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TORTS RESEARCH PAPER

CUSTODIAL DEATHS

Aviral Sahai

Section A

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Custodial Deaths in India

Aviral Sahai*

Abstract

This paper mainly reflects on how custodial deaths/death in

custody in India has risen in the past decade to reflect upon the

state of the police structure in our nation. The paper refers to a few

cases and the reasons behind such activities and also attempts to

draw a pattern between the occurrence of such acts and the

response of the government.

Introduction

“Custodial death is perhaps one of the worst crimes in a civilised society governed by

the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be

jealously and scrupulously protected. We cannot wish away the problem. Any form of torture

of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the

Constitution, whether it occurs during investigation, interrogation or otherwise. If the

functionaries of the Government become law-breakers, it is bound to breed contempt for law

and would encourage lawlessness and every man would have the tendency to become law

unto him thereby leading to anarchism.”1

1*Aviral Sahai is a first year student of law at Jindal Global Law School, Sonipat, Haryana.(e-mail - aviral.sahai@jgu.edu.in) Anand, J. Shri D.K. Basu, Ashok K. Johri v. State of West Bengal, State of Uttar Pradesh, 1997 AIR(SC) 610

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1184 Indian citizens, in the last eight years (from 1 April 2001 to 31 March 2009),

were killed while in police custody, most of them due to extensive mental and physical

torture within the first 48 hours of detention.2

The highest number of custodial deaths was reported in Maharashtra (192 cases)

followed by Uttar Pradesh (128), Gujarat (113), Andhra Pradesh (85), West Bengal (83),

Tamil Nadu (76), Assam (74), Karnataka (55), Punjab (41), Madhya Pradesh (38), Bihar and

Rajasthan (32 each), Haryana (31), Kerala (30), Jharkhand (29), Delhi (25), Orissa (24),

Chhattisgarh (23), Uttarakhand and Meghalaya (16 each), Arunachal Pradesh (11), Jammu

and Kashmir and Tripura (9 each), Puducherry and Chandigarh (3 each), Himachal Pradesh

(2) while Manipur, Goa, Sikkim, and Dadra & Nagar Haveli recorded one case each.3

‘Lilabati Chowdhury, seven months pregnant and a mother of two, was

brutally beaten by a police patrol party, who were looking for her husband,

from Beharampore police station, West Bengal, India at midnight on 7 August,

2004. She was taken to a hospital close by and was declared dead the next

morning.’

These are numbers, however, just of those cases which have been officially reported

by the government itself. In its report: Torture in India 2008: A State of Denial - the first ever

nationwide assessment on the use of torture in India - released on June 25, Asian Centre for

Human Rights stated that 7,468 persons, at an average of 1,494 persons per year or about four

2 ACHR PRESS RELEASE. “Police torture kills 1,184 persons in custody in India in the last eight years”. ACHR INDEX: PR/IND/02/09. 25 June, 2009. <http://www.achrweb.org/press/2009/IND0209.html>

3 ACHR PRESS RELEASE. “Police torture kills 1,184 persons in custody in India in the last eight years”. ACHR INDEX: PR/IND/02/09. 25 June, 2009. <http://www.achrweb.org/press/2009/IND0209.html>

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persons per day, have died and/or been killed in prison and police custody during 2002 to

2007.4

The statistics present are overwhelming and practically shameful when one considers

the nation to be a developing one, with aims of being a global superpower one day. Custodial

Violence means torture in police custody. Torture is no doubt an international phenomenon

but the incidents are much more in developing countries and the overall situation in India is

far from being satisfactory.5 The deaths resulting from the injuries or harm inspired by this

Custodial violence is categorised as Custodial Death/Death in Custody (Custodial Violence

may, at times be used in place of Custodial Deaths, as it is the direct cause leading to

Custodial Deaths). Custodial death in India is defined as is the one occurring during the

period the person is in the custody of police, prison or any other institutions set up by the

State for detention, as mentioned in the Entry-4, State List (List II).6

‘Suman Behera, a 22 year old boy, was taken away by the police authorities,

on 1 December, 1987, at Bisra police station, District Sundergarh, Orrisa, in

connection with an offence of theft. He was detained at a police outpost. The

next day his dead body was found on the railway track near a bridge, some

distance away from Jeraikela railway station.’

The founders of our constitution gave widespread fame to the Indian Constitution by

virtue of their ingenious ideas implemented in formulating, what came to be, the world’s

largest constitution. It was flexible as well as rigid, strict while mentioning Directive

Principles and handing over power to the people with Fundamental Rights. Fundamental

4 Asian Centre for Human Rights. “Torture in India 2008: A State of Denial” First published June 2008.< http://www.achrweb.org/reports/india/torture2008.pdf>

5 Bhatt, Nadeem. “Custodial Deaths in India”. Newstrack India. 31 May, 2009.< http://www.newstrackindia.com/newsdetails/235>

6 CNN-IBN Forum for Students. “Custodial Violence – The Worst Crime in a Civilised Society” 18 August, 2009.< http://ibnlive.in.com/cfs/blog/53758/1541>

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Rights, contained in Chapter II, are an elite feature of our constitution, containing rights such

as; right to equality, right to education right to life, freedom of speech, right to religion, etc.

Legally speaking, Custodial Deaths come under the ambit of constitutional torts. They

can be categorised so on the basis that this offence is in direct conflict with an individual’s

Fundamental Rights as mentioned in the Indian Constitution. A tort is, as very aptly put by

Sir Frederick Pollock, an act which causes harm to a determinate person, whether

intentionally or not, not being the breach of a duty arising out of a personal relationship or a

contract, and which is either contrary to law, or an omission of a specific legal duty, or a

violation of an absolute right.7

‘Mahinder Kumar, on August 16, 1987, got into a scuffle with a constable of

the Vivek Vihar police station in east Delhi. He surrendered a week later and

was brutally beaten up while in custody. The next day on August 25, Kumar

was rushed to a hospital where he was declared dead on account of his bodily

injuries.’

The tortuous offences come within the scope of Articles 19, 21 and often under

Article 22 as well. Art 19 of the Indian Constitution provides for, amongst other things, the

freedom to move about the territory of India. Art 21, which is the main fundamental right

violated, deals with the Protection of Life and Personal Liberty, stating that, ‘No person shall

be deprived of his life or personal liberty except according to procedure established by law.’

Lastly, as prior mentioned, in many cases even Art 22 - Protection against arrest and

detention - of the constitution is violated.

7 Pollock, Sir Frederick. “The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law”. Fourth Edition. Ch 1 The Nature of Tort in General. Ed. Stevens and Sons, 1895. As mentioned at, The Online Library of Liberty, available at, <http://oll.libertyfund.org/index.php?option=com_content&task=view&id=1223&Itemid=284>

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These three fundamental rights when taken together form the basis of serious

offences when violated. The fact that these acts are committed by institutions assigned to be

the protectors of the citizens, aggravates the dilemma further. It is committed under the cover

of a uniform and within the confines of a police station, the sufferer being left totally

helpless.

As and when the dignity of humankind is injured, civilization takes a step backward.

It is a calculated assault on human dignity. Custodial Violence is something so shockingly

prevalent in our country that the Government perhaps has taken it to be a parallel nature to its

systems. The issue, however, of Custodial Deaths is not merely confined to the limitations of

India, it is a global phenomenon affecting almost every country, but the degree of such

violence in India can be said to be much more in comparison to other nations of the world.

‘Abhijnan Basu, was serving his prison sentence at the Presidency Jail, West

Bengal. Officers at the prison murdered him because he dared to complain

about the inhuman conditions and the poor quality of food. Three prison

wardens set him ablaze on 12 November, 2004. The Jailor, who is duty bound

to protect the prisoners, supervised the entire incident.’

Although it has been a signatory of the Convention Against Torture (and Other Cruel,

Inhuman and Degrading Treatment or Punishment) since October 1997, India till date has not

ratified it. It is not the attitude of any specific government as such, but just the conditioned

attitude of the Indian society. People are more or less unaware, or ignorant of these facts.

When and if a case does crop up, the general trend is to condemn it, rarely a case in the court,

a small ten page article in the newspapers and noting more.

Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes

to the state of anarchy and lawlessness in many parts of the country. Torture is used as a

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cheap and easy method of investigation and also as a tool for oppression. In the hands of the

wealthy and influential, Indian law enforcement agencies have also strengthened links with

criminal elements. Even the judiciary in India cannot sever this nexus, between police and

criminals.8

The legal system in India is not well equipped to tackle a problem such as Custodial

Deaths. The importance, as it is, given by the government is low, above which the priority

given to the few cases is not adequate. The legal expenses in our country are too much for the

lower sections of society to afford.

‘Jabed Ali Mahaldar, a fisherman from West Bengal went about doing his

work on 30 April, 2009. He was apprehended by three BSF officers stationed

at Nimtita Border Outpost (BOP). He was beaten without questioning on the

spot, taken to the camp and beaten for hours again. At the hospital, where he

finally succumbed to his injuries, he was declared to have second degree

injuries on his body and head.’

These few examples, these few names mentioned are just a minor fraction of the

people suffering from this atrocious exercise of governmental institutions. These names are

but memories fading away, some have claimed sanctuary under the law, and some have

succeeded, but the fact still remains, the practice and occurrence of Custodial Deaths is still

rampantly destroying the legal rights of individuals.

Hence, we are faced with a few questions to consider: How does the Indian

government prioritise the issue of Custodial Deaths?

8 Asian Legal Resource Centre. “Written Statements - 61st Session of the CHR – 2005” Section 9 Custodial deaths and torture in India < http://www.alrc.net/doc/mainfile.php/61written/276/>

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And immediately we are met with an answer: The government of India is till date

very callous towards the issue of custodial deaths, and its actions towards the

eradication of this issue, are extremely constrained and restricted.

Custodial Death as a Tort

The easiest method to determine whether a certain offence comes within the purview

of being a tort is to break up that offence between other pre-existing tortuous offences. We

know, some of the generally prevalent tort offences are Assault and Battery, Trespass (to

person or property), Intentional Infliction of Emotional Distress (IIED), Negligence, False

Imprisonment etc. Custodial Violence can thus be segregated as violations under such

aforementioned categories.

We can easily decipher that Assault and Battery are one of the key tort offences

constituting Custodial Deaths. Due to the excessive physical and mental torture inflicted upon

the person, Custodial Violence is an apt illustration of Trespass to Person and IIED. Most of

the cases are also of False imprisonment. Thus, it can be clearly deduced that Custodial

Deaths are a tortuous offence by relating different tort offences to the phenomenon of

Custodial Violence.

Furthermore, as mentioned earlier, the offences committed by the governmental

authorities, are in gross violation of the Indian Constitution, hence, labelling Custodial

Deaths as being constitutional torts.

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When an individual is apprehended, may it be for legitimate or illegitimate reasons, it

is required, by Indian law, for the apprehending authority (Police, Army, Border Security

Force, etc.) to firstly, issue a warrant of arrest, secondly, to inform the person of the grounds

of arrest and thus, to file a charge-sheet with the district magistrate. On the occasion of not

obtaining a warrant, the police officers have to present the offender in front of the magistrate

within a time frame of 24 hours. A very high majority of the cases, exhibit an absence of even

these basic procedures which are supposed to be followed by the governmental authorities.

The Government of India – Situation of Custodial Deaths in India

The Indian government, as a parallel to the Declaration of Human Rights (10

December, 1948), had formed both National and State Human Rights Commissions by the

Protection of Human Rights Act of 1993, to keep a check on the nature of human rights

violations within the country. It is of course understandable that monitoring human rights in

India is an enormously difficult task.  India has over a billion people and conflict in many

States. A major issue, however, is the system of information collection and reporting. The

whole structure of institutions such as the NHRC (National Human Rights Commission) and

NCRB (National Crime Records Bureau) are flawed, which end up grossly under-reporting

the extent and volume of human rights violations in the country.

“The figures collected by the NCRB are flawed and outdated. In 2007 the NCRB

reported that 139 people died in police custody. 23 people died during production, process of

the courts and the journey connected with investigation; 38 of them died during their

hospitalization and treatment; 9 died in mob attacks/riots; 2 were killed by other criminals; 31

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committed suicide; 7 escaped and 29 died from illness/natural causes. Effectively this is an

official denial of any death resulting from human rights violations.

If these statistics are used to examine the need for reform then there is clearly no need

for reform. But these statistics sit uneasily with the findings of the Supreme Court of India

that has pointed out that the police ‘more often than not seek to pervert the truth’.”9 The

national and the state human rights commissions have no authority to change this situation of

rampant violations by the Indian police. There is no independent body to inquire into reported

cases of torture. Commission orders are mere recommendations and are often ignored by the

national and state governments. Where torture is state-sponsored, the recommendations rarely

get executed. The Human Rights Act is simply eyewash for the international community;

since it cannot be enforced, it is useless.

India has not ratified CAT on the pretext that existing laws have adequate provisions

to prevent torture, in addition to constitutional safeguards. But the provisions of the Criminal

Procedure Code, Indian Evidence Act and Indian Penal Code are worthless, since there is no

procedure for independent inquiries into torture and compensation for victims. Constitutional

remedies as well are meaningless for most victims. The Constitutional Courts are virtually

inaccessible to ordinary people, and even if a victim is successful in getting a case heard,

these usually experience huge delays. The lack of motivated lawyers and legal assistance, and

a defective prosecution system, worsen this situation.10

As it has been stated in India Human Rights Report 2008, by the ACHR11;

9 Asia Centre for Human Rights. “India Human Rights Report 2008”. <http://www.achrweb.org/reports/india/AR08/preface.html>

10 Asian Legal Resource Centre. “Written Statements - 61st Session of the CHR – 2005” Section 9 Custodial deaths and torture in India. Available at < http://www.alrc.net/doc/mainfile.php/61written/276/>

11 Asian Centre for Human Rights. “ACHR Press release” ACHR INDEX: PR/IND/02/08. Published 25 June, 2008. < http://www.achrweb.org/press/2008/IND0208.html>

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“A pervasive system of impunity is the single most important factor for

institutionalising widespread use of torture even in areas where there are no armed conflicts.

Only four police personnel were convicted in 2004 and three in 2005 for custodial deaths.

“Hundreds are killed, dozens are paid compensation but only three to four persons are

convicted each year. Nothing more can expose the pervasive impunity,” stated Suhas

Chakma, Director of Asian Centre for Human Rights. Judiciary’s role has been laudable but

the Courts are hampered by lack of specific legislation against torture, immunities offered to

the law enforcement personnel under the Criminal Procedure Code and national security

laws, and the more general problem of judicial delay.

India is in a worrying state of denial about torture. Home Minister of India attributed

these 7,468 custodial deaths to "illness/natural death, escaping from custody, suicides, attacks

by other criminals, riots, due to accidents and during treatment or hospitalisation.” However,

the Home Minister failed to clarify as to why so many accused had committed suicide in

police detention.

The ACHR lamented that India refuses to address torture by the law enforcement

personnel. It failed to enact a law to provide compensation for custodial crimes and

implement the recommendations of the Law Commission of India’s 152nd Report on

“Custodial Crimes” to make consequential amendments to Indian Evidence Act, 1872

(insertion of Section 114B) to provide that “in case of custodial death the onus of proving of

innocence may be fixed on the police.”

The majority of the victims of custodial death and violence as observed by the Law

Commission are the poor and weak12. The lower level of society who in almost a majority of

12 A.K.Saxena, P.S.V. Prasad and Sankar Sen, Custodial Deaths in India (A Research Study), 1st Ed., 1994, p.1. As observed in: Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>

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the cases cannot revolt back and do anything about the injustice done to them or one of their

family members. Arun Shourie once observed: “The victims were invariably poor. Several of

them hauled in on no formal charges at all. Even in the case of persons who were arrested, in

an overwhelmingly large number of cases they were all accused of petty offences.”13

As a matter of fact, the victims of custodial violence are people from poor and

backward sections of the society with little political or financial power to back them. Personal

enmity, caste and political considerations and at times pecuniary benefits become important

considerations for custodial deaths rather than investigation of cases.14

The problem however, lies, as pointed out by the report by the AHRC as well, in the

fact that the system and structure in place for the government to utilize is very weak and

greatly flawed. The beaurocracy is compromised from the top to the bottom. For a real issue

to permeate through into the minds of those governing, it takes a lot of time and sacrifice.

The government of India is directly responsible for the heinous manner in which its enforcers

behave. May he be a prisoner; an individual still holds the authority to demand his rights by

virtue of being a human being. It is sorry and despicable state in which the image of India is

left when the details of such happenings are made public.

The difficulty lies with the fact that police authorities are under a high level of

pressure to cope up with the rising levels of crime. In order to subside some of these cases,

they force suspects to plead guilty, using practically all possible forms of torture and third

degree violence. These methods result in coarse violations of individuals’ human rights. Even

the Supreme Court of India is averse to these practices and in the judgement of a case of the

13 Kannabiran, K.G. “Creeping Decay in Institutions and Democracy”. The Economic and Political Weekly, August 1992 As mentioned in: Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. < http://students.indlaw.com/display.aspx?3859>

14 Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>

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custodial death of Abdul Gafar Khan, in a Mumbai police station, it ascribed the cause to the

‘devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the

defenders of democracy and protectors of people’s rights and yet do not hesitate to

condescend behind the screen to let loose their men in uniform to settle personal scores,

feigning ignorance of what happens and pretending to be peace-loving puritans and saviors

of citizens' rights.’15

Being a member of the United Nations and on a plain moral basis, the Indian

government is honour bound to uphold the Declaration of Human Rights, 1948, which

declared in the preamble that recognition of the inherent dignity and of the equal and

inalienable rights of all members of the human family is the foundation of freedom, justice

and peace in the world.

Article 1 proclaimed that all human beings are born free and equal, in dignity and

rights.

Article 3 proclaims that everyone has the right to life, liberty and security of person

In Article 5 says that no one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment.

Article 11(a) contains the defense of presumption of innocence of a person charged

with a penal offence until proved guilty. It is meant to insulate him against any high-handed

treatment by the authorities dealing with him in the matter.

Additionally, the Indian government needs to rethink on the reservation mentioned on

Article 9 of ICCPR (International Covenant on Civil and Political Rights) which says the

provisions of the Article shall be applied in accordance with Article 22 clauses (3) to (7) of

15 Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Another, 2003 AIR(SC) 4567

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the Constitution of India. It further states that under the Indian Legal System, there is no

enforceable right to compensate a person who claims to be a victim of unlawful arrest or

detention against the State.16

Thus, in short, the attitude of the Indian Government towards the issue of Custodial

Deaths is not adequate enough to combat this issue. If a case by chance is filed against the

government, a maximum of perhaps Rs. 1 lac is provided as compensation, which is nowhere

in proximity to the loss suffered. The citizens of our nation are suffering at the hands of those

assigned to protect us. There are many cases of custodial deaths which have reached the

highest courts of our nation but still neither a police officer, nor any other individual is

convicted of this heinous crime.

Cases of Custodial Deaths in India

The law has established all persons equal (by Art 14 of the Indian Constitution) as the

Supreme Court once said: The protection of the Article extends to all persons not merely

citizens17 and it should also include even persons under imprisonment18, these principles,

however, are often disregarded by the authorities. It is the duty of the State and its officials to

look after every person by offering immediate medical aid to every patient, regardless of the

question whether he is an innocent or a guilty person19, but these have been greatly ignored

by officials especially the Police in general. Almost all the offenders brought in the custody

of the Police have been denied of their right to get the necessary medical aid that they should

be getting, and that is because of the fact that they are under trials, convicts and prisoners and

16 The United Nations Human Rights Treatises. “Reservations, Declarations, Objections and Derogations - CCPR - India” <http://www.bayefsky.com/html/india_t2_ccpr.php>

17 Anwar v. State of Jammu and Kashmir, (1970) 2 S.C.W.R. 276 (279)

18 State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (426)

19 Parmanand v. Union of India, AIR 1989 SC 2039

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are, according to a majority of the society, not deemed fit to be a part of the society as they

generally are looked down by the society.20

While the Supreme Court has clearly held that: Even convicts, prisoners and under

trials have right under Article 21, and only such restrictions can be imposed as permitted by

Law21 While Article 21 says no person is to be deprived of his life or personal liberty, the

exception being except according to the procedure established by Law22 the majority of

people are denied of their rights. The Constitution safeguards the fundamental rights of a

prisoner (convicted and imprisoned under sentence of court), excepting those which cannot

possibly be enjoyed owing to the fact of incarceration23 but in the case where the person has

not even been proven guilty by the correct procedure established by our constitution which is

that they should be tried in a court before being deemed an offender.

The following are a few cases of Custodial Deaths that have reached the Indian courts

and received some attention:

Nilabati Behera Alias Lalita Behera v. State of Orissa and Others, 1993 AIR(SC)

1960

As prior mentioned, this is the case of a 22-year old boy, by the name of Suman

Behera. Suman Behera was taken into custody by the police on grounds of theft,

which were not proven, without an arrest warrant. He was found dead, on railroad

tracks the next day, on account of physical injuries. A letter dated September 14, 1988

sent to this Court by Smt Nilabati Behera alias Lalita Behera, was treated as a writ

20 Man Singh, Niranjan and Roy, Prashant. “A brief note on custodial death in India”. <http://students.indlaw.com/display.aspx?3859>

21 Nilabati v. State of Orissa, AIR 1993 SC 1960

22 Sunil v. Delhi Administration, AIR 1980 SC 1579

23 Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092

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petition under Article 32 of the Constitution for determining the claim of

compensation. The respondents (police) claimed that Suman Behera had escaped from

custody, and was run over by a train. The doctor who was appointed by the court,

however, stated that the injuries to the deceased body could not have been inflicted by

a train but rather from lathi blows. The court concluded in this case that a

compensation of Rs 1,50,000 be awarded to the petitioner. Even though a few officers

of law were mentioned in this case none were prosecuted for their acts.

State (Govt. of Nct of Delhi) v Smt. Iqbal Begum, 2004 (110) CRLJ 3092

The deceased was the husband of Smt. Iqbal Begum, who was summoned to the

Seelampur Police Station, NCT of Delhi (on the basis of F.I.R. No. 475/94) on 27

August, 1994. After about four hours of being in the police station, he was taken to a

hospital, where he was declared dead. The post-mortem revealed that the death was

on account of bodily injuries which aggravated pre-existing inflictions. The court

found the authorities liable and awarded a compensation of Rs. 3,50,000 to the

deceased’s wife.

Swaranjeet Singh v. State of Punjab and Others, C.W.P. No. 16029 of 2008

The petitioner is the unfortunate father of a 25 years old young man who died an

unnatural death inside the Central Jail, Amritsar. The petitioner's son was arrested in

connection with a case under the Punjab Excise Act and was an under-trial prisoner.

According to the petitioner, his son was taken to Guru Teg Bahadur Hospital on 27

November, 2006 at about 5.22 PM where he died within 4-5 hours. No intimation was

sent to the petitioner. It was alleged that the boy died of custodial violence.

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Sunita v. State of National Capital Territory of Delhi and Another, Lpa

No.2552/200524

The deceased was an employee of the Haryana State Electricity Board (HSEB), and

on the morning of 15 August, 1999, was found by the police, carrying Rs. 1,30,000 in

Rs. 500 denominations. He was taken to a nearby police station and was subjected to

third degree torture by the officers present there. The same day he was declared dead

in a hospital, where, yet again, the doctors attributed his demise to physical beatings.

Smt. Sunita was compensated with just Rs. 3 Lacs.

Masooda Parveen v. Union of India and Others, 2007 AIR(SC) 1840

The deceased Ghulam Mohi-ud-din Regoo, was an advocate enrolled and practicing

in the High Court of Jammu and Kashmir before the Srinagar Bench. He got into

some trouble with local merchants with regard to his business, which led these

merchants to approach militant groups for aid. On 1st February, 1998 some

surrendered militants alongwith a unit of the Army (17 Jat) reached Regoo's home in

Chandhara at about 8.30 p.m. and searched his house but found nothing incriminating

therein. He was nevertheless taken to the Lethapora Army Camp, the Head Quarters

of the 17 Jat, and tortured mercilessly leading to his death whereafter explosives were

placed on his dead body and then detonated to camouflage the murder. It is further the

petitioners' case that the morning after the incident, his body was handed over to the

police and was thereafter subjected to a very casual and cursory post mortem

examination. The court in this case however, found that the army being the guilty

party, could not do anything, and thus dismissed the petition believing the story

24 <www.indlaw.com> 2008 INDLAW DEL 882

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concocted by the defendants that Regoo was actually a Pakistani Trained Militant

(PTM).

These few cases are but a menial proportion of the actual happenings that occur in our

country. We have not even made a dent in the vastness of the matter. As we clearly see from

these few cases the compensation provided by the authorities is not in proportion with the

losses that the families of the deceased suffer. To really understand the emotions that run

through the minds, we have to feel the pain that the families go through, but at the same time

hope that we never face the atrocities that these people are faced with.

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Analysis

Having gone through the extensive research conducted and reports produced, we can

clearly decipher that custodial death as an issue in India is not given its due importance. Over

the extensive reports provided to us by various institutions like the ACHR, ACLR or even the

NHRC, a pattern is discernable which depicts nothing but a grossly high level of human

atrocities committed by the least likely bodies.

"Torture" has not been defined in the Constitution or in other penal laws. "Torture" of

a human being by another human being is essentially an instrument to impose the will of the

"strong" over the "weak" by suffering. The word torture today has become synonymous with

the darker side of human civilisation. The authorities in place to prevent such happenings are

the main perpetrators of torture. As Adriana P. Bartow once said, "Torture is a wound in the

soul so painful that sometimes you can almost touch it, but it is also so intangible that there is

no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a

stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and

hate. It is a desire to kill and destroy including the self."

The legal axis of these offences in society is one of great importance and should thus

be thoroughly understood to understand the extent of damage Custodial Violence poses to its

victims. As a tort it does not attract a high level of attention from either the society or the

government itself, the blame of which can be attributed to the low level of recognition a ‘tort’

by itself receives, in India. In the scenario that we live today, torts appeal very little to people.

The common tendency of people is to focus towards a criminal procedure rather than a

tortuous claim as the mindset, which has been fashioned for the society, attracts them towards

the alternative. The damages compensated, as we very well know, are much higher in when

filing for a tort than in a criminal case, but yet still people opt for a way other than torts, to

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retaliate and get their dues. The reason for this substitute to torts, is that, in India, torts is not

given due importance. Due to this fact, the education system in place does not have a medium

to propagate learning and awareness of torts. Consequently, when the system itself is weak in

understanding and comprehending a certain area of expertise, the people, by logic shall not

have a tendency to follow that area.

Custodial Deaths are a menace, and a black spot upon the Indian society. On one

hand, when the need to describe ‘India’ arises, people rise with pride and explain its richness

of culture and heritage, but concomitantly on the other hand, ignore social and legal evils like

custodial Deaths and torture by its own arms of protection.

The image of the police, in the eyes of the general public, has become extremely

downgraded but still the public fails to raise this issue with conviction. The offences

committed by governmental authorities are often noticed by the public and the government

itself, but somehow the attitude that is associated with it is always extremely lax and callous.

If a comparison is drawn with the other common law nations of the world, the

importance and stress given to tort law is close to minimum. Nations like Great Britain, the

United States of America, Canada, Australia, etc. attribute a high amount of importance to the

functioning and implementation of tort law, whereas in India, tort law is somewhat an

undiscovered and grossly under-utilised avenue which till date remains unused.

Custodial Deaths, as prior defined, come under the ambit of constitutional torts. The

constitution is a very strong piece of legal document when it comes to defending the rights of

a person. It is the basis of the formation of the nation we so proudly live in, but when it

comes to the matter of Custodial deaths, even the constitution does not live up to its name. It

is not the case that, if a legal case is filed alleging the custodial death of an individual, it is set

aside and not given legal sanctuary. But the main fact still remains, a few cases get filed,

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fewer get remunerated with compensation so highly disproportionate, but the problem of

Custodial Violence and Death still remain as fixated as the constitution itself.

One of the main aims of the field of torts is to deter offenders from committing

offences once again. This is another reality that the judicial system fails to balance out in its

remedies. Whenever compensation is issued, it comes out of the pockets of the government,

which in turn is nothing but tax-payer money. The offenders themselves do not face any form

of persecution as such.

The need of the hour is to instil a mindset, not only in the thinking of the government

enforcers but also in the public’s thought process, against the concept of custodial violence

that ultimately leads to deaths. The enforcing authorities need to be made aware and held

responsible for their actions, and the people need to be made conscious of the means,

methods and avenues available to them in the wake of such happenings. Of course, before

such a stage is reached, the government itself needs to make sure it has an apt system in place

which is capable to cope up with pressures like Custodial Deaths. The names mentioned, are

but names to us, but they meant a whole lot more to others, and it needs to be respected.

The government of India is till date very callous towards the issue of custodial

deaths, and its actions towards the eradication of this issue, are extremely constrained

and restricted, and should hence, make conscious efforts to undo its ways.