Torture in Police Custody: Challenge in India’s Justice System

India's Custodial Torture Epidemic: A Crisis of Accountability

The persistence of custodial torture in India’s justice system signals a systemic failure to balance law enforcement with the constitutional mandate of safeguarding human dignity. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, though reformist in its structure, has failed to address entrenched institutional incentives that permit and perpetuate torture. Real reform demands comprehensive anti-torture legislation, judicial accountability, and a cultural shift in policing practices—incremental policing reforms alone will not suffice.

Systemic Failures in Institutional Oversight

India’s criminal justice framework nominally provides safeguards against custodial abuse, but loopholes in implementation render these protections ineffective. Section 187(2) of the BNSS caps police custody at 15 days, ostensibly to prevent prolonged torture. However, judicial custody can extend up to 90 days for serious crimes—creating ample room for human rights violations under the guise of “investigative necessity.” The landmark case K Basu vs. State of West Bengal (1997) mandated procedural safeguards, yet magisterial inquiries into custodial deaths remain riddled with delays and opaqueness. Between 2018 and 2022, India recorded zero convictions for custodial deaths despite serious discrepancies between official NCRB and NCAT figures—76 to 111 cases in 2020 alone.

Additionally, the absence of anti-torture legislation exacerbates the issue. Despite India signing the UN CAT in 1997, ratification remains perennially stalled. The Prevention of Torture Bill (2010) lapsed in Parliament, while the 273rd Law Commission Report reinforced the inadequacy of existing legal safeguards. Meanwhile, institutional practices tacitly condone violence. Section 25 of the Indian Evidence Act renders confessions extracted under torture inadmissible, yet police continue to rely on physical coercion due to low conviction rates. A survey reveals that 55% of police personnel justify “tough methods,” including third-degree torture, as essential to maintain public order—the cost borne disproportionately by marginalized communities, including Dalits, Adivasis, and Muslims.

Institutional Incentives for Torture

The political economy of policing obstructs meaningful reform. Police departments operate under constant political interference, weakening institutional impartiality. Why do 9% of surveyed officers justify torture even for petty offenses? The answer lies in incentives—torture ensures quick confessions, plays into public demand for instant justice, and aligns with political narratives of “law and order.” Public consent to violence, reflected in 25% of police support for mob justice, further entrenches these practices.

Moreover, oversight failures within both executive and judiciary create impunity. Medical examinations of victims often lack forensic rigor, while magistrates act as “silent spectators” during custody extensions. The judiciary’s aversion to proactive interventions stems from an overcrowded docket and institutional inertia, not legal constraints. In short, the Indian justice system prioritizes punitive efficiency over procedural fairness.

Counter-arguments: Necessity vs. Abuse

Advocates of custodial detention argue that such measures are indispensable for handling serious crimes like terrorism, sexual offenses, and organized crime. They often cite the Malimath Committee recommendation to admit confessions made before senior police officers with robust safeguards. While this approach may address procedural bottlenecks, it fails to eliminate coercion entirely or provide victims with a legal remedy.

Another argument posits that torture is not unique to India’s justice system; every democracy struggles to balance individual liberty and security. For instance, Article 5 of the European Convention on Human Rights acknowledges limitations to personal liberty during arrests. However, overlooking systemic impunity in India ignores international benchmarks of accountability. Germany’s model, for example, mandates independent oversight agencies to investigate custodial misconduct—a stark departure from India’s department-led inquiries.

An International Yardstick: Germany's Approach

While India grapples with unratified treaties and lax enforcement, Germany offers a compelling paradigm for safeguarding human rights within law enforcement. The Federal Agency for the Prevention of Torture works independently, with dedicated funding and oversight mechanisms. Germany’s Basic Law incorporates UN principles domestically, prohibiting torture unequivocally under Article 104(1). Unlike India’s opaque inquiries, German agencies maintain transparency via public reporting and strict judicial timelines for detainee protections.

In contrast, India’s approach mirrors a troubling duality—on paper, it endorses rights-based policies, but on the ground, it perpetuates “terror over justice.” What India calls institutional efficiency, Germany calls institutional accountability.

Where Do We Go From Here?

This leaves India at a crossroads. Simply ratifying the UN Convention against Torture without domestic enforcement mechanisms would be performative at best. Independent oversight, mandated use of surveillance technology, and capacity-building initiatives must complement legislation. The BNSS introduced timid reforms; now, bolder steps are necessary.

The call to enact Section 26A in the Indian Evidence Act is overdue. Confessions before senior officers, admissible only with safeguards against coercion, align accountability with efficiency. Additionally, judiciary-led fast-track courts for custodial abuses could resolve delays, while digitization via CCTV and body cameras may lower procedural violations.

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