Published on: 07th February 2026
Authored By Nivedita Roy
Dr. D.Y. Patil Law College, Pune
Custodial death, the ultimate betrayal of public trust, represents a chilling failure of the Indian state’s constitutional obligation to protect the life and liberty of its citizens. The lockup, meant to be a transient holding place before a citizen is produced before a magistrate, too often becomes the final, fatal destination. These deaths, whether in police custody (lockup) or judicial custody (prison), are not mere administrative oversights; they are a grim indicator of a systemic culture of institutional violence and impunity that permeates the criminal justice machinery.
Annually, India records hundreds of custodial deaths, a statistic that human rights activists universally regard as a gross understatement. The official figures obscure the deep-rooted socio-economic dynamics that make certain populations disproportionately vulnerable to state brutality. To truly understand this crisis, one must move beyond dry statistics and confront the human experience of those caught in the system’s vice. The narratives compiled by Jahnavi Misra in her powerful book, The Punished: Stories of Death-Row Prisoners in India, based on Project 39A’s Death Penalty India Report (DPIR) research, offer a visceral, necessary glimpse into this darkness, showing how police torture is not an aberration, but a routine instrument of investigation, a direct precursor to custodial mortality.
The Shadow of Custody
The central tragedy illuminated by works like The Punished is the link between socio-economic marginalisation and the severity of police abuse. Project 39A’s findings revealed a stark correlation: the vast majority of those on death row, a demographic that first passes through the violent crucible of initial police custody are drawn from India’s most vulnerable strata. The DPIR data, which informs Misra’s work, indicates that 74.1% of death-row prisoners are economically vulnerable, while 76% belong to backward classes and religious minorities (Scheduled Castes, Scheduled Tribes, and religious minorities). This disproportionate representation underscores a structural bias, suggesting that the police system targets those least equipped to resist its power, a pattern that makes custodial deaths a class and caste issue.
For these individuals, custodial interrogation is synonymous with torture. Misra’s collection of narratives documents police brutality as a near-universal complaint. Torture, in these accounts, is deployed primarily to compel a confession, regardless of the accused’s actual guilt. One chilling statement recorded during the DPIR research, and echoed through the stories in The Punished, encapsulates this dehumanisation: “When anyone is tortured like I was, it no longer matters whether you did it or not, you will agree to anything to make the torture stop.” This forced assent, extracted through violence, becomes the shaky foundation of many criminal convictions, bypassing the need for rigorous, evidence-based investigation. When this violence escalates as it frequently does against those who are poor, illiterate, or suffer from mental illness it results directly in death. The custodial violence described in Misra’s book is, therefore, the same institutional mechanism that leads to custodial death; the only difference is the degree of fatal outcome.
Rights, Procedures, and Loopholes
India’s constitutional and legal framework contains robust safeguards against custodial violence, yet the tragedy of custodial deaths persists due to their wholesale disregard. The fundamental right to life and personal liberty, enshrined in Article 21 of the Constitution, is the bedrock of these protections. This right has been interpreted by the judiciary to include the right to human dignity and protection from torture and cruel, inhuman, or degrading treatment.
A significant judicial milestone in this regard is the Supreme Court’s 1997 ruling in D.K. Basu v. State of West Bengal. This judgment established a set of mandatory, detailed guidelines for arrest and detention, universally referred to as the D.K. Basu guidelines. These include – Preparation of a Memo of Arrest, informing a relative, mandatory medical examination and legal aid.
Complementary safeguards exist under the Code of Criminal Procedure (CrPC). Section 41 mandates that police must provide the grounds for arrest. Section 54 requires a medical examination immediately upon arrest.
Paradoxically, the law also provides an escape route that fuels the culture of torture. Section 25 of the Indian Evidence Act, 1872 states that a confession made to a police officer is inadmissible in court. This provision was designed to prevent police coercion. However, Section 27 acts as a major loophole: it allows a confession, even if made to a police officer, to be admitted as evidence to the extent that it distinctly relates to the discovery of a fact. Police routinely exploit this by torturing the accused until they confess to leading the police to an object (e.g., the weapon or stolen goods), thereby legitimising the discovery and, indirectly, the confession itself. This practice of fabricating a panchnama of ‘discovery’ acts as a pervasive incentive for the police to rely on illegal, violent means of investigation, often crossing the line into fatal abuse.
The Accountability Crisis
The gulf between the comprehensive legal framework and the reality of persistent custodial deaths is bridged by a crisis of accountability and entrenched impunity. The primary failure lies in the mechanisms designed to investigate and prosecute the very state agents responsible for the crime.
The most formidable shield protecting errant police officers is the requirement of prior sanction for prosecution. Section 197 of the CrPC often requires the government to grant permission before a public servant can be prosecuted for an act committed “in the discharge of official duty.” While custodial torture and death are unequivocally outside the scope of “official duty,” courts and governments often interpret this provision broadly. The resultant bureaucratic hurdles and institutional reluctance to prosecute their own create a “Code of Silence” and effectively grant immunity to abusers. As a result, conviction rates for custodial deaths remain tragically low, sending a clear message to the police force that their excesses will rarely be punished.
Furthermore, the legal system’s support structures fail the vulnerable at crucial junctures. The stories in The Punished frequently highlight the lack of quality legal representation. Prisoners and their families, often poor and uneducated (as noted, 23% of DPIR’s sample had never attended school), sell their meager assets for legal representation that ultimately proves inadequate. Defence lawyers often fail to aggressively challenge evidence of torture or ensure medical reports are correctly submitted. This is compounded by the procedural barrier of court proceedings being conducted in English, leaving many prisoners ignorant of their own case’s status or even the sentence pronounced against them, as documented by Misra. Without effective legal aid and proactive judicial oversight particularly from Magistrates during remand the victim of custodial torture becomes further isolated, and the accountability loop is broken.
The National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) serve as key monitoring bodies. Under NHRC guidelines, all custodial deaths must be reported to the Commission within 24 hours. While this has improved data reporting, the NHRC’s recommendations often lack punitive power, relying on compensation and disciplinary action rather than criminal prosecution, thereby failing to act as a sufficient deterrent.
The Imperative for Reform
Ending the scourge of custodial deaths requires a comprehensive, multi-pronged reform agenda that addresses legislative gaps, police culture, and judicial effectiveness.
The foremost reform required is the enactment of a standalone, comprehensive anti-torture law. Despite signing the United Nations Convention Against Torture (UNCAT) in 1997, India has yet to ratify it by passing domestic legislation. A dedicated anti-torture law must:
- Define torture broadly, encompassing both physical and psychological abuse.
- Prescribe stringent, non-bailable penalties for custodial torture.
- Critically, shift the burden of proof onto the police or security personnel to explain any injury sustained by an individual in their custody. This legal move, if implemented, would eliminate the police’s plausible deniability and create immediate accountability.
The Supreme Court’s 2020 judgment in Paramvir Singh Saini v. Baljit Singh took a significant step by mandating the installation of CCTV cameras with night-vision and audio recording capabilities in all police stations, lockups, and investigation units. Full and effective implementation of this order, with the CCTV footage being preserved and reviewed by an independent state-level body, is crucial. This technological solution provides a credible, unalterable record, making torture less feasible and providing irrefutable evidence in cases of custodial death. The most profound reform must occur within the police force itself. The reliance on torture for confessions, exposed in the narratives of The Punished, stems from a lack of scientific training and poor resource allocation. Police reforms must focus on shifting the investigative paradigm from one based on “might” to one based on modern forensic and technical evidence. Separation of Investigation and Law & Order like the implementation of the Prakash Singh guidelines, as directed by the Supreme Court, is essential. Separating the investigative wing from the law and order wing reduces the pressure on officers to secure quick, torture-extracted results. Then, mandatory human rights training that is instilling a rights-based perspective that views the accused as a citizen, not an enemy.
The judiciary must exercise its mandate proactively. Magistrates, who authorise judicial remand, must rigorously inspect police lockups, question the accused about any instances of abuse, and ensure the D.K. Basu guidelines are adhered to. Furthermore, the Legal Services Authorities Act must be reformed to ensure that the free legal aid provided to the poor is not merely nominal but is of genuinely high quality, capable of challenging the state’s narrative and advocating for the rights of the accused from the moment of arrest. This is the only way to counteract the structural disadvantages highlighted by the DPIR data.
Conclusion
Custodial deaths in India are a stark human rights catastrophe rooted in a nexus of legal loopholes, police impunity, and systemic socio-economic discrimination. The stories collected by Jahnavi Misra in The Punished serve as a powerful ethical indictment, showing that when the state begins its criminal justice process with routine torture primarily targeting the poor and marginalized the line between detention and death becomes perilously thin.
Addressing this crisis demands more than mere condemnation; it requires a radical commitment to systemic overhaul. By enacting a stringent anti-torture law with reversed burden of proof, enforcing technological transparency through CCTV, decoupling investigation from violent coercion, and ensuring effective, high-quality legal representation for the vulnerable, India can begin to uphold the constitutional promise of life and dignity for every person. The ultimate measure of a democratic society is not how it treats its most respected citizens, but how it treats those confined in its darkest corners. For India, the time for decisive reform is long past due.
