Custodial Deaths In India: Legal Framework, Accountability and Reforms

Abstract

This Article delves into the critical issue of custodial violence in India examining how police brutality undermines the justice system. It explores the systematic failure that allow such violence to occur, including issues of accountability and the need for stringent legal framework, however we have also discussed that how a bill of anti-torture introduced in parliament but never passes or implemented. The discussion extends beyond custodial deaths includes the heinous crime of Custodial Rape also and highlighting the urgent need for comprehensive reforms also identifies some way forward to prevent custodial violence and ensure justice for victims.

Introduction

A man is arrested his family sees him walk into a police station few days later his body is returned often with no answers. This is not a crime committed by unknown criminals, but by those who uphold the law this is custodial death which is one of the most disturbing violations of human right in a democracy. These deaths violate not only the right to life under Article 21 of The Indian Constitution, but also the dignity of a human. The problem of custodial death is not a new concept its roots can be seen back in colonial era when the britishers were used to be brutal on people, intimidation, torture and forced confession were common practices back then. One of the most shocking incidents of custodial death occurred in June 2020 in Tamil Nadu in Jayaraj and Bennix case where son and father both arrested by police and they were allegedly tortured in custody by police and few days later they died, this incident shocked the whole nation and leaves a big question of accountability in these cases, The Madras High Court in this case also took note on brutality and gave remarks to have a strong mechanism against custodial violence. This article aims to critically examine the issue of custodial deaths and accountability with the help of different case laws and examples.

What is custodial death?

Custodial death simply refers to the death of a person while he was in police or judicial custody or any other law enforcement agencies, these deaths often occurred in lockups during interrogation, there is not specific definition of custodial deaths in any Indian statute, however the concept is addressed through Article 21 of The Indian Constitution which talks about right to life that no person shall be deprived of his or her life. According to National Human Rights Commission (NHRC)’s guidelines ^[1]it has made it mandatory for the state to report any custodial death within 24hrs of the incident.

Custodial death can be classified into three types:

1. Death occurred in police custody
2. Death occurred in judicial custody
3. Death occurred in the custody of army or paramilitary forces.

These deaths are very hard to prove guilty police officers because when this kind of incident occurred every single evidence is with the police which never comes out which makes it more difficult to prove that it was malicious act or police or the death caused in natural circumstances.

Types of custody

Custody means detainment of a person by lawful means it can be categorized into different types but for custodial death purposes three broader types of custody involved:

1. Police custody – where accused is detained under the custody of the police for the purposes of interrogation and investigation mainly, the accused usually kept in lockups or police stations. Police can hold the custody for 24hrs after the arrest and within 24hrs they have to produce accused before the Magistrate and for further police custody they have to seek permission from the court, most of the custodial deaths happen during this phase due the accused is being under the control of police.
2. Judicial custody – where accused is sent to jail or prison and he will remain under the custody of the magistrate and the judiciary, rather than being in the custody of police, here the police do not have direct access unless permitted by the court, deaths in judicial custody generally held due negligence, poor prison conditions, tactics of jail or other prisoners or denial of medical care.
3. Paramilitary custody – deaths under paramilitary custody also considered as a custodial death it refers to the detention of a person by Central Armed Forces, custodial deaths usually occurred when a person dies while interrogation by these forces particularly in conflicting zones like Jammu & Kashmir, North India etc. Laws like AFSPA (Armed Forces Special Power Act)^[2] which gives power to armed forces to arrest any person without warrant or use of force and detaining of person on mere suspicion particularly in conflict-prone area like Jammu & Kashmir, Manipur, Nagaland etc, these practices result in negligence, grave abuse, torture or custodial killing. The Human Rights Commission^[3] have also recommended repealing or amending AFSPA, citing it as an abuse on individuals fundamental and human rights. Many times, the police or armed forces arrest someone quietly and then use physical force and kill them with the name of “Fake Encounters”. They made it to look like a self-defence but it is a murder in actual sense still there is no systematic statute addressing this issue. In Thang Rajan Manorama case, lady was picked up by assam rifles under AFSPA she was later found dead with signs of torture and sexual abuse. Similarly, in Pathribal Fake Encounter Case (2000 J & K)^[4] many civilians were killed by the army by falsely stating is as an action of protection under AFSPA.

Changes in custody and judicial remand under BNSS,2023

Under The Old Law, Criminal Procedure Code (CrPC), if police could not complete their investigation within 24 hours, they had to take the arrested person in front of a magistrate, the magistrate can then allow police custody up to 15 days which will be only the first 15 days, but under Bhartiya Nyaya Sanhita,2023 it has been changed section 187 of BNSS says that 15 days of police custody can now be taken in parts at any time during first 40 days if the offence has punishment of less than 10 years and first 60 days if the punishment is 10 years or more, life imprisonment or death earlier if police did not use of it quickly they lost the chance but now they can use it in parts which gives flexibility to police but also raises concern of misuse of this immunity. D. Nagasalia, an advocate of Madras High Court said that “The BNSS allows police to make request for custody beyond 15 days. On the face of it, extending powers of police to request custody up to the initial 60 days (after arrest) is a retrograde step. It is opposed to fundamental right of citizens.”^[5]

Colonial Roots of Police Brutality

Police brutality is not the new concept it was there during the British rule in India, the police were not meant to protect the public but to control the people and stop any resistance. The police Act of 1861 created a force that was strict, loyal to the British, and often used to fear and violence, police often used torture and force to get confession.  Events like Jallianwala bagh massacre ^[6]showed how police and army used force and being brutal on innocent people even after independence this old system won ‘t change this is why police brutality chasing the heights in increasing of custodial death cases.

Custodial sexual assault

Custody by the police or other authorities does not only lead to deaths, but women are also often tortured in cruel ways, which sometime includes sexual abuses which is a serious violation of human rights, custodial rape which is as serious as the custodial death is but still it is unreported until a young tribal girl was raped by two policemen in Maharashtra (Mathura Rape Case) ^[7]. The National Crime Records Bureau’s last census of 2015 states that there are 95 cases recorded in custodial rape out of 34,651 rape cases registered in the country. Uttar Pradesh being the highest number of custodial rape case state^[8], despite having penal provisions against violence and rape cases.

The Prevention of Torture Bill: A Failed Try

The prevention of torture bill was introduced in India to provide a legal framework to prevent custodial torture, the United Nation Convention Against Torture (UNCAT) which was signed by India also but has yet to ratify by domestic legislation, this bill was seen as an essential step to codify penalties for public servants involved in such abuse. This bill introduced in Lok Sabha in April 2010 and passed by Lok Sabha in May 2010 later it was referred in The Rajya Sabha and it failed and ultimately did not become the law.

Why the bill failed?

This bill was criticized due to its very narrow and vague definition of torture which was restricted only to the grievous hurt and danger to life and not included “mental Harassment”. There was no political push to pass this bill in Rajya Sabha. This bill was referred to a committee to modify and make it more comprehensive but no work has been done on it yet and eventually it the bill was lapsed with the dissolution of 15^th Lok Sabha in 2014. The Law Commission of India in its report no 273, 2017^[9]  drafted prevention of torture bill and almost fixed the flaws of earlier bill but it was never introduced in parliament. At international level countries like UK which has their “Criminal Justice Act” which makes torture a criminal offence, similarly USA has “Torture Act,1009”, Sri Lanka has convention against Torture Act” and Pakistan has “Torture and Custodial Death (Prevention) Act,2022 but India being a democratic country lacking in implementing of anti-torture law.

Constitutional and Legal Framework

Although there is no separate legislation for Custodial Torture but few provision from Indian general law address it like Article 21 of Indian Constitution “Right to life and liberty”, in cases of Custodial Death article 21 of Indian Constitution is directly violated, Article 20(3) “Right against self-incrimination which protects a person from being forced to confess.

Section 302, 304, 330, 348 and 376(2)(a) of Indian penal code which is now Bhartiya Nyaya Sanhita under section 103 (Murder), 105(Culpable Homicide not Amounting to Murder), 120 (Voluntarily causing grievous hurt to extort confession), 64 (Rape) address the issue of Custodial violence and custodial rape. in the case of State of M.P v Shyamsundar Trivedi (1995)^[10] The supreme court convicted police officers for custodial violence under IPC Section 302 and 330.

Judicial Framework

In India when someone dies while in police or judicial custody, the courts play important role in serving justice. The judicial framework means the rules and system used by courts to deal with such cases which includes constitutional provisions law made by legislature and decision passed by judges in past cases. The supreme in the case of D.K Basu v. State of West Bengal^[11] said that custodial torture is a violence of Article 21 of Indian Constitution and court gave 11 important rules to be followed during arrest and detention i.e.

1. Police must wear name tags with clear identification while arresting a person
2. A memo of arrest must be prepared and signed by arrested person and a family member
3. The arrested person must inform about his rights to inform someone
4. The police must inform any friends of family member about such arrest as soon as after the after the arrest.
5. Time place and reason for arrest must be recorded
6. The arrested person must be checked by a doctor at the time of arrest
7. Copies of arrest memo and medical reports must send to the magistrate
8. The arrested person must inform about his right to meet an advocate
9. The police must keep all records at police stations
10. Copy of all documents must be given to magistrate
11. If these rules are found broken, the police officer can be punished and victim/family get compensation

In Neelabati bahera v. State of Orissa^[12] court pointed out that prisoners and detenues are not denuded of their fundamental right under article 21 and it is only such restrictions as are permitted by law which can be imposed on the enjoyment of fundamental right of an arrested person

In the case of People’s union for Civil Liberties (PUCL) v. Union Of India (2005) ^[13]court held that every custodial death must be investigated properly and deaths or encounters must not go unchecked.

Accountability

In cases of custodial death mainly the police officers or jail staff who has direct control over the custody of person is accountable for any torture, use of force, medical negligence all which is violation of Article 21 (Right to Life), the state is also liable for failure in duty to protect such persons. Also, the investigative officer must do proper investigation if they try to hide the truth they can also be held liable. In cases like D.K Basu vs State of West Bengal the court also states that when someone dies in the custody of above-mentioned authorities their family must be given compensation, so in custodial death the liability is shared by many each of them must do their duty properly to protect human rights.

Data and trends:

The data released by the National Human Rights Commission (NHRC) for January 2024^[14] provides critical insights on custodial deaths that total of 11 custodial deaths and 171 judicial custodial deaths were registered in total 6 cases were disposed off and 265 case remain pending. The NHRC also recommend monetary relief totalling Rs 50/- lakh for nine custodial-death related cases. A total of 146 cases of death in police custody were reported during 2017-2018^[15], 136 in 2018-2019; 112 in 2019-2020, 100 in 2020-2021, 175 in 2021-2022. In last five years, the highest number were reported in Gujrat for custodial death (80) and Maharashtra (76), Uttar Pradesh (41), Tamil Nadu (40) and Bihar (38).

Way forward and solutions

Custodial deaths is a serious concern and a grave violation of individual’s human rights; a multidimensional and holistic approach can eradicate custodial violence and ensure transparency and accountability such as:

• By Enacting the prevention of torture bill
• By amending certain existing laws
• By implementing various police reforms and accountability mechanism
• Installation of digital devices like CCTV in police stations and lock-ups and interrogation room as mandated by The Supreme Court in Paramvir Singh Saini v. Baljit Singh (2020)
• Conducting mandatory training of police personnel on human rights
• Establishing fast track courts for custodial violence cases
• By ratify various international commitments which were pending.

Conclusion :

Custodial death often seems a serious problem in India which shows how human rights of individual are often violated buy those who serving the Nation. Even though we have laws and courts to stop some violence, the government still not passed the Prevention of Torture Bill, and not even signed UN convention against Torture Bill which shows a lack of action against police brutality. To stop custodial deaths we need strong laws, honest investigations and better training for police for respecting everyone’s life and dignity, protecting people in custody is not just a legal duty it is the right thing to do.

References

^[1] NHRC guidelines on Custodial Deaths, (Letter No. 66/SG/NHRC/93, 14 December 1993

^[2] Armed Forces (special Powers) Act 1958, No. 28 of 1958, India Code

^[3] Human Rights Watch, 2008 “Theese Fellows Must Be Eliminated”. Rentless Violence and Impunity in Manipur

^[4] Press Information Bureau, Closure of Fake Encounter Case at Pathribal, J&K(19 February 2014) accessed 20 June 2025

^[5] R Sivaraman, ‘Concerns Rise over BNSS Provision on Police Custody’ The Hindu (Chennai, 1 July 2024)

^[6] ‘Jallianwala Bagh Massacre’ (Parliament of India Archive)

^[7] Tukaram and ANR V State of Maharashtra (1979) 2 SCC 143 (SC)

^[8] K D GAUR, Rape and the law, CRIMINAL LAW-CASES AND MATERIALS, 8.17( 9 ed).

^[9] Law Commission of India “Implementation of United Nation Convention against torture and other Cruel, Inhuman and Degrading Treatment or Punishment” (Report No. 273), October 2017

^[10] State of Madhya Pradesh V Shyamsunder Trivedi and Ors (1995) 4 SCC 262 (SC)

^[11] DK Basu and Ashok K Johri V State of West Bengal, AIR 1997 SC 610 (SC)

^[12] Nilabati Behara @Lalit Bahera V State of Orissa and Others, AIR 1993 SC 1960

^[13] People’s Union for Civil Liberties V Union of India & Anr (2005) 2 SCC 436 (SC)

^[14] National Human Rights Commission (NHRC), Monthly salient statistics of cases, January 2024

^[15] ‘Custodial Death’, Drishti IAS Daily News Analysis (Drishti IAS, 15 February 2023) Accessed 18 June 2025