LEGISLATIVE FRAMEWORK ON CUSTODIAL TORTURE IN INDIA BY - MALSAWMTLUANGI RAWITE & VANLALTHLAMUANI
LEGISLATIVE FRAMEWORK ON CUSTODIAL TORTURE IN INDIA
AUTHORED BY
- MALSAWMTLUANGI RAWITE
&
VANLALTHLAMUANI
LL.M
(Criminal Law)
Amity
Institute of Advanced Legal Studies
ABSTRACT
Custodial torture is universally held
as one of the cruellest forms of human rights abuse. The Constitution of India,
the Supreme Court, the National Human Rights Commission (NHRC), and the United
Nations strongly condemn it. However, the law enforcement authorities across
the country defy these institutions in utter disregard to the basic fundamental
rights of an individual embodied in the Constitution of India. It is one of the
heinous crimes for the entire human kind, where people believing that police
are meant for their protection and police itself taking disadvantage of their
authority. Therefore, there is an urgent need to strike a balance between
individual human rights and societal interests in combating crime by using a
realistic approach.
Introduction
The rule of law means that no one
shall be deprived of his liberty except with the authority of a law and all
persons shall be equal before the law. It means that even the Government and
its agents have to act according to and within the limits of the law . State or
region and the wings of the State, the law and order machinery, i.e., the
police. Custodial torture, inhuman treatment, handcuffing prisoners, third
degree methods which are often used and practiced by police officials during
the course of their official duties are against the norms of the civilised
nations and are barbarous activities violative of the principles of rule of law
and human dignity. The main objective of the police is to apprehend criminals,
to protect law abiding citizens, to prevent commission of crimes and to
maintain law and order . In India, torture is not expressively prohibited by
the Constitution but the Ministry of Home Affairs has claimed that Indian law
contains adequate provisions for safeguarding human rights and sufficient
safeguards against police brutality and torture also exist. Although, the
prohibition of torture in specific terms lacks Constitutional authority, Indian
courts have held that Article 21 of the Constitution implies protection against
torture.
Provisions under the Indian Legal System: To Protect a Person from
Custodial Torture
·
Protection against Conviction or Enhanced
Punishment under Ex-Post Facto Law
Article 20(1) of the Constitution of
India provides that, no person shall be convicted of any offence except for
violation of law in force at the time of commission of the act charged as an
offence, nor be subjected to any greater penalty than that which might have
been inflicted under the law in force at the time of the commission of an
offence. The concept of ex-post facto law has its roots in the maxim nulla
poena sine lege, which profounds the idea that no man shall be made to suffer
except for a distinct breach of the criminal law.
·
Protection against Double Jeopardy
Article 20(2) of the Constitution of
India provides that,
No person shall be prosecuted and
punished for the same offence more than once.
Article 20(2) is based on the maxims
nemo debet bis vexari, si constat curiae quod sid pro una et eadem causa, which
means that no one must be vexed twice if it appears to the court that it is for
one and the same cause.
·
Right not to be Witness against
Himself
Article 20(3) of the Constitution of
India provides that, No person accused of any offence shall be compelled to be
a witness against himself.
The Constitutional protection against
testimonial compulsion on the premise that such compulsion may act as subtle
form of coercion on the accused and it is also the underlying theme of several
statutory provisions – particularly Sections 24-26 of the Indian Evidence Act.
Article 20(3) of the Constitution comes into operation as soon as a formal
accusation is made whether before the commencement of a prosecution or during
its currency. The legal perils following upon refusal to answer or answer
truthfully cannot be regarded as compulsion within the meaning of Article
20(3). On the other hand, if there is any mode of pressure, subtle or crude,
mental or physical, direct or indirect but sufficiently substantial, applied by
the policeman for obtaining information from an accused strongly suggestive of
guilt, it becomes ‘compelled testimony’, violative of Article 20(3).
Section 163(1) of the Code of Criminal Procedure, 1973 provides that,
(1) No police officer or other person
in authority shall offer or make, or cause to be offered or made, any such
inducement, threat or promise as is mentioned in Section 24 of the Indian
Evidence Act, 1872 (1 of 1872).
Section 348 of Indian Penal Code, 1860 provides that,
Whoever wrongfully confines any
person for the purpose of extorting from the person confined or any person
interested in the person any confession or any information which may lead to
the detection of an offence or misconduct, or for the purpose of constraining
the person confined or any person interested in the person confined to restore
or to cause the restoration of any property or valuable security or to satisfy any
claim or demand, or to give information which may lead to the restoration of
any property or valuable security, shall be punished with imprisonment of
either description for a term which may extend to three years, and shall also
be liable to fine.
Section 24 of the Indian Evidence Act, 1872 provides that,
A confession made by an accused
person is irrelevant in a criminal proceeding, if the making of the confession
appears to the Court to have been caused by any inducement, threat or promise,
having reference to the charge against the accused person, proceeding from a
person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him reasonable for supposing that
by making it he would gain any advantage or avoid any evil of a temporal nature
in reference to the proceedings against him.
Section 25 the Indian Evidence Act, 1872 provides that,
No confession made to a
police-officer shall be proved as against to a person accused of any offence.
Section 26 the Indian Evidence Act, 1872 provides that,
No confession made by any person
whilst he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such persons.
Section 27 the Indian Evidence Act, 1872 provides that,
When any fact is deposed to as
discovered in consequence of information received from a person accused of any
offence in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
·
Right to Life and Personal Liberty
Article 21 of the Constitution of India provides that,
No person shall be deprived of life
or personal liberty except according to procedure established by law.
Article 21 does not contain any
express provision against torture or custodial crimes. The expression ‘Life or
personal liberty’ occurring in the Article has been interpreted to include
constitutional guarantee against torture, assault or injury against a person.
·
Right
to be Informed of the Ground of Arrest
Article 22 (1) of the Constitution of India provides that,
No person who is arrested shall be
detained in custody without being informed as soon as may be, of the grounds
for such arrest, nor shall he be denied the right to consult and to be defended
by a legal practitioner of his choice.
Section 49 of the Code of Criminal Procedure, 1973 provides that,
The person arrested shall not be
subjected to more restraint than is necessary to prevent his escape.
Section 50 of the Code of Criminal Procedure, 1973 provides that,
Person arrested to be informed of
grounds of arrest and of right to bail.
Section 55A of the Code of Criminal Procedure, 1973 provides that,
It shall be the duty of the person
having the custody of an accused to take reasonable care of the health and
safety of the accused
Section 75 of the Code of Criminal Procedure, 1973 provides that,
The police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person
to be arrested, and, if so required, shall show him the warrant.
·
Right of an Accused Person to Counsel
Right to Counsel is a fundamental right
under the Constitution of India by virtue of Article 22 (1).
Section 41D of the Code of Criminal Procedure, 1973 provides that,
When any person is arrested and
interrogated by the police, he shall be entitled to meet an advocate of his
choice during interrogation, through not throughout interrogation.
·
Protection against Illegal Arrest
Article 253 of the Constitution of India provides that,
Notwithstanding anything in the
foregoing provisions of this chapter, Parliament has power to make any law for
the whole or any part of the territory of India implementing any treaty or,
agreement or convention with any other country or countries or any decision
made at any international conference, association or other body.
·
Provisions under Navy Act, 1957
Section 85 of the Navy Act, 1957 provides that,
No person subject to naval law who is
arrested under this Act shall be detained in naval custody without being
informed, as soon as may be, of the grounds for such arrest.
Section 86 of the Navy Act, 1957 provides that,
The charge made against any person
subject to naval law taken into custody shall without any unnecessary delay be
investigated by the proper authority and as soon as may be either proceedings
shall be taken for the trial or such person shall be discharged from custody.
Section 87 of the Navy Act, 1957 provides that,
The commanding officer shall be
responsible for the safe custody of every person who is in naval custody on
board his ship or in his establishment. The officer or sailor in charge of
guard, or a provost-marshal shall receive and keep any person who is duly
committed to his custody.
Prevention of Torture Bill, 2010
The Prevention of Torture Bill, 2010
was introduced in the Lok Sabha on 26 April 2010 to allow India to ratify the
United Nations Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment. It was passed by the Lok Sabha on the 6 May 2010.
However, in the Rajya Sabha, the Government was forced to refer the Bill to a
Parliamentary Selection Committee. The Government of India stated that the law
is being enacted to provide punishment for torture inflicted by public servants
or any person inflicting torture with the consent or acquiescence of any public
servant and matters connected therewith or incidental thereto.
The Bill contains only three
operative paragraphs relating to (1) definition of torture (2) punishment for
torture and (3) limitations for cognizance of offences. It lacks many of the
key provisions of the United Nations Convention against Torture. The three
paragraphs outlined in the Bill also fall short of obligations that the
ratifying parties to the United Nations Convention against Torture must
undertake.
·
Definition of Torture
Section 3 of the Bill defines torture
as : whoever being a public servant or being abetted by a public servant or
with the consent or acquiescence of a public servant, intentionally does any
act for the purpose to obtain from him or a third person such information or
confession which causes:-
(i) grievous hurt to any person or
(ii) danger to life, limb or health
(whether mental or physical) of any person, is said to inflict torture.
Provided that nothing contained in
this section shall apply to any pain, hurt or danger as aforementioned caused
by any act, which is inflicted in accordance with any procedure established by
law or justified by law.
Article 1(1) of the UNCAT defines
torture as any act by which severe pain or suffering whether physically or
mentally, is 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.
The degree of harm required to
constitute torture is more severe in the Bill, whereas the Convention’s
threshold starts from ‘pain or suffering’. The Bill states that only actions
that cause actual damage or danger constitute torture. The Bill relies on the
definition of ‘grievous hurt’ found in the Indian Penal Code. Certain acts,
which are already considered as torture under Section 330 of the Indian Penal
Code, have been consciously evaded in the definition. Here, simple ‘hurt’ by a
public servant would call for a punishment of a seven year term and fine.
Section 4 of the Bill infuses an
additional and restrictive element into the definition of torture. Section 4
provides that where the public servant referred to in Section 3 or any person
abetted by or with the consent or acquiescence of such public servant, tortures
any person:
a) for the purpose of extorting from
him or from any other person interested in him, any confession or any
information which may lead to the detection of an offence or misconduct and
b) On the ground of his religion,
race, place of birth, residence, language, caste or community or any other
ground whatsoever shall be punishable with imprisonment of either description
for a term which may extend to ten years and shall also be liable to fine .
On the question of quantum of
punishment there is no advancement in the existing provisions under Section 331
IPC, which punishes grievous hurt with imprisonment up to 10 years and fine.
But, for an act causing ‘danger to life’, which would be prosecutable under
Section 307 IPC and attract punishment for life, the proposed Bill, in fact,
seeks to reduce the punishment as Section 4 of the Bill provides imprisonment
for a term which may extend to ten years. Section 4 of the proposed Bill does
not lay down any minimum sentence for a person found guilty of torture. The
Select Committee suggested that a minimum punishment of three years be given to
make the law more of a deterrent. Also, the torturer should be fined a minimum
of 1 lakh.
·
Limitation Period
Section 5 of the Bill 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
need longer to be able to gather courage and resources to make the complaint.
Under Section 468 of the Code of Criminal Procedure, the limitation of six
months for taking cognizance is applicable only to offences punishable by a
fine. Torture would definitely not fall within this category.
·
Penal Offences
In a serious omission, the Bill does
not incorporate the offences in the Indian Penal Code which constitute acts of
torture – even those which specifically set out custodial crimes by public
servants. The Law Commission in 1994 described the types of custodial crimes
being perpetrated in ‘alarming dimensions’ – torture, assault, injury,
extortion, sexual exploitation and death in custody.
The Bill also makes no reference to
gender-based violence perpetrated by public servants, particularly violence
affecting women in custody given the wide ambit for States to codify a broad
definition of torture. As advised by the UN Committee against Torture,
borrowing from Domestic definitions, the relevant Indian Penal Code offences
need to be incorporated into the definition of torture in Sections 3 and 4 of
the Bill.
·
Death in Custody
In spite of high number of custodial
deaths in India, many of them obviously resulting from torture, the Bill is
totally silent on deaths in custody. Commonwealth Human Rights Initiative
strongly recommends that Sections 3 and 4 be amended to include a provision
that establishes death in custody, or death occurring as a result of injuries
sustained while in custody, as a part of the definition of torture. Any death
in custody, or as result of injuries sustained while in custody, should be made
punishable with the offence of murder or culpable homicide not amounting to
murder, depending on the specific circumstances of each case.
·
Presumption
The Law Commission in its 113th
report on custodial violence recommended the insertion of a new Section in the
Evidence Act, 1872, to give courts the power to draw a presumption that
injuries caused to a person while in police custody were caused by the police
officer with custody over that person. Commonwealth Human Rights Initiative
objects to the proviso following Section 3 of the Bill, which states, provided
that nothing contained in this Section shall apply to any pain, hurt or danger
as aforementioned caused by law or justified by law.
·
Review Mechanisms
The Bill also fails to provide for
the establishment of appropriate review mechanism of interrogation practices
and custodial treatment. Similarly, it does not provide any mechanism to ensure
proper education and training of law enforcement officers, medical personnel,
public officials and others interacting with those arrested or detained. The
absence of such provisions dilutes its capacity to prevent torture in practice.
·
Power to Make Rules
Anti torture Bill is silent about the
powers of the Government to make rules for implementation of the Bill. Select
Committee stated that the appropriate government would need to frame rules for
implementation of Bill. Such a provision should be included in the Bill.
·
Expulsion and Extradition Provisions
The Bill is silent on the
requirements of Article 3 of the Convention that no State party shall expel,
return 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.
These prohibitions are particularly pertinent given that India has not ratified
the 1951 Refugee Convention and does not have any national legislation for the
protection of refugees.
Conclusion
No doubt, there exists a need for a
special and effective anti-torture programme. Historically, torture has been
institutionalized in India during the British Rule, when it had been used as a
weapon to keep the ‘natives in submission’ and suppress national liberation
movement. The present ruling classes continue using this inherited institution
to counter people’s movements. Here torture is not an exception perpetuated by
some ‘evil subordinates’, but rather a deliberate practice sanctioned by top
ranking officials and policymakers. Special draconian laws have further
institutionalized torture.