When right to private defence is wrong

BY GEETA RAMASESHAN PUBLISHED IN  THE HINDU

A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.

The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.

How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.

The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.

In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.

Private defence or murder

As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.

But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.

However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.

NHRC guidelines

In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.

While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.

The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.

A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.

(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)

http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true

Related articles

• Police encounter back with a bang (thehindu.com)
• Encounter deaths: NHRC notice to TN police (thehindu.com)

Redefining torture

Image by takomabibelot via Flickr

V. VENKATESAN IN THE FRONTLINE

The Rajya Sabha Select Committee‘s report attempts to correct some of the distortions in the Prevention of Torture Bill, 2010

THE Report of the Select Committee on the Prevention of Torture Bill, 2010, presented to the Rajya Sabha on December 6 has been hailed as a significant step forward in undoing the injustice caused by the hasty passage of the Bill without any debate in the Lok Sabha last year.

The Central government introduced the Bill in the Lok Sabha on April 26, 2010, to allow India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Lok Sabha passed it on May 6. The passage of the Bill, with members expressing no concern about its inability to prevent torture, disappointed human rights activists.

However, the Rajya Sabha adopted a motion on August 31 referring the Bill to a Select Committee, comprising 13 of its members, for examination. Chaired by Ashwani Kumar of the Congress, the committee included E.M. Sudarsana Natchiappan of the Congress and Brinda Karat of the Communist Party of India (Marxist). The committee held nine sittings and met the inmates of Tihar Jail, New Delhi, who had suffered torture at the hands of the police. It also heard the views of human rights activists and legal experts before finalising the report. The committee’s recommendations merit sincere consideration by the government, especially in the light of the fact that eminent members of civil society have serious misgivings about the Bill.

The foremost of these is the very objective of the Bill, which was conceived merely as an enabling piece of legislation to ratify CAT. The United Nations General Assembly adopted CAT on December 9, 1975. India signed the Convention on October 14, 1997, when I.K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for a member-country to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujral’s successors, Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation.

When the Manmohan Singh government, in its second term, introduced such a Bill in Parliament, its sudden change of heart surprised observers. A close scrutiny of the Bill, however, revealed that the government was more interested in symbolic conformity with the requirement of ratification rather than substantive compliance with CAT. India is one of the few countries that have not yet ratified CAT, and the inordinate delay in doing so appears to have eroded its moral standing within the international community. However, India’s credibility would have suffered a serious dent if the Rajya Sabha too had passed the Bill as done by the Lok Sabha.

Restrictive provisions

The Bill seeks to provide punishment for torture inflicted by public servants or for torture with the consent or acquiescence of a public servant. As the Indian Penal Code (IPC) neither defines nor deals with torture, Clauses 3 and 4 of the Bill aim to fill this gap. Activists and experts find these provisions very restrictive. According to the Bill, to amount to torture, an act must either cause grievous hurt or must cause mental or physical danger to life, limb or health. Article 1 of CAT, however, defines torture as “severe pain or suffering whether physical or mental”. The Working Group on CAT interpreted the word “severe” to mean “prolonged coercive and abusive conduct which, in itself, is not severe but becomes so over a period of time”.

 

The Pre-Legislative Briefing Service (PLBS), a group of young legal experts consulted by the Rajya Sabha Select Committee, pointed out in its report that acts that in themselves may not constitute torture become so by reason of their repeated application. The PLBS pointed out that the term “grievous hurt” set the bar too high, without any recourse for persons suffering slightly less but still severe hurt. In particular, it brought to the committee’s attention the following examples of severe hurt for which a police officer would be punishable under the IPC under Section 330 (dealing with ordinary hurt) but not under the torture Bill:

i) Stubbing a cigarette on the body of a person several times;

ii) Whipping a person with various instruments;

iii) Causing a person severe pain that lasts for less than 20 days.

In order to include many instances of torture within its ambit, the PLBS suggested that the words “grievous hurt” and “danger to life, limb or health” be replaced with “severe pain or suffering” in line with CAT. The Select Committee has accepted its suggestion and recommended that the definition of torture be suitably enlarged so as not to exclude acts generally known to be committed on persons in custody which cause severe physical and mental injury, pain, trauma, agony, and so on.

The committee is of the view that the definition of torture should not only be consistent with that of CAT but should also be enlarged to include specific and serious offences against the human body as enumerated in the IPC.

Anomaly in the Bill

 

The PLBS also revealed another anomaly in the Bill. Clauses 3 and 4 of the Bill indicate that only the person who actually committed the act of torture be punished. This implies that a public servant who abets, consents, acquiesces or conspires in an act of torture cannot be punished under the Bill. It “incentivises and legitimises the outsourcing of torture to private parties and provides the impunity for the public servant who planned or directed the torture,” the PLBS reported. The Select Committee appears to have missed this subtle distinction between a public servant who commits torture and the one who simply abets or attempts it, and the need to punish both.

The Select Committee, however, has recommended that the definition of public servants should be enlarged to include those employed in government companies or any institution or organisation, including educational institutions under the control of the Union and State governments.

The committee has recommended that a minimum punishment of three years be provided to make the law more deterrent. Similarly, it has proposed that a minimum fine of Rs.1 lakh be imposed on the torturer. The Bill does not provide for any minimum punishment for torture, thus leaving the scope for lesser punishments not consistent with the gravity of the offence of torture.

The committee has also made recommendations for suitable provisions in the Bill to rehabilitate victims of torture. It feels the Bill should indicate guidelines to be followed to arrive at a fair and adequate compensation to the victim, and in case of death, to his or her dependants.

The Bill implies that an act of torture is not punishable unless it is committed for the purpose of extracting a confession and on the grounds of religion, race, and so on, of the victim. The PLBS suggested that the conjunctive clause “and” was inappropriate because it had the effect of making a narrow definition of punishable torture. The PLBS suggested that an act of torture committed by a public servant – in his public capacity – must be punishable regardless of the reason for which that act was committed. The Select Committee has not found it necessary to deal with these suggestions.

Clause 5 of the Bill states that no court shall take cognisance of torture unless the complaint is made within six months from the date on which the offence is alleged to have been committed. The PLBS suggested that this clause be deleted, as the limitation period of six months imposed an arbitrary restriction on cognisance of cases relating to torture by courts. The Standing Committee, however, has recommended that a liberal limitation period of two years from the date on which the alleged offence was committed for filing of the complaint would give sufficient time to enable the victim of torture to initiate proceedings against those responsible for torture. The committee has also considered it necessary to vest the discretion with the court to entertain complaints even beyond the period of two years so as to advance the ends of substantive justice.

Clause 6 of the Bill requires prior sanction for the prosecution of a public servant accused of torture. The committee feels that there is a need to retain the provision of prior sanction of a competent authority before proceeding against the public servant concerned so as to insulate honest public servants from false, frivolous, vexatious and malicious prosecution. At the same time, the committee has opined that such a provision should not be used to shield those officials who have, in fact, intentionally tortured or abetted the torture of individuals.

It, therefore, has recommended a provision in the Bill under which if the requested sanction is not granted within a period of three months from the date of application, it would be deemed to have been granted. This, the committee hopes, will help ensure that the right of the victim is not lost owing to procedural delays and he is not made to run from pillar to post to get justice.

The committee has recommended that sanction in blatant cases of torture should be the norm and where sanction to prosecute is declined, the said decision should be supported by reasons, and the decision must also be appealable. The committee also wants the trial of offences under the Bill to be concluded within one year from the date of cognisance of the offence. It has urged Parliament to include in the Bill suitable provisions to protect victims, complainants and witnesses.

Observers wonder whether the government will revise the Bill in the light of the Standing Committee’s significant recommendations.

http://www.frontlineonnet.com/stories/20110211280304000.htm

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A modest proposal on AFSPA

SIDDHARTH VARDARAJAN IN THE HINDU

Change the blanket ban on trials without official sanction to one where the government has the power to bar prosecution in individual cases provided it satisfies the courts that its reasons for doing so are valid.

The Armed Forces (Special Powers) Act has come in for widespread criticism in Jammu and Kashmir, Manipur and other parts of the northeast because of the human rights abuses that have come to be associated with its operation. So strong is the sentiment against AFSPA in Kashmir that in recent months Prime Minister Manmohan Singh, Union Home Minister P. Chidambaram and Jammu and Kashmir Chief Minister Omar Abdullah have all spoken of the need to re-examine the law. The Army, on the other hand, says this is unnecessary.

The Army Chief, General V.K. Singh, has gone so far as to say that the demand for the dilution of AFSPA is being made for “narrow political gains.” On his part, Lt. Gen. B.S. Jaswal, GOC-in-C, Northern Command, has compared the Act to scripture. “I would like to say that the provisions of AFSPA are very pious to me and I think to the entire Indian Army. We have religious books, there are certain guidelines which are given there, but all the members of the religion do not follow it, they break it also … does it imply that you remove the religious book …?”

On paper, AFSPA is a deceptively simple law. First passed in 1958, it comes into play when the government declares a particular part of the northeast (or Jammu and Kashmir under a parallel 1990 law) a “disturbed area.” Within that area, an officer of the armed forces has the power to “fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.”

Even though activists have made this the focus of their criticism, giving soldiers the “right to kill” is not, in my opinion, AFSPA’s principal flaw. After all, if a ‘law and order‘ situation has arisen which compels the government to deploy the Army, soldiers have to be allowed to use deadly force. Even a private citizen has the right to kill someone in self-defence, though the final word on the legality of her or his action belongs to the courts. Similarly, a civilised society expects that the use of deadly force by the Army must at all times be lawful, necessary and proportionate. Here, the Act suffers from two infirmities: the requirement of prior sanction for prosecution contained in Section 6 often comes in the way when questions arise about the lawfulness of particular actions. Second, AFSPA does not distinguish between a peaceful gathering of five or more persons (even if held in contravention of Section 144 of the Criminal Procedure Code) and a violent mob. Firing upon the latter may sometimes be justified by necessity; shooting into a peaceful assembly would surely fail any test of reasonableness.

Leaving this issue aside, however, it is important to recognise that AFSPA does not give an officer the unqualified right to fire upon and cause the death of any person in a Disturbed Area. At a minimum, that person should have been carrying weapons or explosives. The shooting of an unarmed individual, and the killing of a person in custody, are not acts that are permissible under AFSPA. Force is allowed in order to arrest a suspect but the fact that the Act authorises the use of “necessary” rather than “deadly” force in such a circumstance means the tests of necessity and proportionality must be met.

Over the years that AFSPA has been in operation, the Army has opened fire countless times and killed hundreds, if not thousands, of people. Whenever those killed have been armed insurgents or terrorists, there has been little or no public clamour against the Act. It is only when the armed forces violate the provisions of the law and indulge in the unlawful killing of persons — especially unarmed civilians — that voices get raised against AFSPA. The protests in Manipur in 2004 reached a crescendo because of the death in custody of Th. Manorama and scores of others like her. In Kashmir, sentiments against the Armed Forces Act got inflamed because of fake encounter incidents like Pathribal and Macchhil.

If today people are questioning General Jaswal’s “religious book,” it is not so much because of its provisions as because of the failure of its custodians to act when the law is flouted. The Lord’s Word threatens sinners with fire and brimstone, eternal damnation or the endless cycle of births and deaths. But AFSPA holds out no such horrors for the soldiers who violate its provisions. Section 6 says “no prosecution … shall be instituted, except with the previous sanction of the Central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” This requirement confers de facto impunity on all transgressors. Thus the CBI may have indicted army officers for the murder of innocent civilians at Pathribal in 2000 but their trial cannot take place because the Central government refuses to give sanction. What is worse, the Minister concerned does not even have to give any reasons.

The ostensible logic behind this Section, a variant of which can be found in Section 197 of the CrPC and in many Indian laws, is to protect public servants from frivolous or vexatious law suits. But though it has not ruled on the ambit of AFSPA’s Section 6, the Supreme Court has often declared that the object of Section 197-type protection is not to set an official above the common law. “If he commits an offence not connected with his official duty he has no privilege.”

In the Pathribal case, the CBI took the view that abducting and killing unarmed civilians in cold blood could not be considered part of “official duty.” Not only did the MoD reject this logic, it moved the Supreme Court for quashing of the case on the ground that it has not granted sanction to prosecute. At no time has it been asked to furnish reasons for denying sanction.

A government which has faith in the actions of its officers and the robustness of its judicial system ought never to shy away from allowing the courts to step in when doubts arise. And yet, in case after case, legal proceedings get stymied by the denial of official sanction.

In a democracy, this requirement of previous sanction should have no place. But given the balance of political and institutional forces in India today, it is utopian to believe it can simply be done away with. What I am proposing, therefore, is a modest remedy. Let us not tamper with the government’s ability to protect officers from criminal proceedings. But instead of the default setting being ‘no prosecution without official sanction,’ let the blocking of a prosecution require official action.

Section 6 could thus be amended to read: “No prosecution … shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act where the Central government provides reasons in writing and the competent court upholds the legal validity of these reasons.”

Such a provision would prevent good officers from being prosecuted for killings which result from acts of good faith while allowing the bad apples to be prosecuted for their crimes. The government would still have the right to intervene on behalf of a soldier who has committed an illegal act. But this would require a Minister to take personal responsibility for a decision that would, after all, be tantamount to denying justice to the victim’s family. In the Pathribal case, for example, Defence Minister A.K. Antony would be compelled to inform the trial court of his reasons for opposing the prosecution of soldiers indicted by the CBI for murder. And the court would get to rule on whether Mr. Antony’s reasons were valid or not.

There is no reason why this inversion of the “previous sanction” provision cannot be replicated across the board in all Indian laws to cover situations where human rights abuses are alleged. Such a provision would not disturb the basic provisions of AFSPA. But it would bring that “religious book” in closer conformity with an even holier tome, the Constitution of India.

http://www.thehindu.com/opinion/lead/article615837.ece

INDIA’S RESPONSE AGAINST THE ACT OF TORTURE

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.

HUMAN RIGHTS AND 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 10^th, 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.

EUROPEAN CONVENTION

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 44^th 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.

Legislative safeguards:

1. 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.
2. Sec54 Criminal Procedure Code, 1973 confers upon arrested person the right to have himself medically examined.
3. A confession made to police officer is not admissible in evidence under Sec 25 and 26 of Indian Evidence Act, 1872.
4. 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.
5. 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;
6. 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.

Judicial response:

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.

CONCLUSION

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 113^th 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

A Bill designed to fail

Tarunabh Khaitan IN THE HINDU

The Prevention of Torture Bill fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens.

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Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice

A court can entertain a complaint under the proposed law only if it is made within six months of the date of the offence

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The right against torture, quite uniquely, admits to no exceptions whatsoever under international and comparative law. In practice, however, it remains one of the most frequently violated rights. The Minister of State for Home recently introduced the Prevention of Torture Bill in Lok Sabha, in order “to provide punishment for torture inflicted by public servants”. The main intention behind the Bill is to enable India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With 146 ratifications in place, India’s continued failure to do so is a source of deep embarrassment and raises doubts over her claims to be a liberal democracy. Indeed, the chief motivation behind the Bill is to polish India’s international image rather than to protect her citizens from torture.

Clause 3 of the Bill defines “torture” as an intentional act which causes “grievous hurt” or “danger to life, limb or health”. Grievous hurt is defined under Section 320 of the Indian Penal Code to include extremely serious injuries such as permanent loss of eye or ear, emasculation, bone fractures, or hurt which causes severe and debilitating pain for twenty days or more. In other words, a very high threshold has been set for an act to qualify as “torture”.

Even the “danger to (mental or physical) health” provision is not very helpful. The term “danger” implies a certain level of seriousness, while mental and physical “health” has frequently been interpreted by courts in civil cases to only include medically recognised illnesses. Given the general rule that criminal laws are interpreted strictly, courts are likely to err on the side of the accused and demand a high threshold for “danger to health”. The “danger to health” standard must also be contrasted with the definition of “hurt” in the Indian Penal Code, which simply includes “bodily pain”. Similarly, Article 1(1) of the U.N. Convention defines “torture” as the intentional infliction of “severe pain or suffering, whether physical or mental”.

Most reasonable people would agree with the Convention that torture must be understood primarily in terms of the pain that it inflicts, rather than any long-term impact. But, the Bill is likely to be interpreted so that acts that cause severe pain without causing any lasting damage to a person’s health may not amount to torture. Thus, many cases of water-boarding, sexual assault, deprivation of food, water or sleep, whipping, rubbing chillies on sensitive body parts and other such barbaric acts readily condemned by most reasonable people may not amount to “torture” under the proposed Bill. As if this definitional ambiguity was not bad enough, the Bill is cynically silent on “other cruel, inhuman or degrading treatment or punishment”, whose prohibition is an essential requirement under the U.N. Convention.

To make matters worse, Clause 4 of the Bill lays down that even if an act qualifies as “torture”, it will be punishable only if it was committed “for the purpose of extorting … any confession or any information which may lead to the detection of an offence…; and on the ground of [a person’s] religion, race, place of birth, residence, language, caste or community or any other ground…”. So, if a police officer breaks a few bones in order to intimidate a person, to extort money, to “teach her a lesson”, or for no reason whatsoever, he cannot be punished under this bizarre Bill. Unless torture is inflicted for the purpose of extracting some information, the proposed law will refuse to take notice.

But even if this was indeed the case, there is yet another condition to satisfy — the victim must, in addition, show that the torture was based on some form of discrimination. It is true that many people are routinely tortured in India merely for being Dalit, Muslim, tribal or hijra. But the correct response is the formula in the U.N. Convention, which prohibits torture “for any reason based on discrimination of any kind” as an independent, rather than an additional, ingredient of torture. Thus, the Bill only punishes those acts of torture which result in a very serious injury, were motivated by a desire to extract a confession or information, and were discriminatory. Nothing less would suffice.

The next hurdle in this obstacle race is Clause 5, which requires that a court can entertain a complaint only if it is made within six months of the date of the offence. Victims of torture tend to be vulnerable people, who often need a lot of time to overcome the physical and psychological trauma, find support, organise resources and gather courage to make the complaint. As a general rule, criminal laws tend to prescribe no time limits whatsoever, let alone one as short as six months.

Finally, Clause 6 prohibits a court from taking cognisance of a complaint without the ever-elusive prior sanction to prosecute from the government. The Bill might as well be headed “Impunity for Torturers Bill”, for it is not meant to bring any torturer to book. It is designed to save our government from criticism in the international community and preserve the facade of a rights-respecting liberal democracy. In reality, it fails to meet the minimum standards laid down in international law and betrays a contemptuous attitude towards Indian citizens. Rudyard Kipling said that the colonial government gave its subjects:

A time to squabble in court …

Jails — and Police to fight,

Justice — at length of days,

And Right — and Might in the Right.

This may well be true of democratic India.

(The writer is a Fellow in Law, Christ Church, Oxford.)

THE LINK OF THE ARTICLE IN THE HINDU  : http://www.hindu.com/2010/05/19/stories/2010051957251300.htm

Legislation to Avoid Custodial deaths

	17:33 IST

The number of custodial deaths reported to the National Human Rights Commission during the last three years are as follows: Year                            Custodial deaths 2007-2008                               2267 2008-2009                               1943 2009-2010                               1794 The State-wise details are as under :- Sl. No. NAME OF STATE & UTs YEAR 2007-08 2008-09 2009-10 1. ANDAMAN & NICOBAR 0 1 0 2. ANDHRA PRADESH 143 149 116 3. ARUNACHAL PRADESH 1 3 1 4. ASSAM 31 38 21 5. BIHAR 231 142 142 6. CHANDIGARH 2 5 3 7. CHHATISGARH 48 42 44 8. DADAR & NAGAR HAVELI 1 1 0 9. DELHI 63 44 43 10. GOA 0 2 1 11. GUJARAT 71 97 68 12. HARYANA 69 60 45 13. HIMACHAL PRADESH 4 7 6 14. JAMMU & KASHMIR 8 1 4 15. JHARKHAND 81 63 80 16. KARNATAKA 82 77 35 17. KERALA 62 45 50 18. MADHYA PRADESH 108 93 96 19. MAHARASHTRA 384 270 223 20. MEGHALAYA 3 4 3 21. NAGALAND 2 3 2 22. ORISSA 57 58 48 23. PONDICHERRY 2 2 2 24. PUNJAB 112 78 112 25. RAJASTHAN 59 64 84 26. SIKKIM 2 0 2 27. TAMIL NADU 111 80 77 28. TRIPURA 5 8 2 29. UTTAR PRADESH 356 330 364 30. UTTARAKHAND 20 14 16 31. WEST BENGAL 149 162 104 TOTAL 2267 1943 1794 A Bill titled “The Prevention of Torture Bill, 2010” has been introduced in Lok Sabha on 26/4/2010. The Bill, inter alia, provides for  punishment to those involved in the incident of torture and specifies the time limit for taking cognizance of the offence of torture. The bill would act as a deterrent for Public Servants from indulging in custodial deaths and abuse of power by police authorities.   This was stated  by the Minister of State in the Ministry of Home Affairs, Shri Ajay Maken in written reply to a question  in the Rajya Sabha  today.