Custodial Death – The Brutal Dictatorship in a Democratic State by Taru Bhardwaj (Intern)

Custodial Death – The Brutal Dictatorship in a Democratic State by Taru Bhardwaj


Custodial violence, torture and abuse of police power are not peculiar in our country but it is widespread. The causes of death in police custody may range from suspected homicide by members of the police, killing by other inmates, death due to psychological or physical abuse, capital punishment, suicide, accidental death or natural causes. It has been also the concern of International community because the problem is universal and the challenge is almost global.  The Universal Declaration of Human Rights in 1948 which pronounced the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”[1]. 

Despite that Criminal Law is absolutely essential in a society for maintaining law and order. Criminal Law has to be strong enough both in its contents as well as in its execution, without being oppressive. This quality is needed in all branches of law but is too crucial in criminal law since the stakes involved are exceptionally high in terms of social injuries of various kinds. Custodial violence means torture in police custody.  Torture is no doubt an international phenomenon but the incidence is much more in developing countries and the overall situation in India is far from being satisfactory.  The deaths resulting from the injuries or harm inspired by this custodial violence is  categorized as custodial death/death in custody (custodial violence may, at times  be used in place of custodial deaths, as it is the  direct root leading to custodial deaths). Custodial death in India is defined as the one occurring during the period the person is in the custody of police, prison or any other institutions setup by the State for detention, as mentioned in the Entry-4, State List –II.


It has been observed in the past decade that the toll of deaths in police Lock-ups is on the rise.  Many deaths have occurred while in detention but so far no attention has been paid. In India police lock-ups are solely managed by the police personnel and such incidents are only possible by their actions. Principally the court lock-ups are governed by the judiciary but it is seen that even the magistrates are dependent on the police officials for their judicial functions. The root of all evil lies in vesting enormous judicial powers to police officials. Custodial violence including death in the lockups are done under the shields of ‘uniform’ and ‘authority’ between the four walls of a police station, prison and detention center where the victims are totally vulnerable. The custodial deaths are neither curious nor unknown. Experience shows that most horrific violations of human rights take place during the course of investigation where the police with a view to secure evidence often adopt third degree methods and adopts manners of screening arrest by either not recording arrest or telling the deprivation of freedom merely as a prolonged examination.

Taking into account the intensity of the present problem National Humans Rights Commission has proposed that in cases of custodial deaths, the police officer in-charge must be held responsible and not the State.  This refers to the least applicability of the principle of Vicarious Liability of the State in cases of Custodial deaths.  The raison d’être is to provide the maximum security to those who are the victims in such cases. In order to ensure justice to the oppressed, the Hon’ble High Court in the case Mariayappan V. State of Tamil Nadu directed to initiate criminal proceedings against the police officials and ordered State to pay a compensation of Rs. 2 Lac to the family. Custodial death invokes criminal liability of the officer-in-charge, additionally the tortuous liability of the State helps to provide adequate justice in such cases.

There are various cases where the police officers have distorted their powers and mishandled the lives of the people. The police officers who act as the guardians of law have acted in a contrary manner and have failed to guard the fundamental rights guaranteed to the citizens under Article 21 of the Indian Constitution. The right to know for which offence a person has been detained is also commonly breached by the detaining authorities.

In State (Govt. of NCT of Delhi) v. Smt. Iqbal Begum[2], it was held that the authorities were liable and awarded a compensation of Rs. 3,50,000 to the deceased’s wife.

In the landmark case of D.K. Basu v. State of West Bengal[3], the Supreme Court of India observed widely publicized death in police custody using torture impermissible and offensive to Article 21. It ruled that the burden of explaining custodial death lays on the police rather than the victim.


Violation of human rights judicial conscience recognized human rights of prisoners because of its reformist approach and the belief that those prisoners are also human beings and that the purpose of imprisonment is to reform them rather than to make them habituated criminals. Through the Presidents assent the Protection of Human Rights Act came into picture. Section 3 of this act provides for setting up of National Human Rights Commission. Section 21 provides for setting up of different State Human Rights Commission. The law commission suggested in its 113th report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police officer, the court may assume that the injury was caused by the police officer having the custody of that individual. The need of amendment needs no emphasis. Sharp rise in custodial violence and death in custody justifies the urgency for the amendment.


Police is the machinery which controls crime. If crime takes place in police custody, then we must incline towards some other machinery to curb it. Despite having many provisions in our Indian laws, custodial violence continues to exist. It is the duty of the prison administration to give proper facilities of medical, sanitation, food, security to the prisoners and a monitory body to only review it but also keep an eye on the supplementary activities inside the prison.

[2] 2004 (110) CRLJ 3092
[3] AIR 1997 SC