Introduction
Custodial torture remains one of the most heinous acts against humanity in any democracy. Despite having Article 21 in our Constitution, which guarantees the right to life, liberty, and to live with dignity, the continuing deaths in custody raise serious questions about the existing legal framework. Despite repeated condemnation of custodial torture by the judiciary, India still lacks a proper standalone anti-torture law. Though we have safeguards like the D.K. Basu guidelines, the present framework still lacks the ability to properly address this issue.
Gaps in the Existing Legal Framework
This gap becomes even more relevant in light of modern interrogation methods, where coercion is not limited to physical violence. It can take the form of sleep deprivation, humiliation, and threats, which inflict mental suffering without leaving any physical evidence. Indian law is more inclined towards recognizing physical injury than psychological abuse.
Recognition of Mental Torture by the Law Commission
The Law Commission of India, in its 273rd Report, recognized that torture is not merely “physical.” It can also occur in the form of mental torture through acts such as sleep deprivation and prolonged interrogation hours. Despite these observations and the proposed Anti-Torture Bill, 2017, India continues to rely on existing criminal law provisions and judicial precedents instead of enacting dedicated anti-torture legislation.
Key Issues Highlighted
- Article 21 guarantees the right to life, liberty, and dignity.
- Custodial deaths continue to raise serious concerns about accountability.
- India still does not have a standalone anti-torture law.
- The D.K. Basu guidelines provide safeguards but are not a complete solution.
- Modern interrogation techniques increasingly involve psychological coercion.
- Mental torture often leaves no visible physical evidence.
- The Law Commission’s 273rd Report acknowledged both physical and mental torture.
- The proposed Anti-Torture Bill, 2017, has not yet been enacted.
Quick Overview
| Aspect | Present Position |
|---|---|
| Constitutional Protection | Article 21 guarantees the right to life, liberty, and dignity. |
| Judicial Safeguards | D.K. Basu guidelines regulate arrest and detention procedures. |
| Standalone Anti-Torture Law | Not enacted in India. |
| Recognition of Mental Torture | Recognized by the Law Commission in its 273rd Report. |
| Legislative Status | The proposed anti-torture bill, 2017, has not become law. |
Judicial Recognition of Custodial Torture Under Article 21
The Supreme Court has identified custodial torture as a direct violation of constitutional dignity. In D.K. Bashu v. State of West Bengal, the court mentioned that custodial torture is directly a violation of human dignity. The judgment is also remarkable, as it laid down safeguards governing arrest and detention. Similarly, in Raghubir Singh v. State of Haryana, the Supreme Court warned the state about police torture, and the state cannot violate the rights easily when it has an obligation to protect them. In Sube Singh v. State of Haryana, the court acknowledged that police authorities, in order to extract confessions, often rely on “third-degree methods.”
Supreme Court Recognition of Custodial Torture
| Case | Judicial Recognition |
|---|---|
| D.K. Bashu v State of West Bengal | The court mentioned that custodial torture is directly a violation of human dignity and laid down safeguards governing arrest and detention. |
| Raghubir Singh v State of Haryana | The Supreme Court warned the state about police torture, and the state cannot violate the rights easily when it has an obligation to protect them. |
| Sube Singh v State of Haryana | The court acknowledged that police authorities, in order to extract confessions, often rely on “third-degree methods.” |
Indian courts have increasingly recognized psychological suffering as a form of torture. In Mehmood Nayyar Azam v. State of Chhattisgarh, the Supreme Court held that torture is not limited only to physical torture but also includes “mental and psychological harassment.” A similar stance was taken in the case of State of Arvinder Singh Bagga v. State of Uttar Pradesh. The identification of mental suffering under Article 21 was expanded in Shatrughan Chauhan v. Union of India, where the Supreme Court stated that prolonged delay in execution will amount to mental torture. This demonstrates that Indian constitutional jurisprudence has evolved from a narrow interpretation of torture, which only included physical violence.
Recognition of Psychological Torture Under Article 21
- Mehmood Nayyar Azam v. State of Chhattisgarh: The Supreme Court held that torture is not limited only to physical torture but also includes “mental and psychological harassment.”
- State of Arvinder Singh Bagga v. State of Uttar Pradesh: A similar stance was taken regarding psychological suffering.
- Shatrughan Chauhan v. Union of India: The Supreme Court stated that prolonged delay in execution will amount to mental torture.
The Broken Nature of Indian Criminal Law
Despite of judicial recognition, Indian Criminal Law continues to deal Custodial Violence through sections of Bhartiya Nyaya Sanhita which deals with hurt, Grievous hurt, assault, etc. These sections may punish physical torture, but they lack the conceptualization of torture as a distinct abuse of state power without custodial settings.
The most crucial thing is that Indian law does not specifically criminalize psychological torture in custody. While certain provisions indirectly recognize mental harm, there is no proper framework to address that problem. It is crucial because modern custodial violence often extends beyond visible physical infliction of injury. Psychological coercion barely leaves physical evidence, making prosecution under traditional law difficult. Simultaneously, criminal accountability continues to remain heavily dependent on proof of injury.
Key Gaps in Indian Criminal Law
- Indian Criminal Law continues to deal Custodial Violence through sections of Bhartiya Nyaya Sanhita which deals with hurt, Grievous hurt, assault, etc.
- These sections may punish physical torture, but they lack to conceptualize torture as a distinct abuse of state power without custodial settings.
- Indian law does not specifically criminalize psychological torture in custody.
- There is no proper framework to address mental harm despite certain provisions indirectly recognizing it.
- Modern custodial violence often extends beyond visible physical infliction of injury.
- Psychological coercion barely leaves physical evidence, making prosecution under traditional law difficult.
- Criminal accountability continues to remain heavily dependent on proof of injury.
Comparison: Judicial Recognition vs Criminal Law Framework
| Aspect | Judicial Position | Criminal Law Position |
|---|---|---|
| Custodial Torture | Recognized as a violation of constitutional dignity. | Addressed through provisions relating to hurt, Grievous hurt, assault, etc. |
| Psychological Torture | Recognized under Article 21 through judicial decisions. | No specific offense criminalizing psychological torture in custody. |
| Mental Harm | Accepted as a form of torture. | No proper statutory framework to address mental harm. |
| Evidence | Psychological suffering is acknowledged. | Criminal accountability remains heavily dependent on proof of injury. |
Psychological Torture and Invisible Forms of Custodial Abuse
A key shortcoming of the present framework is its inability to effectively address non-physical forms of torture. Investigating agency use methods like prolonged interrogation, threats, intimidation, humiliation, and sleep deprivation frequently operates as a tool of coercive interrogation without leaving visible marks upon the body.
Supreme Court Recognition of Psychological Torture
The Supreme Court in the Ramlila Maidan Incident case recognized that sleep deprivation amounts to both mental and physical torture. International courts have also upheld this.
International Judicial Approach to Psychological Torture
| Case | Key Observation |
|---|---|
| Ireland v United Kingdom | The European Court of Human Rights in this case examined various methods of interrogation like wall standing, hooding, sleep deprivation, and food deprivation. The court held that these practices are inhuman. |
| Soering v United Kingdom | Psychological suffering paired with prolonged death row detention was labeled as torture. |
| Cantoral–Benavides v Peru | The Inter-American Court expanded its view to include psychological and moral suffering. |
| Keenan v United Kingdom | Practices affecting mental integrity and human dignity may violate the prohibition against torture. |
| Kudla v Poland | Practices affecting mental integrity and human dignity may violate the prohibition against torture. |
Global Shift in Recognition of Psychological Coercion
These developments and identification by international courts demonstrate that there is a global shift in reviewing torture and identifying psychological coercion as a distinct form of custodial abuse.
- Recognition of psychological torture has expanded beyond physical violence.
- Mental suffering is increasingly treated as an independent form of custodial abuse.
- International courts acknowledge that practices affecting mental integrity and human dignity may amount to torture.
Evidentiary Difficulties and the Need to Shift Burden of Proof
One of the key challenges lies in securing evidence of custodial violence. As evidence remains largely under police, there are very high chances of manipulation of evidence.
Supreme Court on Evidentiary Challenges
The Supreme Court in Madhya Pradesh v. Shyam Sunder Trivedi identified this issue and mentioned that it is very difficult to secure evidence in such cases. The same problem was identified in State of Uttar Pradesh v. Ram Sagar Yadav and stated that police officers often become the only available witnesses to custodial abuse.
| Case | Principle Recognized |
|---|---|
| Madhya Pradesh v Shyam Sunder Trivedi | It is very difficult to secure evidence in custodial violence cases. |
| State of Uttar Pradesh v Ram Sagar Yadav | Police officers often become only available witnesses to custodial abuse. |
Law Commission Recommendation on Shifting Burden of Proof
By looking at this issue, the 273rd Law Commission report gave a recommendation of shifting the onus of evidentiary burden in custodial torture cases. The report also mentioned that when injuries are inflicted in police custody, courts may presume the onus on government officials unless situations describe other things.
International Approach to Burden of Proof
International jurisprudence has adopted a similar approach, which is evident from the case of Yavuz v. Turkey; the European Court held that when a detainee enters into custody in good health and sustains injury, then the onus shifts to the state to describe injuries inflicted on the victim.
| Authority | Recommendation / Principle |
|---|---|
| 273rd Law Commission Report | Recommended shifting onus of evidentiary burden in custodial torture cases and presuming responsibility where injuries occur in police custody unless explained otherwise. |
| Yavuz v. Turkey | When a detainee enters custody in good health and later sustains injuries, the burden shifts to the state to explain the injuries. |
Key Takeaways
- Custodial violence cases often suffer from lack of independent evidence.
- Evidence generally remains under police control, increasing the possibility of manipulation.
- The Supreme Court has acknowledged the practical difficulty of proving custodial abuse.
- The 273rd Law Commission Report recommends shifting the evidentiary burden in appropriate custodial torture cases.
- International jurisprudence supports placing the burden on the state where injuries occur during police custody.
The Failure of the Prevention of Torture Bill, 2017
The loopholes of the present framework were recognized in the 273rd Report, which was published under the chairmanship of Justice B.S. Chauhan. Eventually, they recommended a standalone anti-torture law and proposed the Prevention of Torture Bill, 2017, which covered all the loopholes, including the mental torture aspect as well.
Despite these recommendations, the bill failed to pass, and the reason given was that the present legal framework is sufficient to deal with it, which we can see clearly fails to address psychological torture.
The failure of this bill shows enormous institutional neglect towards imposing a stronger accountability mechanism to punish the accused so that no such kinds of acts that violate Article 21 of the Constitution happen again.
Key Observations from the Prevention of Torture Bill, 2017
| Aspect | Position |
|---|---|
| Law Commission Report | 273rd Report under Justice B.S. Chauhan |
| Main Recommendation | Standalone anti-torture legislation |
| Coverage | Included both physical and mental torture |
| Outcome | Bill was not passed |
| Reason Given | The existing legal framework considered sufficient |
| Continuing Concern | Psychological torture remains inadequately addressed |
India’s Comparison with the Global Trends
India’s legal position is not compatible with both regional and global developments. Many Asian countries have enacted anti-torture legislation that recognizes both mental and physical torture. Like the Philippines enacted the Anti-Torture Act, 2009, which clearly stated that sleep deprivation, blindfolding, and long interrogating hours are forms of torture.
Thailand also enacted the Prevention and Suppression of Torture and Enforced Disappearance Act, 2022. Standalone anti-torture law is not limited to only developed countries; developing countries like Sri Lanka and Bangladesh also have standalone anti-torture legislation.
International Legal Framework
The United Kingdom punishes torture under Section 134 of the Criminal Justice Act, 1988, while the United States enacted specific anti-torture legislation following ratification of the United Nations Convention Against Torture.
Prohibition against torture in international law is identified as a jus cogens norm. The United Nations Convention Against Torture recognizes mental suffering as a way of torture and places the onus on the states to criminalize torture with the help of domestic legislation.
Current Position of India
India still relies mainly on constitutional interpretation and fragmented provisions of criminal law and case precedent. The absence of a proper standalone anti-torture law leaves room for torture by other means without criminal accountability.
Comparison Between India and Global Approaches
| Country/Region | Legal Position |
|---|---|
| India | Relies on constitutional interpretation and fragmented criminal law provisions |
| Philippines | Anti-Torture Act, 2009, recognizes physical and psychological torture |
| Thailand | Prevention and Suppression of Torture and Enforced Disappearance Act, 2022 |
| Sri Lanka | Standalone anti-torture legislation |
| Bangladesh | Standalone anti-torture legislation |
| United Kingdom | Section 134 of the Criminal Justice Act, 1988, criminalizes torture |
| United States | Specific anti-torture legislation after ratifying the United Nations Convention Against Torture |
Major Concerns in the Present Framework
- Absence of a standalone anti-torture law.
- Psychological torture is not expressly criminalized.
- Heavy reliance on constitutional interpretation.
- Fragmented criminal law provisions.
- Limited criminal accountability for custodial psychological abuse.
Conclusion
My core argument, which I want to convey with the help of this article, is that the issue is no longer whether psychological suffering constitutes constitutional harm. Indian courts have identified that humiliation, intimidation, and mental suffering violate Article 21. The 273rd Law Commission Report mentioned that torture has two arms: one can be physical and the other can be psychological, for which it recommended standalone legislation, the Anti-Torture Bill of 2017.
The central problem is whether the Indian criminal law is willing to identify custodial psychological torture as a distinct punishable offense. In custodial violence, officials mostly use non-physical forms of torture, as it leaves no evidence, and the limitations of India’s present framework become more apparent.
Judicial safeguards alone are incapable of issuing this problem. Unless Indian legislation explicitly recognizes psychological torture as a distinct way of custodial abuse and initiates criminal action against it, till then the most inhuman behavior to mankind will keep on going.
Table of Cases
| Sl. No. | Case Name | Citation |
|---|---|---|
| 1 | Arvinder Singh Bagga v State of Uttar Pradesh | (1995) 6 SCC 565. |
| 2 | Cantoral-Benavides v Peru | Inter-American Court of Human Rights, Judgment of 18 August 2000. |
| 3 | D.K. Basu v State of West Bengal | (1997) 1 SCC 416. |
| 4 | Dr Rini Johar v State of Madhya Pradesh | (2016) 11 SCC 703. |
| 5 | Ireland v United Kingdom | (1978) 2 EHRR 25. |
| 6 | Keenan v United Kingdom | (2001) 33 EHRR 38. |
| 7 | Kudla v Poland | (2000) 35 EHRR 198. |
| 8 | Mehmood Nayyar Azam v State of Chhattisgarh | (2012) 8 SCC 1. |
| 9 | Raghubir Singh v State of Haryana | (1980) 3 SCC 70. |
| 10 | Ram Lakhan Singh v State of Uttar Pradesh | (2015) 16 SCC 715. |
| 11 | Shatrughan Chauhan v Union of India | (2014) 3 SCC 1. |
| 12 | Soering v United Kingdom | (1989) 11 EHRR 439. |
| 13 | State of Madhya Pradesh v Shyam Sunder Trivedi | (1995) 4 SCC 262. |
| 14 | State of Uttar Pradesh v Ram Sagar Yadav | (1985) 1 SCC 552. |
| 15 | Sube Singh v State of Haryana | (2006) 3 SCC 178. |
| 16 | In Re: Ramlila Maidan Incident v Home Secretary, Union of India | (2012) 5 SCC 1. |
| 17 | Yavuz v Turkey | App. No. 67137/01 (European Court of Human Rights, 10 January 2006). |
Bibliography
Statutes and Legislation
- Bharatiya Nyaya Sanhita, 2023.
- Constitution of India, 1950.
- Criminal Justice Act 1988 (United Kingdom).
- Convention Against Torture Act 1994 (Sri Lanka).
- Torture and Custodial Death (Prevention) Act 2013 (Bangladesh).
- Torture and Custodial Death (Prevention and Punishment) Act 2022 (Pakistan).
- Anti-Torture Act 2009 (Philippines).
- Prevention and Suppression of Torture and Enforced Disappearance Act 2022 (Thailand).
- 18 U.S.C. 2340–2340A (United States Torture Act).
International Instruments
- Universal Declaration of Human Rights, 1948.
- International Covenant on Civil and Political Rights, 1966.
- United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1984.
Reports
- Law Commission of India, Report No. 273, Implementation of ‘United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation (2017).
- National Human Rights Commission, Annual Reports.
- National Campaign Against Torture (NCAT).
- India Data Map, ‘State-wise Custodial Deaths in India in 2025’ (India Data Map, 8 October 2025), https://indiadatamap.com/2025/10/08/state-wise-custodial-deaths-in-india-in-2025/ accessed 20 June 2026.
- People’s Watch, Reports on Custodial Violence and Anti-Torture Law Reform.
- People’s Watch, Ambasamudram Custodial Torture by ASP Balveer Singh IPS and His Team (People’s Watch, 24 February 2024).
Journal Articles
- Hari Abishek P and Shilpa Mehrotra, ‘A Critical Analysis of Custodial Violence in India, with a Special Emphasis on Human Rights’ (2025) 5(10) Indian Journal of Legal Review 677–683.
Newspaper Articles
- ‘Enact Separate Comprehensive Law Criminalizing Custodial Torture,’ The Times of India (Madurai, 11 July 2025).
- ‘Enact Law Against Custodial Torture on Anti-Sterlite Anniversary: NGO to CM,’ The Times of India (Madurai, 17 May 2025).
Online Sources
- Law Commission of India Official Website.
- United Nations Committee Against Torture Materials.
- Supreme Court of India Official Website.
- National Human Rights Commission Website.
- National Campaign Against Torture Website.
- People’s Watch Website.
