BY DIVYA VIKRAM
“Injustice anywhere is threat to justice everywhere.” – Martin Luther King, Jr.
The practice of torture has been widespread and predominant in India since time immemorial. Unchallenged and unopposed, it has become a ‘normal’ and ‘legitimate’ practice all over. In the name of investigating crimes, extracting confessions and punishing individuals by the law enforcement agencies, torture is inflicted not upon the accused, but also on bona fide petitioners, complainants or informants amounting to cruel, inhuman and degrading treatment, grossly derogatory to the dignity of the human person. Torture is also inflicted on the women and girls in the form of custodial rape, molestation and other forms of sexual harassment.
In this paper, the researcher aims at looking at the various international instruments as well as the role of Indian legislature and judiciary to prevent the evil of torture.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
Article 5 of the UDHR, 1948 proclaims that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian Constitution which provides for life and dignity and honour as incorporated in the preamble and in the chapter on Fundamental Rights. The Constitution has entrusted the work of protecting fundamental freedoms to Indian Judiciary. Therefore, the judiciary has the prime obligation to be utmost careful and to resist even the slightest intrusion into its domain in safeguarding the human dignity which our founding fathers have so passionately granted to us.
Article 5 of UDHR incorporated the right to protection against torture and the same has been sought to be achieved through Declaration of Fifth United Nations Congress held in 1975. INTERNATIONAL COVENANT ON CIVIL AND POLITICIAL RIGHTS (ICCPR)
Article 7 of the ICCPR Covenant provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment.
The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Article 7 cannot be derogated from in any circumstances not even during public emergency. This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights. The Human Rights Committee adopted in 1982, general comments on Article 7 of the Covenant, after examining reports submitted by State parties. Committee observed that even in situations of public emergency as envisaged in Article 4(1) of the Covenant, this provision is non- derogable. The Committee though it said that Article 7 has a wide scope of application, it refrained from defining or providing clear criteria for application of this section.
Particular forms of punishments and practices which have attracted the attention of Committee members have been “certain interrogation methods, the evidential use of illegally obtained information, virginity testing of immigrants, treatment of so-called ‘blanket people’ in Northern Ireland, stoning, flogging, whipping 30-40 years’ rigorous imprisonment, loss of nationality, and deprivation of civil and political rights for extended periods”.
The Human Rights Committee has expanded the meaning of torture by including corporal punishment including excessive chastisement as an educational or disciplinary method. Article 7 clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.
UNITED NATIONS INSTRUMENT DEALING WITH TORTURE
The process of legal codification against torture eventually culminated in The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) (resolution 39/46), which was adopted by the UN General Assembly on Dec 10th, 1984.The objective of this Convention is to prevent acts of torture and other acts prohibited under this convention. Article 1 of the Convention defines “torture”.
Significant features of the Convention
The Covention requires state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction. Article 2 of the Convention says that torture cannot be justified even during war or public emergency.
Article 3 of the Convention forbids State parties to expel, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention also requires States to ensure that all acts of torture, attempts to commit torture or participation in torture are offence punishable under criminal law of their states (provided in Art 4 of the Convention). It also provides for prosecution or extradition of persons alleged to have committed acts of torture.
The implementation of the Convention is monitored by a “Committee against Torture”, consisting of 10 experts, elected by the States parties to the Convention and serving in their personal capacity. State parties to the Convention are required to report regularly to the Committee on measures they have taken to give effect to the provisions of the Convention. The Committee considers such reports, makes general comments and inform the other state parties and General Assembly of its activity. The Committee also allows for individual complaints under Art 22, provided state has made declaration accepting the treaty bodies’ competence to accept complaints and local remedies have been exhausted.
India has signed the Convention against torture but not ratified it. Also India has made reservations against Art20 & Art22 of the Convention.
The UN General Assembly adopted Optional Protocol to CAT in December 2002. This optional protocol has created a sub committee and allows in-country inspections of places of detention to be undertaken in collaboration with national institutions.
Article 3 European Convention which deals with torture says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This provision cannot be derogable under Article 15(2).
“Torture”– The European Commission has defined ‘torture’ to mean, inhuman treatment having a purpose such as obtain information or confession, or infliction of punishment and it is generally an aggravated form of inhuman treatment. By “inhuman treatment”, Committee said it is a deliberate treatment which causes severe suffering- mental or physical, which in the particular situation is unjustified.
“Degrading Treatment”– The Commission considered degrading treatment as: ‘treatment or punishment of an individual is degrading if it grossly humiliates him before others or drives him to act against his will or conscience.’ This definition was followed and expanded later by the Commission in East African Asians v. Uniked Kingdom (4430/70, E.,H.R.R 76) where it said that degrading treatment was a conduct of certain level of severity which lowers victim in rank, position, reputation or character whether in his own or eyes of others. These definitions have been explained by the Court in Tyrer case, in which Court observed that the first element of serious humiliation was whether the conduct was degrading. In Campbell and Cosans, the Court observed that a threat directed to an exceptionally insensitive person may have no significant effect on him but nevertheless be incontrovertibly degrading; and conversely an exceptionally sensitive person might be deeply affected by a threat that could be described as degrading only by ordinary and unusual meaning of the word.
INDIA’s RESPONSE TO TORTURE
Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution which is a non- derogable right. Article 21 was a derogable right until the 44th Amendment to the Constitution, 1978. It includes right against torture and assault by State or other functionaries. This right is even available to foreign citizens, under-trials, prisoners and detenues in custody. In recent times there is an increasing concern of the international community about the practice of torture of prisoners and detenues. Torture is a well established tool used by the Indian Police for investigation.
In tune with international human rights instruments against torture, the Constitution also emphasizes respect and honour of human dignity and fundamental rights. Torture has not been defined in the Constitution or in other penal laws. Article 21 of Constitutional only provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment, can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed about the grounds of such arrest and cannot be denied to consult and defend himself by legal practitioner of his choice. A22 directs that person arrested and detained in custody shall be produced before nearest Magistrate within 24 hrs of such arrest. Article 20(3) provides that accused shall not be compelled to witness against himself as this would amount to self incrimination.
In early eighties were investigative journalism which exposed the practice of torture. The other was public interest litigation, based on press reports. The process of accountability was strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of the Act set up National Human Rights Commission.
- Sec 330 & 331 of Indian Penal Code, which provides for punishment for injury inflicted for extorting confession. The former in case of simple hurt and the latter for greivuos hurt. Crime of custodial torture against prisoners can be brought under Sec 302, 304, 304A and 306 too.
- Sec54 Criminal Procedure Code, 1973 confers upon arrested person the right to have himself medically examined.
- A confession made to police officer is not admissible in evidence under Sec 25 and 26 of Indian Evidence Act, 1872.
- Sec 162 of C.P.C also provides that no statement of a witness recorded by police officer can be used for any purpose other than for contradicting his statement before the court.
- Sec 24 of Indian Evidence Act also provides that when admissible, confession must be made voluntarily. If its made under inducement, threat or promise, it is inadmissible in criminal proceedings;
- Additional safeguard is provided under Sec 164 CrPC, it is for magistrate to ensure that a confession or statement being made by accused person is voluntary.
India has signed but not ratified the UN Convention against Torture (CAT). There has been a continuous effort of the National Human Rights Commission (NHRC) to pursue the Government of India to ratify the Convention against Torture so that a new domestic legislation thereafter can be brought into place. But the effort has gone till date without success. However, absence of a specific law, the Supreme Court of India has condemned torture through various judgments which have contributed to create a national jurisprudence in cases of combating torture.
The practice of torture by police and other law enforcing officers is a matter of deep concern, therefore it is the sacred duty of the state to protect these fundamental human rights of these citizens. The problem of police torture and violence is of universal nature. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and other countries of the world. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against self incrimination and of life and liberty is too evident.
In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law.
The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by absence of specific provisions against torture in the Constitution and gathered support from Article 14 & 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime.
In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court observed that the lives and liberty of citizens are at peril when the guardians of law stab human rights to death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. The court awarded life sentence to the police officer responsible for the death of the suspect in police lock up.
Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an example of cruel and inhuman treatment to the prisoners which are insolating the spirit of Constitution and human value as well as Article 21. Supreme Court in this case tackled the blinding of under-trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture, the sanction of torture by state and local judicial authorities, the routine concealment of torture.
Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack of required degree of proof or maybe found guilty of lesser offence than the one warranted by the actual facts. This is primarily due to the situation that the warranted by the actual facts. This is primarily due to the situation that the offenders are the comrades and colleagues of the prosecutors and the complete lack of neutral witness. State of U.P v. Ram Sagar Yadav (1985 (1) SCC 552 ), is a case indicative of extreme limits to which police violence and highhandedness may extend. The victim made a compliant against a policeman who demanded bribe from him. He was arrested for his ‘audacity’ and shortly afterwards while in custody was found in a serious condition with 19 injuries on his body eventually causing his death. The Supreme Court while affirming the punishment of 7years rigorous punishment for culpable homicide not amounting to murder under Sec 304, expressed his regret that the trial judge did not find policeman guilty of murder as indicated by the facts.
In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines (procedural measures) to be followed while, during and after arrest of person till he is in the custody of police. This case came up before the Court through a petition under art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of India drawing his attention to news items published in a newspaper, regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading which destroys individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded the Civilization takes a step backward.
However mere formulation of guidelines and safeguards would not be sufficient, therefore Supreme Court in D.K Basu case warned that:
Failure to comply with the requirements mentioned shall apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police station in connection with a case. Thereafter, his whereabouts became unknown to his family members. His family members filed a writ of habeas corpus before the Supreme Court, pursuant to which he was produced before the court.
Alarming increase in cases of torture, assault and death in police custody and non availability to punish the culprits in such cases have been an vexed problem as the investigation into such matters have been by the custodians themselves. It is therefore, of utmost necessity that an objective and independent enquiry should be made. Keeping it in view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam (1995) Supp (3) SCC 736, directed the CBI to register and investigate the instant case of custodial death. Again in Supreme Court in Ajab Singh v. State of UP (2000) 3 SCC 521, where the police examination of a custodial death was a concocted story, directing the CBI to register the case and conduct an investigation into the circumstances of custodial death. It also directed the CBI to complete investigation expeditiously and file a copy of the investigation report in the court.
The UN Convention against Torture provides for redress and compensation to the tortured victim. Article 14 of the convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the principle of state liability and the need for state to make reparations for such liability was recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide any remedy under Public Law for any contravention of Fundamental Rights.
Alarming increase in custodial torture, assault and death has invited the attention of the judiciary to ensure that public bodies or official do not act unlawfully and perform their public duties properly, especially, when fundamental rights of citizens are involved. The judiciary has given enough directions to safeguard fundamental rights and freedoms of citizens including accused. The judicial dictates have served a useful public purpose to expose and stop the use of third degree methods by police on persons in their custody.
It is for the implementing and supervising authority to ensure that these guidelines are strictly complied with. Parliament should seriously consider the recommendation made by 113th Law Commission Report and as suggested, amend the Indian Evidence Act so as to transfer the onus of proof of innocence on the police in cases where evidence shows that an arrestee suffered an injury during police custody. This provisions is likely to instill some fear in the minds of police officials who tend to take law in their own hands.
NHRC’s guidelines and Instructions on Torture
The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. NHRC later held that all postmortem examinations done in respect of deaths in police custody and in jails should be video taped and sent to the commission along with postmortem report.
The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence. While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the full hog and bring in a new law providing for stricter punishment for those involved in incidents of torture.
The Prevention of Torture Bill, 2008, drafted by government includes torture by Government servants, including police officials, within the ambit of punishable offences. Under the proposed law, public servants and others responsible for causing grievous hurt or danger to life, limb or health of any person would be liable for being punished for torture. Incidentally, the draft legislation also makes inflicting mental torture a punishable offence. Public servants torturing anybody for the purpose of extracting information or extra-judicial confession from any accused would be punished under the proposed law.
Torturing anybody on the ground of his race, religion, place of birth, residence, language, caste and community would also be a punishable offence. Government of India would mandatorily made to submit regular reports to the UN on measures it has taken to implement the convention. The convention also says that that if extradition treaty has been signed by member countries, then an persons accused of torture would have to be extradited. The Bill provides for setting up of independent panels to deal with complaints of torture (at the central level as well as the state level). All complaints in torture matters would automatically be forwarded to these panels.
The maximum punishment prescribed for torture is 10 years, which, government officials say, is among the highest in the world. India signed the Convention in October 1997, but has not ratified the same despite repeated calls by human rights organisations and NGOs. Ratification is necessary for appropriate changes to be made in the prevailing laws. Once ratified and a new law is in place, it would enable institutions and authorities to be committed and be accountable to tackle instances of widespread torture, especially in police custody.
The writer is a Fourth Year student at the NATIONAL UNIVERSITY OF JURIDICAL SCIENCES , Kolkata