CUSTODIAL DEATHS IN INDIA: LEGAL FRAMEWORK, ACCOUNTABILITY, AND REFORMS

Abstract

Custodial deaths in India represent the most egregious form of state-sponsored violence and a categorical breach of constitutional faith. These incidents, often masked as suicides or natural deaths, fundamentally negate the right to life and personal liberty guaranteed by Article 21. This article undertakes a comprehensive analysis of the legal and institutional landscape, demonstrating how the current reliance on fragmented penal provisions (IPC) and procedural safeguards (D.K. Basu guidelines) is structurally inadequate. It delves into the specific challenges of accountability, focusing on the obstructionist role of Section 218 of BNSS and the pervasive institutional collusion in investigation, as recently highlighted by the Supreme Court in cases involving police delay tactics. Finally, the paper articulates a clear roadmap for reform, emphasizing the immediate necessity of ratifying the UN Convention Against Torture (UNCAT), enacting a dedicated anti-torture law with a reverse burden of proof, and enforcing non-negotiable standards of transparency and independent investigation.

Keywords

Right to Dignity, Constitutional Governance, Rule of Law, Public Law Remedy (Compensation), Sovereign Immunity, Due Process of Law, Custodial Torture, Custodial Death (Death in Custody), Impunity, Institutional Collusion, Investigative Bias, Magisterial Inquiry, Accountability Mechanisms

Introduction: The Constitutional Breach and the Crisis of State Custody

The authority of the State to arrest and detain is concomitant with an inherent and non-derogable duty to protect the life and dignity of the detainee. When a person dies in the custody of the state—be it police lock-up or judicial prison—it signals a catastrophic failure of the justice system. The Supreme Court of India, in its jurisprudence, has long recognized that the rights of an individual do not vanish upon entering state custody; rather, they demand enhanced constitutional vigilance. Custodial deaths, which are invariably the result of torture, third-degree methods, or criminal negligence, are thus viewed as a direct attack on the soul of the Constitution. This article argues that the legal and administrative architecture currently in place not only fails to prevent these atrocities but often actively facilitates the impunity of the perpetrators, demanding a radical shift in approach.

The Legal and Normative Foundation Against Torture

Article 21 and the Evolved Doctrine of Dignity

The bedrock of protection against state violence is Article 21 of the Constitution. The phrase “procedure established by law” has been judicially interpreted to mean a procedure that is “just, fair, and reasonable,” effectively importing the American concept of ‘due process of law’ into the Indian jurisprudence.[1] The Supreme Court has explicitly expanded the ambit of Article 21 to cover the right against torture. In Prakash Kadam v. Ramprasad Vishwanath Gupta, the court went so far as to suggest that a police officer committing a custodial death should be treated as a “murderer” deserving the death penalty, underscoring the severity of the constitutional breach.[2] Furthermore, the evolution of the concept of ‘public law remedy’[3] has been crucial, establishing the State’s constitutional liability to pay compensation for the violation of fundamental rights, separate from any civil or criminal action against the offending official.

The International Disconnect: The UNCAT Dilemma

India’s global standing is continually undermined by its failure to formally ratify the UN Convention Against Torture (UNCAT), signed in 1997. The convention mandates that member states criminalize torture under domestic law, establish universal jurisdiction for the crime, and ensure that acts of torture are non-extraditable offences unless the accused is prosecuted domestically.[4] As noted by the Law Commission of India in its 273rd Report (2017), the absence of ratification prevents India from leveraging international judicial cooperation and leaves the domestic legal framework severely wanting.[5] This persistent legislative lacuna is a political choice that prioritizes institutional immunity over human rights compliance.

Statutory Inadequacies and the Gap between Law and Practice

The primary reason for low conviction rates is the failure of the existing statutes to address custodial violence as a specialized, serious offence.

1. The Fragmentation of the Indian Penal Code (IPC)

The IPC was not drafted to prosecute state agents for systemic violence. The reliance on general provisions proves detrimental:

2. Culpable Homicide (Section 100 BNS): Torture that leads to death is rarely proven as “Murder” (Section 101 BNS) because the prosecution struggles to establish the prerequisite “intention” to cause death. Consequently, cases are often tried under the lesser offense of Section 105, which does not reflect the gravity of the institutional crime.

3. Extortion of Confession (Section 120 of BNS): While these sections directly address hurt caused for the purpose of extortion, they cap the punishment at a maximum of seven or ten years, which is an insufficient deterrent against an act that leads to death.

4. Procedural Measures and their Subversion: The D.K. Basu Guidelines

The D.K. Basu v. State of West Bengal case (1997) remains the cornerstone of procedural safeguards. The 11 mandatory guidelines—including the preparation of an attested arrest memo, the right to inform a friend or relative, and mandatory medical examination—were designed to create a paper trail and external scrutiny.[6]

However, the effectiveness of these guidelines is systematically undermined by:

• The Delay in Recording Arrest: Police often deliberately delay the formal recording of an arrest, carrying out ‘pre-arrest’ or ‘informal’ detention where the torture occurs, thus ensuring the D.K. Basu safeguards do not apply when the victim is still alive and capable of making a complaint.[7]
• Fabrication of Documents: The guidelines rely on the honesty of the police to maintain records (diary, arrest memo). Institutional collusion routinely leads to the backdating, falsification, or destruction of these records.

1. The Judicial Inquiry Mechanism (Section 196 of BNSS)

The mandatory magisterial inquiry for every death in custody is a crucial check. However, the magistrates conducting these inquiries often lack the dedicated investigative resources, forensic support, and independent authority to effectively counteract the narratives prepared by the local police. The quality and depth of these inquiries are highly variable, often becoming a mere formality rather than a substantive investigation.

The Institutional Architecture of Impunity: Challenges to Accountability

The failure of prosecution is rooted in structural legal protections and institutional culture.

The Sanctuary of Section 218 of BNSS

Section 218 of BNSS is the single most criticized legal provision enabling impunity. It makes prior sanction from the government mandatory to prosecute a public servant for acts committed “while acting or purporting to act in the discharge of their official duty.” While progressive High Court rulings (e.g., Kerala High Court) have unequivocally stated that “custodial torture cannot be considered part of the official duties of the police”[8], the Supreme Court’s position remains nuanced, leading to inconsistent application. The process itself is weaponized by the executive to:

1. Delay: Sanction applications can languish for years, effectively burying the case.
2. Deny: The granting authority often exercises political or institutional loyalty, denying sanction even in prima facie cases of violence. The shield ensures that even egregious acts of violence cannot be brought before a criminal court, fostering a culture of zero accountability.

Institutional Collusion and Investigative Bias

The most recent Supreme Court interventions have highlighted the systemic nature of investigative failures. In a 2025 ruling concerning a Madhya Pradesh custodial death case, the Court strongly admonished the CBI and the State government for the “inordinate delay” in arresting accused police officers, clearly noting that the arrests were effected only after repeated judicial threats of contempt.[9] This confirms that institutional ties (the ‘police biradari‘ or brotherhood) lead to active sabotage of the investigation, failure to lodge FIRs, misdirection of inquiries, and protection of the accused officials by their superiors.

The Evidence Problem and Judicial Deterrence

The primary challenge in court is the near-total lack of independent evidence. The victim is deceased, and witnesses are typically co-detainees (who face fear of retribution) or fellow police officers (who face institutional pressure). The judiciary must, therefore, be proactive. The principle of Res Ipsa Loquitur is an equitable judicial tool that must be consistently applied: when an otherwise healthy person suffers grievous injury or dies while exclusively in state custody, the only logical conclusion is state responsibility, requiring the State to furnish a compelling counter-explanation.[10] The Supreme Court’s power to award substantial compensatory damages in its public law jurisdiction serves as the only financial deterrence against institutional apathy.

The Imperative for Comprehensive and Non-Negotiable Reform

The persistence of custodial deaths despite existing laws proves that piecemeal amendments are inadequate. A comprehensive strategy of legislative, procedural, and cultural reform is essential.

Legislative Priority: Ratification and the Prevention of Torture Act

The immediate legislative step is the ratification of UNCAT and the enactment of a dedicated Prevention of Torture Act. This law must:

1. Define and Criminalize Torture: Adopt a broad definition of torture, covering physical, mental, and psychological suffering, aligning with Article 1 of UNCAT, as proposed in the Draft Prevention of Torture Bill, 2017/2023.[11]
2. Establish Reverse Burden of Proof: Mandatorily shift the burden of proof to the public servant to demonstrate that the injury or death was not caused by state action whenever a person suffers harm in custody.[12]
3. Mandatory Sanction Removal: Explicitly supersede Section 218 of BNSS for all offences under the new Anti-Torture Act, thereby removing the executive shield.
4. Prescribe Stringent Punishment: Mandate minimum imprisonment, with life imprisonment for cases resulting in death.

Procedural Transparency and Independent Oversight

1. Independent Investigation: Establish a permanent, independent State Investigation Directorate (SID), legally and functionally separate from the police, to investigate all allegations of custodial death and grievous torture. This removal of internal police investigation is non-negotiable for impartiality.
2. CCTV Mandate Enforcement: Full and effective implementation of the Supreme Court’s mandate on CCTV installation in all police stations (including lock-ups, interrogation rooms, and station common areas) and prisons. Crucially, the footage must be stored securely for a minimum period and its oversight must be entrusted to an independent monitoring committee, not the police themselves.[13]
3. Access to Legal Counsel: The right of an arrested or summoned person to access a lawyer during inquiry or investigation must be strictly enforced, as recently highlighted by a PIL before the Supreme Court.[14] This access is a critical deterrent against coerced confessions and torture.

Institutional and Cultural Transformation

Fundamental police reform, based on the Prakash Singh v. Union of India directives, must be implemented, specifically the separation of investigation and law-and-order duties. This will professionalize the investigative wing. Furthermore, training must move away from the colonial emphasis on coercion to a modern, scientific approach, recognizing that confessions extracted through torture are not only illegal but also notoriously unreliable.

Conclusion

Custodial deaths in India are not isolated criminal acts; they are a profound manifestation of the State’s structural failure to uphold the most fundamental constitutional guarantee—the right to life and dignity under Article 21.[15] As this analysis has demonstrated, the crisis is perpetuated by a complex interplay of legislative inadequacy, procedural subversion, and deep-rooted institutional immunity. The judicial activism witnessed in landmark pronouncements, particularly the D.K. Basu guideline,[16] provided critical procedural safeguards. Yet, the effectiveness of these directives has been perpetually undermined by institutional resistance, manifesting in the systematic use of ‘pre-arrest’ detention and the routine fabrication or destruction of official records. The judiciary itself is often forced to issue sharp admonitions, as seen in recent cases concerning investigative delays and the executive’s alarming reluctance to enforce arrests against accused police personnel, even when compelling evidence of institutional collusion is presented.[17]

The legislative architecture compounds this culture of impunity. The continued reliance on the general and relatively lenient provisions of the BNSS Section 120 fails to categorize custodial torture as a distinct, severe crime commensurate with its constitutional gravity. More critically, the Law Commission of India in its 273rd Report (2017) highlighted that the non-ratification of the UN Convention Against Torture (UNCAT) remains India’s most significant legislative shortcoming.[18] The absence of a specific anti-torture law allows officers to exploit the procedural fortress of Section 218 of BNSS which mandates prior government sanction for prosecution. This requirement grants the executive the de facto veto power to grant immunity, effectively shielding perpetrators for crimes as severe as murder committed “under color of duty”,[19] thereby ensuring that justice is delayed and often denied.

Therefore, moving forward, the reform agenda must be both non-negotiable and comprehensive. The priority must be the immediate ratification of UNCAT and the swift enactment of a dedicated Prevention of Torture Act. This legislation must incorporate the essential doctrine of a mandatory reverse burden of proof, a necessary mechanism that requires the state agent to definitively explain a death or injury occurring while the victim was in their exclusive custody.[20] Furthermore, the procedural mandate for full CCTV and audio recording in all police lock-ups and interrogation areas, as ordered by the Supreme Court in Paramvir Singh Saini,[21] must transition from judicial aspiration to enforced reality, supported by rigorous, independent oversight mechanisms.

In conclusion, the persistence of custodial deaths is a tragic and damning measure of the weakness of India’s rule of law and the chasm between constitutional ideals and institutional reality. It reflects a state mechanism that is often more willing to absorb the financial cost of compensation (public law remedy) than it is to dismantle the structural systems of impunity that enable torture. Until the legislative and executive arms move decisively to abolish the procedural shields protecting perpetrators and adopt an unwavering standard of transparency and independent investigation, the constitutional promise of life and dignity, affirmed by the Supreme Court in cases like D.K. Basu,[22] will continue to be tragically betrayed within the shadows of the police station. The eradication of custodial torture is not merely a legal or procedural adjustment; it is a moral imperative essential for the integrity and legitimacy of the Indian Republic.

References:

1. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (9th Ed. 2018).
2. LAW COMM’N OF INDIA, REP. NO. 273, ON IMPLEMENTATION OF UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT THROUGH LEGISLATION (2017).
3. HUMAN RIGHTS WATCH, CUSTODIAL TORTURE AND IMPUNITY IN INDIA
4. Bharatiya Nyaya Sanhita (BNS), 2023
5. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
6. UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (1987).
7. Arvind Singh, Torture and the Rule of Law in India: A Legal Analysis, X J. LEGAL STUD. Y (2025)

[1] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[2] (2011) 6 SCC 189

[3] Rudul Sah v. State of Bihar, (1983) 4 SCC 141

[4] UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, arts. 4–5 (1987).

[5] LAW COMM’N OF INDIA, REP. No. 273, ON IMPLEMENTATION OF UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT THROUGH LEGISLATION (2017).

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

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

[8] Custodial Torture Cannot Be Considered Police Duty: Kerala High Court, BUS. STANDARD (July 10, 2025).

[9] Supreme Court Slams CBI Over Delayed Arrests in Madhya Pradesh Custodial Death Case, THE HINDU (Oct. 8, 2025).

[10] P. Rama Krishna Rao v. Public Prosecutor, Andhra Pradesh, (2009) 10 SCC 145.

[11] The Prevention of Custodial Torture Bill, 2023, As Introduced in Parliament

[12] See recommendations for burden of proof shift in LCI 273rd Report, supra note 5.

[13] Paramvir Singh Saini v. Baljit Singh, (2020) SCC OnLine SC 974.

[14] Supreme Court Issues Notice on Plea Seeking Access to Lawyer During Inquiry, THE HINDU (Oct. 15, 2025).

[15] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

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

[17] Supreme Court slams CBI over delayed arrests in Madhya Pradesh custodial death case, The Hindu (October 8, 2025)

[18] Law Commission of India, 273rd Report on Implementation of United Nations Convention against Torture… through Legislation (2017)

[19] P. Rama Krishna Rao v. Public Prosecutor, Andhra Pradesh, (2009) 10 SCC 145

[20] See recommendations for burden of proof shift in LCI 273rd Report

[21] Paramvir Singh Saini v. Baljit Singh, (2020) SCC OnLine SC 974.

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