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Recently, our country witnessed one of the worst crime that happened with Jeyaraj and Beniks. The two men died, as they were subjected to brutality and torture in Police Custody. Their family alleges they had severe internal and external wounds, including rectal bleeding. In India, 1,727 deaths are recorded in police custody and most of such death were attributed to custodial torture. But to our surprise only 26 policemen were convicted of custodial violence.

The question here arises whether the fundamental rights of a person ceases once a person is arrested? Whether the police is empowered to violate the human rights?


The concept of custodial crime is not new in the Indian society. It can be traced back since the British rule. When the state takes a person in custody, it becomes its responsibility to safeguard the fundamental rights of the person. On behalf of the state the duty of protection of fundamental rights is of the police. Police is considered as the guardian of the rights of a person.

But the police administration is always criticized for abusing the basic fundamental rights of the prisoners by torturing, using third degree for investigation and custodial death. Death of a person in custody whether of police or judicial or any other institution amounts to custodial death.

Custodial death is matter of grave concern.

It is an inherent violation of Article 21 of the Constitution that provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The torture that the person has to suffer is violation of human dignity.

Some commonly used methods of torture by police are beating, burn by cigarette or boiling water, inserting heated metal rod into anus, suspension by wrist or ankle, forced immersion of head into contaminated water, electric shock, disallowing sleep, solitary confinement in a dark place, inserting foreign body into genitals, undressing before others or raping the female victims etc.

In such cases, direct evidences are rarely available against the police personnel. The fundamental rights given to a person under Article 21 does not cease even if the person is in jail. Torture in custody flouts the basic rights of the citizens and is affront to human dignity. It is the duty of the state to ensure that humans are treated as humans even in custody. The cases of custodial death calls Judicial Magistrate to conduct magisterial enquiry under Section 176 CrPC at the earliest.


The Supreme Court in the case of Maneka Gandhi v. Union of India, held that any state action affecting life and liberty of the people assured under Article 21 of the Constitution has to be “right, just and fair, and not arbitrary, fanciful and oppressive”.

The Supreme Court in Nilabati Behera v. State of Orissa, observed that it is an obligation of the state to ensure that there is no infringement of the indefeasible rights of the citizen to life, except in accordance with procedure established by law, while the citizen in its custody, whether he be a suspect, undertrial or convict… the wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life and except according to the procedure established by law. The defence of “sovereign immunity” in such cases is not available to the State.

To reduce the cases of custodial deaths, the court ordered the state to pay compensation for excessive torture, wrongful detention and custodial death.

In Nilabati Behera (Smt.) v. State of Orissa, the Supreme Court while ordering compensation of 1.5 lakhs by the state to the petitioner for custodial death of her son aged 22 years, reiterated that compensation for contravention of human rights and fundamental freedoms as guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights.

In D.K. Basu v. State of W.B. , the Supreme Court held that Custodial violence including torture and death in lock ups strikes a blow at the rule of law which demands that the powers of executive should not only be derived from the law but also that the same should be limited by law.

 For the sake of providing justice, the concepts of laws are being evolved by the courts. In case of Moheela Moran v. State of Assam, Phoolwati v.

NCT of Delhi and in some other cases of custodial death, the doctrine of vicarious liability which states ‘liability follows negligence’ was upheld by the courts.

Judicial activism can be seen in progress for the protection of human rights of persons in custody.

The accused was given a right to secure the services of the lawyer of his choice at the time of police interrogation. Then putting bar-fetters on, and handcuffing, of prisoners was regarded a kind of torture, cruel and degrading treatment in terms of Article 5 of the Universal Declaration of Human Rights and prescribed procedural safeguards. The Supreme Court considered solitary confinement of prisoners as a human perversity which should be avoided and issued suitable guidelines.

Provisions were made for legal aid at state cost compulsory in cases of poor and indigent accused under trial in criminal cases, for seeking bail and also for defence at the time of trial.


The crisis of custodial aberrations, especially those relating to custodial deaths is indeed a very serious problem confronting not merely the police organizations but the very spirit of democratic living as a whole. It is only fit and proper that such a complex problem merits to be tackled on many fronts.

Besides considering the enactment of some of the needed legal changes as well as ensuring administrative improvements and modulations, it is vital that a more effective and intense training schedules informs all professional preparedness of policemen, defensemen, medical personnel as well as those in judiciary. 

Police machinery is made to control crime but in these type of cases the crime is done in police itself in the custody.

The need of the hour is to ensure that the impressive list of fundamental rights that the Constitution of India provides is safeguarded.

There are plethora of harsh laws to check crime but now the need of the hour is to get a legislative framework to curb out criminal activity in custody.

It must be noted that in the welfare state everyone is subjected to rule of law and police authority is no higher than the rule of law.

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