Custodial violence is referred to as the violence, torture, rape or death of the person while he/she is in the police of judicial custody. This torture can be physical or mental. According to National Human Rights Commission (NHRC), a total of 1,067 people died in custody in the first five months of 2021. On average, 5 custodial deaths occur every day.[i]

Annual Report on Torture 2020 released by the National Campaign Against Torture (NCAT) reported that the highest number of custodial deaths were reported from Gujarat and Uttar Pradesh with 11 custodial deaths each; followed by 10 in Madhya Pradesh; nine in West Bengal and so on.[ii]

The most recent incident of custodial death took place in the Kasganj district of Uttar Pradesh where a 22-year-old man who was arrested on the charges of kidnapping a woman and forced marriage committed suicide. The family alleges that the man was tortured till death whereas the police insist he died by suicide. The truth will probably never be known.

India is the world's largest democracy. The increased no. of custodial deaths raises a huge doubt on its police system. The police department, which is supposed to prevent crime and disorder is put to a big question here. Peter Benenson, founder of Amnesty International rightly said:
The candle burns not for us, but for all those whom we failed to rescue from prison, who were shot on the way to prison, who were tortured, who were kidnapped, who 'disappeared'. That's what the candle is for.

Some of the most atrocious forms of torture include starvation, threats, humiliation, drugs, brutal beating, extraction of teeth, flogging, suffocation, insertion of metal nails under toenails, electric shocks, rape, molestation, amputations, urinating in the mouth, application of irritants like chili powder, table salts, etc. on delicate parts or on open wounds and so on. [iii]

These methods derive the human of its dignity and are a crime against humanity and a sheer violation of human rights. Nelson Mandela once said, and I quote: "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones."

Article 21 states that:
No person shall be deprived of his life or personal liberty except according to a procedure established by law.[iv] In Inderjeet v. State of Uttar Pradesh (2014), the Supreme Court held that punishment which has an element of torture is unconstitutional. More so, in Kharak Singh v. State of U.P. (1962), the right to privacy was a fundamental right under the Indian Constitution. It held that life is not just mere animal existence, every human has the right to live with dignity.

Later, in K. S. Puttaswamy vs. The Union of India, the Supreme Court ruled that the right to privacy is a fundamental right.

To safeguard a prisoner's right to life and personal liberty, several laws are further laid down, including:

Article 20(1) which states that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence;

Article 20(2), which is Protection against Double Jeopardy;

Article 20(3) which states that no accused person will be compelled to be a witness against himself;

Article 22(1), which says that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice; Section 50 of the Code of Criminal Procedure guarantees a person arrested to be informed of grounds of arrest and of right to bail and so on.

Martin Luther King, African-American civil rights activist rightly said that Injustice anywhere is a threat to justice everywhere. At the international level, torture is considered a heinous crime against human rights. Several organizations have been formed to take a step against such brutalities.

Created in 1985, the aim of the World Organisation Against Torture (OMCT) is to contribute to the struggle against torture, summary executions, disappearances, arbitrary detention, psychiatric internment for political reasons, and other cruel, inhuman or degrading treatment or punishment.[v]

Similarly, the Universal Declaration of Human Rights promises the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world. Article 9(5) of the International Covenant On Civil and Political Rights (ICCPR), 1966 provides that:
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

One question that dwells in every mind is the reason for the rise in the no. of such deaths. As per sources, the primary cause for such deaths is suicide. The prisoners are devoid of their basic right to free movement. They cannot choose where to stay or what to eat. Apart from this, the environment in which they are kept has a very negative impact. Several detainees are not convicts and the mere thought of them staying with dangerous criminals is deplorable.

This has a very awful impact on their mental state and probably coerces them to commit suicide. Another reason for such deaths is police brutality. Police misuse their power to maintain peace and public order and take the law into their hands. The most relevant example here is the encounter of the gangster Vikas Dubey while one of the police vehicles was escorting him to Kanpur, Uttar Pradesh. The police were unable to handle the simple task of moving him safely from Ujjain to Kanpur.

It is still a mystery if this murder occurred in the heat of the moment or was it pre-planned to avenge the murder of the eight police personnel killed by Dubey. In either case, he was supposed to be prosecuted by upholding the law and holding him accountable in the court of justice. Another reason for such deaths is the attacks of the inmates amongst themselves. At times, these result in fatal injuries and the demise of the prisoners. This can be handled by optimizing better security and order in the prisons.

The apex court has announced several landmark judgments regarding the cases of custodial deaths. For example, in Rajammal vs. State of Tamil Nadu and Ors., the honorable apex court noted that:
The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity.[vi]

In Nilabati Behera v. the State of Orissa, the deceased's mother complained that her son died in the custody of Orissa Police after being beaten up. She claimed that her son was deprived of his fundamental right under article 21 and demanded compensation for the same. The court held the State responsible and ordered criminal proceedings against the responsible police officers. A compensation of Rs 1.50 lakhs was paid to the family of the deceased.

Several organizations worldwide and the Indian Constitution have laid down laws to protect the rights of the individual. It is a disgusting fact that the police department which is supposed to protect the people is indeed the cause for their demise. It is also true that around 71.58% of the custodial deaths in India were of people from poor or marginalized sections of society.

This clearly shows the class division existing within the society. It is high time that we look beyond this irrational and rather disgusting division and look at every human with kindness and humanity. A culprit must be punished but within the scope of the law and not with police acting ultra vires. This could be the first step towards a hopeful and promising future.

End-Notes:

1. 5 Custodial Deaths Per Day, Rapes, Caste Crimes: Why CJI Finds Threat to Human Rights in Thanas, News18 (2021), https://www.news18.com/news/india/5-custodial-deaths-per-day-rapes-caste-crimes-why-cji-finds-threat-to-human-rights-highest-in-thanas-4061867.html (last visited Nov 14, 2021).
2. (2021), http://www.uncat.org/press-release/india-torture-report-2020-increase-in-custodial-deaths-despite-covid-19-lockdown-at-least-one-suicide-every-week-due-to-torture-in-police-custody/ (last visited Nov 14, 2021).
3. Custodial Violence:Indian Perspective, Legalserviceindia.com (2021), https://www.legalserviceindia.com/legal/article-55-custodial-violence-indian-perspective.html (last visited Nov 14, 2021).
4. Article 21: Protection of Life and Personal Liberty | Career Launcher UPSC, Careerlauncher.com (2021), https://www.careerlauncher.com/upsc/article-21/#:~:text=Article%2021%20of%20Constitution%20of,2)%20Right%20to%20personal%20liberty. (last visited Nov 14, 2021).
5. World Organisation Against Torture (OMCT), ESCR-Net (2021), https://www.escr-net.org/member/world-organisation-against-torture-omct (last visited Nov 14, 2021).
6. (2021), https://www.casemine.com/search/in/custodial%20violence%28SLASH%29torture%28SLASH%29death (last visited Nov 14, 2021).

Also Read:

1. Custodial Torture
2. Custodial Violence in India
3. Custodial Violence: Indian Perspective
4. Custodial Death A Glaring Violation Of Human Rights
5. Custodial Violence: The Harsh Truth and Unrighteous Act
6. Custodial violence and deaths: Violation of Principle of Rule of Law