Abstract

With the advent of the new Criminal laws, India’s criminal justice system has seen an overhaul, especially with provisions mandating electronic methods to maintain records of criminal procedure. This seems like a new step taken towards transparency, but the absence of a comprehensive, well-drafted law on custodial violence poses important questions that are equally applicable to the new provisions, especially the ones on statutory bail and remand. There have been sporadic developments in finding an alternative legislation that would include all the necessary elements to combat custodial violence, but such endeavours have fallen flat for the longest time. Despite concerns, the general criminal legal framework, largely supplemented with constitutional remedies, remains the only recourse for custodial violence. This paper intends to analyse the legal developments mitigating custodial violence comprehensively, and in that regard, it brings in the Indian Constitution to trace public law remedies too. It firstly analyses the meaning of torture in international covenants due to the lack of any domestic definitions of it, and then goes on to trace the criminal legal provisions aimed at ensuring the accused’s protection in the second section. In this section, the paper also analyses the attempts at developing special laws addressing custodial violence by looking at 3 bills introduced before the Parliament in 2006, 2022, and 2023, respectively, and dissects their provisions to identify their issues. In the third and fourth parts, the paper discusses the development of the remedial jurisprudence on custodial torture and rape through cases that blend the Indian Constitution and establish it as the immutable protector of custodial rights and criminal justice in India.

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