Custodial torture: What India's doing right and needs to do more to end it

The International Day in Support of Victims of Torture is observed annually on 26 June. This day aims to raise awareness about the suffering of torture victims and to honour and support those who have endured such inhumane treatment. It serves as a reminder of the global commitment to end torture, as outlined in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The day is marked by events and activities organised by various human rights organisations, governments and individuals to advocate for the rehabilitation and rights of torture survivors and to promote measures to prevent torture worldwide.

Custodial torture in India

Custodial torture in India is a significant human rights concern characterised by the use of physical and psychological abuse by law enforcement officials during detention. Despite constitutional safeguards and legal frameworks designed to protect individuals from such abuses, the practice remains pervasive.

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One of the key issues is the widespread prevalence of custodial torture, which often goes unreported due to fear of reprisals, lack of awareness and inadequate mechanisms for redress. Existing accountability mechanisms are insufficient, highlighting the need for more robust and independent oversight bodies. Public awareness and education about rights and obligations are also lacking, contributing to the persistence of torture.

A 2019 report by the National Human Rights Commission exposed the brutal methods of torture used by police and jail staff, which go far beyond slapping, kicking and beating with sticks. The report detailed horrifying practices such as hammering iron nails into bodies, using rollers on legs and burning and beating the soles of feet. In some cases, the abuse includes stabbing with screwdrivers, administering electric shocks and targeting private parts with instances of petrol being poured on these sensitive areas.

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Legal and judicial responses

According to a Hindustan Times report in February 2021, the Supreme Court said that police brutality, such as beating a person at a police station, instills fear in society and is a matter of significant public concern that cannot be excused. The court was addressing appeals from two retired Odisha policemen convicted of torturing a man in custody, resulting in his death on 4 May, 1985. On 9 November, 2020, the Orissa High Court reduced their sentences from eight and five years to one year of simple imprisonment under Section 324 of the Indian Penal Code for causing hurt.

In addressing the case, a bench of justices remarked that the public expects the police to safeguard their lives and property. They noted that people visit police stations expecting their person and property to receive protection and any injustices or offences committed against them will be rectified with the perpetrators held accountable. The bench expressed deep concern over instances where those entrusted with protecting society engage in brutality and inhumanely assaulting individuals seeking assistance at police stations.

Need for comprehensive reforms

J Lakshmi Charan, Assistant Professor, School of Law, Mahindra University, Hyderabad in her piece in SCC Online called Custodial Torture in India: Intersection of Criminal Law and Constitutional Rights said that in India, the problem of custodial torture remains a significant concern underscoring the urgent need for comprehensive reforms in criminal law and its enforcement to ensure the protection of individual rights. In 2019, there were an estimated 1,723 deaths in custody, averaging nearly five deaths per day. During interrogations, police often resort to severe methods to extract confessions and gather evidence. Although India has signed the UN Convention Against Torture (CAT), it has neither ratified this treaty nor enacted a national law to curb custodial violence.

The right to life and personal liberty is enshrined in Article 21 of the Indian Constitution, which guarantees every person the right to live with dignity. Moreover, the National Human Rights Commission (NHRC), established under the Protection of Human Rights Act, 1993, is tasked with addressing human rights violations, including those occurring in custody. Despite these legal protections, the persistent statistics on custodial deaths reveal a systemic failure in effectively implementing existing laws to prevent such violence.

What the Supreme Court says

In the Dr Ashwani Kumar vs Union of India, a Supreme Court bench comprising then Chief Justices of India Ranjan Gogoi, Justice Dinesh Maheshwari and Justice Sanjiv Khanna on 5 Sptember, 2019 observed, “Our attention was drawn to the report of Asian Centre for Human Rights which was based, inter alia, on the information and data furnished by the Government of India in Parliament, acknowledging 1674 custodial deaths, including 1530 deaths in judicial custody and 144 deaths in police custody during the period 1st April 2017 to 28th February 2018. India has consistently and unequivocally condemned and deprecated custodial torture at international forums and has signed the UN Convention but the Government’s reluctance to ratify the UN Convention, which envisages a comprehensive and standalone legislation, it was argued, is baffling and unintelligible. Indian statutory law at present is not in harmony and falls short on several accounts, both procedurally and substantively, with the UN Convention and, thus, there is an urgent and immediate need for all-embracing standalone enactment based on the UN Convention. Articles 51(c) and 253 of the Constitution underscore the ‘constitutional imperative’ of aligning domestic laws with international law and obligations.”

All hope is not lost

“The draftsmen of the Indian Constitution guaranteed the fundamental right to life, which encapsulates the right to dignity, a fair trial and justice itself. With a well-regulated system involving the judiciary and investigative agencies, undertrials in India continue to enjoy various fundamental and legal rights, including protection against custodial torture and unlawful detention. Judicial intervention has played a crucial role in curbing the incidence of custodial deaths and torture. Although the numbers may still be concerning, the issue is now actively monitored in India, especially with the NHRC and various other autonomous and private non-profit organisations playing an active role in safeguarding the interests of undertrials and convicts. Given India’s vast landscape and population, these efforts are crucial in upholding justice and human rights,” Managing Partner at Areness law firm, Sagar Aggarwal told Firstpost.

“Furthermore, various regulations such as prosecution and disciplinary enquiries against prison and investigation authorities, along with monetary compensation to victims, have contributed to a reduction in custodial deaths, according to statisticians. These measures underscore a concerted effort to ensure accountability and deterrence against abuses in the criminal justice system. Despite ongoing challenges, these initiatives reflect a commitment to improving the treatment of individuals in custody and strengthening the rule of law in India,” Aggarwal said.

Despite challenges, there is a hope that custodial torture in India will end someday as these efforts reflect a positive trajectory towards enhancing human rights protections and ensuring justice for all in India.