Over the past three decades, the Supreme Court of India (SCI) has sought to penetrate the closed custodial spaces to restrain coercive police power and secure the procedural fairness for accused persons. The constitutional struggle against the custodial torture reflects a long judicial effort starting from D.K. Basu v. State of West Bengal (1996) where the SCI acknowledged that such abuse of power by the public officials is a deliberate assault on the human dignity and formulated eleven binding procedural safeguards [para 35]. Despite these efforts, the incidents of custodial deaths were recurring. This prompted the judiciary, in Shafhi Mohammad v. State of Himachal Pradesh (2018), to compel the adoption of videography and CCTV monitoring as an evidentiary safeguard to enhance the accountability in the custodial environment [paras 1-18 & 31].

Finally, doctrinal developments culminated in the judgment of Paramvir Singh Saini v. Baljit Singh (2020) where the SCI has established the comprehensive framework for surveillance-based oversight of police stations [paras 8-22]. The scope of the framework was deliberately expansive, which mandates the installation of the CCTV cameras on the entry and exit spaces including the spaces where the detainees might be present. The court had also prescribed the strict specifications that cameras must possess the ability to record audio and video (with night-vision capabilities) and supported with an uninterrupted power supply and stable internet. The major component of the directive was to preserve the recorded footage for at least one year and preferably for eighteen months [para 17].

It has been almost four years since the Saini judgment yet the direction of the court compliance remained sporadic. The empirical reality reflects a structural deficit in compliance with judicial safeguards to just nominal protection rather an operational constrains. As per the data from the National Campaign Against Torture, 60% of custodial death victims are from the marginalised groups, including Dalits, Adivasis and Minorities.

To curb the crisis of this custodial violence, rigorous judicial oversight has been adopted by the courts. The High Court of Allahabad directed the Chief Judicial Magistrates (CJMs) across the state to conduct surprise inspections at random of the police stations to check the functionality of their CCTV systems. The SCI in case of Re Lack of Functional CCTVs in Police Stations v. SMW (2026) took a suo moto case (case on its own initiative) based on a newspaper report highlighting the death of eleven people in police custody across just seven-eight months. The SCI has questioned the lack of functional CCTVs in the police stations while directing the authorities that mere installation of cameras is not sufficient; they must be in proper working condition.

The statical figures shows a persistent surge in custodial death cases: 2023 had reported 2,400 cases increasing to 2,739 cases in 2024. As per the latest report by National Human Right Commission of India, 2,338 cases of custodial deaths were reported in 2025 out of which 165 accused persons lost their life in police custody. The democratic governance in India has faced significant implications due to the down-grading of  the National Human Rights Commission of India (NHRC) to ‘B’ status by the Global Alliance of National Human Rights Institutions.

Since 1997, India is a signatory to the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) but has not yet ratified the same. Articles 2 and 4 of UNCAT set the strict global standards for absolute prohibition and mandatory criminalisation of torture respectively. Considering the above, India must ratify the UNCAT urgently and formulate effective legislation considering the Saini judgment’sguidelines on surveillance of custodial spaces to secure the rights of the accused and make rule of law in India a lived reality.  

The Annual Report on Torture 2019 of National Campaign against Torture responds to the question in the negative. According to the Report, on average there are five custodial deaths per day in India (including police and judicial custody) with majority of deaths in police custody being caused due to torture. Victims are primarily subjected to torture to either gather information during investigation, to extract confessions, and sometimes for bribes. The World Organisation Against Torture, Geneva, in the Report of the Office of the United Nations High Commissioner for Human Rights (2022) highlights the regularity of use of such violent methods as a strategy by LEA. It can be averred that that clearly, such glaring numbers and reports of the severity of violent instances hint at the existence of an abnormality in the system.

The issue lies in the culture of functioning of the LEA and the internalised acceptance of violence as a routine affair by the society at large. It may appear as a reckless thought, but both stem from the utilitarian consequentialist philosophy of ‘greatest amount of good for the greatest number.’ In other words, maintenance of law and order and delivery of justice is of prime importance irrespective of the manner in which it is achieved. This is the reason why movies which celebrate a cop beating up the bad guys get the loudest whistles in the theatres. Going a step deeper, this need to eliminate deviant behaviour can be associated with primal human survival instincts. The power structures (both political and societal) are a reflection of raw survival mechanisms. The striking imbalance of power between the police and the public ensures the perpetuation of control through fear and vice versa (M Foucault, Discipline & Punish: the birth of the Prison, Penguin Random House, 2019). On this intersection of power, control, and fear, the imperialists previously and the democracies currently continue to thrive. Lastly, it would be unfair to turn a blind eye to the overburdened LEA. According to the Government data in 2022, the police-public ratio in India stood at 192.23 per lakh of the population. This workload augmented by the pressure from superiors, the public, and poor investigation infrastructure enhances the frustration of the officials, consequently causing an outburst of aggression manifesting in the form of torture. Sometimes, it is not even important to solve the crime as long as it appears so. For instance, members of Kuravar community (a sub-caste of dalit community) are often implicated in false cases (which eventually result in acquittals) by extracting forced confessions through custodial torture.

Somewhere in the midst of the interplay of these factors, the LEA and the society become immune to the ‘everydayness’ of custodial violence. Additionally, lack of adequate statutory safeguards impliedly legitimizes the act of torture. India has signed the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment in 1984 (Torture Convention) in 1997, but it has not yet ratified it through the enactment of a domestic law. Moreover, the criminal procedural law of India vests responsibility on the judiciary, particularly the Magistracy, to keep a check on instances of custodial torture. But these are exercised in a mechanical positivist manner. Thus, making torture invisible and natural to the system. Severity of such violence becomes a point of concern in selected cases, for instance, when it results in death, or when the violence is such so as to shock humanity, or when the accused is from the extremely poor echelons of the society. However, a slap does not raise eyebrows. It is tough, nay, impossible, for the society or the police to accept a ‘slap’ as a form of torture.

Although the Government of India has declared its commitment to ratify the Torture Convention, it is of the opinion that the existing criminal laws of the country ensure adequate protection against torture. The stand of the Government of treating torture at par with other crimes under the penal code reflects its ignorance about the special nature of the offence of torture. In torture there is an inherent imbalance of power. The perpetrator enjoys a position of power and exerts it on the victim. When the public official tortures the victim then there is breach of the ‘duty of care’, as the officials are responsible to protect those under their custody. Such breach therefore warrants a special law that defines the term ‘custodial torture’ encompassing ‘severity’, ‘purpose’ and ‘powerlessness’ in line with the definition of torture contained in Article 1 of the Torture Convention.

These grave human rights violations meet the fundamental criteria for a crime against humanity. The activities of the former government satisfy the requirement of “widespread” and “systematic” as introduced by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The term “widespread” refers to the large-scale nature of an attack, while “systematic” refers to the organised nature of the acts of violence, as explained in the Kunarac Trial Chamber case [428-9]. The “attack”, under customary international law, could precede, outlast, or continue during the armed conflict, it need not be a part of it (Kunarac Appeals Chamber case, [86]). The term “attack” in the context of crimes against humanity is not limited to the use of armed force; rather, it encompasses the perpetration against the civilian population of a series of acts of violence or of a kind of mistreatment. In fact, a single killing by a perpetrator can qualify as the crime of “extermination” if it is proven that it formed part of a context where a large section of civilians is subject to widespread killing. The “systematic” nature of the attack is a qualitative assessment, referring to the organised nature of committed acts as per the notion of crime against humanity.

The former Prime Minister, along with other political leaders and security officials, was fully aware of and coordinated and directed all human rights violations to suppress the protests. In fact, the Prime Minister received direct information about the security forces’ excessive use of force. Despite having direct personal knowledge of these violations through site visits during protests, the Prime Minister refrained from taking any action. She allowed the law enforcement authorities to continue to use a similar pattern of violence—that is, the non-accidental repetition of similar criminal conduct (Kordić & Čerkez Appeals Chamber case, [94]) on a regular basis between July 1 and August 5 in a coordinated and systematic way to attack protesters. None of the acts were carried out as ‘isolated or random‘ acts. Rather, her direct authorisation to the security forces satisfied her part in the attack. With respect to the mens rea, she acted with knowledge of the overarching context of the attack and with the knowledge that her acts/omissions contributed to the widespread and systematic attack against the civilian population.

The law enforcement agencies’ extensive and systematic attack resulted in the deaths of approximately 1400 individuals in 45 days, 12–13% of whom were children. This left thousands in a life-altering condition and more than 11,700 individuals arrested and detained. According to the OHCHR report, military rifles accounted for 66% of the fatalities, followed by shotguns with projectiles at 12%, pistols at 2%, and other firearms at 20%.

The former prime minister’s direct involvement in the plan with security forces, where she specifically instructed them to ‘arrest the ringleader of the protests, the troublemakers, kill them, and hide their bodies,’ may hold her liable for individual criminal responsibility as per section 25(3)(b) of the Rome Statute. The term ‘orders’ in the Statute means she is not a mere accomplice, but rather a perpetrator by means. As a head of state, she is criminally responsible for the indiscriminate use of lethal force by security forces on protesters in numerous locations across Bangladesh. The liability for her actions, as per international criminal law, emerged in a collective context and systematic manner. The totality of the evidence therefore indicates the organised nature of the acts of violence and the improbability of their random occurrence (Kordić & Čerkez, [94]) which constitutes a crime against humanity.

The government’s response to the reported incidents of custodial violence has been inadequate. No independent inquiry was undertaken, and the concerned officers are yet to face legal action under any court of law for the deaths. Instead, the response primarily involved investigating the matter without revealing many details to the public, transferring the officers, shutting off the internet temporarily in the area, and offering monetary compensation to the victims. This highlights the lacunae in the Indian justice system regarding custodial violence by the military and the urgent need to make substantial legal reforms.

The Existing Gaps in the Justice System

Currently, India does not have sufficient statutory protections against custodial violence. This is clear from the justice system’s persistent failure to hold the relevant authorities accountable and the shockingly low number of convictions despite rising custodial violence. The current statutory provisions largely focus on police or judicial custody and ignore the custodial violence committed in military custody. Section 4(a) of the Armed Forces Special Protection Act 1958, for example, offers immunity to army officers who perpetrate violence under the veil of discharging an official duty, such as shooting based on ‘suspicion’. In addition, investigations are often carried out by the same authority (i.e. the army) that has been accused of custodial violence, resulting in a biased and non-transparent process. For example, in the recent instance of custodial violence in Kashmir, the State has released very few details concerning the outcomes of the legal and medical reports and it is the army that has ordered an investigation.

Is Ratifying UNCAT an Answer to Military Custodial Violence? 

It is critical that India materialises its commitment to the prevention of torture by ratifying the United Nations Convention against Torture, and Other Cruel, Inhuman and Degrading Treatment (UNCAT). The ratification and adoption of this Convention into domestic law would be an important first step towards solving the existing problems. Firstly, under Article 1 of the Convention, the law applies to all ‘public officials’ or anyone carrying out an official duty. This would allow for equal scrutiny of the military’s actions. Secondly, under Article 2(2) of the Convention, the military or any state authority would be unable to invoke political or social disturbances as a justification for not respecting the rights of the accused. This would prevent the military from using violence against civilians taken into custody in conflict-prone areas such as Jammu and Kashmir and the Northeast. Furthermore, the adoption of the Convention would make even an ‘attempt of torture’ (under Article 4 of the Convention) unlawful and provide greater protection to civilians in the areas where the military exercises greater control.

When State authorities perpetuate violence and go unpunished, it further alienates the State from its people.  Especially after the abrogation of Article 370, which went against the demands of the people, the government has repeatedly overstepped its powers for ‘maintaining public order’. These incidents of custodial violence reveal how imperative it is for India to take affirmative steps to minimise the State-perpetrated terror and violence in Jammu and Kashmir. The ratification and adoption of UNCAT would certainly be a good place to start.