Legal Labyrinths: Navigating Through Custodial Torture and Human Rights

When someone is taken into police or judicial custody, the state assumes responsibility for their safety. Yet across India, custodial torture remains a persistent and deeply troubling reality. Despite constitutional guarantees, statutory protections, and landmark judicial pronouncements, the gap between law on paper and law in practice continues to widen. Understanding the legal framework that surrounds custodial torture – and why it so often fails – is essential for anyone studying criminal justice administration.

What is custodial torture? 🔗

Custodial torture refers to any form of physical, psychological, or sexual violence inflicted upon a person by law enforcement officials or prison authorities while that person is under arrest, detention, or imprisonment. It encompasses direct assault, beating, mental harassment, threats, intimidation, sexual violence, and coercive interrogation methods used to extract confessions. What makes custodial torture particularly grave is the power imbalance – the individual is entirely at the mercy of the state, with limited ability to resist or report the abuse.

Notably, custodial torture is not explicitly defined in any existing Indian law. This absence of a clear legal definition has allowed police forces to routinely employ what are euphemistically called “third-degree methods” during interrogation, often with impunity.

Constitutional safeguards against custodial torture 🔗

While India’s Constitution does not contain an express prohibition on torture, several fundamental rights under Part III provide implicit but powerful protections to persons in custody.

Article 21: Right to life and personal liberty 🔗

Article 21, considered the cornerstone of India’s constitutional framework, has been consistently interpreted by the Supreme Court as extending beyond mere physical survival to include the right to live with human dignity. Through a series of landmark judgments, the Court has effectively elevated the right to be free from torture to the status of a fundamental right. Any form of cruel, inhuman, or degrading treatment during investigation, interrogation, or detention falls within the prohibition of Article 21.

Article 20(3): Right against self-incrimination 🔗

Article 20(3) grants every individual the right against self-incrimination, reinforcing the presumption of innocence until proven guilty. This provision directly targets the root cause of much custodial torture – the desire to extract confessions through force. When police cannot compel a person to testify against themselves, the incentive for coercive interrogation is significantly reduced, at least in theory.

Article 22: Protection against arbitrary arrest and detention 🔗

Article 22 provides four essential safeguards: the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner, protections under preventive detention laws, and the requirement of production before the nearest Magistrate within 24 hours of arrest. These provisions are designed to ensure that no person is subjected to ill-treatment that lacks statutory backing.

Article 14: Equal protection under the law 🔗

Article 14 ensures that accused persons receive equal treatment under the law and cannot be discriminated against based on their custody status. The state, as the custodian of law, must provide equal protection regardless of whether a person is free or detained.

Statutory provisions under domestic law 🔗

Beyond constitutional protections, several statutory provisions address custodial torture, though none amount to a comprehensive anti-torture law.

Bharatiya Nyaya Sanhita (formerly IPC) and evidentiary safeguards 🔗

Sections 330 and 331 of the erstwhile Indian Penal Code (now replaced by the Bharatiya Nyaya Sanhita, 2023) prescribe punishment for injuries inflicted to extort confessions, with imprisonment of up to seven and three years respectively. However, these provisions have been criticized for their limited scope – they do not cover all forms of torture as defined under international law.

On the evidentiary side, Section 25 of the Indian Evidence Act (now the Bharatiya Sakshya Adhiniyam, 2023) provides that confessions made to a police officer cannot be proved against the accused , while Section 24 renders confessions obtained through inducement, threat, or coercion inadmissible in criminal proceedings. Additionally, the Magistrate must verify that any confession or statement is made voluntarily before it is recorded.

Procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita 🔗

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, contains several relevant provisions. Section 53 mandates medical examination of arrested persons, extending safeguards against custodial torture. Section 196 provides for compulsory inquiry by a Magistrate in cases of custodial death. Section 399 provides for compensation to persons who have been groundlessly arrested.

To ensure impartiality, Section 196(3) of the BNSS makes it mandatory for a judicial magistrate – rather than an executive magistrate – to conduct an inquest in all cases of custodial death, disappearance, or rape. This is a significant procedural safeguard, as investigations conducted by officers within the same department as the accused have long been criticized for bias.

Landmark judicial pronouncements 🔗

In the absence of a standalone anti-torture law, the Indian judiciary has played a pivotal role in developing what is often referred to as “custodial jurisprudence.”

D.K. Basu v. State of West Bengal (1997) 🔗

This is arguably the most important judgment on custodial violence in Indian legal history. The case originated from a public interest litigation filed by Dr. D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, who in 1986 wrote a letter to the Chief Justice of India citing instances of custodial deaths and police brutality. The Supreme Court treated this letter as a writ petition.

In its landmark 1997 ruling, the Court laid down 11 specific guidelines for arrest and detention. These include requiring the arresting officer to bear visible identification, having a family member or respectable person witness the arrest memo, informing relatives about the arrest, conducting medical examination every 48 hours during custody, and mandatory production before a magistrate within 24 hours.

These guidelines were later incorporated into the Criminal Procedure Code through the 2008 Amendment Act, effective from November 2010. The Court also held that victims of custodial violence – or their families in case of death – are entitled to compensation under public law.

Nilabati Behera v. State of Orissa (1993) 🔗

This case established the foundational principle of state liability for custodial violations. The Court awarded substantial monetary compensation and recognized custodial torture as a serious human rights violation. It held that when the state fails to protect individuals in its custody, liability automatically attaches to it.

Other key judicial contributions 🔗

In Maneka Gandhi v. Union of India (1978), the Supreme Court expanded the scope of Article 21 to include the right to dignity, which has been applied extensively in custodial torture cases. In People’s Union for Civil Liberties v. State of Maharashtra, the Court held that inquiries into deaths caused by police torture must be conducted by Judicial Magistrates rather than Executive Magistrates to ensure fair proceedings.

International legal framework 🔗

The prohibition against torture is recognized as one of the most fundamental principles of international human rights law.

The UN Convention Against Torture (UNCAT) 🔗

India signed UNCAT in 1997, but has not ratified it to this day, citing the need to first integrate anti-torture measures into its domestic legal framework. Ratification would obligate India to criminalize torture, investigate all credible allegations, and ensure that no statement obtained through torture is used as evidence.

The NHRC has repeatedly expressed concern over this non-ratification, calling it “long overdue” and noting that the Supreme Court has already recognized the right against torture as a fundamental right. Despite these appeals, the Indian government has continued to describe the delay as merely “procedural.”

Other international instruments 🔗

International protections for prisoners are established under multiple instruments including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and the UN Basic Principles for Treatment of Prisoners. India is a party to the ICCPR, which prohibits torture and cruel, inhuman, or degrading treatment under Article 7.

The Prevention of Torture Bill: A failed attempt 🔗

In 2010, thirteen years after signing UNCAT, the Prevention of Torture Bill was introduced in Parliament – the first time torture was defined in Indian legislation. However, the Bill had a narrow scope and fell short of international standards. It was sent to a Select Committee for review due to its inadequate provisions, and no meaningful progress has been made since. India still lacks a comprehensive, standalone anti-torture law.

The alarming reality: Statistics on custodial deaths 🔗

The numbers tell a story that legal provisions alone cannot. In 2024, the NHRC reported 2,739 custodial deaths, following approximately 2,400 cases in 2023. In the first eight months of 2024 alone, the NHRC registered 107 deaths in police custody and 1,372 deaths in judicial custody.

Between 2016 and 2022, the NHRC recommended compensation in just 1,184 cases of custodial deaths, with disciplinary action taken in only 21 cases – a mere 0.18% of the total. No cases resulted in prosecution during this period. According to NCRB data from 2001 to 2018, out of 1,727 recorded custodial deaths, only 26 police officers were convicted. These figures reveal a deeply entrenched culture of impunity.

The Global Torture Index 2025 classified India as a “high risk” country for systemic torture and custodial brutality , underscoring the scale of the problem.

The role of the NHRC and human rights organizations 🔗

The National Human Rights Commission, established under the Protection of Human Rights Act, 1993, has been the primary institutional watchdog on custodial violence. Soon after its establishment, the NHRC identified custodial deaths and rapes as a priority area and directed all states and union territories to report any instance within 24 hours of occurrence. It also mandated that post-mortem examinations of custodial deaths be videotaped.

However, the NHRC’s effectiveness has faced persistent criticism. Its recommendations are not legally binding, it lacks prosecutorial power, and state governments often fail to comply with its directions. Additionally, active civil society participation in ensuring police accountability remains limited, and public awareness about custodial rights is often low.

Bridging the gap: What needs to change 🔗

The chasm between existing legal protections and their implementation demands urgent attention on multiple fronts.

A standalone anti-torture law 🔗

The Law Commission of India has recommended that India ratify UNCAT and pass a standalone law criminalizing torture by government agents. Such legislation should clearly define torture in line with international standards, prescribe strict penalties for offenders, reverse the burden of proof in cases of custodial injury, and provide for comprehensive victim rehabilitation.

Police reform and accountability 🔗

The Law Commission’s 152nd Report highlighted systemic issues such as organizational flaws within the police force and recommended splitting police functions into separate units for law enforcement and investigation to reduce conflicts of interest. Training programmes must equip officers with non-coercive interrogation techniques, and a culture of accountability must replace the existing culture of impunity.

Strengthened oversight mechanisms 🔗

All lockups and custodial facilities should have real-time audio-visual surveillance backed by centralized monitoring units, with footage securely stored and accessible to courts and human rights bodies. Independent civilian oversight bodies must be strengthened, and the NHRC should be given greater enforcement powers.

Ratification of UNCAT 🔗

India’s continued failure to ratify UNCAT not only undermines its international credibility but also has created practical difficulties, including problems in extraditing criminals from other nations due to India’s reputation for custodial torture. Ratification would signal a genuine commitment to aligning domestic practices with global human rights standards.

The judiciary as the last line of defence 🔗

In the absence of legislative action, the judiciary has consistently stepped in to protect the rights of those in custody. From D.K. Basu’s guidelines to the principle of state liability established in Nilabati Behera, courts have developed a substantial body of custodial jurisprudence. Judicial interventions have served the purpose of exposing and curtailing the use of third-degree methods, and the implementing authorities must ensure strict compliance with these directions.

Yet, judicial directives alone cannot solve the problem. There are still many pending cases awaiting justice, and many victims of custodial torture who remain unrecognized. A concerted effort involving legislative reform, executive accountability, judicial oversight, and civil society engagement is essential.

What do you think? Given that India signed the UN Convention Against Torture nearly three decades ago but has still not ratified it, do you believe that the existing domestic legal framework is truly sufficient to prevent custodial torture? And what role can ordinary citizens and civil society play in holding law enforcement accountable for custodial violence?

References

1. https://cril.nliu.ac.in/2025/03/17/custodial-torture-in-india-the-urgent-need-to-align-domestic-laws-with-global-standards/
2. https://www.scconline.com/blog/post/2024/03/23/custodial-torture-in-india-intersection-of-criminal-law-and-constitutional-rights/
3. https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/
4. https://www.omct.org/site-resources/files/factsheets/Factsheet-India.2025.pdf
5. https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-death-1