Updated: Aug 24
The Sathankulam case involving P. Jayaraj and his son Bennix became the trigger for a state-wide uproar over the dysfunctional state of policing and justice in India. In its wake, concrete demands have been put out by the public (social media activists, trade unions, shopkeepers, and the victims’ families) – most of whom call for the fair trial and arrest of the responsible policemen. The investigation has been handed over to the CBI, with 4 of the policemen arrested on murder charges. However, the particular case on its own is not the focus of this article, for many others cover the events in excruciating detail.
Much of the outrage emphasises the sadistic nature of the crime committed by officers of the law, who tortured and brutalised the men for what was barely a crime – keeping their store open beyond curfew. But in no way is this an isolated incident. Callous and arbitrary punishment is actually the norm in India, a norm which has seemingly worsened during the pandemic. Less than a week after the Sathankulam deaths, an auto-driver lost his life following a similar pattern of indiscriminate torture. Kumaresan’s crime, in this case, was arguing with the police and saying that ‘both policemen and auto rickshaw drivers wear khaki’. His punishment? Massive internal damage was caused to his kidneys, lungs, and other organs. Kumaresan died in hospital on June 27th.
On April 7th, cops in Bengaluru picked up Munipillapa, a 50-year-old daily wage worker, after an accusation of theft. His body was later found dumped in a well. While the police claim he had jumped into it himself, his wife was distraught and claimed it was the result of merciless torture.
The police are not the only authority responsible for these deaths. A BJP MLA from UP, Kishore Gujjar, proudly declared a reward of Rs. 5,100 to cops who shot down lockdown violators. “Those, who violate the lockdown, are traitors...the cops should break their legs. If they do not follow the orders then the police should shoot them in their legs.” He went on to specify that Muslims gathering in mosques for prayers should be shot if necessary. A month later Mohammad Rizwan, a teenager trying to buy biscuits, became the first fatality of police brutality in UP. At least 13 other similar cases of deaths during the lockdown have been unearthed by the Commonwealth Human Rights Initiative.
In the Sathankulam case, Justices P. N. Prakash and B. Pugalendhi of the Madras High Court stated, “A few bad apples here and there should not be a reason to condemn the entire force of around 1.25 lakh police personnel in the State, who were already in the forefront battling the COVID-19 pandemic.”
The main argument I present is simple: Custodial torture in India is not simply the result of a “few bad apples”. It is the result of a systemic failure in India – one, there are patterns of illegal police detentions, abuse and torture; two, there is incentive for the police to do so; three, there is impunity for wrongdoing; four, there is a denial of the practice at the state and national level; five, such patterns of abuse and negligence is often used for political gain; and six, there is resistance to reform at the judicial, legislative and police level. This article is best understood as a compilation and meta-study of the vast research already conducted in the realm of police brutality and torture in India to prove the argument, while highlighting the social implications of the same.
Establishing a pattern
In March 2013, Delhi cops picked up 7 or 10 teenage boys who they claimed were suspects in a case of theft. Rather than taking them to the station in standard fashion, the boys were kept in an apartment complex in ‘Lal Quarters’ and interrogated, violently. Their mobile phones and belongings were confiscated, their parents were not informed, and they were not given food more than twice over the period of two days. The boys were subject to horrific and humiliating abuse – drunk men shouted slurs at them, stripped them, and beat them with sticks and boots. The internal injuries sustained were serious enough that 7 months later, one of the victims had still not recovered. Apparently, the two apartments in Lal Quarters were routinely used for such interrogations.
A video of the event was leaked to news stations that day, and the ruckus caused led to six policemen being suspended. The investigation that followed, however, did not seem fruitful. The People’s Union for Democratic Rights noted,
“The entire effort of the chief investigating officer from an early stage in the investigation appears to have been directed not at uncovering the truth, but explicitly giving the accused policemen a clean chit by ‘proving’ that the adolescents were not minors and the video clip was doctored.”
The policemen were in fact surprised that such a routine event had even got such publicity and hostile response. The fact that it occurred with such blatant social and authoritative sanction in the nation’s capital paints a poor expectation for what we might find in other parts of India.
Most civil societies and whistle-blower groups studying torture agree on a few basic truisms: that torture is prevalent in India, in all regions, regardless of the party in power, is worst in areas of conflict, and commonly affects the poorest and the most vulnerable groups. The 1855 Madras Torture Commission received about 2,000 complaints of torture. In 2008, People’s Watch extrapolated data and suggested that about 1.8 million people are subject to torture by the police every year. In 2019, the National Human Rights Commission (NHRC) reported 1,723 cases of custodial deaths. In 2011, out of all the complaints of human rights abuse it received, 35% were against the police. The National Campaign Against Torture (NCAT) found in its report that 60% of victims of custodial deaths were from Dalit or tribal communities, religious minorities, or were poor.
The National Project on Preventing Torture in India’s 2008 report continues to be one of the most illuminating studies of the profound personal effects of custodial violence. Its Tribunals all across India invited 682 victims and families to share their testimonials. In some cases, victims did not turn up after settling with the police for sums of money. Of those who came forward, many shared distressing details of their ordeals, stating that their “life had been lost” and they didn’t know how to move on. The methods of torture used [trigger warning] included stripping, verbal and sexual abuse, ordering members of their family to watch their abuse, heavy beatings, hanging victims from hooks, forcing chilli powder into cuts, electric shocks and deprivation of food, water, privacy or sleep, to name some. Female victims were often mishandled, fondled, touched inappropriately and at times threatened with rape if they refused to stay silent – a threat that was nevertheless carried out. The injury caused was often deeper than merely physical: victims were constantly pressurised to admit to crimes they didn’t commit, often being called caste-specific slurs; they endured hearing the screams of other victims being tortured before their turn came; sounds of specific vehicles or certain officers stepping into the station filled them with dread, knowing that torture would soon begin; families were kept anxious about the victims’ conditions and whereabouts, with no details being given. Serial torture made victims and their families mentally weak, insecure, traumatised, depressed, disturbed or phobic. In one case, police dismissed the complaints brought by a minor girl who was raped, and she was instead put through severe interrogation. In another case, a rape victim was left unable to cope with court proceedings due to lack of treatment and support. Gender-specific abuse and calling women ‘prostitutes’ was apparently a common practice in police stations.
When such torture led to custodial deaths, the families were left with no breadwinners or economic support, were denied post-mortem reports or any enquiries, and were left unable to claim any compensation in courts. Almost all of the families that were present belonged to extremely poor and marginalised communities and survivors often had no idea why they were picked up by police. When some of these people attempted to pursue justice or sought intervention from State Human Rights Commissions, they were made to travel from all parts of the state for the hearings without compensation for their costs. The Tribunal also noted that when victims missed even a single hearing, their cases were dismissed.
Pre-trial detentions – a compounding problem
The question of torture in custody is inseparable from the question of prison conditions. Most people take it for granted that they will never be behind bars, and hence those who are placed there often seem like they deserve it. This privilege accorded to middle or upper-income Indians and the politician class practically erases the debate from the mainstream. A good illustration of this is the interchangeable usage of the terms ‘jail’ and ‘prison’, and therefore the interchangeable existence of the pre-trial detainees and the convicted. Indian lock-ups are notoriously overcrowded – the least crowded jail is 200% over capacity, while others like Sathyamangalam Sub-Jail is at 1250% over. Being arrested is a double-penalty here – not only do you await trial and have your rights stripped, but you are treated by the police as though you are already guilty. Not only are prison conditions negligible, but torture is expected there.
“From the uniformity in their filthy and overcrowded conditions, and in the brutal, dehumanizing treatment meted out by the police to their occupants, it seems lock-ups are specially built to oppress detenues and make their stay a type of deterrent to crime.”
Legally, the police are required to present any arrestee before a magistrate within 24 hours. This rule is little known to the public and easily flouted. However, when the arrestee is finally taken to ‘remand court’, they do not get the privilege of being represented by a public defender, which occurs only in trial. Considering that most of those arrested tend to be poor, the system fails them from the start. They get no opportunity to appeal or deny the claims of the police, who accompany them to the magistrate. The magistrates themselves make no attempt to determine whether remand is even necessary for the investigation of the crime committed, and the proceedings last less than two minutes. It is treated as a mere formality rather than what is meant to be – a check on police excess.
Magistrates can also question whether detainees have been tortured, but in practice they do not do so, and even ignore clear signs of torture such as bruises, blood or the victim themselves admitting it. In the case of Jayaraj and Bennix, the magistrate they were presented before did not appear fazed by their poor condition and blood-soaked clothes. He merely waved from the first floor, remanding them. Most custodial deaths, however, usually occur before the detainees are ever taken before a magistrate. From 2010 to 2015, 416 of 591 custodial deaths occurred this way.
The National Crime Records Bureau reports that there were a total of 4,66,084 prisoners in India in 2018, of which 3,23,537 were pre-trial detainees – nearly 70%. Muslims, Dalits and tribals are overrepresented in prisons. Most are lodged in district jails that are crowded beyond capacity, where they remain for weeks or months. The backlogs of cases and delay of justice is not an unknown phenomenon, but one silent side effect has been the steadily rising representation of undertrials in prison statistics. It is only worsened by India’s poorly funded public defender system, a lack of courtrooms, and a dearth of investigators and prosecutors.
A significant majority (nearly 66%) of such detainees have been found to be either illiterate or have studied up to class 10, which becomes a problem in several ways. On the one hand, the lack of literacy prevents them from being able to understand court proceedings, represent themselves fairly or even understand the charges that they were arrested under. Far too often, the police maliciously prosecute individuals under exaggerated or false claims. On the other hand, their presence in jail coincides with (or is perhaps caused by) their poor socio-economic background, and imprisonment serves as a double-penalty by removing breadwinners from poor families, preventing education or work, and sometimes imposing exorbitant monetary and timely costs on them. In the worst cases, torture endemic to jails and prisons leads to their death, but most undertrials suffer without dying.
In the conversation of prisons, women face uniquely gendered problems. Much of the police harassment faced by women is of a sexual nature, and police rapes are among the most hushed up crimes. Rape in custody is particularly problematic to report – victims are often not believed, and if they are believed they get ostracised by their families and spouses, and if they aren’t shunned the police simply refuse to file their complaint, and when their cases are actually taken up, the victims face further harassment and pressure from the police to remain silent.
Soni Sori, an Adivasi teacher turned tribal rights activist, was imprisoned multiple times for her political involvement. She noted her experiences in women’s prisons, saying
“Women live in crammed prisons, with a shortage of food, clothes and even sanitary napkins. Women face sexual violence and harassment at the hands of the policemen in forests. Young girls aged 14 are impregnated as a consequence and spend their time in jail in denial and depression.”
Imprisoned women are often raped under the pretext that they are criminals, and therefore ‘dishonourable’. In the rare occasions that such cases do come to light, policemen defend themselves by tainting the motives of the woman in court, calling her character ‘loose’, claiming she engaged in ‘dubious activities’ or sometimes pointing to her husband or son who was a criminal, and that therefore she is guilty by association.
Some may accuse this presentation as being sympathetic towards the criminal class, but we cannot solve crime or bring adequate justice by compounding the plight of detainees who have not even been convicted in court. They are legally innocent and fully deserving of dignity.
A look inside the lives of the police
“Why do the police torture?” is a question worth asking. It is an obvious question too, when considered in light of the fact that torture is a crime banned under international law, even in the case of warfare during which time there is a surge in nationalistic feeling, and the enemy is easily identifiable or clearly demarcated. It is easy to dismiss the problem by claiming, as the Madras High Court did, that “a few bad apples” do so, but this is not the truth for several reasons. As statistics show, it is prevalent across India and appears to be the norm. But more importantly, it is a crime that specifically and consistently worsens in every situation where the police are given undue power.
India is far too often championed as a country of great diversity with little thought being given to how this diversity is treated, especially when it results in conflict. Internal conflicts are not new; they have existed since, and in many cases because of, the aftermath of Indian independence. The solution in place, however, has not been democratic processes but repression through state violence.
Since 1958, the regions of the Northeast including Mizoram, Manipur, Tripura, Nagaland, Assam, Meghalaya and Arunachal Pradesh have come under the description of being “disturbed areas”. It is here that the Armed Forces (Special Powers) Act is in place. A similar version of the Act was passed by Parliament in September 1990 for Jammu & Kashmir, titled the Armed Forces (Jammu and Kashmir) Special Powers Act. While these Acts do not come under the scope of examination of this article, they are useful in shedding light on how legal authorization creates a culture of abuse among servants of the state. They are notorious for granting to the armed forces the ability to use lethal force or even fire upon suspected civilians for the ‘maintenance of public order’; the ability to search without warrant any property, and with as much force as necessary; the ability to arrest without a warrant, or in the case of the J&K Public Safety Act (PSA), allowing detention without trial for up to two years; and extensive immunity to the forces, by stating explicitly that
“No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act” 
While the resulting absolute number of deaths as a result of this Act is hard to verify, the Supreme Court in 2016 acknowledged that impunity to the armed forces must end after petitioners claimed that 1,528 extra-judicial killings occurred in Manipur alone. Srinagar-based Jammu and Kashmir Coalition of Civil Society reports that between 2008 and 2018 in J&K, 4,059 people were killed, and that 2018 was the deadliest year. Of this total, 1,081 were civilians, 1,890 militants, and 1,088 armed personnel. Over 1,000 people were detained under the PSA between March 2016 and August 2017. These numbers do not include the disappearances, torture, and custodial rapes that are known to be prevalent or the mental anguish and trauma caused.
Such liberties as given under AFSPA are not accorded to civil policemen under the law. Further, contrary to common conception, confessions given under duress by the police are not admissible in a court. Despite a lack of explicit criminalization of torture as an act, police abuse is protected against through readings of other provisions, listed below:
Article 21 – Protects against deprivation of life and liberty
Article 14 – Equality before the law
Article 19 – Protections of freedom of speech (which includes the right to not speak, or confess)
Article 20(3) – Protects against being compelled to be a witness against oneself
Article 22(1) – Right to consult and be defended by legal practitioners
The above articles have been collectively interpreted by several Supreme Court judgements as broadly protecting against custodial torture and extorting confessions.
Indian Penal Code
Sections 166 and 167 – Public servants causing injury or framing false documents or records with intent to cause injury is punishable
Section 220 – Maliciously keeping people in confinement or committing them to trial is punishable
Sections 330 and 331 – Punishes voluntarily causing ‘hurt’ to extort confessions
Sections 340 to 348 – Wrongfully restraining or confining a person is punishable; confinement or detention to extort confessions is also punishable
Section 376 (2) – Punishes rape by police officers
Sections 376B to 376D – Punishes wrongful sexual intercourse by public servants, superintendents of jails or hospital staff
Sections 503 and 506 – Punishes criminal intimidation by use of threats of force or injury
The Code of Criminal Procedure
Section 41 – Regarding when police officers may arrest without a warrant or order
Section 49 – Arrested persons shall not be subject to more restraint than is necessary
Section 50 – Arrested persons must be informed of grounds of arrest and bail
Section 54 – Allows for examination of arrested person by medical practitioner upon request
Section 57 – Arrested persons to not be detained longer than 24 hours
Section 163 – Police officers and authorities cannot bribe or threaten detainees
Section 164 – Confessions may be given to magistrates, voluntarily and with full knowledge of its use
Indian Evidence Act
Section 24 – Confessions caused by inducement or threats are not admissible in courts (they must be freely given)
Sections 25 and 26 – Confessions made to the police will not be used as proof, unless done so freely and in the presence of a magistrate
Section 27 – If a confession results in police recovering additional evidence or facts, it may be admissible
Indian Police Act
Section 29 – Police officers engaging in unwarranted violence against persons in custody may be convicted
It would be naïve to imply that actual practice reflects these laws. There exists, however regrettably so, a sizeable gap between the commitments of state laws and the norms of policing. To paint this gap as a result of poor character, however, is a partial truth that deflects away from the real problem.
A colonial hangover
The tree of ‘bad apples’ was planted nearly 200 years ago in India. While the conversation on origins of torture can extend deep into Indian and South Asian history, the most relevant part of it lies in the period of the British Raj.
In the initial stages of British expansion in India, there was an overt desire for militaristic subjugation of a large, native population using a small force. Precisely because of these needs, the inspiration for British policing came from the Irish Constabulary instead of the civilian London Metropolitan model. There was a brutal crackdown on any and all forms of dissent or claims to self-government by Indians. Indeed, this was reflected in 1854, when the House of Commons received word of hundreds of complaints of torture committed by the East India Company, often to extract payment or revenue. There was public outcry in Britain, especially by the growing liberal politician class, claiming that there was a moral degradation to the Empire. An inquiry was demanded into the issue which resulted in the Government of Madras providing a Torture Commission Report in 1855.  Nearly 2,000 complaints of torture were lodged with the Commission, but the report itself was somewhat partial to the Company’s interests and claimed that torture rates were decreasing steadily.
Much of the report attributed the prevalence of torture to the brutish sentiments of the ‘natives’, which was ‘abhorrent to European morality’, stating,
“the whole police is underpaid, notoriously corrupt, and without any of the moral restraint and self-respect which education ordinarily engenders; and that the character of the native when in power displays itself in the form of rapacity, cruelty, and tyranny, at least as much as its main features are subservience, timidity, and trickery, when the Hindoo is a mere private individual”.
The Report concluded by suggesting that these practices may be quickly curbed by incorporating ‘European agency’, or more specifically, appointing European superintendents of police to administrate each district. The prevalence of torture thus became the fault of the native Indian servants, and not the British administration.
Following the Revolt of 1857, the British government of India was under pressure to reinstate control over the subcontinent. From examination of what followed, it is evident that the Madras Torture Report was the starting point in the creation of a new colonial police. Its suggestions were undertaken seriously, but selectively. The Police Act of 1861 was drafted in such a way as to ensure that all lines of command were controlled only by British administrators and officials, and accountability was to Imperial Britain and not the Indian population. Senior police officers were not recruited from the native population, but instead from an elite pool of non-Indians who were deployed to districts and regions that they had never entered before. This structure of recruitment continues today, in the form of the Indian Police Service (IPS). But much of the colonial attitude is reflected not explicitly in the Police Act, but instead in treatment and conditioning of the new police. The training of the lower ranks, which were drawn from local populations, was largely in service of their disciplinarian seniors. They were not given any authority or provisions for promotions. To prevent sympathizing with the population, the constables were restricted to living in police barracks and working in police stations, rather than working within the community. To that effect, British sanctioned infrastructure reflected this – the hospitals and schools built were few, but the number of police buildings and barracks were “numerous and imposing”.
The reformation process of instruments of law and order did not stop with the Police Act. The Indian Penal Code of 1860 came into force in 1862; the Indian Evidence Act came into operation in 1872; and the Code of Criminal Procedure in 1898. Not surprisingly, India, Pakistan and Bangladesh share criminal concepts even today – such as ‘bailable’ and ‘non-bailable’ offences being at the judges’ discretion, or the ‘cognizable’ and ‘non-cognizable’ offences which lay down which offences grant the power to arrest with or without a warrant.
What is surprising, however, is the number of post-colonial South Asian nations that have not replaced the archaic Police Act of 1861, which if implemented as intended would not result in a model of policing best suited to newly democratic states. India still follows this Act, and so does Bangladesh. Maldives only created a distinct police force separate from colonial roots in 2004. Pakistan attempted reform, but it is largely ignored. It might be pointed out that policing was made a state subject in India, while the centre retains control over the Central Bureau of Investigation, the Union territories and the National Investigation Agency. However, this has not resulted in newer models of policing. Most states still use the1861 Act, and the states that did pass new legislation have models that are merely a facelift of the 1861 Act.
When today’s policing is derived from a 200-year-old British sanctioned, imperialist Act, there are inevitable continuities between the system of 1861 and of 2020. For one, the structural composition is nearly identical – constabulary make up over 85% of the police but have the least power, and barely any incentive to be just. Second, the political freedom of policemen to voice out concerns continues to be restricted either legally (when it sanctions suspension) or socially (when termed ‘indiscipline’). For instance, the Police-Forces (Restriction of Rights) Act, 1966, restricts the freedom of speech and association of members of the police. It is, in practice, a restatement of the Police (Incitement to Disaffection) Act passed by the colonial administration in 1922 in less controversial words. Third, all contemporary reports of police brutality point to a striking similarity with the colonial methods of torture used in custody. And finally, just as it was the fate of the 1855 Torture Commission’s report to be selectively applied and otherwise ignored, so too suffer all the reports and recommendations made by judicial and human rights authorities in India today.
As the CHRI noted in 2005, democratic policing ought to reflect democratic values, structures and processes. In 1902, Lord Curzon instituted the Police Commission, which had the following to say,
“The police force is far from efficient; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial co-operation of the people.”
The statement is not far from the truth today. Most citizens do not confide in the police, or view it necessary to report crime to them. The uncertainty, fear and prospect of bureaucratic intimidation are enough reason for most to avoid ever stepping into a police station if they can help it.