Custodial Torture in India: A Critical Study

Abstract

Custodial torture is one of the world's most serious violations of human rights as well as constitutional rights in India. Custodial violence takes place even though there are constitutional rights, laws against torture, the judiciary can step in on behalf of people, and international laws say all individuals have the right to be treated with respect during arrests. The continued prevalence of custodial violence erodes the rule of law and may erode public confidence in the criminal justice system. The act of torturing someone in police or judicial custody is a blatant violation of the fundamental rights of the individual, and it is a fundamental threat to the democratic principles of dignity, equality, and justice that form the basis of the Constitution of India. The Supreme Court's development of tort law through its interpretation of treaties has been beneficial in large part through cases like D.K. Basu v. State of West Bengal and Nilabati Behera v. State of Orissa, but many of the anti-torture pledges made to international treaties have not yet been implemented as they lead to a lack of anti-torture legislation. This article examines and critiques the constitutional, statutory, judicial, and international frameworks that govern custodial violence in India. It also examines the causes of custodial torture, and reviews the efficacy of current legal protections against custodial torture; identifies areas of institutional failure; and makes recommendations for reform to guarantee an increase in public confidence in the integrity, accountability, and protection against custodial torture.

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