This article is written by Rangita Chowdhury, of Symbiosis Law School, Noida. It addresses custodial tortures, legal provisions, and safeguards available against it. Areas of concern that need further redressal have also been discussed.
Table of Contents
Torture and violence by police in custody have been a big issue for a long time. The numbers of such incidents have increased over the years in many parts of the world and India. It is a fact that police resort to third-degree methods for obtaining confessions and statements from the accused. Such methods often result in serious injuries and even death. It is also a fact that unable to bear such torture and humiliation, the victims are forced to commit suicide.
After the brutal killing of George Floyd in the USA and the custodial death of Jayaraj and Benix in Tamil Nadu, India, there has been large scale anger over the issue and demands for reforms in policing and bringing in adequate mechanisms, making the culpable officers accountable for their misdeeds. We have certain remedies in the IPC to address this issue. The Supreme Court also, from time to time, has issued directives and instructions to the Union and State Governments to take up the matter seriously, implement means to bring down incidents of custodial death, and punish the truant officials. But these have not yielded fruit, as is evident from the rising numbers of custodial deaths in the country. Interestingly, India does not have an anti-torture law and this matter is being hotly debated once again now. Many feel that this is now the need of the hour.
What is custodial death
Custodial deaths are events of the demise of persons who are detained by police during pretrial or after conviction. Custodial deaths can be broadly classified into three types –
- Death in police custody;
- Death in judicial custody; and
- Death in custody of army or paramilitary force.
Custodial Death is widely referred to as death that happens to a person who is under trial or has already been convicted of a crime. It can be due to natural causes like illness or may also happen due to suicide, infighting among prisoners but in many instances, it is police brutality and torture that is the reason behind the death.
The issue is very controversial and complicated. Often, the victims are tortured before they are arrested, i.e. before they are taken into custody, which helps the police conveniently claim that these are not incidents of custodial violence, and the injuries have happened before the arrest. Sometimes, before the arrest, the victims are killed by fake encounters. This is also a form of custodial death, which becomes very hard to prove. The most intriguing aspect is that all evidence and records are with the police, outside evidence is hardly available. This results in great difficulty in identifying custodial violence and the resultant death that occur after it.
Custodial deaths are one of the highest forms of violation of human rights. It is a blunt attack on the right to life and liberty guaranteed by the Indian Constitution. The responsibility of protecting the life of the accused and the convicts lies with the respective states. Individuals accused of or convicted of crimes are entitled to a fair trial, safety, and security in police and judicial lock-ups and Correctional Homes. But the law-enforcing authorities often fail miserably in discharging their constitutional obligation and what is even more unfortunate is that after such incidents happen, there is an all-out effort from the perpetrators to cover up their misdeeds. The Government plays a big role in protecting the accused officers.
Custodial deaths in India
Data shows that between 2001 to 2018, 1,727 persons have died in police custody (including those in judicial remand) and those who have been arrested but not yet produced before the court. On average, 96 persons die in custody every year.
According to the India Annual Report on Torture 2019, there were a total of 1,731 custodial deaths in India. Out of those, 1,606 people died under judicial custody and 125 people died under police custody. This works out to almost five such deaths daily. The report highlights the most common forms of torture which include electric shock, hammering nails in the body, applying chilly power on different parts of the body, branding with a hot iron, inserting rods in the parts of the body, forcing legs apart, hanging upside down and merciless beating, etc. These are some of the horrific treatments the person who dies in custody often goes through. Most of these people belong to the oppressed classes who are not economically and socially empowered to fight the atrocities of the police.
The report indicates that Uttar Pradesh has the dubious distinction of most custodial deaths with 14 out of 125 cases, followed by Tamil Nadu with and Punjab, both recording 11 deaths.
What is most disconcerting is that about 75% of these 125 deaths happened due to alleged torture or foul play, and about 20% died under suspicious circumstances that police cited suicide.
The most recent of such dreadful incidents happened in the state of Tamil Nadu. P Jeyaraj (58) and his son Benicks (38) were taken into police custody after allegedly keeping their shop open during lockdown past the permitted hours. They were manhandled on spot and taken to the police station where they were tortured. Both died after two days. The incident sparked widespread outrage on social media which led the local courts to launch an investigation. The Court ruled that the officers involved in the incident would be charged with murder. The details of the torture shook the whole nation and debates on police brutality and the use of excessive force gained momentum after that. This also happened about a month after the sensational death of George Floyd. Floyd was a 46-year-old black American who was arrested for allegedly using a counterfeit bill; he was pinned down on the street by the officers who came to arrest him and within a few minutes of him begging to let him breathe, he lost his life. This sparked massive record-breaking protests across America and the whole world. In another recent police encounter case Vikas Dubey, a gangster turned politician based out of Kanpur was shot in an alleged ambush with the police. As per version of the police report, the vehicles carrying him overturned and he tried to escape and also tried to shoot the policemen on duty. This again sparked nationwide debates on whether the encounter was staged and it was a custodial murder.
Legal provisions against custodial torture in India
The Indian Constitution and the legal regime provide various safeguards against custodial torture:
- Protection against Conviction or Enhanced Punishment under Ex-Post Facto Law: Article 20(1) of the Constitution of India provides that, no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to any greater penalty than that which might have been inflicted under the law in force at the time of the commission of an offence. Thus the article prohibits the framing of ex-post-facto criminal laws and also prohibits the infliction of any penalty greater than that which can be inflicted under the law in force at the time of the commission of the offence. In a nutshell, the article prohibits the creation of a new offence with a retrospective effect.
- Protection against Double Jeopardy: Article 20(2) of the Constitution states that no person shall be prosecuted and punished for the same offence more than once.
- Right not to be a witness against himself: Article 20(3) of the Constitution provides that no accused person will be compelled to be a witness against himself. This is very important as it acts as a safeguard in obtaining evidence from the accused through coercion and torture. Interestingly under Section 179 of IPC, every person is legally bound to state the truth on any subject to a public servant. Section 161 of the Code of Criminal Procedure, 1973 also enables the police to examine the accused during an investigation. But on the other hand, if any pressure, subtle or crude, mental or physical, direct or indirect, yet substantial, is applied by the police for obtaining information from an accused it becomes ‘compelled testimony’, and violates Article 20(3). The prohibitive sweep of this article functions in this manner and acts as a safeguard for the accused. This issue came up for discussion in the Nandini Satpathi case.
- Section 163 of the Code of Criminal Procedure, 1973 prohibits the investigating officers from making any inducement, threat or promise under Section 24 of the Indian Evidence Act (1872) but also prevents him from forcing any person to make any statement which he would like to make on his free will. Section 24 of the Indian Evidence Act, 1872 makes all confessions made under inducement, threat, or promise as inadmissible. The section gives the accused the right not to make any confession against his will as it is well understood that if such evidence is made admissible, it will act as a trigger for the police to use torture and force to extract evidence against him.
- Section 164(4) of the Code of Criminal Procedure, 1973 provides for recording and signature of confessions in proper manner and endorsement of the confession by a magistrate to the effect that it has been made voluntarily.
- This right against self-incrimination is in tune with Article 14(3) (g) of the International Covenant on Civil and Political Rights which calls on the member states to ensure that the accused is not compelled to testify against himself or to confess guilt.
- Section 348 of Indian Penal Code, 1860, among others, lays down provisions relating to wrongful confinement and prohibits such confinement for extorting any confession or information for detecting any offence or misconduct. Such wrongful confinement has been made a punishable offence with imprisonment up to three years is also liable for fine.
- Similarly Sections 25 and 26 of the Indian Evidence Act, 1872 provide safeguards to the accused on the same lines. Section 25 states that no confession made to a police officer can be used to prove any offence against him. Section 26 makes all confessions made during custody inadmissible unless made in the immediate presence of a Magistrate. However, Section 27 of the act provides an exception to Section 25 to the extent that a statement made in custody may be admissible if it leads to the discovery of some new fact. In this regard, the Supreme Court has however pointed out that the accused, if forced to give a confession under this section, can use his privilege against self-incrimination contained in Article 20(3) of the Constitution. However, this is a debated issue and many legal experts claim that such protection does not exist in practice, as it is extremely difficult for the accused to prove that his confession was extracted through compulsion.
- Article 21 of the Constitution of India (Right to Life and Personal Liberty) does not expressly say anything against custodial torture but its ambit is quite extensive. This right states that no person shall be deprived of life or personal liberty except according to the procedure established by law. The right includes constitutional guarantee against torture, assault, or injury and thus acts as a safeguard against custodial torture and violence. In Maneka Gandhi vs. Union of India (1978), the Supreme Court, expanded the scope and ambit of Article 21 of the Constitution, emphasising that this right is not confined merely to physical existence but also includes the inherent right to live with dignity. Again in Inderjeet v. State of Uttar Pradesh (2014), the Supreme Court held that punishment which has an element of torture is unconstitutional. In Pram Shankar Shukla v. Delhi Administration (1980), the Supreme Court ruled against compulsory handcuffing of prisoners observing the practice to be prima-facie inhuman and laid down certain guidelines in this regard.
- Right of Privacy: In the recent judgment of the Supreme Court in K. S. Puttaswamy vs. The Union of India, the Supreme Court ruled that the right to privacy is a fundamental right covered under the right of life and liberty. Before this, in Kharak Singh v. State of U.P. (1962), It held that life is not just mere animal existence, there is a lot more to it.
The judgment in the Puttaswamy judgement is a landmark one as it reiterates the ‘right to be left alone’, which is an integral part of personal dignity. This thus includes the right against bodily violation, one which the State cannot claim immunity against. It is interesting to note that the judgement did not specifically state that the right to privacy includes the right against torture, it is very easy to understand that both are basic fundamental rights which are closely related. However much before this, in Francis Coralie Mullin vs. The Administrator, Union (1981) the Supreme Court held that Article 21 includes the right to protection against torture.
Right to be Informed of the Ground of Arrest:
- Article 22(1) of the Constitution of India gives the arrestee the right to receive information on the grounds of his arrest and also gives him the right to consult a legal practitioner of his choice to defend him. Section 50 of the Code of Criminal Procedure, 197, provides a similar right to the arrested person and also gives him the right to seek bail.
- Section 49 of the Code of Criminal Procedure, 1973 is also a safeguard against custodial excesses. It states that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.
- Section 50A of the Code of Criminal Procedure, 1973 makes it incumbent upon the police to give required information relating to the arrest of a person, including the place of arrest to his friends, relatives, or any such person nominated by the arrestee.
- Section 55A of the Code of Criminal Procedure, 1973 makes it mandatory for the person under whose custody, the accused is detained to care of the health and safety.
- Section 75 of the Code of Criminal Procedure, 1973 provides for disclosing the substance of the warrant to the arrested person and even showing it to him, if required.
- Article 22(2) of the Constitution of India provides the arrested person with the opportunity of a quick trial. Any arrested person has to be produced before the nearest magistrate within a period of twenty-four hours of such Any further detention needs the approval of a magistrate. This right thus allows him to seek release on bail, disclose his grievances, if any, arising out of any mistreatment meted out to him in custody and an independent probe of the legality of his detention. Section 56 and Section 57 of the Code of Criminal Procedure, states in detail about these rights (production of the detained person before a magistrate and detention for an unreasonable period and in the absence of a special order of a magistrate) Section 167(2) of the code also makes it incumbent upon the said magistrate to authorize further detention of the accused, only if he has been produced before him in person for the first time.
- Penal provisions for injury, torture, or death on the body of a person in custody are provided in the country’s Substantive law (Indian Penal Code, 1861). It is pertinent to mention here that provisions relating to rape under Section 376 have been amended to specifically address rape in custody by insertion of Section 376(2) in the Criminal Law (Amendment) Act, 1983. Vide this amendment, punishment for rape committed on a woman in custody by a police officer, a public servant, a member of a correctional home, or a hospital staff has been enhanced to a minimum of 10 years, as against 7 years in respect of other cases of rape.
Critical analysis of reasons for rise in custodial death
The reasons for the rise in custodial deaths are manifold. It is the responsibility of the police to look after the health and safety of a detained person under custody. The Human Rights Commission must be informed within 24 hours in the case of custodial death and 48 hours in an encounter killing.
According to the National Crime Records Bureau (NCRB), there was an increase of 9% from 92 in 2016 to 100 in 2017 in custodial deaths. 2018 prison reports of the NCRB state that a total of 1,639 people died of ‘natural causes’, 149 from ‘unnatural causes’, and the rest from ‘unknown causes’ because some of the states were not keen on divulging the details. The report thus divides itself in mainly two categories; natural and unnatural death but there is often nothing natural about these deaths and the unnatural deaths are because of the incompetence of the state and judicial facilities. They fail to provide proper healthcare and security to the prisoners. Suicide is one of the biggest reasons for custodial deaths. It is a matter of debate how many of these are actual suicides and in how many cases, the victims were forced to commit suicide due avoid further torture and violence. In India, there are no adequate provisions for inmates and under-trials seeking psychiatric help and this affects their mental health greatly. Thus it is imperative that they should have better access to psychological support and better preventive measures must be implemented.
Proper security of inmates should be one of the top concerns of reformers and policymakers. A lot of attacks happen inside the prison between inmates which often prove to be fatal. A person under custody loses most of his rights including the right of free movement and the right to choose their preferred medical care. This adds to their mental agony. It is the responsibility of the state authorities to take care of their physical and mental disabilities and respond properly to their needs.
Custodial deaths that happen because of police brutality are perhaps the most important reason for the increase in numbers. The police are empowered by the state to enforce laws and maintain public order and security. They do not have the right to take the law in their hands as they please. Torturing an accused or a detainee is a gross violation of the powers bestowed on them. But it is increasing over the years. The recent custodial deaths which took place in Tamil Nadu are not an isolated event, it is the result of the systematic nonchalance and normalisation of using disproportionate force in the line of duty. We live in civil society and a lot of us are aware of our rights and responsibilities yet horrific incidents as these continue to take place. Section 49 of CrPC accords a list of rights to an arrested person. It is explicitly mentioned in there that the use of force while detaining a person should not be more than it is necessary to stop them from escaping. This is hardly followed.
Finally, it has to be said that there are a lot more cases that do not get reported. Only a few make it to the annual reports, others get buried under administrative cover-ups.
NHRC and custodial torture
The National Human Rights Commission (NHRC) of India was established on 12 October 1993. Under the Protection of Human Rights Act (PHRA), 1993 which was amended in 2006 and again in 2019.
The constitution in conformity with the Paris Principles, adopted at the first international workshop on national institutions for the promotion and protection of human rights held in Paris in October 1991 and endorsed by the General Assembly of the United Nations by its Regulations 48/134 of 20 December 1993.
The Commission is an embodiment of India’s concern for the promotion and protection of human rights. Realising that custodial torture is one of the greatest abuses against human rights, the Commission, soon after its constitution, issued detailed instructions to the law enforcement authorities on reporting of deaths in police lock-ups and correctional homes. It mandated reporting of custodial deaths by the DMs and SPs of the districts, within 24 hours of the occurrence of death. Videography of post-mortem examination was also made mandatory.
The reason for the issue of this instruction needs to be examined. The Commission was perturbed by the rising incidents of custodial deaths and thought that there were deliberate attempts by the police to cover up torture and excesses committed by them. There was a deliberate attempt to suppress the truth. The doctors conducting the post -mortems were being influenced by the police and they were not conducting examinations properly. They succumbed to police pressure. A post-mortem is one of the most important means to find out the actual reason for death, but what was being reported was only the police version of the cause of death. Thus the post-mortem, instead of throwing light on the cause of death, helped to cover up custodial tortures resulting in the death of the victim. Without any outside independent evidence, the fate of the case depended entirely on the observations recorded and the opinion given by the doctor in the post-mortem report. Further, as a measure of further caution, the commission made changes in the autopsy model and the process of the magisterial inquest. Detailed protocol, on the manner of reporting of physical changes occurring due to torture, were also laid down by the commission.
It is no doubt that the pro-active role by NHRC has put some pressure on the police as there is always a fear in their mind that they can be held up any time. The Commission does not rely upon police reports only and it also gives a lot of importance to complaints received from the family members of the victim. A report of Transparency International has claimed that the commission has received more than 16 lakh complaints of custodial deaths from 1993 to 2016 out of which only about 22,000 remain to be disposed of. Further, the process of videography, post-mortem, and judicial enquiry has also made the process more transparent and forced law enforcement authorities to be more careful.
Judicial pronouncements and their significance
“Custodial death is one of the worst crimes in a civilised society governed by the Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic No” – Supreme Court in D K Basu v. State of West Bengal (1997).
Custodial torture is a gross violation of human dignity. That it is conducted and perpetrated mostly by the law enforcing authorities, makes it even more shameful for society.
Whenever we talk of judicial activism trying to address this blatant misuse of official authority, the first thing that comes in our mind is the D K Basu Judgments. (D K Basu vs State of West Bengal, 1997) These series of judgments hold immense significance in the annals of human rights protection. The judgments lay down important guidelines for the prevention of police violence and torture in custody. They address the core areas of protection of fundamental rights, elimination of criminalization of police, and reforms in policing. The judgment also laid stress on India’s ratification of the UN Convention against Custodial Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984).
The whole issue started in 1986 in connection with a letter regarding custodial deaths in West Bengal. The letter was treated as a Writ Petition, a PIL was initiated and 4 crucial judgements delivered during 1996 and 2015. Over 20 commandments were given in addition to 5 other procedural, monitoring, and coordinating orders.
The commandments have laid down several safeguards to reduce custodial death. These include:
- Suitable identification of all officials on their person.
- Preparation of arrest memo, attested by a family member of the accused.
- Recording of injuries of the accused in the inspection memo, if requested by the accused. And signing of the memo by both the parties.
- Providing all details of time and place of arrest.
- Intimation of the location of arrest to the family members of the accused and all details to any nearby legal aid centre.
- maintenance of daily diary in the police station and procedure of its maintenance.
- Medical examination of the arrestee, every 28 hours after the arrest, by a trained doctor.
- Right of the arrestee to meet and consult lawyers.
- Making it mandatory for the police to send copies of all relevant documents to a local magistrate.
- Setting up of police control rooms where all such information would be properly preserved.
Most importantly, the guidelines also specify that these rights, popularly known as ‘DK Basu right’ should be properly informed to the accused at the time of the arrest. It was also clearly pointed out that any deviation would entail departmental proceedings and even invite contempt.
The Supreme Court realized that rights without remedies are of no use and hence law enforcing officials should be made properly accountable.
It was also ordered that the aggrieved party was entitled to full monetary damages claims for constitutional tort.
The last of the series of judgements were passed in 2015, wherein it was ordered that the Human Rights Commission should be set up in all states and to enable them to function properly, all vacancies should be filled up in these offices.
Other directives included directing the HRCs to function as eyes and ears of the Supreme Court, setting up of Human Rights Courts under Section 30 of The Protection of Human Rights Act (1993), setting up of CCTVS in prisons and provision of surprise checks by non-officials in prisons and police stations.
Other important judgments, on which the DK Basu Judgements relied upon are ‘Joginder Kumar vs. State of UP (1994)’, ‘Nilabati Behera vs. State of Orissa (1993)’ and ‘State of MP vs. Shyamsundar Trivedi (1995)’. In all these cases the judiciary realized that custodial deaths.
In Joginder Kumar v. State of UP, the apex court ordered that no arrest can be made on mere allegation or suspicion. It issued several directives on the modalities to be followed at the time of the arrest. The arrested person would have the right that any of his friends or relatives be informed about his arrest and location of detention. The police would inform him about this right and make a suitable entry in the diary of the particulars of the person who has been informed of the arrest. The magistrate before whom the arrested person would be brought would also ensure that these directives have been adhered to by the police.
In Nilabati Behera v. State of Orissa, the mother of the deceased complained that her son died in the custody of Odisha (then Orissa) Police after being beaten up and claimed compensation for violation of her son’s fundamental right under article 21 of the Indian Constitution. The court held the State responsible for violation of fundamental rights and ordered for criminal proceedings against the responsible police officers. More importantly, it ordered that compensation of Rs 1.50 lakh be paid to the family of the deceased. Before this case, there was no structured formulation to grant compensation on cases of custodial death. On this front, the decision was a landmark one and paved the way for similar decisions thereafter.
In Shyamsunder Trivedi v. State of MP, the Supreme Court rightly realized that in the absence of direct evidence, it becomes increasingly hard to indict the culpable police officials. AS all police officers would try to save their colleagues, the Court ordered for insertion of Section 114-B into the Indian Evidence Act 1872, This would ensure that if the injury was caused during the custody, the court would presume that the police officer having custody of the person is responsible. Thus it reverses the burden of proof. This recommendation was made by the Law Commission, not once but twice (in its 113th & 152nd report) but is yet to be made a law though the bill was introduced in 2017.
Another recommendation of the Law Commission, made in 1994 in its 152nd report, however, resulted in bringing in amendments in the CrPC when sections 176(1A) and 176(5) were inserted (though after a long time, in 2005).
It is thus evident that the Supreme Court of India has laid down extensive guidelines and principles of custody jurisprudence, keeping in mind the constitutional safeguards on human rights and human dignity. Provisions relating to arrest, handcuffing, custodial crime, and victim compensation, all have been covered in the different judgements made by the apex court from time to time. It has observed that the “the law of arrest is one of the balancing individual rights, liberties and privileges on the one hand and responsibilities on the other hand: of weighing and balancing or rights, liberties and privileges of the single individual and those of individuals collectively: of simply deciding what is wanted and where to put the weight and the emphasis: of deciding which comes first the criminal or the society, the law violation or the abider”.
Effectiveness of safeguards against custodial death
- From the above, it is true that several judgements, instructions, and guidelines have been issued to bring forth more transparency and make the police officers more accountable. The NHRC has also issued standard instructions in this regard. Undoubtedly, these have set forth valuable legal principles and procedures that should ideally reduce incidences of death and torture and book culpable officers. The law enforcement authorities would be expected to be more cautious and would avoid highhandedness and excesses while arresting and detaining a person.
- But the real picture is quite different. Custodial Death continues abetted in India. Official figures of the National Crime Records Bureau indicate that 1,303 persons have either died or disappeared in police custody during the period 2005 to 2017. In 2018, the Bureau (NCRB)’s annual report recorded 70 deaths in police custody –14 from Gujarat and 12 from Tamil Nadu, the top 2 states. In 2019 as many as 117 people died in police custody. Every day, an average of 5 people die in custody in India, with many succumbing to police torture in judicial or police custody.
- Police enjoy a great deal of impunity in India. They are also adept at finding out ways and means to avoid the implementation of instructions. In the absence of any regular follow-up mechanism, the instructions still largely remain on paper. The nuisance value of police, their power to intimidate witnesses and harass common man also save their skin. They more often than not succeed in putting up their version of the story before the Court.
- Most importantly, all these guidelines kick in only after the arrest is made. Thus torture and violence still continue, primarily before the accused is arrested. Such atrocities get unnoticed and unrecorded. Thus the eternal dilemma: ‘who will guard the guardians?” continues to haunt humanity.
- Another disconcerting issue is that it is very difficult to unearth direct ocular evidence of custodial death because the police personnel, who can alone explain what had happened, are bound by the ties of brotherhood (as commented by the Supreme Court in Shyamsunder Trivedi v. State of MP). In most cases, they would try their level best to save their colleagues.
- The recent incident of custodial death of Jayaraj and Bennicks in the Sathankulam police station in Thoothukudi, Tamil Nadu is also an eye-opener for us. The police tried to wash their hands off saying that the instructions and guidelines on custodial death were applicable in this case as death happened in judicial custody and not police custody. This goes to show how scanty is our respect for human rights and the right to life and dignity of a person.
- A very important safeguard against custodial death is the report of the Medical Officer. But mostly the doctors’ reports are concocted. They are intimidated by the police. In the recent incident in Tamil Nadu, the doctors reported the injuries merely as ‘abrasions’ even though it has widely reported that both the victims were profusely bleeding. To add to this, the judicial Magistrate, enquiring the deaths, has also complained of police intimidation.
- The following example would indicate that the guidelines and instructions of the apex court are not being followed: The 2018 NCRB report shows that of the 70 cases of custodial death in the year, judicial enquiries were ordered in only 28 of them.
International treaties and conventions against torture
In 1948, following the horrific abuses of World War II, the General Assembly of the United Nations inserted the prohibition against torture in the landmark Universal Declaration of Human Rights. Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted and opened by the UN General Assembly in December 1984 defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or third person information or a confession….” It may be “inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity“.
Thus, the definition includes within its ambit the aspect of violence committed by the State machinery. One of the reasons for the adoption of the convention was to address the growing incidence of torture by public officials, both during the war and at peacetime, and to impress upon the member states to take suitable remedial measures to prevent the same.
Thus, custodial torture and torture before, during, and after arrest are issues that need special attention in the context of article 5 the convention of 1984.
Torture is universally condemned. Apart from the Universal Declaration of Human Rights, It has been extensively incorporated in the wide array of international and regional human rights treaties such as-
- Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (1966)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
- The European Convention for the Protection of Human Rights and Fundamental Freedoms (1953)
- African Charter on Human and Peoples’ Rights (1979)
- American Convention on Human Rights (1969)
International humanitarian laws also protect the life, health, and safety of civilians including prisoners of wars. The torture of such protected persons is forbidden.
In this context, it would not be out of place to discuss the United Nations Standard Minimum Rules for Non-custodial Measures, popularly known as the Tokyo Rules. The rules were adopted by the UN General Assembly on 14th December 1990. They lay down basic principles to promote the use of non-custodial measures, as well as minimum safeguards for persons subject to alternatives to imprisonment. It talks about greater community involvement in the criminal justice system and also endeavours to promote a sense of responsibility among the offenders towards society. It calls on the member states to develop non-custodial measures and provide options other than imprisonment and to rationalize criminal justice policies. The rules also aim to promote social justice and look into the rehabilitation needs of the offenders.
The rules discourage pre-trial detention and give more importance to the investigation of the alleged offence. The judicial authority should have at its disposal a range of non-custodial measures. Alternatives provided in the rules are verbal sanctions (admonition, reprimand, and warning), conditional discharge; status penalties, economic sanctions, and pecuniary penalties, confiscation, suspended or deferred sentences; house arrest, etc.
Stand-alone law against torture
Thus, adoption of the international principles on the protection of human rights and prevention of torture is essential for any country to usher in a regime of freedom, independence, humanity, and compassion and make the culpable officials, be it from the police, the army or the para-military forces, accountable for their needs. It is also necessary to create an environment where the criminal justice system can sustain without strict custodial measures and ensure greater community participation.
In the above context, it is interesting to note that the Supreme Court has also realized that International treaties and covenants dealing on torture should find applicability in domestic jurisprudence. This observation was made by the Apex Court in Chairman, Railway Board vs. Chandrima Das (2000) where the Court observed that the principles of the Universal Declaration of Human Rights are very much relevant in the context of safeguarding our fundamental rights of life and liberty. In Peoples’ Union for Civil Liberties v. Union of India (2005) the Supreme Court stated that “the provisions of the Covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those fundamental rights and hence, enforceable as such.”
In the above backdrop, it is pertinent to mention that India is one of the very few countries that have not ratified the UN Convention against Torture, which does not auger well for the protection of human rights in our country. India does not have a stand-alone anti-torture law and ratifying it would require framing such a law. India’s requests of extradition of its citizens from other countries have mostly not been acceded to as these countries believe that in the absence of proper law, there would case of human rights violation including custodial torture for extracting evidence from the accused. Thus, such a law would serve our national interest, as pointed out by the Supreme Court.
What is more uncomfortable for the nation is that our country was subjected to close questioning during the Universal Periodic Review of its human rights obligations at the UN Human Rights Council in Geneva on this issue. This was also noted with concern by the Supreme Court.
There are some legal provisions for the prevention of torture in the IPC, such as provisions relating to causing hurt or grievous hurt for extracting confessions, criminal intimidation, and wrongful confinement. The Indian Constitution as well as the Code of Criminal Procedure, 1872, and The Indian Evidence Act also lays down certain safeguards protecting the rights of the accused. But most people feel that this is not enough. To convince the international community and express our solidarity for the protection of human rights and the prevention of torture, a stand-alone law would be a much better alternative.
An attempt in this regard was made in 2010 when the anti-torture law was passed in the Lower House. However, it was then referred to the Select Committee in the Rajya Sabha which recommended extensive changes. The bill thereafter lapsed and as per the version of the Central Government, it is now lying with the Law Commission for its views. Non-insertion of Section 114A in the Indian Evidence Act is yet another example. We have already discussed it.
Thus, much needed legislative reforms are yet to be initiated. Additionally, we have already seen numerous examples of non-implementation of various recommendations and non-compliance to important directives and instructions of the Supreme Court and NHRC. It goes to show the Governments at all levels are more comfortable in relying on the police which is widely conceived as the most important machinery for running the government and helping the political brass in getting their job done, be it fair or unfair. Thus, are we committed to human rights or protecting the life and personal liberty of citizens? Can we say that we are a true democracy? Perhaps not, and this is the reason why much-needed legislation is not enacted, reforms are not initiated, custodial deaths are on the rise every year and culpable officials are rarely punished. This indicates a serious lack of political will, that needs to be questioned by all sections of the society.
It is high time that a stringent law that criminalises torture, provides for stringent punishment to the perpetrators and gives an adequate opportunity to the victims to vent their grievances and seek redressal, compensation, and rehabilitation is passed at the earliest and implemented in letter and spirit. Non-custodial measures as laid down in the Tokyo Rules should also be considered to adopted in the Indian legal system so that it can pre-empt the perpetration of torture.
Torture continues to remain a preferred tool in the hands of the law-enforcing authorities to extract information and confessions or to oppress the marginalized sections of society. The Police force in India, enjoy great impunity and all Governments prefer not to set precedence by handing out exemplary punishments to the culpable officers for the simple reason that the running of any Government depends greatly on the law-enforcing authorities. They are the arms of the Government who act as its troubleshooter and also provide invaluable service to their political masters. Hence, no government would like to displease them. However, the Executive fails to realize that the real source of power emanates from the people, and the police, paramilitary, and army, are nothing but public servants. But instead of serving the people, they often resort to torture and violence. Unless this changes, it is highly unlikely that the incidence of torture in custody will not come down in our country.
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