Torture Behind Bars - A Legal And Institutional Critique Of Custodial Violence In India
Author: LawSphereX
Category: General Law
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TORTURE BEHIND BARS: A LEGAL AND INSTITUTIONAL
CRITIQUE OF CUSTODIAL VIOLENCE IN INDIA
Juveriya Kazmi, LLM, NIMS University, Jaipur, Rajasthan. Naman Srivastava, LLM, NIMS University, Jaipur, Rajasthan.
ABSTRACT
Custodial torture remains one of the gravest human rights abuses in modern democracies, particularly in countries like India where the constitution guarantees equality and dignity. Despite court judgments and legal protection, instances of custodial abuse from physical assault to death continue to happen, reflecting systemic weaknesses and a culture of impunity. The following paper uses doctrinal and analytical method in order to critically asses the constitutional, legal and judicial frameworks which governs the prohibition and prevention of custodial torture in India. This paper also compares and contrasts with the major international human right standards such as the one prescribed by the United Nations Convention Against Torture (UNCAT), to explore India’s compliance as well as deficiencies.
The paper aims to analyse and scrutinize significant court rulings that have influenced custodial violence and human rights protection. It also examines the shortcomings of enforcing the existing laws and emphasises on the lack of proper statutory framework regarding torture. This research critically analyzes the defects in the areas of institutional accountability, lack of independent investigation agency and improper enforcement of the anti-torture laws. Lastly, this paper proposes the need for structural reforms, sensitization of judiciary, transparency of the administration and policy level intervention to ensure that India’s criminal justice system complies with its constitutional aspiration as well as international human rights standards. Keywords: Custodial Torture, Human Rights, Police Custody, Constitution, Torture Victim, Article 21, India, Accountability
Introduction “The principle that a person is innocent until proven guilty is not just a mere rule of law but a reflection of human dignity woven and protected under Article 21 of the Indian Constitution. ” However, this dignity is repeatedly violated violently and illegally in the enclosed corners of our police stations and interrogation cells. Custodial torture in India remains a persistent and heinous maltreatment justified by the institutional indifference and protected by procedural defects, and has its roots in a colonial legacy of oppressive policing. The National Human Rights Commission (NHRC)1 reported over 2,000 custodial deaths between 2017-2022, a shocking and surprising figure, though it that does not account for the various unreported cases or the perpetrators of physical and psychological torture.
The ugly fact is that these abuses go unpunished because the system does not have an effective mechanism for accountability. The frequency of custodial torture highlights a serious discrepancy between the law and practice, despite the fact that it is considered illegal under both Indian constitutional law and several international treaties that have been ratified by India. Bharatiya Nagarik Suraksha Sanhita (BNSS), Bharatiya Nyaya Sanhita, 20232, and constitutional provisions such as Articles 20 and 21 are often disregarded while it comes to the actual implementation and enforcement of law. In order to find opportunities for comprehensive reform, this paper will analyze the type and extent of torture in Indian prisons, a review of the country’s current legal and constitutional frameworks, an assessment of the judiciary’s response, and a consultation with global best practices.
The overarching goal is to make the case that institutional accountability, legal reform, and a change in the ethics of law enforcement are all necessary for a significant decrease in custodial violence. Research Methodology This research examines the existence, legal response, and need of reforming custodial torture
1 National Human Rights Commission of India, Annual Report 2021–22, p. 57
2 Bharatiya Nyaya Sanhita, 2023, Sections 120(1) & (2)
in India from two major perspectives, i.e. doctrinal and analytical. The paper aims to examine the systemic and accountability deficits and further proceeds to critically assess the legal, legislative, and constitutional framework that governs custodial violence.
1. Research Design
While being qualitative, the study takes a doctrinal approach, ensuring a close examination of international human rights conventions, statutory law, constitutional protection, and court rulings.
2. Sources of Data
Primary Sources: Statutes (e.g., Constitution of India, Bharatiya Nagarik Suraksha Sanhita (BNSS), Bharatiya Sakshya Adhiniyam, 2023, Bharatiya Nyaya Sanhita, 2023), landmark judicial pronouncements, Law Commission reports. • Secondary Sources: These sources include, Articles published in popular law journals, books written by legal experts, NCRB (National Crime Records Bureau) reports, NHRC (National Human Rights Commission) reports, UNCAT (United Nations Convention Against Torture), and genuine newspaper reports.
3. Research Tools
Case Study Method: Pivotal judgments like DK Basu v. State of West Bengal, Munshi Singh Gautam v. State of M.P., and Re: Inhuman Conditions in 1382 Prisons are examined in depth. • Comparative Analysis: India's international treaty obligations under the UNCAT are compared with implementation at the domestic level. • Statistical Analysis: NCRB custodial deaths data are employed to comprehend trends and state-wise patterns.
4. Objectives of the Study
To identify the scope and extent of torture in Indian prisons.
To address the constitutional and legal safeguards against torture. • To determine systemic vulnerabilities in how the law is being implemented. • To make recommendations for enforcement and firm accountability.
5. Limitations
The research is confined to institutional and legal data that are publicly available. Due to the sensitive nature of the topic, no empirical field surveys were conducted. Understanding Custodial Torture: Meaning & Nature Custodial torture is the official practice, typically by police, of physically or psychologically tormenting detainees to elicit information, to punish, or to exert control. Since the word "custodial" implies that the victim is supposedly being cared for or kept in by the police, such abuse is not merely illegal, but it is also a blatant breach of public trust and duty3. The Law Commission of India, in its 152nd Report4, stated unequivocally that police officers continue to employ third-degree methods as part of standard investigative techniques.
Even though they don’t always end in death, torture can involve beatings, electric shocks, sleep deprivation, and denial of medical treatment, all of which seriously compromise the detainee’s bodily autonomy and dignity. Despite being a signatory to the United Nations Convention Against Torture (UNCAT) since 19975, India does not have any specific standalone anti-torture laws. The 2010 Prevention of Torture Bill, intended to make torture in detention a crime, expired without being passed into law. Because of this legislative gap, general penal provisions like Sections 120(1) & (2) of the Bharatiya Nyaya Sanhita, 2023—which are insufficient in defining or punishing the full range of torture practices. The normalization of custodial violence in criminal investigations as a “necessary evil” is a more serious issue. Such acts are frequently justified by law enforcement officials as “quick
3 Amnesty International, India: Torture, Rape and Deaths in Custody, ASA 20/006/1992, pp. 5–7.
4 Law Commission of India, 152nd Report on Custodial Crimes, 1994, p. 18.
5 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, adopted by UNGA res 39/46.
methods” to get confessions or solve crimes. Even the most progressive legal frameworks are rendered useless on the ground by this culture of silence and internal protectionism6. The psychological effects of custodial torture, such as verbal humiliation, solitary confinement, and threats of harm to family members, are also not adequately documented and are not covered by the law. The outcome is a distorted perception of torture that ignores its more profound and long-lasting effects in favour of viewing it as only physical abuse. The constant presence of violence & torture in Indian prisons condemns a culture of institutionally rooted abuse that is deeply entrenched and evident at the micro-level, either without or with only a minimal penalty.
This case demands a careful consideration of structural reforms required to the judicial system, starting with heightened judicial oversight, and instituting adequate mechanism for lodging of complaints, and also revising the policing policy. Constitutional & Legal Framework in India The Constitution of India includes and assures the basic rights that acts as a strong deterrent against police torture. Article 21 that protects the right to life and liberty, also directly includes the prohibition of torture and of cruel, inhuman and degrading treatment. But because of the loopholes in the law, most importantly the absence of an effective anti-torture law, enforcement of this right against custody torture is still inadequate. This section discusses constitutional protection provided, case law pertaining to the matter, and legislative efforts that attempt to reform custodial torture.
• Article 21: Right to Life and Personal Liberty As per Article 21 of the Indian Constitution, no one shall be deprived of their personal liberty or life except in accordance with the procedure established by law. This is a basic right which is assured to all persons regardless of nationality or legal status in the country. Although it is widely understood to encompass the rights to life and a respectable quality of life, it also covers protection from torture and cruel treatment6. The Indian Supreme Court, which has repeatedly affirmed that torture and other cruel treatment by the government or its agents are violations of Article 21, supports this interpretation.
6 Constitution of India, Art. 21.
In the landmark case of D. K. Basu v. State of West Bengal, the Supreme Court established that custodial violence is a serious abuse of an individual's fundamental rights, particularly the right to personal liberty as guaranteed under Article 21. The Court gave guidelines that would safeguard an individual in police custody, including the provision of the right to counsel and the fact that arrests should be documented. The Court's ruling was a gigantic leap towards acknowledging that the right to personal liberty also includes protection from torture while in custody7. • Statutory Provisions: Bharatiya Nyaya Sanhita, 2023 & The Prevention of Torture Bill, 2010 The ambit of the act of torture in custody is limited by the Bharatiya Nyaya Sanhita, 2023, provisions.
Particularly, Sections 120(1) & (2) deal with the causing of harm and grievous harm intentionally with the intention to force a person to recover property or provide evidence. The extent and nature of torture occurring in police custody are at best not covered by these provisions, nor are they effectively enforced. Furthermore, these provisions lack a precise definition of torture, which causes inconsistent application. Sadly enough, the Prevention of Torture Bill, 2010, introduced to abide by India's obligations under the United Nations Convention Against Torture, has not yet been made into a law. The bill would have subjected police officers engaging in them to enhanced punishment and banned all modes of torture in detention, physical and mental, for police officials who indulge in them.
Non-implementation is a sign of the unwillingness to reform institutions and the deep-seatedness of torture among Indian policing practices8. • International Frameworks: United Nations Convention Against Torture (UNCAT) In 1997, India ratified the United Nations Convention Against Torture (UNCAT), which requires state parties to take action to stop torture and bring those who engage in it to justice. India still hasn’t ratified the treaty, despite having signed it, which leaves a big hole in its international human rights commitments. Political factors and the absence of domestic laws making torture a crime are frequently blamed for the ratification delay. By failing to ratify the
7 D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
8 Prevention of Torture Bill, 2010, Rajya Sabha.
UNCAT, India remains in violation of its international human rights commitments regarding custodial torture9. There are significant doubts regarding India’s compliance with international human rights standards given the lack of a specific anti-torture law and the sluggish pace of institutional reforms. Custodial torture will remain a serious human rights violation in India until these problems are resolved. Systemic Challenges & Accountability Crisis In spite of the Indian Constitution and international law that established a safeguard against torture by detention authorities, various barriers are in place, inhibiting effective utilization of the protection. Systemic torture in Indian prisons is feuled by institutional as well as personal lack of accountability, combined with police impunity.
The section discusses the structural barriers to effective deterrence and accountability for cases of torture in custody. • Political and Institutional Resistance These are institutional resistance, lack of political will, and a weak criminal justice system. Political and institutional resistance to change is one of the primary reasons for the ongoing use of torture in Indian prisons. Because of their customary political bias, the security agencies and the police are normally let off scot-free for torturing individuals. Law enforcement agencies, especially in regions affected by counterinsurgency operations or communal violence, are normally granted excessive powers and autonomy, and this results in systematic human rights violations. This problem is further exacerbated by the absence of effective oversight mechanisms to investigate and take action on complaints of custodial abuse.
10 The resistance to reforms can be further exemplified by the failure to implement the D. K. Basu guidelines11, which were formulated to ensure the protection of those in police custody. These guidelines were inconsistently enforced, and which led to continued abuses. Even though there has been some improvement due to judicial intervention, such as legal
9 United Nations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by UNGA Resolution 39/46, 1984.
10 National Human Rights Commission, Annual Report, 2019-2020, NHRC, New Delhi.
11 D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
counsel and registering of arrests, etc. , police impunity is rampant. • Lack of Independent Investigation Mechanisms The absence of independent investigation mechanisms is another serious obstacle to accountability. The same police force that is involved in the crime is usually charged with investigating the case in the majority of cases of torture in custody. Due to the inherent conflict of interest that this creates, investigations move slowly and are non-transparent. Although it can act when human rights violations are perpetrated, the National Human Rights Commission (NHRC) is also restricted in its ability to conduct independent investigations and bring perpetrators to book. Victims are exposed to institutional cover-ups and the pervasive culture of impunity is maintained in the absence of independent bodies or specialized agencies to look into claims of custodial abuse.
Torture and abuse are only made worse by the police’s unwillingness to look into complaints against other officers. As a consequence, torture victims often face hurdles in obtaining justice, and perpetrators are rarely held responsible for their actions. 12 • Judicial Response and Inaction Though the Indian judiciary tried very hard to ensure human rights for the people and has provided constitutional redress against detention abuse, on the other hand the courts' response to torture complaints has also been mostly poor. Judicial apathy, coupled with the dropped investigations, or outright dismissal of complaints have made custodial abuse very normal. Even if the victims appear in the court, they are bound to carry the burden of proof, which ultimately becomes challenging for them to prove that they were tortured.
The issue further exacerbates when the court relies on police evidence rather than independent research. The pursuit of justice is also made difficult by the fact that there are no sufficient legal remedies for victims of custodial torture. It becomes almost impossible for the victims to receive restitution or compensation for their injuries, since there is no law which could explain compensating victims of custodial torture, and available mechanisms of redress are normally ineffective. • Institutional Culture of Impunity One of the most daunting challenges in the fight against custodial torture is the culture of 12 Amnesty International, India: Torture, Abuse, and Impunity: Police and Security Force Abuses in India, 2013.
impunity within the Indian police services institution. Because they are seen to be above the law, police officers and other law enforcement officers tend to abuse their powers of authority on a regular basis. The hierarchical organization of police forces and the opaque nature of policing are two of the main causes of this culture. 13 The public’s apathy or, in certain situations, tacit approval of torture is exacerbated by the pervasive acceptance of torture within law enforcement organizations. The majority of individuals in society feel that torture is an evil that must be conducted in the name of preserving law and order or obtaining confessions. Since it perpetuates the belief that torture is an acceptable method of interrogation or punishment, such a belief serves to make it difficult to fight custodial torture at the societal level.
International Standards and the Role of Civil Society Apart from being an intra-state issue, the struggle against detention torture has garnered much attention internationally. In order to avoid torture in detention and to provide justice to its victims, various international instruments and treaties have established mechanisms and norms. The role of civil society particularly in exposing and holding states to account for abuses and the role of international law in combating torture in detention are discussed in this section. • International Legal Frameworks There is a key international convention to prevent torture globally, adopted in 1984, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This convention was signed by India in 1997, in order to adopt effective measures to prevent and punish torture on its territory.
As per Article 114 of the CAT, torture is any act by which severe physical or mental pain or suffering is intentionally inflicted on a person for the purpose of, inter alia, obtaining information, punishment, or intimidation. Due to this convention, India is bound to criminalize torture, give effective redress to the victims, and adopt steps to prevent it. However, India’s legal system is still lacking in terms of its adherence to international norms. The nation has not yet passed a domestic law that expressly makes torture a crime, despite its 13 Institutional Impunity and the Police in India,” International Journal of Human Rights, vol. 16, no. 3, 2012. 14 United Nations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Article 1.
responsibilities under the CAT. For the advocates of human rights, this legislative gap has been a major source of concern. The United Nations Committee Against Torture (CAT Committee) has emphasized that India’s inability to pass such legislation has led to a lack of accountability for torture which is committed in detention and has also permitted impunity to thrive. The absence of a specific anti-torture lawin India hinders the effective application of international standards. Additionally, one thing that makes the compliance of India to international human rights standards difficult is India’s hesitancy about the CAT. India has expressed a lot of concerns about the implementation of convention, mainly regarding torture criminalization and the prosecution of torture officials.
As an outcome, the nation has been unable to completely adhere to international norms for the human rights defense. • Role of Civil Society in Combating Torture It is the responsibility of civil society to contribute towards the fight against torture in custody, especially in India where there is absolutely no accountability and legal protection for the same. In case of lobbying for policy reform, providing legal support, and promoting public awareness, Human rights groups, advocacy networks, and civil society organizations (CSOs) have played an important role. There are certain organizations in India, like the People’s Union for Civil Liberties (PUCL)15, Amnesty International India, and Human Rights Watch that have been leading the charge to expose custodial torture instances and pursuing justice.
An important role of a bridge between the victims and the justice system is played by these organizations, as these offer advocacy services, legal services, and documentation to torture victims. These organizations help in bringing torture cases to light, demanding accountability, and making sure victims’ voices are heard in International forum and courts. Additionally, community organizations and grassroots movements have become very active in opposing state-sponsored torture. They have also established those forums wherein victims and their well-wishers can tell their story and pursue justice. International organizations such as 15 People’s Union for Civil Liberties (PUCL), “The State of Human Rights in India” (Annual Report), 2019.
Amnesty International16 and the International Federation for Human Rights (FIDH)17 have continuously reminded the government to put its duties under international law into practice and demanded more effective anti-torture law in India. Civil society plays a crucial in ending India's accountability crisis since they ensure public awareness of detention torture, quick institutional reform, and impel public opinion. They demand for the establishment of independent monitoring mechanisms, the enforcement of a strong and effevtive anti-torture law, and as well as the improvement of protection for human rights defenders. • International Support and Advocacy United Nations and the European Union have also been a persistent advocate in demanding stronger anti-torture laws in India.
UN Special Rapporteurs 18have consistently showed their concern over the custodial torture in India and made recommendation in order to enhance institutional and legal pillars that deter it. These entail the enacting of prompt anti-torture laws, the establishment of independent bodies for the investigation of allegations of torture, and ratification of the Optional Protocol to the Convention Against Torture (OPCAT). Furthermore, measures have been taken from international human rights groups, including the concession of judges' that torture is a serious violation of human rights and the victims should be compensated. There has also been more public awareness and mobilization on the cause, especially in calling attention to the irony of state actors in human rights abuses.
Recommendations and Path Forward Custodial torture problem in India is multi-faceted and thus, it demands an comprehensive strategy with legal, societal, and legislative reforms. Institutional responsibility, legal reforms, and more effective enforcing mechanisms must be undertaken to bring in long-term solutions on their own, though there is a series of judiciary interventions and global pressure. The following are some of the significant suggestions that would bridge the gap in the existing
16 Amnesty International, “Torture and Impunity in India”, 2014.
17 Human Rights Watch, “India: Torture, Abuse, and Impunity in Police Custody”, 2019.
18 UN Committee Against Torture, Concluding Observations on the Initial Report of India, CAT/C/IND/CO/1, 2012.
loopholes and abolish torture in Indian prisons. • Enacting a Comprehensive Anti-Torture Law Passage of an all-encompassing anti-torture bill making all torture in custody unlawful and holding officials accountable for it is among the most important provisions. While the Torture Bill (2010)19 was introduced in Parliament, it has not yet been passed into law. it still remains to be passed into law. Since impunity has continued due to the lack of such a law, anti-torture law needs to be the top priority for the government. In addition to making specific provisions for investigating and prosecuting torture crimes, the anti-torture law must also conform to international norms, i. e. , the United Nations Convention Against Torture (CAT). It must also have reporting and monitoring provisions for torture cases as well as granting compensation to victims.
This kind of law would effectively demonstrate the seriousness of the country in the protection of human rights and act as a deterrent. • Strengthening Accountability Mechanisms There is an urgent need to establish such independent bodies that are capable of investigating torture complaints along with holding perpetrators accountable. The National Human Rights Commission (NHRC)20 and State human rights commissions have frequently failed to provide victims of torture in detention with justice. Our present system is often susceptible to political influence and lacks required independence. It is advised that the NHRC and other similar organizations be given more power to address this issue, along with the capacity to launch investigations, issue legally binding orders, and bring charges against officials who are perpetrators of torture.
To guarantee that they operate independently of outside intervention, these organizations should also be granted financial independence. Additionally, police departments ought to set up specialized units for investigating cases of torture. These units ought to be assigned the duty of looking into allegations of torture and 19 The Prevention of Torture Bill (2010), Parliament of India, Available at: https://prsindia. org/billtrack/theprevention-of-torture-bill-2010 20 National Human Rights Commission (NHRC), “Recommendations for the Prevention of Torture in India”, 2014.
ought to receive the necessary training to deal with such situations with the proper degree of tact and professionalism. By removing the police force's investigation into torture claims, where bias and complicity are often present, these units could operate with a greater degree of objectivity. • Effective Training and Capacity-Building of Law Enforcement Officials However, it is a mandate that regular training on issues of human rights and prohibitions on torture at detention houses becomes necessary for various law and order organizations like police and those responsible for detention. Training needs to be such that emphasis is given to respect and exercise human rights of detained people and to adopt non-violent measures of interrogation and consequences of torturing a human being.
Police officers should be given training on non-coercive measures of interrogation with respect to detained people and their human rights. The judges, prosecutors, and attorneys will greatly benefit if they are involved in training programs in order to be enlightened about the legal implications of torture, as well as the laws that ought to be employed in investigating and prosecuting torture-related offenses. With improved human rights understanding, successful trials will be achieved while law enforcement officers are held responsible. • Establishing Independent Custody Monitoring Mechanisms Yet one of the glaring gaps or one of the glaring deficits in the whole legal and institutional setup in India is the lack of Independent monitoring of Detention Centers like Police Stations, Jails, or even Juvenile Centers.
It is in this context that in order to ensure that there would not be any torture and that it would always remain humane. It has also been suggested that the treaty covering a protocol to the Convention Against Torture be ratified by the Government of India. Under the Optional Protocol to the Convention Against Torture (OPCAT)21, there is a need for a system of periodical inspection of all the detention centers. These can be undertaken by national as well as international organizations that specialize in the area of human rights. Thus, the best prison facility can be ensured.
21 United Nations, Optional Protocol to the Convention Against Torture, Article 3, 2002.
Providing Adequate Remedies and Compensation to Victims The lack of legal recourse and the inability to get adequate compensation make it extremely challenging for victims of custodial torture to get any sort of compensation or justice. The Indian government needs to establish a sound compensation policy for victims of torture in detention centers. In addition to this, in order to make sure that victims of torture do not experience long-term consequences from their detention in India, it should equally ensure that they are able to access medical care as well as other kinds of psychological help. Victim support services would help in their recuperation as well as their pursuit of justice through the legal system.
• Raising Public Awareness and Advocacy Lastly, public awareness campaigns22 would need to be in place to make the public more aware about human rights, custodial torture, as well as the available legal channels to seek redress for the victim. Many persons in detention may not be privy to such information. They may not be aware how to raise such concerns. Civil society would need to continue to lobby the government/legal institutions to put in place such reforms. Secondly, international organizations should also keep pressurizing India to adhere to its international obligations to put an end to torture.
Conclusion Providing a stark opposition to the Rule of Law and human rights in general, custodial tortures remain a perennial issue in India, a country that boasts of various constitutional provisions, norms, and conventions against such inhumane acts because of various factors, such as, lack of accountability, political pressure, etc. , despite of vigilant roles played by various constitutional watchdog agencies, such as the National Human Rights Commission (NHRC)23 and others in this regard. The current aim of this essay is to highlight, through examples, how the problem of custodial abuse and torture in India persists due to a lack of comprehensive torture laws. It needs to adopt a comprehensive approach if it desired to grow as a country, which entails, amongst other
22 People’s Union for Civil Liberties (PUCL), “Torture in India: A Chronic Crisis” (Report), 2020.
23 National Human Rights Commission (NHRC), “India: The Role of NHRC in Torture Prevention,” 2018
things, a comprehensive law against torture, independent oversight, as well as training that promotes human dignity within the police force. Furthermore, the government has the obligation to ensure that the rights of the victims of torture are fulfilled as far as health care is concerned. Also, the public awareness drives need to be geared towards educating individuals about their rights even in prison. In practice, India must uphold its adherence to international human rights norms, including the United Nations Convention Against Torture24. One of the most important steps toward an India free of torture may be the successful application of these international frameworks. Furthermore, sustained pressure from international human rights organizations and civil society groups will guarantee that this topic stays at the top of the national conversation.
It is possible to imagine a future where human dignity is upheld even in the places of detention with the help of strong legal frameworks25 , efficient accountability procedures, and strong public support. The battle against custodial torture is a long and difficult one. Only after achieving victory here India's Constitutional promises of justice will be fully realized.
24 United Nations Human Rights Office, “Combating Torture: The UN Convention Against Torture and its
Optional Protocol,” 25 India’s National Policy on Torture Prevention, Ministry of Home Affairs, Government of India, 2016
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