Custodial Violence In India: Judicial Trends In Constitutional Protection And State Liability
- IJLLR Journal
- May 8
- 2 min read
Peehu Bhardwaj, Amity University, Noida
Introduction
Custodial violence is a grave affront to human dignity and personal liberties, and strikes at the very heart of constitutionalism in India. It involves instances of torture, assault and even murder of persons in police and judicial custody. Despite the constitution's strong commitment to the protection of fundamental rights, instances of custodial violence continue to occur, reflecting the need for enhanced accountability of state actors. Thus, the judiciary has played a vital role in interpreting constitutional rights and developing doctrines to prevent such abuses and uphold the rights of the victims.
The starting point to combat custodial violence is the constitutional protections provided under Articles 20, 21 and 22 of the Constitution of India. In particular, the right to life and personal liberty under Article 21 of the Constitution has been broadly construed by the courts to encompass the right against torture and inhuman and degrading treatment. The landmark case of Maneka Gandhi v. Union of India turned Article 21 into a storehouse of substantive due process, allowing courts to more closely scrutinise arbitrary state conduct. The analysis paved the way for courts to intervene against custodial violence.
Through judicial activism, custodial torture has been recognised as a fundamental rights violation. In D.K. Basu v. State of West Bengal1, the Supreme Court outlined a list of safeguards to be observed while making arrests and custodial interrogations to avoid custodial torture. These protocols, such as the right to notify a family member, medical check-up and recording of arrests, are now standard procedures. The Court stressed that custodial torture and cruel, inhuman or degrading treatment is an affront to human dignity and must be avoided.
A further advancement in this field is the liability of the state for custodial violence. In Nilabati Behera v. State of Orissa, the Supreme Court confirmed that the state is liable to compensate for breach of fundamental rights by its officials. This signalled a departure from the older notion of sovereign immunity to a more contemporary, rights-focused approach, in which the state is liable for its agents' actions. The Court established that compensation is a public law remedy, rather than a private law claim for damages.
