CUSTODIAL DEATH: THE MISUSE OF POWER AND VIOLATION OF FUNDAMENTAL RIGHTS

Custodial death means death that has occurred while the individual is in the custody of law  enforcement officials. Many times, the death is due to use of extreme physical force, denying  immediate medical attention, sexual violation, forcing them to admit the crimes by using  coercion, etc. Custodial death and torture are widespread in India, as per the report published 1by National Human Right Commission (NHRC) over 2,150 deaths in judicial custody and 155  deaths in police custody in 2021-22. This number is not just deaths of the individual but failure  of the State to fulfil their duty of care and misuse of state power. These is because when an  individual is under the custody, it is under the complete control of the State. Hence, its Sates  responsibility of their safety. Since the State fails to fulfil its responsibility, it has caused to loss  of trust on the State by citizens. There are many landmark cases that has taken place over the  time to ensure that human rights are upheld in custody. Custodial death is not just a dreadful  incident, but a serious violation of fundamental right that are guaranteed under Constitution of  India. This includes violation of Article 21 (Right to Life) and Article 22 (Protection against  arrest and detention in certain cases). The National Human Rights Commissioner has observed  rise in custodial death and through their reports they have repeatedly emphasize on need of  more systematic system to prevent these deaths. In recent times we can see that many steps are  taken to prevent custodial death and protect the rights of the detainees. Even with these steps no major changes can be seen. It should also be understood that custodial death affects the  individual’s family to a greater extent. 

CONSTITUTIONAL PROVISION AND LEGAL FRAMEWORK 

It is well-known that there are no particular acts or provision available in India regarding  custodial death and violence. The courts in India depend on provisions in various acts,  constitutional provisions to protect the arrested individual and held police liable for their heinous action, done under the cover of duty. In all these years there were 3 bills that were put  in Legislature and Rajya Sabha but were never passed as law. These bills are “The Prevention of Torture Bill,2010”, “The Prevention of Custodial Torture Bill,2023” and “The Prevention of  Custodial Torture Bill,2024”. These three bilk are still in legislative process. 

The most important right available to the arrested person is given under Article 22(1) of  Constitution of India. Here the arrested individual has a right to know the grounds of his arrest  and to prepare his defence. 

Another most talked rights when it comes to right of the arrested individual is Article 21 that  is “No person shall be deprived of his life and personal liberty except according to procedure  established by law”. Article 21 includes, right to live with human dignity and right against  inhuman treatment by the police. Right to live with human dignity, following Maneka Gandhi  case the Supreme Court in Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746, held  that right to live is not limited to a mere animal existence but also includes “the right to live  with human dignity, and all that goes along with it”. The arrested individual has a right against  inhuman treatment by the police. In Kishore Singh v. State of Rajasthan AIR 1981 SC 625, the  Supreme Court held that the use of third-degree method used by police is violative of Article  21. Even solitary confinement for period of 8-11 months and restraining him with chains for  reasons like loitering in prison, disrespecting the officers and behaving in uncivilised manners  must be regarded as extremely brutal and against human dignity and hence violative of Article  21 of the Constitution of India. Though we have many such cases where the authority is  punished but still there are incidents that take places that violates these rights. 

Similarly, the arrested individual has a protection under Article 20(3) of the Constitution of  India.2This article says that “no person accused of any offence shall be compelled to be a  witness against himself.” Though this article is present, but it is observed that this is violated  many times by police while examining the accused in the custody. The methods used by police  like beating, third-degree tortured to force them to make a statement against himself and this  action violates Article 20(3). In Nandini Satpathy v. P.L. Dani AIR 1977 SC 1025, Supreme  Court held that the accused person cannot be forced to answer the questions merely because  the answers thereto are not implicative when viewed in isolation and confined to that particular  case. He is entitled to keep his mouth shut if the answer has reasonable prospect of exposing  him to guilt in some other accusation, actual or imminent, even if the investigation is not related to it. This article protects the arrested individual from physical violence or coercion and from  psychological torture. 

In D.K. Basu v. State of W.B. AIR 1997 SC 610, Supreme Court held that custodial death is  perhaps one of the worst crimes that take place in a civilised society that is governed by the  rule of law. In this the court laid down guidelines that are to be followed in cases of arrest or  detention till legislative measures are taken. 

There was a case Nilabati v. State of Orissa (1993) 2 SCC 746, in this Suman Behera was taken  into police custody for an investigation of an offence of theft in village. He was handcuffed  and kept in custody in police station. And on next day he was found dead on railway track with  a handcuff and multiple injuries. According to police, he escaped from police custody and had  died in the train accident. Later, on the basis of evidence and medical report it was found that  the reason of his death was due to police brutality. After this his mother was granted interim  compensation of Rs.1,50,000/-. There are a number of similar cases which reports the failure  of State to fulfil its duty. In such cases monetary compensation is also granted, but it should be  noted that not every case is reported and not every time evidences are found. So, there should  be a strict Act that will make authority to think twice while doing any rash less act that results  in death of any individual in custody.  

Earlier, India’s legal framework had its foundation in British colonial period and it had the  reflection of the colonial influence. Though with time changes were brought in the legal  framework. The legal framework now includes provisions for the arrested individual as well as  for the police. In 2023, the Indian criminal justice system went into a huge transformation by  replacing and by renaming three colonial era laws- Indian Penal Code,1860, Code of Criminal  Procedure,1973, Indian Evidence Act,1872 as Bharatiya Nyaya Sanhita (BNS),2023, Bharatiya  Nagrik Suraksha Sanhita (BNSS),2023, Bharatiya Sakshya Adhiniyam (BSA),2023. The  objective to replace the colonial era law is to make justice more approachable and making laws  that integrate with the advance technology with the investigation and court procedure.3 

Under Bharatiya Nagrik Suraksha Sanhita (BNSS),2023, Section 35 and 43 are more specific  for custody and getting confessions while protecting their rights. 4Section 35 is “When police  may arrest without warrant” through these police cannot arrest any individual without a justifiable reason and this ensure that an individual does not suffer unnecessary arrest and  custodial violence. Section 43 is “Arrest how made” through these police are given appropriate  ways to arrest and individual and times when an individual can be handcuffed. This ensures no  unnecessary force is applied and individual is not injured in the process of arrest. Under as  Bharatiya Nyaya Sanhita (BNS),2023, Section 120 is “Voluntarily causing hurt or grievous hurt  to extort confession, or to compel restoration of property” through this the authority is punished  for his wrongdoing and for misusing his power and abuses the arrested individual just to make  him confession. Under Bharatiya Sakshya Adhiniyam (BSA),2023, Section 22 “Confession  caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding”  through this it is very cleared that the confession made by arrested individual will not be  admissible in court if it is given by inducement, coercion and threat. Although the confession  is not made irrelevant but the court ensure that it was given voluntarily. 

CHALLENGES AND GAPS TO PREVENT CUSTODIAL DEATHS

1. Poor implementation of guidelines and provisions:  

Even with proper guidelines laid down in D.K. Basu v. State of Bengal AIR 1997 SC 610 for  procedures of arrest and detention, still most of the time these are neglected by police. Not only  guidelines but also sections under BNSS which tells how arrest should be made and informing  the grounds of arrest and still in many instances it can seen that it is not followed very strictly.  This can be viewed as failure of the justice system that it is not made that much strict that even  police take it very lightly. Lack of supervision has led to continues to ignorance of laws and  guidelines. 

2. Lack of Anti – Torture Law: 

India had always contributed to UN General Assembly and has signed the convention of UN  Convention Against Torture (UNCAT) but has not ratified till date. 5UNCAT is an international  human right treaty to prevent torture and other cruel and inhuman treatment or punishment  worldwide. Once India ratified it, then it will bound to implement and enforce measures to  prevent torture. India not ratifying it is always cited as a weakness of the criminal justice  system. This legal gap weakens India’s ability to combat transnational crime and terrorism. 

3. Lack of Accountability Mechanisms: 

One of the major defaults observed is the department in which the wrong has been done, is the  same department who investigates it. These investigations at times are biased, slow and also  the evidences are tempered to keep the truth hidden in case the officials are involved. Since  law enforcement system often works under political pressure, political leaders often intervene  in the investigation procedure to protect the accused officer specially if there exists a political  connection. 

4. Lack of Training and Sensitization: 

Police often depend on brutal force and third-degree method to make the arrested person  confess. They lack the scientific interrogation techniques and this often leads to practice  inhuman and cruel treatment to arrested individual. Many times, they lack the training of  implicit biasness for poor and lower-caste people. This implicit biasness leads to wrong  targeting and mistreatment and often ignoring their medical requirements. Even they are poorly  trained to recognize basic signs of mental health which many times lead to suicide in custody. 

5. Lack of Awareness and Tolerance: 

Generally, the people are unaware of their rights when arrested which gives the officers the  chance to take advantage of it. From past, India has a wide history of police violence. This has led to public tolerance and acceptance to this torture. It can also be understood that since most  of the time this abuse or torture takes place behind the close bars, public are forced to believe  the police version and truth stays hidden. 

RECOMMENDATAION- A WAY FORWARD 

In the current era, custodial death and torture should be taken seriously. Even though we cannot  completely end custodial death but can at least try to minimize the number of deaths. In order  to control the number of death and torture in custody, following are the few recommendations  that can be applied to make justice system more transparent and accountable. It is high time  that India should now ratify UN Convention Against Torture (UNCAT) that was signed in  1997, because it is the need of the hour that we have anti-torture legislation which clearly  defines torture, provide punishment for public officials for breaking the guidelines that are to  be followed and provide remedies to the victims. The Prevention of Custodial Torture Bill,2024 should be passed because there needs to be a law that clearly defines the boundaries or limits when beating becomes abuse or torture, medical rehabilitation to the victim, a mandatory report  to be submitted by the responsible officer for his act, criminal punishment on the officials for  their acts. The police officials should undergo training on human rights and non-threatening  method for interrogation. In Paramvir Singh Saini v. Baljit Singh & Ors (2020) 3 SCC (Cri)  150, the Supreme Court held that police station should have CCTV installed in every premises  of the station. This shows the necessity of installing cameras in police station as many times  due to lack of evidence the officials are left without any punishment. It should be ensured that  the CCTVs are in working condition having a centralised unit and are accessible during  investigation to the respective authorities. The custodial torture should be criminalised; this can  result into reduce of custodial death and suicide. 

CONCLUSION 

India has high rate of custodial death and it is the most heinous crime that is committed by  officials whom we trust for our safety and protection. They are the protectors of citizen but at  the same time they become the villain in some cases. Custodial torture and death are a reminder  of the failure of the justice system and even though we have various acts and guidelines still  we fail to protect the victims of custodial torture. The emergence of a strong, strict laws and  ratifying UNCAT is necessary. Custodial death and torture should not be normalized and should  be taken seriously.

REFERENCE(S):

1. Over 2,150 cases of deaths in judicial custody in 2021-22: Govt, INDIA TODAY  (2022), https://www.indiatoday.in/india/story/over-2150-cases-of-deaths-in-judicial custody-govt-1928310-2022-03-22 (last visited Oct 13, 2025). 
2. Dr.J.N. Pandey, Constitution of India (6th ed. 2023). 
3. Drishti IAS, NEW CRIMINAL LAWS COME INTO FORCE DRISHTI IAS (2024),  https://www.drishtiias.com/daily-updates/daily-news-analysis/new-criminal-laws come-into-force (last visited Oct 13, 2025). 
4. INDIA CODE: HOME, https://www.indiacode.nic.in/ (last visited Oct 13, 2025). 5. Drishti IAS, UNCAT AND CUSTODIAL TORTURE DRISHTI IAS (2025),  https://www.drishtiias.com/daily-updates/daily-news-analysis/uncat-and-custodial torture (last visited Oct 13, 2025). 
5. Chains of silence – reforming India’s legal response to custodial cruelty , THE AMIKUS  QRIAE (2025), https://theamikusqriae.com/chains-of-silence-reforming-indias-legal response-to-custodial-cruelty/ (last visited Oct 13, 2025).  
6. Abhishekpundir, CUSTODIAL DEATH IN INDIA: CAUSES, NEED FOR REFORM UPSC ADDA247 (2024), https://www.adda247.com/upsc-exam/custodial-death/ (last visited  Oct 13, 2025).