What is detention?
It is an act of detaining a person in police custody when a person is suspected of committing a crime, arrested or in order to prevent a crime. It can be legal or illegal.
What is custodial torture?
Custodial Torture refers to being subjected to violence, coercion and other methods of physical and mental abuse a person is subjected to while being in detention which can be either police custody or in judicial custody i.e. in jail (central jail or district jail). The recent case of Jayaraj-Bennix highlighted the issue and the gravity of the same. However, the practice has been going on since ages and has seen people arrested for mere suspicion of an offence have been subjected to this practice. It is to be noted that detention can be both legal and illegal. Under both circumstances, you have the right to not be subject to torture.
This article seeks to inform you about your rights when you have been arrested or detained by police and the remedies available to you in case you or anyone known to you is a victim of custodial torture.
Rights available to a person during detention
A detention does not deprive a person of his or her Fundamental Rights. The rights and remedies available to a person under different Articles of the Constitution are discussed below.
Article 20 and 21 of the Constitution
Article 20 states that no person can be compelled to be a witness against themselves. Article 21 of the Constitution guarantees the right to life and liberty of every citizen and it was held by the Hon’ble Supreme Court in the case of D.K.Basu v. State of W.B, (1997) 1 SCC 416 that it prohibits the state from using torture and assault against any person and cannot plead any sovereign immunity for the same against its liability in case it defaults and uses force irrationally against any person.
The police cannot arrest a person without a warrant except in case of cognizable offences like murder, rape, robbery, kidnapping etc. or a person having arms or guns without a license, a person who is a proclaimed offender, who obstructs police from doing their duty, has in his or her possession a stolen item, etc.
Article 22 of the Constitution
This Article gives the following rights to a person who is arrested:
- The right to be know the reason of arrest.
- The right to a lawyer.
- The right to be produced before the nearest magistrate within 24 hours of arrest.
If any of these rights is violated you are entitled to take legal action. Contact us at
Writ of Habeus Corpus under Article 226
This writ petition can be filed in the High Court in order to report an unlawful detention and request the court to direct the concerned police officials to produce the said person who has been legally or illegally detained to be produced in the Court in case, any of his fundamental rights are violated. If the Court finds the imprisonment illegal, the Court can order the release of the person.
Remedies available to a victim of custodial torture and unlawful detention
If anyone is a victim of custodial torture, there are certain remedies like compensation and departmental action against the officials who committed the offence available to the victim. The following case laws illustrate the incidents where the courts have taken note of the heinous practice and awarded due compensation and justice to the victim.
- In State of Punjab v Vinod Kumar, the learned Punjab & Haryana High Court held that the state will pay Rs 2 Lakh each as interim compensation to the wife and children of the persons who disappeared due to police atrocities. In addition to this, they could also claim further compensation from the state or any other person ultimately found responsible for the same.
In addition to this, the state government was directed to accord the necessary sanction (punishment) under Section 197 of Criminal Procedure Code for the prosecution of the guilty officials when asked by CBI.
- In the case of Dr.Mehmood Nayyar Azam vs State Of Chattisgarh And Ors, a doctor was held in police custody and tortured. The Hon’ble Supreme Court awarded a compensation of Rs 2 Lakh to be paid by the state to the victim. In addition to that, the Court further awarded a compensation of Rs 5 Lakh to be paid to the victim from the salary of the erring police officials in equal proportions.
- In the case of Inder Singh v State of Punjab, the Hon’ble Punjab and Haryana High Court held that a compensation of Rs 1.5 Lakh is to be awarded to the legal representatives of each of the seven personswho were illegally detained and abducted by the police. The Court further directed the state to identify the guilty officials and recover the compensation amount given from them.
- In the case of S.Vijayashankar vs The State Of Tamil Nadu (2019), the Madras High Court awarded a compensation of Rs 30.09 Lakh to the family of the victim who was tortured by the police and suffered from a custodial death.
In order to file a complaint against the same and to know more, contact us