-- Ms. Saumya Verma
Research Scholar, Rajiv Gandhi National University of Law, Punjab

“Out here you are at the bottom, and there is no lower place to go”

- A Woman Prisoner in Tihar Jail

The prisons continue to be enigmatic entities, with prisoners left neglected. The socio-economic and political environment in India has exacerbated the issue, leading to a significant problem in the realm of prison justice. According to a recent report by the National Crime Records Bureau (NCRB), there are about 5,73,220 undertrial prisoners in Indian jails as per the Prison Statistics India (2022) Report (PSI). Among the total 5,73,220 prisoners, the majority are male prisoners (5,49,351), followed by female prisoners (23,772) and transgender prisoners (97). Most of the women convicts fall within the age range of 30 to 50 years (51.5%), with the next largest group being 18 to 30 years old (28%). The condition of incarcerated women is indeed distressing. Female inmates often experience mistreatment, abuse, and violence while incarcerated. Instances of rape in custody are prevalent in certain jails, such as Bihar, where male inmates were found housed in facilities designated for female undertrial prisoners. There have been reports of women being forcibly disrobed. In addition to the typical challenges encountered by prisoners, women are particularly vulnerable to biological abuse, emotional stress, and social stigma, often exploited by others.

A 2015 survey found 95 custodial rape incidents out of 34,651 total cases. Uttar Pradesh has the most custodial rape cases (91), followed by Uttarakhand (2 cases), Andhra Pradesh (1 case), and West Bengal (1 case). Recent NCRB data shows a 7% increase in crime against women, with 7.9% of incidents being rape. According to NCRB's ‘Crime in India 2021’, 31,677 rape cases were recorded in India, 86 each day, and 49 recorded per hour. In 2022, the nation recorded 4,45,256 rapes, or three every day. Rajasthan led India with 5,300 rape cases in 2022, followed by Uttar Pradesh with 3,690. The NCW received 28,811 reports of offences against women in 2023, with over 50% from Uttar Pradesh. However, there are no online statistics on the number of police personnel charged for custodial rape. Women who have experienced mistreatment in the past may find that prison life mirrors the dynamics of abuse they have already endured, leading to continued oppression and recurrent trauma during their incarceration.

Here, the author aims to discuss the plight of undertrial women prisoners. First and foremost, the continuous incidence of custodial rape represents a severe violation of human rights. Furthermore, it poses an imminent risk to our efforts to establish and solidify a culture of human rights. The occurrence of custodial rape offers valuable insights into ‘gender theory’ and ‘concept of masculinity’. Furthermore, custodial rape causes a range of public health problems. The article is intended to shed light and raise awareness about the prevalence of female custodial rape in India. The author explores the socio-legal viewpoint on prison rape by studying various juristic theories and judicial pronouncements. The author evaluates the efficiency of criminal laws, the challenges in prosecuting custodial rapes, and recommends practical remedies.

1. State of Undertrial Women

According to the Prison Manual, 2016, the 78th Indian Law Commission Report, and Sections 428 and 436A of the CrPC, an undertrial prisoner is someone who is being held in custody while being investigated, questioned, or tried for an offense under any law. NCRB Prison Statistics India (2022) reports 5,412 female inmates, 18,146 under trials, and 120 detenues. As of December 31, 2022, there were 1,537 mothers and 1,764 children in jail. These women inmates included 1,312 undertrial prisoners with 1,479 children and 198 convicted prisoners with 230 children.

Female inmates in regular jails lack adequate amenities for menstruating, pregnant, and lactating women. General jails face overpopulation, with an occupancy rate of 120%. The impact of overcrowding disproportionately affects female convicts. In addition to inadequate jail facilities, the nation has a significant scarcity of female prison personnel and policewomen. Just over 11% of the 60,024 correctional personnel and officers in 2018 were women. In 2022, 11.75% of the police force was female, considerably behind the Union Home Ministry's 33% objective. In January 2022, there were about 2.4 lakh women police officers, mostly constables. 2022 research identifies 295 medical officers among India's 8,674 female prison officials and personnel. This leads to privacy problems and violates the basic rights of female detainees via unethical and unlawful strip body searches.

In Indian prisons, women face abuse and discrimination regarding their health and cleanliness. Developing sanitary facilities in jail accommodations is indispensable. Reports show that Indian prisoners are provided with limited resources such as tattered garments, old sleeping surfaces, and newspapers. In addition, incarcerated women are not provided with sufficient and proper nutrition. Nearly half of the prison medical staff capacity is used, according to 2018 statistics. At the end of 2018, 1,914 medical personnel were in Indian prisons compared to 3,220 authorized. Uttar Pradesh has the most medical staff openings (240), followed by Bihar (217) and Jharkhand (153). A study found that HIV rates were greater among women inmates than male detainees in Indian jails. Male convicts had a 1.7% HIV illness rate, whereas female prisoners had a 9.5% rate and more severe HIV-related symptoms than male prisoners. Prisons are breeding grounds for Tuberculosis, posing a threat to prisoners, correctional officers, staff, and the general public at large.

Corruption, abuse, and harassment, especially sexual harassment by prison officials and male detainees, are common. In 2017, the Byculla jail riots highlighted the use of violence in Indian prisons. Custodial brutality often results in prison fatalities listed as due to suicide or medical conditions. The archaic jail administration laws in India allow for terrible amounts of abuse. To preserve discipline in prisons, the Prison Act, 1894, outlines sanctions for offenses such as supplying poor food and flogging. On the other hand, prison workers who violate rules are only fined INR 200. Imprisonment for more than three months is not allowed, even for egregious offenses. Unsurprisingly, inmates typically fail to report abuse and harassment by authorities. Instances of recording female inmates without their consent have also been documented (The News Minute, 2017).

Empirical evidence suggests that women prisoners are treated poorly by police personnel, who use vulgar language and chastise them after taking them to the police station. This treatment was traditionally administered to individuals who had committed serious offenses and refused to comply. Empirical research performed in Tamil Nadu jails found that inmates do not have access to toilet facilities outside their rooms. Instead, the toilets are located within their rooms and lack proper walls. Over half of the participants reported experiencing psychological issues such as depression, stress, anxiety, and loneliness. 

A Human Rights Watch study found that over 50% of women questioned reported assault and maltreatment in police detention. Women have documented instances of experiencing physical violence, such as being struck with belts, suspended by poles around their necks and arms, subjected to caning, and vehemently dragged by law enforcement officers, accompanied by threats of more mistreatment. Judge Sri Mulla said, “In the entire country, there is not another criminal force whose misdeeds can come anywhere near the list of crimes of that organised body called the Indian Police Force,” in a well-known ruling of the Allahabad High Court in 1964.

Understanding Custodial Rape and Relevant Penal Provisions

Rape comes from the Latin word ‘rapere’ that means ‘take, grab, or carry away’. Men may hide and assault women for their sexual desires. Rapists are universally seen as a menace to all women. Rape is defined as taking something by force in the English lexicon. However, medical opinion holds that no adult may be raped against their will.

According to Tredoux (1997), rape is sexual relations without permission under common law. Rape is specified as sexual robbery and is used in all major judicial systems. "Rape is defined as a more or less conscious process of intimidation by which all men keep all women in a state of fear" (Brownmiller: 1974). This term emphasizes the power aspect of the act. Power connections stem from intricate economic processes. Russell (1984) defined rape as "intercourse (i.e., penile-vaginal penetration)" based on California's legal definition. Other studies define penile-vaginal intercourse solely (Powch, Giusi et al. 1992). Other definitions of rape refer to sexual encounters, which are often considered the same. Various definitions of rape include ‘anal, oral, and object penetration’. According to Koss and Wisniewski (1987), “rape includes unwelcome ‘sexual intercourse’ and ‘anal or oral intercourse or penetration by objects other than the penis’”. Russell (1990) covered forced oral, anal, and penile-vaginal encounters in Rape in Marriage.

Veronen & Kilpatrick (1983) expanded the concept of rape to encompass any non-consensual action. In their 1987 study, Smeaton and Byrne assessed rape propensity by asking males whether they would coerce their female confederate into unwanted sexual acts. Rape is a property crime because rapists steal sex from women, according to Commodification Theory. Baker argues that some consider sex a commodity, making it theft. Sex is seldom discussed as anything other than a commodity in our society. Companies market things by exploiting women endorsers' sensuality. Mixing products with sex is intentional. Sex is also strategically commodified. Prostitution is illegal in all but one state, yet men may purchase sex.  Men may buy pornography and peep show tickets. Many rapists may be motivated similarly to males who visit prostitutes or attend peep shows. All of these sex practices do not require mutual satisfaction or emotional connection. The societal promotion of sex as a commodity increases sexual desire and entitlement. Most men learn to fulfill sexual desire like hunger. Food and sex are not free, but since men pay for them, taking them without permission is less morally abhorrent than other violent crimes. 

Feminists say that rape stems from enduring societal norms of male domination and female exploitation. Rape stems from uneven gender roles and societal inequality. Feminists contend that violence against women is standard in patriarchal societies, with rape as a societal norm of male dominance and female exploitation. According to the social learning theory, “hostility is taught by imitation and perpetuated through intermittent reinforcement”. Social learning theory explains “rape as an aggressive behavior learnt via real-life or mass media, particularly unpunished actions”. While both feminist and social learning theories hold that social and cultural learning contribute to rape, social learning theory focuses on cultural traditions that are directly linked to interpersonal aggression and sexuality. Compared to feminist approaches, social learning theory· supports the idea that rape is sexually motivated. According to Ellis (1989), “rape stems from long-standing societal practices where men have traditionally held significant political and economic positions”.

A man commits rape under Section 63 of BNS, 2023 if “he penetrates his penis into a woman's vagina, mouth, urethra, or anus, or forces her to do so; inserts any object or body part into the same area, or forces her to do so; or manipulates any part of a woman's body to cause penetration”. The provision has seven clauses that define rape. These are outlined below:

1. If a man makes sexual contact with a woman without her consent, it is rape, unless one of the exceptions applies.

2. If a man has sexual contact with a woman without her permission, it is rape under the second clause unless the Section exempts it. 

3. Rape occurs when a woman's consent is obtained by placing her in fear of death or injury, even with her consent. 

4. Clause 4 addresses a rapist who knows he is not his victim's husband and gets her agreement because she thinks he is another man to whom she is married.

5. The fifth clause defines rape as acts done with the victim's consent when she is unable to understand the nature and consequences of that to which she consents due to unsoundness of mind or intoxication, or the accused administering any stupefying or unwholesome substance directly or indirectly.

6. The sixth clause defines rape as a objectionable conduct done with or without the girl’s consent when she is under 18.  

7. The seventh clause specifies that rape occurs when the offending conduct is committed on a woman who is unable to give consent.

Bhartiya Nyaya Sanhita, as compared to IPC, has introduced stricter sanctions for sexual offenses which include rape. Rape is punishable by ten years to life imprisonment under Section 64(1), whereas aggravated rape is punishable by ten years to life imprisonment under Section 64(2). In addition, age of consent for married women under the definition of rape (Section 63 BNS and s. 375 IPC) has been raised from 15 to 18 years. Exception 2 to s. 375 IPC asserts that sexual interaction between a man and his wife, who is not under 15, is not considered rape. Section 63 of the BNS maintains the marital rape exception. Bhartiya Nyaya Sanhita now considers all gang rape cases equally severe, regardless of the victim's age. Section 376DB of the IPC provides the death penalty for gangrape of a girl under 12 years old. Section 376DA does not impose a death punishment for group rape of women under 16 but over 12 years old. Section 70(2) of BNS imposes a death sentence for gangrape of women under 18.

The Criminal Law Amendment Act (43 of 1983) first enhanced the penalties for custodial rape. For this purpose, section 376(2) of the Code, inserted in 1983, deals particularly with rape ‘by a police officer in certain circumstances, rape by a public servant on a woman in his custody, and rape by a person on the management or staff of a jail, remand home, or other place of custody or a women's or children's institution’. Section 376(2) sets a minimum sentence of hard imprisonment up to 10 years for custodial rape, which is greater than the seven-year sentence for regular rape. Both instances may result in life imprisonment. 

Several provisions in the BNSS, 2023, and Bhartiya Sakshya Adhiniyam, 2023, protect the legal rights of those in detention. Major court decisions have complemented constitutional and legislative laws on the issue. Additionally, the  Protection of Human Rights Act, 1993 establishes National and State Human Rights Commissions and Human Rights Courts to safeguard the human rights of those in detention. India has ratified and signed ‘Universal Declaration of Human Rights (UDHR)’, ‘International Covenant on Civil and Political Rights (ICCPR)’, ‘International Covenant on Economic, Social, and Cultural Rights (ICESCR)’, ‘International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)’, and ‘Convention on the Elimination of Discrimination against Women (CEDA)’. Apart from this, the ‘UN Declaration on Basic Principles of Justice for Crime Victims and Power Abuse’ is relevant.

Late 1970s and early 1980s police torture included prison rapes of women. These showed men's influence over women and uniformed authorities' power over normal people, especially women. In the 1975–77 emergency, authorities used indiscriminate powers, evaded public accountability, and severely limited civil freedoms. Indian Women's Rights campaign garnered national notice in 1980 with an anti-rape campaign. Civil liberties organizations focused on police rape of women, rape of the poor, and sexual harassment of tribal women by ‘State Reserve Police (SRP)’, ‘Central Reserve Police (CRP)’, and other paramilitary forces after emergency ended. Women's sexual violence victims' testimonies were widely covered. Many questioned police and state influence over people's lives. The 1980 Supreme Court of India Mathura Rape Case ruling sparked a nationwide outrage. Police said that “since she had a boyfriend, she was a loose girl and could not be raped”. The Apex Court acknowledged this reasoning. Lawyers Ragunath Kelkar, Upendra Bakshi, Vasudha Dhagamwar, and Lotika Sarkar signed an open letter criticizing the decision’s rationale. Three widespread and politically prominent custodial rape cases occurred during the 1970s and 1990s. The three instances were: Mathura rape case, 1974, Maharashtra; Rameeza Bee rape, 1978, Andhra Pradesh and Maya Tyagi rape, 1980, Uttar Pradesh. In ‘Sheela Devi vs. State of Haryana and Anr’, a policeman raped and killed the lady at the station. This case caused enormous protests. The amendment was brought which added custodial rape under the criminal law. Custodial rape occurs when the assailant abuses his position of authority to exert influence over the victim, generally a woman, and breaches the victim's physical integrity and the obligation to secure citizens' rights.

The legal cases and evidence presented are susceptible to manipulation. Custodial rape is an aggravated type of rape. Custodial rape occurs generally “when police authority commits rape within the jurisdiction of their station, station house, or while the victim is in their custody or under their supervision” (IPC198, s. 21). Public servants may commit custodial rape, as well as staff members of jails, remand homes, or other places of confinement for women or children. Hospital administration or personnel may potentially commit rape taking benefit of their official position on a lady in hospital.

The 2017 parliamentary panel research found that Uttar Pradesh had the most custodial rapes in India. In 2015, Women in Detention and Access to Justice reported 95 instances from Uttar Pradesh, two from Uttaranchal, and one each from West Bengal and Andhra Pradesh. In 2016, 11 of 26 prison rape cases in India were from Uttar Pradesh, a drop from prior years. Seven Tamil Nadu police officers tortured and raped a 49-year-old lady in 2014. CBI charged them with custodial rape. The court ordered police suspension and compensation of Rs 2 lakh for the victim. After his brother-in-law's custodial death, a Dalit lady in Rajasthan was raped, beaten, and jailed by police for many days. A 2018 research found that Madhya Pradesh has the most rape cases for three years, with 54 of 5433 incidents involving children under six.

2. Factors Responsible for Custodial Rape

Women have been oppressed and mistreated by the system of patriarchy, a system that persists throughout time and geography and withstands periodic challenges. From childhood, male children are socialized in a society that values masculinity and devalues femininity. As the male gets more self-aware and egotistical, he attempts to remove himself from the woman. Males retain emotional baggage from childhood and acquire a negative stance towards women, leading to a preeminence and a desire to dominate and oppress them as adults. In a society that devalues women, female adolescents acquire a subservient mentality. Radical feminists assert that patriarchy is the basic system of dominance and subordination in all social institutions, including marriage, class, caste, race, ethnicity, age, and gender.

Most women in India are arrested for sex-related crimes such as prostitution, child marriage, dowry murder, and murder of male relatives due to cruelty or sexual harassment, which can be attributed to political and economic factors (Bhosle 2009, Madhurima 2009, Bajpai 2005, Maniyar 2004, Rudd 2001). Gender-neutral reasons for crime may still exist among female criminals. Women face arrests for theft, burglary, drug use, and other offenses (Bajpai 2005).

Power, not sex, drives rape. According to Ellis, this approach may overstate sexist attitudes and undervalue the sexual motive of rape. According to ‘social learning theory’, “rape is caused by cultural and experimental elements, including sex role scripts, attitudinal variables, and thinking processes that relate sexuality and physical aggressiveness in males”. However, there is disagreement among supporters about relationship among pornography and rape. These theories exclude unlearned extracultural factors, whereas evolutionary and synthetic theories emphasize them. The ‘cultural spillover theory’ proposed by Baron and Straus in 1987 indicates that “support for rape may be restricted to beliefs and attitudes that explicitly approve of sexual violence, such as rape”. There could be other elements of the culture that indirectly contribute to justifying rape. Imagine if the patterns of physical force in various aspects of life were extended to relationships between genders.

Kamla Bhasin (2016) asserts that “rape is a far and wide issue for women”. The root cause is complicated, and its symptoms vary by time, region, and individual. Sexual urge has been the primary reason for rape throughout history, varying with historical eras, lifestyles, economic situations, and prevailing opinions. Psychoanalytical research indicate that rapists exhibit poor judgment and weak momentum control. Rape is linked to unsatisfactory family life due to factors including power, temperament, habit, and economic situations that cause marital antagonism and frustration. Broken households and family conflict may lead to sex offenses in minors.

Pornography and prostitution may represent women in submissive and humiliating ways. Pornographic literature and prostitution fuel the inclination towards sexual violence among youth. Pornography depicts women as mere commodities, focusing on fragmenting their bodies and sexualizing specific body parts. Some theorists claim that “pornography devalues and degrades women, glamorizes violence, and legitimizes sexism”. In her work from 1982, MacKinnon argues that sexual objectification is at the nucleus of women’s subjugation. It is suggested that women are identified as suitable targets for sexual violence through the process of sexual objectification.

Crimes of a sexual nature can occur due to psychological factors like the urge to dominate, exert power, and derive pleasure from causing pain for others. Poverty, absence of social support, separation, single parenthood, and homelessness contribute to the increased proportion of women in jail from marginalized socioeconomic backgrounds. Financial insecurity and social exclusion make life after release a living misery. Women often struggle with separation from children and loved ones, particularly relatives. Pregnant women in jail may face physical and psychological challenges.

Victims depend on state employees for protection, while abusers use this dependence to compel them into non-consensual sexual activities. Prison culture is shaped by the ideals that convicts bring from outside the facility. Prisoners’ socially learned attitudes and ideas deliver the origin for ‘hegemonic masculinities’ in jail. Prisons perpetuate hegemonic masculinity, including male domination, heterosexism, whiteness, brutality, and merciless competitiveness, according to scholars. The concept of hegemonic masculinity stems from Antonio Gramsci's cultural hegemony theory.  Hegemonic masculinity examines the dominance of males in society and the marginalization of women and other gender identities that differ from the masculine standard, rather than socioeconomic classes. According to the argument, society has imposed an ideal form of masculinity on males while neglecting and controlling concepts of femininity. This brings up the topic of toxic masculinity and its negative impact on the well-being and safety of prisoners. 

Furthermore, the relationships between law enforcement officers and individuals in positions of political influence are frequently used to coerce and trouble residents in communities. The intersection of law enforcement and government officials is firmly ingrained in our societal structure, granting police officers the authority to question individuals without justification, unlawfully hold them, and commit acts of sexual violence.

3. Judicial Response

The Indian constitution has incorporated and provided ample room for the rights outlined in the United Declaration of Human Rights. However, there is no specific provision addressing the rights of under-trial prisoners. The Supreme Court examines the golden triangle and Articles 38, 39, 39A, and 42 of the directive principles of the Indian Constitution.

In a legal proceeding known as ‘Nilabati Behera v. State of Orissa’, it was emphasized that individuals who are convicted, imprisoned, or awaiting trial still retain their fundamental rights under Article 21. Any limitations on these rights must be by law.

In ‘DK Basu v State of West Bengal’, the Supreme Court ruled that custodial torture is a direct infringement of Article 21. An individual's character can be greatly impacted by such a heinous deed, diminishing their sense of worth. The Supreme Court highlighted the common occurrence of police using force against individuals under their authority. To ensure fairness in its broadest interpretation, this must be eradicated. According to Justice Krishna Iyer, human dignity is a fundamental principle of our Constitution and should not be compromised by prison personnel. An infringement of Article 21 occurs when female inmates are subjected to mistreatment. To guarantee the safety of the inmates, particularly female inmates, the court issued directives to the appropriate agencies. Female suspects should be held in a separate lock-up, with female constables assigned to monitor them. It is important to consider separate facilities for female and male suspects. The court ruled that all accused individuals who are unable to afford legal representation, regardless of gender, must be provided with free legal counsel.

In ‘PUDR v. Police Commissioner’, the laborers were compelled to work in the police station without receiving any payment. When the workers requested their wages, they were physically assaulted. The female workers who asked for their wages were also assaulted and subjected to further violence. During this heart-rending incident, a laborer named Rama Swarup died from his injuries. Based on facts presented, the Apex Court ruled in favor of paying Rs. 50,000 to dependents of the deceased and gave Rs. 5,000 as compensation to the woman whose clothes were stripped off. Eight additional workers who were constrained to work received Rs. 25 per day as payment. The highest court has instructed the immediate release of the petitioner, who spent almost 14 years in jail after being acquitted. Additionally, the state has been directed to provide him with Rs. 35,000 as compensation for the loss of his freedom.

In ‘Tukaram v. Maharashtra’, A tribal girl named ‘Mathura’ was raped by two police officers. After the mob threatened to burn down the police chowky, Ganpat and Tukaram grudgingly consented to record evidence in a panchnama. The case was heard on June 1, 1974, before the Sessions Court. The verdict found the perpetrators not guilty. The court said that “Mathura was habituated to sexual intercourse, prompting free agreement”. However, only sexual intercourse could be proven, not rape. On appeal, the Nagpur bench of the Bombay High Court overturned the Sessions Court’s ruling and sentenced the respondents to one year and five years in jail, respectively. The Court ruled that “passive subjection to fear from substantial threats does not constitute consent or voluntary sexual activity”. In September 1979, the Supreme Court of India justices Jaswant Singh, Kailasam, and Koshal overturned the High Court verdict and acquitted the officers in Tukaram vs. State of Maharashtra. The Supreme Court ruled that Mathura did not raise an alarm and had no apparent injuries, indicating no resistance and consequently no rape. The court said, "Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her”. After the Supreme Court acquitted the defendants, popular outrage led to ‘the Criminal Law (Second Amendment) Act 1983 (No. 46)’. Section 114(A) of the Indian Evidence Act was substantially changed by this Act. ‘Section 376’ of the IPC was also changed to criminalize prison rape. The Amendment also outlawed the publishing of rape victims’ names and required in-camera procedures.

In ‘Padmini v. State of Tamil Nadu’, Padmini, the wife of a theft suspect, was gang-raped in 1992. Nandagopal, her husband, was detained at Annamalai Nagar Police Station in Chidambaram on May 30, 1992, and held till June 2, 1992. Nandagopal died from a beating. Padmini was gang-raped at the police station while seeing her husband. Of the 11 cops charged, 7 were acquitted and 4 were sentenced to 10 years in jail. Convicts appealed to the Supreme Court, which sustained the trial court and Madras High Court convictions. Before the involvement of the High Court of Madras, the Tamil Nadu government gave Rs. 1 lakh as temporary compensation, along with employment and housing in government residences.

Maya Tyagi was beaten after being hauled out of the vehicle in ‘Sheo Kumar v. State of UP’. Her blouse, petticoat, and saree were torn by police, leaving her naked. She was forbidden to cover herself with a towel and Tahmed. She was beaten with lathis and slippers for covering her body. Later, she was paraded nude from the scene to the police station and ordered to walk around naked. She was then confined in an iron-barred chamber. Three sub-inspectors and three constables raped her alternately. This caused her to hemorrhage. An inspector entered the room and beat her with a cane, sprained her breasts, and placed a stick in her vagina.  The Allahabad High Court upheld the conviction. Three police officers were condemned to death but subsequently commuted to life. The other police officers were imprisoned for seven, three, two, or one year, depending on the severity of the offense. This case changed the law to distinguish custodial rape from rape. The then-Prime Minister, Chaudhary Charan Singh, backed Maya Tyagi, the victim, and various women's groups and political parties protested this tragedy and public official abuses. A Parliamentary discussion was also conducted on rising rape rates.

The 1978 case of ‘Smt. Rameeza Bee v. D Armugam’ caused significant commotion in Hyderabad and Andhra Pradesh. Hyderabad had street disturbances. Police constables reportedly raped a lady, and her husband was slain for protesting. 18 police stations were torched in protest, and 26 people were shot and killed. Riot control required a curfew. Policemen were tried at Karnataka's Session Court. The Commission found the police officers' testimony inadmissible, acquitting them. In 1980, the Law Commission was asked to examine the issue and provide suggestions in the 84th Report. In 1982, Parliament introduced a Bill.

In ‘Sheela Devi vs Haryana and Anr’., a policeman raped and killed a lady. It happened in the police station. This sparked statewide demonstrations. Finally, the government had to alter rape legislation. Given the tragedy, the Indian government acted promptly. Raj Narain, a politician, will fast till the rapists are executed. This occurrence led to various rape legislation and terminology changes.

‘Sheela Berse v. State of Rajasthan’ concerns Bombay police lockup women's custody abuse. Police have attacked and tortured women in jail. The Supreme Court issued guidelines:

1. Police should exclusively hold female suspects in lock-ups supervised by female officers. Female convicts should not be housed with male prisoners.

2. Interrogation should only occur with female police officers present.

3. Notify the local legal aid committee immediately upon arrest to provide legal help.

4. Inform the individual of arrest reasons and bail rights.

5. Inform friends and family of the detained individual immediately.

In ‘Sakshi v. Union of India’, the Supreme Court endured criticism for inadequate rape legislation, prompting ‘the 172nd Report of the Law Commission of India’. The research suggests gender-neutralizing ‘Section 375 of the Indian Penal Code’ and recommends revisions to ‘Sections 376, 376A, 376B, 376C, and 376D’ as even male rape is also very pronounced in Indian Jails. The Commission suggested adding Section 376E to the Indian Penal Code, removing Section 377, and increasing sentences under Section 509.

The Supreme Court gave a very important judgement to safeguard rights of rape victim in ‘Lillualias Rajesh and Anr. V. State of Haryana that the ‘pre-vaginum examination’ or ‘two-finger test’ violates women’s dignity. Also, this test is useless when choosing. The court noted that ‘the International Covenant on Economic, Social, and Cultural Rights, 1966’ states that rape victims are entitled to legal help and remedies. Medical examination should not be inhumane, harsh, or immoral.

4. Challenges in Prosecuting Custodial Rape Cases

Based on the statistical data from NCRB, 2021, India reported an average of 86 rape cases daily and 49 offenses against women per hour in 2021. In 2022, the total number of rape cases reported in India exceeded 31 thousand. In 2023, the National Commission for Women (NCW) saw 28,811 complaints of sexual offences against women, with over half gathered from Uttar Pradesh. Despite numerous reported cases, the rate of convictions remains disappointingly low. In 2018, the criminal conviction rate stood at 27.2% and increased to 39.3 % in 2019. NCRB, 2022 statistics show Uttar Pradesh has the highest conviction rate for sexual assault of women. Bihar positioned third (60.9%), being followed by Chhattisgarh (59.5%) and Manipur (56.4%). Nevertheless, statistics indicate that the conviction rate in rape cases is as low as 27.8%. The NCRB data is important as it highlights that in numerous instances, victims choose not to report rape or sexual assault to police. Expressing concern over the low conviction rate, even the Supreme Court noted that 90% of rape cases result in acquittal.

In the cases of custodial rape, it is even difficult to get the accused convicted as in most of the such situations, the police authorities manipulate the evidences of rape against the prosecution and get acquitted.  The issue lies in the fact that the initial responder to a crime scene is typically a constable, who may not have the expertise needed to preserve the integrity of the crime scene, and also, he might be working under the orders of the accused police official. In general, when evidence is cross-contaminated or the ‘chain of custody’ is compromised, it can lead to the evidence being deemed inadmissible. Ensuring the ‘chain of custody’ is maintained is crucial for evidence to be admissible in court. In one instance, the forensic lab made an error with the terminology used to identify the location and case number. It was a mistake made by a person, leading to all the evidence collected becoming inadmissible.

In custodial rape cases, the police have the upper hand in influencing the victim and her family to accept money and not report the case, as the victim often comes from a poor background. At times, it can be challenging for the victim to seek justice. One possible explanation for the low conviction rate is that a witness becomes hostile. FIR being the first step in accessing justice, there have been numerous instances where the authorities failed to file an FIR despite significant efforts. No police officer filed an FIR in response to the initial complaint.  This demonstrates the proficiency of the police and law enforcement system in India. After the 2013 Criminal Law (Amendment) Act and 2018 amendments, section 166-A was added, making non-registration of FIR in cognizable offences criminal. Under section 166-A, police officers who fail to file an FIR in cognizable instances face imprisonment for at least 6 months and up to 2 years. A fine is also possible. According to Lalita Kumari's verdict, the Karnataka High Court requires IPS and other police officials to possess a basic legal understanding. They are still developing conventional ways. They must study criminal law and be well-trained. The court requested a report from the ADGP on ‘the understanding of criminal law among SPs’. ADGP reported that many officers lack this expertise.

In India, there are no formal criteria for victim medical examinations. Parliament made amendments in 2013 and 2018 regarding this matter. The 2013 amendment encompassed ‘section 357-C’ to the Cr.P.C, addressing victim treatment during medical examinations. All hospitals, whether public, private, or controlled by the central government, must provide adequate care and adhere to formalities and laws. The hospital must notify the police station about the victim. A lack of competent and specialized investigative agencies contributes to poor conviction rates in rape. 

5. Suggestions and Conclusion

The Rule of Law is amiss in our police lock-ups, where stories of ruthless custodial cruelty and ill-treatment by police officials touch the moral compass of the common man, making him doubt that right to life remains essential in our constitutional system. Constitutional principles, statutory regulations, and other protections fall short in guaranteeing the most basic right, the right to life, and not only the animal existence but a dignified living as held in ‘Maneka Gandhi v. Union of India’. In the case of ‘Prem Chand (Paniwala) vs Union of India’,  the question “Who will police the police?” raised by Justice V. R. Krishna Iyer has not been adequately addressed. The 152nd Report suggested various steps to decrease custodial crimes, while the 273rd Report emphasized the importance of ratifying the United Nations Convention Against Torture through domestic legislation. It highlighted the need for criminal prosecution in cases of custodial violence, rather than relying on administrative actions. However, a recent development involves the direction to install CCTV Cameras in police stations, as mandated by the Hon'ble Supreme Court of India in ‘Paramvir Singh Saini Vs. Baljit Singh & Others’, which may help in addressing custodial violence to some extent.

The Supreme Court issued a notice to the Union and States concerning a mandatory judicial probe in cases of ‘custodial deaths, rapes, or disappearances. The petition alleges that ‘Section 176(1A) of the Code of Criminal Procedure’, inserted in 2006 to address these issues, has not been implemented yet. Sexual assault is undoubtedly an act of asserting power. The following case of rape involving law enforcement and the legal implications surrounding the matter. During the trial process, the victim is often ill-treated and stigmatized by lawyers and judges. Law is inherently dependent on its nature and how it is executed in practice.

Body cams with GPS tracking and, rather, a function to record the subject's body temperature should be made available to subordinate police officials, with data recorded in real time, saved, and retained for at least 60/90 days corresponding with the period prescribed for filing a chargesheet in the Hon'ble Court of law, until the direction as said in the case of Paramvir Singh Saini Vs. Baljit Singh & Others.

CCTV cameras must be placed and operated according to explicit instructions in ‘Paramvir Singh Saini Vs. Baljit Singh & Others’. The CCTV cameras ought to observe all police station entry and exit directions, not only according to the approved layout plan but also in line with the actual structure, to enable proper correlation of arrests, detentions, and other incidents with daily/general diaries/memos. Even lockups and interrogation rooms necessitate CCTV cameras and regular surveillance. Annual physiological-physical-medical exams and evaluations should be done to guarantee that only mentally and physically fit investigative officers are employed. Tests should be done in randomized groupings by credible hospitals and authorities without notifying officials. The Victim Compensation Scheme must encompass custodial rape, which shall be reviewed by the District Legal Services Authority regardless of F.I.R. registration. Even with a request for reparation simpliciter alleging custodial rape, legal assistance must be granted.

In cases of custodial rape, police administrative conduct must be exemplary without waiting for court verdicts. After the Hon'ble Bombay High Court's ruling in ‘Pravin Vijaykumar Taware vs. The Special Executive Magistrate’, the government's Special Executive Magistrates (SEMs) need comprehensive training and orientation. Their capacity building should ensure proper evaluation before remanding the accused to judicial/magisterial custody. Prisons should transition from custodial and security establishments to being capable of providing correctional therapy. A non-exploitative society with ideological and economic integration is necessary for this to happen. Prison reforms in India have been hampered by a lack of priority and funding. The research team proposed investing Rs. 1000 crores in modernizing the jail system, but state governments are hesitant to do so during the Fifth Plan. Prisons, reformatories, and borstals are included in Schedule Seven of the Constitution as a state list. As a non-plan issue, state governments prioritize jail administration lowly, citing a lack of funding as the excuse. The research team proposes amending the Constitution to include jail management in the present list, allowing for centralized, consistent prison laws nationwide. However, Indian jails lack reinforcement not because of a lack of merit, but due to a lack of motivation. Proper monitoring and data collection of the custodial rape cases is crucial to take action against the same. At last, the awareness campaigns about gender equality are sacrosanct.

Custodial violence is a barefaced abuse of legitimate authority against the impoverished, disadvantaged, and unimportant. It includes a single slap, repeated strikes, severe and non-grievous physical injuries, harassment, intimidation, privacy violations, and illegal means to hinder medical and legal aid. Police should remember that it is just an extension of the court and not the sole authority for punishment. Since advocating for police reform now and then since Prakash Singh v. Union of India has become routine, a genuine real intent to execute the law is needed for an overhaul.