Every year thousands suffer in silence behind closed doors, as those entrusted to protect become the perpetrators, shattering lives and undermining justice.

As India prepares to celebrate more than 75 years of its Independence, a pressing question of human rights comes to the forefront: the persistent custodial torture and abuse in the national discourse. This not only challenges its constitutional obligations under Article 21 as affirmed in Maneka Gandhi v. Union of India, and D K Basu v. State of West Bengal, which held that any form of torture whether during interrogation, investigation or otherwise is a violation of Article 21 and the right to life and personal liberty guaranteed under the Article can only be curtailed by a due procedure established by law, but also its international commitments as signed and ratified by India under various treaties including the United Nations Convention Against Torture (UNCAT) and International Covenant on Civil and Political Rights (ICCPR). 

A total of 2,307 custodial deaths were reported in the year 2021-22 according to NHRC (National Human Rights Commission), as opposed to 1,940 in the year 2020-21. This marks a concerning upward trend in the rising number of custodial deaths and the pressing need to address it. The increasing number of cases is just the tip of the iceberg and there lie systemic failures at the helm that require urgent reforms.

The Article analyses the current legal framework on custodial torture in India, highlights critical gaps and offers actionable recommendations for tackling these systemic failures.

Defining Torture Under International Law:

While the uncertainty of enactment of legislation concerning custodial torture persist in Indian legal framework, there are international treaties in place which define and categorise custodial torture as a grave violation of human rights and provide a strong ground for dealing with such violations. And in the absence of a standalone legislation, it is sine qua non to examine how international treaties address custodial torture to understand the gravity of the issue.

UDHR: Foundation of Global Human Rights:

The Universal Declaration of Human Rights (UDHR) was proclaimed by the UNGA in 1948 and India adopted the declaration in 1948 itself, thereby endorsing its principles. Article 5 of the UDHR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 

While it doesn’t specifically address custodial torture, it lays down a foundation or a framework for the common standard for the achievement of universal human rights and it paved the way for more than 70 human rights treaties, including the ICCPR and the UNCAT. 

The ICCPR and the growing custodial deaths:

The ICCPR is one such treaty that provides for the protection of rights of the individuals to equality, liberty, life and more, which was adopted by the UNGA in 1966.

Article 7 of the ICCPR provides for protection from torture or any inhuman treatment. The Article states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 

The treaty was ratified by India in 1979, thereby making it officially binding in its legal system. However, much needs to be done for its effective enforcement, as despite it being ratified in 1979, the custodial deaths continue to grow in number. 

UNCAT and the delay in ratification:

While the ICCPR provides a broad framework for promoting dignity and rights of all members of the human family, the UNCAT is a detailed and comprehensive framework aimed at prevention of torture related crimes. UNCAT is the international treaty governing the prevention of torture and other inhuman or degrading treatment globally.

The treaty defines torture as any act by public officials or those acting officially intended to cause severe physical or mental pain or suffering for purposes such as obtaining information or a confession from a person, punishing the person for an act the person has committed or someone else has committed or is suspected of having committed, intimidating or coercing the person or a third party, or for reasons based on any form of discrimination. It does not include pain or suffering that arises solely from lawful sanctions or that is inherent in or incidental to such sanctions.
Article 2 of the treaty provides that each state party to the treaty shall take effective measures to prevent torture in its jurisdiction and that no justification – whether a state of war or any other public emergency should be accepted. Moreover, its Article 4 provides that all acts of torture be classified as offences under the state party’s criminal law which shall extend to attempt to its commission and to complicity or even participation in it.

It is to be noted that though India remains a signatory to the treaty, it has not yet ratified the treaty, and a delay in the same casts a looming shadow over its global human rights record, as the custodial deaths signal an increase in number. India signed the treaty in 1997 signalling its intent to comply with the treaty however, 28 years have since elapsed and there have been no strides in this direction. 

The Inadequacy of Existing Indian Laws:

Despite various judicial pronouncements making reference to it, there is currently no law in force that governs and regulates custodial torture in India and despite being party signatory to international treaties and ratifying some, India hasn’t made any substantial progress in the direction.

There are some constitutional safeguards which have been interpreted by the courts time and again for the protection of those subjected to custodial torture. Article 20(3) of the Constitution for instance provides for the protection of an accused against self-incrimination, which safeguards the person accused of an offence against use of torture by police or other investigation agencies as was held in the case of M.P. Sharma and Ors. v. Satish Chandra. Further the apex court in D. K. Basu case, held that any sort of custodial violence, torture or cruel, inhuman or degrading treatment amounts to a violation of Article 21 of the Constitution.

Moreover, the courts at times had intervened to protect the rights of the accused in custody, the case of Nilabati Behera is one such example, wherein the court ordered the State of Orissa to compensate the petitioners, as the son of petitioner was found dead on a railway track the day after he was taken into police custody. There were multiple injuries on the body of deceased when it was found and its death was found to be unnatural, caused by those injuries and taking these into consideration the court ordered compensation for the same.

Section 196 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) further provides for Inquiry by a Magistrate in addition to any police investigation to inquire into the cause of death, for cases wherein a person dies, disappears, or is allegedly raped while in police or judicial custody. 

Furthermore, Section 120 of the Bharatiya Nyaya Sanhita (BNS) has provisions for dealing with acts voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property.

Though these safeguards exist, in absence of a specific legislation they are not exercised properly and the lack of legislation renders them ineffective, thereby leaving the victims of custodial torture at the mercy of judicial discretion which is further worsened by lack of police accountability infrastructure. Even the aforementioned section of the BNSS which could be of some help, is merely reactive and not preventive in nature, that is to say it comes into play only after the disappearance, death or rape has occurred and it doesn’t provide for prevention of the same. Further it is merely procedural and doesn’t provide for consequences or penalties in case officials are found guilty of the same. Even Section 120 of the BNS penalizes only the form of grievous hurt which is aimed at extorting confessions and doesn’t cover other forms of torture and ill-treatment. Moreover, similar to the BNSS provision, even this section is reactive and not preventive in nature.

The Prevention of Custodial Torture Bill: A Critical Appraisal:

Though currently there is no legislative backing for prevention of custodial torture in India, The Prevention of Custodial Torture Bill, 2023 seems promising. The Bill intends to extend protection to those in custody and seeks to ensure prevention of custodial torture. Furthermore, it provides for punishment and compensation for custodial crimes and matters connected or incidental to it. It further intends to rehabilitate victims of custodial crimes.

Overview of the Bill:

Section 3 of the Bill defines custodial torture in line with the definition of torture as stated in the UNCAT, the definition further provided in the Bill broadens the scope of the definition laid down in the UNCAT. The definition includes “food deprivation, submersion of head in water, asphyxiation, use of psychoactive drugs, maltreating family members, and inflicting shame upon the victim”, but is not exhaustive and could be extended to other acts.

It states that in case custodial torture, as defined in the Bill, is inflicted upon a person, the burden of proof lies with such public servant to prove that the act was not abetted or intentionally caused by, or was not done with the acquiescence or the consent of such public servant. If the public servant fails to prove so, then such person or the public servant shall be punished with imprisonment which may extend from 3 years to 10 years and shall also be liable to fine of at least one lakh rupees, and in case death is caused due to custodial torture the defendant shall be sentenced to life along with fine.

The Bill also has provisions for fine which shall be payable as compensation to the affected person. The appropriate government can also give the victim of custodial torture additional compensation, as may be considered necessary by it basing on grounds like age, family responsibilities, lost opportunities and so on. It even has provisions for custodial sexual abuse.

While these provisions are reactive in nature, the Bill also has protective provisions as enshrined in Section 10, which provides that it shall be the duty of the State Governments to protect victims of custodial torture and custodial sexual abuse, complainants and witnesses from any harm or threats, from the very moment they file a complaint until the government is satisfied that the protection is no longer needed. 

Drawbacks of the Bill:

While the Bill presents a promising framework, it suffers from some inherent defects. The Bill didn’t provide for any independent investigating body, thereby leaving these cases in the hands of police personnel for investigative purposes, which makes the cases susceptible to biases and affects the effectiveness of investigation. Furthermore, while the State Governments have been entrusted with the responsibility of protection of victims of custodial torture and custodial sexual abuse, complainants and witnesses, the Bill fails to provide or lay down clear custodial protocols for the same. Additionally, the Bill is silent on how the rehabilitation of the victims has to take place, there is no provision for the rehabilitation of the victims but merely for compensation.

Though the bill seemed promising, it was left unattended after its introduction in the Rajya Sabha on December 8^th 2023. While the bill could have paved the way for unified custodial torture legislation in India, it succumbed to the political inaction and got stalled after its introduction and there has been no developments to this since then.

Strengthening Accountability and Redressal Mechanisms:

To ensure delivery of justice and restoration of trust in institutions responsible for safeguarding human rights, it is imperative to strengthen accountability and effective redressal mechanisms. Both the central and the state governments have a very critical role to play in strengthening accountability and redressal mechanisms.

The Path Ahead – Recommendations:

For the purposes of custodial deaths, the distinction between natural and unnatural deaths has to be drawn up along the lines of International Committee of the Red Cross (ICRC), which defines natural death as when it is caused solely by disease or/ and the aging process, whereas unnatural death has been defined to mean death caused by external factors like injuries – intentional (homicide, suicide) or unintentional (accident). An independent investigation agency has to be instituted to look up into the matters of unnatural custodial deaths, thereby reducing or eliminating biases of any kind towards the public servants in such cases. While compensation is a step towards rehabilitation, it’s not enough; there has to be clear protocols to ensure proper rehabilitation of the victims, this could include regular medical examination and monitoring and conducting psychological counselling sessions for the victims. Further, CCTV surveillance could be mandated in all interrogation rooms and lock-ups, with its recordings being made accessible to the oversight authorities and there has to be a whistle-blower protection mechanism, to protect personnel who report acts of torture or custodial abuse within the force. Additionally, the police training modules should be reformed to include non-coercive investigation techniques. Last but not the least, a comprehensive anti-torture legislation is the need of the hour and it is high time, government should reflect on the missed opportunity and rectify earlier mistakes by rolling out discussions on the Prevention of Custodial Torture Bill, 2023, thereby paving the way for amendments to the provisions and enactment of the Bill. This will not only provide for a robust framework for anti-torture legislation in India but will also act as a safeguarding mechanism for those suffering silently.

Conclusion: The Imperative for Anti-Torture Legislation in India:

The increasing number of custodial deaths is not merely a shortcoming of the Indian legal system but also a moral failure. While India aspires to be a developed nation, the absence of a comprehensive anti-torture legislation foreshadows the path of justice and continues to undermine the principles of justice and human dignity. Moreover, the case of Sanjay Bhandari’s extradition denial by the High Court of Justice in London citing non-ratification of UNCAT and risk of custodial torture in India is a stark reminder of the same.

The Prevention of Custodial Torture Bill, 2023, provided with an opportunity to begin addressing this vacuum. However, due to the political dormancy with respect to custodial deaths, it was yet another opportunity lost.

Such instances underscore a deeper systemic rot highlighting the inadequacy of the existing legal framework to address custodial torture in India, thereby calling for the pressing need of reform in the system. It is now more imperative than ever that India enacts a robust, preventive and comprehensive anti-torture legislation, to uphold its constitutional values while fulfilling its international obligations.