A Critical Examination of the Legal Framework and Protective Institutions in India
I. INTRODUCTION
The custodial environment represents one of the most critical tests of a democratic state’s fidelity to its own foundational values. When the state deprives an individual of liberty through arrest, remand, or a sentence of imprisonment, it assumes a relationship of extraordinary authority over that person’s most basic interests. In that relationship, the state owes a duty that runs far beyond the mere avoidance of unlawful detention: it must ensure that the conditions of custody comport with the irreducible requirements of human dignity, and that the removal of physical freedom does not become, in practice, the wholesale erasure of every other right the individual holds. This duty is not contingent upon the moral character of the detainee or the gravity of the offence alleged against them. It flows from the fundamental premise that every human being possesses an inherent dignity that cannot be forfeited.
In India, the commitment to protecting the rights of persons in custody finds expression across multiple layers of the legal order. The Constitution of India guarantees fundamental rights that courts have consistently held to be available to prisoners and undertrials as much as to free citizens. Statutes such as the Protection of Human Rights Act, 1993 and the Legal Services Authorities Act, 1987 establish institutional mechanisms specifically designed to monitor custodial conditions, investigate complaints, and ensure access to justice for those deprived of liberty. An extensive body of judicial decisions, developed over more than four decades of engaged constitutional jurisprudence, has given enforceable content to these protections and established minimum standards that custodial authorities are constitutionally bound to maintain.
The purpose of this article is to examine these institutional mechanisms with analytical precision, to assess their performance in practice, and to identify the gaps that remain in India’s framework for the protection of custodial rights. Following this introduction, Section II addresses the conceptual foundations of human rights and their relationship to human dignity. Section III traces the historical development of the idea from ancient philosophical traditions to the contemporary international legal framework. Section IV examines the constitutional and statutory basis for the protection of custodial rights in India. Sections V and VI analyse the National Human Rights Commission and the State Human Rights Commissions respectively. Section VII examines the role of the judiciary, including its use of public interest litigation as an instrument of structural reform. Section VIII considers the convergences and gaps in the current framework, and Section IX offers a conclusion.
II. THE CONCEPT AND THEORETICAL FOUNDATIONS OF HUMAN RIGHTS
The expression “human rights” designates those entitlements that every person holds by virtue of their humanity alone, prior to and independent of their recognition by any particular legal order. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, proceeds from the foundational premise that the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family constitutes the foundation of freedom, justice, and peace in the world.[1] This foundational premise has since been elaborated and given binding normative force through a series of international instruments, chief among them the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both concluded in 1966.[2][3]
The nature and foundations of human rights have generated a vast theoretical literature, but for the purposes of legal analysis, two dimensions are of primary significance. At the moral level, human rights represent the claim that there are certain things that may not be done to a human being regardless of the commands of positive law, the preferences of majorities, or the interests of the state. At the legal level, they represent enforceable entitlements recognised in domestic and international law, the breach of which gives rise to accountability. The practical significance of human rights law depends upon the extent to which these two dimensions coincide, and the history of human rights protection is in large part the history of the progressive conversion of moral claims into legally enforceable obligations.
Professor Upendra Baxi has offered the most penetrating Indian analysis of the concept of human rights, observing that the very expression is irreducibly plural and that attempts to reduce it to a single coherent category necessarily distort the diversity of struggles and experiences that gave rise to it.[4] Baxi identifies several distinct registers within which human rights discourse operates, including human rights as ethical imperative, as grammar of governance, as language of global ordering, as syndrome of shared sovereignty, and as insurrectionary proxies for those who resist power.[5] This taxonomy illuminates the different purposes for which human rights claims are advanced and the different constituencies whose demands they articulate.
Across these diverse registers, the concept of human dignity operates as the unifying normative thread. Justice Palok Basu has observed that human rights represent those claims which individuals and groups make upon the institutions of society for the protection and maintenance of conditions necessary for the fullest possible development of the human personality, and that any action which would affect or violate the inherent dignity of the human being constitutes a violation of human rights.[6] The dignity of each person is not contingent upon compliance with social norms, economic productivity, or freedom from criminal accusation. It is an attribute of personhood itself, and it persists through arrest, conviction, and incarceration.
This last point is of fundamental importance for custodial rights. The criminal law of every civilised state recognises that the purpose of imprisonment is punishment, deterrence, and rehabilitation, not degradation. The punishment consists in the deprivation of liberty, not in the withdrawal of every other right that the prisoner holds. A state that permits custodial abuse, whether through direct violence, deliberate neglect, or the maintenance of conditions incompatible with basic human dignity, violates the human rights of its prisoners regardless of the gravity of the offences for which they were detained. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which India became a party in 1997, gives international legal force to this prohibition.[7]
III. HISTORICAL DEVELOPMENT: FROM ANCIENT TRADITIONS TO THE MODERN LEGAL FRAMEWORK
The idea that human beings possess certain inalienable attributes against which the state may not encroach is not the product of the modern era alone. In the western legal tradition, this idea takes its most systematic theoretical form in the natural law theories developed from Cicero through Aquinas to Locke and Grotius, each of whom maintained that there existed a body of moral and legal principle, discoverable through reason, that stood above the commands of particular sovereigns.[8] This tradition found practical expression in constitutional documents from Magna Carta onwards, each of which imposed enforceable limits on government power in the name of rights that were anterior to and independent of the sovereign’s will.[9]
The Indian tradition of thought about the rights and obligations of rulers and the entitlements of subjects developed along different but convergent lines. The ancient concept of dharma, as elaborated across the corpus of Sanskrit legal and ethical literature, embodied a conception of righteous conduct in public and private life that encompassed the duties of the king towards his subjects and the protections owed to individuals against oppression.[10] The historian U.N. Ghoshal documented the extensive treatment of civil rights in the Smritis and in Kautilya’s Arthashastra, including rights pertaining to the person, the dwelling, and the means of livelihood, and concluded that these rights occupied a recognised and significant place in ancient Indian legal thought.[11] Ghoshal further noted that these protections were understood as comprehended within the concept of dharma and were enforceable through the institution of the king’s court.[12]
The Buddhist and Jain traditions contributed a further dimension to Indian human rights thought through their emphasis on ahimsa and the equal moral worth of all sentient beings. Under the Mauryan emperor Ashoka, these principles were translated into official policy: edicts inscribed on stone pillars across the empire called for the compassionate treatment of prisoners and animals and for tolerance of all religious and ethnic groups within the dominion.[13] These ancient traditions do not map precisely onto the modern concept of human rights, but they demonstrate that the concern for human dignity and the protection of the individual against state violence has genuine roots in India’s intellectual and cultural heritage.
The modern international human rights framework was constructed in the aftermath of the Second World War, when the scale of state-perpetrated atrocity demonstrated with terrible clarity the catastrophic consequences of treating the treatment of individuals within a state as entirely a matter of domestic jurisdiction.[14] The Universal Declaration of 1948 established the normative architecture, and subsequent instruments gave it binding legal force. For the specific context of custodial rights, the most important international instruments are the United Nations Standard Minimum Rules for the Treatment of Prisoners, comprehensively revised and renamed as the Nelson Mandela Rules in 2015, which set out detailed minimum standards governing every aspect of prison management and the treatment of inmates,[15] and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which extends minimum protections to persons held in police custody as well as sentenced prisoners.[16]
IV. HUMAN RIGHTS IN THE INDIAN CONSTITUTIONAL AND STATUTORY FRAMEWORK
The Constitution of India, adopted in 1950, reflects the influence of the post-war international human rights movement and incorporates in Part III a bill of fundamental rights that are enforceable against state action.[17] The provisions most directly relevant to the rights of persons in custody are Articles 20, 21, and 22. Article 20 prohibits conviction for ex post facto offences, double jeopardy, and compelled self-incrimination. Article 22 provides procedural protections against arbitrary arrest and detention, including the right to be informed of the grounds of arrest, the right to consult a legal practitioner of choice, and the right to be produced before a magistrate within twenty-four hours. Article 21, however, is the provision around which the most important jurisprudential developments in custodial rights have been built.
The transformation of Article 21 from a relatively narrow procedural guarantee into a broad substantive protection for the right to live with dignity is the work of the Supreme Court over four decades of engaged constitutional interpretation. The pivotal decision in Maneka Gandhi v. Union of India held that the procedure established by law for depriving a person of life or personal liberty must satisfy standards of fairness, justness, and reasonableness implied by Articles 14 and 19 read together with Article 21.[18] This judgment rejected the formalistic approach that had previously prevailed and opened the door to a substantive scrutiny of custodial conditions that went far beyond a bare examination of whether the original order of detention was legally authorised.
The court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi extended this analysis to encompass the conditions of detention rather than merely its legal basis, holding that the right to live with basic human dignity is an integral component of the right to life under Article 21.[19] The judgment established that persons in custody retain a constitutional right to minimal conditions of nutrition, clothing, shelter, and means of intellectual activity, and that custodial conditions that fall below this minimum are constitutionally impermissible regardless of the budgetary or administrative constraints pleaded by the state.
The Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar confronted a documented pattern of undertrial detention that had resulted in thousands of persons remaining in custody for periods far exceeding the maximum sentence for their alleged offences.[20] The court held that the right to speedy trial is an implicit component of the right to personal liberty under Article 21, and directed the release of undertrials who had been detained for disproportionate periods. The decision in Sunil Batra v. Delhi Administration further held that inhuman treatment of prisoners, including the prolonged use of bar fetters, violated Article 21 and that courts have a constitutional responsibility to intervene wherever custodial conditions fall below minimum humane standards.[21]
The judgment in D.K. Basu v. State of West Bengal represents perhaps the most comprehensive judicial attempt to institutionalise the protection of custodial rights through the specification of requirements applicable at the point of arrest.[22] The court, responding to a series of reported custodial deaths, laid down detailed procedural requirements governing every stage of the arrest process, including the preparation of a custody memo, the notification of next of kin, the examination of the arrestee by a medical officer, and the right of access to a legal practitioner. The court held that compliance with these requirements was a constitutional obligation, and that their violation would expose responsible officials to civil and criminal liability.[23] These requirements were subsequently incorporated into the Code of Criminal Procedure and have now found their place in the Bharatiya Nagarik Suraksha Sanhita, 2023.[24]
V. THE NATIONAL HUMAN RIGHTS COMMISSION: STRUCTURE, POWERS, AND PERFORMANCE
The Protection of Human Rights Act, 1993 established the National Human Rights Commission as a statutory body with a broad mandate to protect and promote human rights throughout India.[25] The Commission was constituted in October 1993, in compliance with the Paris Principles adopted by the United Nations General Assembly, which set out the criteria that national human rights institutions must satisfy in order to be recognised as genuinely independent and effective.[26] The Paris Principles require, among other things, that national institutions be vested with a broad mandate founded in constitutional or legislative provisions, that they be composed of persons who reflect the full diversity of civil society, that they be provided with sufficient powers and resources to discharge their mandate effectively, and that they cooperate with international human rights treaty bodies and mechanisms.[27]
The composition of the NHRC reflects the Indian tradition of investing independent statutory bodies with judicial credibility. Section 3(2) of the Act provides that the Chairperson must be a retired Chief Justice of India, that one member must be a sitting or retired judge of the Supreme Court, that one member must be a sitting or retired Chief Justice of a High Court, and that the remaining two members must be persons of standing and experience in matters relating to human rights.[28] The Commission is further assisted by four ex-officio members, who are the Chairpersons of the National Commissions for Minorities, Scheduled Castes, Scheduled Tribes, and Women.[29] This composition is intended to bring the authority and independence of the higher judiciary to bear upon the Commission’s work while also drawing upon the expertise of bodies with specific mandates for the protection of vulnerable groups.
Section 12 of the Act sets out the functions of the Commission in terms that are deliberately broad. These include the power to inquire into complaints of human rights violations either on its own motion or upon petition; to intervene in any court proceeding involving allegations of human rights violations; to visit any institution under the control of the state or central government where persons are detained or lodged for purposes of treatment, reformation, or protection; to review existing constitutional, statutory, and administrative safeguards for the protection of human rights and to recommend measures for their effective implementation; and to encourage the work of non-governmental organisations working in the field of human rights.[30]
The NHRC’s engagement with custodial rights has been one of its most consistent and consequential areas of activity. Through annual programmes of inspection visits to prisons and detention facilities across the country, the Commission has documented conditions including chronic overcrowding, inadequate sanitation, deficiencies in medical care, and instances of custodial violence and neglect.[31] The Commission has exercised its suo motu jurisdiction to take cognisance of reported custodial deaths, and has in numerous cases directed state governments to pay compensation to the families of deceased detainees where its investigations revealed custodial negligence or violence, drawing upon the precedent established in NHRC v. State of Arunachal Pradesh.[32] The principle that the state owes an obligation of care to those in its custody, and that the breach of this obligation generates a compensatory duty, is now well established through both the Commission’s practice and the Supreme Court’s jurisprudence in cases such as Nilabati Behera v. State of Orissa.[33]
The Commission has invested substantially in the promotion of legal aid and awareness for prisoners. Its annual reports document an extensive programme of workshops, seminars, and outreach activities in prisons across the country, aimed at both inmates and prison officials.[34] The Commission has consistently advocated for the establishment of legal aid clinics within prisons and for the strengthening of state legal services authorities in the delivery of legal assistance to indigent prisoners.[35] In its recommendations to the government, it has repeatedly called for the reduction of undertrial populations through enhanced bail procedures and increased use of personal recognizance releases,[36] and has urged more vigorous implementation of the Legal Services Authorities Act, 1987, which obliges state legal services authorities to provide free legal services to specified categories of vulnerable persons.[37]
The NHRC’s institutional limitations, however, are significant and need to be acknowledged. The Commission cannot entertain complaints that are more than one year old at the time of their filing, which means that many long-standing violations may fall outside its jurisdiction.[38] It issues suggestions instead of binding orders – so while guidance may be offered, enforcement power sits elsewhere.[39] Military-related grievances fall outside its reach officially; this omission carries weight where custody incidents coincide with zones of armed tension or state-led operations.[40] Research groups and advocacy bodies note a recurring pattern: hesitation before challenging governing branches, sometimes weakening oversight function.[41] Selection relies heavily on ruling administrations’ choices, leading in some cases to nominees facing scrutiny over impartiality, whereas lacking public interest voices diverges fundamentally from standards set out in international human rights frameworks.[42]
VI. STATE HUMAN RIGHTS COMMISSIONS: DECENTRALISED OVERSIGHT
The Protection of Human Rights Act, 1993 mandates the establishment of State Human Rights Commissions in each state to provide a decentralised forum for the protection of human rights.[43] Section 21(2) of the Act prescribes that each SHRC shall consist of a Chairperson who must be a retired Chief Justice of the relevant High Court and such members as the state government considers necessary, including at least one person with experience in matters relating to human rights.[44] Under Section 29, SHRCs are vested with the same procedural powers as civil courts in the conduct of their inquiries, including the power to summon and enforce the attendance of witnesses, require the discovery and production of documents, and issue commissions for the examination of witnesses.[45]
One reason SHRCs matter in overseeing custody lies in how India’s constitution divides power between levels of government. Since prisons fall under state authority according to List II of the Seventh Schedule, control over jail operations and inmate treatment belongs mainly to state authorities.[46] Positioned within these same states, human rights commissions naturally fit into ongoing dialogue with prison officials. They hear grievances from inmates or relatives, examine them thoroughly, while gaining firsthand insight into local detention realities. Even national guidance reflects this – such as the 2016 Model Prison Manual from the Ministry of Home Affairs – which names SHRCs as key players in watching how jails follow rules laid out in its pages.[47]
Though SHRCs are meant to safeguard custodial rights, how well they do so depends heavily on the state. Some commissions operate actively, while others struggle even with basic tasks – this imbalance shows up clearly when looking at funding and team size. Where support is thin, visits to prisons become rare; handling inmate complaints grows harder still. Oversight weakens further when appointments drag on or hinge more on politics than merit. Not every commission faces these issues, but enough do that differences between them stand out.[48] When leadership roles stay vacant too long, consistency suffers along with public trust.[49] Entry 4 under List II of India’s Constitutional Schedule VII. As per the 2016 guidelines detailed by the Ministry of Home Affairs, pages 245 through 250 outline procedures within the Model Prison Manual published that year.
VII. THE JUDICIARY AS GUARDIAN OF CUSTODIAL RIGHTS
A. The Constitutional Architecture of Judicial Protection
The Supreme Court and the High Court’s occupy a foundational role in the protection of custodial rights that no other institutional mechanism in India can replicate. The courts’ authority flows not merely from their power to review the legality of individual acts of detention but from their power to declare unconstitutional any law, policy, or practice that fails to meet the standards established under Part III of the Constitution. The significance of this position for custodial rights was demonstrated in In re Inhuman Conditions in 1382 Prisons, where the Supreme Court exercised its original jurisdiction to address systemic custodial conditions across the country.[50] Acting on the basis of a letter addressed to the court, the justices took suo motu cognisance of the conditions prevailing in the overwhelming majority of India’s prisons and initiated proceedings that have continued over several years, resulting in a series of directions to state governments and the NHRC on specific aspects of prison management, undertrial detention, and legal aid.
B. Landmark Decisions on the Rights of Prisoners
The Supreme Court’s decision in Prem Shankar Shukla v. Delhi Administration held that the routine use of handcuffs on undertrial prisoners violated Articles 14, 19, and 21 of the Constitution.[51] The court’s reasoning was that physical restraint of the kind imposed by handcuffing is a form of degradation that offends human dignity, and that such restraint cannot be applied as a matter of administrative routine but requires specific and individual justification in each case.[52] The significance of this decision lies in its recognition that the dignity of the person accused of a crime is a constitutional value of the first order, and that the presumption of innocence has physical as well as procedural dimensions.
The right to legal assistance was established as a component of the right to a fair trial under Article 21 in M.H. Hoskot v. State of Maharashtra, where the court held that the state is constitutionally obliged to provide a prisoner with legal assistance at state expense where he lacks the means to engage counsel and where the interests of justice require it.[53] This ruling drew upon both the domestic constitutional framework and the standards set by the ICCPR, and was reinforced in the Hussainara Khatoon litigation, where the court held that the right to free legal services for indigent accused persons is an inalienable component of a reasonable, fair, and just procedure.[54] These decisions show that equal protection under the law isn’t just about treating everyone the same on paper. Fairness means giving people real access to the tools they need to claim their legal rights. The wording of the cases may be different, but the pattern clearly shows that substantive support, not just procedure, is what matters. Without the means to act, rights are just ideas and not real. This thread runs through judicial reasoning even though it is not always said. So, when justice needs to be done, abstract equality gives way to real conditions. So, the results depend less on how neutral people think they are and more on how well they can work within the system.
Rudul Shah v. State of Bihar was the first case where courts gave money to people whose rights were broken while they were in jail. Because officials didn’t do their jobs, a man got paid because he stayed locked up for more than 14 years after being cleared.[55] That moment proved that Article 32 lets judges give money when basic rights are violated. It showed that states must be held accountable for legal wrongs that happen because of power abuse, which is part of keeping the law. In Veena Sethi v. State of Bihar, inmates were let go after serving much longer than any punishment that could have been given. Judges saw long-term holding as not only bad for the people involved, but also as proof that the whole system didn’t work. To fix it, the court had to act right away. These decisions show how oversight can lead to real repair.[56] The court observed that the continued detention of such prisoners was not merely a violation of individual rights but a systemic failure of the criminal justice system that warranted direct judicial correction.[57]
C. Public Interest Litigation and the Structural Reform of Prisons
The development of public interest litigation as a procedural mechanism for addressing systemic rights violations is among the most significant contributions of the Indian judiciary to the global human rights project. In S.P. Gupta v. Union of India, the Supreme Court explained the rationale for relaxing traditional standing requirements, noting that strict rules of locus standi were an impediment to access to justice in a country where a substantial proportion of the population lacked the resources and literacy to approach courts directly.[58] By allowing representative organisations and socially conscious individuals to bring claims on behalf of those whose rights had been violated, the court created a mechanism through which the conditions of India’s prisons could be brought to judicial attention by persons who had the capacity and resources to litigate effectively.
The PIL jurisdiction has been most consequentially exercised in the Supreme Court’s continuing supervision of prison conditions in In re Inhuman Conditions in 1382 Prisons, where the court has over several years issued a series of directions to state governments on matters including the reduction of overcrowding, the provision of medical care and legal aid, the release of undertrial prisoners who have served the maximum potential sentence for their alleged offences, and the implementation of the Model Prison Manual.[59] The court has appointed amicus curiae to assist its deliberations, called for periodic reports from state governments and the NHRC, and monitored the implementation of its directions over successive hearings, functioning in effect as a continuing supervisory body over the national prison system.[60]
When the courts stepped in during the pandemic, their role felt more current than ever. Not long after infections spread behind bars, justices pushed for fewer people locked up especially those awaiting trial or serving brief sentences – just to slow outbreaks. One order even changed how jails operated nationwide. Instead of waiting for harm to happen, judges started shaping rules meant to stop it. Take the ruling that required surveillance equipment inside detention centers: every station had to install cameras.[61] That shift came through a case led by Paramvir Singh Saini, targeting abuse hidden from public view. The outcome wasn’t merely about one complaint; it reshaped oversight habits across facilities. Courts began acting less like referees on single disputes and more like architects rebuilding broken systems. Behind each directive lay a quiet insistence: fix structures, not just symptoms,[62] One step at a time, state-level courts have built on the Supreme Court’s oversight by turning scrutiny toward local jail environments. From Mumbai to Chennai, public interest cases have triggered court actions tackling excessive inmate numbers, medical care, female detainees’ circumstances, and those suffering mental health crises behind bars. Though each ruling carries weight, some observers point out that broader structural reform often slips through the cracks – implementation lags even when orders are clear. Despite such gaps, progress is real: judges have shaped enforceable benchmarks rooted in constitutional rights, setting floors for humane detention.
One source notes judicial activism within public interest litigation in India, highlighting its impact on legal outcomes. Another work examines how courts influence prison reform through ongoing mandates. These analyses appear in different journals, years apart, yet both explore court-driven change. The first was published in 1989 by Jamie Cassels, focusing on broader trends. More recently, Arghya Sengupta and Ritwika Sharma assessed structural interventions in detention facilities.[63] Their findings point to sustained judicial involvement shaping policy areas. Earlier arguments find echoes in later case evaluations. Scholarship continues to question how deeply courts should engage in governance roles.
VIII. CONVERGENCES, GAPS, AND THE PATH FORWARD
The three institutional mechanisms examined in this article represent complementary, though imperfectly coordinated, elements of India’s framework for the protection of custodial rights. Together, the NHRC, the SHRCs, and the judiciary provide a range of avenues through which custodial violations may be identified, investigated, and remedied. The challenge, however, is that the framework as a whole lacks the preventive orientation that international experience has shown to be most effective in reducing custodial abuse. The Bureau of Police Research and Development’s annual prison statistics reveal that overcrowding and undertrial detention remain endemic, that custodial deaths continue to occur, and that conditions in many facilities fall far short of the standards prescribed by the Nelson Mandela Rules.[64]
India has not ratified the Optional Protocol to the Convention Against Torture, which would require the establishment of a National Preventive Mechanism with a mandate to conduct regular, unannounced visits to all places of detention.[65] The NPM model, now adopted by over ninety states, has been shown by comparative research to produce more consistent improvements in custodial conditions than reactive, complaint-based mechanisms alone.[66] The adoption of OPCAT and the creation of a dedicated, independent NPM with unrestricted access to all places of deprivation of liberty would significantly strengthen India’s institutional architecture for custodial rights protection.
The Model Prison Manual, 2016 provides a comprehensive framework for modern prison administration, but it carries no statutory force and its implementation across states has been inconsistent.[67] The Prisons Act, 1894, which remains the principal statute governing Indian prisons, was enacted for a colonial penal system with objectives fundamentally different from those of a rights-respecting modern criminal justice framework.[68] The Law Commission of India, in its Seventy-Eighth Report on the Prisons Act, recommended comprehensive legislative reform, and this recommendation has remained unimplemented for more than four decades.[69] The enactment of modern prison legislation that gives statutory force to the Model Prison Manual’s standards, strengthens the NHRC and SHRCs through guaranteed funding and genuine independence, extends civil society access to prisons, and institutes mandatory recording and reporting of custodial deaths and injuries would represent a substantial advancement of the rights framework.
The legitimacy of the oversight framework depends in part upon the inclusion of voices from communities most directly affected by custodial abuse, and the legal and institutional framework should be designed to facilitate rather than obstruct civil society engagement with prisons and other places of detention. The effective integration of judicial, quasi-judicial, and civil society mechanisms within a coherent national strategy for custodial rights protection is the most promising path towards closing the gap between the normative framework and the lived reality of India’s prisons.
Additionally, the issue of access to speedy justice for undertrial prisoners deserves special attention. The Hussainara Khatoon line of cases established a constitutional entitlement to speedy trial, and subsequent decisions have reinforced this principle. Yet undertrial prisoners continue to constitute more than two-thirds of India’s total prison population, a statistic that reflects deep structural failures in the administration of criminal justice.[70] Bail law reform, the expansion of the use of bail bonds and personal recognizance, the expeditious appointment of judges to fill vacancies, and the investment in court infrastructure are as much a part of the custodial rights agenda as the reform of prison conditions, and they deserve commensurate policy attention.
IX. CONCLUSION
The way people are treated when they are in jail shows whether a government really cares about fairness, dignity, and the rule of law, which are all important parts of a functioning democracy. In India, systems that are supposed to protect these rights look good on paper. The Constitution lists basic rights, and judges are willing to enforce them. There is also a national body that looks into abuses and pushes for accountability, and local agencies in each state do similar work to make sure it happens where it matters. Each piece has a role that has been shown to work in real life. Judges have made it clear how people who are being held must be treated, and they see those rules as binding under the Constitution. The NHRC wasn’t quiet at all. It looked into many reports of abuse while people were in custody, won money for those harmed, and pushed for changes in how jails are run. Local rights groups changed their focus to specific jails, bringing attention to what life is like in each one on a daily basis.
Even so, how bad things stay in Indian jails—something that police researchers and human rights monitors have shown over and over again—shows that rules on paper don’t change much without real changes in attitudes and daily habits. When there is weak leadership, stretched systems, tough oversight, and problems that courts and panels can’t fix just by saying them, what laws promise often falls apart. Moving forward requires more than mere rhetoric; it necessitates genuine commitment to regard incarcerated individuals with respect, adequate funding for necessary reforms advocated by judges and experts, and consistent efforts to establish new standards among law enforcement personnel overseeing detention facilities, where rights are currently neglected akin to bureaucratic obstacles. This challenge does involve the law, but it goes deeper into politics and shared beliefs. A country built on freedom, fairness, and unity must face it head-on sooner rather than later.
Author- Shivam Shivhare , LLM, Amity Law School, AUMP.
[1]G.A. Res. 217A (III), Universal Declaration of Human Rights, pmbl. (Dec. 10, 1948).
[2]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
[3]International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
[4]Upendra Baxi, The Future of Human Rights 35 (3d ed., Oxford Univ. Press 2008).
[5]Id. at 37–42.
[6]Palok Basu, Law Relating to Protection of Human Rights 18–20 (2d ed., Eastern Law House 2004).
[7]Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (India signed Oct. 14, 1997; not ratified).
[8]See generally A.W. Brian Simpson, Human Rights and the End of Empire 46–55 (Oxford Univ. Press 2001).
[9]Id. at 57–62.
[10]Patrick Olivelle, Manu’s Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra 15–18 (Oxford Univ. Press 2005).
[11]U.N. Ghoshal, A History of Indian Political Ideas 7–10 (Oxford Univ. Press 1959).
[12]Id. at 11–15.
[13]Romila Thapar, Ashoka and the Decline of the Mauryas 148–55 (3d ed., Oxford Univ. Press 2012).
[14]G.A. Res. 217A (III), supra note 1, pmbl.
[15]G.A. Res. 70/175, United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), r. 1 (Dec. 17, 2015) [hereinafter Nelson Mandela Rules].
[16]G.A. Res. 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, princ. 1 (Dec. 9, 1988).
[17]India Const. pt. III.
[18]Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 282.
[19]Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, 618.
[20]Hussainara Khatoon v. Home Sec’y, State of Bihar, (1980) 1 SCC 81, 89.
[21]Sunil Batra v. Delhi Admin., (1980) 3 SCC 488, 514.
[22]D.K. Basu v. State of W. Bengal, (1997) 1 SCC 416, 438–41.
[23]Id. at 447.
[24]Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, §§ 35–37 (India). See also Mrinal Satish, Arrest, Detention, and Custodial Rights Under the Bharatiya Nagarik Suraksha Sanhita: Continuity, Reform, and Remaining Gaps, 66 J. Indian L. Inst. 1, 14–22 (2024).
[25]Protection of Human Rights Act, No. 10 of 1994, § 3(1) (India).
[26]Principles Relating to the Status of National Institutions (Paris Principles), G.A. Res. 48/134, annex, para. A(2) (Dec. 20, 1993).
[27]Id. paras. A–F.
[28]Protection of Human Rights Act, No. 10 of 1994, § 3(2) (India).
[29]Id. § 3(4).
[30]Id. § 12.
[31]National Human Rights Commission, Annual Report 2022–23, at 48–52 (2023); National Human Rights Commission, Annual Report 2023–24, at 41–46 (2024).
[32]NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742.
[33]Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, 763.
[34]National Human Rights Commission, Annual Report 2022–23, supra note 31, at 58–62.
[35]Id. at 65.
[36]National Human Rights Commission, Annual Report 2019–20, at 40–44 (2020).
[37]Legal Services Authorities Act, No. 39 of 1987, § 12 (India).
[38]Protection of Human Rights Act, No. 10 of 1994, § 36(2) (India).
[39]Id. § 18(1).
[40]Id. § 19.
[41]Maja Daruwala & Venkatesh Nayak, Human Rights Commissions: Protecting Rights or Protecting Government? 23 (Commonwealth Human Rights Initiative 2012). See also Commonwealth Human Rights Initiative, Human Rights Oversight in India: Assessing the Performance of State and National Commissions 18–26 (2024).
[42]Id. at 26.
[43]Protection of Human Rights Act, No. 10 of 1994, § 21(1) (India).
[44]Id. § 21(2).
[45]Id. § 29.
[46]India Const. sch. VII, List II, Entry 4.
[47]Ministry of Home Affairs, Model Prison Manual 2016, at 245–50 (2016).
[48]Daruwala & Nayak, supra note 41, at 30.
[49]Id. at 32.
[50]In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700.
[51]Prem Shankar Shukla v. Delhi Admin., (1980) 3 SCC 526, 534.
[52]Id. at 537.
[53]M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, 556.
[54]Hussainara Khatoon, (1980) 1 SCC at 88.
[55]Rudul Shah v. State of Bihar, (1983) 4 SCC 141, 147.
[56]Veena Sethi v. State of Bihar, (1983) 2 SCC 583, 586.
[57]Id. at 587.
[58]S.P. Gupta v. Union of India, AIR 1982 SC 149, 189.
[59]In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC at 715.
[60]Id. at 720.
[61]Re: Contagion of COVID-19 Virus in Prisons, (2021) 17 SCC 749.
[62]Paramvir Singh Saini v. Balia, (2021) 1 SCC 184.
[63]Jamie Cassels, Judicial Activism and Public Interest Litigation in India, 37 Am. J. Comp. L. 495, 517 (1989). See also Arghya Sengupta & Ritwika Sharma, Courts, Prisons, and Structural Reform: Evaluating Continuing Mandamus in Indian Public Interest Litigation, 36 Nat’l L. Sch. India Rev. 1, 15–22 (2024).
[64]Bureau of Police Research and Development, Prison Statistics India 2022, at 8–12 (Nat’l Crime Records Bureau 2023); National Crime Records Bureau, Prison Statistics India 2023, at 9–14 (Bureau of Police Research & Dev’t 2024).
[65]S.P. Sathe, Judicial Activism in India 210–15 (Oxford Univ. Press 2002).
[66]Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 18, 2002, 2375 U.N.T.S. 237 [hereinafter OPCAT]. See also Suhas Chakma, India and the Optional Protocol to the Convention Against Torture: The Case for Ratification and Establishing a National Preventive Mechanism, 25 Asia Pac. J. Hum. Rts. & L. 112, 120–28 (2024).
[67]Malcolm Evans & Rodney Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 178 (Oxford Univ. Press 1998). See also Rachel Murray & Elina Steinerte, National Preventive Mechanisms After Twenty Years of OPCAT: Institutional Design, Independence, and Effectiveness, 25 Hum. Rts. L. Rev. 1, 8–15 (2025).
[68]Ministry of Home Affairs, supra note 47, at 1.
[69]Prisons Act, No. 9 of 1894 (India).
[70]Law Commission of India, The Prisons Act, 1894, Rep. No. 78, at 10–12 (1979).