CUSTODIAL TORTURE IN LAW AND PRACTICE WITH

REFERENCE TO INDIA
R.S. Saini

I Introduction
CUSTODIAL TORTURE is virtually a world-wide phenomenon inflicted upon
individuals regardless of sex, age or state of health This worst form of human
rights violation has become a very serious and alarming problem in Third World
countries like India. Brutal atrocities perpetuated by the police, jail authorities,
armed forces and other law enforcing agencies on the suspects/accused persons
and prisoners are menacingly on the increase day by day. Hardly a week passes
without an incident of custodial torture or custody death being reported in the
press. Gustodial torture is not confined to violent people like sabotiers, terrorists,
dacoits and other hardened criminals as certain police officials would like to make
out (even if they are hardened criminals, do the police have right to take it upon
themselves to inflict brutal punishment assuming the role of judiciary?) Eco-
nomically poor and socially deprived sections of our society form the maiority of
torture victims. They are generally members of scheduled castes and scheduled
tribes, tribal women, migrant workers, landless labourers and others.
Custodial torture has become so common these days that not only the police
and bureaucracy but even the people take it for granted as a routine police practice
of interrogation. The result is that the news of such outrageous conduct causes
nothing more than a momentary shock in the society When some thing horrible
takes place, there is public uproar. Only then the government takes notice of the
custodial torture as the public outcry leaves them with no other option. Even so
the guilty cops usually suffer at best the punishment of brief suspension. Once the
incident fades away from the memory of the public, they are again back in the
service.
According to the latest Amiiesty Report on India,1 about 415 persons died in
the custody of police and security forces due to torture between 1 January 1985
and 1 November 1991. Examining the cases of custody death, the same report
points out that not more than 42 magisterial enquiries were conducted; judicial
enquiries were ordered in 20 cases; criminal charges were framed in 52 cases;
police officers were arrested in 25 cases, and only in 3 cases the guilty officers
were known to have been convicted by the court. The government itself admitted
in Rajya Sabha that 46 persons had already died in police custody due to torture

* Documentation Officer. Centre lor Human Rights Teaching and Research, Jawahaital Nehru
University, New Delhi.
1. Amnesty International, India. Tortiae Rape and Death in Custody 101 (1992). Foi statewise
details, id., see, id., app. I. pp. 102-93.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 167

within three months, i.e., January-March 1993 in Delhi alone. 2 If such a situation
exists in the country's capital, one can well imagine the sorry state of affairs in
the remote villages and tribal areas where many cases of custodial torture go
unnoticed.

II What is torture?
Torture usually denotes intense suffering, physical, mental and psychologi-
cal, aimed at forcing someone to do or say something against his or her will. It
means breaking down under severe physical pain and extreme psychological
pressure. The suspect is detained in some isolated place beyond the reach of
family, friends and legal assistance, Interrogators control every thing, even life.
For obvious reasons, torture is not called torture by those who practice it. It goes
under the names of "sustained interrogation*', "questioning" or "examining".
Whatever the name, brutalisation is the result always.
The phenomenon of torture is very old. Until the end of eighteenth century,
physical torture was legal and officially admitted as a method of interrogation in
many countries. 3 It was only after the Second World War that the torture, just like
other modes of violation of human rights, figured prominently and became a
matter of international concern. The prohibition of torture (and other cruel,
inhuman or degrading treatment) has been advocated ever since the adoption of
the Universal Declaration of Human Rights 1948 and the Geneva Convention
1949. But is was only in 1984 that the UN General Assembly for the first time
adopted the convention against torture. The convention, beside other things,
carries the definition of torture. 4 It defines torture as follows:

For the purposes of this Convention, the term fc 'torture" means any act by
which severe pain or suffering, whether physical or mental, is intention-
ally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or
a third person has committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official acting in the official capacity. // does
not include pain or suffering arising only from, inherent in or incidental •
to lawful sanctions.4*

The definition is broad in scope as it takes into consideration the physical as

well as mental pain or suffering of the victim. Hut the definition explicitly
excludes "pain or suffering arising... from... lawful sanctions." This exclusion
creates a serious loophole. Under the convention torture is allowed to continue as

2. The Hindustan limes (Sew Delhi) 6 M<i> 19') *, p. 5

3. Nigel Rod ley, The Tieatment ofPn\onei\ utuln International Liw 7 (1987).
4. United Nations, Resolutions and Decisions adojned h\ the Gene nil Assembh duuna, Fust Part
of its Thirty-ninth Session, pp. 381-82 (1985).
4a. Ibid. (Emphasis added.)
168 JOURNAL OF THE INDIAN IA W INSTITUTE [Vol. 36 : 2

prescribed by the law of the land. It means that the "lawful" torture may continue
in the states which are parties to the convention. The definition for example
accommodates many Islamic states having legislations which provide for certain
brutal physical punishments, i.e., public whipping, execution by lynching or
amputation of limbs. The definition obviously does not cover these so called
lawful sanctions under the term "torture". It is uncalled for and this loophole
should be plugged at the earliest.
Ill Custodial torture: problem

(1) Increase in crime: justification?

What is more reprehensible and lamentable is the move to legitimise and
justify custodial torture than torture itself. Custodial torture has become a system-
atic and state controlled-phenomenon. According to one study,5 an expert from a
"super power intelligence force" was called upon to train the policemen in the
' 'latest methods of torture during 1970-71*' .5a Senior police officers, bureaucrats
and politicians justify it as a ''necessary evil" to curb the growing crime rate in
the society. Though there are some enlightened police officials like Vijay Karan,
the former police commissioner of Delhi who not only openly condemned but
made their best efforts to curb custodial torture. But the police force in general
laugh away the very idea of giving up the third degree methods. They justify and
support its use on the following grounds:6
(/) The police force is facing the problem of inadequate strength compared
to the increasing rate of crimes. Their task is overwhelming which goes
far beyond the duties of enforcing the law and controlling the crimes.
They hardly find adequate time for proper investigation and detection
of crime. So the adoption of third degree methods becomes inevitable.

(//) Hardened and professional criminals understand the language of vio-

lence only. Third degree method is the only possible method to obtain
truth from them as they would not reveal it otherwise.

(Hi) There is no harm in using violence against criminals like terrorists,

dacoits and arsonists as they use the same against the society.

(iv) Do they have any rights? If so, why should the police respect their rights
when they do not respect the rights of innocent people.

(v) The legal procedure is very complicated and always in favour of the
criminals. The police has to work under heavy legal odds. They have to

5. Sudip Majumdar, "Death in Police Custody" in A.R. Desai led.), Violation of Democratic Rights
in India, vol. I (1986).
5a. Id. at 307.
6, Based on interviews with some senior police olfieials on the rendition of anonymity
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 169

establish the crime in the court beyond doubt. This leads to the "solv-
ing" of the case by any means.

(vi) There is virtually no facility tor the scientific investigation and detec-
tion of crime in most of the police stations. So the police has to rely on
third degree methods.

(vn) Detection of the crime and conviction in the court is considered by the
society as the proof of efficiency of a police officer.

(viii) People want the police to prevent and control crime but are unwilling
to cooperate. They seldom give witness against the criminals. So the
police has to elicite information about the crime from the criminal
concerned which is seldom voluntary.
Very often public also expects the police to give sound thrashing to the so-
called goondas and bad characters. In the case of pick-pocketing and property
theft, the victims urge the police to adopt third degree methods on the suspect and
when this is not done, the police is accused of bribery, corruption and incompe-
tence.7 The most glaring and gruesome example of custodial torture with the local
public support behind it, is the Bhagalpur blinding episode of 1980 when the
policemen punctured the eye balls of the suspects in their custody with a sharp
edge instrument and poured acid resulting in their complete blindness
Another factor which leads to the custodial torture is pressure from various
quarters under which the police works. When some ghastly or brutal crime takes
place, there is constant pressure from the seniors to apprehend the criminals
quickly. The good confidential report and promotion of a policeman is influenced
by the number of cases he "solves" \ Besides, there is combined pressure of the
government, media and the public. Under such pressure the policemen often tend
to use-the third degree methods to get the quick result at the risk of magisterial
enquiry, transferudismissal from the service and even criminal prosecution.
The display of this inconsistent attitude towards custodial torture leads to the
dangerous tendency of its institutionahsation. Not only it is being justified as
lesser or necessary evil for the so-called larger social good but it seems to assume
international dimension as one study8 reveals:
And torture is not simply an indigenous activity: it is international;
foreign experts are sent from one country to another; schools of torture
explain and demonstrate methods; and modern torture equipments used in
torture are imported from one country to another 8"
If this dangerous tendency is to be averted, custodial torture should be
eliminated completely. It cannot be justified even as "necessary or lesser evil".

7. Government of India, The National Police Commission: Tiffh Report (NPC). p. 53 (1988).
8. Ann Dolan and Van Den Assum "Toiture and the 5 th I V Congress on Crime Prevention'
International Commission of Jurist, no. 14, (June 1975(.
8a. Id. at 55.
170 JOURNAL OF THE INDIAN LAW INSTITUTE [Vo\. 36 : 2

Because its constant use instead of bringing down the crime rate, brutalises those
who inflict it and victimises and terrorises the million innocents.
(2) National security v. human rights
Apart from the plea to tackle the hardened and professional criminals, denial
to the basic human rights like freedom from torture is sometimes justified on the
ground of national security. It is argued that the government is obliged to defeat
the terrorists, insurgents and arsonists who put innocent lives at risk and endanger
the national security by their violent and antinational activities. So it is entrusted
with wide-ranging powers to tackle such extraordinary situations. The deviation
from some rights and liberties is inevitable in such a situation.
Moreover, rights and liberties are not absolute, entirely free from any re-
straint, for that would lead to anarchy and disorder. Man can enjoy his rights only
in the state where civil and social order exists. He cannot enjoy his rights in a state
of anarchy. Thus the possession and enjoyment of all rights are subject to
reasonable conditions such as public health, peace and order, morals of the
community, decency and national security. Such reasonable ground of restrictions
on the individuals* fundamental rights find place in almost all the constitutions of
the world including the Indian Constitution.86 No one would disfavour such
reasonable restrictions on the rights of man. But there has been numerous assaults
on the individual's rights and liberties by the state in the name of national security
such as confiscation or nationalisation of private property; survelience through
wire-taping and mail opening; arbitrary search and seizure; arbitrary arrest and
detention for indefinite period; suspension of habeas corpus; summitry trials and
execution; denial of appeals to the judiciary; resort to torture; political intern-
ment; concentration campus and even liquidation of suspects/accused persons in
custody; so on and so forth.
Thus, there appears antagonism between the rights of man and the concept of
national security. But they in fact are linked together. There is a close relationship
between the two. A charter of rights has no meaning to those persons who
constantly live in anarchy and disorder. People's rights may not last long when the
country is in peril due to either external attack or serious internal disorder. In a
word, human rights cannot last long without national security. On the other hand,
the deprivation of individual's basic fundamental rights by the authoritarian or
dictatorial regimes for a long time breeds anger, frustration and disillusionment
which ultimately leads to rebellion and internal disturbances shaking the very
foundation of national security. So the hundred dollar question is - how far and
how much can the individual's rights be sacrificed to promote national security.
This question cannot be answered properly unless the concept of national security
is properly understood and is distinguished from the security of regime/individual.
Like individual, every state has the inherent right of self-defence. This right
is available to the state in any situation which threatens its existence. Accordingly,
the state may exercise abnormal powers during an emergency and deviate from its
normal obligation to protect and enforce the human rights of its citizens. This right

Sb. See, art. 19 (2-6).

19941 CUSTODIAL TORTURE IN LAW AND PRACTICE 171

of derogation of the state is acknowledged under many international instruments

of human rights.9 But as human rights and fundamental freedoms are not absolute,
the right of derogation of the state is also not an absolute one. There are certain
rights which must remain unaffected even during the public emergency. Emer-
gency or no emergency these rights cannot be suspended. These "non-derogable,>
rights, right to life and freedom from torture being two of them, find place in
international human rights instruments.10
The state can exercise the right of derogation to meet the threat to national
security. But quite often national security is identical either with an individual's
or regime's security and states often deviate from their obligations vis-a-vis
human rights to ensure the individual's/regime's security. The International
Commission of Jurists (ICJ) rightly notes:11
There rs a tendency for some government to regard any challenge to their
authority as a threat to '*the life of the nation". This is particularly true
of regimes which do not provide any lawful means for the transfer of
political power and which in consequence are inclined to regard any
criticism of the government as an act subversive of public order.11"
The study continues:
Having dismantled the legal machinery for the protection of the citizens,
they (individuals/regimes) frequently permit their security forces to abuse
the i4non-derogable" rights, including the right to life and freedom from
torture or other cruel, inhuman, or degrading treatment or punishment.
There result such inhuman practices as anonymous arrests, secret deten-
tions, disappearances, extrajudicial killings, and systematic practices of
torture.11*
Thus what is required is to distinguish national security from the individual's/
regime's security. The rights are permitted to be derogated under the international
law to defend and safeguard the national security but not individuals'/regime's
security. What is further required is the proper balancing between the rights of
man and the requirements of national security.
The national security should not become an excuse for the denial of the basic
and non-derogable rights like right to life and freedom from torture. Under no
circumstances, however, grave it may appear, should these "non-derogable"
rights be allowed to derogate. Because once there is derogation for an apparently

9. See, e.g., International Covenant on Civil and Political Rights 1978, art. 4(1); The European
Convention on Human Rights 1953, art.15(1); and American Convention on Human Rights 1978, art.
27(1). For texts, see, A.H. Robertson, Human Rights in the World 202-4 (Manchester, 1972).
10. See, e.g., International Covenant on Civil and Political Rights, art. 4(2); the European Conven-
tion on Human Rights, art. 15(2); and American Convention on Human Rights, art 27(2). See. Robertson,
supra note 9 at 204, 229 and 253.
11. International Commission of Jurists, State of Emergency: Their Impact on Human Rights (1983).
lla. Id at 1.
lib. Ibid.
172 JOURNAL OF THE INDIAN LAW INSTITUIE [Vol. 36 : 2

justifiable cause, there is always a tendency among the wielders of power, in order
to perpetuate their power, to continue the derogation of human rights either in the
name of national interest or the security of state. History is full of examples of the
disastrous consequences of such derogation.
IV Police, upholder or violator of law
Law in all countries authorises the police to use force under certain circum-
stances. This authority is, in fact, basic to its role and cannot be questioned. It is
a part of policeman's legal mandate. The police have to protect the society from
the acts of murderers, armed robbers, habitual criminals, arsonists and terrorists
and make it a safe place to live in. Thus apprehension of the gang of dacoits, arrest
of an accused who violently defies arrest, etc., are the situations which call for a
measure of counter violence by the police.
But the police has certainly no right to inflict brutality on a helpless; person
under its custody ignoring every law of the land In a democratic set-up like India,
people and not the police are the real masters as the sovereign power is vested with
them. The police is simply the agent of the government which is ultimately
accountable to the people. So the police too is accountable to the people for all
their acts.
The authority of the police to use force in all circumstances is limited by the
specific laws of the country. Like other citizens, the police (along with the
government) is subject to die rule of law and rule of law means restraint on both
rulers and the ruled. Hence the police is accountable and can be arranged by the
law for its transgressions. Every policeman is responsible for the act which he does
irrespective of whether he does it under the orders of a superior officer or on his
own. Thus if a policeman inflicts torture on a person under his custody which is
unlawful, he is liable to prosecution under the law.
In a democratic set up everyone is governed by the rule of law. The police is
under the law and not above it, for he who enforces law must live by the law. The
police-the enforcer of the law-must not be allowed to violate the law even to
apprehend the criminals and secure the conviction. If they are permitted to secure
conviction by breaking the laws, they will spoil the law. How can they be allowed
to break the laws while dealing with the law breakeis? The protection of the basic
human rights of the people is more important than to secure few convictions by
illegal means.
The code of conduct for police in India, adopted at the Conference of
Inspector - Generals of Police in 1960 also deals with this issue. Clause I states
that the police must bear faithful allegiance to the Constitution of India and
respect and uphold the rights of the citizens as guaranteed by it. Clause 2 states
that the police is essentially a law enforcement agency, and it should not usurp the
function of judiciary and sit in judgment on cases. Clause 3 states that under no
circumstances should it punish the guilty which is the function of judiciary.12
But in India, the police lacks the sense of accountability. There is growing

12, N.P.C., Second Report 12 (Aug. 1979).

1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 173

tendency on the part of police to act unlawfully. The result is horrifying cases of
brutal custodial torture.
V Rights of suspects/accused persons

(1) Under international law

During the emergence of nation states and the establishment of authoritarian
and despotic regimes towards the close of the middle age, the state enjoyed
complete and conclusive authority over all persons living in its territory. What-
ever international law existed during that period, it was traditionally defined as
a law governing the behaviour of states in their relations with each other, rather
than as a body of law which prescribed the ways in which the states should behave
towards their nationals. The traditional thinking in international law was that
whatever sovereign state did to its citizens was its own internal affair and the
international community had nothing to interfere with it.13 The legal principle of
non-intervention in domestic affairs of another state, together with the principle
of absolute sovereignty, precluded any development in the international law of
human rights under which an organ other than the state itself would determine the
legality of its activities in respect of persons within its jurisdiction. However, later
on, particularly since the end of the First World War, certain group of persons (not
individuals as such) like minorities, refugees etc., began to enjoy certain rights
under the international law. But there was hardly any development in the field of
the international law of human rights between the two world wars.14
Under that condition, prisoncrs/suspccts/accused persons did not enjoy any
rights vis-a-vis state against custodial torture. No attention was paid to their
miserable condition of incarceration. The Second World War not only witnessed
the worst kind of torture and tyranny on the countless innocents but also mani-
fested the inadequacies of the concept of state sovereignty and the rules of
traditional international law. The war also awakened the world to the futility
of entrusting the protection of human rights of man solely to the internal
jurisdiction of nation states. It resulted in a wide-spread conviction that the
effective international protection of human rights was the essential condition
for international peace and security. The result was the emergence of interna-
tional law of human rights after the war. It came to be accepted that states may
not use the argument of domestic jurisdiction to mask the gross violation of
human rights.
With the creation of the United Nations in 1946, a process of law creation was
initiated which resulted in the adoption of several international declarations,
conventions and covenants seeking to define the basic human rights which the
international community endeavoured to protect and enforce. The rights of pris-
oners/suspects/accused persons were also listed in those instruments. So before
proceeding to examine their rights under the national law of India, it would be

13. H. Lauterpatcht, International Law and Human Rights (1968).

14. Rodley, supra note 3 at 1.
174 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 36 :*2

appropriate to look at certain important provisions of these instruments 15 relating

to their rights.
(0 Universal Declaration of Human Rights (1948) (articles 1,3,5,6,8,9,10
and 11); (ii) Standard Minimum Rules for the Treatment of Prisoners adopted
by the First UN Congress on the Prevention of Crime and the Treatment of
Offenders held at Geneva in 1955 and approved by the Economic and Social
Council by its resolutions 663C (XXIV), 1957 and 2076 (LXII) 1977. (Rules no.
30-34). (Hi) Draft Principles on Freedom from Arbitrary Arrest^ Detention and
Exile (1963) articles 10, 22(2), 24 and 26. (iv) Declaration on the Protection of
All Persons from being subjected to Torture and other Cruel Inhuman or
Degrading Treatment or Punishment (1975). (v) International Covenant on Civil
and Political Rights (1976), articles 6(1), 7, 9, 10 and 14-16. (vi) Optional
Protocol to the International Covenant on Civil and Political Rights (1976)
articles 2-5. (vii) Code of Conduct for Law Enforcement Officials (1979) articles
2-3 & 5-6. (viii) Convention against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment (1987).
As India has already signed or ratified the above mentioned instruments
except Optional Protocol and Anti-Torture Convention, the world community
expects the Indian government not only to include these rights in its national laws
but to implement and enforce them vigorously.

(2) Under Indian law

Indian law provides certain rights to the prisoners/suspects/accused persons
while in the custody. These rights are so fundamental that no one can lawfully
violate them. Unlike the International Covenant on Civil and Political Rights, the
Indian Constitution does not specifically provide any right against custodial
torture. However certain fundamental rights enumerated in Part III of the Consti-
tution are also available to them. These rights are mainly contained in articles 19,
20, 21,22, 32 and 226 of the Constitution. Besides these constitutional rights, they
enjoy certain other legal rights under the Indian Penal Code, Criminal Procedure
Code and the Indian Evidence Act 1X61. Various police and prison Acts and
manuals also carry certain rules and regulations against custodial torture. The
human rights conscious Indian Supreme Court in a number of cases has not only
acknowledged these rights but expanded their scope through the process of
judicial activism giving new and liberal interpretation.
What are those rights?

(i) Right to life

One of the most basic and fundamental right of the prisoners/suspects/accused
persons is the right to life. In fact, ii is the basis of all human rights and the
sanctum sanctorum of the constitutional temple. 11 there were no right to life, there
would be no point in having the other rights. Article 6 of the International

15. For texts, see, TTN\ Human Rights: A ( omptlatwn on International Instalments 1-2, K-9, 77 and
82-83 (198^)
1994J CUSTODIAL TORTURE IN LAW AND PRACTICE 175

Covenant on Civil and Political Rights characterises the right to life as inherent',
to emphasise its primacy. The covenant further makes right to life non-derogatory
undei article 4(2). Right to life is conferred by the Constitution under article 21.
Before the enactment of the 44th Amendment Act of 1978, the right to life along
with other fundamental rights was a derogable right. In ADM Jabalpur,16 the
Supreme Court took the view that if the President had declared a state of
emergency in the country and has also suspended the right to move the court for
the enforcement of any right, the right to life under article 21 could also be
suspended. The 44th Amendment Act engrafted an exception viz., that such
declaration suspending the right to move any court for the enforcement of
fundamental rights shall not cover article 20 or 21 of the Constitution. 17 The result
is that the right to life has been made a non-derogable right like under article 4(2)
of the covenant. Let us see what article 21 of the Constitution speaks about. It
reads inter alia that no person shall be deprived of his life or personal liberty
except according to procedure established by law.
This article lays down that a person can be deprived of his life or personal
liberty under a law enacted by the competent authority laying down a specific
procedure for such deprivation. The Supreme Court got the opportunity to exam-
ine the "procedure established by law" of the article during the early years of
independence. In Gopatan,n the court had to decide whether the phrase "proce-
dure established by law" meant a "fair and reasonable procedure" or a mere
semblance of procedure prescribed by the state for the deprivation of life and
personal liberty of the individual. It held that the "law meant a law made by the
Slate and the courts were noi competent to enquire into the reasonableness to or
otherwise of that law." 18 * The court refused to uphold the plea of the defence that
the procedure established by law should meet the standard of reasonableness
under article 19. This judgment was a setback to the right to life and personal
liberty.
The issue was again raised in Maneka Gandhi19 in 1978. The petitioner
raised the same contention as was raised in Gopalan. Reversing its narrow
view, the Supreme Court interpreted article 21 to mean that the procedure for
deprivation of life and personal liberty could no longer be any procedure. It
held that the procedure contemplated in article 21 must be "right, just and
fair" and "not arbitrary, fanciful or oppressive", otherwise it would be no
procedure at all and the requirement of article 21 would not be satisfied". 19 *
In other words the procedure must be a reasonable law and not just any enacted
piece of legislation.

16. ADMJabalpur v. S. Shukla. A.I.R. 1976 S.C 1207.

17. See, art, ^59 a.s amended:
"When the Pioclamation of Emergency is in opeiahon. the Pics idem may by older declare that the
right to move to any couit for enforcement ot such ot (the rights conferred by Pait III (except article
20 and 21)1... shall remain su:>pended for the period dining which pioclamation is in force." See.
Constitution of India 194 (1983).
18. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C 27.
18<7. Id. at 28.
19. Maneka Gandhi v. Union of India, A I.R 1978 S.C. 65 v
19a. Id. at 660.
176 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 36 : 2

The term life in article 21 also received wider interpretation, In Kharak

Singh,20 the Supreme Court held that the term fc life'" in article 21 meant not
merely the continuance of one's animal existence but a right to the possession of
each orgafrof the body. Thus it includes the inhibition against the deprivation of
any of the Jimbs and faculties of life. The provision further prohibits the mutila-
tion of the body by the amputation of an arm or leg or the pulling out of an eye
or destruction of any other organ of the body. Thus every limb or faculty through
which life is enjoyed is protected under article 21. It includes the faculties of
thinking and feeling also.
The Supreme Court in Francis Corhe}1 went further to say that ''life" under
article 21 cannot be restricted to mere animal existence. It means something much
more than just physical survival. The right to life in the opinion of the court means
the right to live with human dignity and all that goes with it, viz., the basic
necessities of the life such as adequate nutrition, clothing, shelter and facilities for
reading, writing and expressing oneself, etc. This interpretation of the term k iife"
was reiterated by the Supreme Court in other eases as well.32 The apex court thus
elevated immunity from torture to the status of a fundamental right under article
21 though it is not specifically enumerated as a fundamental right under the
Constitution.
Custodial torture is also a legal offence under the Indian Penal Code, Criminal
Procedure Code and the Code of Conduct of the Police. The Indian Penal Code
lays down that the third degree treatment or torture which causes hurt to any
person while in custody is an offence punishable with 10 years of imprisonment.23
Death due to torture in custody is murder under the Indian Penal Code for which
the maximum punishment is death penalty. Section 29 of the Police Act 1861 also
lays down that torture in custody is a punishable offence.24 In addition, various
police Acts at the state level prescribe the custodial torture and direct the station
house officer (SHO) or police choki-m-churge to keep the suspects safe from any
physical assault while in the police custody.2''
(ii) Right against self-incrimination
One of the motives of torture is to extract confession from the suspect for the
crime he is alleged to have committed. He is subjected to various kinds of constant
torture until he breaks down and finally makes confessional statement. However
he has right to refuse to answer all self-incriminatory questions. The presumption
of innocence until proved guilty according to law. is the right of the suspect/

20. Kharak Smgh v. State of U.P., A.I.R 1978 S.C. 1259.

21. Francis Corhe Mulhn. v. The Administrator Union Teirttoi\ of Delhi, A.I.R. 1981 S.C. 746.
22. See, e.g., People's Union for Democratic Rights v. Union of India. A.I.R. 1982 S C 1973: SLF
v. Union of India. A.I.R. 1984 S.C. 802; Suml Bah a v. Delhi Admmist,atton I A.I.R 1978. S.C. 1675;
SunilBatra v. Delhi Administration II, A.I.R. 1980 S.C. L W
23. Ss. 330, 331.
24. R.B. Sethi, The Police Acts 83 (1959)
25. See, e.g., Bombay Police Act 1951. ss 66(b) <S, (c): Calcutta Police Act 1866 ss. l o t (//), (i);
Mysore Police Act 1908. ss. 49 0b) and (c): and Traveiicore-Cochm Police Act 1951. s. 220) and (k),
in Sethi, id. app. 2, 4. 7 and 8 at 217, 264. 351 and ^7ft.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 177

accused person guaranteed under International Covenant of Civil and Political

Rights under article 14(2).
The doctrine of presumption of innocence is also the basis of Indian jurispru-
dence. This is a very important right provided to the accused/suspect person under
the Indian Evidence Act 1872.
Right against self-incrimination is again listed in the covenant under article
14(3)(g). The Indian Constitution also confers this right to the suspect/accused
person under article 20(3). It is his constitutional right of not to be compelled to
be a witness against himself. It reads as follows:
No person accused of any" offence shall be compelled to be a witness
against himself.
Sections 24, 26 and 27 of the Indian Evidence Act and sections 162, 163(1),
315 and 342(a) of Criminal Procedure Code also prohibit forced confession or
testimony as inadmissible in the court of law and protect the suspect/accused
person against such confession.
The Supreme Court widely elaborated this right in its various judgments. The
compulsion is held by the apex court to have taken place if the accused "is beaten,
or starved or tortured in any way1'26 during the course of investigation by the
police. But this right of the accused was fully dealt with by tlie Supreme Court in
Nandini Satpati?1 The court speaking through Krishna Iyer J. laid down a few
propositions intended to act as concrete guidelines to provide protection to an
accused person in police custody. It upheld the right against self-incrimination
and right to silence of the accused. It held that if there is any mode of pressure,
subtle or crude, mental or physical, direct or indirect, but sufficiently substantial,
applied by the police in obtaining information from the accused, it becomes
compelled testimony violative of the right against self-incrimination.
The court also held that compulsion may be presumed in the case of custodial
interrogation by the police *'unless certain safeguards erasing duress are adhered
to." It further observed that the police ought to permit a lawyer to assist the
accused if he can afford one. However, it did not opine that the state is under an
obligation to provide a lawyer to the accused if he is poor. It also acknowledged
the right to silence against self-incrimination. The accused is not bound to answer
self-incriminatory questions. But he does not have right to complete silence. In
other words non-incriminatory questions can be asked and the accused is k'bound
to answer where there is no clear tendency to criminate/' 28
Thus the right against self-incrimination is guaranteed under the international
law as well as municipal law. But this right is widely violated by the police in most
of the third world countries including India. Once captured, the police considers
even an innocent person a criminal and every technique of torture is used to extract
confession for the alleged crime, though the involuntary confession made before
the police is inadmissible in the court of law.

26. YusufAli v. State of Mahaiashtra. A.I.R. )96S S.C. 150.

27. Nandini Satpati v. P.L Dhani, A.I.R. 1978 S.C. 1075.
28. Id. at 1076.
178 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 36 : 2

(Hi) Right to be informed of ground for arrest

It is also a very important right of the accused person guaranteed under the
International Covenant on Civil and Political Rights.28* Under the Indian Consti-
tution, the arrested person whether arrested with or without warrant, has the right
to be informed of the ground of his arrest and the arresting authority is duty-bound
to communicate at its earliest, the grounds of such arrest to him. This right is laid
down under article 22(1) of the Constitution which reads, inter alia :
No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds of such arrest***.
The Supreme Court in many cases opined that though it is not obligatory on
the part of the authorities to furnish full details of the alleged offence, sufficient
particulars must be furnished to enable the arrested person to understand why he
has been arrested. Similarly, the words * 'as soon as may be"' according to the court
means as early as is reasonable in the circumstances of the particular case. So no
definite period of time can be laid down as reasonable in all cases, the apex court
opines But it will be possible for the court, in a proceeding for habeas corpus,
to pronounce whether the arresting authority has communicated the grounds of
arrest^'as early as reasonable in the circumstances'', and if it finds that reasonable
time has already passed and the arrested person has not yet been informed of the
grounds of his arrest, the court would order his immediate release.29
This right gives the arrested person an opportunity to apply for bail or file a
writ petition for his release, or to prepare any other defence in time.
(iv) Right to consult a legal practitioner
Article 22(1) of the Constitution of India also confers on the arrested person
the right to consult the legal practitioner of his own choice and to be defended by
him. "No person who is arrested shall ... be denied the right to consult and to be
defended by a legal practitioner of his choice/' The International Covenant on
Civil and Political Rights also provides the same right to the accused person under
article 14(3)(Z?). This right begins as soon as he is taken into police custody in
relation to criminal or quasi-criminal proceedings. Later the Supreme Court in one
of its rulings extended the operation of this right, "to any accused person under
circumstances of near-custodial interrogation."30 The court held that while under-
going interrogation in the police custody he has right to have his lawyer by his
side.
But in the Indian Constitution, there is no specific provision which provides
the right to free legal aid to the accused person. In Janardhan Reddy,31 the
Supreme Court specifically held that article 22(1) of the Constitution does not
provide the accused person the right to the services of a legal practitioner at the

2%a. See, art. I4(3)(a).

29. D.D. Basu, Shorter Constitution of India 156-57 (1979),
30. Naiulini Satpati, supra note 27 at 1025.
31. Janardhan Reddy v. State of Hyderabad, A.I R. 1951 S.C. 227.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 179

state cost. There is of course a directive principle of state policy contained in

article 39-A which requires the state to provide free legal aid by suitable legisla-
tion or schemes so that opportunities for securing justice were not denied to a
citizen on account of his economic or other disabilities. However, a directive
principle of state policy is not enforceable in a court of law and therefore it does
not confer a constitutional right to the accused person to secure free legal
assistance at the cost of the state.
The Supreme Court later filled up this constitutional gap through the creative
judicial interpretation of article 21 in number of cases. In its rulings in Hoskot,n
and Hussainara Khatoon,^ the apex court held that a procedure which does not
make legal services available to an accused person who is too poor to afford a
lawyer and who would, therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as reasonable, fair and just procedure
guaranteed under article 21. The court thus spelt out the right to legal aid of the
poor accused person from the language of article 21. 34
However, inspite of these constitutional provisions and the rulings of the apex
court, the police usually refuses to allow a lawyer to meet and interview the
accused person in custody unless the court intervenes on his behalf.
(v) Right to be produced before magistrate within 24 hours of arrest
This is also a very important and valuable right of the arrested person
constitutionally guaranteed under article 22(2) of the Constitution of India.
Section 57 along with section 167 of the Criminal Procedure Code 1973 also
require the police to produce the suspect/accused person before the nearest
magistrate within 24 hours of his arrest. The magistrate can either order release
on bail or remand to the police custody to facilitate the further investigation of the
case. The maximum period for the police remand length is 15 days.
Thus every arrested person must be pioduced before the nearest magistrate
within 24 hours of his arrest and he must not be detained in custody beyond 24
hours without the permission of the magistrate. This right of the accused person
is of great importance as it ensures that the police cannot arbitrarily keep the
accused person indefinitely. Detention beyond 24 hours without being produced
to and authorised by a magistrate is illegal. If the arrested person has spent 24
hours in the police custody without being produced before a magistrate he is
entitled to be released forthwith.
The purpose of this provision is to get the legality of the arrest and detention
judicially examined without unnecessary delay and to put a limit on the police
power to arrest. This right of the accused person has been constitutionally
guaranteed and is inviolable by ordinary legislation.
It is the discretion of the magistrate, exercising his judicial mind to either
release the accused person on bail or remand him to police custody. While doing
so he has to examine whether the arrest of the person produced before him is legal

32. M.H. Hoskot v. State of Maharashtra, A.I.R. 1978 S.C. 1548.

33. Hussainara Khatoon v. State of Bihar. A.I.R. 1979 S.C. 1819.
34. Ibid.
180 JOURNAL OF THE INDIAN IAW INSTITUTE [Vol. 36 : 2

and in accordance with the law. But an application of the police for a remand
should not be treated a matter of routine and of little importance. The magistrate
should judiciously exercise his discretionary power taking into account full
particulars and circumstances of each case. He should ascertain from the accused
whether he has been kept in the custody for more than 24 hours or not, and whether
he has been tortured by the police. If there are evidence of torture, he should refuse
to commit him to police remand. If the circumstances of the case do not neces-
sitate the police lock-up, the accused should be sent to the judicial lock-up as most
of the torture for exhorting confession takes place after getting the accused in
police remand.
(vi) Bar against handcuffing
Suspects/accused persons in handcuffs are paraded on the road by the police
while taking them to the court or jail. They are made to stand handcuffed in the
court for hours waiting for their turn. This makes them feel humiliated and puts
them in a lot of inconvenience. A person is to be considered innocent unless
proved guilty beyond doubt by the court is an axiom of our legal system. But a
person stands punished by this humiliation though he may be subsequently
acquitted by the court.
The Supreme Court examined the validity of handcuffing in the light of the
right of personal liberty in Prem Shankar Shukla3- where the court observed:
Handcuffing is prima facie inhuman and therefore unreasonable, is over
harsh and at the first flush, arbitrary. Absent fair procedure and objective
monitoring, to inflict 'irons' is to resort to zoological strategies repugnant
to Art. 2L 35 "
The court also examined the rules of the Punjab Police Manual 1953 relating
to the handcuffing of the prisoners. The Manual35*' states that every individual
accused of non-bailable offence, punishable with three years prison term, shall be
routinely handcuffed. The court declared this rule as unconstitutional, being
violative of articles 14, 19 and 21 of the Constitution. It observed that the nature
of the accusation of the accused is not the criterion for handcuffing. The basis of
handcuffing should be the clear and present danger of escape and breaking out of
the police control. This too must be based upon clear and unambiguous evidence
and not mere assumption.
The court also dealt with the question as to who would decide whether an
accused be handcuffed or not. It held that undoubtedly the matter lies within the
jurisdiction of escorting authority. But there is a room for the supervision of that
authority and undoubtedly the courts can exercise that supervisory jurisdiction. It
laid down that where in extreme cases handcuffs have to be put on an accused, the
escorting authority must inform the court and record contemporaneously the

35. Prem Shanker Shukla v. Delhi Administration, A.I.R. 1980 S C 1535.

35a. Id. at 1536.
35£>. See, para 26.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 181

reasons for doing so. For continuance of handcuffing police must get judicial
approval. In case the court does not grant approval, handcuffs must at once be
removed. It also directed the magistrate concerned to enquire from the accused,
as a rule, whether he has been subjected to handcuffs or other "iron" treatment
and if he has been, the escorting authority should be asked to explain the action
forthwith in the light of this judgment.
VI Vulnerable sections: women, worst victims
When the inmates of the custody happen to be the women, the vulnerable
section of the society, they face additional and unspeakable mode of torture like
pressing lighted cigarettes on delicate parts, inserting iron rods or stick along with
chilli powder in their private parts, torturing the children in the presence of
mothers etc. They are subject to the hazard of molestation and rape not only by
the custodial staff but also by the male inmates of jails. The police men did not
spare even minor girls from torture as is evident b> the Mathura Rape case.
The Constitution of India under article 15(3) allows the union and state
governments to make special provisions in order to safeguard and protect the
interests of women. The Constitution was amended in 1976 to make it a funda-
mental duty of every citizen to renounce practices derogatory to women under
article 51A(e). There are provisions in the criminal law granting special protection
to women against custodial torture. Some of which are as follows:
Section 51(2) and 100 of the Criminal Procedure Code say that if a woman
is to be searched by a police officer in connection with a crime "the search shall
be made by another woman with strict regard to decency."
The Code also lays down that the woman must be interrogated at her resi-
dence. "No male person under the age of 15 years or woman shall be required to
attend at any place other than in which such male person or woman resides." 36
Therefore, a woman should not go to the police station for interrogation or to give
evidence. The concerned police officer must meet her in her house.
The amendment to section 375 of the Indian Penal Code has made it manda-
tory that women not be arrested during night.
In order to curb the menance of custodial rape, the Criminal Law (Amend-
ment) Act 1983 amended of the Indian Penal Code37 providing deterrent punish-
ment in such cases. It states that a public servant convicted on a charge of
custodial rape... as in police station, jail or hospital... will be prosecuted and
punished with a ten-year or even life imprisonment
Inspite of all these stringent provisions in the criminal law, the custodial
torture of women goes on unabated. They are mistreated, molested and raped in
police stations, jails and military interrogation centres.
Greatly concerned with the pathetic situation of women in custody, the
government set up in 1986 the National Expert Committee on Women Prisoners
under the chairmanship of Justice V.R. Krishna Iyer. The committee was asked

36. S. 160 (1).

37. S. 376,
182 JOURNAL OF THE INDIAN LAW INS TITUTE FVol. 36 : 2

to study the handling of women offenders; to review their custodial conditions and
treatment; to suggest measures to ensure fair and proper care to them and to
improve the system. In its report,38 the committee reported various methods of
torture met out to the women in which women police also participated. It also
suggested various reforms. It recommended the formation of a national policy on
custodial justice to women.
So far its recommendations remain unimplemented except that the govern-
ment has set up a national commission on women to look into the various matters
relating to women. The governments are notorious for appointing commissions to
go into the prblems and in response to their recommendations, appointing yet
another commission, paying little attention to implement their recommendations.
Most of the findings and recommendations are "under study". So commissions
or no commissions, women continue to suffer. It is women themselves who have
to break out of the present system and get involved in solving their problems.
There is no doubt that one of the thrust area has to be education. In the long
run, it is education which strengthens women and enables them to fight against the
atrocities. An educated woman, fully aware of her rights, is not as vulnerable to
custodial harasment as her illerate sisters. Women NGOs can also play an
important role to make them aware of their rights. These women bodies though
playing an important role are basically urban-based, fhey should widen their
network in rural and tribal areas of the country. Because most of the atrocities on
women which go unreported, are committed in these areas. Women organisations
can set up legal aid cells there. They can cooperate with the police to ensure the
proper registration of complaints and the follow-up actions.
VII Supreme Court: crusader against custodial torture:
a ray of hope in darkness
The Constitution of India under article 32(2) confers the power on the
Supreme Court to issue writs for the enforcement of the fundamental rights. The
citizens also enjoy the right to move the Supreme Court directly for the enforce-
ment of their fundamental rights under article 32(1) of the Constitution.39 The
Supreme Court is thus the protector and guarantor of the fundamental rights, the
right to life being the most important one.
The apex court is very conscious of its responsibility to protect the poor and
helpless from the custodial torture. Any victim of custodial torture can move the
court directly for the redressal of his grievances merely by writing a letter. The
Supreme court has started treating the ordinary letters of inmates as writ petitions
and issued notices to the government, police or jail authority.
In the beginning, the Supreme court was not ver\ responsive to the protection
of the rights of the prisoners. It examined the issue immediately after the
commencement of the Constitution. In Gopalan,40 it viewed that the prisoners are

38. For details, see, Government of India. Ministry of Human Resource Development. Repot t of the
National Expert Committee on Women Prisoners IV86-87. pp. 31 2-20 (1987).
39. The Constitution confers similar powei on the state High Courts under ait, 22b.
40. Gopalan. supra note 18.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 183

non-persons and fundamental rights under the constitution are not available to
them by their being incarcerated. The court declared that a person loses his right
to personal liberty by way of detention under valid law enacted by a competent
legislature, and so long as he remains under such detention, he ceases to be
entitled to enjoy his other fundamental rights.
A welcome change in the position was made in 1966 in Prabhakar,4] when the
court held that conditions of detention cannot be extended to deprivation of other
fundamental rights consistent with the fact of detention. Again the court asserted
in DBM Patnaik42 that the mere detention does not deprive the convicts of all the
fundamental rights they otherwise possess.
The positive attitude of the court received a serious jolt during the dark days
of emergency when the enforcement of a number of fundamental rights including
right to life and personal liberty was suspended by the Presidential order. The
Supreme Court in Jabalpur4- opined:

So long as the order of the President under Art 369 during the emergency
suspending the right to enforce Art 21 remains in force, no person has any
locus standi to move any writ petition ... to challenge the legality of an
order of detention on the ground that the order is not under or in
compliance with the Act or is illegal or is vitiated by mala fides, factual
or legal or is based on extraneous consideration.

The Supreme Court again reiterated this stand in Union of India v. Bhanu
Das.44 It held that it was not open to anyone to challenge the validity of any law
on the ground of violation of fundamental rights suspended by the Presidential
order and that the Presidential order unconditionally suspended the rights and
therefore it imposed a blanket ban on the enforcement of these fundamental rights.
Thus, during the emergency the fundamental rights of the prisoners received
serious set back due to the negative attitude of the Supreme court's attitude after
the emergency. It shed its passivity and started unholding the individual's basic
rights and liberties. The new judicial activism was evident in a number of its
judgments delivered in the post-emergency era. It not only treated article 21 as an
armour protecting life and personal liberty against any unreasonable or unjust
infringement but gave a new and wider interpretation of the right to life. This right
soon expanded to encompass the right to dignified treatment in custodial institu-
tions.
The Supreme court in a number of cases acknowledged the rights of the
prisoners/suspect persons/accused and directed the prison authority and police not
to violate their rights and refrain from custodial torture. It opined that by virture
of being suspect/accused they do not cease to be "persons". They continue to be
"persons" with their basic fundamental rights in the eye of law despite serious

41. Prahhakar v. State of Maharashtra. A.I.R. l*>66 S.C. 424.

42. DliM Patnaik v. State of A.P.. A.I.R. 1971 S.C. 2092.
43. Jahalpur, supra note 16.
44. Union of India v. Bhanudas, A.I.R. 1977 S.C. 1027.
184 JOURNAL OF THE INDIANIAWINSTITUTE [Vol 36 : 2

charges against them. Dealing with the rights of the accused persons, the Supreme
Court in DBM Patnaik, observed:
Convicts are not by mere reason of conviction, denuded of all their
fundamental rights which they otherwise possess", and "no iron curtain
could be drawn between the prisoner and the Constitution".45
The court further observed that no person, not even a prisoner, could be
deprived of his life or personal liberty except according to the procedure estab-
lished by law. Sunil Batra I46 is another important milestone in the field of prison
justice and prisoners' rights. Delivering the far-reaching judgment, the court held
that the prisoners are entitled to all fundamental rights consistent with their
incarceration and the legal regime of prison is subject to constraints of legality and
constitutionality.
The issues of custodial torture and the role ot judiciary in protecting the
prisoner's rights were again dealt with by the Supreme Court in Sunil Batra II.41
Sunil Batra moved the apex court to complain against the jail warden's brutal
assault on a fellow prisoner, Prem Chand. In its judgment the court again stated
that prisoners are persons in the eye of law and prison is a part of Indian Territory
where rule of law prevails.
It not only struck down handcuffing of undertnals except as last resort and for
reasons recorded in writing, it also suggested many prison reforms. Sunil Batra
displayed judicial concern for the miserable condition of the prisoners to such an
extent that the Chief Justice of India, M.H. Beg along with Justices Krishna Iyer
and Kailasham visited the Tihar jail on 23 January 1978 for the first time in the
history of the court to ascertain the actual conditions there. Later the Chief-Justice
prepared the memorandum to be used as a basis for discussion in the court.
Another unique feature of the case was that the court permitted th& citizens for
democracy, a voluntary group concerned with human rights, to formally intervene
in the case.
While dealing with the cases of custodial torture in police stations the
Supreme Court came down heavily on the police for its atrocities. In Niranjan
Singh,4* it lamented that "the police instead of being the protector of law have
become the engineer of terror and panic the people into fear." The highest court
was again deeply disturbed by the police torture in Raqhubir Singh49, and rightly
observed:
[TJheir lives and liberty [of the common citizens| are under a new peril
when the guardians of the law gore human rights to death. The vulnerabil-
ity of human rights assumes a traumatic torturesome piognancy (when)

45. Patnaik. supia note 42 at 2094

46. Sunil Batra I, supta note 22,
47. Sunil Batra II, id. at 1579 and 1591.
48. Niranjan Singh v. Prabhakar Rajaram A I R. 1980 S.C 7S5,
49. Raghubir Singh v. State of Haryana, A.I.R. 1980 S.C. 1087
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 185

the violent violation is perpetrated by the police arm of the State whose
function is to protect the citizens and not to commit gruesome offences
against them....49fl
In Kishore Singh,50 the Supreme Court again passed the severe strictures
against the police force for its gruesome act of torture. It stated:
Nothing is more cowardly and unconscionable than a person in police
custody being beaten up and nothing inflicts a deeper wound on our
constitutional culture than a State official running berserk regardless of
human rights.503
It suggested the police to depend on "its wits and not on fists" and on
"culture and not on torture" for their investigation. The court advised the
government to "re-educate the police, to weed them out of their sadistic tenden-
cies and inculcate in them the respect for human person and punish those
responsible for custodial torture". It hoped that the police cruelty would receive
the serious attention of the government otherwise ''who will police the police."
Sheela Barse51 is another important case through which the court gave certain
directions to the police to improve the conditions of police lock-ups and to
minimise the possibility of police excesses on the suspects. Although the case
mainly deals with the question of the treatment of women in police lock-ups but
its directions provide protection to both female as well* as male inmates in the
police custody.
State of U.P. v Ram Sagar Yadav,52 is yet another important case through
which the Supreme Court recommended a change in the law of evidence so that
the policemen guilty of custodial torture could not escape from the conviction due
to the absence of evidence. Ram Sagar Yadav was done to death by the police
because he mustered up courage to complain against a police constable for
demanding bribe. The most important part of the judgment with far reaching
consequences is as follows:
Before we close, we would like to impress upon the government the need
to amend the law appropriately so that policemen who commit atrocities
on persons who are in their custody are not allowed to escape by reason
of paucity or absence of evidence. Police officers alone and none else, can
give evidence as regards the circumstances in which a person comes to
receive injuries while in their custody Bound by ties of a kind of
brotherhood, they often prefer to remain silent in such situations and
when they choose to speak, they put their own gloss upon facts and pervert
the truth. The result is that persons on whom atrocities are perpetiated by

49a. Id. at 1088.

50. Kishore Singh v State of Rajasthan, A.I.R 19S1 S.C. 625
50a. Id. at 628.
51. For details see, Sheela Barse v. State of Mahatashtia, A.I.R. 1983 S.C. ^78-80.
52. A.I.R. 19S5 S.C. 421.
186 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 36 : 2

the police in the sanctum sanctorum of the police station, are left without
any evidence to prove who the offenders are. The law as to burden of
proof in such cases may be reexamined by legislature so that handmaids
of law and order do not use their authority and opportunities for oppress-
ing the innocent citizens who look to them for protection.52a
Acting upon the recommendations of the Supreme Court, the Law Commis-
sion suggested an amendment in the Indian Evidence Act to enable the courts to
presume that the police official in whose custody a detenue dies is responsible for
his injuries. In a working paper on "Injuries in Police Custody", the commission
suggested amendment of section 114 B of the Evidence Act. The government has
not yet acted upon the recommendation of the Supreme Court and the Law
Commission so far.
VIII Monetary compensation: another offshoot of judicial activism
There occured yet another revolutionary and welcome change in the attitude
of the Supreme Court vis-a-vis the issue of custodial torture during the last decade.
It has started awarding the monetary compensation to the torture victims for the
violation of their right to life and personal liberty under article 21 of the
Constitution. In order to do it, the apex court relaxed the technical legal rules and
devised new techniques, norms and procedures to bring justice to the indigent, the
ignorant, the illiterate and the poor. It started treating the ordinary letters ad-
dressed to it either by the victim or by any public spirited person or organisation
on his behalf, as writ petitions.
Earlier, it was the policy of the court, under the jurisdiction conferred by
article 32 of the Constitution, not to pass an order for the payment of money if such
an order was in the nature of compensation consequential upon the deprivation of
a fundamental right. The court's attitude was that if a public servant committed
a wrongful act under the powers delegated to him for discharge of sovereign
function of the state, no legal action lor damage could be taken against him or his
employer, the government.53 Under the traditional approach, the only remedy
available was to file a suit to recover damages from the government. But the
difficulties of a person filing a suit for damage were innumerable, particularly
when the claim for damages was against the government.
However the court's ruling in Rudal Shah54 is of far-reaching importance
regarding government's liability for the wrongs done by the government officials
and the victim's right to compensation. In this case the victim was detained in jail
for 14 years after his acquittal by the session court The Supreme Court, while
awarding Rs. 35,000 as compensation for his illegal detention in jail, observed
that the state must accept the responsibility for the behaviour of its employees;
that article 21 of the Constitution guaranteeing the lundamental right to life and

52a. Ihtd.
53. Ka^hiH Lai v. State ofU.P., A.I.R. 1965 S C l o w
54. Rudal Shah v. State of Bihar, A.I.R. 1983 S.C fn><*.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 187

liberty would lose its significance if the power of the Supreme Court were limited
to passing orders for release from illegal detention; and that if the court refused
to order conpensation, it would be doing a mere lip service to his fundamental
right of liberty.
It was the historical judgment in the field of human rights jurisprudence which
opened the gates of the Supreme Court and the High Courts for claiming the
monetary compensation through writs. Many other cases55 involving custodial
torture came before the Supreme Court in which the highest court awarded
monetary compensation. The judicial initiative of awarding monetary compensa-
tion is a welcome step. But the question is how far such judicial activism can bring
relief to the victims when thousands of 'Rudalshahs' are groaning under the
administrative laxity and redtapism. There have been several instances when the
state governments did not care to comply with the judicial order. The government
of Bihar is notoriously unknown for disregarding the judicial directives for
compensation. For e.g., in Daviki Nandan Prasad56 the writ of mandamus was not
carried out by the government for 12 years. The petitioner after running from
pillar to post ultimately approached the Supreme Court again. The court issued
another writ of mandamus directing the government to carry out its order. So there
is need to set up monitoring cells to monitor the implementation of the judicial
orders. Nevertheless, such a trend of judicial activism has emerged as beacon light
in the otherwise darkened area of custodial lawlessness. But the judicial activism
is not the substitute for the executive inefficiency. Our over-burdened judiciary
may not sustain the increasing burden of public interest litigations. Moreover,
judicial activism is not the panacea for the increasing violation of basic rights. The
proper course would be to make monetary compensation for the violation of basic
rights like right to life and personal liberty, an enforceable fundamental right as
under article 9(5) of the International Covenant on Civil and Political Rights. But
India made reservations57 in respect of certain rights, right to compensation being
one of them, at the time of acceding the covenant. It is high time to withdraw such
reservations.

IX Some prescriptions and prospects

To analyse the problem of custodial torture, one has to understand the
problems the police faces. Indian police, the chief law enforcement agency, seems
to face the following problems: over-whelming task with inadequate strength and
poor service conditions; low capability due to poor educational background of its
lower cadre; inadequate and outdated training; inadequate salary and service

55. See, for e.g., Sebastian M. Hongray v. Union of India, A.I.R. 1984 S.C. 1026; Blum Singh v.
State of Jammu aiul Kashmir, A.I.R. 1985 S.C. 677; Peoples Union of Democratic Rights v. Slate of
Bihar, A.I.R. 1987 S.C. 356; SAHELI, A. Women's Resources Centre v. Commissioner of Delhi, A.I.R.
1990 S.C. 516; Nilabati Behera v. State ofOnssa, A.I.R. 1993 S.C. 2908-9.
56. Daviki Nandan Prasad v State of Bihar, A.I.R. 1983 S.C. 1134.
57. See, note by the Secretary-General, Reseivafions, Declarations, Notifications and Objections
Relating to the International Covenant on Civil and Political Rights and the Optional Protocol, UN
Doc. CCPR/C/2/Ren. 1, p. 22-23.
188 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 36 : 2

facilities; poor information and communication network; undue interference and

pressure from persons in power; and unhelpful attitude of the public at large.
The police, working 16 hours a day and seven days a week even on the
national holidays, find hardly any time for recreation. It is difficult for them to
be sensitive to human rights in these conditions. Indulgence in a whole sale
condemnation of the police without appreciating their problems is unfair. Govern-
ment should take concrete steps to solve the problems our police is facing.

(1) Education and training in respect of human rights

There should be a compulsory educational course in the Constitution and
human rights for law enforcement and security personnels at all levels. Mere
knowledge of various sections of the Indian Penal Code and Criminal Procedure
Code is not sufficient. They should be made familiar with the basic tenants of the
Indian Constitution, particularly the fundamental rights of the citizens, Interna-
tional Bill of Human Rights and other instruments relating to the rights of the
prisoners/suspects/accused persons A simplified version of these instruments
should be translated into the regional languages and made available to them. It
should be taught to every police and jail personnel that his primary loyalty is to
the Constitution and laws and he is not bound to carry out the illegal orders of his
seniors leading to the torture for which he and he alone would be held responsible
and punished.
Our constabulary is hardly given a training of any sort. It is one of the factors
leading to custodial torture. It is not from the senior level that we should start the
training of our police personnel, instead we have to train them right from the
junior level. Because it is the junior staff which has to deal with the common man
more often than the senior officer. Our police and jail staff should necessarily be
provided initial training and training during the service from time to time.

(2) Use of scientific aid in investigation

Third degree methods during investigation are resorted to either due to the
non-availability of the scientific aids or the inability or unwillingness on the part
of the investigating officers to use them. Most of the police stations in the rural
areas do not have even a separate room where an investigation officer can talk
alone to a suspect. Overburdened with the increasing number of cases, he hands
over a suspect/accused to a sub-inspector or a head constable when he attends to
other cases. These persons, having no training in or aptitude for scientific
interrogation, constantly work under the pressure from above to "solve" the case
at any cost. Moreover, for them more solved cases mean better chances of
promotion. So they desperately try to "solve" as many cases as possible at the
shortest possible time. The result is various kinds of torture and often custody
death.
Here the supervisory rank can help in a large measure by avoiding hasty
criticism of investigation done by the subordinate police officers and desisting
from pressuring them to "solve" the cases somehow or the other. They should try
to convince their subordinate staff that the scientific methods of detention and
1994 ] CUSTODIAL TORTURE IN LAW AND PRA CTICE 189

interrogation are more effective than the outdated one based on third degree. The
police should be encouraged to use the scientific aids in investigation such as the
use of forensic science laboratories, lie detectors, computers etc. The interroga-
tion techniques should be based on psychology of the criminals and the services
;>f the psychologists should be hired to do the needful. In the scheme of the
modernisation of our police force, it is essential to set up lie detection centres and
forensic science laboratories in every nook and corner of the country to assist the
[>olice in obtaining and analysing the information evidence. The computer can
also play an important role in this regard.
Though police is a state subject under the Constitution, the central govern-
ment has been implementing a scheme for modernisation of state police forces for
the past 20 years. The scheme provides financial assistance to state government
for meeting expenditure on communication, computer, forensic science equip-
ments and other scientific aids of investigation. According to the report of the
Ministry of Home Affairs, the annual allocation for 1991-92 was Rs. 15 crores.
For the period 1992-95 Rs. 30 crores would be allocated annually.58 This alloca-
tion of funding is not sufficient. The government should earmark more funds to
modernise the police.
(3) Role of the court at the time of police remand
As recommended by the National Police Commission,59 the magistrate, be-
fore whom the accused person is produced by the police for remand to further
custody, should be required by the administrative rules of criminal practice to
enquire from him specially about any complaint of torture or ill-treatment by the
police and his reply be recorded. In case of torture, the magistrate should refuse
to grant further remand to police custody and send the accused/suspect person to
the judicial custody. Moreover in case of torture, the magistrate should also send
him for medical examination under section 54 of the Criminal Procedure Code.
If the charge of torture is substantiated by the medical report, a criminal case
should be filed against the custodial authority before the main charge is taken up.
(4) Change the law of state immunity
The existing law grants immunity to the public servants from prosecution for
any offence while discharging their duties. Under sections 132 and 197(1) of the
Criminal Procedure Code, when a public servant is accused of any offence alleged
to have been committed by him while acting or purporting to act in discharging
of his official duty, no court shall take cognisance of such an offence, except with
the prior sanction of the government. It gives protection to the police members
guilty of torture. Similarly section 6 of the Armed Forces Special Powers Act 1983
grants similar immunity to the security forces for the alleged crime. This concept
of "sovereign immunity" should be abolished and members of the police and

58. Government of India, Ministry of Home Affairs, Annual Report 1991-92. 15-16 (1992).
59. NPC, Fourth Report 8.
190 JOURNAL OE THE INDIAN IAW INSTITUTE [Vol. 36 : 2

security forces be held accountable for the acts of torture. The NPC in its eighth
and concluding report made a similar recommendation in the case of police. 60

(5) Change the law of evidence

There is need to change the law of evidence as recommended by the Law
Commission. In the case of custodial torture or death, the burden of providing the
evidence and witnesses falls on the shoulders of the plaintiff. The eye witnesses
to the torture or deaths in lock-up of jail are generally co-prisoners who remain
tight-lipped and do not speak against the custodial authorities for the fear of
reprisals. The other witnesses are policemen who generally do not cooperate in
such cases as they develop a sense of brotherhood and would not like to implicate
fellow policemen. They would distort the truth. Thus the Law Commission rightly
proposed that the Evidence Act should be amended by creating a new section 114B
to provide a rebuttable presumption that the injuries sustained by a person in
police custody has been caused by the police officcr-in-charge. The burden of
proving his innocence will be on his shoulders. Once implemented, it will prompt
the police to treat the suspects/accused persons in their custody more humanely
and more in accordance with law.

(6) Enact legislation to curb custodial torture

The government should enact a suitable central legislation to ensure safe
custody of the accused person/suspect in the police station. The legislation may,
inter alia cover compulsory medical examination of the accused person before and
after police remand; the presence of his lawyer during interrogation; making
senior officers responsible for the safe custody of the accused person; enforcing
strict accountability at all levels; and compensation to the victim's family in the
event of his death during police remand.

(7) Surprise periodic visits

A measure which may have an important preventive effect to curb torture is
the system of surprise periodic visits to the police stations, and other places of
detention and imprisonment. The objective is two fold: firstly to provide oppor-
tunity to the arrested persons to give vent to their grievance, and secondly to
enable the custodial authority to correct and improve the existing situation in the
light of the suggestions of the experts. Such committee may consist of judges,
doctors, psychologists and other experts in the field of human rights. 61

(8) Setting up of the National Human Rights Commission

Increasing concern over the growing violation of human rights and the
international criticism it attracted, the government decided to set up the National
Human Rights Commission (NHRC). The government introduced the Human

60. Id., Eighth and Concluding Repoit *6 (1981).

61. See also, id.. Fourth Report at 9.
1994] CUSTODIAL TORTURE IN LAW AND PRACTICE 191

Rights Commission Bill in May 1993. While the Parliamentary Standing Commit-
tee on Home Affairs was examining the Bill, the President promulgated the
Protection of Human Rights Ordinance on 28 September 1993 setting up a five-
member62 National Human Rights Commission headed by a retired Chief Justice
of India and similar bodies at the state level along with human rights courts. Thus
the ordinance is a welcome improvement over the Bill as the latter leaves to the
state governments to constitute state human rights commissions to look into the
violation of human rights under clause 21 (1 and 2). But other lacunae of the Bill
appear in the ordinance. First there is no change in the composition of the
appointing committee under the ordinance. As under clause 4(1) of the Bill it
consists of the Prime Minister, the Home Minister, the Speaker, the Deputy
Chairman of the Rajya Sabha and the leaders of the opposition in both the Houses.
The exclusion of NGO representation in the appointing committee, would greatly
prejudice the commission's independence. Moreover NHRC is created by the
ordinance. If it is a constitutional body, instituted by a constitutional amendment,
its independence from the executive would be adequately guaranteed. The same
constitutional amendment would also provide for the selection of the members,
independent of the central or state governments. Second, like clause 14(1 and 2)
of the Bill, the ordinance also does not provide NHRC its own independent
investigative machinery under its exclusive control and accountable to it. It would
have to depend on the police and CBI, the main culprits of human rights viola-
tions, for carrying out investigation against themselves or their colleagues. This
would render the commission ineffective. Third, like clause 19 (1 and 2) the
ordinance does not authorise the commission to investigate into the violation of
human rights committed by the military or para-military forces. These forces,
facing the allegations of the worst form of human rights violations in Kashmir,
Punjab and the north-east would remain outside the purview of the commission.
Fourth, like clause 18 (1, 3 and 4) of the Bill, the functions of the commission
under the ordinance are recommendatory. It has no power to punish the violators
of human rights, nor to grant any compensation or even immediate interim relief
to the victims or the members of their family. It can merely make recommenda-
tions to the concerned governments for prosecution and grant of interim relief. If
these recommendations are not accepted, it becomes helpless.
Nevertheless the establishment of NHRC, whether inspired by a genuine
desire to provide better protection of human rights, or just to meet the growing
international criticism and satisfy the donar countries (of late the concept of
human rights has become a global phenomenon and unsatisfactory performance
on human rights is held against the developing countries by the developed
countries as a ground for refusing aid), is a welcome step. The NHRC can be more
effective and meaningful if it is independent from the government and has its own
independent investigating machinery with punitive powers. Otherwise it would

62. The NHRC is headed by Justice R.N, Misra, former Chiel Justice of India. The other members
are Justice Meerasahib Fatima Bibi, Justice Kochu Thorn men, both former judges of the Supreme Court,
Justice Sukhdev Singh Kang. former Chief Justice of J&K High Couit and Virendra Dayal. iormer
ChessM Cabinet to the UN Secretary-General.
192 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 36 : 2

also be a futile exercise like setting up many other commissions earlier whose
reports simply gather dust in the offices and libraries.
X Need to improve India's human rights record
The Constitution of India carries an impressive list of fundamental rights. It
includes most of the provisions of the Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights and various other interna-
tional instruments. India has ratified as many as thirteen international instruments
on human rights.63 But it has not yet ratified the following instruments: Optional
Protocol to the International Covenant on Civil and Political Rights; Second
Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of death penalty; Convention on the Rights of the Child;
Convention against Torture; Convention on Marriage; Convention on the Reduc-
tion of Statelessness, and Convention on Protocol relating to the status of refu-
gees. India can further the cause of human rights and improve its image abroad
by not merely setting up a lame-duck NHRC but by ratifying these human rights
instruments.
India is a party to the International Covenant on Civil and Political Rights.
But while the covenant makes as many as seven fundamental rights64 as non-
derogable even during jbe state of emergency, under the Indian Constitution, there
are only two rights65 which are non-derogable.
Many domestic laws are punitive and outdated. For example the present
police organisation, which is still based on the Police Act of 1861, can hardly be
human rights-conscious. The government set-up the National Police Commission
but has not yet implemented the reforms suggested in its various reports. Simi-
larly, our Jail Manual still carries many rules and regulations in respect of the
treatment of the prisoners which represent the legacy of the colonial period. It is
high time to revise these laws, rules and regulations.
Unless the policy-makers act upon the various remedial measures suggested,
the state of human rights in India will further deteriorate. It is time every one
should realise that the issue of human rights is no longer an issue which can be
left to state/government alone to deal with. It has assumed an international
dimension and therefore cannot be claimed as coming exclusively within the
domestic jurisdiction of a country.

63. See, UN, Human Rights, Status of International Instruments Chart of Ratifications as on 31 July
1992, 4-5 (1992).
64. These are: right to life (art 6); freedom fiorn torture or cruel, inhuman or degrading treatment
or punishment (art. 7); freedojn from slavery and servitude (art.8, (1,2)); prohibition of imprisonment
on the ground of inability to fulfil a contractual obligation (art. 11); prohibition of ex-post-facto criminal
liability (art. 15); right to recognition as a person before the law (art. 16); and freedom of thought,
conscience and religion (art. 18).
65. These are protection in respect of conviction for offences (art. 20) and protection of life and
personal liberty (art. 21). These two rights were made non-derogable when art. 359 of the Constitution
was amended by the Forty-fourth Amendment Act 1978.