PAST, PRESENT AND FUTURE OF INDIAN GOVERNMENTMarch 2, 2019
SABARIMALA TEMPLE: THE ANTAGONISM OF FAITH AND LAWMarch 2, 2019
Recently the issue of the need for an anti-torture legislation was raised in the parliament.[i] The Supreme Court is also set to decide an interlocutory application on a similar matter.[ii] In backdrop of these two instances, we will be discussing the need for a strong legislation against torture in India in this article.
Torture, in general words, is a way of imposing the will of the strong over the weak by making the latter suffer. The United Nations Convention against Torture, 1984 [UNCAT] imposes a duty on the states to criminalise torture under Article 1 while defining 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.”[iii]
Further, Article 5 of the Universal Declaration of Human Rights states that it is the responsibility of the states to ensure no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[iv]
In India torture is a practice long prevalent in prisons. Over the years, the incidence of torture has only increased in India, with the methods becoming complex, involving psychical and physical exhaustion. A report by National Crime Records Bureau on prison statistics shows that one person dies in every six hours in Indian prisons.[v] Between the period of 1st April 2017 to 28th February 2018, 1,674 custodial deaths have been recorded in India.[vi] These numbers show the growing trends of custodial violence that could be linked to the absence of strong deterrent laws in the country.
India had signed the UNCAT in 1997 but is yet to ratify it.[vii] India is one of the few countries with lower human development index, such as Sudan and Brunei, which are yet to ratify the Convention.[viii] The Courts, various legal experts, the Law Commission of India and even the Government have time and again reiterated the need for a legislation prohibiting torture, however, the legislation seems to be in poise due to the open gap between words and actions.
Inefficient Laws to Deal with Custodial Torture
In the 21st century, the word torture today has become synonymous with the darker side of human civilisation. Still, neither the Constitution nor the penal laws define custodial torture. The only provisions under which custodial torture can be punished are Sections 330 and 331 of the Indian Penal Code, 1860 [“IPC”]. However, their application is limited to ‘grievous hurt’. Section 320 of the IPC defines ‘grievous hurt’ as any hurt which endangers life or which causes the sufferer to be during the space of twenty days from the release from prison in severe bodily pain, or unable to follow his ordinary pursuits and limits its applications to certain circumstances like a hurt which endangers life, emasculation etc. Though there are provisions which peripherally deals with torture, such as Section 49 of the Cr.P.C which states that a person arrested shall not be subjected to more restraint than necessary to prevent his escape or Section 26 of the Evidence Act which makes inadmissible the confession made in the police custody, however, they do not satisfy the growing need of a specific legislation for torture. Therefore, to treat lethal tortures which lead to deaths as mere instances of grievous hurt is to grant police a special privilege against that would fall foul of the fundamental right to life and equal protection.
The Law Commission Report on Torture
The Law Commission of India released its 273rd report last year recommending the implementation of United Nations Convention against Torture through a legislation. The Commission recommended[ix]
Amendments to the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872, to accommodate provisions regarding compensation and vesting the burden of proof on the accused officers.
Provisioning compensation to the victims with the Courts to decide on compensation after taking into account various facets of each case, such as the nature, purpose, extent and manner of injury along with socio-economic backgrounds.
Effective mechanism to protect the victims of torture, the complainants and the witnesses against possible threats, violence or ill treatment.
Strong punitive punishments for those who indulge in torturing which could range up to life imprisonment.
The State to bear the responsibility for the injuries caused by its agents on citizens, and that the principle of sovereign immunity cannot override the rights assured by the Constitution.
A draft legislation: ‘The Prevention of Torture ill, 2017’
Anti-Torture Law and the Parliament
Understanding the gravity of the situation, the Lok Sabha had passed the Prevention of Torture Bill, 2010. The Rajya Sabha referred the Bill to the Select Committee. The Select Committee proposed certain amendmentso the Bill but the Bill lapsed with the dissolution of the 15th Lok Sabha in 2014. The Bill contained a broad definition of torture which included physical and mental pain, stress and trauma. It also emphasised on torture in the context of discrimination based on sex, race, religion, which are excluded in the 2017 Bill. It allowed the complaints of torture to be filed within two years of the incident, whilst the 2017 Bill provides for six-months. The 2010 Bill had detailed criteria for compensation such as gravity of suffering, lost opportunities, and legal and medical costs. Per contra, the 2017 Bill doesn’t have any specific criteria for granting of compensation and instead has made Section 357 of the Cr.P.C as the provision through which compensation can be made.
Supreme Court and Torture
Until three decades after independence, the courts in India continued to give primacy to the doctrine of “sovereign functions” and rarely granted relief in petitions filed against the State for vicarious liability for excesses. The situation changed after Maneka Gandhi v. Union of India,[x] where the Supreme Court ruled that the State actions resulting in the violation of life and liberty must be right, just and fair. For years now, the Court has raised the issues of increasing custodial torture and has preserved the basic fundamental rights of the citizens in various cases before it. In Sunil Batra (II) v. Delhi Administration,[xi] the Court considered solitary confinement of prisoners as a human perversity that should be avoided and issued suitable guidelines. In Khatri v. State of Bihar, the Bhagalpur blinding case,[xii] the Court introduced the principle of giving compensation to the victims for the first time. The principle for calculating quantum of compensation was laid down in People’s Union for Democratic Rights v. State of Bihar.[xiii] In 1994, the Court in Arvind Singh Bagga v. State of UP introduced the principle of personal liability wherein the State could recover the compensation paid to the victim or his family from the concerned officials involved in the matter.[xiv] However, the landmark case remains to be D. K. Basu v. State of West Bengal,[xv] wherein the Court laid down the guidelines to be followed in all cases of arrest and detention in order to bring transparency and accountability.
The Prevention of Torture Bill, 2017, drafted by the Law Commission, is a unique opportunity for the government to create a comprehensive law to counter the menace of torture and address the roadblocks to the prevention of torture in India. One of the reasons for custodial torture is the police sub-culture and lack of proper training. For a long time now, the culture of custodial torture is prevalent in Indian prisons. A strong legislation would act as the mode of deterrence and will make the prisons safer for the accused. The custodial torture is a violation of human dignity involving various fundamental rights. An arrested person has the right to life and liberty and it could only be taken away by the procedure established by law. Thus, the torture inflicted on a person is a violation of Article 21 of the Constitution. It is noteworthy that even after 71 years of independence and 21 years after signing UNCAT, no substantial steps have been taken to effectuate it. It is high time that the Government ratify UNCAT and bring a legislation with strong penal provisions ensuring that anyone indulged in the act of torture should not get away from the hands of justice.
[i] Dr Shashi Tharoor urges govt to bring law against torture, LIVE LAW, December 13, 2018
[ii] Ex-minister plea for anti-torture law, TELEGRAPH INDIA, March 31, 2017
[iii] Article 1, United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[iv]Article 5, Universal Declaration of Human Rights
[vii] India should ratify UN Convention against Torture, THE HINDU, February 17, 2013
[viii] India among 9 nations that have not ratified UN Convention against Torture , OUTLOOK, May 4, 2017
[x] Maneka Gandhi v. Union of India 1978 AIR 597
[xi] Sunil Batra (II) v. Delhi Administration1980 AIR 1579
[xii] Khatri v. State of Bihar AIR 1981 SC 928
[xiii] People’s Union for Democratic Rights v. State of Bihar. AIR 1987 SC 355
[xiv] Arvinder Singh Bagga v. State of UP 1994 6 SCC 565
[xv] D.K. Basu v. State of West Bengal 1997 1 SCC 416
ABOUT THE AUTHORS
Raja Reeshav Roy and Ankit Shubham are third year B.A. LL.B. students at National
Law University, Jodhpur.
In Content Picture Credit: Dhaka Tribune