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

Introduction:

Custodial deaths – the killing of persons held by police or in prison – remain a grave human rights crisis in India. These deaths occur amid custodial torture, neglect of medical care, or in purported “encounters” during police action. According to official data, thousands of Indians die in custody every year: for example, the NHRC reports over 11,650 custodial deaths (police or judicial custody combined) between 2016–2022[1], and 2,739 in 2024 alone[2]. Such killings often go unpunished: one study found that from 2017–22 there were zero convictions in 11,650 reported custody deaths[1]. The Supreme Court has warned that “death in police custody is perhaps one of the worst kinds of crime in a civilized society” and that torture flouts citizens’ constitutional rights and human dignity[3]. This article examines the legal regime on custodial deaths in India, analyzing constitutional safeguards, laws, judicial rulings and enforcement mechanisms, and discusses reform proposals to strengthen accountability and protect detainee rights.

Constitutional Protections:

The Indian Constitution enshrines broad protections against state-inflicted harm in custody. Article 21 guarantees that no one shall be deprived of life or personal liberty except by “procedure established by law.” The Supreme Court has held that custodial torture and deaths are direct violations of Article 21[4]. In Bhim Singh v. J&K, the Court emphasized that Article 21 includes the “right to live with human dignity” and therefore bars torture or assault by state functionaries[5]. Similarly, Article 20(3) ensures an accused cannot be forced to be a witness against himself, invalidating confessions or evidence obtained through torture or coercion[6]. Article 22 provides arrest safeguards: it requires that any person arrested be informed of the grounds of arrest and be produced before a magistrate within 24 hours[7]. It also guarantees the right to consult a lawyer of one’s choice[7]. These constitutional rights apply even in detention: as the Court held in Sunil Batra v. Delhi Administration, fundamental rights “do not flee the person as he enters prison,” though they may be “necessary shrinkage[s]” attendant on lawful incarceration.

In sum, the Constitution and Supreme Court jurisprudence make clear that state power in custody is limited by law. Any custodial death (unless legally justified) is prima facie an Article 21 violation. The Court has admonished that when police “become lawbreakers” and treat citizens “above the law,” it breeds a collapse of trust and order[8]. Thus, constitutional law demands strict procedures to prevent custodial abuse, and mandates remedies when rights are violated.

Statutory Framework:

Indian law prescribes certain safeguards and criminal penalties relating to custody:

• Criminal Procedure Code (CrPC): Several provisions embody procedural safeguards. Section 50 (as amended) requires police to inform an arrestee of grounds of arrest and permit the arrestee to inform a relative or friend. Section 50A (CrPC) obliges police to immediately notify a nominated person of any arrest[9]. Section 54 mandates a medical examination of any detainee (at the detainee’s request) by a qualified doctor within 48 hours and requires that a copy of the medical report be furnished to the accused[10]. These codified rights reflect D.K. Basu guidelines and Article 22 mandates. Section 167 requires that an arrested person be produced before a magistrate within 24 hours (barring Sundays)[11]. Section 176 of CrPC provides for a magisterial inquest into any death in police custody; the 2005 amendment (Section 176(1A)) further requires a judicial magistrate to investigate any death, disappearance or rape allegation in custody, ensuring independent inquiry. These and other CrPC sections (46, 49, etc.) seek to prevent abuse and ensure transparency in detention.
• Indian Penal Code (IPC): Offences by police in custody are punishable. For example, IPC Section 330 criminalizes voluntarily causing hurt to extort a confession or information[12], and Section 331 punishes causing grievous hurt to extort confession[13]. These provisions target torture for confessions. A new penal code (Bharatiya Nyaya Sanhita 2023) similarly prohibits police torture: it replicates Section 330/331 under a different numbering (e.g. Section 120 BNS punishes voluntarily causing hurt to extort confession)[14]. Section 302 (IPC) covers murder, and Section 304 (IPC) covers culpable homicide not amounting to murder – these can apply if a detainee dies from police action. Other IPC sections (e.g. 348 wrongful confinement, 166 public servant disobedience, 167 public servant cheating) may also be relevant. However, India has no dedicated “anti-torture” statute. As a recent analysis notes, “despite constitutional prohibitions on torture, there is no specific national legislation criminalizing torture”, and India has not ratified the UN Convention Against Torture[15]. In practice, punishing custodial crimes relies on these general offences, which has proven inadequate for deterrence.
• Protection of Human Rights Act (PHRA 1993): This defines “human rights” broadly to include rights in Articles 21–22 and related laws. It established the NHRC and State Human Rights Commissions. Under Sections 17–18 of PHRA, NHRC can inquire suo motu or on complaints into any custodial rights violation, summon reports, hold hearings, and recommend relief including compensation. While the Act itself is about procedures, it embeds custodial rights violations firmly in the human rights framework.

In summary, the statutory landscape offers some criminal penalties and procedural safeguards. However, the absence of a standalone torture law and bureaucratic hurdles (e.g. sanction requirements for prosecuting police under Section 197 CrPC) limit accountability.

Judicial Response and Guidelines:

The judiciary has played a crucial role in shaping custodial norms. In D.K. Basu v. West Bengal (1997), the Supreme Court laid down detailed guidelines (later integrated into CrPC) to prevent custodial abuse. Key points included: ensuring arresting officers wear IDs; preparing an arrest memo, attested by a witness; promptly informing the arrestee’s relatives or a friend of the arrest; recording arrests in a station diary; conducting a medical examination within 48 hours; and permitting lawyer access (see D.K. Basu guidelines). These measures aim to ensure transparency. The Court directed all States to disseminate these guidelines and warned that non-compliance by police would invite contempt[16]. (In 2018, SC also mandated continuous CCTV recording of all police interrogations and lock-up areas to curb torture, giving effect to the D.K. Basu spirit.)

The Supreme Court has repeatedly reaffirmed that custodial violence violates Article 21 and the rule of law. In Mehmood Nayyar Azam v. Chhattisgarh (2012), the Court held that torture or cruel treatment in any phase of detention falls under Articles 20 and 21[17]. It observed: “The right to life is perhaps the most significant, since it also includes the right to live with human dignity. Therefore, it includes within itself a guarantee against torture and assault by the State or its functionaries.”[5]. The Court lamented that custodial torture erodes confidence in justice – “the common man may tend to gradually lose faith” if courts do not tackle such cases robustly[8]. Likewise, D.K. Basu itself declared that “custodial violence including torture and death in lockups strikes a blow at the rule of law”[18]. Judges have emphasized that when police kill a person, “he commits an offence of culpable homicide…unless such killing is justified under law”[19].

For remedies, courts have used their writ and constitutional powers. Victims’ families routinely file habeas corpus petitions under Article 32/226 when a detainee’s fate is unknown or an inquest is delayed. The Supreme Court has also awarded compensation under its inherent powers (Article 142) or under tort law principles. In Shakila Abdul Gafar Khan v. Dhoble (2003), the Court, exercising Article 142, directed the State to pay ₹100,000 to the mother and children of a man who died in custody[20]. Crucially, it noted that this “shall be as a palliative measure” and does not preclude civil suit for full damage. Similarly, in Nilabati Behera v. Orissa (1993) and Lulla v. Maharashtra (2007), the Court affirmed the State’s vicarious liability and awarded compensation. These cases establish that custodial deaths attract liability: compensation is not merely charity but a right flowing from the state’s obligation under Article 21.

Key Supreme Court and NHRC Guidelines (examples):
– D.K. Basu (1997): 11 guidelines on arrest/detention procedure (ID tags, arrest memo, informing family, diary entry, medical exam, lawyer access, etc.). Non-compliance invites contempt of court.
– CrPC Amendments: Sections 50-A (informing a friend/relative of arrest) and 54 (medical exam, copy of report) were inserted following Basu.
– NHRC Guidelines (1993–2003): The Commission directed that all custodial deaths (police or judicial) be reported to NHRC within 24 hours[21]. It mandated that every death in police action be subjected to a magisterial inquiry with the deceased’s kin present[22]. NHRC also instructed States to maintain quarterly data on encountering deaths and custodial cases.

Together, these judicial and quasi-judicial directives underscore a rights-based approach: every death in custody triggers immediate oversight and possible liability.

Accountability Mechanisms and Oversight:

Despite the legal framework, enforcement remains weak, and victims rarely see justice. Several accountability mechanisms exist, though with limitations:

• Criminal Prosecution: Police officers who commit custodial crimes can be prosecuted under relevant IPC/CrPC provisions. However, Section 197 CrPC requires government sanction before prosecuting an officer for acts done in the discharge of duty. This “sanction requirement” is often cited as a shield against accountability in custodial abuse cases. (The Law Commission has recommended removing this immunity for custodial offences. When cases do proceed, the accused officers often use technical defenses and exploit evidentiary gaps. As courts have noted, “rarely…direct ocular evidence” exists against colluding police, making convictions difficult[23].
• Judicial Inquiry: By law, a magistrate must inquire into any death in custody (CrPC 176), and NHRC guidelines compel magisterial inquest in all police encounter deaths[22]. These inquiries are intended to be independent factfinders. In practice, however, inquiry reports are often delayed or ignored. The NHRC has highlighted that between 2017–22 only 345 magistrates’ inquiries were ordered nationwide (out of thousands of deaths) and yielded only 79 charges[24].
• Human Rights Commissions: The NHRC (and State Commissions) can investigate custodial rights violations of suo motu or petition, compel reports from authorities, and recommend relief. Under PHRA Section 18, NHRC can intervene in any court proceeding related to a human rights case. The Commission has repeatedly issued guidelines (see above) and periodically intervenes (e.g. by filing caveats) in custodial death cases. It also publishes an annual report with statistics. However, NHRC itself has no power to punish; it can only be recommended. Its recommendations (e.g. for prosecution, discipline, or compensation) are not binding, and states often ignore them. Critics note that the NHRC has lacked teeth and independence to enforce compliance[25].
• Police Oversight Bodies: The CrPC was amended in 2010 to mandate Police Complaints Authorities (PCAs) at state and district levels for “serious” police misconduct (including death in custody). In theory, these PCAs could investigate custodial torture or killing. However, few states have set up PCAs, and those that exist are often dysfunctional or influence‑ridden. Without robust civilian oversight, the police largely investigate their own.
• Civil Lawsuits: Victims’ families can sue the State (under Article 300A or tort law) for compensation for torture or custodial death. However, courts have sometimes held that tort suits are barred if criminal proceedings are pending. The enforcement of compensation judgments by governments is also sporadic. In many cases, families receive only the palliative sums awarded by courts (e.g. via Shakila) and not full restitution.
• Right to Information & Media: The Right to Information Act has been used to expose custodial abuses (for example, by obtaining death registers, encounter records, etc.). Media investigations and civil society reports also bring cases to light. These external pressures have, at times, forced action (such as FIRs or suspensions) in high-profile cases like the recent Tamil Nadu custodial death. Nonetheless, without internal reform, accountability remains reactive and episodic.

In short, while India has multiple formal accountability channels, none has consistently prevented custodial torture or ensured justice for victims. As one observer concludes, “the legal machinery…is built to shield the perpetrators, not to deliver justice.”[24].

Victims’ Rights and Remedies:

A rights-based perspective emphasizes the victims’ entitlements. Families of custodial death victims have certain legal remedies:

• Compensation and Rehabilitation: Courts have recognized a right to compensation for violation of Article 21. Under Article 142, the Supreme Court and High Courts can direct the State to pay monetary relief to victims’ kin (as in Shakila[20]). Legally, this compensation is deemed a “palliative,” and victims may additionally pursue civil damages. In Hussainara Khatoon v. Bihar (1979), the SC acknowledged that arbitrary detention (akin to custody abuse) entitles a person to compensation. More recently, courts have ordered urgent interim relief (e.g. in human rights writs) and recommended state welfare support (e.g. jobs or pensions) for affected families. However, there is no standardized scheme or statutory minimum; amounts vary widely. The Law Commission has suggested that every state enact a fixed compensation schedule for custody deaths, indexed to severity.
• Right to Information and Reasoning: Victims (or their lawyers) have the right to examine custodial records, medical reports, postmortem findings, and investigation files, under the CrPC and RTI Act. The Supreme Court has insisted that custodial questions be recorded, and that autopsy/videography evidence be preserved. Transparently sharing information with victims’ families is increasingly mandated (NHRC guidelines even call for videography of autopsies[26]). Ensuring records are contemporaneous (per K. Basu and CrPC 173) is crucial to reveal foul play.
• Access to Legal Aid and Writ Remedies: Every detainee has the right to counsel and a fair trial, even undertrial prisoners. NHRC and Supreme Court have stressed that arrests must be immediately communicated to legal aid organizations. Victims’ families can file writ petitions (habeas corpus, mandamus, etc.) in High Courts or the Supreme Court to demand truth and accountability. Public interest litigation by NGOs has also sought enforcement of safeguards (for instance, petitions for CCTV in lockups, or for implementing Basu guidelines).
• Protection from Reprisals: Victims who complain about torture or file cases must be protected. NHRC guidelines urge that no victims or witness suffer harassment, and courts have directed witness protection measures in extreme cases. Yet in practice, whistleblowers often face intimidation, underscoring the need for stronger safeguards.

In summary, the law confers certain remedies on victims – the right to life with dignity, to a fair investigation, and to compensation. But the exercise of these rights is hampered by bureaucratic inertia and lack of enforcement. Strengthening victims’ rights means not just legal declarations, but ensuring effective implementation (e.g. prompt FIR registration, automatic magisterial inquiries, etc.).

Reform Initiatives and Recommendations:

Given the persistent failures, numerous experts and bodies have proposed reforms:

• Legislative Reforms: The Law Commission (in its Reports No. 273, 277, etc.) has urged a comprehensive Torture Prevention Act. Draft bills (such as the failed Prevention of Torture Bill 2010, and proposals in 2017 and 2024) aim to expressly criminalize torture and CIDTP (Cruel, Inhuman, Degrading Treatment or Punishment) by all public servants, remove sanction requirements, and establish procedural safeguards (e.g. presumptive evidence rules like Section 114B of the Evidence Act[27]). The Law Commission’s draft Section 114B would create a rebuttable presumption that injuries to a person in custody were inflicted by the police, shifting the burden to the State[27]. (Currently, evidence of injuries often fails for want of proof that police did it, given lack of witnesses.) Enacting such provisions would align India with its UNCAT commitments and global standards.
• Criminal Code Overhaul: India’s new penal and procedure codes (Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Adhiniyam 2023, etc.) have the potential to reshape police powers. Early analysis suggests the new penal code retains offences for extorting confessions by hurting detainees (see Section 120 BNS)[14]. It also expressly prohibits causing hurt to public servants performing duty (Section 121 BNS). If properly implemented, these codes could clarify and even stiffen custodial crime penalties. The reform process should ensure that explicit anti-torture provisions and custodial safeguards (e.g. mandatory CCTV) are enshrined.
• Institutional Reforms: Experts call for robust oversight bodies. The National Police Commission (1979) recommended independent Police Complaints Authorities; these must be implemented in letter and spirit. Strengthening the NHRC (by giving it inquiry and prosecution powers) and ensuring state human rights bodies are empowered could improve redress. Judicial oversight at early stages – for instance, regular court reviews of remand orders – can deter abuse. Ensuring that every district magistrate is trained to immediately handle custody death inquiries, rather than relying solely on police reports, is another reform measure.
• Training and Culture Change: In the long run, custodial abuse must be stamped out by altering police culture. This includes extensive human-rights training, psychological support for officers, and performance metrics that do not reward body counts or quick confessions. Also, adequate staffing and less overcrowding of jails would reduce the stress factors that can lead to violence. Empirical studies show that targeted training and accountability (including financial penalties for errant officers) can deter misconduct. Fiscal allocations should prioritize “soft” policing measures: counsellors, legal aid offices at stations, and regular welfare checks.
• Technological Safeguards: Courts have already mandated CCTV coverage in all lockups, but many police stations remain unmonitored. Equipping every detention room with functioning cameras (and requiring simultaneous audio recording of interrogation) would create evidence that can deter torture. Moreover, integrating an electronic custody register (updated in real time and open to magistrates and courts) is critical.
• Victim-Centric Reforms: States should enact statutory compensation schemes for custodial deaths, to be paid promptly and automatically, rather than waiting for court orders. Designating legal aid and trauma counselling for victims’ families can mitigate the harm. Publishing disaggregated data on custodial deaths (by age, gender, caste, etc.) would also promote transparency and highlight systemic biases (e.g. the disproportionate impact on marginalized communities noted in reports[28][29]).
• International Norms and Oversight: India should ratify the UN Convention Against Torture and its Optional Protocol. Domestic ratification would signal political commitment and oblige India to introduce torture-specific laws. Inviting UN Special Rapporteurs and international observers could increase accountability. Civil society and media must continue to scrutinize custodial cases, pushing governments to comply with court orders and guidelines.

Conclusion:

Custodial deaths in India are not isolated aberrations but a systemic pathology. They “strike a blow at the rule of law”[18] and poison the justice system’s credibility. Over decades, courts have declared custodial torture unconstitutional and laid down measures to prevent it, but enforcement remains poor. Any meaningful solution must be reform-oriented and rights-based: criminal law must be strengthened (including criminalizing torture), procedural safeguards must be strictly enforced, and independent oversight mechanisms must be empowered. As one commentator urges, every custodial death should automatically trigger a magisterial inquiry, an FIR against responsible officers, and immediate relief to the victim’s family[24]. Only such measures — coupled with political will to dismantle institutional impunity — can restore the constitutional promise that no person “shall be deprived of life…except by due process of law.”

Sources: Authoritative legal and governmental reports (Law Commission reports[30][20][3][15]; NHRC data and guidelines[21][22]); Supreme Court rulings and case law compilations; and recent press analyses[1][2].

[1] [24] [29] Custodial deaths: The police line we need to cross

https://www.newindianexpress.com/opinions/2025/Jul/23/custodial-deaths-the-police-line-we-need-to-cross

[2] [15] [25] [28] omct.org

https://www.omct.org/site-resources/files/factsheets/Factsheet-India.2025.pdf

[3] [5] [8] [17] [18] [20] [23] [27] [30] cdnbbsr.s3waas.gov.in

https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081620.pdf

[4] [6] [7] [11] Constitutional Provisions | Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation | Law Commission of India Reports | Law Library | AdvocateKhoj

https://www.advocatekhoj.com/library/lawreports/implementation/32.php?Title=Implementation%20of%20United%20Nations%20Convention%20against%20Torture%20and%20other%20Cruel,%20Inhuman%20and%20Degrading%20Treatment%20or%20Punishment%20through%20Legislation&STitle=Constitutional%20Provisions

[9] [10] Microsoft Word – CRPC Amendment, 2005.doc

https://www.mha.gov.in/sites/default/files/2022-09/TheCCP%28Amendment%29Act%2C2005%5B1%5D.pdf

[12] [13] Sections 330 and 331 | Custodial Crimes | Law Commission of India Reports | Law Library | AdvocateKhoj

https://www.advocatekhoj.com/library/lawreports/custodialcrimes/20.php?Title=Custodial%20Crimes&STitle=Sections%20330%20and%20331

[14] mha.gov.in

https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf

[16] DK Basu vs. State of West Bengal (1997) : case analysis – iPleaders

https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/

[19] [21] [22] [26] Microsoft Word – Some useful National Human Rights Commission guidelines https://www.mha.gov.in/sites/default/files/2025-04/NHRCselectedlettersandguidelinesondeathsincustody_09042019_0%5B1%5D_4.pdf