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UNTOUCHED WATERS OF TORTURE BY THE LEGISLATURE

By

1. K Kusum Reddy, 2nd year of BBA LLB student at Symbiosis Law School, Hyderabad

2. Pratibha Mishra,2nd year of BA LLB student at Symbiosis Law School, Hyderabad

Introduction

On 23rd June 2020 the whole of India woke up to the news of the death of P. Jayaraj (the father) a day after the death of J. Benicks (the son) who were subjected to custodial torture by the Sattankulam Police (Tamil Nadu) on 19th June 2020 on the grounds of breaking the lockdown rules and keeping their shop open even after 8 p.m. But later it was found from the nearby shop’s CCTV that the police arrived minutes before it was 8.[i]


IPC provisions do not cover certain aspects like the method of inflicting mental/physical pain, etc., (as in section 324A) this issue becomes a greater deal and there are also various sections under Hurt in the IPC from 319 to 338, there is no one section which talks about torture (even in CrPC or the Indian Evidence Act)[ii] and specifically sections 326, 330, 331 and 336 which penalize causing hurt to one’s body and endangering one’ life and liberty, merely talk about physical hurt and fail to assimilate the mental and psychological aspects of hurt that can be caused (as torture defined in the case of Arvinder Singh Bagga v. State of U.P.).[iii]United Nations Convention Against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) also known as Convention Against Torture (CAT) to which India is a party defines Torture in Article 1 and it includes any physical or mental pain or suffering inflicted on a person and also specifically includes an infliction caused by the permission of a public official or by any other in their official capacity.[iv]


Background of the Study

In the Indian context, the figures are enough to assess the crudity and atrocity of police personnel, the year 2019 recorded 117 deaths in police custody while 1606 people succumbed to torture in judicial custody. On average, 5 people die every day in custody and perpetrators get away with it very easily without facing conviction for it in our country, which is very unfortunate.[v] To add to that, in many instances, cases could not even get registered. The National Crime Records Bureau in its study revealed that between 2005-2018, only 593 out of 1200 death cases were reported, which is even less than half of the total cases.[vi].According to the Asian Centre for Human Rights, there is a sharp 19% increase in the custodial deaths recorded by NHRC from 2009-10 to 2018.[vii]In India, the brutality of police officials is seen more often amongst poor and underprivileged people as they account 71.58% of the custodial death.[viii]These numbers are quite distressing since we are talking about a country which claims to be a democratic liberal with a list of constitutional provisions aiming to safeguard the interests of people.


Legislation of most of the countries have strictly prohibited the use of torture against prisoners or under-trials,[ix] even International instruments and conventions have condemned the practice of custodial torture.[x] Universal Declaration of Human Rights, 1948 (UDHR), Article 5 states, “No one shall be subjected to tore or cruel, inhuman or degrading treatment or punishment.”,[xi] the same has been adopted under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which India has already ratified.[xii]Taking a look on Indian laws, as stated earlier there is no specific provision but article 21 of Indian Constitution[xiii] the term ‘life’ does not only enumerate physical presence but it also vows to its citizens' protection from assault or torture even by the States or its functionaries.[xiv]


Judiciary’s Upper hand

The Indian Judiciary has time and again expressed its solidarity towards putting an end to custodial torture. In The State of Andhra Pradesh v. N. Venugopal,[xv] the Supreme Court specified the absence of provision allowing for torture by the police and later in the case Rama Murthy v. State of Karnataka,[xvi] it also identified addressing torture in prisons as one of the reforms that need to be made. Also, in Raghubir Singh v. State of Haryana[xvii], the court clearly expressed its concern, grief and sympathy over police torture affecting the lives of common citizens.


But the Indian Judiciary created a buzz when in the landmark judgment of D.K Basu v. State of W.B.,[xviii] SC said that custodial violence and torture should be curtailed by the very law which bestows upon the executive their powers. Though there is an absence of a provision for torture the Indian courts never backed from seeking references to the United Nation Conventions and other International Arrangements along with the fundamental rights under the Indian Constitution. In Khatri & Ors v. State of Bihar,[xix] Haricharan v. State of M.P,[xx] and in Mehmood Nayyar Azam v. State of Chhattisgarh,[xxi] the Supreme Court clearly expressed its view on how custodial violence, torture, harassment, etc., violate the very spirit of the constitution and the fundamental right of such victims. The Supreme Court has also acknowledged the fact in cases of and custodial violence and torture the collection of evidence is difficult,[xxii] so the Apex institution has also recently ordered the installation of CCTVs in police stations across the nation also asked for compliance affidavits from Centre, States and Union Territories for the same.[xxiii]


Legislature Slacking to introduce Torture Laws

Coming to the Legislature there are major lapses in arriving at conclusions to incorporate ‘torture’ in the existing legislation. There have always been efforts from various International Arrangements and treaties, individuals and commissions, but it has always been sidelined by the Parliament.


Firstly, even though India has signed the Convention Against Torture (CAT) it was never ratified making it one of the most debatable political and legal shortcomings of India;[xxiv] similarly despite India signing the other declarations like Universal Declaration of Human Rights (1948) which also very well incorporate torture, India failed to actively reflect the same in its policies. Secondly, various Law Commission Reports of the years 1985, 1994, 2001 and 2003 respectively have in some way suggested amendments to the Criminal Codes to reduce the injuries, deaths, torture, etc. committed by officials, the most recent being the 273rd Report of National Law Commission on ‘Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation’ (2017)[xxv] where the idea of including ‘Torture’ in the Criminal Justice System of the country has been specified.


Thirdly, the UPA government introduced Prevention of Torture Bill in the Lower house and was passed in the year 2010, but it later lapsed in the Upper House.[xxvi] Now this very fact shows the lack of solidarity and concern to legislate torture in India by the Parliament. Fourthly, in a Civil Write Petition (2018)[xxvii] filed by Dr. Ashwani Kumar (former Union Law Minister), the Supreme Court issued a notice to the Central Government to ratify CAT and also to legislate law preventing torture and inhuman treatment describing torture as a tool to ‘degrade humanity’ and Dr. Kumar also mentioned that a lot of countries disapprove the extradition of criminals due to India’s issues with torture and inhuman treatment backed by no legal framework.


Inspiration to Borrow

England and Wales have a well-defined statutory provision for torture- section 134 of the Criminal Justice Act, 1988[xxviii] defines torture unambiguously and clearly: it specifies it as- public official inflicting “severe pain or suffering on another” while performing their official duties or any other person (whatsoever may the nationality be) if commits torture with or without consent of public official will be liable to imprisonment for life. It makes it clear that pain or suffering can be physical or mental. It also provides for defence for a person charged under this section to provide a ‘lawful justification’ of the same and in detail explains ‘lawful justification’ concerning pain or suffering inflicted within and beyond the boundaries of United Kingdom. UK’s law here seems to fit India perfectly given the suggestions of courts and the severity of this issue wrapped in all kinds of legal and human rights violations screaming for immediate reforms.


Conclusion

Since ‘torture’ is left unrecognized as an offence by the Indian legislation, it causes inconsistency as the use of ‘force’ by the judiciary instead of it could fall short in comprising all the elements of torture, the mental injury inflicted to the victims is one of them. With the cases of torture spiking up, it is a matter of grave concern and needs immediate attention of the government. Being a signatory to the UN Convention of Torture and still lacking in strict laws against torture is very infelicitous. Recent guidelines of the apex court do make the CCTV camera to be mandatorily installed in all the police stations but that would not suffice, comprehensive reform is required to put a restraint on custodial torture. The police personnel have been acting with cruelty towards the accused or offenders without a reasonable rationale causing grave abuse of power granted to them. Unless the case is very severe, it could not even come to the notice of the judiciary and in most of the cases justice fails to endure and the matter is then and there buried by the police personnel. The incident happened in Kerala a few months back is an eye-opener for all, we might not want to witness more of cases like Jayaraj-Benix that compels us to question what we have got in the name of democracy, ain’t we heading back to the era of dictatorship where the state’s pieces of machinery seem tyrannical towards its people?


Based on the above study, researchers have come up with the following suggestions:

1. A new section for torture must be added in Chapter XVI- of Hurtconsisting of pain or suffering inflicted includes physical and mental torture by public servants or with the consent of public servants or by any person in their capacity irrespective of their nationality. It must also include the punishment, preferably stripping of official posts, life imprisonment and damages for the victim (suggestion taking inspiration from UK’s section 134 of the Criminal Justice Act, 1988 dealing with torture).


2. In these cases, if any prisoner has injuries while in jail, it should be presumed to be inflicted by the Officials on Duty and to prove otherwise should be the Official’s burden.


3. The guidelines are given by the Supreme Court in D.K. Basu’s case must be taken into consideration while framing the respective laws.


4. India must ratify the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment showing solidarity to the International Laws and the victims who have been subjected to torture and inhuman behaviour.

[i]Sattankulam Case: CBI collects blood sample of victim’s wife, The Hindu (Last Updated: Sept. 1, 2020), available at: https://www.thehindu.com/news/national/tamil-nadu/sattankulam-case-cbi-collects-blood-sample-of-victims-wife-tirunelveli-madurai/article32498930.ece.

[ii]Indian Penal Code, 1860, Chapter XVI Of Offences Affecting The Human Body- Of Hurt, available at: http://legislative.gov.in/sites/default/files/A1860-45.pdf

[iii] AIR 1995 SC 117.

[iv]United Nations Convention Against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[v]Custodial Torture Continues Unabated in India Amidst Culture of Impunity: Report, iThe Wire (Last Updated: Jul. 8, 2020), available at https://thewire.in/rights/custodial-torture-continues-unabated-in-india-amidst-culture-of-impunity-report.

[vi] Aishwarya Mohanty &Neetika Vishwanath,Comprehensive reforms, not just CCTVs, can end custodial torture, The Indian Express (Last Updated: Dec. 11, 2020), available athttps://indianexpress.com/article/opinion/columns/police-custodial-torture-cases-cctvs-7100133/

[vii]India refuses to ratify UN Convention Against Torture despite 19% rise in custodial deaths, Asian Centre for Human Rights, 4th July, 2019, http://www.achrweb.org/achr-in-media/india-refuses-to-ratify-un-convention-on-torture-despite-19-rise-in-custodial-deaths/

[viii]Poor account for 71% of custodial deaths in India, The Hindu (Last Updated: Dec. 10, 2020), available at:https://www.thehindu.com/news/national/other-states/poor-account-for-71-of-custodial-deaths-in-india/article33296633.ece

[ix] Mary-Hunter Morris McDonnell, Loran F. Nordgren & George Loewenstein, Torture in the Eyes of the Beholder: The Psychological Difficulty of Defining Torture in Law and Policy, 44 VAND. J. Transnat'l L. 87, 89 (2011) available at https://elibrary.slsh.edu.in:2094/HOL/Page?public=true&handle=hein.journals/vantl44&div=5&start_page=87&collection=journals&set_as_cursor=8&men_tab=srchresults.

[x] Nirman Arora, “Custodial Torture in Police Stations in India: A Radical Assessment”, 41 J. of the Indian L. Inst., 513, 519 (1999) available at https://www.jstor.org/stable/43953348?Search=yes&resultItemClick=true&searchText=custodial+torture+in+India&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dcustodial%2Btorture%2Bin%2BIndia&ab_segments=0%2Fbasic_SYC-5187_SYC-5188%2F5188&refreqid=fastly-default%3Aa53072ee55576bfe15695d56480a4c8a&seq=1#metadata_info_tab_contents.

[xi]India Const. art. 21, available at https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021#:~:text=Constitution%20of%20India&text=Protection%20of%20life%20and%20personal%20liberty.&text=No%20person%20shall%20be%20deprived,to%20procedure%20established%20by%20law.

[xii]Universal Declaration of Human Rights, art. 5, Dec. 10, 1948, available at https://www.un.org/en/universal-declaration-human-rights/#:~:text=Article%205.,or%20degrading%20treatment%20or%20punishment.

[xiii]The International Covenant on Civil and Political Rights, art. 7, Dec. 16, 1966, available at https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

[xiv] D.K. Basu v State of W.B. (1997) 1 SCC 416.

[xv] AIR 1964 SC 33.

[xvi] AIR 1997 SC 1739.

[xvii]AIR 1980 SC 1087.

[xviii]Supra note xi.

[xix] AIR 1981 SC 928.

[xx] (2011) 4 SCC 159.

[xxi]AIR 2012 SC 2573.

[xxii]Munshi Singh Gautam vs. State of M.P., (2005) 9 SCC 631.

[xxiii]Paramvir Singh Saini V. Baljit Singh & Ors., 2020 SCC OnLine SC 983.

[xxiv] 273rd Law Commission Report- Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation (2017) available at: www.lawcommissionofindia.nic.in/reports/Report273.pdf.

[xxv]Supra note xxii.

[xxvi] Parliament of India- Lok Sabha, http://loksabhaph.nic.in/Legislation/billslapsed.aspx.

[xxvii]Miscellaneous Application No. 2560 of 2018 in W.P. (Civil) No. 738 of 2016.

[xxviii]Criminal Justice Act, 1988 C. 33, § 134, s.12 (Eng.), available at: https://www.legislation.gov.uk/ukpga/1988/33/part/XI/crossheading/torture (Last visited Dec. 16, 2020).