Author: Divyanshi Hazari Yadav, Indore Institute Of Law
To the Point
Custodial death, or the death of a person in police or judicial custody, is one of the most enduring human rights failures in India. Conviction of police personnel involved is almost unheard of despite constitutional safeguards under Article 21, binding Supreme Court guidelines and a statutory mandate for magisterial inquiry into every such death. Data from the National Crime Records Bureau for the last two decades shows a conviction rate of about 1 per cent. This article examines the scale of the problem, the legal framework intended to prevent it, why the framework fails in practice, and what reform would entail.
Use of Legal Jargon
Some terms are used repeatedly in this discussion and are clarified here for accuracy:
Custodial Death: death of a person while in police custody (immediately after arrest, before being produced before a magistrate) or judicial custody (after being remanded by a court, usually to prison).
Article 21: the constitutional guaranty that “no person shall be deprived of his life or personal liberty except according to procedure established by law”, interpreted by courts expansively to include the right to live with dignity, even in custody.
Magisterial inquiry: a mandatory judicial inquiry now codified under Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023, that has to be conducted whenever a person dies in custody.
Compensatory jurisprudence:The doctrine evolved by the Supreme Court that the State can be held liable to pay monetary compensation for violation of fundamental rights, irrespective of any criminal prosecution.
Sovereign immunity: A common law defense that the State cannot be sued for actions taken in the exercise of sovereign functions. Indian courts have significantly narrowed this defense in cases of custodial death.
Chargesheet: the final report filed by police under the Code of Criminal Procedure (now BNSS) after investigation, formally accusing a person of an offense.
The Proof
The statistical record is clear. Between 2016-17 and 2021-22, India had 11,419 custodial deaths, or more than five deaths every day. Looking at a longer window of twenty years, NCRB data shows 1,888 reported custodial deaths and only 26 policemen were ultimately convicted – a conviction rate of just 1.4 percent.
The latest data available does not paint a pretty picture either. In 2021-22, the NHRC registered 2,150 deaths in judicial custody and 155 in police custody, but initiated disciplinary action in only 21 cases or 0.23 percent. Regarding the accountability pipeline specifically, there were 345 judicial inquiries between 2017 and 2022, but no convictions, only 123 arrests and 79 chargesheets.
A separate twenty-five-year analysis of NCRB data found that of all custodial death cases nationally, only three ever ended in conviction, and all three came in a single year, 2017; between 2018 and 2023, the conviction count was zero for six consecutive years. One further trend is notable: deaths occurring specifically during police remand — custody explicitly sanctioned by a court — rose to 45 percent of all custodial deaths in 2022, the highest share since 2008, before easing to 39 percent in 2023. Because remand custody is judicially authorised, these deaths are harder to attribute to procedural ambiguity, making the near-total absence of prosecution even more troubling.
Against this backdrop, the Jharkhand High Court’s recent order for fresh judicial probes into 262 pending custodial death cases is significant — not as an isolated correction, but as recognition that the existing accountability machinery, left unsupervised, simply does not function.
Abstract
This article examines the persistent gap between India’s constitutional and statutory safeguards against custodial violence and the near-total absence of criminal accountability for custodial deaths in practice. Drawing on National Crime Records Bureau and National Human Rights Commission data spanning two decades, it demonstrates a conviction rate below 2 percent despite thousands of reported deaths and hundreds of registered cases. The article surveys the legal architecture built around Article 21 of the Constitution — including the Supreme Court’s D.K. Basu guidelines and the statutory mandate for magisterial inquiry — and identifies the structural causes of its failure: investigations conducted by the same force implicated in the death, absence of a standalone anti-torture law, weak forensic and procedural safeguards, and dependence on public pressure rather than institutional design to secure prosecution. Using the Sathankulam custodial deaths as a contrasting case where sustained scrutiny produced conviction, the article argues that meaningful reform requires independent investigative machinery, mandatory recorded surveillance in custody, and enforceable inquiry timelines, rather than further procedural guidelines alone.
Case Laws
1. D.K. Basu v. State of West Bengal (1997) — The foundational judgment on custodial violence. The Supreme Court laid down eleven binding procedural safeguards for arrest and detention, including the right to inform a relative, mandatory medical examination, and maintenance of arrest memos, and held that the State bears liability for custodial abuse under Article 21, independent of departmental or criminal proceedings against individual officers.
2. Nilabati Behera v. State of Orissa (1993) — Established the principle of compensatory jurisprudence in custodial death cases, holding that the State’s liability to pay compensation for a fundamental rights violation under Article 21 is distinct from, and does not depend on, the outcome of any criminal prosecution against the officers involved.
3. Joginder Kumar v. State of U.P. (1994) — Held that arrest is not a matter of automatic police power 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, reinforcing procedural checks that later fed into the D.K. Basu framework.
4. Prakash Singh v. Union of India (2006) — While primarily a police reform judgment directing separation of investigation from law-and-order functions and creation of independentcomplaints authorities, it is frequently invoked in custodial death litigation as the constitutional basis for demanding structural, rather than merely procedural, police accountability.
Conclusion
India’s legal framework for preventing and punishing custodial death is, on paper, comprehensive — anchored in Article 21, reinforced by binding Supreme Court guidelines, and backed by a statutory mandate for judicial inquiry. Yet a conviction rate that has hovered near 1 percent for over two decades shows that law on paper and accountability in practice are two different things. The rare cases that do result in conviction, such as the Sathankulam deaths, succeed because of sustained public attention rather than the ordinary functioning of institutional safeguards — precisely the design flaw reform must correct. The Jharkhand High Court’s move to reopen 262 stalled cases is a step toward institutional correction, but a durable solution requires independent investigation agencies, mandatory custodial surveillance, a standalone anti-torture law, and enforceable inquiry timelines, so that accountability no longer depends on which cases happen to attract national outrage.
FAQs
Q1. What legally qualifies as a “custodial death” in India?
A death occurring while a person is in police custody (post-arrest, pre-production before a magistrate) or judicial custody (after remand by a court), regardless of the stated cause of death.
Q2. Is a magisterial inquiry mandatory for every custodial death?
Yes. Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (successor to Section 176(1A) CrPC) makes a magisterial inquiry compulsory in every case of death in police or judicial custody.
Q3. Can the family of a victim claim compensation even if noofficer is convicted?
Yes. Following Nilabati Behera v. State of Orissa, the State’s liability to pay compensation for a fundamental rights violation is independent of any criminal conviction of the officers involved.
Q4. Why is the conviction rate in custodial death cases so low despite these safeguards?
Primary reasons include investigations conducted by the same police force implicated in the death, absence of a standalone anti-torture law, weak forensic and CCTV evidence, and delays that allow cases to lapse into administrative inaction.
Q5. Does India have a dedicated anti-torture law?
No. India has signed but not ratified the UN Convention Against Torture, and custodial torture is prosecuted under general criminal law provisions rather than a specific statute, despite the Law Commission’s 273rd Report recommending one in 2017.
