Custodial deaths and the gaps in our law

On 22 August 2025, several Bangladeshi newspapers, including The Daily Star reported another tragedy- the custodial death of a 27-year-old Durjoy Chowdhury, arrested only a day earlier. According to the police, he had "committed suicide" by hanging. But does this explanation absolve the responsibility of the state? To find the answer to this question, we need to look at what our law actually says about deaths in custody.

To give effect to the UN Convention against Torture (CAT), the Torture and Custodial Death (Prevention) Act was enacted in 2013. It was hailed by the civil society as a landmark law, recognising custodial death and torture as matters requiring legal intervention. Indeed, once the state deprives someone of liberty, it assumes responsibility for that person's safety. Even the amended Code of Criminal Procedure (CrPC), section 46D, now makes it a duty for police to ensure the safety of arrestees.

Yet, when we turn to the offence provisions, the scope of the offence shrinks. Sections 13 and 15 only criminalise torture and death resulting from torture. Nowhere in the offence provisions does the law recognise liability for deaths caused by neglect, poor custodial conditions, or suicide in custody.

To give effect to the UN Convention against Torture, the Torture and Custodial Death (Prevention) Act was enacted in 2013. It was hailed by the civil society as a landmark law, recognising custodial death and torture as matters requiring legal intervention. Indeed, once the state deprives someone of liberty, it assumes responsibility for that person's safety.

There seems to be a contradiction here. The Act's title and definition of custodial death promise broad protection. Its preamble aims to prevent both torture and custodial death resulting from torture and omission. But its offence provisions deal only with torture and custodial death resulting from torture.

This suggests that if a detainee dies in custody by suicide, or due to lack of medical care, or under suspicious circumstances where torture cannot be proven, there is no criminal liability under the 2013 Act. In effect, the law's protections stop exactly where they are most needed.

However, international law is clear in this regard. States have a special duty of care towards detainees. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to life as non-derogable. The UN Human Rights Committee has repeatedly observed that states must explain any death in custody and show they took steps to prevent it.

Moreover, our own Constitution echoes this. In BLAST v Bangladesh (2003), the High Court Division (HCD) of the Supreme Court of Bangladesh ruled that torture and custodial abuse violate the right to life under Articles 31 and 32. Once a person is the behind bars, the state has to take the responsibility for their safety.

British jurisprudence, still persuasive in Bangladesh, reinforces this duty. In Reeves v Commissioner of Police (2000), the House of Lords held police liable when a detainee committed suicide. Similarly, in Kirkham v Chief Constable (1990), liability was imposed for failing to protect a suicidal prisoner. Although these are tort law cases, they establish that custody means control and, with it, comes responsibility—not only for direct acts like torture, but also for foreseeable harms, including self-harm.

Since the 2013 Act excludes omissions, families must turn to constitutional or tort remedies. Our Supreme Court has occasionally stepped in. In CCB Foundation v Bangladesh (2016), the HCD awarded compensation, holding that negligence by public authorities violated the right to life. Again, in Banu v Bangladesh (2020), the Supreme Court ordered compensation for wrongful detention.

General tort law also offers a solution as public bodies owe a duty of care once they assume control over a person. However, tort litigation in Bangladesh remains underdeveloped, slow, and costly. As a result, victims' families often face insurmountable barriers in accessing justice in our country.

For the 2013 Act to live up to its promise, reforms are essential. Custodial death (regardless of how it ensues) must be made a distinct offence, whether caused by torture or by neglect or omission. The burden of proof should be shifted so that authorities have to show they took reasonable steps to prevent a death in custody. Investigations should be carried out by independent bodies, not by the same police implicated. Finally, tort law jurisprudence needs to be substantially developed in relation to custodial torture and death.

Durjoy Chowdhury's death is not only a personal tragedy but also a test of the rule of law. Once the State locks someone in custody, it assumes full responsibility for their life and limb. Comparative jurisprudence also shows that the state cannot escape liability for omissions. Our own courts have recognised that negligence violates the right to life. It is time for Parliament to align the Act's title, purpose, and provisions—and for the judiciary to expand remedies, including through tort law.

The writer is Associate Professor of Law, University of Rajshahi, and a Doctoral Candidate, SOAS, London.