LEGISLATIVE REFORMS TO CURB CUSTODIAL TORTURE:
A REVIEW OF INDIAN LEGAL SYSTEM
ABSTRACT
Custodial torture remains a grave human rights violation in India, despite constitutional safeguards
and judicial interventions. The absence of a dedicated anti-torture law and the failure to ratify the
United Nations Convention Against Torture (UNCAT) highlight critical gaps in the Indian legal
system. This research examines the legislative framework governing custodial violence, analyzing
constitutional provisions, statutory laws, and landmark judicial pronouncements. It identifies key
challenges, including police impunity, weak enforcement mechanisms, and procedural hurdles in
proving custodial torture. The research underscores the urgent need for comprehensive legislative
reforms, including the enactment of a stringent anti-torture law, enhanced accountability
mechanisms, and improved oversight of law enforcement agencies. By drawing comparisons with
international best practices, this research advocates for a victim-centric approach that ensures
justice, rehabilitation, and prevention of custodial violence. Strengthening legal frameworks and
institutional mechanisms is imperative to uphold human rights and reinforce the rule of law in
India.
Keywords: Custodial Torture, Human Rights Violations, Police Brutality, Indian Legal System,
Constitutional Safeguards, Preventive Mechanisms, United Nations Convention Against Torture,
United Nations Convention Against Torture (UNCAT)
INTRODUCTION
Custodial torture, broadly defined, refers to the infliction of physical or psychological pain,
coercion, or inhumane treatment of individuals in state custody, primarily by law enforcement
authorities. It encompasses a range of abuses, including physical assault, psychological
intimidation, sexual violence, and deprivation of fundamental human rights. Under international
human rights law, torture is unequivocally condemned, with instruments such as UNCAT
explicitly prohibiting its practice. Despite its illegality under various domestic and international
legal frameworks, custodial torture persists as a systemic issue in many jurisdictions, including
India, where police brutality, coercive interrogation techniques, and extrajudicial violence remain
prevalent. The absence of a specific anti-torture law and procedural inefficiencies within the Indian
legal system contribute to an environment where such practices often go unchecked, necessitating
urgent legislative intervention.1
At both global and national levels, custodial torture is recognized as a grave violation of human
rights, undermining democratic values and the rule of law. International organizations such as the
UN Human Rights Council (UNHRC) and Amnesty International have repeatedly flagged
concerns regarding state-sanctioned violence, particularly in developing nations where
institutional safeguards against human rights abuses are weak. In India, reports from the National
Human Rights Commission (NHRC) and various civil society organizations highlight an
alarming trend of custodial deaths and police excesses. The judiciary, through landmark judgments
like D.K. Basu v. State of West Bengal,2 has emphasized the need for procedural safeguards during
detention and interrogation. However, the implementation of these safeguards remains inadequate
due to systemic corruption, lack of political will, and police impunity, making legislative reforms
indispensable for the protection of individual liberties.
The need for legal reforms to prevent custodial torture is paramount, as the existing legal
framework fails to provide sufficient deterrence or accountability mechanisms. The Indian Penal
Code, 1860 (being replaced by Bharatiya Nyaya Sanhita (BNS), 2023) and Code of Criminal
Procedure (CrPC), 1973 (being replaced by Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023)
contain provisions that criminalize acts of violence by public servants, but these laws are often
inadequate due to evidentiary challenges and weak enforcement. Furthermore, India’s failure to
ratify the UNCAT, despite being a signatory, signals a gap in its commitment to global human
rights standards. Strengthening oversight mechanisms, establishing independent investigative
bodies, and enacting a robust anti-torture law with stringent penalties are critical steps toward
eliminating custodial torture. Legislative reforms must also focus on ensuring compliance with
1
United Nations. Committee against Torture., Selected decisions of the Committee against Torture. (United Nations
2008).
2
AIR 1997 SUPREME COURT 610.
constitutional mandates under Article 21 (Right to Life and Personal Liberty) and Article 22
(Protection against Arbitrary Detention), reinforcing the principle that no individual should be
subjected to cruel, inhuman, or degrading treatment under state custody.3
FRAMEWORK OF CUSTODIAL TORTURE
Custodial torture, broadly defined, encompasses any act inflicted by public officials that causes
physical, psychological, or sexual harm to individuals under their control. While physical torture,
such as beatings, electric shocks, and deprivation of basic necessities, is the most overt form,
psychological and sexual torture are equally insidious. Psychological torture includes threats,
prolonged isolation, coercion, and humiliation, often designed to break the detainee’s will without
leaving visible scars. Sexual violence in custody, ranging from molestation to rape, represents one
of the gravest violations of human dignity and is frequently underreported due to societal stigma
and institutional cover-ups. The existence of such practices, despite constitutional and statutory
protections, exposes deep flaws in the legal system and its enforcement, necessitating urgent
reforms to prevent abuse of authority and safeguard fundamental human rights.
The persistence of custodial torture can be attributed to a combination of systemic failures and
socio-political attitudes that enable impunity. A primary cause is the lack of accountability within
law enforcement agencies, where hierarchical structures often protect errant officers through
internal shielding mechanisms. The absence of stringent legal provisions specifically criminalizing
torture, coupled with procedural loopholes in BNSS, 2023 or (CrPC, 1973) & BNS, 2023 (or IPC,
1860), allows custodial violence to persist unchecked. Oversight mechanisms, such as the NHRC
& State Human Rights Commissions (SHRCs), while empowered to investigate complaints, often
lack enforcement powers, leading to ineffective deterrence.4 Additionally, societal attitudes that
justify coercion in policing, often under the pretext of crime control, further embolden law
enforcement officials to act beyond legal limits. Without a cultural shift in how policing is
3
Meduri Aparna, ‘Article 21 of Indian Constitution - Mandate for Life Saving’ [2006] SSRN Electronic Journal
<[Link] accessed 19 February 2025.
4
Nehru and Hitesh Manglani, ‘Human Rights Protection at State Level: A Critique of the Functioning of SHRCs in
India’ (2024) V(I) Shimla Law Review 253, <[Link] accessed 19
February 2025.
perceived and practiced, legislative interventions alone will be insufficient to eradicate custodial
torture.
The impact of custodial torture extends beyond the immediate victim, undermining the very fabric
of a democratic society. At a fundamental level, such practices violate constitutional guarantees
under Articles 20, 21, and 22, eroding the right to life, dignity, and protection against self-
incrimination. The normalization of police brutality fosters a climate of fear, diminishing public
confidence in law enforcement agencies and the judiciary, ultimately weakening the rule of law.
Furthermore, the psychological consequences for survivors, ranging from post-traumatic stress
disorder to social alienation, exacerbate the marginalization of vulnerable communities,
disproportionately affecting individuals from lower socio-economic backgrounds and minority
groups. In the absence of comprehensive rehabilitation mechanisms and stringent punitive
measures against perpetrators, the cycle of custodial torture remains entrenched, calling for urgent
legal and policy reforms to restore faith in the justice system and uphold the principles of human
rights and dignity.5
CONSTITUTIONAL AND LEGAL PROVISIONS IN INDIA: A CRITICAL ANALYSIS
The Indian Constitution provides robust safeguards against custodial torture, primarily through
Articles 21, 20(3), and 22, which together form a foundational legal framework to protect
individuals from arbitrary state action. Article 21 guarantees the right to life and personal liberty,
which has been expansively interpreted by the Supreme Court to include protection from torture,
inhuman treatment, and degrading punishment.6 The jurisprudence surrounding Article 21
establishes that custodial torture is an affront to human dignity and fundamentally violates the rule
of law. Article 20(3) further fortifies protections by ensuring that no person accused of an offense
can be compelled to be a witness against themselves, thereby prohibiting coerced confessions, a
common outcome of custodial violence.7 Article 22 supplements these rights by prescribing
5
Ibid.
6
Vijay Kumar Vohra and others, ‘Custodial Torture: A Two Years Prospective Study’ (2019) 19(2) Medico-Legal
Update 307, <[Link] accessed 19 February 2025.
7
Nikhil Malik, ‘Constitutional Provisions Regarding Custodial Torture in India’ (2024) 5(5) International Journal of
Research Publication and Reviews 7879, <[Link] accessed 19 February
2025.
procedural safeguards, such as informing detainees of the grounds of their arrest and ensuring their
right to legal counsel. However, despite these constitutional guarantees, the enforcement
mechanisms remain weak, and the procedural safeguards are frequently circumvented, leading to
systemic violations. The lack of judicial oversight in the initial stages of detention and the limited
accessibility of legal aid exacerbate the risk of custodial torture, highlighting the gap between
constitutional ideals and on-ground realities.
Beyond constitutional protections, statutory provisions under IPC, 1860 & newly enacted BNS,
2023 attempt to address custodial violence through penal sanctions against public servants who
inflict harm on detainees. Sections 330 and 331 of the IPC criminalize the voluntary causing of
hurt or grievous hurt to extract confessions, a provision retained in the BNS with stricter penalties.
CrPC, 1973 & newly enacted BNSS, 2023, introduce procedural safeguards, including the
requirement for medical examination of arrested persons and production before a magistrate within
24 hours.8 However, these provisions have often been undermined due to police impunity, lack of
independent investigations, and procedural loopholes. The Indian Evidence Act further governs
the admissibility of confessions, stating that any confession obtained through coercion is
inadmissible. However, in the absence of effective safeguards ensuring compliance, confessions
obtained through torture continue to be used in trials, pointing to the judiciary’s inconsistent
approach in enforcing statutory protections. While these legislative frameworks are intended to
deter custodial torture, their implementation remains fraught with institutional resistance, lack of
transparency, and a culture of protecting law enforcement officials from accountability.9
Judicial interventions have played a crucial role in addressing custodial torture, particularly
through landmark rulings that have sought to establish procedural norms and state liability for
human rights violations. The Supreme Court’s decision in D.K. Basu v. State of West Bengal10 laid
down comprehensive guidelines for arrest and detention, including mandatory medical
examination, recording of arrest details, and legal representation for the accused. However, the
failure to implement these guidelines effectively has rendered them largely symbolic. Similarly,
in Nilabati Behera v. State of Orissa,11 the Court recognized the state’s liability in cases of
8
Kanishka Rao, ‘Punishment in Indian Penal Code’ (2023) 12(12) International Journal of Science and Research
(IJSR) 136, <[Link] accessed 19 February 2025.
9
Supra note 5.
10
AIR 1997 SUPREME COURT 610.
11
1993 (2) SCC 746.
custodial violence and emphasized the right to compensation for victims. Despite these judicial
pronouncements, the conviction rates for custodial violence remain abysmally low due to lack of
evidence, procedural delays, and reluctance of law enforcement agencies to prosecute their own
personnel. Recent Supreme Court and High Court rulings have reiterated the necessity of stricter
safeguards, but the absence of a dedicated anti-torture law continues to impede meaningful reform.
The judicial system’s failure to enforce strict punitive measures against perpetrators perpetuates a
culture of impunity, necessitating urgent legislative intervention to translate constitutional and
statutory protections into effective safeguards against custodial torture.12
GAPS AND CHALLENGES IN THE EXISTING LEGAL FRAMEWORK
The absence of a dedicated anti-torture legislation in India constitutes a profound lacuna in the
legal framework governing custodial violence, perpetuating a state of legal ambiguity that shields
perpetrators from accountability. While IPC, 1860, criminalizes grievous hurt under Section 320
and wrongful confinement under Sections 339 to 348, these provisions fail to categorize torture as
a distinct and aggravated offense when committed by public officials against individuals in
custody. The lack of express statutory recognition of custodial torture as a severe transgression of
human rights fundamentally weakens the prosecutorial mechanism, allowing law enforcement
agencies to function with near-total impunity.13 Despite repeated judicial pronouncements by the
Supreme Court emphasizing the urgent necessity of a robust legislative framework to curb
custodial violence, successive governments have failed to enact comprehensive anti-torture laws
that align with international human rights obligations. This legislative vacuum is further
exacerbated by India’s continued failure to ratify UNCAT, despite being a signatory since 1997,
thereby placing the country in a position of non-compliance with global human rights norms.
Although the Prevention of Torture Act, 2017, aimed at defining and criminalizing acts of torture
by public officials, was introduced, it ultimately failed to materialize into enforceable law, leaving
India bereft of a specific statutory framework to address this grave violation.14 The absence of a
standalone law not only weakens the institutional mechanisms available for redress but also
12
Supra note 7.
13
AJ Patowary, ‘Autopsy in Cases of Custodial Torture: Indian Perspective’ (2017) 39(2) Journal of Indian Academy
of Forensic Medicine 190, <[Link] accessed 19 February 2025.
14
Ibid.
emboldens state actors to commit acts of custodial violence with little fear of legal repercussions,
further entrenching a culture of impunity within the law enforcement apparatus.15
The systemic prevalence of custodial torture in India is inextricably linked to the structural
deficiencies within law enforcement agencies, where institutionalized practices, coupled with a
lack of stringent oversight, have fostered an environment conducive to human rights violations.
Police brutality, often rationalized under the pretext of maintaining public order, extracting
confessions, or expediting criminal investigations, continues to be a deeply entrenched practice,
exacerbated by the absence of an independent and credible mechanism to investigate allegations
of custodial abuse. While NHRC & SHRCs are vested with the authority to investigate complaints
of human rights violations, their recommendations remain largely advisory in nature, devoid of
binding enforceability, thereby rendering them ineffective in ensuring accountability.
Furthermore, internal police disciplinary mechanisms suffer from an inherent conflict of interest,
as officers implicated in acts of torture are often shielded by institutional hierarchies, ensuring that
allegations of custodial violence rarely translate into meaningful legal consequences. The
reluctance of law enforcement agencies to cooperate with independent inquiries further
compounds the problem, as does the absence of specialized investigative bodies dedicated to
handling cases of custodial torture and deaths. The judiciary, while proactive in landmark cases,
has struggled to establish a consistent framework for accountability due to procedural hurdles,
including evidentiary challenges, witness intimidation, and bureaucratic inertia. The continued
reliance on custodial statements extracted through coercion, in contravention of constitutional
safeguards under Articles 20(3) and 21, further reinforces the systemic deficiencies in holding
perpetrators accountable. Without comprehensive structural reforms that ensure independent
oversight, rigorous investigation, and stringent prosecution of custodial violence, law enforcement
agencies will continue to operate with unchecked authority, perpetuating a legal landscape where
custodial torture remains an endemic and unpunished reality.16
The lack of an effective judicial and procedural framework to address custodial torture
significantly impedes access to justice, further marginalizing victims who seek legal redress. The
adjudication of cases involving custodial violence is fraught with procedural delays, prolonged
15
‘Anti-Torture Laws in India’ (ProBono India) <[Link] accessed 19
February 2025.
16
Ibid.
trials, and alarmingly low conviction rates, which collectively act as deterrents for victims and
their families from pursuing legal action. The evidentiary burden in such cases is
disproportionately high, as prosecution often relies on testimonies from fellow law enforcement
officials rather than independent medical and forensic evidence, thereby skewing the judicial
process in favor of the accused. The absence of a mandated protocol for independent medical
examination of detainees further complicates the evidentiary process, allowing instances of torture
to be concealed or misrepresented through falsified medical reports. Moreover, the lack of a
structured compensation and rehabilitation framework leaves victims of custodial torture without
adequate remedies for the physical and psychological trauma endured in custody. While courts
have occasionally awarded compensation in cases of flagrant human rights violations, such awards
remain discretionary, lacking the force of a comprehensive legislative policy that ensures
systematic rehabilitation for victims. The failure to establish a structured framework for reparation
not only denies justice to victims but also perpetuates a culture where state actors continue to evade
accountability for grave human rights abuses. A victim-centric approach that integrates immediate
medical assistance, legal aid, psychological rehabilitation, and institutionalized compensation
mechanisms is imperative to mitigate the long-term consequences of custodial torture. However,
in the absence of a clear legislative mandate addressing these concerns, victims are left without
recourse, reinforcing the deeply entrenched power asymmetry between the state and individuals in
custody. Without meaningful legislative intervention, procedural reforms, and stringent
enforcement mechanisms, custodial torture will remain an unchecked manifestation of state
excesses, undermining the fundamental principles of justice, human dignity, and the rule of law.17
CONCLUSION & THE WAY FORWARD
The discourse on custodial torture within the Indian legal system underscores a glaring deficiency
in legislative safeguards and institutional accountability. A critical analysis of existing frameworks
reveals that, despite constitutional guarantees under Articles 20, 21, and 22, custodial violence
persists due to systemic weaknesses, procedural loopholes, and entrenched institutional impunity.
The absence of a dedicated anti-torture law, coupled with India’s failure to ratify the UNCAT,
17
Gautam Biswas, ‘Torture and Custodial Deaths’, Review of Forensic Medicine and Toxicology (Jaypee Brothers
Medical Publishers (P) Ltd. 2010) <[Link] accessed 19 February 2025.
highlights a significant lacuna in domestic jurisprudence. Judicial interventions, particularly in
landmark cases have sought to impose procedural safeguards and provide compensatory remedies,
yet these measures remain inadequate in ensuring effective deterrence. Consequently, there is an
imperative need for a robust legislative framework criminalizing custodial torture, aligning
domestic laws with international human rights standards, and ensuring stricter enforcement of
accountability mechanisms.
A legal regime aimed at eradicating custodial torture must prioritize accountability and oversight
mechanisms, ensuring that law enforcement agencies do not operate with unchecked discretion.
The establishment of independent investigative bodies to examine allegations of custodial
violence, alongside a mandatory reporting and monitoring framework, is critical to breaking the
cycle of impunity. The role of the judiciary is particularly crucial in safeguarding fundamental
rights, not only by adjudicating cases of custodial torture but also by actively enforcing guidelines
to prevent abuse. Courts must adopt a victim-centric approach, ensuring that the burden of proof
does not unfairly disadvantage complainants while holding state actors to a higher standard of
accountability. Moreover, the strengthening of institutions such as NHRC and SHRCs is necessary
to ensure their efficacy in investigating custodial torture cases without bureaucratic or political
interference.
The urgency of legislative and policy-level reforms cannot be overstated. Enacting a
comprehensive anti-torture law, in line with the recommendations of the Law Commission and
international conventions, would serve as a deterrent while providing victims with legal recourse.
The fast-tracking of custodial violence cases, coupled with stringent punitive measures against
perpetrators, must be institutionalized to ensure swift justice. Furthermore, law enforcement
training programs must integrate human rights education, reinforcing ethical policing practices and
procedural integrity. Alongside these structural reforms, civil society must play a proactive role in
advocating for victims, raising public awareness, and exerting pressure on legislative bodies to
enact progressive reforms. The media, as a watchdog institution, also bears the responsibility of
exposing instances of custodial violence and demanding systemic change.
Ultimately, combating custodial torture necessitates a multidimensional approach that extends
beyond legal and institutional reforms to encompass broader societal transformation. A paradigm
shift in public attitudes toward law enforcement, reinforced by transparency, accountability, and
community engagement, is indispensable for sustaining long-term change. Future research must
focus on empirical studies assessing the prevalence of custodial torture, identifying patterns of
abuse, and evaluating the effectiveness of judicial and policy interventions. The establishment of
a continuous monitoring mechanism, ensuring the implementation of judicial directives and
legislative safeguards, is imperative for a rights-based approach to law enforcement. In the absence
of decisive reforms, the persistence of custodial violence will continue to erode the credibility of
India’s justice system and undermine the constitutional commitment to human dignity and the rule
of law.