CUSTODIAL TORTURE AND THE ABSENCE OF AN ANTI-TORTURE LAW: CRITICAL ANALYSIS OF INDIA'S OBLIGATIONS UNDER THE UNITED NATIONS CONVENTION AGAINST TORTURE (UNCAT)

Abstract

This article critically examines custodial torture in India and the continuing absence of a comprehensive anti-torture law despite India's obligations under the United Nations Convention Against Torture (UNCAT). It argues that although India has signed UNCAT, its failure to ratify the Convention and enact dedicated anti-torture legislation has created a significant gap between constitutional guarantees and effective legal protection. The study analyses the international legal framework governing the prohibition of torture, emphasizing its status as a jus cogens norm and the implications of customary international law for India. It further evaluates India's constitutional safeguards under Articles 20, 21, and 22, landmark judicial decisions such as D.K. Basu v. State of West Bengal and Nilabati Behera v. State of Orissa, and the limitations of relying solely on judicial guidelines in the absence of statutory criminalization. The article also reviews the failure of legislative initiatives, including the Prevention of Torture Bill, 2010 and the Law Commission's 273rd Report (2017), highlighting persistent institutional barriers such as prosecution sanctions, inadequate investigations, and weak accountability mechanisms. It concludes that constitutional jurisprudence, while progressive, cannot substitute for a robust statutory framework. The article recommends the enactment of a comprehensive anti-torture law aligned with UNCAT standards, independent investigative mechanisms, removal of procedural barriers to prosecution, and stronger institutional oversight to ensure accountability, protect human dignity, and strengthen India's compliance with international human rights obligations.