Custodial violence: your rights and how to complain

Few things are more frightening than being alone in a police station at night, with no one knowing where you are. Custodial violence means harm done to a person held by the police or another authority: beatings, threats, sexual abuse, or worse. It is a crime, whatever the person is accused of. This guide is for the person inside and for the family outside.

What the law says

The right to life under Art 21 includes the right to dignity, and the Supreme Court has said many times that this right does not stop at the police station door. In D.K. Basu v. State of West Bengal (1997) it called custodial torture a naked violation of human dignity and laid down rules for every arrest. Most of those rules are now in the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Torture is also a crime. Under Sec 120 BNS (earlier Secs 330 and 331 IPC), causing hurt to extract a confession or information is punishable with up to seven years' imprisonment and fine, and up to ten years if the hurt is grievous. Wrongful confinement, sexual offences and murder apply to police officers like anyone else.

A confession made to a police officer cannot be proved against you, and one caused by threat, inducement or promise is irrelevant (Secs 22 and 23 BSA, the Bharatiya Sakshya Adhiniyam). "Just sign and we will let you go" is a trap: do not sign a confession you did not freely make.

Safeguards you can demand at arrest

• Arrest memo. The arresting officer must wear a visible name tag and prepare an arrest memo with the time and place of arrest, signed by a witness (a relative or respectable local person) and by you (Sec 36 BNSS).
• Grounds and family. You must be told why you are arrested (Sec 47 BNSS), and the police must inform a relative or friend you name of the arrest and where you are held (Sec 48 BNSS). Each district must display arrested persons' details at the police control room (Sec 37 BNSS).
• Lawyer. You may meet an advocate of your choice during interrogation, though not throughout (Sec 38 BNSS).
• Medical examination. A doctor must examine you soon after arrest, record every injury, and give a copy of the report to you or your nominee (Sec 53 BNSS). A woman must be examined by or under a woman doctor.
• Magistrate within 24 hours. You cannot be kept in police custody beyond 24 hours (excluding travel time) without a Magistrate's order (Sec 58 BNSS; Art 22(2)).
• No routine handcuffs. Handcuffs are allowed only in listed situations (Sec 43(3) BNSS). A woman cannot be arrested after sunset or before sunrise except by a woman officer with a Magistrate's prior permission (Sec 43(5) BNSS).

In Paramvir Singh Saini v. Baljit Singh (2020) the Supreme Court directed CCTV cameras in every police station, covering lock-ups and interrogation rooms, with footage preserved. In any complaint, ask that the footage for the relevant dates be secured immediately.

The 24-hour production: your most important moment

When you are brought before the Magistrate, you can speak. Say clearly: "I was beaten in custody. I want a medical examination and I want this recorded." The Magistrate must check that you were produced in time and can ask about ill-treatment before authorising further custody. Show visible injuries. If your lawyer is present, they can file a short written application the same day. A complaint at this stage, backed by a medical report, is very hard to dismiss later.

Death, rape or disappearance in custody

If a person dies or disappears in police custody, or a woman alleges rape in custody, a Judicial Magistrate must hold an inquiry in addition to the police investigation (Sec 196 BNSS, earlier Sec 176 CrPC). The body must go for post-mortem within 24 hours of death unless the Magistrate records reasons. Relatives should be informed and allowed to attend where practicable. Ask for the post-mortem to be videographed.

Step by step: how to complain

1. Get medical records. At a government hospital, get treated and ask for a medico-legal certificate (MLC) listing every injury. Photograph injuries with a date stamp.
2. Tell the Magistrate at the first production, or file a written complaint asking for a medical examination, preservation of CCTV footage and registration of an FIR.
3. Write to senior police officers. Give a dated written complaint to the Superintendent or Commissioner of Police, by hand with a receipt or by registered post, asking for an FIR. Torture is a cognizable offence (one where police can arrest without a warrant), so an FIR must be registered.
4. File with the Human Rights Commission. The National and State Human Rights Commissions accept complaints online and by post. Attach the MLC and photographs. Many States also have a Police Complaints Authority, set up after Prakash Singh v. Union of India (2006).
5. High Court. A lawyer can file a writ petition under Art 226 seeking an independent investigation, compensation and preservation of evidence. If a person is held illegally or cannot be traced, a habeas corpus petition asks the court to order the police to produce the person.

Compensation

In Nilabati Behera v. State of Orissa (1993), the Supreme Court held that when the State violates the right to life in custody, courts can order the State to pay compensation directly, apart from any criminal case against the officers. Victims may also apply to the District Legal Services Authority under the State victim compensation scheme (Sec 396 BNSS).