Authored By: Satyansh Sinha
Amity University Patna
Abstract:
Every year, hundreds of people die in Indian police custody. These are not people who have been convicted of any crime. Many of them are suspects, witnesses, or simply people who found themselves in the wrong place at the wrong time. The State took them into custody, and the State failed to return them alive or unharmed. This article looks at the problem of custodial violence in India — what it is, why it keeps happening, and whether the new criminal laws (the BNS 2023, BNSS 2023, and BSA 2023) actually do something meaningful about it. The short answer is: they help, but not nearly enough. Without a dedicated law against torture, without an independent oversight body, and without serious accountability for errant officers, the new laws represent a partial reform dressed up as a complete solution.
I. Introduction
Let us start with a simple fact. When a person is arrested in India, they lose something more than their freedom. They lose the ability to protect themselves. The police officer who arrests them now controls where they sleep, what they eat, whether they receive medical attention, and whether anyone outside even knows where they are. That kind of power, when it goes unwatched, can go very wrong very fast.
Custodial violence is what happens when that power is misused. It includes physical beatings, electric shocks, sleep deprivation, threats against family members, sexual assault, and, in the worst cases, death. The National Crime Records Bureau recorded 2,544 custodial deaths between 2010 and 2020. The National Human Rights Commission receives thousands of complaints about custodial abuse every single year. And yet police officers are almost never convicted for these acts.
India’s criminal laws were completely overhauled in 2023. The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860. The Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure 1973. The Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872. All three came into force on 1 July 2024 and are presented by the government as the end of a colonial era in criminal law.
But the real question every law student and every citizen should ask is this: do these new laws actually protect people who are taken into custody? Do they hold police officers accountable when they go too far? This article tries to answer that question honestly, by examining what the new laws say, what the courts have held over the years, and where the real gaps still lie.
II. Custodial Violence: The Constitutional Angle
“Custodial violence” is not a complicated phrase. It means violence that happens while a person is in the custody of the State — either at a police station or in jail. The forms it takes range from the visible to the invisible. Physical torture is the most obvious: beating with hands, feet, batons, or pipes. Then there is psychological torture: humiliation, threats against the person’s family, denial of sleep for days on end, making someone witness another person being beaten. Sexual violence against people in custody is also widely reported, particularly against women and members of marginalised communities, though it is almost never prosecuted.
The Constitution of India does not stop protecting a person just because they have been arrested. Article 21 gives every person the right to life and personal liberty. The courts have read this to include the right to live with dignity. Article 20 says no person can be forced to be a witness against themselves. Article 22 says every arrested person has the right to know why they are being held and the right to consult a lawyer.
The Supreme Court in Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608 made this very clear. The Court held that Article 21 means more than simply staying alive — it means living with basic human dignity. A person being beaten or humiliated in a police station has their most fundamental constitutional right violated, not as an accident, but as a deliberate act by officers of the very State that drafted the Constitution.
At the international level, India signed the United Nations Convention Against Torture (UNCAT) in 1997. Signing and ratifying a treaty are two different things. When a country ratifies a treaty, it becomes legally bound by it. India signed UNCAT but has never ratified it, meaning nearly three decades have passed without India taking on enforceable legal obligations to eliminate torture. On top of that, the Prevention of Torture Bill — introduced in Parliament in 2010 and revised by a Select Committee in 2012 — was never passed. So India today has no standalone law that specifically makes torture by a public official a crime. That fact alone says a great deal about how seriously the problem has been taken.
III. What Was Wrong With the Old Criminal Laws?
The old laws were not entirely silent on custodial violence, but they had serious practical shortcomings that made them largely ineffective in real life.
Under the Indian Penal Code 1860, Sections 330 and 331 made it a crime to cause hurt or grievous hurt in order to extract a confession. Section 348 dealt with unlawful confinement for the same purpose. The Code of Criminal Procedure 1973 allowed an arrested person to request a medical examination under Section 54 and allowed confessions to be recorded before a Magistrate under Section 164.
So what went wrong? First, proving an offence under Sections 330 or 331 IPC required independent evidence of what happened inside a police station. Custodial violence almost always takes place in a room with no cameras and no outside witnesses; the only people in that room are police officers, and getting them to testify against one another is nearly impossible in practice.
Second, the old CrPC did not require interrogations to be recorded on audio or video. There was no default check on what happened during questioning. Third, there was no independent body to receive and investigate complaints against the police — a person who was tortured in custody often had to file a complaint at the same police station where the torture happened. Fourth, the medical examination under Section 54 CrPC was available only if the arrested person asked for it. Someone who has just been through a brutal interrogation may not know their rights, or may be too frightened to ask.
The result was a framework that had safeguards on paper but left a person in custody almost entirely dependent on the goodwill of their captors.
IV. What Do the New Criminal Laws Actually Say?
A. Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023
Section 35 of the BNSS 2023 is an improvement over the old arrest law. It requires a police officer to be genuinely satisfied that arrest is necessary before proceeding — not just a power, but a power attached to a condition that must be met before it is used.
Section 47 gives the arrested person the right to meet a lawyer of their choice during the interrogation itself, not just after it is over. Having a lawyer present in the interrogation room means there is at least one independent person who can observe and record what is happening. This is a meaningful protection.
Section 176 is the most important reform for custodial rights specifically. It requires that the investigation process be audio and video recorded in cases involving offences that carry a punishment of seven or more years in prison. If what happens in an interrogation room is on video, it becomes far harder for a police officer to later claim that nothing improper occurred.
Section 51 provides for medical examination of the arrested person. However, there is a significant problem with this provision: the examination is not automatically required before interrogation begins. It happens only if the arrested person asks for it or if a Magistrate orders it. If someone is interrogated first and examined later, any injuries from that interrogation may have already appeared, and the connection to custody becomes harder to establish.
B. Bharatiya Nyaya Sanhita (BNS) 2023
Sections 117 and 118 of the BNS replace the old Sections 330 and 331 of the IPC. The penalties are the same: Section 117 provides for up to seven years in prison for causing hurt to extract a confession, and Section 118 provides for up to ten years for causing grievous hurt for the same purpose.
But the BNS still does not define or create the standalone offence of “torture.” Under UNCAT, torture is defined broadly — it includes any act by a public official that causes severe pain or suffering, physical or mental, for purposes such as extracting information, punishing a person, intimidating them, or discriminating against them. The BNS covers only a narrow slice of this: causing hurt to get a confession. A police officer who beats someone as a punishment, or to silence a witness, or simply out of contempt, does not fall clearly within these sections. That is a major gap.
C. Bharatiya Sakshya Adhiniyam (BSA) 2023
Sections 22 and 23 of the BSA continue the longstanding rule that a confession made to a police officer is not admissible in court. A confession made while in police custody is also inadmissible unless it is given in front of a Magistrate.
The thinking behind these sections is sensible: if a confession extracted by force cannot be used in court, there is no point in torturing someone to obtain one. But this logic breaks down in practice. Police officers sometimes use violence not to get a usable confession but to gather leads, to send a message, or as an informal punishment. Excluding the confession from court does not stop any of that. The rule removes one incentive for torture, but not all of them.
V. What Have the Courts Said? Key Cases
Indian courts, especially the Supreme Court, have done remarkable work filling the gaps the legislature left open. The following cases are essential for anyone who wants to understand custodial rights in India.
D.K. Basu v State of West Bengal (1997) 1 SCC 416 is the most important case on this subject. The Supreme Court laid down eleven guidelines that every police officer must follow when making an arrest, including showing identification, preparing an arrest memo with an independent witness, telling the arrested person why they are being held, informing a family member promptly, and producing the person before a Magistrate within twenty-four hours. The Court held that violating these guidelines amounts to contempt of court. Many of these guidelines have now been written into the BNSS 2023, a genuine improvement — though the real question is whether they are actually followed on the ground.
Nilabati Behera v State of Orissa (1993) 2 SCC 746 is the foundational case on compensation for custodial death. A young man named Suman Behera was taken into police custody and found dead the next morning near a railway track. His mother filed a petition before the Supreme Court. The Court held the State of Orissa responsible and awarded compensation under the Constitution itself. More importantly, the Court articulated the principle that when the State takes a person into custody, it takes on the duty of returning that person alive and unharmed.
Sheela Barse v State of Maharashtra (1983) 2 SCC 96 addressed the specific situation of women in police custody. The Supreme Court directed that women must be interrogated only by female police officers and only in areas set aside for that purpose. This case matters because custodial violence is not experienced in the same way by all people — women, children, and members of marginalised communities face specific and heightened risks that require specific legal protections.
Joginder Kumar v State of UP (1994) 4 SCC 260 is a reminder that the problem of custodial abuse often starts before the interrogation room. The Supreme Court held that police officers treat arrest as a routine exercise when it should not be. Arrest is a serious act that takes away a person’s liberty and must be justified. Unnecessary detention is itself a harm, and the failure to inform family members about an arrest compounds that harm significantly.
Munshi Singh Gautam v State of MP (2005) 9 SCC 631 addressed the practical difficulty of proving custodial violence. Because there are almost never independent witnesses to what happens in a police station, the Supreme Court held that circumstantial evidence must be taken seriously, and that courts must not demand the same level of proof in custodial violence cases as they would in cases where witnesses are available. The Court also noted that the growing number of such cases points to something systemic rather than occasional.
State of MP v Shyamsunder Trivedi (1995) 4 SCC 262 is one of the rare cases in which police officers were actually convicted for killing someone in custody. The Supreme Court confirmed the conviction and held clearly that the criminal justice system must be willing to prosecute its own enforcement officers when they commit violence. The absence of eyewitnesses, the Court said, cannot serve as a blanket shield for police who commit crimes behind closed doors.
VI. Where Do the New Laws Still Fall Short?
The new laws improve things in several ways. But they leave some very important problems untouched — and those problems are not minor technical details. They go to the heart of whether custodial violence will actually reduce. Five gaps stand out.
The biggest gap is the absence of an independent body to oversee the police. In the United Kingdom, an institution called the Independent Office for Police Conduct investigates complaints against the police. It is staffed by civilians, not police officers. It can compel the production of evidence, and it can recommend criminal prosecution. India has no equivalent. The National Human Rights Commission can investigate complaints and make recommendations, but it cannot force anyone to act on those recommendations — a significant limitation.
The second gap is the absence of a standalone offence of torture. Sections 117 and 118 of the BNS cover only hurt caused to extract a confession; they do not cover the full range of conduct that amounts to torture under international law. India needs a dedicated Prevention of Torture Act that defines the offence properly and prescribes specific penalties for public officials who engage in it.
The third gap is in the recording requirement. Section 176 BNSS requires recording only in cases with a penalty of seven or more years. There is no requirement to record all custodial interrogations. Many offences that carry lighter penalties can still lead to serious abuse, and those interrogations go completely unrecorded. There is also no independent custodian for the recordings that do exist, meaning the same police who conduct the interrogation are also responsible for storing the evidence.
The fourth gap is extended custody. The BNSS continues to allow police custody for up to fifteen days in ordinary cases, with longer periods under some special laws. The longer a person stays in police custody without close judicial supervision, the greater the risk of harm. This structural feature of the system has not been changed.
The fifth, and perhaps most practically important, gap is the absence of a medical examination before interrogation begins. The Istanbul Protocol, the United Nations manual on investigating torture, recommends that a thorough medical examination be conducted both before and after a person is held in custody. Without a record of the person’s condition at the start, it becomes very difficult to prove later that any injuries were caused during custody rather than before the arrest. The BNSS does not make such an examination mandatory at the outset.
VII. What Needs to Change?
The reforms needed are not unrealistic or unprecedented. Other democratic countries have implemented most of them. The question is whether India has the political will to do so.
Parliament must pass a Prevention of Torture Act with a clear definition of torture that matches the UNCAT standard. The punishment for torture by a public official must be specific, proportionate to the gravity of the offence, and must include removal from service alongside imprisonment.
India must ratify UNCAT. It signed the convention in 1997. Twenty-eight years is long enough to wait. Ratification will create binding international obligations and will open India to monitoring by the UN Committee Against Torture, which has significant persuasive force even when its decisions are not legally binding domestically.
An independent Police Oversight Commission must be created at both the national level and the state level. Commission members must be civilians with no current or former connection to the police service. The commission must have actual powers: the power to investigate complaints, to summon evidence, to recommend prosecution, and to recommend dismissal from service.
The recording requirement under Section 176 BNSS must be extended to all custodial interrogations, regardless of the offence. Recordings must be stored with an authority that is separate from the investigating police force and accessible to the arrested person and their lawyer.
A mandatory medical examination before interrogation must be introduced as a standard procedure. If a person is found to have injuries at the end of custody that were not documented at the beginning, the law must presume that those injuries were caused during custody, and the burden of explanation must fall on the State.
VIII. Conclusion
Custodial violence in India is not a problem that belongs only to textbooks or court reports. It happens in real police stations to real people, and it has been happening for decades. The new criminal laws of 2023 are a genuine effort to modernise India’s criminal justice system, and they do bring real improvements: the codification of the D.K. Basu guidelines, the right to a lawyer during interrogation, and the requirement of audio and video recording in serious cases are steps that matter.
But they are not enough to solve the problem. A person taken into custody in India is still largely at the mercy of the officers who hold them. There is still no law that specifically names torture as a crime. There is still no independent body that can hold those officers accountable. There is still no requirement to record what happens before interrogation begins, and to keep that record safe.
The Supreme Court said in Nilabati Behera that the State takes on a duty when it takes a person into custody — the duty to return them alive and unharmed. That is not a high standard. It is the bare minimum. Until Parliament builds a legal framework that makes that minimum enforceable in practice, and not just on paper, the promise of the Constitution will continue to be broken, silently and routinely, behind the closed doors of police stations across India.
Bibliography
A. Cases Cited
Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608
Sheela Barse v State of Maharashtra (1983) 2 SCC 96
Nilabati Behera v State of Orissa (1993) 2 SCC 746
Joginder Kumar v State of UP (1994) 4 SCC 260
State of MP v Shyamsunder Trivedi (1995) 4 SCC 262
D.K. Basu v State of West Bengal (1997) 1 SCC 416
Munshi Singh Gautam v State of MP (2005) 9 SCC 631
B. Legislation
Constitution of India 1950
Bharatiya Nyaya Sanhita 2023
Bharatiya Nagarik Suraksha Sanhita 2023
Bharatiya Sakshya Adhiniyam 2023
Indian Penal Code 1860 (repealed)
Code of Criminal Procedure 1973 (repealed)
Indian Evidence Act 1872 (repealed)
C. International Instruments
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT)
International Covenant on Civil and Political Rights 1966 (ICCPR)
United Nations Manual on the Effective Investigation and Documentation of Torture (Istanbul Protocol) 2004 (UN Doc HR/P/PT/8/Rev.1)
D. Reports and Secondary Sources
National Crime Records Bureau, Prison Statistics India 2022 (Ministry of Home Affairs 2023)
National Human Rights Commission, Annual Report 2022-23 (NHRC 2023)
Select Committee on the Prevention of Torture Bill 2010, Report (Rajya Sabha 2012)
Commonwealth Human Rights Initiative, Deliberate and Cruel: Addressing Torture in India (CHRI 2018)
