Custodial Deaths and the Illusion of Police Accountability in India

Abstract:

The custodial death origin term remains undocumented; its usage became recognizable in  India in the following landmark case of DK Basu V. State of West Bengal¹. Custodial death  is recognized as one of the gravest forms of violation of human rights in India. The Nation,  which mentions the words “justice,” “dignity,” and “rule of law” in the very foundation of  the preamble. Despite protection guaranteed under article 20, 21, and 22, and several judicial  guidelines issued by the Supreme Court and National Human Rights Commission (NHRC),  instances of custodial deaths and police brutality are increasing at an alarming rate. From  George Floyd’s case in the USA²to Jayaraj and Bennicks case in Tamil Nadu³, police  excessive use of force is not restrained to just India but all around the globe. In this article,  we explore the in-depth custodial torture and brutality and legal framework, court rulings,  and need for police reforms.

Keywords:

Custodial Death, Police Brutality in India, Article 21 and Human Rights, Criminal Justice in  India

Introduction:

Custodial death is not a new term in the legal dictionary .Especially in nations unlike India,  where this phenomenon has sped up growth in the recent decade. The torture and brutal force  of the accused during police detention is the mammoth problem our legal and social societies  are currently facing. The violence usually occurs in the face value of “performance of duty”  as a defence by the police officer. 

Custodial death gradually refers to the death of a prisoner or accused in prison during the  detention period. It happens when the police use excessive force rather than necessity, which  results in grave injuries to the accused in the purpose of the investigation process. It generally  occurs during pre-trial or during police interrogation. The recent incident of the Sathankulam  case was viewed as a shocking example of the brutality of the police force that raised serious  constitutional questions, such as Article 21—Right to Life and Dignity. The police brutality  in the Hyderabad case of the 2023 custodial death⁴is another immense example and raises  the question that police detention is a bigger threat to Article 21.

“Arrest” and “custody” look like synonyms, but they are quite opposite. An arrest is a  physical custody in which the accused is kept in police lockup; while in custody, they are  kept under observation and in jail. The police officer is not given permission to investigate  the suspect in custody without the prior approval of the magistrate. 

Judicial Interpretation and Guidelines:

Custodial death had generally evolved from the landmark case of DK Basu v. State of West  Bengal, where DK Basu wrote a letter to the Supreme Court highlighting the increase in the  custodial deaths in India.

This case highlighted the following issues:

• Do custodial violence and police brutality that result in death violate Article 21?
• Is the police force accountable for the accused’s death?
• What safeguard must be imposed to prevent this abuse?

The Supreme Court gave the judgment that custodial violence is a violation of Article 21.  Additionally, it stated that Article 22 (basic protection of arrested persons) is not optional but  deemed necessary to protect the constitution of the nation. The court also issued 11  guidelines, such as medical examination and consultation with a lawyer, and all these  guidelines are enforceable under Article 141 of the Constitution of India.

These guidelines are to be followed during the arrest of a person so as to protect citizens  rights in custodial matters.

Similarly, in the case of Joginder Kumar V. State of UP⁵, where an advocate was detained  without giving any arrest reason or arrest memo, information was also being denied to the  family. The court stated in his judgment that arrest should be reasonable, necessary, and  justified. Even though the police have the right to arrest without a warrant, as mentioned  under Article 41 of the CRPC. This case laid the foundation that arrest should be justified;  mere use of abuse of power is not enough. It also emphasized that arrest without information  is a serious violation of personal liberty, and an arrest memo should be prepared.

This aligns with the ruling in Prakash Singh v. Union of India⁶. The court stated in its  judgment that abuse of power in police custody, which results in custodial death, is largely  due to independent oversight, political party pressure, and no internal accountability  mechanism. This case is crucial as it laid down certain guidelines, such as:

Keeps political interference out by making the State Security Commission a body and  makes police accountable for the neutral body.

Established a Police Establishment Board to handle transfers, promotions, and  postings, altogether protecting honest officers.

This case is not about custodial death; it is about preventing it. It aims to fix the system so  that the police force serves the constitution, not the current ruling political party. This will  aim to prevent custodial death during police detention. The reality of today is that many of  these guidelines exist only on paper, and many custodial deaths occur still today due to weak  enforcement of the system.

Legal Framework Governing Custodial Death:

To govern this brutal violence and to safeguard our constitution’s preamble, such as liberty,  rights, and dignity of citizens of India, our constitution provided prominent sections in the  Evidence Act, which look after the people who are detained and provide them certain rights  for the safeguard of their liberty and dignity. Sections 25 and 26 of the Evidence Act⁷(now  23 and 24 according to the BSA) state that a confession made to a police officer is  inadmissible in court. This initially protects the accused from fraud from forced or coerced  confession. Section 114(e)⁸(now 119(e)) talks about the presumption against authorities,  which illustrates that police, will be held accountable for offenses if a person is found dead in  police custody.

CrPC also governs a number of sections that are deemed necessary as the guidelines to  follow. According to Sections 41 and 46 of the CrPC (now 35 and 43 of the BNSS), the  limitation of the power of police to arrest without a warrant and the use of force should be  proportionate and not excessive during the arrest of a person. Section 50 and 50A (now 48  and 48(2) of BNSS) list that a person arrested and in detention should have the right to  inform their families or friends and also that the officer should also specify the grounds for  arrest. Arrest without information is a clear example of violating a person’s liberty and  dignity, and so this section safeguards their dignity. The relevant Section 176(1A) of the Criminal Procedural Code (now 198(1) of the BNSS) states about the magistrate inquiry in  case of any custodial death during proceedings or before trials, and held inquiry against the  police force for the negligence or pre-determined death of a person during judicial custody  and held the police accountable for this.⁹

NHRC (National Human Rights Commission) had also issued guidelines regarding custodial  death¹⁰, which include:

• All custodial deaths must be reported to them within 22-24 hours of the situation  occurring.
• Mandatory video recording of post-mortem of the dead by a team of two doctors – Copy of the videography and autopsy report 
• Magisterial inquiries, which are compulsory for every custodial death – May recommend compensation to the victim’s family if custodial death is proved.

Institutional Challenges and Ground Realities:

Lack of Police Accountability:

Our Constitution states that police protect all citizens and punish the accused that are liable  for any offense. This is what our law states in our constitutional bare act, but is this reality?  Police serve the law, but interference by political parties often bribes them and makes them  work for their own. When the person dies in police custody, the first instinct of the police  force is self-preservation. No police officer is being accused and suspended from duty; many  remain on duty. Even internal department inquiries are slow, opaque, and biased. To escape  from this incident, often many superiors use phrases like “the accused was attempting to  escape” and “he slipped while running and hit his head,” which are too unrealistic and sound  like textbook phrases. The irony is that the department accused of murder is also the one that  is in charge of the investigation, which reaches the conclusion that justice is no longer even  possible.

Political Interference: The invisible hand that silences justice:

With the interference of political parties, police are no longer binding the law. They often are  being controlled by politicians, bureaucrats, and rich people. They often act as the puppets of  the politicians who control the transfers, promotions, and postings of the police officers.  Anyone who restrains their orders is often either demoted or transferred. During high-profile  cases, police face peer pressure to clean up the mess quickly, and orders are also given to  clean up their name and fame from that horrific incident. Subsequently, medical examiners  and doctors appointed by governments during custodial death falsify injury reports, delay post-mortems, which indirectly lets the evidence, fade away, and, in the end, sometimes  conduct post-mortems without informing the magistrate and the family. This, in conclusion,  is the act of vandalism of evidence by politicians that aids them in clearing their name and  fame from the incident, indirectly letting the weak suffer.

Low conviction rate:

According to NHRC and NCRB data¹¹, every year there are incidents of more than 100  custodial deaths per year. The interesting thing is that these deaths came under the  supervision of the police officers and are usually done by political interference behind the  curtains. Victims who suffer from custodial death are usually weak and below the poverty  line. Evidence is tampered with or destroyed, and the witness remains scared and silent. How  often is it seen that one member is taken into custody by the police officer, and how often do  they return in the coffin? How the state homicide act is declared as irrelevant by tampering  with the evidence, and the accused remains free while the victim and his family suffer the  most. Even families have lost hope for getting justice from the system, and they know nothing will happen. In Maharashtra alone, nearly 70 percent of custodial deaths occurred  during the period of 2017-2022¹² from marginalized communities—tribal, lower caste, or  poor. Guidelines are being provided to fit CCTV cameras in lockups, medical examinations,  and independent inquiries, but these only exist on paper. CCTV rarely works, medical  examinations are done casually, and inquiries are done when the media covers the case. 

India has signed the UNCAT¹³ (United Nations Convention Against Torture and Other  Inhuman Treatment). UNCAT is an international human rights treaty that was adopted by the  UN in 1984 to prohibit all forms of cruel, inhuman torture and stated that states must  criminalize torture under national law. UNCAT mainly protects victims from custodial  deaths, which occur every year, mostly among the low caste and poor class, who are often  denied justice. It will initially help India become a rule-of-law compliant democracy  internationally. India had signed the treaty in 1997 but till now has not ratified it. Even the  Law Commission had recommended in 2017¹⁴ for an anti-torture bill in parliament, but still it  was not implemented.

The reason behind this is:

Political reluctance: would expose armed forces and police to stricter global scrutiny

State resistance: the state controls law and order, so this bill initially will limit their  power of interference and have to follow the anti-torture bill.

This bill will train police and jail staff on human rights and accountability and will strengthen  NHRC and judicial oversight on custodial deaths. 

In India, officers are treated as glorified heroes for “encounter killings” and inhuman  treatment during detention periods. Public demands for instant justice build political pressure,  and in the end, police use this method as a shortcut.

Conclusion:

Custodial deaths are a severe violation of human rights and constitutional protection as a  whole. Protecting liberty and the right to life and dignity of a person is the constitutional right  of the state. Despite the legal framework and sections provided under the BNS and BNSS,  there is still negligence of police accountability. There is an urgent need for reforms in  prisons—mandatory CCTV monitoring, fast-track investigation, and judicial oversight  overall. The Sathankulam case shows that even 70+ years after independence, the right to life  under Article 21 can be brutally violated by those meant to enforce the law—unless citizen  vigilance, judicial monitoring, and police reforms become reality. Even the High Court took  suo moto actions in the Sathankulam case¹⁵ of Madras. Strengthening the implementation of  guidelines of the NHRC, proper use of particular sections of the BNSS, and reforms in the  BNS to protect the ones in detention. A nation’s growth and heritage are only determined  when a justice system where dignity, fairness, and the right to life are truly safeguarded for  all, including the victims wrongly kept in custody.

References:

1. D K Basu v State of West Bengal AIR 1997 SC 610.
2. Joginder Kumar v State of Uttar Pradesh (1994) 4 SCC 260.
3. Prakash Singh v Union of India (2006) 8 SCC 1.
4. Re: Sathankulam Custodial Deaths, Suo Motu Writ Petition (MD) No 7042 of 2020 (Madras High Court).
5. Indian Evidence Act 1872, S 25–26 and 114(e) (now Bharatiya Sakshya Adhiniyam 2023, S 23–24 and 119(e)).
6. Code of Criminal Procedure 1973, S 41, 46, 50, 50A, 176(1A) (now Bharatiya Nagarik Suraksha Sanhita 2023, S 35, 43, 48, 48(2), 198(1)).
7. National Human Rights Commission (NHRC), ‘Guidelines on Custodial Deaths’ https://nhrc.nic.in
8. National Crime Records Bureau (NCRB), Crime in India 2022 (Ministry of Home Affairs, Government of India) https://ncrb.gov.in
9. Law Commission of India, Report No 273: Implementation of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment Through Legislation (October 2017).
10. UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
11. State of Minnesota v Derek Chauvin, Court File No. 27-CR-20-12646 (District Court of Minnesota, 2021).
12. The Wire, ‘Father-Son Deaths in Custody: What Happened in Tamil Nadu’s Sathankulam?’ (27 June 2020) https://thewire.in/rights/sathankulam-custodial-deaths-jayaraj bennicks
13. Indian Express, ‘Another Custodial Death in Hyderabad Raises Questions’ (March 2023) https://indianexpress.com
14. IndiaSpend, ‘70% of Custodial Deaths in Maharashtra Are from Marginalised Communities’ (2022) https://www.indiaspend.com
15. Scroll.in, ‘Why India’s Police Are Applauded for Encounter Killings’ (2020) https://scroll.in

¹ D K Basu v State of West Bengal AIR 1997 SC 610.

² George Floyd Incident, State of Minnesota v. Derek Michael Chauvin, Court File No. 27-CR-20-12646 (District  Court of Minnesota, USA).

³Jayaraj and Bennicks case, The Wire, ‘Father-Son Deaths in Custody: What Happened in Tamil Nadu’s  Sathankulam?’ (27 June 2020) https://thewire.in/rights/sathankulam-custodial-deaths-jayaraj-bennicks  accessed.

⁴ Hyderabad Custodial Death 2023, Indian Express, ‘Another Custodial Death in Hyderabad Raises Questions’  (March 2023) https://indianexpress.com

⁵Joginder Kumar v State of UP (1994) 4 SCC 260.

⁶ Prakash Singh v Union of India (2006) 8 SCC 1.

⁷Indian Evidence Act 1872, S 25–26 (now Sections 23–24 under Bharatiya Sakshya Adhiniyam (BSA), 2023). ⁸Indian Evidence Act, s 114 (now s 119(e) of BSA 2023).

⁹Code of Criminal Procedure 1973, S 41, 46, 50, 50A, 176(1A) (now Sections 35, 43, 48, 48(2), 198(1)  respectively under Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023).

¹⁰ NHRC Guidelines, National Human Rights Commission of India, ‘Guidelines on Custodial Deaths’  https://nhrc.nic.in.

¹¹ National Crime Records Bureau (NCRB), Crime in India 2022: Statistics, Ministry of Home Affairs,  Government of India https://ncrb.gov.in.

¹² Maharashtra Custodial Deaths Report, IndiaSpend, ‘70% of Custodial Deaths in Maharashtra Are from  Marginalised Communities’ (2022) https://www.indiaspend.com.

¹³ UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted  10 December 1984, entered into force 26 June 1987, UNTS vol. 1465, p. 85.

¹⁴ Law Commission of India, Report No. 273: Implementation of the United Nations Convention against Torture  and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation (October 2017).

¹⁵Sathankulam Custodial Death Case, Re: Sathankulam Incident, Suo Motu W.P. (MD) No. 7042 of 2020  (Madras High Court).