Context
A recent report by Common Cause and the Lokniti Programme highlights the prevalence of police violence, revealing systemic issues that perpetuate custodial torture. It surveyed 8,276 police personnel across 17 states and Union Territories, revealing systemic issues in law enforcement.
What is Custodial Torture?
Torture, as defined by the UN Convention (1984), is the intentional infliction of severe physical or mental pain on a person. It is used to force confessions, punish, intimidate, or discriminate, and is carried out or approved by officials in positions of authority.
Custodial Torture is governed by legal provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. It defines the framework for detaining individuals during investigations while balancing individual liberty and effective law enforcement.
Key Provisions Under BNSS
(a) Timeframe of Police Custody (Section 187(2) of BNSS): Police custody can now extend up to 15 days, but not necessarily continuously.
(b) Judicial Safeguards: Police must still present the accused before a magistrate. A magistrate must approve police custody beyond 24 hours of arrest, ensuring legal safeguards against arbitrary detention.
(c) Extension of Detention Beyond 15 Days: Similar to CrPC, Magisterial (Judicial) custody beyond 15 days can continue up to: 60 days for offences punishable up to 10 years. 90 days for offences punishable by death/life/≥10 years. But police custody remains capped at 15 days, albeit flexibly spaced under BNSS.
Reasons for its persistence in India
Legal Vacuum on Torture: India has signed but not ratified the UN Convention Against Torture (UNCAT), 1997. It means it is not legally bound to implement its provisions. The Prevention of Torture Bill (2010) lapsed in Parliament, and subsequent efforts to introduce legislation never succeeded.
Procedural Flaws and Delays: The Supreme Court of India, in K Basu vs. State of West Bengal (1997), laid down crucial guidelines. However, Courts often rely on magisterial inquiries — procedures riddled with procedural flaws and delays.
Institutional Incentives: Confessions through violence are treated as evidence, despite being inadmissible under Section 25 of the Indian Evidence Act.
Weak Accountability: Same department involved, conducts investigations in such custodial torture matters. At some places, judicial inquiries occur, but the slow pace, opaqueness exacerbate the situation.
Political Interference: Political pressure in India influences police, which weakens impartial action and shields errant officers.
Key Findings of Report
Justified Use of Police Force
(a) 55% of police personnel believe ‘tough methods’ to instill fear in the public.
(b) 30% justify third-degree torture in serious cases, while 9% approve of it even for petty offenses.
Mob Violence and Encounters
(a) 25% of police personnel support mob violence in cases like sexual harassment and child lifting.
(b) 22% believe encounter killings are better than legal trials, though 74% support legal procedures for dangerous criminals.
Arrest Procedures
(a) 41% claim procedures are always followed, while 24% admit they are rarely or never adhered to.
(b) Kerala reports the highest compliance (94%), while Jharkhand reports the lowest (8%).
Victim Demographics (a) Victims of police torture predominantly belong to marginalized groups, including Dalits, Adivasis, Muslims, and slum dwellers.
Judicial and Medical Apathy (a) Magistrates often act as ‘silent spectators’ and doctors without forensic expertise conduct medical examinations.
Custodial Deaths and Accountability
(a) Discrepancies in official figures highlight the underreporting of custodial deaths, with numbers ranging from 76 (NCRB) to 111 (NCAT) cases in 2020.
(b) Between 2018 and 2022, zero convictions were there for custodial deaths, raising concerns about impunity.
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Key suggestions/recommendations for reforms
(a) Enact Comprehensive Anti-Torture Legislation: A dedicated law against custodial torture with strict accountability provisions should be there. Also, time-bound investigations and victim compensation should be there.
(b) Strengthen Police Training: 79% of police personnel support human rights training.
(c) Independent Oversight Mechanisms: Establish monitoring bodies to ensure transparency and accountability.
(d) 69th Report (1977) of Law Commission of India: It proposed introducing Section 26A in the Indian Evidence Act to make confessions before senior police officers admissible.
(e) 273rd Report of Law Commission of India recommended an anti-torture law, affirming that India’s existing legal safeguards are insufficient.
(f) Malimath Committee: It suggested that confessions made before a senior police officer of the rank of Superintendent or above should be admissible in evidence with safeguards to prevent coercion.
(g) Mandatory Use of Technology: CCTV coverage in interrogation rooms, digital records of questioning, and body cameras must become the norm.
(h) Capacity Building & Sensitization: Police training must emphasize human rights, ethical investigation techniques, and the psychological impacts of torture.
(i) Judicial Reforms: Fast-track courts for custodial crimes, along with stringent penalties for complicit officials, are essential.
Conclusion
Custodial torture remains a deep-rooted issue in India’s justice system, demanding urgent legal and institutional reforms. By ratifying the UNCAT, enforcing stricter accountability measures, and transforming policing culture, India can move toward a more humane and rights-based approach to law enforcement.