Abstract

India's criminal justice system continues to struggle with rampant torture and police brutality, as evidenced by the widespread reports of custodial violence that have occurred in the post-independence era. These reports reveal that victims of custodial violence have suffered serious bodily harm or, in some instances, have died due to police torture, which stands in sharp contrast to the constitutional assurances of life, liberty and human dignity that exist in India's Constitution. This article considers police brutality and torture as part of a broader systemic problem caused by structural deficiencies in policing systems, the lack of accountability for police officers using their authority to commit torture, and the disconnect between law (written) and practice (applied). The article also examines how constitutional protections against torture and other forms of custodial abuse are ineffective because the laws do not contain sufficient protections to deter police misconduct and further evaluates key pieces of legislation, including the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, as well as relevant judicial decisions, that are aimed at preventing custodial abuse. In addition, the article provides an overview of India's obligations under international human rights law, including but not limited to the United Nations Convention Against Torture, and describes the additional consequences that will result from India's failure to ratify the Convention. Finally, the article advances an argument for the need for significant legal reforms to create institutional accountability and to develop rights-based policing as a mechanism to preserve the legitimacy of the rule of law in India through a doctrinal and human right based approach.

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