In February 2025, the High Court of Justice in London, King’s Bench Division, rejected the extradition of Sanjay Bhandari to India on the ground of custodial torture. Bhandari is an Indian national facing money laundering and tax evasion charges in India. The Court was of the opinion that custodial torture was ‘commonplace and endemic’ in India and thus, Bhandari’s extradition would be a breach of his human rights. This article therefore asks: is the decision of the Court of Appeal based on conjectures, portraying a wrongful picture of Indian law enforcement agencies (LEA)?

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.