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Custodial Torture in India: Legal Gaps, Global Scrutiny, and the Urgent Need for Reform

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Recent extradition cases, such as the UK court ruling in the Sanjay Bhandari case and Tahawwur Rana’s appeal in the US Supreme Court, have brought renewed global attention to allegations of custodial torture in India. Foreign courts have frequently raised concerns over India’s failure to ratify the United Nations Convention Against Torture (UNCAT), citing risks of human rights violations in extradition cases.

Despite constitutional guarantees, legal gaps and lack of enforcement have led to persistent concerns regarding torture in police custody and investigative procedures. While India remains a signatory to UNCAT, its non-ratification weakens its credibility in upholding human rights protections and fair trial principles.

This blog explores the legal, constitutional, and international aspects of custodial torture in India, examining the need for stronger legislative protections and judicial accountability.

 
Table of Contents:

  1. Introduction: Torture and India’s Justice System

  2. Legal and Constitutional Aspects of Torture in India

    • Article 21: Right to Life and Personal Liberty

    • Landmark Supreme Court Judgments on Custodial Torture

  3. International Perspective: India & UNCAT

    • Overview of UNCAT and Its Objectives

    • India’s Status and Implications of Non-Ratification

  4. Judicial and Legislative Challenges in Addressing Torture

  5. Way Forward: Strengthening Legal Protections Against Torture

  6. Conclusion

 

1. Introduction: Torture and India’s Justice System:

 

Torture remains one of the most controversial aspects of India’s criminal justice system, particularly in cases involving police investigations, custodial interrogations, and national security concerns. The lack of a specific anti-torture law and the failure to ratify international conventions raise questions about India’s commitment to human rights and due process.

 

Why Torture is a Critical Issue?

  • Violation of Fundamental Rights: Torture violates Article 21 (Right to Life and Personal Liberty) of the Indian Constitution.

  • Concerns in Extradition Cases: Foreign courts increasingly deny extradition to India due to fears of custodial torture.

  • Lack of Legal Framework: India has not ratified UNCAT, despite multiple recommendations from the Law Commission and Supreme Court judgments.

  • Judicial Acknowledgment: The Supreme Court has repeatedly affirmed that custodial torture is unconstitutional, but legal enforcement remains weak.

 

2. Legal and Constitutional Aspects of Torture in India:

 

Article 21: Right to Life and Personal Liberty

Article 21 of the Indian Constitution guarantees protection against torture, ensuring the right to dignity and privacy.

 

Text of Article 21:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

 

Expanded Scope of Article 21:

Over the years, the Supreme Court has expanded Article 21’s scope to include:

  • Right to Privacy (K.S. Puttaswamy, 2017)

  • Right Against Custodial Torture (D.K. Basu, 1997)

  • Right to Livelihood (Olga Tellis, 1985)

  • Right to Speedy Trial (Hussainara Khatoon, 1979)

  • Right to Die with Dignity (Common Cause, 2018)

 

Limitations & Exceptions:

  • Restrictions must be just, fair, and reasonable (Maneka Gandhi, 1978).

  • Death penalty allowed only in the rarest of rare cases (Bachan Singh, 1980).

 

Landmark Supreme Court Judgments on Custodial Torture-

  1. D.K. Basu v. State of West Bengal (1997)

    • Recognized custodial torture as a violation of Article 21.

    • Issued guidelines for the protection of detainees.

  2. Puttaswamy v. Union of India (2017)

    • Affirmed privacy as an extension of personal liberty under Article 21.

  3. Nambi Narayanan v. State of Kerala (2018)

    • Provided compensation for wrongful arrest and custodial torture.

  4. Ashwani Kumar v. Union of India (2019)

    • Directed the government to enact anti-torture legislation but the law remains unimplemented.

 

3. International Perspective: India & UNCAT:

 

Overview of UNCAT and Its Objectives

  • Adopted: 1984 | Came into Force: 1987

  • Objective: Prevent torture, cruel, inhuman, or degrading treatment worldwide.

 

Key Provisions of UNCAT:

  • Absolute prohibition of torture under any circumstances.

  • State responsibility to criminalize torture through domestic laws.

  • Committee Against Torture (CAT) monitors compliance.

 

India’s Status and Implications of Non-Ratification

  • Signed UNCAT in 1997, but has not ratified it.

  • Placed alongside authoritarian states that refuse to ratify international human rights treaties.

  • Implications:

    • Weakens India’s credibility in extradition cases.

    • Foreign courts cite the risk of custodial torture as grounds to deny extradition.

    • Failure to enact a specific anti-torture law, despite Supreme Court directives.

 

4. Judicial and Legislative Challenges in Addressing Torture

  • Lack of a Specific Anti-Torture Law: No clear legal framework criminalizing torture.

  • Weak Enforcement Mechanisms: Many cases of custodial torture go unpunished.

  • Police Impunity: Low conviction rates for police officials accused of custodial violence.

  • Absence of Independent Oversight: No independent commission effectively monitors police behavior in custody.

  • Legislative Apathy: The Law Commission’s 273rd Report recommended an anti-torture law, but it remains unimplemented.

 

5. Way Forward: Strengthening Legal Protections Against Torture

 

  1. Ratification of UNCAT & Enactment of Anti-Torture Law

    • Strengthening India’s global credibility in human rights protection.

    • Introducing strict legal penalties for custodial torture.

  2. Judicial Oversight & Police Reforms

    • Independent judicial monitoring of custodial cases.

    • Enforcing police accountability through an independent body.

  3. Improving Human Rights Training for Law Enforcement

    • Mandatory training programs on human rights and legal protections.

    • Encouraging institutional reforms in investigative practices.

  4. Strengthening Compensation & Victim Protection Mechanisms

    • Ensuring speedy compensation for victims of custodial torture.

    • Providing legal support and rehabilitation assistance.

6. Conclusion:

India’s failure to ratify UNCAT and implement a strong anti-torture law has serious legal and international ramifications. The Supreme Court has repeatedly affirmed that torture is unconstitutional, but without a robust legal framework and institutional accountability, custodial violence remains a reality.

To uphold human dignity, ensure justice, and improve international standing, India must take immediate steps to criminalize torture, strengthen oversight, and protect the fundamental rights of all individuals.