is the most common form of police delinquency intended to obtain financial
gains or career
promotions for officers in authority in exchange for not practicing or
selectively pursuing an investigation or arrest. This led to the enactment of
Code of Conduct
for the Police in India (1960) which provides guidelines for the code of
conduct for the police and other officers in authority who are expected to bear
faithful adherence to the Constitution of India by respecting and upholding the
rights of the citizen.
knowingly and analytically participate in organized crimes like custodial
The prisoners in custody are subjected to injuries and
elusive influences by the police authorities for extorting confession. This is a punishable offence under Sections 330-331
of the Indian Penal Code, 1860 and section 163(1) of the code of criminal
procedure. However there are rarely any convictions for torture by police as
there is no evidence of the barbaric act that is committed within the four
walls of the police stations. In State of U.P. v. Ram Sagar Yadav1
the court observed that “Police officers alone and none else can give evidence
as regards the circumstances in which a person in their custody comes to receive
injuries while in their custody. As a result, the innocent persons upon whom
the brutalities are inflicted by the police in the sanctorum of the police
station are left unpunished due to lack of evidence.
It was suggested by the court to re-examine the burden of proof by the legislature. The
officers in authority are required to respect and recognize their powers as
well as the limitations imposed on them. This would ensure that the police
authorities understand their responsibilities and not usurp the functions of
the judiciary by oppressing the innocent citizens who look to them for
Moreover these provisions in the IPC are
limited to situations where specific kind of physical injuries are inflicted
upon the prisoners and they fail to cover the extent of ways in which the
torture in committed.
Despite the signing of United Nations Convention against
Torture and other cruel, Inhuman or Degrading Treatment or Punishment in 1997,
India has persistently refused to ratify the same.
The rampant use of force by the police authorities has
attracted a lot of criticism at national and international level. The Prevention of
Torture Bill, 2017, has been proposed by the Law Commission of India in its
273rd report. This anti torture bill makes the state unswervingly responsible
for any injury perpetrated by its agents on citizens.
Torture is an instrument of human degradation and the public
servants will have to bear in mind that custodial torture will not be justified
on the basis of soverign immunity as the citizens are entitled to fundamental
rights which forms the basic structure of our Constitution.
However this bill excludes the mental anguish or trauma arising
due to the coercion from the torture inflicted upon the prisoner
existing statutory framework fails to recognize the gruesome effect of custodial
torture and treats it as if it were an ordinary crime.
The constitutional safeguards in our country provide that
nobody can be deprived of his life and liberty without following the procedure
prescribed by law.2
In Sunil Batra v. Delhi Administration,3
the Supreme Court in crystal clear words held that “fundamental rights do not
flee the person as he enters the prison although they may suffer shrinkage
necessitated by incarceration.”
Our statutory framework contain sanctioning provisions which
provides for punishment to an officer for unlawful confinement with a
fraudulent or a malevolent motive.4 In
Mehboob Batcha v. State,5 the policemen wrongfully confined the prisoner
in police custody on suspicion of theft for a period of three days. This
eventually lead to the death of the prisoner and the gang rape of the prisoners
wife. However these provisions are not as effective as they should be. Public
servants in a democratic country like India, take advantage of the powers
coffered to them and oppress the marginalized class of society.
It is clearly laid down in The State of Andhra Pradesh v. N.
that there are no provisions which given the policemen authority to torture the
suspects during the process of trial, investigation, or conviction.
The policemen torture the prisoners in custody and justify
it by saying that the act was done “under the provision of law”
Custodial torture also know as extra-judicial execution has
always been an issue of rising importance having a direct bearing on the right
and liberty of an individual. This is
fundamentally because the policemen in our country have not been trained in the
field of human right. The fundamental obstacle in punishing the police
authorities for acts of torture is the that they are ‘Public Servants.’ They
are protected by the provisions of the Criminal Procedure Code, 1973 which
provides that public servants cannot be prosecuted without prior permission
from the Government, either state or central, which employs them.7
However this is argued in the case of in case of State of M.P. v Sheetal Sahai8
where the Supreme Court held held that the intention of the legislature behind
enacting Section 197 of Criminal Procedure Code, is to create an environment
where the policemen can carry out their duty without any deterrence from the
state and not to protect the public servants who are guilty of committing
Basu. v. State of West Bengal is one of the landmark judgments where the
Supreme Court of India laid down guidelines regarding the arrest of the person
keeping intact the principles of Article 21 and 22(1) of the Indian
Constitution. However there are no regular monitoring agencies to oversee the
implementation of these guidelines.
these guidelines are not available to alien enemy or to a person detained under
a law providing for the preventive detention.
ingrained feudal police argue that the implementation of the guidelines laid
down in the case would severely weaken the effectivity of the police in curbing
crime and taming the criminals.
Satpathy v. P.L Dani & Anr.108, the Court held that not only physical
threats or violence but psychological torture, atmospheric pressure,
environmental coercion, tiring interrogation by police are violation of law. AIR
1978 SC 1025
1 AIR 1985 SC 416
Article 21 of the Indian Constitution
3 AIR 1978 SC 1675; See also Sunil Batra (II) v. Delhi
Administration, AIR 1980 SC 1579; and In Re: Inhuman Conditions in 1382
Prisons, AIR 2016 SCC 993
section 220 of IPC
5 (2011) 7 SCC 45
6 AIR 1964 SC 33.
Section 197 of the Code of Criminal Procedure
8 (2009) 8 SCC 617