“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it.”- Adriana P. Bartow
It was as early as 1980 when Justice V.R. Krishna Iyer put forth the question ‘who will police the police?’ This question resurfaced recently in the horrifying custodial deaths of the father-son duo in Tuticorin, Tamil Nadu sending shockwaves across the whole nation. While the masses questioned the abuse of power by the police, a simultaneous outrage for the need of an anti-torture law swept throughout the nation. As the demand for justice gained momentum, a sea of statistics surfaced, stripping off the veil from the rampant practice of custodial torture and deaths resulting from it in the country. As per the report by National Campaign Against Torture (NCAT), 1731 people died in custody in 2019, averaging at 5 deaths per day. Another report by Asian Center of Human Rights stated 1674 custodial deaths between April 1 2017 and February 28, 2018. These numbers clearly show the growing trend of custodial violence which can be linked to the absence of stringent laws in the country.
Custodial torture has become so engrained in the investigation proceedings, glorified even in movies, that people often consider it as a part of the criminal justice saga. Yet, there is an inherent absence of a definition of torture in the penal laws or the Constitution. In D.K. Basu v. Union of India, the Supreme Court observed –
“Torture has not been defined in the Constitution or other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture has become synonymous with the darker side of human civilization.”
As a result, torture is punished under Sections 330 and 331 of the Indian Penal Code, 1860 which encompasses hurt and grievous hurt. These provisions cover only a few elements of torture and are mere parchment barriers to prevent custodial torture, miserably failing to provide any pragmatic protection to a person in custody. Moreover, the absence of legislation makes it easier for the police to move scot-free. This harsh reality was captured in the National Crime Bureau Reportwhich stated that out of the 100 custodial deaths on record in 2017, neither a single person was convicted. Also, for the 300 custodial deaths recorded from 2008-2016, there were zero convictions.
international scenario nudging the indian legal system
Despite the surging figures and incompetent provisions, the lawmakers show an apathetic attitude towards this repetitive unruly practice by the police. Though it would be unfair to paint the police of the nation with a single brush, this rampant practice, dangerously generalized, has recurrently popped up in the judicial corridors since the days of yore. The Supreme Court’s attention was drawn towards the rights of the prisoners for the first time in 1983, in the case of T.V. Vatheeswaran v. State of Tamil Nadu. The court held that the Fundamental Rights guaranteed under Articles 14,19 and 21 of the Constitution cannot be denied to prisoners. They are equally entitled to such rights as any other freeman of the nation.
The prohibition of torture was first incorporated in Article 5 of the Universal Declaration of Human Rights, 1948. Article 7 of the International Convention on Civil and Political Rights, 1966 prohibits torture in all forms. This ban on torture was further dealt comprehensively in the United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1984. Article 1 of the UNCAT 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 a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
India signed the UNCAT in 1997 but has not yet ratified it by passing a domestic legislation. The initiative for an anti-torture law was taken in 2010 when the Lok Sabha passed the Prevention of Torture Bill, 2010. This bill moved to the Rajya Sabha which was proposed to a select committee but lapsed in 2014 due to the dissolution of the 15th Lok Sabha. In 2017, the 273rd Law Commission Report recommended the government to ratify UNCAT and as a result, the Prevention of Torture Bill,2017 was formed. A petition was filed by a former Law Minister Mr. Ashwini Kumar seeking a comprehensive legislation preventing torture but in 2019, in Ashwini Kumar v. Union of India, the apex court rejected the petition. India is now one of the five countries which have not yet ratified the convention.
custodial torture in india
Amidst this culture of impunity, custodial torture continues unabated in our country. Despite denying to form a legislation dedicated to the prevention of torture, the courts on numerous occasions have focused on the human rights of the prisoners and the urgent need to curb custodial violence. Mentioned below is a chronological list of cases where the courts took notice of custodial violence and time and again emphasized a prisoner’s right to life and dignity –
- It was as early as 1979, in Indrajeet v. State of Uttar Pradesh where the Supreme Court held that any punishment which has an element of torture is unconstitutional.
- When a prisoner was tortured by inserting a baton in his anus, the apex court in the landmark judgement of Sunil Batra v. Delhi Administration (1980) held that prisoners have enforceable rights under Articles 14,19 and 21. Several directives were issued to enhance prison administration and the court stressed to observe the norms laid down in the international conventions to respect the sanctity of the basic human rights to the prisoners.
- In Kishore Singh v. State of Rajasthan (1980), the Supreme Court upheld that torture in any form is violative of the right to life which encapsulates a life with dignity, guaranteed by Article 21 of the Constitution.
- In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) the court observed that torture in any form is inhumane, degrading and offensive to human dignity, violative of Article 21, as no law permits such inhuman treatment.
- The court enshrined the right against custodial violence in Sheela Barse v. State of Maharashtra in 1983.
- In Nilabati Behera v. State of Orissa (1993) the court granted compensation under Article 32, referring to Article 9(5) of the ICCPR which states that victims of unlawful arrest or detention have the enforceable right to compensation.
- In Kewal Pati v. State of Uttar Pradesh (1995) it was held that a prisoner does not cease to have constitutional rights, except to the extent he is deprived in accordance with law, on the mere status of his imprisonment.
- Recognizing the recurrent instances of custodial torture and inhuman treatment, the apex court in D.K. Basu v. State of West Bengal (1997) created 11 principles to be followed while an arrest is made to prevent the abuse of police power.
- In Munshi Gautam v. State of Madhya Pradesh (2004) the court stated that the alarming figures of custodial torture and deaths resulting from it raise serious questions about the credibility of rule of law and administration of the criminal justice system. The court commented, “The celebrated decision of D K Basu v. State of West Bengal seems to have caused not even any softening of attitude in the inhuman approach in dealing with persons in custody.”
remedy provided to victims
While the ICCPR provides compensation to victims of torture, the Indian courts seem to follow the same rule in most cases. In Kewalbai v. State of Maharashtra where a prisoner was shot by a constable in the jail lockup, the Bombay High Court provided compensation for such unnatural death. On similar lines, in Murti Devi v. State of Delhi and Ajab Singh v. State of Uttar Pradesh where the victims died in judicial custody, the High Court granted their families with compensation. However, a pertinent question arises – ‘can this public law remedy of providing monetary compensation to the victim or the family recover the loss of life or the chunk of life where the individual has been stripped off naked of his dignity and has suffered excruciating pain just to eke out a confession?’
But the case of custodial death of a 28-year old in Kerala is an exception to the general rule.After a long tussle of 23 years, capital the Kerala High Court gave capital punishment to two police officers accused of torturing the victim to death for committing theft. The court ruled “The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order of the society and it is a dangerous situation.”
India is not new to custodial torture. Irrespective of this widespread anathema, India not only lacks a separate anti-torture legislation but even in the efficient implementation of the existing laws. India being a proud democracy, should not be lagging in passing a humanitarian law. The courts have been crying hoarse ever since, stressing on the enjoyment of Articles 14,19 and 21 by the prisoners, but unless the State recognizes custodial violence as a crime and the fact that monetary compensation is not necessarily the only appropriate relief, such unnatural deaths will continue unabated. Human rights are not dependent on the status of a person but are universal in nature. The police and even people glorifying custodial deaths of criminals need to understand that being behind bars or committing a vile act does not deprive them of their basic rights. When the guardians of the law whose paramount duty is to protect the citizens, themselves destroy human rights, it scars the minds of the people that their life and liberty is in jeopardy. But more than that, it inflicts a gaping wound on our Constitution and the Rule of law. Thus, in an attempt to protect fundamental rights of those being victimized at the hands of the State, a separate legislation to prevent torture, cruelty or any kind of degrading treatment behind the bars is of sublime importance.