Abstract
Custodial death, the death of a person while under the physical control of the police or prison authorities, remains one of the starkest indictments of India’s criminal justice system.
Despite an expansive constitutional guarantee of the right to life and personal liberty under Article 21, a robust body of Supreme Court jurisprudence beginning with Nilabati Behera v. State of Orissa (1993) and D.K. Basu v. State of West Bengal (1997), and the establishment of the National Human Rights Commission (NHRC) as a statutory watchdog, India continues to record a persistently high incidence of deaths in police and judicial custody.
Parliamentary data placed before the Lok Sabha shows that between 170 and 176 custodial deaths were recorded annually in recent years, yet only a single instance of disciplinary action against a police officer was reported over a five-year period, exposing a near-total accountability deficit.
This paper undertakes a doctrinal and critical examination of the constitutional, statutory, and institutional architecture governing custodial deaths in India.
It traces the evolution of judicial safeguards, evaluates the functioning of oversight bodies such as the NHRC and the Police Complaints Authorities envisaged in Prakash Singh v. Union of India (2006), and assesses the extent to which the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure, 1973, with effect from 1 July 2024, advances meaningful reform.
The paper argues that despite an increasingly sophisticated body of case law and procedural safeguards, custodial violence persists because of weak implementation, the continued absence of a standalone anti-torture statute, India’s non-ratification of the UN Convention Against Torture (UNCAT), and an institutional culture inherited from colonial-era policing.
It concludes with recommendations for structural reform, including independent investigative mechanisms insulated from police control, mandatory implementation of existing judicial directions, and enactment of dedicated anti-torture legislation.
2. Introduction
Custody is meant to be a condition of restraint, not of peril.
Yet in India, the lock-up and the prison cell have repeatedly proven to be sites where the coercive power of the state manifests in its most unaccountable form.
A ‘custodial death’ is generally understood to include any death occurring in police custody, judicial (prison) custody, or during transit between the two, whether attributed to natural causes, suicide, or the direct or indirect consequence of violence, negligence, or torture inflicted by state functionaries.
The phenomenon implicates the very core of constitutional governance: it pits the coercive authority the state must wield to investigate crime and maintain order against the inviolable guarantee, under Article 21 of the Constitution, that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law.’
Colonial Roots of Custodial Impunity
The roots of custodial impunity in India are frequently traced to the colonial architecture of policing.
The Police Act of 1861, enacted in the aftermath of the 1857 uprising, was designed to create a force answerable to the executive and oriented toward the control of subjects rather than the protection of citizens.
Although India has since adopted a rights-based constitutional order, successive commentators and judicial benches have observed that the institutional culture, training, and accountability structures of the police have changed far more slowly than the constitutional text.
The continued reliance on confession-based investigation, rather than forensic and scientific methods, has meant that interrogation rooms remain a locus of coercion, particularly for undertrial prisoners and persons from marginalized communities who lack the social or economic capital to resist such treatment.
The Sathankulam Custodial Deaths
The urgency of the issue was thrown into sharp national relief by the deaths of P. Jeyaraj and his son J. Bennicks in Sathankulam, Tamil Nadu, in June 2020, after their arrest for allegedly violating COVID-19 lockdown curfew timings, a case that triggered nationwide outrage and renewed parliamentary and judicial attention to custodial violence.
Such episodes are not aberrations but recurring events: official data compiled by the NHRC and NCRB, examined in detail in this paper, indicate that India records well over a hundred custodial deaths annually, with judicial custody deaths numbering in the thousands each year once prison deaths are included.
What is equally striking is the near complete absence of consequences for those responsible: a pattern this paper terms the ‘accountability deficit.’
Objectives Of The Paper
This paper is animated by three interrelated objectives.
- First, it seeks to map the constitutional and statutory framework, including the recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, that governs the treatment of persons in custody and the investigation of custodial deaths.
- Second, it critically reviews the body of judicial precedent that has, over three decades, sought to translate the guarantee of Article 21 into enforceable safeguards such as mandatory arrest memos, medical examination, and compensation.
- Third, and most centrally, it interrogates why these extensive legal safeguards have failed to produce commensurate accountability, drawing on empirical data and institutional analysis to identify the structural gaps between law on the books and law in practice.
The paper proceeds on the premise that custodial deaths are not merely a law-and-order statistic but a critical barometer of the health of constitutional democracy and the rule of law in India.
3. Research Methodology
This paper adopts a doctrinal and analytical research methodology, situated within the discipline of socio-legal studies.
It relies primarily on secondary sources of data and legal material, given that the subject matter—constitutional interpretation, statutory reform, and institutional accountability—is best examined through a combination of textual, jurisprudential, and empirical analysis rather than primary fieldwork.
3.1 Sources of Data
The study draws on four categories of material.
| Category | Sources and Materials |
|---|---|
| Primary Legal Sources | Constitution of India (Articles 20, 21, and 22), the erstwhile Code of Criminal Procedure, 1973, the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023, and the Protection of Human Rights Act, 1993. |
| Judicial Decisions | Case law of the Supreme Court and High Courts pertaining to custodial violence, arrest procedure, and state liability, analyzed through their ratio decidendi and subsequent judicial treatment. |
| Official Statistical and Institutional Reports | Data published by the National Crime Records Bureau (NCRB), annual and monthly statistics of the National Human Rights Commission (NHRC), Lok Sabha and Rajya Sabha responses by the Ministry of Home Affairs, and reports of the Law Commission of India and the Parliamentary Standing Committee on Home Affairs. |
| Secondary Academic and Policy Literature | Law journal articles, human rights organization reports, and reputable legal news reportage are used to contextualize doctrinal developments and identify emerging debates. |
3.2 Analytical Approach
The paper employs a critical-doctrinal method: it does not merely describe the law but evaluates the gap between the normative framework and its practical implementation, using quantitative indicators, such as the ratio of custodial deaths registered to disciplinary or criminal action taken, as a lens through which to assess institutional accountability.
Case law is analyzed thematically rather than purely chronologically, organized around the specific safeguard each precedent established (for instance, compensation, arrest procedure, or police oversight), in order to trace how doctrine has accumulated into a composite, if imperfectly enforced, framework.
3.3 Scope and Limitations
The study is confined to custodial deaths occurring within police and prison custody in India and does not extend to extrajudicial killings or ‘encounter’ deaths outside custody, except where relevant for comparative purposes.
It relies on secondary and officially published data; given widely documented concerns about underreporting and misclassification of custodial deaths as suicides or natural deaths, the statistics discussed herein should be read as indicative of trends rather than as an exhaustive account of the true incidence of custodial violence.
The paper is further limited by its doctrinal orientation: it does not incorporate primary interviews with police personnel, victims’ families, or oversight bodies, and its conclusions on institutional culture are therefore drawn from documented secondary evidence rather than original empirical fieldwork.
4. Literature Review
The literature on custodial deaths in India spans constitutional law, criminology, and human rights scholarship and can be organized around six broad themes: the constitutional and statutory framework; the evolution of judicial doctrine; institutional mechanisms of accountability; empirical trends drawn from official data; the recent overhaul of criminal procedure through the BNSS; and the persistent structural gaps that scholars identify as the primary obstacles to reform.
4.1 Constitutional and Statutory Framework
Scholars consistently locate the foundation of custodial rights in Articles 20, 21, and 22 of the Constitution. Article 21’s guarantee of life and personal liberty has, through a long line of interpretive expansion beginning with Maneka Gandhi v. Union of India (1978), been read to require that any procedure depriving a person of liberty be fair, just, and reasonable, a standard the literature treats as the doctrinal gateway through which custodial safeguards have been read into the Constitution. Article 22 supplies more specific procedural protections, including the right to be informed of the grounds of arrest and the right to consult a legal practitioner. Commentators note that the Protection of Human Rights Act, 1993, which established the NHRC and State Human Rights Commissions, was intended to operationalize these guarantees through a dedicated oversight mechanism, though it is recommendatory.
4.2 Judicial Pronouncements and Evolution of Custodial Jurisprudence
The literature identifies a cluster of landmark Supreme Court decisions that collectively constitute India’s custodial-rights jurisprudence.
Nilabati Behera v. State of Orissa (1993)
The Court held the state strictly liable to pay compensation for custodial death as a violation of the fundamental right to life, establishing that a constitutional remedy in public law is available independent of and can be awarded even while a criminal prosecution is pending. Scholars regard this as the foundational precedent that shifted custodial death from a purely tortious matter into one of constitutional accountability.
Joginder Kumar v. State of Uttar Pradesh (1994)
The Court held that arrest cannot be made mechanically merely because it is lawful to do so, and that an arrested person has the right to have a friend or relative informed of the arrest and place of detention, embedding procedural transparency into the arrest process itself.
D.K. Basu v. State of West Bengal (1997)
Perhaps the most frequently cited precedent in the literature, this judgment laid down eleven binding guidelines governing arrest and detention, including preparation of an arrest memo attested by a witness, medical examination of the arrestee at the time of arrest and every 48 hours thereafter, and the right to inform a relative or friend of the arrest, which were later substantially codified into the Code of Criminal Procedure and now find place in the BNSS, 2023.
Sube Singh v. State of Haryana (2006)
The Court affirmed that the defense of sovereign immunity is unavailable to the state in cases of custodial torture or death, reinforcing that constitutional tort liability cannot be defeated by traditional common law immunities.
Prakash Singh v. Union of India (2006)
In a landmark police-reform judgment, the Court directed states to establish Police Complaints Authorities at the state and district level to inquire into allegations of serious police misconduct, alongside directions on separating investigation from law-and-order functions and insulating the Director General of Police from arbitrary transfer. The literature treats compliance with Prakash Singh as a critical test case for institutional reform, and as discussed in Section 4.6, one that remains substantially unmet.
Paramvir Singh Saini v. Baljit Singh (2020)
The Court mandated the installation of CCTV cameras and recording equipment with night-vision capability in all police stations and in the offices of investigative agencies such as the CBI and NIA to create a contemporaneous visual record capable of deterring and evidencing custodial abuse.
Taken together, the literature characterizes this jurisprudence as remarkably comprehensive in doctrinal terms, extending from arrest procedure to medical safeguards to institutional oversight to technological monitoring. Yet, as elaborated in Section 4.6, scholars are near-unanimous that the persistence of custodial deaths despite this body of law reflects an implementation crisis rather than a doctrinal vacuum.
4.3 Institutional Mechanisms for Accountability
The National Human Rights Commission occupies a central place in the institutional literature. Under its guidelines, all custodial deaths, whether in police or judicial custody, must be reported to the Commission within twenty-four hours, and the NHRC may direct magisterial inquiry, order video-recorded post-mortem examinations, and recommend compensation or disciplinary action. However, commentators repeatedly highlight the non-binding character of NHRC recommendations as its central institutional weakness: recent data placed before Parliament indicates that of custodial cases disposed of by the Commission in a given year, only a small fraction resulted in any relief being granted, and compensation was recommended in only a modest proportion of registered custodial death cases over the period 2016 to 2022. The Police Complaints Authorities envisaged by Prakash Singh were intended to supply an independent, non-police-led complaints mechanism, but the literature documents inconsistent establishment across states, limited staffing, and weak enforcement powers, such that these bodies have not emerged as an effective counterweight to internal departmental inquiries, which critics describe as inherently susceptible to institutional bias in favor of accused officers.
4.4 Empirical Trends: Evidence from NCRB and NHRC Data
Empirical scholarship draws heavily on NCRB and NHRC statistics to demonstrate the scale of the problem. NCRB data shows that police-custody deaths averaged approximately 92 per year between 2000 and 2022, with a peak of 128 deaths in 2005. NHRC statistics, which capture a wider set of registered custodial death complaints (including judicial custody), recorded an average of over 1,700 cases annually between 2010–11 and 2021–22, with the Commission reporting 2,739 total custodial deaths, of which 155 were attributed specifically to police custody in 2024 alone. Parliamentary data tabled in the Lok Sabha in March 2026 shows that police-custody deaths ranged between approximately 140 and 176 annually over the preceding five years, with Bihar and Rajasthan emerging as regional hotspots in 2025–26, and with state-wise Lok Sabha data for 2018–19 to 2022–23 placing Maharashtra, West Bengal, Tamil Nadu, and Uttar Pradesh among the states with the highest cumulative figures.
The literature places particular emphasis on the accountability gap revealed by this data: of the cases registered against police personnel for custodial deaths, conviction rates are reported to remain below one percent, and starkly the same parliamentary disclosure noted that only a single case of disciplinary action against a police officer was recorded in connection with custodial deaths across the entire five-year period from 2021–22 to 2025–26. Gender-disaggregated analysis further reveals that women and transgender persons, while a small proportion of the total custodial population, are disproportionately represented among victims of custodial sexual violence and unnatural deaths, a dimension the literature identifies as requiring more targeted institutional response.
International assessments, including the Global Torture Index 2025, have classified India as a ‘high-risk’ country for systemic custodial torture, corroborating the domestic statistical picture.
4.5 Legislative Reform: The BNSS, 2023, and the New Criminal Law Framework
In August 2023, the Union government introduced three bills to replace India’s foundational criminal statutes: the Bharatiya Nyaya Sanhita (replacing the Indian Penal Code, 1860), the Bharatiya Nagarik Suraksha Sanhita (replacing the Code of Criminal Procedure, 1973), and the Bharatiya Sakshya Adhiniyam (replacing the Indian Evidence Act, 1872). These laws came into force on 1 July 2024. The literature identifies several provisions of direct relevance to custodial accountability: mandatory audio-video recording of search and seizure procedures to enhance evidentiary transparency; prescribed timelines for various stages of investigation and trial, intended to reduce prolonged and unsupervised periods of custodial detention; and provisions carrying forward the D.K. Basu safeguards on arrest memos and medical examination into statutory form.
Commentators are, however, divided in their assessment of the BNSS’s transformative potential. Supporters characterize it as a victim-centric modernization that embeds technological transparency into everyday policing. Critics counter that the BNSS leaves the core architecture of police powers, investigative structure, and departmental self-regulation largely intact, and that its safeguards, like their CrPC-era predecessors, are only as effective as the administrative will to implement them, particularly given the continued absence of an independent, non-police-led default mechanism for investigating custodial deaths.
4.6 Persistent Structural Gaps: Absence of Anti-Torture Legislation and Non-Ratification of UNCAT
A recurring theme across the literature is India’s continued absence of a standalone law criminalizing torture as a distinct offense. India signed the UN Convention Against Torture (UNCAT) in 1997 but has not ratified it, and a dedicated Prevention of Torture Bill, first introduced in 2010 to fulfill the preconditions for ratification, lapsed without enactment. Scholars argue that in the absence of a specific statute defining and penalizing torture, including its psychological and non-physical forms, custodial violence continues to be prosecuted, where it is prosecuted at all, under general provisions of the penal code relating to culpable homicide and hurt, which were not designed to capture the distinctive power dynamics, evidentiary difficulties, and institutional complicity characteristic of custodial abuse.
The Law Commission of India, in its 273rd Report, had itself recommended a standalone anti-torture law and ratification of UNCAT; The absence of legislative follow-through is repeatedly cited in the literature as emblematic of the gap between reform commitments and reform delivery.
Related structural critiques include the non-implementation of the Prakash Singh directions on police reform in most states, inconsistent compliance with the CCTV mandate in Paramvir Singh Saini due to budgetary and maintenance constraints, continued overcrowding in prisons recorded at a national average occupancy rate above 130 percent, which scholars link to a heightened risk of custodial death from inadequate medical care, and a colonial-era institutional culture that continues to prize confession-driven investigation over forensic method.
Several commentators frame the cumulative effect of these gaps as producing a system of what might be termed ‘impunity by design’: extensive doctrinal safeguards exist, but the absence of independent enforcement, binding oversight, and a distinct criminal offense of torture allow those safeguards to be routinely circumvented in practice.
4.7 Synthesis of the Literature
Read together, the literature converges on a consistent diagnosis: India’s difficulty is not primarily one of insufficient legal doctrine but of an enforcement and institutional-design deficit. The judiciary has, over three decades, constructed an increasingly detailed procedural and remedial framework; Parliament has, through the BNSS, undertaken the first wholesale revision of criminal procedure since independence; yet the empirical record shows little corresponding movement in the incidence of custodial deaths or in the rate at which responsible officials are held to account. This gap between doctrinal sophistication and practical outcome forms the central problem this paper’s conclusion seeks to address.
Conclusion
This paper has traced the constitutional, statutory, and jurisprudential architecture that governs custodial rights in India and has set that architecture against the empirical record of custodial deaths and institutional response.
The central finding is one of profound asymmetry: an unusually rich and progressively expanded body of Supreme Court doctrine from Nilabati Behera‘s strict liability standard, through D.K. Basu‘s procedural checklist, to Paramvir Singh Saini‘s technological mandate, coexists with a persistently high incidence of custodial death and a near-complete absence of disciplinary or criminal consequence for those responsible.
The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, represents a genuine, if incremental, legislative response, embedding several judicially mandated safeguards into statutory form and introducing new transparency requirements.
It does not, however, address the deeper structural conditions, police self-investigation, the non-binding character of NHRC recommendations, uneven implementation of the Prakash Singh reforms, and the absence of a standalone anti-torture offense that the literature identifies as the true drivers of custodial impunity.
Recommendations for Reform
On this basis, the paper offers the following recommendations for reform:
- Enact a standalone anti-torture law that defines torture comprehensively, including psychological and non-physical abuse, as a distinct criminal offense, and ratify the UN Convention Against Torture to align India’s domestic framework with its international commitments.
- Establish a genuinely independent investigative mechanism for custodial deaths, structurally separated from the police hierarchy, so that allegations against police personnel are not investigated by their own colleagues or departmental superiors.
- Ensure full, time-bound implementation of the Prakash Singh directions on Police Complaints Authorities in every state, with adequate staffing, investigative powers, and binding—rather than merely recommendatory—authority.
- Make NHRC and State Human Rights Commission recommendations on compensation and disciplinary action binding, or at minimum subject to a mandatory, time-bound, and reasoned response from the state government.
- Guarantee universal compliance with the CCTV mandate under Paramvir Singh Saini through ring-fenced budgetary allocation and independent, periodic audit of camera functionality across police stations and interrogation facilities.
- Invest in scientific and forensic investigative training for police personnel to reduce institutional reliance on confession-driven interrogation as the primary mode of criminal investigation.
Custodial Death As A Systemic Outcome
Ultimately, custodial death is not merely a failure of individual restraint by errant officers; it is a systemic outcome of institutional design choices—inherited, in significant part, from a colonial policing model—that have not yet been fully reconciled with India’s constitutional commitment to human dignity.
The path toward meaningful police accountability lies less in further doctrinal elaboration, of which India already has a considerable body, and more in the political and administrative will to implement existing safeguards, insulate oversight mechanisms from the institutions they are meant to oversee, and close the long-standing legislative gap represented by the absence of a dedicated anti-torture law.
Until these structural reforms are undertaken, the gap between India’s progressive custodial jurisprudence and the lived reality documented in NCRB and NHRC statistics is likely to persist.
References
- Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
- Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
- D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
- Sube Singh v. State of Haryana, (2006) 3 SCC 178.
- Prakash Singh v. Union of India, (2006) 8 SCC 1.
- Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184.
- Maneka Gandhi v. State of India, (1978) 1 SCC 248.
- Constitution of India, arts. 20, 21, 22.
- Protection of Human Rights Act, 1993.
- Code of Criminal Procedure, 1973 (repealed).
- Bharatiya Nagarik Suraksha Sanhita, 2023.
- Bharatiya Nyaya Sanhita, 2023.
- Bharatiya Sakshya Adhiniyam, 2023.
- Law Commission of India, 273rd Report on Implementation of United Nations Convention Against Torture through Legislation (2017).
- National Crime Records Bureau, Crime in India (various years).
- National Human Rights Commission, Annual and Monthly Statistics on Custodial Deaths (2024–2026).
- Ministry of Home Affairs, Lok Sabha Starred/Unstarred Question responses on custodial deaths (2025–2026).
- World Organisation Against Torture (OMCT), Global Torture Index 2025: India Factsheet.
