Custodial torture & death
Custodial torture & death

Context (Why this topic?)

Recently, two traders, Jayaraj P and his son J Benicks died in police custody in Tamilnadu. This created massive outrage in the country. Many claimed this as the George Flooyd moment of India. However, the main question is, IS THIS FIRST DEATH IN CUSTODY? Answer is a big NO. Custodial torture and death is a grave issue.

Custodial deaths in India

Though international laws criminalize torture, torture enjoys unprecedented license in India. As per ‘India: Annual Report on Torture 2019’ 1,606 of the deaths happened in judicial custody and 125 in police custody. This means almost five such custodial deaths daily.

Analyzing data shows that 60% of these dead belonged to Schedule caste,  Scheduled tribes, and Muslims. The majority of them are poor and marginalized.


  • Custody is defined as any point in time when the freedom of movement of person has been denied by law enforcement agencies, such as during transport prior to registration of a case, or during the arrest, prosecution, sentencing, and correctional confinement.

  • Torture is way to impose the will of the strong over the weak by making the weak suffer.

  • A death in custody is a death of a person in the custody of the police, other authorities, or in jail.

Reasons for the continuing custodial torture and deaths

  • India has no anti-torture legislation and has yet to criminalize custodial violence.

  • Policemen responsible for custodial torture and deaths rarely get punished. This encourages them to continue using torture as the tool to get to the truth.

  • Majority of the cases in custody die due to natural causes intensified by human and administrative errors  like poor nutritional status, old age, lack of good health facilities at proper time, poor hygiene, overcrowding in jails etc.

  • Custodial deaths are often the result of the widespread use of torture in Indian police stations in order to extract admissions of crime.

  • In many cases, the police use their authority to settle personal scores.

  • Most states do not have a Police Complaints Authority where citizens can lodge complaints against wrongdoing of police.

United Nations Convention Against Torture (UNCAT)

  • India had signed the UNCAT in 1997 but has yet to ratify it. Harmonization of our laws with UNCAT is necessary for its ratification. For this stand alone anti-torture law is essential.

  • The absence of a stand-alone law prohibiting torture may prevent many countries from accepting to India’s extradition requests. The request for extradition of Kim Davy relating to Purulia arms drop case suspect failed due to the apprehension that he may be ill-treated in India.

Constitutional /statutory provisions

  • Article 20(3) – provides that a person accused of any offence shall not be compelled to become a witness against himself.  The accused has a right to maintain silence and not to disclose his defence before the trial.

  • Article 21 – provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The SC has consistently held that torture custody violates right to life.

  • Article 22 (1) & (2) – provide for protection against arrest and detention in certain cases. It prohibits detention of any person in custody without being informed the grounds for his arrest nor he shall be denied the right to consult and to be defended by a legal practitioner of his choice.

Laws relating to custodial torture

  • Neither the Constitution nor the penal legislations define custody torture.

  • Sections 330 and 331 of the Indian Penal Code, 1860 [‘IPC’] are the only provisions under which custodial torture may be punished.  However, their application is limited to ‘grievous hurt’.

Law commission

In its 273rd report, the Law Commission of India recommended that the UN Convention against Torture be implemented by legislation.


  • Prevention of Torture Bill, 2010  contained a broad definition of torture. It included physical and mental pain, stress and trauma.

  • 2010 Bill also stressed on torture in relation to discrimination based on sex, race, religion. This was excluded in the 2017 Bill. However, this bill lapsed.

  • The 2010 Bill contained detailed criteria for compensation such as gravity of suffering, lost opportunities, and legal and medical costs. However, the 2017 Bill has no specific criteria for granting compensation.

  • According to the draft Prevention of Torture Bill, 2017, punishment for torture includes imprisonment up to 10 years and fine.  In case torture leads to death, the punishment includes death or life imprisonment in addition to fine. The latter has lapsed due to dissolution of the 16th Lok Sabha.

Supreme Court

  • Sunil Batra (II) v. Delhi Administration – The Court considered solitary confinement of prisoners as a human perversity that should be avoided.

  • Khatri v. State of Bihar (Bhagalpur blinding case) – The Court introduced the principle of giving compensation to the victims for the first time.

  • D. K. Basu v. State of West Bengal- It was a landmark judgement wherein the Court laid down the guidelines to be followed in all cases of arrest and detention in order to bring transparency and accountability.

Way forward

The problem of custodial torture and deaths is far deeper than the simple lack of professionalism in investigative methods. It indicates a different pathology among police officials that makes them inflict violence and harm against the weak. Following steps can be taken-

  • Awareness generation: The Indian Constitution has conferred many rights on the citizens of India. Awareness has to be generated about rights to end Mai-Baap culture in Indian society.

  • Screening of inmates on inmates : The prison authorities should collect detailed prisoner history along with treatment record, follow-up record, pathological investigations, any operative measures taken, history regarding alcohol dependence/drug abuse, history of psychiatric illness, etc.

  • Better Medical Facilities have to be provided to inmates in custody.

  • Improving the Prison Condition: The prison conditions need improvement in terms of design and structure for decongestion of the cells.

  • Dietary plans for the inmate need to be designed as per illness for e.g. diabetes mellitus patients require special care.

  • Training and sensitizing personnel about primary aid and special needs of ill inmates.

  • Promoting yoga & meditation for mental well being

  • Upgrading technology/equipment including CCTV installation to keep watch over prisoners and staff.

  • Setting up a detoxification centre for drug and alcohol-misusing detainees.

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