Custodial Death?

• Custodial death is a death that occurs while a person is in the custody of law
enforcement officials or in a correctional facility. It can occur due to various causes
such as use of excessive force, neglect, or abuse by the authorities.
• According to the Law commission of India, the crime by a public servant against the
arrested or the detained person who is in custody amounts to custodial violence.
• Police Custody: In this custody, a police officer arrests the accused by following the
receipt of information or complaint or report by police about crime and prevents
him/her from committing further offenses and brings him to the police station.
• Here, the accused is kept in the lock-up.
• Specific Timeframe: The police officer has the time of 24 hours to
interrogate the suspect and if finds that the suspect is guilty then the duty of the
police is to file a charge-sheet after taking him to the Magistrate.
• Judicial Custody: In this custody, an accused is kept in jail by the order of the
concerned magistrate. When an accused is presented before a magistrate, he/she can
either be sent to jail or kept under police custody by the magistrate.
• When the accused is in judicial custody the police have no right of
interrogation and police find that interrogation is necessary as per the facts or
instances of the case.
• Custody and Judicial Remand in India: As per Section 57 of the
CrPC, a police officer cannot detain a person in custody for
more than 24 hours and the officer needs to seek special
permission from the magistrate to hold further.
• Custodial Violence: As per the Law Commission of India, custodial
violence is the crime by a public servant against the arrested or
the detained person who is in custody.

• Custodial Death in India:

• A total of 146 cases of death in police custody were reported during
2017-2018,
• 136 in 2018-2019,
• 112 in 2019-2020,
• 100 in 2020-2021,
• 175 in 2021-2022.
• In the last five years, the highest number of custodial deaths (80) has been
reported in Gujarat, followed by Maharashtra (76), Uttar Pradesh (41), Tamil Nadu
(40) and Bihar (38).
• National Human Rights Commission (NHRC) has recommended monetary relief
in 201 cases, and disciplinary action in one case.
What are the Possible Reasons for Custodial Deaths?
• Absence of Strong Legislation:

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• Absence of Strong Legislation:
• India does not have an anti-torture legislation and is yet to criminalise custodial
violence, while action against culpable officials remains illusory.
• Institutional Challenges:
• The entire prison system is inherently opaque giving less room to
transparency.
• India also fails in bringing the much desired Prison Reforms and prisons
continue to be affected by poor conditions, overcrowding, acute
manpower shortages and minimal safety against harm in prisons.
• Excessive Force:
• The use of excessive force including torture to target marginalised
communities and control people participating in movements or propagating
ideologies which the state perceives as opposed to its stature.
• Lengthy Judicial Processes:
• Lengthy, expensive formal processes followed by courts dissuade the poor and
the vulnerable.
• Not Adhering to International Standard:
• Although India has signed the United Nations Convention against Torture in
1997 its ratification still remains.
• While signing only indicates the country’s intention to meet the obligations set out
in the treaty, Ratification, on the other hand, entails bringing in laws and
mechanisms to fulfil the commitments.
• Other Factors:
• Medical neglect or lack of medical attention, and even suicide.
• rigid hierarchical structure of police forces, combined with a high-pressure working
environment
• Poor training or lack of accountability among law enforcement officials.
• Inadequate or substandard conditions in detention centers.
• Underlying health conditions or pre-existing medical conditions that are not
adequately addressed or treated while in custody.

Concerns Associated with Custodial Deaths

• Violation of Fundamental Laws: Custodial death due to torture and violence by
police is against the fundamental structure and values of the Indian
Constitution.
○ It is a violation of articles 20, 21 and 22 of the Indian Constitution.
• Against Moral Values: Sometimes, the police authority abuses the convicted
even before the formal arrest, claiming injuries occurred prior to custody.
○ Recently, the Punjab and Haryana high court has held that custodial deaths
represent a reprehensible abuse of power given the vulnerability of detainees
and the unequal power dynamics.
• Severe Offenses Committed by Police Misusing the Custody: Sometimes,

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 • Severe Offenses Committed by Police Misusing the Custody: Sometimes,
police misused the Custody and causing torture to the victims.
• Rape: Rape is one of the prevalent forms of custodial torture.
• The Mathura Rape Case: An incident of custodial rape in Gadchiroli district of
Maharashtra in 1972, wherein a tribal girl named Mathura was allegedly raped by
two policemen in the Police Station.
• Harassment: It is prevalent among the police and leads to many sufferings to the
victims.
○ Nilabati Behera vs. the State of Orissa: In this case, the victim had died
due to the harassment and beatings by the police.
• Illegal Detention: Depriving an individual of their personal liberty without following
the process of law amounts to illegal detention. It includes unlawful
imprisonment, continuous restraint of a person at a place or restraining a
person from reaching a place. It is a violation of Article 21 of the Constitution and
leads to immense pain and suffering.
○ Rudal Shah vs. the State of Bihar: In this case, the accused was kept in jail
for 14 years, after his acquittal by the Sessions Court.
• Fake Encounters: It is a type of custodial death, and has recently been used in
the headlines.
○ Pradeep Sharma, a former Mumbai Police ‘encounter specialist,’ has
been sentenced to life imprisonment by the Bombay High Court for his
involvement in the fake encounter in 2006.
○ This landmark judgment marks the first conviction of police officers in a
fake encounter case in India.

What are the Provisions Available Regarding Custody?

• Constitutional Provisions:
• Article 21:
○ Article 21 states that “No person shall be deprived of his life or personal
liberty except according to procedure established by law”.
○ Protection from torture is a fundamental right enshrined under Article 21
(Right to Life) of the Indian constitution.
• Article 22:
○ Article 22 provides “Protection against arrest and detention in certain cases”.
○ The right to counsel is also a fundamental right under Article 22(1) of the India
constitution.
• Role of State Government:
• Police and public order are State subjects as per the Seventh Schedule of the
Constitution of India.
• It is primarily the responsibility of the state government concerned to ensure the
protection of human rights.
• Role of Central Government:
• The Central Government issues advisories from time to time and also has enacted
the Protection of Human Rights Act (PHR), 1993.
• It stipulates establishment of the NHRC and State Human Rights Commissions to
look into alleged human rights violations by public servants.

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 look into alleged human rights violations by public servants.
• Legal Provisions:

Guidelines by • In the Case of D.K. Basu vs. State of West Bengal, the
the Supreme Supreme Court held that the rights guaranteed under Article
Court 21 of the Constitution could not be denied to convicts, under-
trials, and other prisoners in custody, except according to the
procedure established by law.
• The SC of India has laid down specific requirements and
procedures:
• Right to Inform: The person arrested, detained or being
interrogated has a right to inform a relative, friend or well
wisher.
• When a friend or relative lives outside the district, the time,
place of arrest and venue of custody must be notified by
police within 8 to 12 hours after arrest.
Guidelines by • Interrogation on Identifiable Place: The interrogation should
NHRC be conducted in a clearly identifiable place, which has
been notified for this purpose by the Government.
• Right to Know Place by Relatives: The place must be
accessible and the relatives or friends of the person arrested
must be informed of the place of interrogation taking place.
• A Humane Interrogation: The methods of interrogation must
be consistent with the recognised rights to life, dignity and
liberty and right against torture and degrading treatment.
The Indian • Section 302: A police officer murdering an accused in custody shall
Penal Code be punished for the offense of murder.
(IPC), 1860 • Section 304: A police officer can be punished for custodial death
under ‘culpable homicide not amounting to murder’.
• The provisions of ‘causing death by negligence’ under Section 304
can also be attracted if the case falls within its ambit.
• Section 306: Once the victim has committed suicide and if it is
proved that the police officer has abetted the commission of such
suicide, then the police officer will be held liable for punishment
under section 306.
• Section 330 & 331: If a police officer voluntarily causes hurt or
grievous hurt to extort confession, then such police officer shall be
punished under section 330 of IPC for voluntarily causing hurt or
under Section 331 of IPC for voluntarily causing grievous hurt.
• Section 342: A police officer can also be punished for wrongful
confinement.
• Crime of custodial torture against prisoners can be brought under
Sec 302, 304, 304A, and 306 of IPC.
The Code of • Section 41: Arrests and detentions for interrogation have
Criminal reasonable grounds and documented procedures and arrests
Procedure are made transparent to family, friends, and the public, and
(CrPC), 1973 there is protection through legal representation.
• Section 49: It provides that the police are not permitted to
use more restraint than is necessary to prevent the escape of
the person.
• Section 176: It requires the Magistrate to hold an inquiry
into the cause of death whenever a person dies in custody of

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 into the cause of death whenever a person dies in custody of
the police.
• There are some provisions like Section 53, 54, 57, and
167 which are aimed at providing procedural safeguards to a
person arrested by the police.
Indian Police • Section 7 and 29 empower senior police officers to dismiss
Act, 1861 or suspend negligent police officers and penalises police
personnel for carrying out their duty negligently.
International Conventions Against Custodial Torture:
• International Human Rights Law, 1948
• United Nations Charter, 1945
• The Nelson Mandela Rules, 2015
• United Nations Convention Against Torture, 1984
International Laws associated with Human Rights:
• Universal Declaration of Human Rights, 1948
• International Covenant on Civil and Political Rights, 1966
• United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015
• United Nations Charter, 1945
• European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950

Way Forward
• Adopt Strict Approach: To prevent custodial deaths, implementation of guidelines and
directives recommended in Prakash singh case is required.
• Directives laid down in Prakash Singh vs. Union of India, 2006:
○ Establishment of a Police Establishment Board
○ Formation of the National Security Commission
○ Formation of a State Security Commission
○ Formation of a Police Complaint Authority
○ Separation of the investigation and law and order functions of the police
○ Merit-based system for the appointment of the Director-General of the
Police
○ Two-year minimum tenure for SP and station house officers
○ Compensation to the victim
• Time for Reforms in Police Attitude: There is a need to enhance police training
programs to emphasise respect for human rights and dignity.
• There is an urgent need to change the rude police attitude and promote a culture
of accountability, professionalism, and empathy within law enforcement
agencies.
• More Monitoring & Enquiry: With rising high cases of custodial deaths in India, time
has come to encourage civil society organisations to actively advocate for victims of
custodial torture.
• The National Human Rights Commission (NHRC) should be allowed to inquire
into any matter even after one year from the date of the alleged human rights
violation and also the jurisdiction should be expanded on human rights
violations by armed forces with appropriate measures.
• Assistance to Victim & its Family: To maintain the soul of justice, there is a need
to provide more legal support to victims and their families.
• In Nilabati Behera vs. the State of Orissa, the court held that when the state
violates the constitutional right to life of a citizen, it has an obligation to provide

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 violates the constitutional right to life of a citizen, it has an obligation to provide
compensation.
• Learn from Other Countries’ Best Practices: The Torture and Custodial Death
(Prevention) Act, 2013 is an Act passed by the Jatiya Sangsad in 2013 to prohibit
torture in custody in Bangladesh.
• The Prevention of Torture Bill, 2017 was one of the primary legislation that was
enacted as law of parliament in relation to custodial torture in the country.
Now, time has come to take strict actions regarding the bill.
• Time for Collaboration: Collaborating with international human rights bodies and
organisations is required to seek redress and justice. The Government of India signed
the UN Torture Convention in October 1997 but is yet to ratify it.
• Ensuring strict adherence to human rights laws and regulations, including the
prevention of torture and cruel, inhuman, or degrading treatment or punishment.
• Implementing comprehensive and effective training programs for law enforcement
officials on the proper use of force and non-lethal methods of controlling suspects.
• Establishing independent and impartial investigations into all custodial deaths to
determine the cause of death and hold responsible parties accountable.
• urgent need to adopt scienti•c interrogation techniques.
• police o•cers lack adequate training in contemporary investigative methods and forensic tools,
and there is often a reluctance to collaborate with external experts such as forensic specialists
and mental health professionals.
• decriminalisation of petty o•ences, particularly minor property-related crimes. This would limit
the arbitrary use of arrest powers and help ensure that custodial detention is reserved for
exceptional cases
• In 2020, the Supreme Court mandated the installation of CCTV cameras in police stations and
a•rmed victims’ right to access the footage.e Paramvir Singh Saini v. Baljit Singh (2020)
judgment
• Ajith Kumar case, acts of torture often occur outside police stations. Even where cameras are
installed
• Law Commission has recommended introducing a provision that reverses the burden of proof in
such cases
• Prakash Singh v. Union of India (2006), the Supreme Court mandated the creation of police
complaints authorities, led by retired judges, at the State and district levels to address
complaints against police misconduct.
• Awareness campaigns led by the media, educational institutions, and civil society organisations
can play a vital role in informing people about their constitutional rights and the mechanisms
available for redress.

• United Nations Convention Against Torture (UNCAT): It is an

international human rights treaty, under the review of the UN and was
adopted in 1984.
• It aims to prevent torture and other acts of cruel, inhuman, or
degrading treatment or punishment around the world

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