Betrayal Behind Bars - Understanding Custodial Rape
Author: LawSphereX
Category: Criminal Law
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BETRAYAL BEHIND BARS: UNDERSTANDING
CUSTODIAL RAPE
Varshini N K & Vijayenthira Poopathy D G, BS Abdur Rahman Crescent Institute of Science and Technology
ABSTRACT
Custodial rape, a heinous crime often concealed within prison walls, remains a pervasive and underreported phenomenon with profound implications for human rights and justice. This article delves into the clandestine world of custodial rape, shedding light on its prevalence, root causes, and devastating impacts on survivors. Despite being shielded from public scrutiny, custodial rape occurs with alarming frequency, perpetuated by a culture of impunity and unchecked power dynamics within correctional facilities. Vulnerable populations, including women and children are disproportionately targeted, facing exploitation by those entrusted with their care and rehabilitation. The causes of custodial rape are multifaceted, rooted in systemic failures such as inadequate oversight, understaffing, and a culture of silence that enables perpetrators to operate with impunity.
Survivors often face significant barriers to reporting, including fear of retaliation, disbelief from authorities, and lack of access to supportive resources. The consequences of custodial rape extend far beyond physical harm, encompassing psychological trauma, shattered trust, and profound challenges in seeking justice and healing. Despite these obstacles, survivors and advocates continue to demand accountability and systemic reforms to address this pervasive injustice.
INTRODUCTION: -
Rape is a ubiquitous term which on a quick web search will turn up several incidents all over the globe. In India, women hold a consecrated place in hearts of their family paradoxical to which they are described as “lustrous and seductive” among the society. Our country ranked 148th out of 170 in the Women's Peace and Security Index 2021. 1 This standing declined as it came in at number 133 out of 167 nations in 2019. 2 The abhorrent act of sexual assault causes victims to sustain lifelong injuries and lose the basis of their being. One such horrifying form of sexual violence is custodial rape3, which occurs when someone tasked with someone else's protection abuses their power to commit rape or sexual assault. A flagrant violation of human rights is exposed by this unsettling phenomenon, underscoring the urgent need for justice, prevention, and education.
Survivors of this terrible crime often face fear, intimidation, and uncertainty that prevent them from seeing justice done, which makes it difficult for them to disclose about the incident. Beyond the immediate physical act, custodial rape leaves behind deep emotional scars that may take years to heal. According to the 2015 National Crime Records Bureau census, 95 incidents of custodial rape were reported out of 34,651 total rape cases nationwide. Uttar Pradesh recorded the largest number of custodial rape cases in that year4. Custodial violence and rape cases are on the rise, despite regulations in the CrPC and IPC to prevent them. This paper discusses the need for strict laws to prevent police violence and arbitrary use of power against women. It also advocates for amendments to statutes for the better protection of arrested individuals especially women.
1 Georgetown Institute for Women, Peace and Security, Women, Peace, and Security Index 2021/22: Tracking sustainable peace through inclusion, justice, and security for women (Report 2020-21, 2021) 2 Georgetown Institute for Women, Peace and Security, Women, Peace, and Security Index 2019/20Tracking sustainable peace through inclusion, justice, and security for women (Report 2019-20, 2019)
3 R.S. Saini, CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA, Vol.36, J
OF THE INDIAN L INSTITUTE, 166-192 (1994). THE INDIAN L INSTITUTE, 166-192 (1994).
4 K D GAUR, Rape and the law, CRIMINAL LAW-CASES AND MATERIALS, 8.17(9 ed).
DEFINING CUSTODIAL RAPE:
Custody, in legal parlance, means being held or incarcerated, usually until a court appearance related to a pending trial. The individual granted custody is known as the custodian, and while the person is in his care, he has complete control over them, including their freedom, access to food, drink, and mobility. The term "custodial rape" refers to sexual assault committed by a person in a position of authority or trust, such as a security guard, police officer, prisoner, or anybody else having control over another individual in a detention institution. It occurs in establishments such as police stations, jails, juvenile detention centres, and detention centres when individuals are being held against their will or under the supervision of third parties.
HISTORY OF CUSTODIAL RAPE IN INDIA:
In the late 1970s and early 1980s, significant evidence for combating custody rape emerged. During India's national emergency from 1975-1977, the state exercised unchecked power. The exploitation of people's civil freedoms raised awareness among civil society and the judiciary about the risks of unchecked state power. In the middle of this, the women's movement focused on the problem of custodial rapes in India after the events in Mathura case, Maharashtra (1974), the Rameeza Bee case, and the Maya Tyagi case added gasoline to the fire. The anti-rape campaign gained momentum after this horrific episode, in which police authority disregarded their duties and implied institutional bias within police forces. Law reform initiatives have called for women-friendly institutional settings and specialised justice delivery systems.
They have also directed their attention towards criminal law remedies that should be made available to victims of rape committed while they are in custody.
TUKA RAM AND ANR. VS STATE OF MAHARASHTRA
Mathura was a young lady who worked as a labourer at Nushi's house and lived with her brother Gama. Mathura made the decision to marry Ashok after having sex with Nushi's sister's brother. Gama announced that Mathura had been kidnapped on March 26, 1976. Nushi, Ashok, and other concerned relatives called the police station based on this information. Ganpat, the first
appellant, urged Mathura to wait inside the police station at around 10:30 p.m., after the investigation was concluded and everyone was leaving. Tukaram, the second appellant, came and tried to rape her after Ganpat had finished raping her. He had already closed the doors and turned out the lights.
OBSERVATION: -
According to the results of the medical examination, her hymen of Mathura had previous ruptures, and semen residue was discovered in her clothing rather than her pubic hair. The session judge concluded that there was no proof of rape after taking the medical report into account. He also stated that because she was used to having sex, she wanted to satisfy her needs. She invented this story of being raped in order to appear morally upright in front of her partner and other people. In this case, the High Court noted that the circumstances surrounding Mathura's demise should also be taken into account. It is plausible that she gave up her body as a result of threats from the defendants and their position of authority. Nevertheless, following a protracted trial, the inmates were found not guilty by the Supreme Court5, who agreed with the session judge's findings.
The Supreme Court's position demonstr ated strong support for the maintenance of authority. The Criminal Procedure Code of 1973 states in § 1606that a woman may only be questioned as a witness at her house, not even in a police station. In the well-known "Rameeza Bee case"7, the police claimed that Rameeza Bee had been raped and that her husband Ahmad Hussain had been brutally murdered. Rameeza Bee was named as a prostitute and her husband as a pimp by the police officer in charge of defence. The investigation was conducted by a panel, which rejected the police's claims about Bee and her husband and found them accountable for both of the claimed offences. Even after the commission's objective and clear conclusions, Karnataka was assigned to handle the issue. The law commission was asked to investigate the issue in 1980 and provide recommendations in its 84th report8.
The bill was then introduced in the parliament in 1982. After many iterations
5 1979 AIR 185
6 § 160 of Code of Criminal Procedure,1973.
7 Vasanth Kannabiran, ‘Rameeza Bee Rape Case: A brutal orientation to the patriarchal nature of the law’ (Indian Cultural Forum, 27 June 2020) 8 Law Commission of India, Rape and allied offences: Some questions of Substantive Law, Procedures and Evidence (Law Com. 84 1983)
certain reforms were made: 1. The Criminal Law (Amendment) Act of 1983 amended the Indian penal law in response to the Mathura case, where § 376 sub-section (2) was inserted. 2. Since public employees can readily delete evidence, the state bears the burden of proving the accused party committed the crime. This responsibility was flagrantly abused under criminal law, where the burden of proof rests with the prosecution (state). The Evidence Act was amended to include an exception as a result. The Evidence Act of 1872 was amended by the Criminal Law (Amendment) Act of 1983 to include §114A 9. This provision states that in the event that sexual relations are established but the victim maintains that no consent was given, the court must infer it. The onus then shifts on the accused to demonstrate that the woman gave her agreement for any sexual activity to take place.
In 1990, Nawab Khan and the state, the accused and his companions sexually assaulted the prosecution. Here, the court decided that the burden of proof would be with the accused to demonstrate that the sexual contact was consensual if the party who had the sex with the accused claimed it was.
3. One of the biggest issues was the police officer’s reluctance to file a formal complaint of the
rape victims. As a result, the Criminal Amendment Act of 2013 made the police officer’s refusal to file a formal complaint under the Indian Penal Code, 1860, a crime. § 166-A10 of the Indian Penal Code, 1860, established penalties for these offences. These penalties include a harsh sixmonth jail sentence, which can extend to two years, and a fine if the offender does not report the crime or assist with the investigation.
113th LAW COMMISSION’s RECOMMENDATION: - The report recommended amendment in the Indian Evidence Act 1872, It recommended the insertion of § 114-B according to which “in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The burden of proof
9 Indian Evidence Act, 1872 § 114 A.
10 Indian Penal Code, 1872 § 166 A.
lies on the police officer to prove the contrary” 11.It was recommended by the law commission in the year 1995, but unfortunately, until now, it has not seen the light of the day. However, the amendment if it happens may be prone to misuse. It will give unfettered powers to the convicts, who can make false accusations against the police.
DYNAMIC CONSEQUENCE: -
Custodial rape is a serious form of sexual assault that violates trust, exploits frailty, and abuses power dynamics. Survivors of crimes often struggle to report them due to fear of retaliation, abuse, or denial from authorities. The offenders use their authority to manipulate and intimidate victims, leaving them feeling traumatised, abused, and helpless. Custodial rape has consequences that extend far beyond the physical act. Survivors often face severe psychological, emotional, and social consequences, including as PTSD, depression, anxiety, and a loss of trust in the justice system. The long-term repercussions may make it difficult for them to rebuild their lives and seek justice.
CONTRIBUTING FACTORS FOR CUSTODIAL RAPE: -
Custodial rape can happen for a variety of reasons. These include abuse of authority, lack of monitoring and responsibility, institutional apathy, and a silence-promoting culture. Most of the time, culture where such abuses can occur is maintained because custodial staff lacks proper training, gender-sensitive practises, and awareness. The situation is further complicated by the presence of corruption, impunity, and the exploitation of marginalised populations.
CHALLENGES FACED BY VICTIMS OF CUSTODIAL RAPE: -
In a court of justice, victims of custodial rape must overcome numerous obstacles to prove their case. It is challenging to prosecute police personnel since they have been entrusted with the authority and responsibility to uphold law and order. Since custodial rape occurs while a person is in police custody, it is simpler for the authorities to remove evidence. It is harder to acquire evidence in these situations because the victim bears the burden of proving that the rape occurred without consent. Filing a formal complaint could be challenging if police officer 11 Shri D.K. Basu, Ashok K. Johri v State of West Bengal, State Of U.P., (1996) Writ Petition (CRL) No.
decline to cooperate. They prefer to tamper with the evidence of the complaint in a FIR rather than recording informal complaints in the community social register.
NEED FOR STRINGENT LAWS: -
Those wielding authority and power must have compassion towards the persons in custody, the Constitution of India under Art. 21 enshrines that the everyone has the right to life and liberty. Despite making amendments to the CrPC via §176 in 2005, there are many cases in the country that have not been investigated post an allegation of custodial violence. Investigation is taken to the next level based on the public opinion. Post this amendment there has been steady rise in number of custodial deaths at 1372 out of which inquiry was conducted only in 298 cases 12. Most of these were detained in custody and died before they could be produced before the magistrate within 24 hours. The policemen charged with the commission of the offence have rarely been convicted even though charge sheets have been filed on a few of them.
The accused are generally suspended from their jobs temporarily for a few months and are later appointed back at different locations. The National Human Rights Commission has issues guidelines which mandates that the reports of cases of custodial death and rape must be submitted to them within 24 hours by the district magistrate and the superintendent of police. But this has rarely been followed. The constitutional provisions and fundamentals rights guarantees safety to life, these inhumane incidents of torture, rape, and violence in custody inflicted cause a direct violation. It has been observed that custodial rape cases gain more attention due to public opinion however due to lack of evidence the accused is acquitted in most cases. It is the duty of the police officials to follow the procedural rules to make sure the arrested person is in safety.
Due to their lack and incompetence in doing so, the matters fall upon the judiciary, which is several cases has overlooked the said deaths upon the word of the officers. The above stated procedural fallacies create a necessity to have more stringent laws. Installing security cameras in the jail and police station for evidentiary reasons is one of the strong measures that must be carried out to keep jails operational in compliance with the Apex Court’s 12 13Sukanya Shantha, Most States Have Flouted Mandatory Judicial Inquiry into Custodial Deaths for 15 Years, THE WIRE, Jul, 07, 2020. https://thewire. in/rights/custodial-death-judicial-inquiry-crpc
order13. It must be paramount to ensure the safety of the arrested person. It is obvious that when cops are subjected to intense political pressure in sensational issues, they may abuse their authority by choosing to utilise more forceful methods of extraction. The human rights activist Suhas Chakma, in his petition to the Apex Court said that there has been a failure while establishing transparency and advocated to provide protection to victims of custodial violence, death and rape. He even added that, Lack of fear among the police officers is one of the reasons for the rise in such heinous crimes. Upon his petition, the Supreme Court has directed that there should be an immediate registration of such cases and proceedings have to begin quickly to comply with the provisions under § 176 (1-A) 14.
SUGGESTED AMENDMENTS THAT CAN BE BROUGHT IN THE CODE OF
CRIMINIAL PROCEDURE: -
1) § 4115 states that when arresting a person who committed a cognizable offence, the
police officer does not require a warrant, on grounds solely depended on suspicion. This leaves a lacuna for misuse of section leading to abuse of power. A reasonable restriction on this provision should be made. With respect to arrest of women, there must be provision which states that she should be accompanied by two respected individuals as well to prevent any custodial violence.
2) After the arrest, the person should be medically examined as mentioned under § 5416,
at the instance of the police, however the accused must be given opportunity to ask for such medical examination because it would help gather evidence if there was any case of rape attempt upon the accused. § 5017 can be amended to make sure that the magistrate has taken the required steps to ensure that the accused has been medically thoroughly examined before being produced in front of him.
13 Paramvir Singh Saini vs Baljit Singh AIR 2021 SC 64
14 Akshitha Saxena, SC Issues Notice on Plea for Mandatory Judicial Probe in Custodial Death/ Rape, LIVE LAW, Jan, 24,2020. https://www.livelaw.in/top-stories/sc-issues-notice-on-plea-for-mandatory-judicial-probe-in-custodial-deathrape-read-petition--151975
15 § 41, THE CODE OF CRIMINAL PROCEDURE, 1973
16 §,54, THE CODE OF CRIMINAL PROCEDURE, 1973
17 §,50, THE CODE OF CRIMINAL PROCEDURE, 1973
CONCLUDING REMARKS: -
Since custodial rape has a strong authoritative component, the likelihood that those who commit such crimes will face consequences is reduced. To guarantee that a person's position is irrelevant in cases of sexual violence, more robust law is required. The victims will be able to criticise the echelons without fear thanks to this. In order to create a secure and welcoming atmosphere, the second step ought to be to make sure that there are female police officers assigned to every police station. In 2020, women accounted for just 12% of Indian police personnel. For all the women employed by the police station, an internal complaints committee should be established, and custodial rape reports should be handled by the Rapid Response Desk as well. We already know about our nation's backlog of cases and sluggish conviction rate.
Every district should have a human rights court established in order to support the legal system in these situations. § 30 of the Human Rights Act of 1993 requires the state government to designate the session court of each district as a court of human rights for the prompt adjudication of rights violations, in collaboration with the Chief Justice of the High Court. It is regrettable that India does not have a human rights court. Those who breach fundamental rights, as well as those protected by the Universal Declaration of Human Rights (UDHR) and the Covenants to which India is a party, will find it easier to prosecute and convict when a human rights court is established. Laws alter in tandem with societal shifts, and in order to effectuate these changes, observation is crucial, which is only possible when we have a clear understanding of the actual situation.
A dearth of knowledge might act as a barrier to necessary reforms. Transparent data that shows us the degree to which the amended laws are being applied is a first step towards such a change.