This article was written by Reeti Tripathy, a student of University Law College, Utkal University

“The cherished right to liberty is inherent in human origin. There cannot be curtailment of one’s own liberty; may it be by the State or by its stakeholder.”


Custodial crime stands for an “Unwarranted Intrusion of Personal Liberty”. Torture is endemic in the criminal justice system. It is an act of deep, indelible, traumatic indoctrination. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law. Cruelty disfigures our national character. The flagrant human rights violations reflect serious democratic deficit even in the largest democracy of the world. The brutal inhuman treatment to the prisoners in prisons and detention centres by the police and the jail officials gore the death of human rights in a democracy even. Where injustice, verging on inhumanity emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, the Court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is corrected.

Custodial torture ranging from assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity, but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him. Custodial crime is socio-legal holocaust of human rights which needs to be tackled properly through composite framework and application of stringent norms. Nelson Mandela said, “A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Judiciary-Custodian of Prisoners’ Rights:

Modern Judiciary is the Custodian of the Fundamental Human Rights. Judge-made law has civilised our prisons, banished bar fetters and handcuffs, eliminated solitary confinement and injected constitutional karuna into confined territory. The Supreme Court is heralded as a beacon of rights against torture. The Hon’ble Supreme Court of India by interpreting Article 21 of the Constitution has developed Human Rights Jurisprudence for the preservation and protection of prisoner’s right to human dignity. The Supreme Court has taken a very positive stand against police atrocities, intimidation, harassment and use of third degree methods to extort confession. The Court has characterised all theses as being against human dignity. The Apex Judiciary of India has ruled that it is a well recognised right under Article 21 that a person detained lawfully by the police is entitled to be treated with dignity befitting a human being and that legal detention does not mean that he could be tortured or beaten up. If it is found that the police officer has ill-treated a detenu, he would be entitled to monetary compensation under Article 21. [1] The Court has often awarded compensation, exemplary damages to the victims of police brutality against the State.

The Supreme Court in State of Andhra Pradesh vs. Challa Ramakrishna Reddy[2], and other series of decisions observed that fundamental rights, also includes basic human rights, which continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect to sovereign acts of the State.

The Supreme Court has stressed that police torture is ‘disastrous to our human rights awareness and humanist constitutional order’. The Judicial System has squarely placed the responsibility to remedy the situation on the State. If police brutality is not checked, “the credibility of the Rule of Law in our Republic vis-a-vis the people of the largest democracy will deteriorate”.

The Court has given an expansive definition of “torture”. According to the Court, “torture” is not merely physical but may even consist of mental and psychological torture calculated to create fright to make the individual submit to the demands of the police”. [3]

Atrocities and brutality on prisoners, under trials and accused persons has been the subject matter of concern of the Apex Court in various cases. [4]

In Kishore Singh v. State of Rajasthan, [5] the Supreme Court has held that the third degree method being used by the police in custody or prison is violative of Article 21 of the Constitution. The use of such means would militate against the Constitutional Culture of Human Rights.

The precious right guaranteed by Art 21 cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions on the right as are permitted by law (Nilabati Behera v State of Orissa)[6].

The Supreme Court has laid down procedural requirements in case of arrest in Joginder Kumar v State of U.P.[7]

Custodial death and violence is one of the worst crimes in a civilised society governed by the rule of law. D. K. Basu v. State of West Bengal [8] proved to be a landmark judgement that consolidated the basic rights under criminal law especially those of the persons under the conditions of curtailed personal liberty such as arrested persons, detainees, under trials etc. and laid down the rules of arrest. The Court while holding torture, rape, death, in police custody/ lockup to be violative of the basic human rights also held that torture not only involves physical suffering but also mental agony and is the naked violation of human dignity and destructive of human personality. While laying down the basic guidelines for arrest, the court held that interrogation though essential, must be on empirical principles. Third degree (inhuman) treatments are totally impermissible.

During the prosecution of offences of torture and custodial death, the exaggerated adherence to, and insistence upon, establishing proof beyond every reasonable doubt ignores the reality, the fact situation and the peculiar circumstances of a given case and often results in the miscarriage of justice and suspicion of the system for delivering justice (State of M.P. v Shyamsunder Trivedi)[9].

Parliament’s attention was drawn to the urgent need to amend the rules of evidence regarding prosecution of police officials accused of custodial violence, in particular the recommendations of the Law Commission of India in its 113th Report regarding a shift in the burden of proof, with the introduction of a presumption of custodial violence if there is evidence that the detainee’s injury was caused during the period of detention, and the consideration by the court of all relevant circumstances.

In Bachan Singh v. State of Punjab, [10] the Court observed that the inhuman and cruel treatment of the convicts in prison infringes the fundamental human rights guaranteed under Part III of the Indian Constitution.

In Francis Coralie Mullin v. Union Territory of Delhi, [11] the Supreme Court has condemned cruelty or torture as being violative of Article 21 in the following words:

“……any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with the procedure prescribed by law, but no law which authorises and no procedure prescribed by law, which leads to such torture or cruel, inhuman or degrading element can never stand the test of reasonableness and non-arbitrariness; it would be plainly unconstitutional and void as being violative of Articles 14 and 21. It would be seen that there is implicit in Article 21, the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights, 1948 and guaranteed by Article 7 of the International Covenant on Civil and Political Rights, 1966.”

In another important decision of the Supreme Court, the principle that a person does not become a non-person after conviction and sentence to jail has been recognised. Hence, even after imprisonment, the convicted person is still entitled to the Fundamental Right to live with human dignity which is inclusive of the Right to Life and Personal Liberty. [12]

The Supreme Court has passed strictures against police torture and brutality on prisoners, under-trials and accused persons. The Court has observed in Raghubir Singh v. State of Haryana:[13]
“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death.”

In Sheela Barse v. State of Maharashtra, [14] the Court has given directions to ensure protection against torture and ill treatment of women in police lock-up.

The Apex Court hold the view that prison restrictions amounting to torture, pressure, coercion or infliction and going beyond what the court authorises, are ultra vires; further it extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amount to human degradation. [15]

The same observation was upheld or reiterated in Sheela Barse case[16] by the Apex Court.

The Court has recognised the right to fair treatment and dignity of the prisoners as a tool against the alleged acts of torture by police and jail authority. Justice V.R. Krishna Iyer in Charles Sobraj v. Superintendent, Central Jail, Tihar[17], observed that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, the Courts will refuse to recognize the full panoply of Part III enjoyed by the free citizens of the largest democracy. Further, he observed that the axiom of “prison justice” is the Court’s continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or personal liberty is not exceeded, subverted or stultified by the atrocities in prison.

The Supreme Court in Sunil Batra v. Delhi Administration,[18] observed that “Prisons are built with stones of law”, and behoves the Court to insist that, in the eye of law, prisoners are persons, not animals and provided guidelines to punish the deviant “guardians” of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by Jail officials. For when a prisoner is traumatized, the Constitution suffers a shock. The Supreme Court further held that the Court has power and responsibility to intervene and protect the prisoner against any crude behaviour of the State officials.

Indeed, since 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial deaths, namely: the right to compensation for custodial crime and the formulation of custodial jurisprudence.


Improving prisoners’ conditions of detention and marginalization of the numbers of human rights violations in the form of custodial crimes should remain as high priority in the largest democracy to secure peace and social order. The legal dogmatics and reformative judicial precedents of the Judiciary prove to play a major role in enforcement of human rights. The Judicial System in a democratic framework of governance along with the Rule of Law strengthens the realisation of human rights, adjudicates human rights disputes, reforms human rights offenders and guards the eternal liberty of human persons. The National Human Rights Commission, a new noisy entrant into the lawless scene, can mark excellence in reinforcing statutory capabilities of laws. The need of the time is an Ombudsman, mellow and militant, to defend human rights with authority and decentralised (democratised) presence.

[1]  See, Mohan Lal Sharma v. State of Uttar Pradesh, (1989) 2 SCC 314 : 1989 SCC (Cri.) 434; Rajasthan Kisan Sangathan v. State of Rajasthan, AIR 1989 Raj. 10.

[2] (2000) 5 SCC 712.

[3] Arvinder Singh Bagga v. State of Uttar Pradesh, AIR 1995 SC 117 : (1994) 6 SCC 565.

[4]  Raghubir Singh v. State of Haryana, AIR 1980 SC 1087, 1088; Kartar Singh v. State of Punjab, 1994 SCC 56; Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

[5] AIR 1981 SC 625.

[6] (1993) 2 SCC 746.

[7] (1994) 4 SCC 260.

[8] AIR 1997 SC 610.

[9] (1995) 4 SCC 262.

[10] AIR 1980 SC 898.

[11] AIR 1981 SC 746 : (1981) 1 SCC 608.

[12] T. V. Vathees Waran v. State of Tamil Nadu, AIR 1983 SC 361; Prem Shankar v. Delhi Administration, AIR 1980 SC 1535.

[13] AIR 1980 SC 1087, 1088.

[14] AIR 1983 SC 378.

[15] Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867.

[16] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.

[17] AIR 1978 SC 1514.

[18] (1980) 3 SCC 488.

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