A country where SHINGHAM STYLE of police is celebrated as justice seems less worried about custodial violence and deaths. The 2019 incident of Hyderabad city where four persons were shot died in an alleged encounter by the cops. The police forward the story of their involvement in rape and murder of a young veterinarian. Surprisingly the people celebrated the encounter and showered the police with flowers but in the inquiry held by the commission it transpired that the encounter was pre planned and there was no conclusive evidence to establish the fact that the deceased persons were the actually one who committed the rape and murder of the young veterinarian. Likewise, the fall of Icarus, the incident remained unnoticed as no resentment was noticed in the masses. During the period of lock down, India came across, the man eater in KHAKI with the news of the deaths of Jayaraj and Bennix unfortunate father and son in Sathankulam, Tamil Nadu. The unfortunate incident sent shockwaves throughout India. The dark reality of the law enforcement agency of the state; which came in existence to protect the civil rights of the citizens and paid out of the state exchequers; wherein the hard-earned money collected from tax payers is pooled; was exposed again. Such cases brutal deaths shook’s the very foundation of the welfare state, the existence of which is traced back in the principle of contract of social security.
The issues such as torture and deaths in police custody are beyond boundaries. When the issue of tragic death of Jayaraj and Bennix highlighted the police brutality in India, at the same time, the world watched the aftermath of George Floyd’s death in the United States. But the echoes of custodial violence remained unheated in both the nations.
The history of shield evolved from judicial activism against custodial violence in India
Though in the year of 1979 India ratified the International Covenant on Civil and Political Rights 1966, but the Government of India made a specific reservation of not to recognize right to compensation for victims of unlawful arrest or detention and only became a party to the covenant, subject to this reservation. There is no express provision even in the Constitution for grant of compensation but this right evolved in India through judicial activism which sternly took the unconstitutional deprivation of personal liberty or life with a broad interpretation of Article 21 of the Constitution.
There is well-versed history of judicial activism recognising the right of compensation to victims of torture in police custody. The apex court in D.K.Basu v. State of West Bengal, (1997) 1 SCC 416 noted that the reservation of the Government of India while ratifying International Covenant on Civil and Political Rights, 1966, has lost its relevance in view of the law laid down by the Court of law in several cases; wherein compensation has been awarded for the infringement of a fundamental right of a citizen. The courts of law in India continuously recognised this right of the citizens and illustrated that custodial death is a clear violation of the prisoner's rights under Article 21 of the Constitution.
From the case of DK Bassu in the year 1997 to the present-day the Supreme Court has come across a long path as protector of human rights with the direction to the state to evolve a full proof mechanism to stop custodial torture and when the direction for installation CCTV cameras in all the police station was not carried out properly, the apex court raised its concern in the case Lack of Functional CCT Vs In Police Stations, (SC) : Law Finder Doc Id # 2784475.
Apart from apex court almost every High Court in the country has, at one time or another, also granted compensation for the unnatural death of a person in custody, irrespective of the facts, whether an undertrial or a convict. The courts come heavily on the state functionaries in cases wherein the detenue was subjected to torture either directly by the police man or by the private goons in the police custody. In Nina Rajan Pillai & Ors. v. Union of India, 180 (2011) DLT 104 Delhi High court even had gone to the extent to compensate the kin of a victim, whose death was the result of poor medical facilities but notably the measures to prevent the incidents of custodial deaths and torture by imposing stern punishment upon the wrong doer, remained a mirage due to the lack of a legal framework in shape of a statute.
All over the country such cases are reality whether they are documented and undocumented but in despite of judicial activism and stern approach, there seems to be no die down in custodial deaths and torture. No doubt the steps are being taken in some form or the other by the Central Government and State Governments to improve the conditions and these steps are meant to give an impression that there is nothing to be seriously worried about but the ground reality dispels that impression. It is high time for the State to grips with reality as it exists. The evil of custodial deaths and torture was required to be budded in the nip but unfortunately either due to lack of political will or vigilant citizen mass movement, the dream for a legal shield against custodial deaths and violence never come true.
The unkept promise of Anti-Torture Statute
The vacuum of legal protection and remedies to the victims of custodial torture or deaths could not be filled for years and after a long wait, the Prevention of Torture Bill, 2010 was sent to a Select Committee of the Rajya Sabha, which recommended several changes but the bill lapsed when the 15th Lok Sabha dissolved in 2014 as it never returned to the floor for a final vote.
The unkept promise of anti-torture bill came in debate again only when the Law Commission of India in its 273rd Report, recommended that India should ratify the convention. The Law Commission of India also presented the draft of "Prevention of Torture Bill, 2017," which proposed life imprisonment for custodial torture leading to capital punishment but the situation didn’t change and the cells remained silent for the sin they have had witnessed.
In the meantime, India replaced the British-era IPC with the Bharatiya Nyaya Sanhita (BNS) in 2023, with a great uproar that the newly introduced criminal laws are Justice oriented and not punitive but unfortunately the blunder to repeal IPC and notification of BNS was nothing more than to cover the old wine in new bottles or to say re shuffle of sections of old code IPC. The said movement of Indianization of penal laws was celebrated but the definition of "torture" as envisioned by international law didn’t get space in the leaves of statute books.
Though we have started the article with remorse that the pre-planned encounters are celebrated by showering the flowers on the so called SHINGHAM style police cops but fortunately the intellectual gratia of this country never give up and continued to work to upkeep the unkept promise. The introduction of private member bill in February 2025 "Prevention of Custodial Torture Bill" is one of the illustrations that signifies the unrest of intellectual gratia for the legal shield against custodial torture and violence but the history of Indian parliament, speaks loud about the fate of such bills as they rarely become law without government backing.
Though the Indian government argues in international forums like the UN's Universal Periodic frequently Review that existing constitutional protections specially Article 21 and Supreme Court guidelines in cases such as D.K. Basu are sufficient but the government of India has no role to play in such guidelines of apex court. The argument of government that there exists sufficient mechanism to address the issue of custodial deaths and torture is a lame excuse to unkept the promise of anti-torture law.
The Proposed Mechanism of Anti Torture Bill at a Glance:
The laws whenever enacted, they are enacted with a purpose and the purpose of Anti Torture Bills must be to curb the evil of custodial deaths and torture in the bud. The first purpose of anti-torture law must be to create a specific legal categorization for torture in police custody. Such sins or crimes often committed by public servants having the shield of law such as protection from prosecution. The proposed act required to includes any act by a public servant and someone acting with their consent in the preview of the act. The 2017 draft bill explicitly includes mental pain or suffering and the incidents of intentionally causes grievous hurt or danger to life, limb, or health as crime.
The torture by police to extort a confession or information is a gospel truth in India and hence an act committed on grounds of discrimination i.e. such torture along with torture on account of religion, race, caste, language etc is required to be defined as torture.
These proposed bills propose Sentence from 3 years to Death Penalty/Life Imprisonment which varies and required to be determined as per the gravity of offence.
The criminal law recognises the basic principle of presumption of innocence until guilt is proved but the said presumption was firstly reversed in case of dowry death perhaps with the motive and intention that it was almost impossible for the parents or relative of victim of dowry death to prove that the death was caused by the in laws as the man in locality seldom goes against the neighbours and the issue of custodial deaths and torture in lockups is more execrable as it is impossible to search a witness within the dark area of police lock ups and jails and hence the typical concept of burden of proof is required to be relooked so the 2017 draft suggests that if a person is injured in custody, the court will presume the police caused it and then it becomes the officer's responsibility to prove that they did not commit the torture.
The State is required to protect victims, complainants, and witnesses from any intimidation or ill-treatment after the complaint is filed and 2017 Bill even mandates that courts should grant compensation by considering the victim’s background and the medical/rehabilitation expenses required.
The discussions were started with an over view how the state came in existence and hence the immunity to the state is the most crucial issue required to be considered. The bills clarify that "Sovereign Immunity" cannot be used as a defence. If a public servant commits torture, they are personally liable, and the State is responsible for the victim's compensation.
Recommendations of Law Commission of India on Anti Torture Law
The fate of the reports of the commission are known to all but even after that considering the serious nature of the issue the report No. 273 of Law Commission of India titled as "Implementation of 'United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment' through Legislation," submitted in October 2017 is required to be considered and looked into as this report was a direct response to the Supreme Court's push for a legal framework to prevent custodial violence.
The Commission recommended that India immediately ratify the UN Convention Against Torture (UNCAT). It noted that India's failure to ratify since signing in 1997 was causing significant legal hurdles, particularly in extradition cases, where foreign courts often refuse to send suspects back to India due to the lack of an anti-torture law.
The Commission criticized the existing provisions as insufficient and perhaps the most "salient" feature of the proposed amendment was to the Indian Evidence Act with a recommendation to reverse the burden of proof and to consider If a person in police custody is found with injuries, the court will presume the police caused them. The burden then shifts to the police authorities to prove they did not inflict the injury. The report explicitly recommended to avoid and curb the principle of "Sovereign Immunity" and further gone to the extent that high-ranking officials can be held liable if they knew or should have known that their subordinates were committing torture and failed to stop it.
Assessing the significance of Anti torture law in 2026
Status of anti-torture legislation in India remains a mirage as it never got space in the statue books as legally enforceable law and as on April 2026 India has not ratified the UN Convention Against Torture.
The argument of the government that the notification and implementation of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) sufficient protection have been introduced but these codes still lack a specific and comprehensive panacea for the silence in the cells. The significant blow to the "silent shield" often used to protect officers emerged in the BNSS. Now if the government fails to decide on a request to prosecute a public official within 120 days, the sanction is deemed granted.
The judgment of a Madurai court that has sentenced nine police officials to death for the 2020 unfortunate custodial killings of Jayaraj and Bennix, father and son during lock down period, is no doubt is a significant move on the issue. This incident of custodial death has shaken the very foundation of the fundamental human rights enshrined in the supreme law i.e. constitution of India and the Madurai court classified custodial torture as a "betrayal by those meant to uphold the law" and placed it in the "rarest of rare" category. The judiciary has increasingly come forward as a protagonist of human rights and by awarding the highest possible penalties succeeded to deterrent the man eaters in KHAKI but still a gap is required to be filled by the statute in the shape of a full-fledged law.
The writer D. V. Dhindsa is an eminent lawyer at Punjab and Haryana High Court Chandigarh, political thinker and farmer activist.
