CHAPTER 2

HISTORICAL PERSPECTIVE OF CUSTODIAL

VIOLENCE

2.1 INTRODUCTION

Custodial violence is a grave problem which is continuously threatening the

peace, security and stability of the entire world but there is a lack of consensus
on arriving at a single universally acceptable definition of this phenomenon. It
is primarily due to the fact that this problem has different facets to it. It is
committed due to different motivations, objects and rationales. Moreover their
profiles and operations also differ. It is not just a law and order problem but is
a different type of criminality which is more serious in nature, grave in its
impact and its consequences are extremely dangerous as compared to other
crimes.

2.2 ORIGIN OF POLICE SYSTEM

The origin of police can be traced to the time in the early human history when
small nomadic groups sought the help of the strong and dependable men for
watch and ward purposes and to guard against the attack of animals and the
selfish human beings.1 As these groups organized themselves into tribes and
settled down in small communities, they began to evolve rules and regulations
for the protection of persons and property. Simultaneously, the agency for the
enforcement of these tribal laws also originated. Thus, the earliest law
enforcement agency was, perhaps, a kind of military police. 2 Policemen have
existed since time immemorial and are found almost everywhere in the world.
It is unfortunate that the exact details of police organization in ancient India
are not available and so different materials scattered in various scriptures and

1
B.N. Mullick, A Philosophy for the Police (1969) pp.1-5.
2
John L. Sullivan, Introduction to Police Science (1966) p.123.
Shastras are to be stitched together to have a coherent picture of the police
system.3

When we look back into the pages of the history, it can be found out that
torture was practiced on criminals and prisoners by the police in the epic
period (1400 B.C. to 500 B.C.). The ordeals of fire, water and single combat
were used then.

Police in India functions as the principal law enforcement agency of the State.
Earlier the laws of the state were what the individual rulers used to pronounce
from time to time based upon their own needs, demands and desires.
Reference of torture and violence in custody exists since Vedic age (2000-
1400 B.C.). Torture in various forms was widely prevalent in the age of law
and philosophy (800 B.C.-320 B.C.).4

2.3 CUSTODIAL VIOLENCE IN ANCIENT INDIA

The basic concept of governance in ancient India was of dharma and danda.
The ‘dandniti’ was an essential ingredient of state craft. In dharma sutras
proper wielding of ‘danda’ was held to be an important duty of the king.5The
basic unit of policing was the village; a village being an aggregation of
families together with their land and pastures surrounding the village. Every
village had its local court which was composed of the headman and the elders
of the village. The courts decided minor criminal cases such as petty thefts as
well as civil disputes. The Mahabharta mentions Gramadhipati and the
Buddhist Jatakas speak of Grambhojaka. Nagaraguthka was responsible for
arresting and executing robbers.6

There is reference in the Ramayana about the police as the regulative

mechanism for peace and order. The ancient Indian lawgiver, Manu, refers to
the police function prevalent in his times for the prevention and detection of
crime. In the Code of Manu there are references of police system.7 Manu

3
S.K. Ghosh, Police in Ferment (1981) p.19.
4
Sanker Sen, Police in Democratic Societies (2000) p.48.
5
The first report of National Police Commission, 1979.
6
Encyclopedia of Police in India, 1993.
7
One of the main duties of the ruler, according to these laws, was to restrain violence and
punish the evil-doers. There is an interesting approval of the use of agents provocateurs

25
classified police into two functional departments, namely, the criminal
investigation department and the law and order wing. The criminal
investigation department was subdivided into two units - one for collection of
criminal intelligence and investigation of crimes and the other for collecting
intelligence for the security of important dignitaries, prevention and
prosecution of economic offences and undertaking espionage. Manu had
suggested extensive use of the secret agents whose activities were of secret
and confidential nature.8 There are some hints of the existence of an indirect
form of police system in B.C.600-300.9 Similar hints can also be seen in the
Yagnavalkyasmriti 100-300 A.D, the Naradasmriti (100-400 A.D) and the
Katayanasmriti (400-600 A.D).10 in the garb of policing violence was
committed on the captured people.

2.3.1 KAUTILYA’S ARTHSASHTRA

Kautilya’s Arthsashtra speaks about various kinds of torture such as burning

of limbs, tearing by wild animals, trampling to death by elephants and bulls,
cutting of limbs and mutilation etc. Manu, the law giver of this age
emphasized the necessity of torture to protect the society from the hands of
criminals.

2.3.2 BUDDHIST PERIOD

The Buddhist period (320 B.C.-300 A.D.) was an age of great

humanitarianism and the administration of justice had become
correspondingly influenced by humanitarian ideals. Custodial torture in any

(anathema, according to English ideas), and all the King’s subjects were required to assist him
in the criminal administration.
8
Apastamba Dharamasutra prescribes that the king should see that there is no danger from
thieves in villages and forests, that he should appoint in towns and villages officers and their
subordinates, who are pure and truthful, for the protection of the subjects against thieves and
who are to be made to make good what is stolen, that, if the king does not punish the guilty, he
incurs sin, that in disputes judges should be men of learning, clever and fulfilling their duties
and that witnesses were to tell the truth and were to be punished if they be untruthful; P.V.
Kane, History of Dharmasastra Vol. III (1946), pp.1-2 and 167.
9
Narada lays down further that, when animals or their property has been taken away forcibly,
experienced men shall trace it from the place where it has been taken; Surendernath Sen,
Administrative System of Marathas (1925) p.511.
10
These Smritis state that such restitution was to be made by the officers and wardens of the
country or the headman or the owners of pasture lands and forests. Losses on the roads were to
be made good by the officers appointed to arrest thieves or the whole village or the
surrounding five or ten villages.

26
form was strictly forbidden and special favors were shown to prisoners who
happened to be women, aged or who had many dependents.

2.3.3 GUPTA PERIOD

In the Gupta period (320A.D.-500 A.D.) if facts against a prisoner were not
clearly established by evidence then recourse to four kinds of ordeals was
meted out. Trial by ordeals was fairly common.11

During the six and a half centuries intervening between the deaths of Harsha
in 650 A.D. to the rise of Mohamaddan power, not much information is
available about the criminal justice system. Generally speaking, a medley of
petty Hindu kingdoms with ever varying boundaries was ceaselessly engaged
in dynastic wars.

In the Mohammadan period the Shariat law was applied to crimes. An eye for
an eye, tooth for a tooth, cutting of limbs and torture to extract confession was
wide spread. A thief’s hands were to be cut off and the adulterer and the
adulteress were stoned to death. Any other form of compensation to the next
of kin or the sufferer himself was not acceptable.

2.3.4 MUGHAL PERIOD

Under the Mughal’s regime, no criminal or civil code existed. The Shariat law
was in force. Torture in custody to extort confession was widespread. But the
quality of justice dispensed by successive emperors was by no means uniform.
Akbar certainly tried to avoid harsh treatment to prisoners by his officials. The
deliberations which characterized the infliction of punishment by Akbar were
absent from Jahangir’s dispensation of justice. Under Jahangir, trials were
quick and so also were executions, hangings, beheading, impaling, killing with
daggers, by elephants, serpents etc.

Shahajahan was capable of even greater ferocity and cruelty than Jahangir and
took a savage pleasure in witnessing the execution of punishment that he had
decreed. Aurangzeb, on the other hand, in his efforts to attain the ideal of strict
Muslim and to follow the law and traditions of Islam in every detail of his

11
S.K.Ghosh, Torture and Rape in Police Custody: An Analysis (1993) p.15.

27
administration and personal conduct, erred in the opposite direction. His
administration was ruthless and in administrating criminal justice he
differentiated between Hindus and Muslims. Hindus were tortured and
punished more severely than Muslims for the same offence.

The key police functionaries during the Mughal period were Faujdar and
Kotwal. A number of villages were grouped together to form a Mahal or
Parganah. A number of Parganahs formed a Sarkar and a number of Sarkars
formed a Subah or Province. The Kotwal was responsible for policing the
towns, cities and their suburbs. The functions of the kotwals are mentioned in
Aini-i-Akbari. He prevented crime and social abuses, regulated cemeteries,
burials, slaughter houses, jails and took charge of heirless property. He
patrolled the city at night and collected intelligence from paid informers on
men and matters. The ends of his appointment were to ensure that there was
no theft in the city. In a register he maintained the addresses and professions
of every resident of the town, observed the income and expenditure of various
classes of men and checked the accuracy of weights and measures. Preparation
and distribution of intoxicants and the professions of prostitutes were also
controlled by him. Thus, his role and functions were preventive, detective and
regulatory.

The Faujdar was the head of the Sarkar and commanded troops to suppress
rebellion and disorder in the area mainly rural under his jurisdiction. Although
he was subordinate to the provincial Governor, he could directly communicate
with the Imperial Government. He dispersed and arrested robber gangs and
took cognizance of all violent crimes, hunt down bandits, prevent manufacture
of fire-arms, arrest disturbance of peace and assist the Malguzars in the
collection of revenue by making demonstrations of force to overcome
oppositions, wherever necessary. In practice the Zamindar was made
responsible for peace and security of the people in his zamindari. The Faujdar
was only to ensure that the zamindars did their job rightly.12

12
Kamlesh Kumar, Unpublished Ph.D., Custodial Crimes in Police Custody: Causes,
Consequences and Preventive Measures, Tata Institute of Social Sciences (2011) p.37.

28
2.3.5 MARATHA PERIOD

In the Maratha kingdom, many varieties of tortures were employed.

Amputation of hands and feet, ears and noses, pouring molten lead into the
throat, crushing the bones of the hands and feet with mallets, driving iron nails
into the hands, feet, and bosom. These and many similar tortures were
practiced to establish the guilt of the captured person.

2.3.6 BRITISH PERIOD

With the collapse of the Mughal Empire and till the advent of the British rule
in India, the criminal justice system did not exist. In the early years of their
rule, the Britishers found gangs of professional and hereditary robbers and
murderers known as ‘thugs’ who extended their depredation in very remote
parts. The inhabitants were indiscriminately apprehended on false charges and
incarcerated in jails for years before they were brought for trial and many of
them perished in jails. Torture by officials including Kotwals was widely
prevalent resulting in deaths sooner or later. The British evolved order from
chaos and destroyed thug’s organization, put down barbaric social customs
and built up the judiciary, the police, and the jails and codified law.

The British Raj was also notorious for its police excesses. The police was an
agent of imperial brutality and earned an image of being anti-people. Men,
women and children were caught and beaten up and tortured to make them
confess to crimes they commit or did not commit. They wanted a police
system to develop a sense of fear amongst the general public so that they did
not threaten them to continue their rule, exploitation and realization of
maximum revenue from the country. Administration of justice was not their
main concern. Torture during this period was mainly carried out by revenue
collectors to collect revenue. Political workers were also picked up for
questioning and if they did not provide the kind of replies the police wanted
they were subjected to torture. Primitive police, repressive police and

29
threatening police could administer only wounded justice to the people in
India.13

The Select Committee on East Indian Affairs (1832) discussed the routine use
of torture by revenue and police officials to extort confessions, money or
taxes. Torture commission (1855) appointed by British Government for
investigation of alleged cases of torture in madras presidency in its report
highlighted that police torture was quiet prevalent there. The report drew the
attention to the fact that torture is a structural problem of policing rather than
of aberrant and extraordinary instances. The recommendation of the Torture
Commission laid foundation to set up Police Commission, 1860.

The Police Commission, 1860 recommended the abolition of the military

police as a separate organization and suggested for the constitution of a single
homogenous force of civil constabulary under the proposed Police Act, 1861.

The Indian Police Commission (1902-03) scrutinized the performance of the

police after forty years of the working of Police Act, 1861. The commission
found that the police force was far from efficient. There were defects in
training and organization, was inadequately supervised, was regarded and
perceived as corrupt and oppressive and it failed utterly to get the confidence
and cooperation of the people. The commission concluded that the police force
throughout the country was in a most unsatisfactory condition, that abuses
were everywhere and this involved great injury to the people and discredit to
the government and radical reforms were felt unavoidable and urgent. The
landmark recommendations of the commission were that that the educated
Indians should be recruited into the police force at higher level and the law
and order wing be separated from investigation wing, a cadre for sub-inspector
of police at police station and criminal investigation department at state level
be created. However, in the following decades, with the growth of Swadeshi
Movement, Non-cooperation, Civil Disobedience and Quit India Movements,
unrest in labour, emergence of communist backed Kisan movement and rural

13
K.P.Shyamsunder, Custodial Deaths and Human Wrongs by Police Human Rights and
Criminal Justice Administration (2002) p.101.

30
insurrection deposed to favor coercive solutions rather than investigative
grievances by colonial government.14

The perpetrators of atrocities and immoral acts here were the servants of the
foreign government. They built their own judiciary, police, jails and laws for
their own benefit and convenience so that they could rule over the country.
The jump from the colonial rules to a democratic rule was a frog jump. But the
Indians could not fully realize the indications of such frog jump. That is why,
the political leadership and police administration permitted the age old police
to continue even in democratic India. There has been no organized effort to
change the police culture. Even today we follow the same rules and
regulations without any significant change in the old laws. It is a fact that the
foreign rulers have disappeared from our country and the administration in
India is now run by a duly elected democratic government. The agents of the
British Raj have gone but they left the legacy behind. The existing police
system is also the legacy of the British. Probably this psyche still remains with
the police as well as with the Indian masses.

Sir William Sleeman, speaking about the Indian police said that India is a
country where the most vigilant police officer must often fail to discover the
perpetrators of heavy crimes that take place within his range. When they could
not find, then the native officers both seized innocent persons and forced them
into confession or else they tried to conceal the crime. It was Sir C. Walsh, J.
who made a very strong criticism about the evil of torture practiced on
suspects by policeman, based on his experience as a judge of Allahabad.

2.3.7 POST INDEPENDENCE PERIOD

After Independence, several Police Commissions were appointed by Union

and State Governments to look into the performance and methods of working
of the State Police during 1950s, 1960s, the early 1970s and 1980s.15

14
Kamlesh Kumar, Unpublished Ph.D., Custodial Crimes in Police Custody: Causes,
Consequences and Preventive Measures, Tata Institute of Social Sciences (2011) p.39.

31
All most all these Committees and Commissions have revealed the tale of
third degree or torture in police custody due to political ends, practice of
corruption and lack of infrastructure support, of scientific aids and training etc.
The recommendations of most of these Commissions were mainly concerned
with the details of the administrative set up, the strength of the Police Force in
different wings of the system, the relationship between Police and the
Principal District Collector, pay and allowances for the Police in different
ranks, qualifications for recruitments, setting up of training centers and the
like. Shah Commission (1978) observed the police brutality on a wide range
during the emergency from 1975 to 1977. The Commission drew attention of
the Government the way police behaved during the emergency as they were
not accountable to any public authority. In its recommendations, the
Commission told to the Government to take measures to insulate the police
from illegitimate political and executive interference.

2.3.7.1 THE NATIONAL POLICE COMMISSION (1979-81)

The National Police Commission examined in detail the issues pertaining to

police functioning inter alias in its eight reports. In its first report, the
Commission observed:

Police are frequently criticized for their use of third degree methods during
investigation while examining suspected or accused persons. Police brutality
in their handling suspect is referred to in some context or the other in the
literature on police forces in several countries of the world, and the Indian
Police is no exception. Interrogation of a person, whether he be a witness or
suspect or accused, is a difficult and delicate exercise for any police officer
and calls for enormous patience and considerable understanding of human
psychology. Unfortunately several police officers under pressure of work and
driven by a desire to achieve quick results, leave the path of patient and
scientific interrogation and resort to the use of force in different forms to

15
Assam Police Commission (1971),Bihar Police Commission (1961),Delhi Police
Commission (1966-68), Kerala Police Reorganizing Police Committee (1959), Madhya
Pradesh Police Commission (1965-66), Maharashtra Police Commission (1964), Punjab
Police Commission (1960-61), Rajasthan Reorganizing Police Committee(1973), Tamilnadu
Police Commission (1971), Uttar Pradesh Police Commission (1970-71), West Bengal Police
Commission (1960-61), First Administrative Reform Commission( 1962), Gore Committee on
Police Training (1972).

32
pressure the witness or suspect or accused to disclose all the facts known to
him. While law recognizes the need for use of force by the police in the
discharge of their duties on some specified occasions like the dispersal of a
violent mob or the arrest of a violent bad character who resists the arrest, etc.,
the use of force against an individual in their custody in his loneliness and
helplessness is a grossly unlawful and most degrading and despicable practice
that requires to be condemned in the strongest of terms.

The National Police Commission recommended that there should be

mandatory judicial inquiry in cases of deaths and rapes in police custody. The
judicial inquiry should be held by an Additional Session Judge nominated for
this purpose in every district by the state government in consultation with the
High Court. The nominated judge would be designated as the District Inquiry
Authority (DIA) and assisted by an assessor. The DIA shall send the report of
the inquiry to the State Government. It will be mandatory on the part of
government to publish the report and decisions taken thereon within two
months of receipt of the report. The DIA shall also serve as an independent
authority to oversee the ultimate disposal of complaints dealt with
departmentally. To oversee the satisfactory implementation of the entire
scheme, a public complaints Board should be set up at the State level. At
district level, surprise visits to police stations and similar units by the senior
officers would help the immediate detection of persons held in custody and
subject to ill-treatment. Malpractices, if any, noticed during such visits should
be met by swift and deterrent punishment. Unfortunately, the valuable
recommendations of the National Police Commission were overlooked by the
government.

2.3.7.2 REBEIRO COMMITTEE (1998)

Rebeiro Committee examined the relevance of valuable recommendations of

the National Police Commission in changing environment of the country. The
Committee recommended setting up of the Police Performance and
Accountability Commissions at the State level, constitution of a District
Complaint Authority (DCA) to examine the complaints from the public of the
police excesses including arbitrary arrests and detention, false implications in

33
criminal cases and custodial violence. Further the Committee recommended
separation of investigation functions from law and order work and
replacement of the Police Act, 1861 with a new Act etc. but sadly the
recommendations have not been implemented.

2.3.7.3 PADHMANABHAIAH COMMITTEE ON POLICE REFORMS (2000)

Padhmanabhaiah Committee was constituted to study, inter alia, recruitment

procedures for the police force, training, duties and responsibilities, police
behaviors, police investigation and prosecution. The Committee observed that
every Commission and Committee in the past has repeatedly stressed the need
for better utilization of scientific aid in investigation and for reduction of
custodial violence. However, the state of forensic science in India and its use
by police in investigation of crime are both in a pathetic state. Therefore the
Committee recommended that every police station should be equipped with
‘investigation kits’ and every sub-division should have a mobile forensic
science kits. But sadly these recommendations have not been implemented due
to limited resources with the governments.

2.3.7.4 MALIMATH COMMITTEE ON REFORMS OF THE CRIMINAL

JUSTICE SYSTEM (2003)

The Malimath Committee highlighted various issues associated to the criminal

justice system in general and police system in particular. The Committee has
examined the fundamental principles of the functioning of the Criminal Justice
System such as right to silence, rights of the accused, presumption of
innocence and burden of proof, justice to the victims of crimes etc. in detail.
The Committee observed:

“Manner in which police investigations are conducted is of

critical importance to the functioning of the criminal justice
system. Not only serious miscarriage of justice will result if the
collection of evidence is vitiated by error or malpractice, but
successful prosecution of the guilty depends on thorough and
careful search for truth and collection of evidence, whether for
or against suspect. Protection of the society being of

34
 paramount consideration, the laws, procedures and police
practices must be such as to ensure that the guilty are
apprehended and punished with utmost dispatch and in the
process the innocent are not harassed. The aim of investigation
and in fact, the entire criminal justice system is to search for
truth. To achieve this objective, the investigating officers must
be properly trained and supervised and necessary scientific and
logical support should be made available to them.”

The Committee further observed:

“If tortured, an accused should have the freedom to apprise the Magistrate of
the incident, when produced before him. In such cases, the magistrate can
remand him to judicial custody. This should be true of any violence or sexual
offence perpetrated against an accused person in custody. In all such cases,
there must be a detailed inquiry.”

The Committee recommended that audio and video recording of statements of

witnesses, dying declarations and confessions should be authorized by law.
Interrogation Centers should be set up at the District Headquarters, in each
District, where they do not exist, and be strengthened where they exist, with
facilities like tape recording and/ or videography and photography etc.

However, the Malimath Committee report met with several criticisms by the
Amnesty International India and International Commission of Jurists, (2003)
including other human rights organizations in the country. In recent years, the
discourse of police reforms institutionalized mechanism to effectively deal
with bonafide public complaints against the police including custodial
violence and the audit of police performance, as well as police accountability
towards people of the country have been discussed at the legislative, judicial
and executive levels. In this regard, Supreme Court heard a writ petition filed
by two retired police officers and a non-governmental organization demanding
implementation of the National Police Commission reports. The Apex Court
passed the ruling in 2006 which is a historic judgment on police reforms

35
known as the Prakash Singh vs. Union of India.16 The Judgment dealt with
three aspects of policing -autonomy, accountability and efficiency. The court
issued the following directions to the Central Government, State Governments
and Union Territories for compliance till framing of the appropriate
legislations: National Security Commission, State Security Commission,
Selection and Minimum Tenure of DGP, Minimum Tenure of Inspector
General of Police and other officers, Separation of Investigation, Police
Establishment Board and Police Complaint Authority.

2.3.7.5 POLICE ACT DRAFTING COMMITTEE (2005)

In this regard, the Government of India, having visualized the long felt need to
replace the outdated Police Act, 1861 set up a Police Act Drafting Committee
(PADC) in September 2005 to draft a new Police Act that could meet, inter
alia, the growing challenges to policing and to fulfill the democratic
aspirations of the people. In drafting the Model Police Act, 2006 the
Committee was guided by the need to have a professional police ‘service’ in a
democratic society, which is efficient, effective, responsive to the needs of the
people and accountable to the Rule of Law. The Act provides for social
responsibilities of the police and emphasizes that the police will be governed
by the principles of impartiality and human rights norms, with special
attention to protection of weaker sections of society including minorities. It
also contains a provision that the composition of the police will reflect social
diversity. The other salient features of Model Act include functional
autonomy, encouraging professionalism, accountability paramount, improved
service conditions and role of protecting internal security in light of new
threats which are emerging.

The State Governments have started taking actions as per the Supreme Court’s
directions and PADC drafted a new Police Act. As of June 2014, Assam,
Bihar, Haryana, Himachal Pradesh, Karnataka, Kerala, Rajasthan and Tripura
have enacted draft police legislation and many states Andhra Pradesh,
Chhattisgarh, Jammu and Kashmir, Jharkhand, Orissa, Punjab, Sikkim, Tamil
Nadu and West Bengal were in the process of drafting. Goa, Gujarat, Madhya

16
Writ Petition, Civil No. 310 of 1996 (22-9-2006).

36
Pradesh, Maharashtra, Manipur, Haryana, Arunachal Pradesh, Mizoram,
Nagaland, Uttar Pradesh and Uttarakhand have not complied with the order of
the Supreme Court (ACHR 2008). Most recently, the 5th Report of Second
Administrative Reforms Commission (2007) on Public Order and the Draft
Report of the National Policy on Criminal Justice System (2007) emphasized
that the issue of custodial violence needs to be looked and dealt with seriously
and with promptitude, with a view to eliminating this malaise from the system.

The main reason for the growth of torture is the investigating officer’s over
zealousness to secure conviction since conviction is considered as the
yardstick to access the merit of an investigating officer. The craze for
conviction becomes so much rampant that the system of investigating itself
undergoes almost a reverse process. In spite of the various provisions
inscribed in the Constitution of India and other statutory laws, the crime of
custodial violence, rape and death is still increasing.

Right to life is an evolution from the concept of natural rights. Natural rights
are inherently moral rights which every human being at all times ought to have
simply because of the fact that he is a rational and a moral being.17 According
to the doctrine of natural right man was believed to have a fixed and
unalterable nature which gave him certain rights without which he ceased to
be a human being and these were right to life, liberty and property. The natural
rights are given by god to man, they are inherent, fundamental and sacred
rights which can neither be taken away by any individual nor be restricted by
any authority.

The doctrine of natural rights passed into a realm of practical reality and
influenced the drafting of the Magna Carta (1215 A.D.), British Bill of Right
(1689), the Declaration of Independence (1718), the Declaration of Right of
Man and Citizen (1789) formed part of US Constitution. Gradually the
concept of natural rights developed. The traditionally known natural rights
came to be known as fundamental rights in the modern democracies. The
Constitution marks of India also incorporated them in part III of the Indian

17
M.G.Chitkara, Human Rights: Commitment and Betrayal (1996) p.1.

37
Constitution and called them ‘fundamental rights’. The Constitution of India
guarantees the right to life of a person under Article 21.18

The right to life includes the right to live with human dignity and all that goes
with it. It also includes protection against inhuman torture and any act which
damages or injures or interferes with the use of any limb, faculty of a person,
either permanently or temporarily.19 Everyone has the right to live with human
dignity and no state, neither the central government nor the state government
has the right to take any action which will deprive a person of the enjoyment
of these basic essentials.20

The responsibility of protection of the right to life lies in the government of

the nation and its various organs. In a democracy policeman is a custodian of
law. Apart from the police, there are several other government authorities like
Directorate of Revenue Intelligence Bureau, Research Analysis Wing, Central
Bureau of Investigation, Criminal Investigation Department, Traffic Police,
Mounted Police and Indo-Tibetan Border Police which have the power of
detaining any person and to interrogate him in connection with the
investigation of economic offences, offences under the Essential Commodities
Act, Excise and Custom Act, Foreign Exchange Regulation Act etc.21

But the irony is that the protectors of these constitutional and statutory rights
have become the major violators. They commit custodial violence- physical
and mental, rape and deaths of the persons under their custody.22There seem to
be a lack of awareness or non interest of its existence by all sections of the
society. The general public also gets to know of its violation through various
modes like the court decisions and the press, television, magazines etc.23

The victims of custodial violence are defenseless and therefore helpless.

Sometimes due to weak health conditions or less power of endurance, they die
in the custody without there being any intention of causing their death by the
18
Article 21, “no person shall be deprived of his life or personal liberty except according to
the procedure established by law.”
19
Francis Coralie v. Union Territory of India, (1981)1 SCC p.608.
20
Bandhua Mukti Morcha v. Union of India, AIR1984 SC p.802.
21
Dr. S.K.Awasthi and R.P.Kataria, Law Relating to Protection of Human Rights (2000)
p.908.
22
Shailender Mishra, Police Brutality: An Analysis of Police Behaviour (1986) p.2.
23
Joginder Patjoshi, Custodial Death- Violation of Human Right (1997) p.65.

38
custodian, in comparatively less beatings or torture. Sometimes there are
deliberate custodial killings in the form of fake encounters, stage managed
encounters or they are killed while escaping from the custody or while taking
confessions. Such killings may be resorted to as a crime control measure to
deal with, for instance, a hardened criminal or a violent terrorist who cannot
be effectively handled through the uncertain and often frustrating normal
process of law, and who avoid the drudgery, hard work and effort usually
involved in the same or in some cases, even for totally malafide motives under
unscrupulous pressures to liquidate an inconvenient person.24

The quality of a nation’s civilization can be largely measured by the respect it

pays for the protection and promotion of human rights. The theme of human
rights is of universal concern and it cut across all ideological, political and
cultural boundaries. It is for this reason that linkages between institutions
relating to the protection of human rights between the countries are important.

Human rights cut across political, social, ideological and cultural domains and
are of universal importance as they are available to the entire humanity
irrespective of race, religion, color, sex or domicile. Custodial violence such
as lock-up deaths, unlawful detentions, custodial rapes and physical violence
are not tolerated by any faith or culture, which respects humanity. But one of
the major problems India is facing today is violation of human rights by
individuals and institutions established to uphold these very principles under
the Constitution and other statutory laws. There is a need to build an in-built
mechanism in the administrative and supervisory structure to ensure constant
watch on this vulnerable task of human society. The violence committed in
various forms of the detainees in the custody of the government agencies is a
matter of grave concern. This problem has taken a magnified form especially
because most of the Indian population is poor and illiterate.

Police as a functionary of criminal justice system, plays a crucial role in

maintenance of peace and enforcement of law and order within its territorial
jurisdiction. Its primary duty is to safeguard the lives and property of the
people and protect them against violence, intimidation, oppression and
24
N.K.Singhal, Study on Custodial Death in Delhi: Causes and Remedies (1995) p.14.

39
disorder.25 The term police broadly connote the purposeful maintenance of
public order and protection of persons and property from the hazards of public
accidents and the commission of unlawful acts. It specially applies to a body
of officers, civil and military, charged with the maintenance of public order
and safety and enforcement of the laws of the land, including the prevention
and detection of crime.26

Originally, the word ‘police’ was derived from the Greek word ‘politeia’ or its
equivalent Latin term ‘politia’ which stands for the ‘state’ or
‘administration’.27 In Encyclopedia Britannica, the term police is used to
denote ‘a body of people organized to maintain civil order and to investigate
breaches of law’.28 In the present context the term ‘police’ connote a body of
civil servants whose primary duties are preservation of order, prevention and
detection of crime and enforcement of law.29 Police is a part of sub-system
which plays a crucial role in enforcement mechanism of any country. The
fundamental duty of police is to serve mankind, to safeguard lives and
property, to protect the innocent against deception, the weak against
oppression or intimidation and the peaceful against violence and disorder, to
respect constitutional rights of all men to liberty, equality and justice.30

Human beings are born free. Freedom is god’s greatest gift to men and
women, the crowning glory of all creation. But many have lost their freedom
by their criminal behavior which is the outcome of a sick mind. For a long
time until the beginning of the present century criminals were looked at with

25
Giriraj Shah, Encyclopaedia of Crime, Police and Judicial System (1999) p.2.
26
M.B. Chande, The Police in India (1997) p.54.
27
N.V.Paranjape, Criminology and Administration of Criminal Justice (1990) p.110.
The Willink Commission on police reforms constituted by the Government of United
Kingdom also described the term ‘police’ as: “The police in this country are the instrument for
enforcing the rule of law, they are the means by which civilized society maintains order,
which people may live safely in their homes and go freely about their lawful business.
Basically, their task is the maintenance of the Queen’s Peace-that is the preservation of law
and order. Without this, there would be anarchy.”
J.C. Curry, The Indian Police (1977) p.19. Sutherland’s definition of the term seems to be
relatively apt and precise, which runs: “the term ‘police’ refer primarily to agents of the state
whose function is the maintenance of law and order and especially the enforcement of regular
criminal code.”
E.H. Sutherland, Principles of Criminology (1973) p.330.
28
Encyclopedia Britannica, vol.14, p.662.
29
P.Lakshmi Narayanan, “Quis Custodist Custodes? (Who will Police the Police?)”, Indian
Police Law & Reality (1997) p.63.
30
David.J.Bordeau, The Police: Six Sociological Essays (1967) p.6.

40
hatred. Society’s reaction to crime was entirely retributive and punitive. This
attitude was imbibed by the officials also who hailed from such society only.
But the social reformers all over the world in the recent past have showed
great concern for the reformative treatment of the criminals. In western
countries progressive governments are experimenting with various reform
schemes on the grounds of humanitarianism. But in India even after 67 years
of independence, horrors of prison life continue to exist.

A reading of the morning newspaper and watching news channels almost

every day which carries and shows the reports of dehumanizing torture,
violence, assault, rape, molestation and death in custody of police or other
governmental agencies is indeed depressing. Their increase in alarming
proportion is affecting the credibility of the rule of law and the administration
of criminal justice system. The third report of the National Police Commission
in India also expressed its deep concern with custodial violence and lock-up
deaths and its demoralizing effect on the society as a whole. The Law
Commission of India in its report presented to the Parliament stated that, “the
alarming rise in custodial crimes has pricked the conscience of society and
has evoked public outcry against law-enforcing agencies.”

Complaints of abuse of power, torture and violence of suspects in custody of

police and other law enforcing agencies is the concern of the society. Such
crimes are heinous and revolting as they reflect betrayal of custodial trust by a
public authority against the defenseless citizen and violate fundamental rights
and human rights. There is a pressing need to control this malady.31

The police in India have to perform a difficult and delicate task, particularly in
view of the deteriorating law and order situation, communal riots, political
turmoil, student unrest, terrorist activities and among others the increasing
number of underworld and armed gangs and criminals. Many hardcore
criminals like extremists, the terrorists, drug peddlers, smugglers who have
organized gangs, have taken strong hold or strong roots in the society. It
should also be kept in mind that if we will give more liberalization and ensure
strict enforcement of fundamental rights then it would lead to difficulties in

31
Law Commission of India, 152nd Report on Custodial Crimes.

41
the detection of crimes committed by such categories of hardened criminals by
soft peddling interrogation. Too much emphasis on protection of fundamental
rights and human rights will let these criminals go scot free without exposing
any element or iota of criminality. And as a result the crime would go
unpunished and in the ultimate analysis and at the end the society would
suffer. The concern is genuine and the problem is real. To deal with such
situation a balanced approach is needed to meet the ends of justice. The
society also expects the police to deal with the crime and criminals effectively
and efficiently and to bring to book those who are involved in such crimes.
But the cure cannot, however, be worse than the disease itself.

A death in police custody is made to look like a suicide or an accident and the
body is disposed of quickly without postmortem. The records are manipulated
and evidences are destroyed to shield the police personnel responsible of the
offence. Political influence is used to hush up the matter and thus crime goes
unpunished. The relatives and friends of the victims are unable to seek justice
because of fear, poverty and ignorance of law. Most of the tortures and
custodial deaths occur while the police try to extract confessions from the
accused during interrogation. This development is disastrous to our human
right awareness and humanist constitutional order.32

According to Mahatma Gandhi, our father of the nation, prisons and hospitals
and other such types of care taking institutions are the places of correction,
reconciliation, reformation and a Centre of training for rehabilitation. But even
today, they are, on the contrary, seed-beds of vices, totally undignified and
absolutely inhuman. Thousands of people including men, women and children
are condemned to live in sub-human conditions which physically, mentally
and morally lead to the wreckage of human lives and their families.

During the British period the barbaric treatment, dehumanizing atmosphere,

human torture and wholly unhygienic food made a goal to dread. Similar
appalling and gruesome conditions prevail in jails in our country, India even
today. The government of today should accord highest priority to police and
prison reforms by converting them from institutions of horror to modern

32
Raghubir Singh v. State of Haryana, AIR 1980 SC 1087.

42
reclamation and correctional centers. Voluntary group of dedicated people
with sufficient training in psychology and counseling must be encouraged to
interact with prisoners and to work for their rehabilitation in society. It is the
duty of every individual especially the government appointed officials to
rekindle the hope of enlightenment in the lives of those whose lives have been
in darkness and to help them to restore their lost freedom and dignity.

In the eyes of law prisoners are also human beings and not animals and
therefore if any guardian of law goes berserk and defile the dignity of its
people has to be punished. For when a person is traumatized, the Constitution
suffers a setback and a shock. The foundation of peace, freedom and justice is
the recognition of the inherent dignity and of the equal and inalienable right of
all the members of the society.

Fundamental freedoms are essential for the peaceful development of the

individuals and the nations. No state can develop itself by suppressing the
natural rights of its citizens. No correctional institution can survive in
democratic politics in the absence of the basic freedoms of its inmates.

After the World War I, the world community for the first time realized the
need to establish some institutional mechanism to protect and preserve the
rights of man. But it was only after the horrors and worst kind of brutalization
of human rights in the World War II that the human rights movement gained
some momentum. The efforts to secure human rights to all were intensified
then.

Soon after the coming into force of the United Nations Charter on December
10th, 1948, the General Assembly of the United Nations adopted and
proclaimed the Universal Declaration of Human Rights. The United Charter
was the first international instrument which in unequivocal terms proclaimed
“universal respect for, and observance of human rights and fundamental
freedom for all without distinction as to race, sex, language or religion.” The
United Nations charter has provided a constitutional basis on which the United
Nations can bring about changes in the status of the individual vis-à-vis his
own state.

43
Hence the Universal Declaration of Human Rights and the entry into force of
the International Covenants on Human Rights along with the optional
protocols to the International Covenants on Civil and Political Rights mark the
turning point in the international instruments which constitute a code of
human rights and set an international standard for the protection and
promotion of human rights.

In India, the genesis of human rights for all people can be found in Vedic
scriptures of Hinduism. The Vedas, the metrical religious works of the ancient
Hindus, offer guidance, inter alia, on religious and social obligations. These
constituted the base on which the Hindu law was built.

The golden threads of human rights run through the entire Constitution of
India. The fundamental rights, directive principles of the state policy, the
fundamental duties and independent effective judiciary are some of the
important mechanisms for the protection of human rights of all the people
irrespective of the caste, creed, sex, religion, region or language of its people.

India has made the most sincere efforts for the protection and promotion of
human rights the world over and is the greatest champion of the human rights
in the third world. However, the fact remains that there is a wide gap between
theory and practice. All that is preached is not always put into practice and
India is no exception to it. Custodial violence and custodial rapes and deaths
are rampant in India. The denial of fundamental freedoms and human rights by
the states creates the conditions of social and political unrest. It definitely
sows the seeds of violence and conflicts within and between societies and
nations.

Custodial violence is a colonial legacy. There is a great deal of laziness in it.

It is far pleasant to sit comfortably in the shade rubbing red pepper into a
devil’s eyes than to go about in the sun hunting up for evidence.

-Sir James Fitzjames Stephen33

33
Stephen, History of Criminal Law (1987) p.442.

44
Police atrocities are a common feature of Indian scenario. These violations are
committed under the shield of ‘uniform’ and ‘authority’ between the four
walls of a police station, lock up and prison, where the victims are totally
helpless. Custodial violence may take any form like disappearance of the
suspected persons who ought to have been in the regular police custody,
deaths in fake encounters and at police stations and under trials detained in
jails for years without any trial, extensive violence against women in the form
of abusing, beating, molestation, rape etc.

There is a deep concern at the growing incidence of custodial crimes occurring

in different parts of our country. Complaints of abuse of power, and torture of
suspects in custody by the police and other law enforcing agencies having
power to detain a person for interrogation in connection with investigation of
an offence are, on rise. Of late, such complaints have assumed alarming
dimension projecting the incidence of torture, assault, injury, extortion, sexual
exploitation and death in custody. Compared with other crimes, custodial
crimes are particularly heinous and revolting as they reflect betrayal of
custodial trust by a public servant against the defenseless citizen. Custodial
crimes violate law, human dignity and human rights.34

Right to life is an evolution from the concept of natural rights. These rights are
inherently moral rights, which every human being at all times ought to have
simply because of the fact that he is a rational and a moral being.35 According
to the doctrine of natural right man was believed to have a fixed and
unalterable nature which gave him certain rights without which he ceased to
be a human being and these were right to life, liberty and property. The natural
rights are given by god to man, which are inherent, fundamental and sacred
rights and can neither be taken away by any individual nor can be restricted by
any authority.36

Despite constitutional and statutory provisions safeguarding the liberty and the
life of an individual, the growing incidence of custodial torture and death have

34
One hundred and fifty second Report, Law Commission of India, on Custodial Crimes.
35
M.G.Chitkara, Human Rights: Commitment and Betrayal (1996) p.1.
36
Jawahar L.Kaul, Human Rights: Issues and Perspectives (1995) p.6.

45
become a disturbing factor in the society. It is distressing to find the gory tales
of dehumanizing torture, assault and death in the custody of police almost in
every morning newspaper. The alarming rise in custodial crimes has picked
the conscience of every section of society and it has evoked public outcry
against the law enforcing agencies, especially the Police and the Directorate of
Revenue Intelligence and Enforcement Directorate. The Supreme Court has
expressed its deep concern on the recurrence of custodial crimes on more than
one occasion. The Court has expressed its distress and anguish in these words:

“We are deeply disturbed by the diabolical recurrence of police torture

resulting in a terrible scare in the minds of common citizens that their lives
and liberty are under a new peril when the guardians of law gore human
rights to death. Police lock-ups, if reports in newspapers have a streak of
credence, are becoming gruesome cells. This development is disastrous to our
human right awareness and humanist constitutional order.” 37

Generally, the victims of custodial crimes, torture, injury or death belong to

weaker sections of society. The poor, the downtrodden and the ignorant with
little or no political or financial power, are unable to protect their interest. The
affluent members of the society are generally not subjected to torture as the
Police is afraid of their resources as such resourceful persons immediately
approach higher authorities and courts to regain their freedom. Members of the
weaker or poorer sections of society are arrested informally and kept in police
custody for days together without any entry of such arrests in the police
records. During the informal detention they are subjected to torture, which at
times results in death. In the event of death in custody, the body of the
deceased is disposed stealthily or thrown to a public place making out a case
of suicide or accident. Records are manipulated to shield the police personnel.
The relatives or friends of the victim are unable to seek protection of law on
account of their poverty, ignorance and illiteracy. But even if some voluntary
organizations take up their case or public interest litigation is initiated against
the erring public officer, no effective or speedy remedy is available to them as
a result of which erring public officers go scot-free. This situation gives rise to

37
Raghubir Singh v. State of Haryana, AIR 1980 SC 1087.

46
a belief that the laws’ protection is meant for the rich and not for the poor. If
the incidents of custodial crimes are not controlled or eliminated, the
Constitution, the law, and the State would have no meaning to the people
which may ultimately lead to anarchy de-stabilizing the society. Justice
Brande of U.S. Supreme Court looked upon Government “as the potent and
omnipresent teacher who teaches the whole people by its example. If the
Government becomes a law breaker, it breeds contempt for law; it invites
every man to become a law unto him.” Such a situation cannot be permitted to
exist in a civilized society.38

As mostly the victims of custodial crimes belong to the weaker sections of

society. In the event of death of the earning member of a poor family in
custody, the family members of the deceased are left to lead a pathetic life in
penury. Various Enquiry Commissions appointed by the Government to
inquire into custodial deaths have recommended the amendment of the law,
providing for relief and rehabilitation to the family members of the deceased.39
The Supreme Court and other courts have also directed the State to pay
damages to the affected family members. The State functionaries including the
Chief Ministers and Home Ministers have been granting ex-gratia payment to
the affected family members of the victims of custodial crimes, but the
existing law does not adequately provide for the grant of compensation or
damages to the affected family members, nor there is provision for granting
interim relief. No doubt relief for damages may be claimed in tort through a
civil suit but the legal position in this respect is unclear and the process of civil
suit is too cumbersome, making it illusory.

38
152nd Report Law Commission of India on Custodial Crimes.
39
Report of the Commission of Inquiry into the death of Sri U. Narasimha in the Police
Custody at Sanjeeva Reddy Nagar Police Station Hyderabad on 10-07-1986, Government of
Andhra Pradesh (1986); Report of the Commission of Inquiry on the death of Sri T.
Murlidharan at Town Police Station; Vijayawads, on 17-09-1986 (Governemnt of Andhra
Prades, 1987); Report of the Inquiry Commission on the death of Dadugula Sankuriah in the
Outpost of Yelleswaram on 26-08-1985, (Government of Andhra Prades, 1986); Report of
the Commission of Inquiry into the death of Sri Machela Anjiah while in the Police Custody
at Thungathurthi on 06-09-1986, (Government of Andhra Pradesh).

47
It is necessary to examine the laws which affect the poor and to suggest such
measures as may be necessary to harness law and the legal process in the
service of the poor, keeping under review, the system of judicial
administration to ensure that the system of judicial administration is
responsive to the demands of the society in the light of Directive Principles of
State Policy. There is a need to amend laws, both substantive and procedural,
to minimize the occurrence of the custodial crimes and to provide for the relief
to the victims and their dependents, hence this thesis. The abuse of power by
the law enforcing agencies cannot successfully be prevented altogether as the
obedience to the laws depends upon the social consciousness of the law
enforcing agencies, consciousness of their commitment to the human rights
and to the individual’s freedom and liberty. The law should be made stringent
to eliminate chances of torture in custody and even if it is not possible to
eliminate it altogether, efforts should be made at least to minimize it to
maximum possible extent.

There has been definitely a change in the outlook of the society, the
government and the judiciary and all of them recognize the rights of the
detainees, under-trials and convicts but a lot more needs to be done to impart
justice to each and every person.

48