Custodial Violence: A deep-rooted issue

(Authors: Gargee Deshpande, Rewa Sharma, Parth Mayekar, Priyanshi Jha)

Abstract:

Custodial violence is a serious violation of human rights in the form of physical,
psychological, and sexual abuse of police and prison systems. This essay examines
the multi-dimensional nature of custodial violence, its legal status, and structural
causes for its occurrence. Based on case studies, such as D.K. Basu v. State of
West Bengal, the research underscores the imperative necessity for wide-ranging
reforms to secure accountability and safeguard detainee rights. The findings
underscore a multi-stakeholder process that includes government, judiciary, and
civil society to eliminate custodial violence and restore public confidence in the
judicial system.

Introduction:

Custodial violence is perhaps one of the most detrimental forms of abuse that
exploits fundamental human rights. It questions the integrity of the justice system
and the dignity of people. It includes all forms of abuse—physical, psychological &
sexual abuse that an individual faces while in the custody of police or prison
authorities. Such violence includes torture, death, etc., in custody, ill-treatment,
mental harassment, manipulation, forced confessions, and many more. This issue is
prevalent in most countries where laws aimed at controlling these forms of
violence are either non-existent or not complied with.
Law enforcement and detention facilities are, in principle, places that embody
justice, discipline, and rehabilitation. However, any authority abusing power will
undoubtedly violate human rights. The impact of custodial violence is multifaceted
and deep-rooted, to an extent where it not only gives the victim extreme physical
injuries and mental/emotional suffering but also distrust towards the justice
system. Many incidences of abuse during custody are believed to be unreported
due to the risks linked with reporting such cases, the victim’s ignorance towards
legal rights, and the corrupt culture in the system.
Several factors contribute to custodial violence. One of the cruelest yet frequently
used methods is the use of violent methods by police officers to obtain a
confession or any information. The absence of adequate control measures and
answerability within the system allows there to be greater lawlessness.
Additionally, the lack of appropriate prison facilities, the poor levels of training of
some police officers, and systematic discrimination all contribute to this type of
violence.
International organizations like the United Nations and Amnesty International
have condemned violence of this type, demanding the development of more
rigorous laws and their effective application to defend the human rights of
detainees. Several nations have tried to deal with said issue; for example, they
have refrained from employing torture in compliance with treaties like the United
Nations Convention Against Torture. Yet compliance with this remains a
problem. Stricter measures are needed to control systemic violence, internal
review, and the ability to blame someone for the shortcomings are needed for those
in authority.
In the final analysis, custodial violence is both a sociological phenomenon as well
as a legal one that needs all the social forces to respond. There is the joint action of
the government and the courts, the civil society organizations, and human rights
organizations that should be involved and applied in anchoring law enforcement to
principles and values that center on giving an answer and respecting a person’s
rights. We shall only give orders, apply the justice system, and
exercise the rule of law in that situation.

Literature Review:

Current literature places greater emphasis on systemic factors in custodial violence,
which have been correlated with power disparities, lack of oversight, and impunity
culture. Research indicates that police training tends to overlook human rights
training. Landmark cases document the court’s role in setting norms for police
behavior and protecting detainee rights.

Methodology:

This qualitative study examines judicial cases, research articles, and human rights
organizations’ reports. Case studies like Nilabati Behera v. State of Orissa give us
insight into judicial reaction. The study evaluates legislative schemes and
preventive initiatives, examining how they can reduce custodial violence and
increase accountability.

Legal aspect of custodial violence

The police are mostly to blame for custodial brutality. The same folks who are in
charge of safeguarding the average citizen. Hence, “who will police the police,” as
Justice V. R. Krishna Iyer put it. That’s where the judiciary and constitution come
in as the actual defenders of the populace. Articles 21 and 22 of the Indian
The Constitution serves as the legal foundation for all the laws that prevent police
officers from injuring individuals while they are in their custody, as well as the
people’s rights to protest and file complaints about any violence they witness.
Every Indian citizen is entitled to fair treatment and personal freedom under these
articles, regardless of the situation. These articles ensure legal assistance, prompt
issue settlement, proper handling of detainees, etc. When the police take away
someone’s freedom and liberty, it becomes even more crucial to interpret these
articles correctly. The court has recognized that police power must be strictly
regulated and has provided compliance rules.
In the case of DK Basu v. State of West Bengal, the court mandated that police
officers must identify themselves before making an arrest, notify the person’s
family of their detention, and provide the location of the arrest. Legal counsel must
be present during their interrogation, and the detainees must be medically
examined to ensure they have not experienced any violence, among other things.

In the cases of Nilabati Behera v. State of Orissa and Joiginder Kumar v. State of
Uttar Pradesh, the court emphasized the significance of Article 21 and the fact that
prisoners cannot have their right to this protection taken away from them by
arbitrarily imposed measures, even while they are under arrest. Additional
institutions, such as the Center for Human Rights (ACHR) and the National
Human Rights Commission (NHRC), closely monitor these violations and offer
legal assistance to those in need. To ensure that everyone has access to 
information about how the police are operating, they also issue reports.

Causes of Custodial Violence:

Multiple structural and institutional factors contributing to custodial violence are
interrelated. At the core of custodial violence is the issue of abuse of power by law
enforcers. To extract confessions from the culprits by way of physical
and psychological torture, police officers abuse their authority (Human Rights
Watch, 2021). Such abuse is rampant in police environments, where actions taken
in the heat of the case supersede consideration for the accreditation of rights.
Control failures create the conditions of impunity in which there are no
consequences for violence. Elements of the code of silence amongst officers,
procedural hurdles in documentation, and evidentiary difficulties investigating
claims simply combine to produce an environment of impunity (Carver &
Handley, 2020). Most jurisdictions do not have independent oversight bodies,
allowing internal investigations to protect the guilty rather than give them justice.
Corruption itself is a driver of violence by increasing the risk of setting up
conditions for violence, especially where monopolized police departments
normalize unofficial “taxation” of detainees. According to the United Nations
Office on Drugs and Crime (2023). The custodial violence is facilitated by
corruption, engendering transactional relations whereby a price for shielding
custodial users from maltreatment becomes standard.
Ineffective training and monitoring are core institutional failures. Many, however,
focus solely on tactical training without providing officers with necessary
education in respect for human rights, interrogation ethics, and de-escalation
strategies (Rejali, 2017). This lack of knowledge and insufficient monitoring in
detention facilities creates an arena for agents for stonewalling unacceptable
conduct.
These causes create the feedback cycles that render abusive conduct institutionally
ordinary rather than extraordinary. A diverse array of reforms is required to tackle
custodial violence, including individual responsibility and systemic reform of the
culture of law enforcement and its incentives

Case Study of Custodial Violence

Here, we will have a brief case study of custodial violence. The Supreme Court has
given its judgment regarding the issue of custodial violence in several cases. Here
are some cases mentioned below –
• Nilabati Behera v. State of Orissa, 1993
In this case, the victim was found dead the day of the arrest on the railway
tract with several injuries. The Supreme Court found that the injuries had occurred while the victim was in custody. The court ordered the state to
give compensation of Rs. 1,55,000 to the victim’s family recognizing the
violence.
• D. K. Basu v. State of Bengal, 1997
This case recognized custodial violence, stating that it is an attack on human
dignity. The court gave several guidelines to be followed during arrests to
protect the rights of arrested individuals. The guidelines includedcompletion of wearing name tags to police personnel, preparation of
memorandum of arrest and should be signed by arrestee and attested by a
family member or any respectable person from locality, arrestee has the right
to inform about the arrest to relative or friend, injuries whether minor or
major should be recorded at the time of arrest, etc. There were 11 such
guidelines.
• In the cases of Rudul Shah v. State of Bihar, 1983, and Joginder Kumar
v. State of Uttar Pradesh, 1994, the court emphasized the justification of
arrest. Demand of compensation on unjustified detention by the government
was put forward by the court. And arrest without justification was being held
illegal. This was for the prevention of misuse of police powers for illegal
process.
• In a recent case in May 2024, the Supreme Court decided to examine the nine-year-old case of Tamil Nadu to verify it as custodial violence. Subramani
belonged to the Adi Dravidar Scheduled Class and was allegedly picked up by
police of Neyveli Township Police Station in 2015 and was lodged for a
week in link with murder of a women. After this, the battered body of the
victim was released. His widow, representing him in court, said he was kept in
custody illegally and has evidence of brutal torture. “He was swollen
due to beating and both big toes were bleeding”. The key findings of the
case are the illegal custody of Subramani, the existence of multiple injuries on
the body, and signs of trauma identified with torture.

Preventive Measures for Custodial Violence

The preventive measures given in the Prevention of Custodial Torture Bill,
2023 are as follows –

• The appropriate Government may award an amount of compensation, including interim compensation, to the victim of custodial torture as necessary for the rehabilitation of.
• The compensation should be awarded by taking such factors under
Consideration:-

1. Gravity of physical and mental harm and suffering inflicted, including death
if caused as a result of custodial violence
2. Lost opportunities, including employment, education, social benefits
3. Material damages and loss of earnings, including loss of earning potential
4. Cost required for legal or expert assistance, medicine and medical services,
and psychological and social services
5. The age, family, responsibility, and material condition of the dependents of
the victim

• It shall be the duty and responsibility of the State Government to make
arrangements for the protection of victims of custodial torture and sexual
abuse, complainants, and witnesses.

Results:

The analysis identifies an entrenched culture of impunity among the police, poor
training, and a lack of oversight facilitating custodial violence. Case studies illustrate
the critical role of the judiciary in ensuring the enforcement of detainee rights.
Reforms focus on ensuring independent oversight, increased training, and open
accountability mechanisms to tackle custodial abuse successfully.

Conclusion:

Institutional impunity and systemic power imbalances are the primary causes
enabling the continuation of custodial violence, thus demanding coordinated
reform interventions. The evidence presented here shows that the redressal of this
embedded issue would require a transformation in policies, their mechanisms for
implementation, and continuous mechanisms for accountability.
Stronger policy frameworks must be developed targeting the identified specific
causes. Legislative reforms must include very explicit prohibitory components and
severe consequences under a policy of zero tolerance. Policies must require a visual recording of complete detention procedures and remove barriers for perpetrators so that they can be held accountable (Mendez, 2021). Experiences in jurisdictions such as Denmark and New Zealand exemplify this: by a statutory presumption against incommunicado detention, the levels of violence dramatically
decrease.
Implementing mechanisms forms the crucial bridge between policy and
practice. The research further states that no amount of fine legislation will work
unless there is strong institutional backing for enforcement. The best models
include independent oversight bodies with adequate resources, unannounced access
to facilities, protected whistleblower channels, and mandatory investigation
protocols (Association for Prevention of Torture, 2022). Specific allocation to
such targeted oversight mechanisms would bring spectacular improvements in
situations of detention, despite certain deterrents posed by the limitations of
available resources.
Transparency ruptures or disrupts the silence that engulfs custodial settings. The
publication of incarceration statistics, complaints systems, investigation results,
and punishment serves to sanction visibility as a form of accountability. In this
respect, the judiciary, police leadership, and civil society organizations play a
significant or noble role in promoting the ecosystem of transparency.
In the end, custodial violence is justice to be done in itself. When the actors of
the state use violence against its detainees, it opens up the legitimacy of the
whole justice system in question. Thus, the protection of human dignity inside
detention places speaks to the will of the society for adherence to the rule of
law and not rule by force. Custodial violence is not inevitable but a preventable
infringement that can be bridged through tireless resilience of political will, keen
institutional reform, and uneventful civil scrutiny to erase it from practice.

References:

Prem Chand (Paniwala) vs Union of India, AIR 1981 SC 613
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
Joginder Kumar v. State of U.P. (1994) 4 SCC 260
Nilabati Behera v. State of Orissa (1993) 2 SCC 746
Human Rights Watch. (2021). The Code of Silence: Police Accountability in Modern
Democracies.
Carver, R., & Handley, L. (2020). Does Torture Prevention Work? Liverpool University
Press.
United Nations Office on Drugs and Crime. (2023). Handbook on Police Accountability,
Oversight and Integrity.
Rejali, D. (2017). Torture and Democracy. Princeton University Press
https://www.thehindu.com/news/national/tamil-nadu/supreme-court-to-look-intothe-death-of-a-painter-whose-widow-claims-is-an-obvious-case-of-custodial-torture-bytn-police/article68168564.ece
https://lawbhoomi.com/custodial-violence/
https://www.scconline.com/blog/post/2024/03/23/custodial-torture-in-india-intersectionof-criminal-law-and-constitutional-rights/
Prevention of Custodial Torture Bill, 2023
Mendez, J. (2021). Torture and Other Cruel, Inhuman or Degrading Treatment: The Role of
Documentation. Oxford University Press.
Association for Prevention of Torture. (2022). Monitoring Police Custody: A Practical
Guide