ABSTRACT
The prevention of torture has been a main feature of human rights development in the recent decades. Before the 2017 torture bill there was legislation proposed called 2010 torture bill which eventually did not see the light of the day, as it failed to meet the international law obligations, therefore the 273rd law commission report proposed the 2017 Torture Bill. The apparent requirement for enabling this legislation is that India should ratify the United Nations convention against torture, cruelty and other inhuman treatment and criminalize torture in domestic law. The bill aims to punish the public servants who inflict torture or who abet to inflict torture. The police have the uncontrolled power in the instances of torture which infringes the fundamental rights of the custodial victims as even though there are provisions which deal with torture and such other degrading treatment, they do not satisfy the growing need of the said legislation. Hence the main purpose behind implementing this law is to provide compensation to victims of custodial violence and torture.
The article attempts to critically summarize and analyze the important aspects in the bill as follows- firstly the definition of torture and punishment for torture, secondly examines the constitutional and statutory provisions, and thirdly discusses the judicial response to torture in India. Finally the authors argue that though the intention of the legislature is to prevent torture still it failed as there is inefficient legal framework in the domestic law and gives recommendations that would meet the hands of justice.
- INTRODUCTION
Torture violates most of the laws, still it survives. Torture in prisons has been a practice since ages in India. The prevalence of torture has only increased in India. Torture in simple words, is a way of inflicting the will of strong over weak and make them suffer. Power tends to corrupt the authority which means to say that authorities abuse their power and inflicts torture in variety of forms. It is the ‘duty of the state to ensure no one is put through torture, inhuman or degrading treatment’.[1] Though the principles say no torture the reports by National Crime Records Bureau show that thousands of custodial deaths in a year have been recorded in India.[2] These statistics show growing trends of violence which is due to absence in deterrent laws in India. It cannot be said that freedom of individual is less compared to safety of state because a Latin maxim “salus populi est suprema lex (safety of the people is the supreme law); salus reipublicae suprema lex (safety of the State is supreme law) co-exist.
United Nations convention against torture (herein after referred as UNCAT) has been adopted by the General Assembly in 1975. India signed the convention in 1997, but due to the inefficient laws in domestic level torture could not be criminalized and is yet to ratify it. In that regard 273rd law commission, various other law experts have time and again reinstated to amend the existing laws or to bring a new legislation. Then discussions were held with Attorney General and they decided to enact a legislation to ratify and implement the convention against torture (herein after referred as CAT) called Torture Bill 2017.
The bill undoubtedly is in the right direction, but the scope remains unsatisfactory. As the bill fails to comply with UNCAT and numerous legal mechanisms. The bill as we shall see, has failed miserably in terms of minimum standard of protection that needs to provide for proper implementation of the UNCAT against such custodial torture. The authors will demonstrate the approaches which will strengthen the regulative framework and promote accountability and justice.
- SIGNIFICANCE OF THE BILL
The bill has two main commitments namely- extradition request and moral commitment, hence the two are analyzed by the authors – India made many request for the extradition of the criminals from other countries, but in vain. The requests for extradition fail because of India’s prisons as they are over -crowded and the torture by the police personnel. Many extradition courts from other countries refused to send the persons to India for the trail as there no effective system to protect the offenders from torture. Therefore having an anti-torture legislation is a necessity.
Moral commitment- Custodial violence persists to be prevalent in the country. Suspects are being forced to confess for the undone wrongs which is been a practice prevailing against the human rights (Ryan school murder case[3]– class 11 student was apprehended by the CBI for killing a 7 year old boy). Hence enacting a law to eradicate such forms of cruelty by public servants is a moral responsibility for India.
Ratifying the UN convention and making it effective with domestic law can give a model to these commitments.
- DEFINITIONAL CHALLENGE
It was stated in a landmark case[4] by Supreme Court that “torture has not been defined in any law. Torture by one human being over other is like imposing will of dominant over shaky by making them suffer.
Section 3 of the torture bill 2017, states that “A person being a public servant or being abetted or with the consent of the public servant intentionally does any act to punish or obtain information from any person in the police custody or causes grievous hurt, danger to life (mental or physical) amounts to torture. But it does not amount to torture if that act is inflicted according to procedure established by law. Also according to this section public servant also means a person who acts in the official capacity of government.”
Section 4 of the 2017 torture bill states as follows, the punishment for such offence according to the bill is imprisonment for a term which shall not be less than three years but which may extend to ten years and also be liable to fine.
According to the authors the definition completely fails as it does not meet the definition provided in UNCAT. The bill covers only the acts of grievous hurt or which endangers life etc, but the convention[5] extends to severe pain and suffering as well. Also, the definition of torture has same meaning as assigned under Indian Penal Code, 1860. Grievous hurt under IPC is defined under section 320 which only has eight categories which are treated as grievous. But, there are many third degree common methods like electric shocks, punching, cigarette burning, etc. which do not amount to torture if they do not fall under the term grievous hurt mentioned in the section. Also, not providing food or giving spoiled food amounts to torture but does not come into the ambit of the bill and the bill does not take into consideration the aspect of coercion. If the act caused grievous hurt, but is not for inflicting confession or information then it would not amount to torture. Hence the bill fails to notice the present situation and allows the perpetrators to escape from indemnity which destroys the object of the bill.
The saga unfolds that various known rulers and combatants were subjected to physical and psychological torture after they lose the battles. Though there is human advancement in the present century there still exists a darker side in the human nature, where there is no place for moral or spiritual values of any kind are respected.
- CONSTITUTIONAL AND STATUTORY PROVISIONS
Article 20(3)[6] states that no accused shall be forced to be a witness against himself. The accused also has the right to maintain silence till the commencement of the trial.[7] Though the polygraph and brain printing tests have been the testimonial compulsions, they have been barred by article 20(3) as they are a form torture.[8]
Article 21[9] states that no person can be deprived of his life and liberty without following the proper procedure established by law. The Supreme Court has reinstated many times that custodial torture violates right to life mentioned in article 21 of the constitution. A punishment which is too cruel or torturous is said to be unconstitutional.[10] No law authorizes such custodial torture and it can never suffice the test of reasonableness and non-arbitrariness which is unconstitutional by article 21 of the Indian constitution.[11] In a historic case[12] it was held by the Supreme Court that “fundamental rights are not curtailed when a person enters into the police custody but has to suffer the necessary shrinkage of imprisonment”.
Section 24 of Indian Evidence act, 1872, states that any confession obtained from an accused by inducement, threat or promise to avoid any evil of temporal nature is irrelevant in the eyes of law. The Supreme Court in a case[13] held that: There are cases in which the accused gives the information without any compulsion. It is an infringement to fundamental right of article 20(3) only when the accused is compelled to give information.
Sections 46(3) and 49 of Code of Criminal Procedure, 1973, protect the person who is arrested and is under police custody, and who is not accused of an offence punishable with death or imprisonment for life. The detainee cannot be contingent to more prudence than is necessary to prevent his escape. Section 54 Code of Criminal Procedure, 1973, extends protection to arrested person against custodial torture by providing medical examination by officer. Sections 162, 163(1) and 315[14] disallow forced confession and testimony, as inadmissible in the court of law and protect the accused against such confessions.
Sections 330, 331, 342 and 348 of Indian Penal Code, 1860, have been designed purposely in such a way that police officers can arrest a person and interrogate him during investigation of an offence resorting to third degree methods, which may amount to torture. This is a flaw in the law which completely gives immunity to the police officers which leads to abuse of power.
From the existing hereinabove provisions the 273rd law commission report has recommended to insert a provision regarding payment of compensation to victims. Also the commission is of the opinion (to recommend a provision in Indian Evidence act) that state would be responsible for the injuries sustained in the custody as the burden would lie on the state.
- JUDICIAL RESPONSE TO CUSTODIAL VIOLENCE
Indian courts have considered issues of fake encounters and violence used by police for obtaining confession from innocent people for offences which they have not committed in many cases.
In the case of Mehboob Batcha v. State[15], policeman has wrongfully arrested deceased on suspicion of theft and beat him to death with lathis and also gang raped his wife in brutal manner. This conduct of the police (accused) shocked the court and the court ruled that public servants should know how to behave in a democratic country and they should not act like an autocrat.
It is ruled in Dagdu & Ors. v. State of Maharashtra[16], that Police authorities are the custodians of law and if they indulge in committing a crime then no person in the society can be safe. If the person who has to provide security indulge in such methods then that will create a fear in the minds of citizens. It is more like a captain of game becoming an angler.
In the case of CBI v. Kishore Singh[17], victim was confined in custody by a constable without a complaint presuming illicit relationship with relative. Victim’s penis was chopped off with a sharp weapon. The Supreme Court while dealing with this matter observed that there will be no witness to support this outrageous crime as police station is not a public place, also held that if a police officer commits such a crime then he should be awarded with more harsher punishment then what is ordered to an ordinary citizen in that place.
In Gauri Shanker Sharma etc. v. State of U.P[18], it was concluded that, In India it is generally difficult to procure evidence against police authorities for the death caused in custody by means of third degree methods as they are in charge of the police station and they can easily manipulate the police records.
The court in Prakash Kadam v. Ramprasad Vishwanath Gupta[19], held that when a fake encounter is proved against a police official then he has to award death penalty. Also it was held that the police officials cannot take an excuse stating that they have carried their superior officer’s order.
Therefore, it could be observed from the above judicial judgments that torture by a police authority is criticized by the courts. Torture is a controversial issue which directly infringes the right to life and liberty. Hence the commission was of the view that a strong legislation is need to curb all such heinous activities with a harsher punishment.
- CONCLUSION
The Prevention of Torture Bill, 2017, drafted by 273rd law commission creates a distinct opportunity for the government to address the torture by public servants and prevent it in India. The State must protect victims of torture and ill-treatment as the citizens are deeply disturbed by the wicked repeated torture by police which is resulting in awful fear in the minds of common individuals that their human rights are at stake because of the preserver of law. If the office bearer himself becomes the law breaker then it would amount to contempt of law and every man by this would tend to break the law thereby leading to chaos. Forbearance of act of barbarity by police amounts to acceptance of structured corrosion of rule of law. Therefore considering the magnitude of cases the no immunity should be given to the officials. It is notable that even after many years of independence and after signing UNCAT in 1997, no considerable steps have been taken into account. It is good time that the government ratifies the convention and brings in the legislation to action and certifies that any person indulging in the offence will not get away from hands of justice.
- RECOMMENDATIONS
Based on the analyses of the bill, the author’s recommends following – Training and reorientation courses should be provided for the change in mindset and the attitude of the police officers. Investigation should be done by independent agencies on the complaints of custodial violence and inhuman treatment by the police authorities. It is also observed by the authors that as there would be no evidence or witness in police station against the outrageous act, the three pillars of the Government should persuade deep scientific investigation through proper legal procedures, followed by prompt and efficient prosecution. If a police authority refuses to register a case of custodial violence then magistrate should have the power to grant preliminary enquiry. The courts should decide the justified compensation taking into account nature of the injury, mental agony, and socio-economic background of the victim. Ultimately the authors suggest that the power of executives should not only be derived from law but limited by law. Torture should be restrained and punishment should be given in such a deterrent manner that there would be no place for mercy.
[1] Universal Declaration of Human Rights, art.5
[2] National Crime Records Bureau, http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.
[3] Leena Dhankhar, One murder, three families, and a long wait for justice, hindustantimes, Sep 8, 2019.
[4] D.K. Basu v. State of West Bengal, A.I.R. 1997 S.C. 610 (India).
[5] UNCAT, 1987, art. 1.
[6] INDIA CONST. art. 20, cl. 3.
[7] Yogendra Kumar Jaiswal & Ors. v. State of Bihar & Ors., A.I.R. 2016 S.C. 1474 (India).
[8] Smt. Selvi v. State of Karnataka, A.I.R. 2010 S.C. 1974 (India).
[9] INDIA CONST. art. 21.
[10] Inderjit v. State of Uttar Pradesh, A.I.R. 1979 S.C. 1867 (India).
[11] The State of Andhra Pradesh v. N. Venugopal A.I.R. 1964 S.C. 33 (India).
[12] Sunil Batra v. Delhi Administration A.I.R. 1978 S.C. 1675 (India).
[13] State of Bombay v. Kathi Kalu Oghad, A.I.R. 1961 S.C. 1808 (India).
[14] Code of Criminal Procedure, 1973.
[15] Mehboob Batcha v State, (2011) 7 S.C.C. 45 (India).
[16] Dagdu & Ors. v. State of Maharashtra, A.I.R. 1977 S.C. 1579 (India).
[17] CBI v Kishore Singh, (2011) 6 S.C.C. 369 (India).
[18] Gauri Shanker Sharma etc. v. State of U.P, A.I.R. 1990 S.C. 709 (India).
[19] Prakash Kadam v Ramprasad Vishwanath Gupta, (2011) 6 S.C.C. 189 (India).
