Custodial Violence in India- Explained Pointwise

Recent developments, such as the Sanjay Bhandari extradition case in the UK and Tahawwur Rana’s appeal in the US, have highlighted the global implications of India’s failure to address custodial violence, undermining its credibility as a defender of human rights.

What is Custodial Violence? What are types of Custodial Violence?

The term custodial violence refers to the inhumane treatment of people by law enforcement while they are in custody. These tactics range from abusing their authority to obtaining information.

Types of Custodial Violence- Custodial violence can take many different forms, and authorities will employ different tactics depending on the situation and their goals.

1. Physical- This technique is based on utilizing physical force to inflict physical injury and tiredness on the subject, resulting in immense anguish.
2. Physiological- It includes mental torture. For instance, depriving a person of food. It also includes threat and humiliation of the victim
3. Sexual- It is employed through rape/sodomy. It is directed towards the social and psychological harassment of the victims.

What are the provisions to prevent custodial violence?

Constitutional Provisions:

1. Article 21: Constitution guarantees the right to life and personal liberty, which includes protection from torture and inhuman treatment.

2. Article 20(3): Protects individuals from being compelled to be witnesses against themselves, safeguarding them from coercive interrogation.

3. Article 39A: Ensures free legal aid to ensure that no citizen is denied justice due to economic or other disabilities.

4. Article 22: Provides safeguards against arbitrary arrest and detention, including the right to be informed of the grounds of arrest and the right to consult a lawyer.

Legal Provisions

1. IPC- Sections 330 (voluntarily causing hurt to extort confession) and 348 (wrongful confinement to extort confession).
2. CrPC- Section 176 mandates a judicial inquiry into custodial deaths.
3. Protection of Human Rights Act, 1993- The Act established the NHRC and SHRC’s to investigate custodial violence and recommend action.
4. BNS Provisions- The BNS maintains provisions related to wrongful restraint and illegal detention, which are often precursors to custodial abuse. E.g. Section 176 (causing hurt by public servant), Section 177 (causing grievous hurt by public servant), Section 178 (wrongful confinement by public servant).

What are the Causes of Custodial Violence?

1. Lack of answerability and Impunity- A significant cause of custodial violence is the prevailing lack of accountability, where weak oversight mechanisms and a systemic reluctance to prosecute perpetrators create an environment of impunity. E.g. Custodial death of P Jayaraj and Bennicks in Tamil Nadu.

2. Systemic Law Enforcement Failures: Systemic issues within law enforcement, including overcrowding, understaffing, insufficient training on human rights, and a hierarchical culture that discourages dissent, contribute directly to the occurrence of custodial violence. E.g. NHRC consistently highlight overcrowding and understaffing in Indian prisons and police lockups.

3. Societal Influences on Violence: Societal factors, such as social inequality, a tolerance for violence, and negative media portrayals that reinforce harmful stereotypes, play a crucial role in perpetuating custodial violence. E.g. Caste based discrimination in prisons.

4. Procedural Gaps and Vulnerabilities: Procedural deficiencies, including arbitrary arrests, inadequate documentation of detainees, and a lack of access to legal aid, exacerbate the risk of custodial violence.

5. Work Pressure: Psychological factors, such as stress, burnout, sadistic tendencies among custodial personnel, can lead to the infliction of violence. E.g. According to the 2019 Status of Policing in India Report (SPIR), police officers work an average of 14 hours a day, with nearly 80% of them putting in more than 8 hours.

6. No Specific Anti-Torture Law: India lacks a specific national law criminalizing torture, despite signing the UN Convention Against Torture (UNCAT) in 1997, and this absence is a significant issue, allowing custodial torture to continue.

7. Positive Reinforcement of Third-Degree Methods: The use of third-degree torture to extract information or coerce confessions is often reinforced when it produces results.

What are the Consequences of Custodial Violence?

1. Severe Human Rights Violations: Custodial violence inflicts physical and psychological trauma (PTSD), violates dignity and privacy (Article 21), and leads to loss of life, as evidenced by cases like D.K. Basu vs State of West Bengal (1997) and NCRB data.

2. Erosion of the Rule of Law: Police impunity, undermining judicial authority, and failure of constitutional safeguards (Articles 21 & 22) perpetuate a culture where accountability is absent. E.g. A report by the Commonwealth Human Rights Initiative (CHRI) noted that fear of police harassment discourages people from seeking justice, especially among marginalized communities.

3. Profound Social and Psychological Impact: Custodial violence destroys public trust, stigmatizes victims, and fuels a cycle of violence, demonstrated by widespread protests like those following the Thoothukudi custodial deaths.

4. Significant Economic Burden: Victims lose livelihoods, families bear financial strain from medical and legal costs, and the state incurs compensation expenses, as mandated by cases like Nilabati Behera vs. State of Orissa.

5. Damaged International Reputation: India’s failure to address custodial violence and ratify UNCAT harms its global standing under international treaties like the UDHR (1948) and the ICCPR (1976), impacting extradition requests (Tahawwur Rana case) and highlighting a violation of international commitments. E.g. Sanjay Bhandari extradition case in the UK highlighted India’s custodial torture record, leading to the denial of extradition.

6. Legal and Institutional Weaknesses: Custodial violence contributes to judicial backlogs, erodes the credibility of oversight bodies like the NHRC, and reveals the failure of legislative reforms. E.g. The absence of a comprehensive anti-torture law, despite recommendations from the Law Commission and Rajya Sabha Select Committee.

What are the Challenges in Stopping Custodial Violence?

1. Legal and Institutional Deficiencies: The absence of a dedicated anti-torture law, weak enforcement of existing laws (despite recommendations from the Law Commission (273rd Report, 2017) and the Rajya Sabha Select Committee (2010)), judicial delays, and inadequate independent oversight create a system where custodial violence thrives with impunity.

2. Police Impunity and Lack of Accountability: A culture of impunity within police forces, coupled with a lack of transparency in custodial procedures and resistance to reforms, allows officers to escape consequences for abusive actions.

3. Political and Administrative Obstacles: A lack of political will to enact necessary legislation, political interference in cases of abuse, and bureaucratic inefficiencies hinder efforts to implement reforms and provide justice.

4. Societal and Cultural Factors: Public apathy, stigmatization of victims, and a normalization of violence contribute to a climate where custodial violence is tolerated and perpetuated.

5. Economic and Resource Limitations: Inadequate funding for police reforms, delays in compensation for victims, and resource constraints within police departments impede the implementation of effective measures to prevent custodial violence.

6. International and Diplomatic Ramifications: India’s failure to ratify UNCAT, the impact on extradition requests, and diplomatic repercussions damage its global reputation and undermine its international commitments to human rights.

What should be the way forward?

1. Enactment of a Standalone Anti-Torture Law: India must criminalize custodial torture through a dedicated Prevention of Torture Bill, as recommended by the Law Commission of India (2017). This law should align with the UNCAT, prescribing stringent punishments for erring officials and ensuring mandatory compensation for victims.

2. Strengthening Judicial Oversight: Custodial deaths and torture cases must be investigated by Judicial Magistrates instead of Executive Magistrates, ensuring unbiased scrutiny, as per the 2024 Supreme Court ruling. Courts should also impose harsher penalties for violations of D.K. Basu guidelines and mandate compliance with human rights norms.

3. Independent Oversight Mechanisms: Establishing independent oversight bodies at state and national levels, as suggested by the Justice J.S. Verma Committee (2013), can ensure impartial investigations into custodial violence cases. The NHRC must be given prosecutorial powers to act against offenders rather than merely recommending action.

4. Police Reforms for Transparency and Accountability: Full implementation of the Prakash Singh case (2006) police reforms, which advocate separating law enforcement from political influence, can professionalize policing and reduce misuse of power. Additionally, Model Police Act, 2006 must be enforced uniformly across states to promote accountability.

5. Mandatory CCTV Surveillance and Audio-Video Interrogation: Expanding the Supreme Court’s directive on CCTV installation in police stations (Common Cause vs Union of India, 2018) to include real-time monitoring and external audits can prevent custodial torture. Video recordings of interrogations, as recommended by NHRC, must be made mandatory.

6. Fast-Track Courts and Compensation Mechanisms: Special fast-track courts should be established to expedite custodial violence cases, ensuring strict punishment for perpetrators. Additionally, NHRC’s recommendation for uniform compensation for victims must be institutionalized, with a clear fund allocation mechanism.

7. Ratification of International Conventions and Global Best Practices: India must ratify the UNCAT and adopt best practices from countries like the UK’s Independent Office for Police Conduct (IOPC) and Norway’s Ombudsman Model, which allow for independent oversight and strict accountability of law enforcement officials.

Custodial violence remains a grave violation of human rights and a stain on India’s justice system. Addressing this issue requires comprehensive reforms, including the enactment of an anti-torture law, police reforms, and ratification of UNCAT. By implementing these measures, India can uphold its constitutional values and international commitments, ensuring justice and dignity for all citizens.