ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW

Assignment – [For Project Work]

Subject – Taxation

Topic – Custodial Violence In India

Submitted To: Dr. Zafar Ahmed Khan

Professor ,

Dept. of Law, AMU

Submitted By: ISHANT GARG

18-BALLB-039 GK-7894

BA.LLB. (Hons)

IX Semester (Section A)
 ACKNOWLEDGEMENT

First of all, I would like to express my gratitude to almighty God to enable me to complete this assignment
on: “Custodial Violence ”
Successful completion of any project requires help from a number of persons. I have taken help and advice
from different persons for the completion of my assignment.

Now, this is little effort to show thanks of gratitude to those helpful persons.

Now, I convey my sincere gratitude to my Teacher. DR. Zafar Ahmed Khan, Department of Law,
Aligarh Muslim University.

It won’t be possible to achieve the outcome, without her kind direction and proper guidance and the study
material provided by her from time to time during this global pandemic COVID-19. He was always there for
any kind of help and assistance. In every phase of this project, her supervision and guidance helped in shaping
this assignment and completed on time.

I would also like to thank my batchmates and seniors, who were always there for me and helping me during
emergencies.

Thank You.
 Table of Contents

1. The Need for Jails

2. Judicial Custodial Death
3. Remedies against Custodial Crimes
4. Landmark Judgments
5. Statistics of custodial deaths in India
6. Reason for rising custodial deaths
7. Conclusion
8. References
Introduction

“If I can love myself despite my infinite faults, how can I hate anyone at the glimpse of few faults”–
Alexander the Great. It is said that whoever has the utmost power, ends up committing some
atrocities or cruelty against humanity. Handling power with the truest of intention and integrity is
hard and seems impossible nowadays. Though even after several judgments and amendments stating
that the usage of 3rd degree torture against alleged accused in the police stations is to be avoided; no
real implementation is ever seen. The biggest irony to this situation is that the crime said to be
committed by the accused is committed against him by the policemen; if the caretakers of the
society end up committing the same crime, then what really is the difference. The root cause of such
severe violence or torture is extracting information or finding leads of the case. The practice of such
torture is a clear violation of human rights due to which it has drawn attention of Human Rights
Commission, Media, Public and even judiciary which just shows the gravity of the subject[1].
‘Torture’ basically means inflicting pain or suffering upon someone either physically, mentally or
psychologically; with the aim to force the other person to do or say something against his/ her
consent. Being a policeman is hard, specially when they are limited in number and the crimes are
increasing at a much faster pace; the will and pressure to crack the case is even higher, at such a
scenario the only option they see feasible is 3rd degree torture which would extract the information
fast. This article is a detailed analysis of the harsh reality of custodial deaths in India.

The Need for Jails

The general idea of building a jail or police custody was to infringe or detain the guilty person from
moving freely in the society. Jeremy Bentham, a philosopher, came up with an idea of building a
prison, and thereby keeping all the accused persons at one place until their final punishment is
decided and carried upon. The meaning and idea of prison has changed drastically from history to
now. The eyes with which we viewed the prisoners back in the days have changed. We are more
sympathetic, reasonable and instead of punishing them we want to reform them. In early days of
history, the only viable punishment was death sentence or lifetime slavery; keeping them alive and
feeding them for free felt like a futile decision; the prisons used to be stationed in underground
dungeons where they will be spending their entire life. After the advent of democracy, Greece made
an exception to such practice and made the prisons in isolated places where the family and friends
can visit the prisoners[2]. Slaves were not such a big concern in earlier days; if a person is left with
nothing and still has something due to pay, the simplest solution they could come up with was being
a slave and working for them for free. The harsh conditions faced by the prisoners during those days
made a divergent impact on the society; people were scared to go to the prison because there was no
coming back from that place. Many leaders and activists started to revolutionize this narrow idea,
and propounded that it is inhuman and cruel on their part to make the prisoners slave or mass
murder them instead of reforming them and doing a favour to the society. Nevertheless, all this did
not turn out to be so fruitful, and countries continued to use imprisonments as the widely accepted
form of punishment.

Judicial Custodial Death

Understanding the concept of custody is important, custody can either be in police or judicial. The
death, if it occurs during judicial custody, will be called ‘Judicial Custody Death’. Once the accused
is sent to judicial custody, the police does not have any liberty with the accused; in order to
investigate the accused, the police has to take permission from the jail authorities first, which limits
the probability of harassing or abusing the accused to extract the information. The death can be
natural or unnatural in nature; if it’s a natural death then the state cannot do anything and some
states give nominal compensation to the deceased family. In case of unnatural death of a prisoner
which includes suicide, medical negligence, murder or accidental death, the Judicial Magistrate u/s.
176 of CrPC can have a magistrate enquiry regarding the death. The state gives compensation to all
deceased prisoners in case of unnatural death.

Remedies against Custodial Crimes

By virtue of the Universal Declaration of Human Rights, 1948, it is the responsibility of the state to
protect the rights of every individual. Part III of the Constitution of India, 1950 also deals with the
fundamental rights which are guaranteed to all citizens and its safeguard is the duty of the welfare
state.

ARTICLE 20: This Article protects the person from ‘Double Jeopardy’ i.e., no one person shall be
convicted for the same crime twice. It protects the person from self- incrimination and police
personnel continue extortion to make him confess to the commission of crime.
ARTICLE 21: This article ensures the right to life and personal liberty. The torture practiced
against the alleged accused in the police stations is also against this Article. Even the state
administrative body cannot assault or torture the person in custody which has been explained in
detailed in the case of DK Basu vs. State of West Bengal.

Landmark Judgments

JOGINDER KUMAR v. STATE OF UTTAR PRADESH:

In the case of Joginder Kumar vs. State of Uttar Pradesh[3], the Court said that the rights entrusted
by Article 21 and Article 22(1) by the Constitution of India to be taken as their utmost responsibility
and to ensure their implementation on the ground, the police personnel have to follow certain
guidelines entailed by the Court, namely,

• The arrested person shall be informed as to why he is arrested.

• The diary must contain the names of whoever has been informed of the arrest.
• The arrestee is allowed to meet his advocate during interrogation.
• The arrested person shall be medically examined at the time of arrest to see the injuries
which shall be attested by both the police and arrestee.
• Police personnel shall wear clear, visible and accurate name tags with their designation.
• The arrestee shall undergo a medical examination every 48 hours.
• Copies of all the documents w.r.t arrest shall be duly sent to the local magistrate.
• The arrestee shall be informed of all the rights he endures after his arrest.
• A memo of arrest shall be prepared and it should be attested by at least one witness.

DK BASU v. STATE OF WEST BENGAL[4]:

Mr Basu, the Executive Chairman of West Bengal Legal Aid Service wrote a letter to the CJI
regarding the increasing custodial death and mentioned how deaths in ‘lock-ups’ are openly
disclosed giving a free pass to the wrong doers and flourishes their ill-minds. This letter was used as
a writ petition and notice was issued to the state and Law Commission of India. Once the matter was
out in the open the state denied the charges and said that law is being misled and misconceived in
some way. Several observations were made while the case was going on in the court and Articles
20(3), 21 and 22 were observed thoroughly. The court held that any form of cruel or torture against
a person, either degrading or inhuman treatment would fall under Article 21 of the Constitution. The
Court specifically mentioned that any person be it convicts, undertrials or prisoners would not be
denied the rights guaranteed under Article 21 of the Constitution.

The Mathura Rape case brought an essential amendment u/s. 376 of the Indian Penal Code wherein
custodial rape has been penalised committed by police personnel. This was a much-awaited change
because custodial death also proves that people ultra vires used their powers and it was only a
matter of time when the Apex court would be flooded with cases related to rape by police personnel.

Statistics of custodial deaths in India

The National Human Rights Commission (NHRC) has recently raised an alarming figure related to
custodial death in the period between 2021-2022. As per NHRC, there were 2,150 reported cases of
death in judicial custody and 155 cases of death in police custody.

Uttar Pradesh held the record for the highest number of deaths (448) in judicial custody.
While Uttar Pradesh holds the record for the highest number of deaths in judicial custody,
Maharashtra tops the chart in cases of deaths (29) in police custody.
NHRC shared the number of custodial death cases of the last five years which were, 1940, 1696,
1933, 1782, 1761; in 2020-21, 2019-20, 2018-19, 2017-18, 2016-17 respectively.
The total tally of custodial deaths of the past five years amounts to 9112 and of these many deaths,
disciplinary actions were taken in only 21 cases of custodial deaths. These are extremely worrisome
stats because it states that disciplinary action was taken only in 0.23% of the total cases of custodial
death.
The National Record Crime Bureau (NCRB) report of 2020 also presented some stats related to
custodial deaths.

From 2000-2020, 1888 custodial deaths have been reported all around the country. In 893 cases
pertaining to custodial deaths, cases were registered against policemen, but only 358 police officers
were charge-sheeted and only 26 of the policemen were convicted.
While only 26 police personnel were convicted in the last 20 years; however NCRB record tells that
96 personnel were arrested between 2017 – 2020.
As per the NCRB record, 69% of deaths in police custody between 2010-2020 occurred due to
illness (40%) or suicide (29%). Illness and suicide are considered natural causes of death.
Between 2015-2019, the deaths by suicide were significantly higher. During this period, 36% of
death in police custody occurred due to suicide.
Stats on physical assault have been recorded since 2014 and only in 6% of the total cases; has
physical assault by police been observed.

Reason for rising custodial deaths

The statistics presented by the NHRC have shown a constant increase in custodial deaths. It is
perturbing data because every individual has the fundamental right to life under Article 21 of the
Constitution of India and if a law-enforcing body is breaching its duty of protecting lives, it
becomes even worse. The 2018 prison report of NCRB lists out that 149 custodial deaths occurred
due to unnatural causes and some deaths occurred due to unknown causes because some of the
states were not providing the details of the deaths. A lot of custodial death occurred because of
suicide; however, it is not clear whether the inmates committed suicide or were they forced to avoid
further violence and torture. The psychological aspects of prisoners are completely neglected and
there is no psychiatric help available to these inmates to cope with the stress or trauma that they are
experiencing.

The prison conditions are miserable, to say the least, medical facilities offered to the inmates are not
up to the mark apart from that there are frequent instances of fighting among inmates which are
quite fatal. The physical agony just adds up to the mental trauma and severely impacts the mindset
of an inmate. These are basic essential requirements that need to be ensured by the state authorities
to protect the basic fundamental right Right to Life.

One of the most important reasons behind the rise of custodial death is the excessive power vested
by the State in police authorities. Section 49 of the Code of Criminal Procedure explicitly specifies
that the arrested person should be subject to a reasonable amount of force and should not be
restricted to more restraint than is necessary to prevent his or her escape. However, police
authorities often neglect these norms and resort to an excessive amount of force because in cases of
custodial death, they are the ones investigating it and they have all the evidence so many of such
death cases get covered up in administrative cover-ups. The growth in the number of custodial
deaths can be attributed to the fact that no stringent actions were taken against the individuals in the
past and no precedent has been set so far. It is high time to set a strong precedent so that the law-
enforcing authorities do not exceed their powers.

Conclusion

There have been plethora of cases wherein due to the negligence or lack of humanity, several
prisoners or accused have lost their lives; the state government can do all its enquiry and render
compensation as a relief to the next of kin of deceased, but it could all be avoided if the police
personal could have been more sincere to their jobs and adhere to the fact that they are in position to
punish them in any form for whatsoever crime they may have committed.

In the case of Harbans Kaur v. Union of India[5], the deceased was called by a police constable and
thereafter nobody was able to reach him. After various searches, a habeas Corpus was filed and the
SC ordered an enquiry to find out the whereabouts of the person and whether he was beaten by the
police which ultimately caused his death. The High Court in this case directed that a thorough
examination of the matter be held and book the police personnel whose negligence or misconduct
led to such sorrow result.

India is a democratic country and the rights guaranteed to the citizens by the Indian Constitution
clearly lays down that even if an individual is under arrest or detained due to some reasons he
cannot be deprived of his fundamental rights and upon infringement of such right he can seek to
move his case to the Supreme Court under Article 32.
REFERENCES

[1] Shree Baidyanath Mukherjee, “Custodial Death in India- An Analysis” 7 Journal of Emerging
Technologies and Innovative Research 552 (2020).

[2] History of Prisons, available at: http://www.prisonhistory.net/prison-history/history-of-prisons/ (

last visited on Jan 21, 2021).

[3] 1994 AIR 4 260.

[4] 1997 1 SCC 416.

[5] 1995 SCC 1 623.