Custodial Deaths in India: Legal Framework, Accountability, and Reforms

Abstract

One of the most severe violations of the constitutional right to life in India is the idea of custodial deaths, or deaths that take place in police or judicial custody since it seems to be a constant challenge to the rule of law. Even with historic judicial statements (especially those of D.K. Basu and Nilabati Behera), legislative protections, as well as human-rights mechanisms, cases of torture, custodial murders and so-called fake-encounters, keep on coming forward. This paper discusses the legal system that regulates the legality of custody and custodial deaths (constitutional rights, criminal legislation, procedures of the CrPC, and bodies of human rights and legal), evaluates pragmatic accountability solutions (criminal prosecution, departmental inquiry, NHRC / SHRC intervention and civil redress), systemic gaps (bias in investigation, poor forensic practice, failure to implement judicial protection and culture of impunity) and presents reforms, including laws, institutions and procedures that will effectively protect against custodial mistreatment and assure an effective form of these reforms are pragmatic, victim-focused: independent methods of investigation, lawful safeguards against arrest/custody, enhancement of forensic procedures, police accountability institutions and the open reporting and compensation systems.

Introduction

Custody places the people in a situation of utter vulnerability in the absolute authority of the State. The increased responsibility of the State towards the life and dignity of detainees is recognized in Indian law (Article 21) and a mass of judicial case law. However, the frequent instances of death behind bars point to an alarming discrepancy between the formal standards and the practices in the field. The avenues to accountability lie in legal measures – criminal laws, procedural protections in the Code of Criminal Procedure, and disruptive court and human-rights action, undermined by the investigatory conflict of interest, ineffective medico-legal proceedings, and failure to implement judicial directives. Custodial deaths should thus be met with systemic reform; legalizing protections of arrest, autonomy of investigatory bodies, advanced standards of forensic procedures, responsible police forces and available redress actions to victims. The problem is being mapped and reforms that can be implemented to make practice constitutional promise are proposed in the paper.

Legal Framework

1. Constitutional Safeguards

• Article 21: The right to life and personal liberty is what ensures that State does not deprive the life arbitrarily. Custodial torture and death are offenses which go against Article 21 and are highly judged.^[1]
• Article 14 and 22: Equality and due process during arrest and imprisonment (including right to consult counsel, and right to appear before magistrate) is applicable to ensuring that there is no arbitrary treatment of the custodial facility.^[2]

2. Penal Law and Procedural Law

• Indian Penal Code, 1860 (IPC)^[3]: Those offences that could be applied in the case of custodial deaths are culpable homicide not amounting to murder/murder (Sections 299-302 IPC), causing grievous hurt or hurt (Sections 319-338), wrongful confinement (Sections 340-348), criminal intimidation and other offences taking place in relation to the creation of disappearance of evidence or false information (Sections 201, 182/193). In cases where custodial actions are constituted by the acts of torture, certain assault or extortion provisions can be resorted to.^[4]
• Code of Criminal Procedure, 1973 (CrPC)^[5]: The procedures are used regarding arrest, remand, production before magistrate and post-mortem as prescribed in CrPC. The role of supervision of custody and the requirements of independent inquiries is significant to accountability of the magistrate.^[6]

3. Court Directives and Guidelines

• Courts of law have issued historic judicial determinations that govern the procedural protections that are accorded to custody. The guidelines of the Supreme Court in the case of D.K. Basu v. State of West Bengal (1997) remains foundational. The safeguards that they prescribe include- must record arrests through a memo; must identify who made the arrest; must inform the family; must allow medical examinations; must produce before magistrate within 24 hours; must have custody records; and compensations. It has been repeated over time in the courts that these procedural safeguards may serve as an indication of custodial torture or guilt when breached.
• Registration of cases and independent investigations involving instances of custodial death, as well as post-mortem examination by qualified physicians, during certain cases by a court, are also ordered by High Courts and the Supreme Court.

4. Rules and Principles of human rights

Guidelines have been issued by the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) and an investigation on custodial deaths along with the recommended compensation and systemic changes taken place and data on reported custodial deaths maintained by them. Their suggestions are however influential, recommendatory, unless their actions are guided by the courts or by the executive.

Mechanisms of Accountability

• Criminal Prosecution: The IPC has criminal proceedings against the police officers on the ground of custodial death. But prosecution involves search and press charges with law enforcers or non-police entities. The criminal law route is both necessary but encounters pragmatic challenges like investigative prejudice, departmental defense, time delays and inability to establish mens rea or direct cause of action.
• Independent Investigation and Supervision: Where foul play is suspected in the custody deaths or the police investigation is deemed to be compromised, courts frequently refer the CBI or state level forensic agencies to inquire into the deaths. Credibility is enhanced by judicial supervision which is not universal.

Reports or inquiries of the NHRC/SHRC might initiate criminal or administrative measures, however, they do not instead of prosecutions.

• Administrative Procedure and Disciplinary Suspension: Departmental inquiries, suspension, removal, or other disciplinary actions against rogue policemen can and are taken by the police departments. These are internal measures that are paralleled to criminal prosecution and quite frequently characterized by leniency and inaccessibility.
• Civil sanctions and remunerations: The family of victims could resort to civil courts to receive compensation under the infringement of fundamental rights or under the remedies of the public law. There have been courts that have granted monetary compensation and others have even ordered systemic reforms. Still, compensations do not amount to criminal responsibility.
• Forensic & Medical Inquiry: The main evidence is post-mortem examinations and forensic reports. Non-compliance with the accountability can be compromised by delay, procedural lapses, or lack of involvement of independent forensic experts.

Problems and Challenges

• Poor Reporting and Data gaps: Custodial torture and deaths are under-recorded through official statistics; a lot are not actually recorded, or re-packaged as illness in custody, or encounters. The information is divided in police, prison, NHRC and courts.
• Bias and Protection of Institution Investigation: Initial investigation is usually carried out by the very police force that is being accused and this presents conflicts of interest. Impartiality is hindered by departmental goodwill, absence of local level autonomous investigative agencies and political interference.
• Imperfections in the Forensic and Medical Realms: Poor or late or insufficiently done post-mortems, pressures on medical officers and lack of independent autopsy processes destroy the evidences.
• Lack of Strong Administration of Judicial Guarantees: D.K. Basu safeguards together with other judicial directions are not applied uniformly. Custody memos are not always kept; access to family and counsel may sometimes be refused; and production before magistrate may be laid off.
• Vacuum of Culture of Impunity and Accountability: Impunity is created by a culture of administration that condones custodial violence as an enforcement mechanism. Little or no criminal conviction is achieved on disciplinary action and prosecution against police is slow and rare.
• Hurdles to prosecution of the victims: The families of the victims usually exist without knowledge of the law and do not have access to institutional operating mechanisms (NHRC, courts) with which they can take remedies. Litigation is off-putting to many due to delay and cost.

Reforms: Legal, Institutional and Procedural Reforms

1. Statutory and Legislative Reform

The criminalization of torture in custody with definitions, procedural protection and compensation of the victim (along the principle of the UN Convention Against Torture) would provide a particular instrument of law against custodial torture and deaths.

Revised CrPC should be provided for a clear mandate of independent investigation (by a police independent agency) in case the death of the custodian takes place or in the event that there is any plausible torture allegation, with time scale and reporting requirements.

2. Self-Governing Investigative Mechanisms

Creation of an independent, statutory agency (state-level Special Investigation Units or an empowered independent agency) to probe any custodial fatalities and allegations involving grievous accusations of police misconduct. To achieve this, these agencies should be manned with well-trained investigators, forensic expert and judicial check and balances.

Making sure that NHRC/SHRC recommendations are enforceable or can be enforced by the judiciary promptly and have time limits on the state response.

3. Enhancing the Medical and Forensic Procedures

Mandatory, time-limited post-mortems by forensic examiners not under the control of the local police, where possible, recording of autopsy video, retention of specimen and chain of custody.

Modernization of forensic science with regional forensic laboratories, uniform procedures, medical officers in custody death cases accreditation and training.

4. Safeguards at the Institution of arrest and in custody

The D.K. Basu safeguards are statutorily enshrined, the signature of arresting officers on a written arrest memo, signature of the detainee, the production before a magistrate within 24 hours, compulsory medical examination at prescribed intervals, signatory to all interrogations and remand proceedings which have to be video recorded.

Assuring separate custody records; digitalize arrest and remand records, and allowing them to be accessed by the public and have audit trails.

5. Police Accountability Reforms

Human rights, non-coercive methods of investigation, and educational medico-legal implications of torture; Training and professionalization of police.

Eliminating deep-rooted traditional police culture by institutional reforms which include powerful, autonomous police complaint authorities (PCAs) that have both investigation and reporting capabilities; open disciplinary mechanisms visible to the public.

Inputting early warning mechanisms and performance-based measures of accountability that will not reward custodial excesses (e.g. over emphasis on rate of conviction or arrestees).

6. Reforms of Judicial and Magistracy

Increase oversight of magistrates over custody: making magistrates review custody memos, interrogate the police on the use of detention and direct indie meds where needed.

Introduction of fast-track courts or special benches dealing with custodial death cases in order to give justice fast.

7. Remedies and Access to Justice

Developing statutory compensation plans including set interim ex-gratia payments to families in custodial deaths in order to prevent long term litigation to obtain relief.

NGO and legal assistance to families in litigation, proactive amicus curiae court appointment in difficult cases of custodial death.

8. Transparency, Data and Monitoring

Requires all cases of custodial death and with regard to serious cases of custody injuries to be reported to a central public portal (aggregated and disaggregated) by mandatory periodic independent audit procedures.

Civil society and NHRC monitoring of detention centers, lock-ups and police stations.

9. Training and Culture Change

Introduction of human rights, ethics and forensic investigation during police training; regular re-certification; and performance reviews compensating respect to rights.

Public education about legislation regarding rights on arrest and custody; facile spread of D.K. Basu protections to courts and police and people alike.

Case Laws

• K. Basu v. State of West Bengal, (1997) 1 SCC 416^[7]

Litigation concerning custodial torture and deaths presented subject to the public interest; requested procedural protection of the arrested individuals. Thereof laid down mandatory arrest and detention guidelines (D.K. Basu guidelines); arrest memo; identification of the arresting officers; informing family; right to counsel; production before the magistrate within 24 hours; medical check at the time of arrest and after that; custody registers; proper use of remand; preservation of viscera and blood samples; scrutiny of the police diary by the magistrate. To the courts, non-compliance is considered as a piece of evidence of torture/ ill-treatment.

• Nilabati Behera v. State of Orissa, (1993) 2 SCC 746^[8]

The son of the petitioner died in custody of the police; the issue is challenging the action of the state, and compensation. The Supreme Court appreciated the ability of public law redress (compensation) against state on the death of one in custody, under the Article 21. Ranked compensation and established that monetary recompense forms the aspect of judicial recompense when essential rights are infringed upon despite a pending criminal investigation. This case is a landmark on state liability and compensation on cases of custodial deaths.

• Joginder Kumar v. State of U.P., (1994) 4 SCC 260^[9]

Appeal to arbitrary detention and prolonged detention in absence of the necessary procedures. Repeated that arrests were required to be made on reasonable satisfaction that an offence had been committed and that it was necessary to make arrest, magistrates were required to as much as possible themselves to be satisfied that detention was justified in the case at first remand hearing, gave importance to the restriction against illegal detention and custodial abuse. Increased authorities on arrests and custody by the magistrate.^[10]

Conclusion

The rule of law is a litmus test of custodial deaths. The constitutional guarantees of India, penal and procedural regime and a powerful body of judicial rules of law leave a solid base to destroy custodial deaths and hold accountable. Nevertheless, failures in the systemic effectiveness (bias in investigations, laxity in the enforcement of checks and balances), deficiencies in the system of forensic work and the culture of impunity still yield tragic results.

Reform can only be achieved in a holistic manner- clarification at the statutory level, criminalization of custodial torture; the establishment of independent investigation mechanisms; the enforcement of appropriate safeguards through statutory means (most of which are already suggested by the judiciary); the professionalization and control of the police; technological foresight and collective monitoring of the data; independent forensic investigations and compensation in favor of the victims; the provision of legal assistance and legal aid. Judicial vigilance should be upheld along with executive desire to modernize and democratize policing.

The end game is not simply punishment following the incident, but prevention; a policing and custodial ecosystem which is respectful of dignity, procedural, and views detention as a vulnerability situation necessitating protection as opposed to a license to abuse it. The above reforms will decrease the number of the custodial deaths, enhance the confidence of the people on the institutions and enter India towards its constitutional commitment that the law protects the life and business of all persons.

[1] Vanshika Jain, Article 21: The Bedrock of Liberty and Justice,                Legal Service India, https://www.legalserviceindia.com/legal/legal/legal/article-13672-article-21-the-bedrock-of-liberty-and-justice.html

[2] The Indian Const. art. 21, 14, 22

[3] Indian Penal Code, 1860

[4] Partha Behera, Intention to ‘teach a lesson’: HC commutes murder sentence of cops in custodial death, Times of India (July 26, 2025, 00:22 AM), https://timesofindia.indiatimes.com/city/raipur/intention-to-teach-a-lesson-hc-commutes-murder-sentence-of-cops-in-custodial-death/articleshow/122912070.cms

[5] Code of Criminal Procedure, 1973 (CrPC)

[6] What happens when investigation is not completed in 24 hrs.?, Law Xperts (Dec. 30, 2020), https://www.lawxpertsmv.com/post/what-happens-when-investigation-is-not-completed-in-24-hrs

[7] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

[8] Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

[9] Joginder Kumar v. State of U.P., (1994) 4 SCC 260

[10] Manmeet Singh, Compensatory Jurisprudence, Legal Service India, https://www.legalservicesindia.com/article/1888/Compensatory-Jurisprudence.html