most complete
to create deterrence among the people. The conditions investigation’.” It sat for continuous seven months, and
of the prisoners were also miserable. During medieval I heard several cases regarding it.19
India (1206-1806 AD), a mixture of the Indian system The Torture Commission (1855) report highlighted that
of the monarchy with crime and punishment was in- police torture was quite prevalent in Madras presiden-
flicted.16 The king remained as the higher authority to cy, following their recommendations laid the founda-
give justice to the people. No code of crime was widely tion for the setup Police commission, in 1860. 20Fur-
followed during the time; only the Shariat law was in ther, it recommended forming a single homogeneous
force of civil constabulary under the proposed Police
Act of 1861. “The report of the Police Commission in
1905, appointed by Lord Curzon, reveals that innocent
persons were bullied and threatened or compelled to
give their information.21”

10 John Watson M’ Crindle, Ancient India: As Described By Ktesias The Knidian 18 (Trubner, London 1881).
11 Manu, Chapter VIII, SI. 14
12 Manu, Chapter XII :58, 78-79
13 Vol. 2, Saiyid Athar Abbas Rizvi & Arthur Llewellyn Basham, The Wonder That Was India: A Survey Of The History
And Culture Of The Indian Sub-Continent From The Coming Of The Muslims To The British Conquest, 161 (Sidgwick
& Jackson, London 1987).
14 Anil Chandra Banerjee, A New History Of Medieval India 393 (S. Chand, New Delhi 1986).
15 Home Office, Report of Royal Commission on Capital Punishment 703 Her Majesty’s Stationary Office, London (1949-
53).
16 Id.
17 Manu, Ch. VII, SI.1-13; also see Upendra Nath Ghoshal, A History Of Indian Political Ideas: The Ancient Period And
The Period Of Transition To The Middle Ages 43 (Oxford University Press, Oxford 1959).
18 Speech of Danby Semour, at Hansard, 3rd ser.,135 (July 11, 1854), (1854) 61.
19 A Letter issued from the Chief Secretary, H. C. Montgomery, Public Department, Fort St. George, 925 (Sept. 9, 1854).
20 The Police Commission Report, (Sept. 01, 1860) https://police.py.gov.in/Police%20Commission%20reports/Police%20
commission%20report%201860.pdf
21 East India Police, Report of The Indian Police Commission and Resolution of the Government of India 16 Printed for
His Majesty’s Stationary Office, London (1905).

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Arif Majruddin, Pooja Singh

The Britisher implemented the Indian Penal Code, to expand the definition of “Torture”, but the bill lapsed
1860, a codified uniform law. It prohibited punishment in 2014 due to the dissolution of the 15th Lok Sabha
like trampling by the elephants, mutilation, and other and kept the ball rolling.25
ancient practice of inhuman punishment. Though it had
The former Union Minister of Law of India filed a peti-
punishment, including rigorous imprisonment and the
tion in 2016 before the Supreme Court to comply with
death penalty, it was far better than the earlier modes of
UNCAT. Meanwhile, the Law Commission of India
granting punishment.22
submitted its 273rd report to the apex court. It recom-
mended26 the government make domestic legislation to
Role That Parliament Played By ratify the conventions. The commission’s recommenda-
Introducing ‘The Prevention of Torture tion again introduced the Bill in 2017 to get fish out of
Bill’ In 2010 And 2017 the water.27 Pull the wool over everybody’s eyes, this
time, it was introduced in the lower house of parliament
The death of Benix and Finix in Tamil Nadu added fuel
as a private member bill, but due to a lack of concern of
to the fire. It raised a burning question about the Indian
the government and dissolution of the 16th Lok Sabha,
police system causing illegal detention, custodial tor-
the bill again lapsed and remained to add another nail
ture, and beatings like black and blue custody. However,
in one’s coffin. The objective of the law was to expand
neither state nor the central government has taken a sin-
the definition of the word ‘Torture.’28
gle step towards improving the hell-like situation by the
police authorities nor showed any intention of introduc- The legislation fulfills India’s commitment towards
ing torture law or compliance with the UNCAT. A simi- UNCAT to get out of the hot water and reaffirms that
lar incident happened when George Floyd’s death by a “this law prohibits torture and other cruel treatment,
police officer in the U.S. led to massive protests. The 29
the legislation strengthens the persons who are de-
government agreed to introduce a police reform bill as a prived of their liberty against the inhuman treatment
result of protests, and along with this, it decided to cre- by any public servant or any person or under judicial
ate a national database to document all police brutali- or police custody30 So far, to live in an ivory tower the
ty.23 The question remained, “when does this bill turn Government of India has not acted on the order of the
into a law” in the United States. Apex Court or accepted recommendations given by the
Law Commission of India. It pays mere lip service to
The parliament of India also introduced an Anti-Tor-
the obligations set out by UNCAT. Even after 73 years
ture bill in Lok Sabha on the 26th of April 2010 to curb
of independence and 23 years of signing the conven-
torture or inhuman, degrading treatment and to give ef-
tion, we remain one of the five countries in the world
fect the provision of the UNCAT.24 The bill was passed
that have yet to rectify this Convention, including coun-
on May 26, 2010, and referred to a select committee
tries like Sudan, Brunei, and Haiti. It shows a man of
of Rajya Sabha for examining the Bill, comprising 13
straw.
members. The committee recommended some changes

22 Id.
23 Derrick Bryson Taylor, George Floyd protest: A Timeline, The New York Times (Jan. 08, 2022, 16:54 PM), A Timeline
of the George Floyd Protests - The New York Times (nytimes.com).
24 The Prevention of Torture Bill, 2010 (Bill No. 58 of 2010)
25 Ministry of Home Affairs, Prevention of Torture Bill, 2014 (Dec. 20, 2017, 3:58PM), https://pib.gov.in/PressReleaseI-
framePage.aspx?PRID=1513316.
26 273rd, Law Commission of India, (Report No.273 of 2017), Report273.pdf (lawcommissionofindia.nic.in).
27 The Prevention of Torture Bill, 2017, No. XXIX, Bill of Parliament, 2017 (India).
28 The Prevention of Torture Bill, 2017, No. XXIX, Bill of Parliament, 2017 (India).
29 The Prevention of Torture Bill, 2010, No. 58, Bill of Parliament, 2010 (India)
30 The Prevention of Torture Bill 2017, No. XXIX, Bill of Parliament, 2017 (India)., “See” Statement of object and reasons
of the bill.

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
Interpretation of The Anti-Torture Bill 2.2. ‘Falanga’ wherein the soles of the feet are beaten
With UN Convention Against Torture (Rajkumar of Kerala was arrested in a financial fraud
case, he was detained by the police 4 day before his
Law arrest were recorded and finally died due to the police
The annual report on torture 2019 brutality in custody),35 hitting in private parts (Brijpal
Maurya and Lina Narjinari of Haryana), pricking nee-
1. National Campaign Against Torture (NCAT) is a
dle into the body (3-year-old minor of Tamil Nadu),
platform pledge to wipe out torture and inhuman or de-
kicking in the belly of a pregnant woman (Minuwara
grading treatment worldwide. ‘On the International Day
Begum of Assam, The pregnant woman started bleeding
in Support of Victims of Torture, an “Annual Report
and she lost her child because of torture).36 and beat-
was released and stated that in the year 2019, a total of
ing after stripping (Mohammed Tanveer of Haryana,
1,731 people died in custody, i.e., the death of roughly
Minuwara Begum, and Sanuwara and Rumela of As-
five people per day. 31This included 1,606 people who
sam).”
died in judicial custody, and 125 deaths occurred in po-
lice custody. At the same time, there were 1,966 deaths 2.3. Other types of custodial violence were also re-
in custody during 2018, including 147 deaths in police ported, which are shaking in the shoes, such as “in-
custody and 1,819 deaths in judicial custody.32 cluded electric shock on the prisoner, injecting petrol
into private parts of the alleged person, beating while
Infamous incidents of 2019 and techniques handcuffing, branding with a hot iron rod, inserting
used by the police while interrogating a hard blunt object into the anus by the police officer
2.1. In the upcoming years, it was witnessed that the while interrogating, beating after hanging upside down
police officer used different and very harsh or inhuman with bound hands and legs, pressing fingernails with
techniques to obtain information and to confess some- pliers and beating with iron rods after the victim was
thing by intimidating or coercion; a few incidents were suspended between two tables with legs and hands tied
reported in 2019 are Penelope, such as the use of ham- to the prisoner who was under the custody.”37
mering iron nails in the body (Gufran Alam and Taslim 3. Public servants are responsible for grievous and sim-
Ansari of Bihar, were picked by the police and family ple damages under the IPC.38 But de novo torture bill
found dead in custody by the police brutality)33, apply- 2017 is not intended to prevent the occurrence of sim-
ing roller on the legs and burning (Rizwan Asad Pandit ple hurt but only grievous hurt. For example, stubbing
of Jammu & Kashmir were pickup for questioning in a a cigarette on a person’s body several times, beating a
terror-related case by the dreaded Special Operations person with different instruments, etc., are punishable
Group where he died).34 under IPC. Still, the proposed bill does not explicitly
identify such acts of torture as UNCAT39.

31 Maktoob, In 2019, India Registered Average Five Custodial Deaths Daily, Matoob National Campaign Against Torture
(June. 29, 2020, 01:11 AM), In 2019, India registered average five custodial deaths daily, Matoob | National Campaign
Against Torture (uncat.org).
32 Id.
33 The wire, Bihar Custodial Death Case: Nails ‘Hammered’ Into Two Men; Probe Ordered (thewire.in) (Jan 12, 2022,
11:04 PM).
34 Sameer Yasir, Custodial death of Kashmir teacher Rizwan Pandit likely due to his affiliations with Jamaat-e-Islami,
claims family, Firstpost (March 14, 2020, 11:04 PM) https://www.firstpost.com/india/custodial-death-of-kashmir-teach-
er-rizwan-pandit-likely-due-to-his-affiliations-with-jamaat-e-islami-claims-family-6292901.html.
35 The News Minute, https://www.thenewsminute.com/article/custodial-death-rajkumar-kerala-idukki-sp-kb-venugopal-
transferred-104924 (March 18, 2020, 23:30 PM).
36 Id.
37 Id.
38 Pen. Code. § 330 and § 331 (1860).
39 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 1

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Arif Majruddin, Pooja Singh

4. Section 5 of the bill provides the limitation for taking Assembly endorsed on December 10th, 1984.46 The
cognizance within 6 months.40 That is not in compli- purpose of this Convention is ‘to avoid acts of torture
ance with the UNCAT.41 Before a court can entertain a and other actions forbidden under this convention.’47
lawsuit, the approval of the appropriate government is “The word ‘Torture’ has been enshrined under Article 1
required. This means that if, after six months, a survi- of the Convention.48 The interpretation of the Conven-
vor of torture wants to file a case, the court would not tion also states that torture cannot be justified under any
be able to take cognizance of it. Public employees can- circumstances, including during war or public emergen-
not be dismissed in “the Code of Criminal Procedure cy, as enshrined under Article 2 of the convention.”49
(hereafter, CrPC)” without the sanction of the respec-
Article 4 of the convention “requires each state to en-
tive government.42 Furthermore, it does not prescribe
sure that all acts of torture, attempts to commit torture
a time limit for filing cases for crimes whose sentence
or participation in torture are offences punishable un-
exceeds three years’ imprisonment.43
der the criminal law of their states.” “It also provides
5. The proposed bill has no provision for dealing with for the prosecution or extradition of persons alleged to
compensation to the victims, and no independent body have committed acts of torture.”50
has been made to investigate complaints about custo-
The implementation of the Convention is monitored by
dial torture by the authorities. At the same time, Article
a “Committee against Torture”, comprising of 10 ex-
14 of the UNCAT44 Provides “the member countries to
perts who are elected by the ‘States parties. They are
ensure that victims of torture have a right to compensa-
presumed to report to “the Committee regularly on the
tion.” In many previous landmark judgments, the Apex
steps they have taken to give effect to the provisions of
court of India held that illegal detention or torture in-
the Convention.” The UN General Assembly adopted
flicting upon the alleged person is a negation of “Article
Optional Protocol to CAT in December 2002. It cre-
21 of the constitution.” If anything happens contrary,
ated a subcommittee to examine the places of detention
compensation must be granted to the victim.45
to be performed in collaboration with national institu-
tions.51 Similarly, Article 22 of the UNCAT52 Provides
International Legal Framework “state has made a declaration accepting the treaty bod-
The incorporation of legal enactment against torture fi- ies’ competence to receive complaints, and local rem-
nally resulted in the UNCAT, which the UN General edies have been exhausted.”53 Even though India has

40 The Prevention of Torture Bill 2017, §. 5, No. XXIX, Bill of Parliament, 2017 (India)
41 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 1, art. 14, art. 19 and art. 22
42 Code Crim. Proc. § 1987 (1973)
43 Code Crim. Proc.§ 468 (1973)
44 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 14
45 Sube Singh v. State of Haryana and others AIR (2006) SC 1117.
46 Id.
47 Id.
48 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 1 “see” “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from
him or third person information or a confession” It may be “inflicted by or at the instigation of or acquiescence of a
public official or other person acting in an official capacity”
49 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 2
50 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 4
51 Oette L. (2018) The UN Human Rights Treaty Bodies, International Human Rights Institutions, Tribunals, and Courts
International Human Rights Springer, Singapore (November 11, 2020, 11:03 AM) https://doi.org/10.1007/978-981-10-
4516-5_5-1.
52 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 22
53 Divya Vikram, ‘India’s Response against the Act of Torture’, National University of juridical sciences Nujs (2010) In-
dia’s Response Against The Act Of Torture | Law Resource India (wordpress.com).

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
not rectified the convention but still cannot be denied like war, national emergency, or threat of terrorism.
reservation from Articles 20 and 22 of the UNCAT,54 The restriction is so strong and widely accepted, and it
has become a fundamental principle of customary in-
However, regardless we do not have any domestic legis-
ternational law.” It ensures that even states that have not
lation on torture, the Apex Court of India is a champion
ratified any international conventions that expressly ban
of this convention and often used it to condemn torture,
torture are prohibited from using it against anybody,
illegal detention, and custodial violence, which contrib-
anywhere. Now it is becoming part of the customary
uted to creating a national jurisprudence for combating
international law.59
the instances of torture or inhuman treatment in India.
On December 10, 1948, UN General Assembly pro-
Customary International Law claimed UDHR, and article 5 asserted that “No one
shall be subjected to torture or cruel, inhuman or
As mentioned above, the convention consists of 170
degrading treatment or punishment.”60 This Article
state parties. At the same time, 83 members are sig-
is widely considered to express international custom-
natories to it, and India is among the five countries
ary law. “Torture In the context of the United Nations,
worldwide that have not ratified this law yet. But being
several international treaties that are legally binding
a Signatory member also imposes an obligation to re-
on those States that have ratified them are expressly
frain in good faith from actions that would undermine
prohibited.”61
the object and intent of UNCAT during the time be-
tween signature and ratification.55 The State officially Whereas “International Covenant on Civil and Polit-
consents to be bound by its commitments and reports ical Rights” (ICCPR) is another international Law that
to the Committee on the measures it has taken within India not only signifies but also ratified this law on the
one year.56 International law in the 21st century regu- 10th of April 1979,62 and “Article 7 of the same conven-
lated not only interactions between States but between tion prohibits torture or cruel, inhuman, or degrading
States and individuals. States could no longer assert treatment or punishment.”63
that their jurisdiction over their territories was prevent-
ing intervention for such actions. At the domestic point, Some Regional Treaties and Instru-
state activity was now open to outside scrutiny57 “as en-
ments on Torture
shrined in the Charter of United Nations and the Stat-
ute of the International Court of Justice, of which India 1. “The European Convention on Human Rights
is a founding member.”58 In all conditions, “torture is 1953” was drafted in 1950 to protect human and funda-
unethical and impermissible under any circumstances mental rights for the countries belonging to the Europe-

54 The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, art. 20 and art. 22
55 Vienna Convention on the Law of Treaties 1969, art. 10 and, art. 18 “see also” India Const. art. 51
56 Convention Against Torture Initiative, https://cti2024.org/content/images/CTI%20Ratification%20tool%20-%20execu-
tive%20action%20and%20annexes%20compilation%20FINAL.pdf (Sept. 19, 2020, 22:44 PM).
57 International Court of Justice, art. 38(b), “See” Where a complaint is submitted by a State, the International Court of
Justice has competence to declare whether a violation of customary international law has in fact occurred (Article 38(1)
(b), Statute of the International Court of Justice, annexed to the Charter of the United Nations, 26 June 1945, T.S. 993,
entered into force Oct. 24, 1945, and incorporated therein by Article 92).
58 Refworld, https://www.refworld.org/docid/3ae6b3930.html (Dec 20, 2021).
59 Goiburú and Others v. Paraguay, § 128 op. cit. 2006, Tibi v Ecuador § 143 op. cit. 2004, Gómez-Paquiyauri Brothers v
Peru §112 op. cit. 2004, Urrutia v Guatemala § 92 op. cit. 2003.
60 Universal Declaration of Human Rights, 1948 (General Assembly resolution 217 A) art. 5
61 UN General Assembly, 999 International Covenant on Civil and Political Rights 171 (16 December 1966), https://www.
refworld.org/docid/3ae6b3aa0.html [accessed 7 January 2022]
62 Id.
63 Id.

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Arif Majruddin, Pooja Singh

an Council.64 It has 47 members of the state, including fresh and preventive approach to dealing with human
Russia and the UK; Article 3 states, “No one shall be rights abuses after the European Convention on Human
subjected to torture or inhuman or degrading treatment Rights 195371.’
or punishment.65”
2. “The American Convention on Human Rights Domestic Legislation Dealing With
1978” provided “domestic legislation to the American Inhuman Treatment
states to provide its citizen with a system of personal “Very well said on the occasion of the constitutional
liberty and social justice based on respect for the essen- day by our father of law as “So long as you do not
tial rights of man on the same principles as enshrined achieve social liberty, whatever the law provides free-
under UDHR and other international instrumental dom is of no avail to you” and “Law and order are the
law.66” Article 5 of this convention provides the detailed medicine of the body politic and when the body politic
provision for the ‘Right to Humane Treatment.’67 gets sick, medicine must be administered.”
3. “The African Charter on Human and Peoples - “B R Ambedkar”
‘Rights 1986” was drafted and enacted for its member
states to promote international cooperation, the ‘Char- Constitutional provisions
ter of the United Nations, and the UDHR68. Article 5 The policing system is known for its ‘limb of law’ in
of the same charter provides “the dignity of every hu- society, is bound to ‘Rule of Law’, and wishes that the
man being and prohibit all forms of exploitation and government’s executive arm be depoliticized. “Similar-
degradation of man particularly slavery, slave trade, ly, it is not wise to lift the police officers to themselves,
torture, cruel, inhuman or degrading punishment, and as they require government supervision and are subject
treatment shall be prohibited.69” to the general scrutiny of the judiciary72” The police-
4. “The Inter-American Convention to Prevent and man has an onerous responsibility to maintain law and
Punish Torture 1987” defines the word ‘Torture’ more order in society, to provide social security, liberty, free-
expensively than the UNCAT to protect Human rights dom, and crime-free environment to the peoples. But
“The use of techniques to obliterate the victim’s identity on the contrary, they often use disproportionate force
or reduce his physical or mental ability, even though to confess the acquisition, which they have never done.
it does not cause physical pain or mental anguish.”70 73
The act cannot be justified at any cost, especially by
It has been drafted within the framework of American whom to known as protectors and flag bearers of the
Convention on Human Rights. Similarly, “The Euro- law; it negates the rule of law.
pean Convention for the Prevention of Torture and I) ‘Article 20(1) of the constitution states as “No person
Inhuman and Degrading Treatment or Punishment shall be convicted of any offence except for violation
1989” was enacted by its council members ‘to mark a

64 Refworls, Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms,
as amended by Protocols Nos. 11 and 14, (Nov 4, 1950), https://www.refworld.org/docid/3ae6b3b04.html (Jan 7, 2022).
65 The European Convention on Human Rights, 1953 art. 3
66 Refworld, Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa
Rica, (Nov. 22, 1969) https://www.refworld.org/docid/3ae6b36510.html [accessed 7 January 2022]
67 The American Convention on Human Rights, 1978 art. 3
68 Refworld, Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27
June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), https://www.refworld.org/docid/3ae6b3630.html Jan. 7, 2022).
69 The African Charter on Human and Peoples ‘Rights 1986 art. 5
70 Refworld, Organization of American States (OAS), Inter-American Convention to Prevent and Punish Torture 67 (Dec,
9, 1985) https://www.refworld.org/docid/3ae6b3620.html (Jan. 7 2022)
71 Cassese, Antonio 83(1) A New Approach to Human Rights: The European Convention for the Prevention of Torture, The
American Journal of International Law 128-153 (1989).
72 State of West Bengal v. Swapan Kumar Guha & Others AIR 1982 SCC 561.
73 Id.

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
of a law”. In contrast, Article 20(3) “No person ac- existence. Likewise, the principle that no one shall be
cused of any offence shall be compelled to be a witness deprived of his life and liberty arbitrarily without the
against himself.74” authority of law was not the gift of the Constitution.81”
The Hon’ble Supreme Court in the case of Selvi v. the The Supreme Court first drew attention to the prison-
State of Karnataka,75 contended that “the three most er’s rights in T.V. Vatheeshwaran v. Tamil Nadu State;
prominent interrogation techniques, viz., narco-analy- the court held “that the fundamental rights granted un-
sis, the lie-detector test, and brain-mapping violated an der Articles 14, 19 and 21 are at all times applicable to
accused person’s right against self-incrimination under prisoners as are granted to the freemen.” Similarly, in
Article 20(3), and her right to life and personal liber- Munn v. Illinois, 82Kharak Singh v. the State of UP,83
ty under Article 21 of the Constitution and disagreed and Francis Corallie Mullin v. the Administrator, Un-
with The post-Independence Supreme Court that had ion Territory of Delhi,84 the Hon’ble court emphasised
broadly endorsed by colonial logic, which had favoured that “life means something more than mere animal ex-
the maintenance of law and order over the rights of the istence and the inhibition against the deprivation of life
accused and which had seen no problem conscripting extends to all those faculties and limits by which life is
the individual’s body (and its private spaces) for law enjoyed.”
enforcement and crime detection purposes.76” Finally,
IV) In ‘DK Basu v. State of West Bengal,’85 a very cel-
the court declared the forced application of all three in-
ebrated judgment by the Apex court for the protection
terrogation techniques unconstitutional.77
of the rights of prisoners while in custody and issued a
II) ‘Article 21 of the constitution provides that “No detailed guideline for police personnel who must fol-
person shall be deprived of his life or personal liberty low while arresting any person. “It acknowledged the
except according to procedure established by law.”78 In right against custodial torture and death in police cus-
Meneka Gandhi v. Union of India,79 Justice Bhagwati tody and further instituted guidelines to be followed in
observed that “the procedure established by law under all cases of arrest and detention to ensure transparency
Article 21 of the constitution must be a right, just and and accountability, and it indicates not to have caused
fair, not an arbitrary or oppressive procedure.” any worsening of attitude in the inhuman approach to
dealing with prisoners in custody.”
III) In ADM Jabalpur v. Shivakant Shukla, 80Justice
Khanna, in his dissenting opinion, ponied that “sanc- V) Article 2286 of the constitution deals with “Protection
tity of life and liberty was not something new when against arrest and detention in certain cases.” Similarly,
the Constitution was drafted. It represented a facet of “any criminal trial that may result in a person being
higher values which mankind began to cherish in its deprived of personal liberty and his right to life must
evolution from a state of tooth and claw to a civilised be impartial and without prejudice to or against the

74 INDIA CONST. art. 20(3)

75 AIR (2010) SC 1974.
76 Arun Ferreira, Colours Of The Cage (Aleph Book Company 2014), “See” Arun Ferreira was re-arrested in August 2018,
and was under house arrest at the time that this book was sent to the publisher.
77 Gautam Bhatia, The Transformative Constitution: A Radical Biography In Nine Acts 219 (HarperCollins Publishers
India 2019).
78 INDIA CONST. art. 21
79 (1978) 2 SCR 621.
80 (1976) 2 SCC 521.
81 ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 (4:1 decision) (Khanna, J., dissenting) para 487 and 501
82 Munn v. Illinois 94 US 113 (1877).
83 AIR (1963) SC 1295.
84 AIR (1981) SC 746.
85 (1997) 1 SCC 416.
86 INDIA CONST. art. 22

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Arif Majruddin, Pooja Singh

accused.87” “A punishment that is too inhuman or tor- dian Evidence Act.” ‘This section clearly stated that a
turous has often been considered unconstitutional.88” confessional statement made to the police officer is not
“While making an arrest, the police authorities must admissible and not treated as a piece of evidence for a
have to follow the 11-point guidelines laid down by the conviction until or unless it is made before the magis-
Hon’ble Supreme Court in the D.K. Basu case.89” trate.93
III) ‘Section 26 of the Act provides that “Confession by
Procedural and statutory provisions
accused while in the custody of Police not to be proved
The criminal justice system has two distinct models. against him unless it is to be made in the immediate
The first is the ‘Crime Control Model’, which stress- presence of the magistrate.”94 Whereas ‘section 27 of
es action efficacy, and the second is the ‘Due Process the Act sets out “how much information received from
Model’, which focuses on the legitimacy of the ac- an accused may be proved.95” The application of the
tion. Although France, West Germany, and Latin section must separate the accused’s statement into its
American countries adopt the model of crime control parts and distinguish the admissible portion thereof.
and countries such as the U.S.A., Australia U.K., and The only discoverable part will be admissible as proof.96
India follow the model of due process. Therefore, in
both models, custodial violence poses fundamental 2. Indian Penal Code 1860
concerns about the legitimacy of the rule of law and the
I) ‘Section 330 of the IPC’ states that whoever “Vol-
operation of the criminal justice system.
untarily causing hurt to extort confession or to compel
restoration of property, shall be punished with impris-
Statutory Provisions onment of either description for a term which may ex-
tend to 7 years, and shall also be liable to fine.97” while
1. Indian Evidence Act 1872
‘Section 331 of the code’ provide that whoever “Volun-
I) ‘Section 24 of the Act’ stated: “that a confession tarily causing grievous hurt to extort confession, shall
made by an accused is considered irrelevant if it has be punished with imprisonment of either description
been caused by inducement, threat or promise concern- for a term which may extend to 10 years, and shall also
ing the accused.90” be liable to fine.98” in reality, it is different, police of-
II) ‘Section 25 of the Act provides that “No confes- ficers often uses his excessive or disproportionate force
sion made to a police officer (read with Section 162 while investigation to confession which accused person
of CrPc).”91 Supreme Court in Aghnu Nagesia v. the never knows and deals with the suspect inhuman way,
State of Bihar92 stated that “if the FIR is registered by such technique of police authorities made him liable
the accused person to any police officer or made any under ‘section 330 and 331 of the IPC.’
confessional statement to a police officer is debarred II) ‘Section 342 of the IPC deal with “Punishment for
as a proof of the confession under section 25 of the In- wrongful confinement99” Similarly, Section 348 of the

87 Nahar Singh Yadav v. Union of India, AIR 2011 SC 1549.

88 Inderjit v. State of Uttar Pradesh, AIR 1979 SC 1867.
89 (1997) 1 SCC 416.
90 Indian Evidence Act, 1872, § 24, No. I, Act of Imperial Legislative Council, 1872 (India).
91 Indian Evidence Act, 1872, § 25, No. I, Act of Imperial Legislative Council, 1872 (India).
92 AIR (1972) SC 922.
93 Code of Crim. Proc. § 164 (1973)
94 Indian Evidence Act, 1872, § 26, No. I, Act of Imperial Legislative Council, 1872 (India).
95 Code of Crim. Proc. § 27 (1973)
96 Indian Evidence Act, 1872, § 27, No. I, Act of Imperial Legislative Council, 1872 (India).
97 Indian Pen. Code. § 330 (1860).
98 Indian Pen. Code. § 331 (1860).
99 Indian Pen. Code. § 342 (1860).

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
IPC provides that the “Wrongful confinement extort punished by law for life imprisonment or death.” “The
confession, or compel restoration of property.100” The person cannot be subjected to more repression than is
provisions in this code have been designed for offic- required to prevent his escape.107”
ers also to not to use tortuous or inhuman acts during
II) “Sections 50 and Section 56 of the code are in con-
the investigation to restore the information or to confine
formity and consonance with Article 22 of the Consti-
someone illegally even after completion of the convic-
tution. The alleged person must be told of the reasons
tion; if it happens, then police officers are not above the
for the detention and the right to bail.” Moreover, “he is
law, and they also held liable and punishable under the
to be produced before the Magistrate within the prede-
IPC.101
termined period.108”
III) Section 375deals with “Rape”102 while Section
III) ‘Section 54 of the Code’ extends “safeguard
376deals with the “Punishment of Rape,103” clause (1)
against any infliction of custodial torture and violence
(b) of 376 of the IPC contented that “being a public
by providing for examination of an arrested person by
servant, takes advantage of his official position and
a medical officer.” ‘Section 57of the code’ requires “the
commits rape of a woman in his custody or place sub-
police to bring the suspect or accused within 24 hours
ordinate it, as such public servant shall be punished
of arrest before the nearest magistrate.” “It corresponds
with rigorous imprisonment and shall also be liable to
to Article 22(2) of the Constitution.109”
fine.”104 ‘Similarly, Section 376C of the IPC’ provides “a
penalty for sexual intercourse by a person in authority IV) ‘Sections 162, 163(1), and 315’ of the code dis-
and shall be punished with rigorous imprisonment.105” allow “(i) forced confession and (ii) testimony as in-
Again, ‘Sections 7 and 29 of the Indian Police Act’ deal admissible in the court of law and protect the accused
with “the provisions for dismissal and other penalties against such confession.” Whereas, ‘Sections 167’ laid
for police officers who are negligent in the discharge of down “a duty to put the suspect before the court to pro-
their duties or unfit to perform the same.106” tect his rights and interests.110”
V) Section 176 of the same code “provides for compul-
Procedural Provisions sory magisterial inquiry on the death of the accused in
police custody,111” whereas ‘Section 357A talks about
Code of Criminal Procedure, 1973 framing “the victim compensation scheme by the re-
I) ‘Sections 46(3) and section 49 of the Code “protect spective State Government.” Similarly, ‘Section 358
the person from being arrested and the detenu under of the code deals with “the compensation to persons
police custody, which are not found guilty of a crime groundlessly arrested.112”

100 Indian Pen. Code. § 348 (1860).

101 Rudal Shah v. State of Bihar, AIR (1986) SC 14.
102 Pen. Code. § 375 (1860).
103 Pen. Code. § 376 (1860).
104 Pen. Code. § 376 (1)(b) (1860). “See” (2) Whoever,— (a) being a police officer commits rape— (i) within the limits
of the police station to which he is ap­pointed; or (ii) in the premises of any station house whether or not situated in the
police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate
to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody
as such public servant or in the custody of a public servant subordinate to him;
105 Pen. Code. § 376C (1860).
106 Indian Police Act, 1860 § 7 and § 29, No. 5, Act of Imperial Legislative Council, 1860 (India).
107 Code Crim. Proc. § 46 and § 49 (1973).
108 Code Crim. Proc. § 50 and § 56 (1973).
109 Code Crim. Proc. § 54 and § 57 (1973).
110 Code Crim. Proc. § 162 § 163 (1) and § 315 (1973).
111 Code Crim. Proc. § 176 (1973).
112 Code Crim. Proc. § 357 and § 358 (1973).

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Arif Majruddin, Pooja Singh

Landmark Judicial Pronouncement In S. Nambi Narayana v. Siby Matthews and Ors,116 a
The court, in the case of ‘Rudal Shah v. The state of scientist was taken into police custody without justify-
Bihar,’113 held “the government liable for the wrong ing cause.’ The court observed, “that the police would
done by the government officials and the victim’s right take anyone into custody without reason if the people
to compensation. The victim was wrongly detained in were not appropriately interrogated.” Further, it was
jail for 14 years after acquittal by the Sessions court. directed to be prosecuted. A similar view was seen in
The Supreme court awarded Rs 35,000 as compensa- Murad Abdul Mulani v. Salma Babu Sheikh and Ors.
tion and observed that the state must accept responsi- Similarly, in Mehboob batch v. State117 on suspicion
bility for the behaviour of its employees.” “That Article of theft, the police officers wrongfully confined a per-
21 guaranteeing the Fundamental right to life and lib- son and heinously gang-raped his wife. “The court was
erty would lose its significance if the power of the Su- shocked after seeing the police officer’s actions and ob-
preme court were limited to passing orders for release served that the police officers must learn how to behave
from illegal detention and that if the court refused to as public servants to ordinary citizens in a democratic
order compensation, it would be doing mere lip service country, and officers must not act as oppressors of the
to his Fundamental right of liberty.” society.”

In M. Kalithai v. State of Tamil Nadu114 court directed In Joginder Kumar v. State of UP and Others.118 Court
“the state government to pay a compensation of 2 lakh held that “arrest shouldn’t be merely on suspicion
to the victim family of the person who died in police about the person’s complicity in crime and policeman
custody at the police station.” The government held li- must be satisfied with necessity and justification of ar-
able inspector of the police station guilty as they de- rest based on some investigations and Reasons of ar-
tained the victim without recording the arrest in the sta- rest must be recorded by police officers in their diary
tion register. The government refused to pay by taking a and the arrest should normally be avoided except in
plea that the death was a suicide. The bench found that cases of heinous crimes. “Similarly, the court in ‘Sheela
since the arrest was not recorded is enough to prove that Barse v. the State of Maharashtra119’ emphasised “the
the authority is guilty of violating Constitution while need for Magistrates to inform all arrested persons of
citing D.K. Basu guidelines about compensation for hu- their rights. The most significant one is that the arres-
man rights abuse. Similarly, the case of Nilabeti Behera tee should be subjected to medical examination every
v. the State of Orissa115 observed: “that prisoners and 48 hours during his detention by a doctor from the ap-
detainees are not given their Fundamental basic rights proved panel of doctors. Copies of all prescribed docu-
under Article 21 when they are in custody.” Further, ments should be sent to the concerned Magistrates, and
it was observed that police and prison authorities are it is permitted for the alleged person to meet his law-
responsible for ensuring that citizens in its custody are yer.” While in Charles Sobaraj v. Supdt Central Jail
not deprived of their constitutionally declared funda- Tihar, the Hon’ble Court held “that imprisonment does
mental right –‘the right to life.’ not take away any of the Fundamental rights as guar-
anteed by the Constitution of India. Fair procedure and
“The court also awarded a sum of Rs 1.5 lakh to the justice are the souls of article 21.” The essence of 19(5)
mother since her son died in police custody, quoting,” is the reasonableness of the restrictions and saving peo-
“Anyone who has been the victim of unlawful arrest or ple for justice to uphold the concept of equality as in
detention shall have an enforceable right to compensa- Article 14. The state or authority has no right to take
tion.”

113 AIR (1983) SC 141.

114 (2009) 3 MLJ 702.
115 AIR (1993) 2 SCC 746.
116 AIR (2015) 14 SCC 664.
117 AIR (2011) 7 SCC 45
118 AIR (1993) SCC 746.
119 AIR (1983) SC 378.

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Custodial Violence in India with Referring to The Prevention of Torture Bill ...
away article 21, which is guaranteed to every person sations without reasonable cause and on groundlessly
under the Constitution, even the person in jail.120 arrest.

Some Sort of Recommendations on the 3. Custodial Injury

Anti-Torture Act No doubt, if the person in police custody sustains an
injury, it would be presumed as the police authorities
The definition of the term “TORTURE” should be ex-
are behind their injury. So, “the burden of proof shall
tended and must be wide rather than the present one. It
be on the police authorities to explain the incident as
should also include acts that cause severe mental suffer-
it happens with rape victims123” as a burden is placed
ing, including threats to family or loved ones, and must
on the accused. Similarly, there must be an independ-
comply with the provisions of UNCAT.
ent and unbiased investigation in cases of heroic allega-
tions of torture. Also, an immediate medical examina-
1. High time to ratify UNCAT Convention and
amend the existing statutes tion should be done, and an experienced medical team
should deal with these cases.
Even after spending more than 24 years, we failed to
ratify the convention. If we successfully approve it, it 4. Installation of cameras
will be an open invitation to the state and individuals to
Recently in May 2022 the Delhi High Court pointed out
complain about their grievances. Also, the draft of the
the apex court directive for the installation of CCTV
law commission on the Anti-Torture Bill should be con-
cameras in all police stations and the case of Paramvir
sidered. Similarly, though India’s existing laws and stat-
Singh Saini v. Baljit Singh & Others,124 held that “the
utes are strong enough to ensure fair justice to citizens,
State and Union Territory Governments should ensure
victims of torture remain to it, hence need to amend
that CCTV cameras are installed in each and every Po-
the specific provision of code 1973121 and to it clause-
lice Station functioning in the respective State and/or
B in section 114 of the Indian Evidence Act, 1872122
Union Territory. Further, in order to ensure that no part
it will ensure the burden of proof will shift upon the
of a Police Station is left uncovered, it is imperative
concerned authorities if injury sustains to any person
to ensure that CCTV cameras are installed at all en-
the under custody, compensation must be awarded to
try and exit points; the main gate of the police station;
the victim, and they shall be liable to answer it further.
all lock-ups; all corridors; lobby/the reception area; all
2. Serious punishment for the acts of torture verandas/outhouses, Inspector’s room; Sub- Inspector’s
room; areas outside the lock-up room; station hall; in
To create deterrence amongst the people, the provi-
front of the police station compound; outside (not in-
sions of the punishment of torture should be amended.
side) washrooms/toilets; Duty Officers room; the back
“It should include 10 years of rigorous imprisonment
part of the police station, etc. the CCTV systems had
and shall also be liable for a fine.” In cases where
to be equipped with night vision and must necessarily
the torture leads to death, the punishment will include
consist of audio as well as video footage.”
life imprisonment and a fine both. The collected fine
should be given to the victim or their family. However, “These directions are given by the court in furtherance
it should be the duty of the courts to award suitable and of the fundamental rights of each citizen of India guar-
justifiable compensation to the victims. Furthermore, anteed under Article 21 of the Constitution of India”,
“the compensation should be sufficient to bear the ex- but no substantial action has been taken by the state
penses of the medical treatment and rehabilitation of government. Hence all the state governments and Un-
victims.” Compensation should also be given for accu- ion territories should pay heed to it in furtherance to
implementation of the court directive and ensure the

120 State of Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2084.
121 Code Crim. Proc. § 357B (1973)
122 Indian Evidence Act, 1872, No. I, Act of Imperial Legislative Council, 1872 (India).
123 Indian Evidence Act, 1872, §. 114A, No. I, Act of Imperial Legislative Council, 1872 (India).
124 AIR (2021) 1 SCC 184

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Arif Majruddin, Pooja Singh

protection from custodial violence and remind the po- to create comprehensive legislation and rectify the con-
lice officers that they are protectors, not oppressors and vention to avoid illegal tortious acts in custody. Govern-
it is the constitutional duty and mandate to protect the ment should realize the importance of the basic rights of
rights of every individual. citizens because it is fundamental to all human rights,
and there would be no point in getting the other rights
5. Must comply with the D.K Basu Guidelines if we fail to ensure the right to life even after more than
As recently former Chief Justice of India, N.V Ramana 74 years of independence.
said: “threat to human rights is highest in the police “If we want to remain a society governed by the rule of
station. Custodial torture and other police atrocities law, it is imperative for us to bridge the gap of acces-
are problems that still prevail in our society. Despite sibility to justice between the highly privileged and the
constitutional declarations and guarantees, the lack of most vulnerable. To keep police excesses in check, the
effective legal representation at the police stations is a dissemination of information about the constitutional
huge detriment to arrested/detained persons.” Hence, right to legal aid and the availability of free legal aid
to ensure the safety, security, and ensure protection of services is necessary. The installation of display boards
basic human rights as enshrined in the constitution, it is and outdoor hoardings in every police station/prison is
the responsibility of all the state governments including a step in this direction.” The Convention constituted a
union territories to regular check and holds accountable crystal legal codification and procedures regarding tor-
for failure to comply with the 11 points guidelines as ture and its purpose is to prevent and eradicate and stop
laid down by the court in “D. K Basu v. State of West the use of torture or state-sponsored violence, now it
Bengal” to curb the rise of custodial violence and pro- is the responsibility of the government to ensure the
vide compensation for human rights abuse. accountability of the wrongdoer done by or within the
premises of police station or happened because of any
Conclusion political ill-will between other states, so every individ-
Taking into note the above discussions, it is evident that ual may get survival justice.
the concept of ‘torture or other inhuman treatment was In the past, we have rectified many of the international
not a novel introduction by British rule.’ “Still, it had conventions, which results in domestic legislation and
its long history of getting cruel treatment by the official is beneficial for every section of society such, “CE-
authority in Indian society.” Jorg Fisch is an imminent DAW’ gives us a ‘Domestic violence Act 2005’, The
Swiss historian who wrote in his book about the Na- convention on the rights of persons with disabilities
tional movement of Indian independence and rightly (CRPD) gives us ‘Rights of a person with disability Act
coined “why the loss of a limb is more cruel or inhu- 2016’, The pattern on the rights of the child (UNCRC)
man than the loss of liberty or even the loss of life.”125 gives us ‘Juvenile Justice Act 2015’ etc.” these are the
Custodial violence is not restricted to any sect. Still, it model law created by the international body which has
was evident from the abovementioned examples that a vast ground effect. Hence, the Convention constitutes
most torture victims are from economically and so- a coherent legal codification and procedures regarding
cially deprived sections of our society. The Law Com- torture and purposes to combat and eradicate the use of
mission’s draft of the bill, 2017, is in the nick of the torture or state-sponsored violence.
time, and it’s a unique opportunity for the government

125 Jörg Fisch, Cheap lives and dear limbs: the British transformation of the Bengal criminal law, 1769–1817 (Heidelberg,
Bd.79, Kenneth Ballhatchet, 1983), Cheap lives and dear limbs : the British transformation of the Bengal criminal law
1769-1817 - University of Toronto (utoronto.ca)

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