Authored by Aashka Vyas, 5th year student at Jindal Global Law School
Introduction
In India, custodial torture remains a significant issue, as it is not explicitly defined in existing laws. Due to this lack of definition, the police often resort to third-degree methods to extract confessions or gather evidence from undertrials and prisoners. While Article 21 of the Indian Constitution guarantees the right to life and personal liberty, with an emphasis on the “right to live with dignity”, and the National Human Rights Commission (the “NHRC”), established under the Protection of Human Rights Act, 1993, addresses human rights violations such as custodial torture, India’s compliance with its international obligations remains inadequate in this sphere. India signed the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), but has yet to ratify it, citing the need to integrate anti-torture measures into its legal framework as the reason for the delay.
Thus, this blog intends to critically analyse India’s legal framework on custodial torture, highlighting the gaps in domestic laws that allow such human rights violations to persist. It examines India’s reluctance to ratify CAT, despite pressure from the NHRC and international bodies, and explores the structural barriers that prevent effective police accountability. The blog also discusses the international legal landscape surrounding custodial torture and how India’s non-ratification of CAT does not absolve it of responsibility under customary international law. Finally, it outlines the necessary legal reforms India must undertake, including enacting a comprehensive anti-torture law and strengthening police accountability. Simultaneously, it emphasizes the role of the international community in increasing diplomatic pressure, utilizing multilateral forums, and advocating for stronger oversight mechanisms to ensure India aligns its policies with global human rights standards.
Rights of Undertrials and Prisoners in India
Custodial torture has been deeply entrenched in India’s law enforcement practices, with documented instances tracing back to the colonial era. Under British rule, the police frequently employed torture as a means of extracting confessions and maintaining control over the population. Although India gained independence and adopted a Constitution founded on democratic principles, explicit prohibitions against custodial torture remain absent. However, certain fundamental rights under Part III of the Constitution provide implicit protections to undertrials and prisoners. The fundamental right to life, enshrined in Article 21 and regarded as the cornerstone of India’s constitutional framework, has been consistently upheld[i] as extending beyond mere survival, ensuring the right to live with dignity. This interpretation has effectively elevated immunity from torture to the status of a fundamental right in India. The Constitution also safeguards individuals through Article 20 (3), which grants the right against self-incrimination, reinforcing the presumption of innocence until proven guilty. This principle aligns with the International Covenant on Civil and Political Rights (“ICCPR”), to which India is a signatory. As part of its obligations under ICCPR, Article 22 (1) of the Constitution guarantees individuals the right to be informed of the grounds for their arrest and to have those grounds communicated promptly.
In addition to these constitutional interpretations, the NHRC was established to address human rights violations, including custodial torture. In December 1993, the NHRC issued guidelines requiring that any custodial death or rape be reported within 24 hours, accompanied by documentation such as post-mortem reports, inquests, and magisterial inquiries. In 1998, the Commission issued comprehensive guidelines on police reform and remedies for custodial torture, including the creation of district authorities to investigate complaints and make recommendations to government bodies and human rights commissions. By 2000, the NHRC had created a dedicated unit within its Investigation Division to closely track cases of custodial torture and ensure that state authorities provided accurate and timely reports. Additionally, the NHRC has published a detailed report on prisoners’ rights, inspired by the ICCPR and the Nelson Mandela Rules, further strengthening protections for those in custody.
India’s Standoff: Stalling Global Commitments to Prohibit Torture
Despite having various provisions that implicitly prohibit torture, India has been hesitant to ratify CAT since 1997. CAT is a key international commitment that requires state parties to ensure their authorities investigate any reasonable grounds for believing torture has occurred and to make acts of torture serious criminal offences within their legal system. CAT provides a clear definition of torture, something that is currently absent in India’s legal framework. In 1997, the NHRC directly appealed to the Prime Minister, refuting claims that certain states had “reservations” about international involvement in domestic affairs. This led to a public announcement that India would ratify CAT. However, the Government only signed the Convention, misleading the NHRC, and has since repeatedly insisted that the delay in ratification is merely “procedural”. Since then, the NHRC has repeatedly made annual rhetorical appeals, expressing “serious concerns” over the non-ratification of CAT, emphasizing that it is “long overdue”. The NHRC has also pointed out that ratification should not be an issue, as the Supreme Court has already recognized the right against torture as a fundamental right under Article 21 of the Constitution. The NHRC’s stance has weakened over time, yet the issue of custodial torture has grown far beyond previous levels.
Several UN Member States have repeatedly recommended during the UN Human Rights Council’s Universal Periodic Review (“UPR”) sessions for India that it ratify CAT. However, the NHRC has consistently maintained that: (i) slight amendments to existing provisions in the Indian Penal Code (now replaced with Bharatiya Nyaya Sanhita) would be sufficient to address torture; (ii) a comprehensive national law on torture is necessary before ratification; and (iii) current laws, including the Supreme Court ruling in D.K. Basu v. State of West Bengal[ii], already provide mechanisms to prevent and punish torture by public servants in India.
India’s Current Regime: A Power Play of sorts
The NHRC’s consistent submissions during the UPR sessions, advocating for incorporating provisions into India’s legal framework instead of ratifying CAT, have only fueled concerns about India’s reluctance to formalize its commitment. This hesitancy is further contradicted by recent criminal law reforms in India, which do not fully address the prohibition of custodial torture. In a democratic system like India, the Police function as agents of the Government, which is ultimately accountable to its citizens. Therefore, the Police, too, must be held accountable to the public for their actions, reinforcing the need for greater transparency and legal reforms that ensure compliance with international norms against torture. Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the “BNSS”) forbids prosecution of public servants employed by the States without the prior sanction of State Governments in India who largely control the police forces. Additionally, Section 187 of BNSS outlines the procedure when an investigation cannot be completed within 24 hours. In such cases, the police must present the accused before a Magistrate, who may authorize further detention for up to 15 days within the initial 40 or 60 days of a total detention period of 60 or 90 days, depending on the severity of the offence. For offences punishable by death or life imprisonment, the total detention can extend to 90 days, while for lesser offences, it is 60 days. This extended custody raises concerns as it allows time for potential coercion or forced confessions. Moreover, Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (the “BSA”) forbids using confessions made to police officers as evidence of a crime, only to remove the incentive for police to engage in torture, however, its proviso rebuts this if the police could hope to prove an individual liable. The reality is that police officers in India are seldom prosecuted for mistreating suspects. Additionally, it appears that Indian police receive little to no training in non-coercive interrogation methods.
The Indian Government justified the delay in ratifying CAT by also stating the need for an enabling law prohibiting torture within India. In 2010, 13 years after signing CAT, the Prevention of Torture Bill was introduced in Parliament, marking the first time torture was defined in Indian law. However, the Bill had a narrow scope, defining torture as an act by a public servant, or someone acting with their consent, that causes grievous harm or endanger life, limb, or health (mental or physical). The Bill fell short of international standards and required amendments to align with CAT. Since then, no significant progress has been made, and the Government has used this as a delaying tactic to avoid both ratifying CAT as well as enacting comprehensive anti-torture legislation.
What can India and the International Community do about this?
In conclusion, India continues to grapple with the widespread use of torture by its police forces, despite the country’s democratic framework. The current legal regime, while comprehensive in certain areas, falls short in implementing strict oversight mechanisms and stronger protection for undertrials and prisoners. It also lacks adequate accountability for public officials, such as the Police, which is imperative to address this deeply rooted issue. Meanwhile, the international community has largely refrained from holding India accountable for these violations, focusing instead on its democratic institutions rather than the serious human rights abuses occurring within its borders.
To address the ongoing issue of custodial torture, the NHRC must revisit its 1997 arguments, highlight the Government’s unfulfilled promises, and demand a thorough explanation for the alleged “procedural” delays in ratifying CAT. The Indian Government, in turn, must take immediate steps to enact comprehensive anti-torture legislation that adheres to international standards and then, subsequently ratify CAT. Additionally, efforts must be made to raise public awareness and provide police forces with adequate training in non-coercive interrogation techniques.
In his inaugural report as the first Special Rapporteur on Torture for the UN Commission on Human Rights, Pieter Kooijmans remarked that: “Torture is now absolutely and without any reservation prohibited under international law, whether in times of peace or war. The prohibition of torture can be considered part of the rules of jus cogens. If ever a practice was outlawed unequivocally, it is torture”. As a result, this prohibition binds all Member States as ‘customary international law’, regardless of whether they have ratified CAT. This means that India can still be held accountable for its longstanding history of custodial torture against undertrials and prisoners, despite not ratifying the CAT. In light of this, the international community must play a more active role in holding India to its obligations. Increased pressure through bilateral and multilateral dialogues, public condemnation of human rights abuses, and support for meaningful reforms can push India to comply with global anti-torture norms. Additionally, the UN Human Rights Council should continue raising India’s non-compliance in UPR sessions and recommend concrete steps to address custodial torture. If India continues to evade its obligations, international human rights organizations and NGOs could explore legal avenues, such as filing cases before international human rights tribunals or courts, to hold the Government accountable for its inaction. Without these concerted efforts, the persistent use of torture in India will remain a glaring violation of its legal, democratic, and international principles.
[i] Francis Corlie Mullin. v. The Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746; Kharak Singh v. State of U.P., A.I.R. 1978 S.C. 1259; Maneka Gandhi v. Union of India, A.I.R. 1978 S.C 659 & ADM Jabalpur v. S. Shukla. A.I.R. 1976 S.C. 1207: Right to life under Article 21 of the Constitution is a non-derogable right encompassing “the basic right to live with human dignity and all that goes with it”.
[ii] D.K. Basu v. State of W.B., (1997) 1 SCC 416: The Supreme Court issued various guidelines to prevent custodial deaths.