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“A CRITICALLY ANALYSIS OF TORTURE WITH SPECIAL REFERENCE TO INDIA”
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“A CRITICALLY ANALYSIS OF TORTURE
WITH SPECIAL REFERENCE TO INDIA”
AUTHORED BY
- B. KUBENDRAN, M.L.,
Assistant
Professor, Government Law College, Madurai in
The Department Of Legal Studies, Tamil Nadu
And
Affiliated to the Tamil Nadu Dr. Ambedkar Law University, Chennai.
ABSTRACT
This article tends to have A
critically analysis of torture with special reference to india The term
"torture" means 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. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions. In this situation in countries like India with a large population,
there is a lot of torture and human right violations are happening every day,
the constitution of India does not define torture. Torture is infliction of
mental or physical suffering by or with the consent of state authorities
inflicted for a specific purpose such as gaining information, punishment or
intimidation. There are several laws and international conventions which
consider torture to have taken place only when a public official is involved.
Torture includes a variety of methods like beating, electric shock, sexual
abuse, and prolonged solitary confinement, deprivation of sleep, food and water
among others. Further, torture is not only limited to the physical suffering
but also the mental suffering. As for India Prohibition of torture and India,
Laws pertaining to prevention of Torture, International pressure on India, Law
Commission’s273rd report, The Law Commission Report on Torture, Supreme Court
of India and Torture, Prevention Of Torture Bill, 2017, and Features Of Draft
Prevention Of Torture Bill, 2017.so this article elaborates on such titles.
1. INTRODUCTION:-
The definition of torture, systematic
or widespread torture belongs to a special group of crimes recognized by
international law as crimes against humanity. The category further includes the
practice of systematic or widespread murder, forced disappearances, deportation
and forcible transfers, arbitrary detention, custodial torture and persecutions
on political or other grounds. A number of international conventions or
instruments recognize these crimes as crimes against humanity. The effort to
eradicate torture works at many levels of international, regional, and national
decision-making and often involves both public and civil society initiatives,
working in complementary roles. In addition to the prohibition of torture in
contemporary international law and practice, the capacity to provide a
sanctioning response to torture has also been extended to the institutions of
private law. Moreover one human being by another is a global human rights
issue. Many types of torture are listed in this article. What are the types of
torture in a large country like India? Are
remedies for these provided in the Constitution of India and other laws? What are the possible punishments for the
perpetrators of torture? What are the
compensations available to victims? What
are the current measures taken by the government against torture in India? Here is an article to answer such questions
and create awareness against torture.
2. LAWS PERTAINING
TO PREVENTION OF TORTURE IN INDIA:-
Torture is not criminalised in law as
a separate or special offense. Provisions in the Indian Penal Code, 1860
(sections 330 & 348) penalises acts that can also be considered as torture,
with seven and three years of imprisonment respectively if proven guilty. But
the offense attracts no particular relevance if the crime is committed by a
police officer. The temporal treatment of the law is to deal with a regular
offense. The 2 provisions also falls short of covering all aspects of torture,
as defined in the Convention against Torture. In addition, the reduced
possibility of a proper forensic medical examination of a victim and the
complete absence of a witness protection mechanism facilitates easy acquittal
of the criminal. The Indian Evidence Act, 1872 also does not have any
provisions in dealing with the aspect of torture. The only record that is
indicative of torture is the number of custodial deaths released every year in
Crimes in India report released by the National Crime Records Bureau (NCRB)
annually1[1]. However, death in judicial or state’s
custody is an extremely poor measure of torture even if custodial deaths are
always met with impunity of the officials. Naturally, this is because there is
no law in place to enforce criminal cases against agents of the government.
The UNCAT defines 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.”
While there are some safeguards
against torture in Indian law, they are seldom taken seriously and enforced.
For instance, section 54 of Code of Criminal Procedure (Crpc) extends safeguard
against any infliction of custodial torture and violence by providing for
examination of arrested person by medical officer and section 176 of the Code
provides for compulsory magisterial inquiry on the death of the accused in
police custody. It can be unequivocally said that a democratic country ought to
safeguard human rights and thus cannot be tolerant of any form of torture to
human life. It takes an accountable and responsible government to recognize the
iniquities within its system with the clear intent of upholding basic human
rights as well as the right to life enshrined under Article 21 of the Indian
Constitution. Law Commissions have over the years pushed for a legislation
penalizing torture by public officials but the discourse around it has died
down and needs to be reinvigorated as a fight for human rights.
India’s stand so far, India signed
the UN convention on October 14, 1997 but has not yet ratified it. The reason
the government gives is that it has already criminalized torture under penal
law. However, sections 330 and 348 of the Indian Penal Code, 1860 do not
particularly criminalize torture instead it penalizes certain acts that involve
torture. In addition, the provisions grant immunity to the police officers,
armed forces personnel and public servants unless the government approves their
prosecution.
3. INTERNATIONAL PRESSURE ON INDIA:-
The International Commission of
Jurists had earlier criticized India’s failure to tackle issues of torture and
unaccountability of armed forces. It asked India to adopt the reforms suggested
by the United Nations Human Rights Council and ratify convention against
torture. Out of the 80 countries which participated in the second Universal
Periodic Review of human rights record, 22 States urged India to immediately
ratify the torture convention. The Universal Periodic Review is an interactive
process carried out every four years. Under this framework, UN member states
are reviewed for their human rights record. According to the Report of the
Working Group on Human Rights in India, torture and ill-treatment are
widespread in India. The report has also called for immediate intervention by
the government against torture [2].
Although India signed the UNCAT in
1997, it is yet to ratify it [4].
In 2010, a weak Prevention of
Torture Bill was passed by the Lok Sabha, and the Rajya Sabha later sent it to
a Select Committee for review in alignment with the UNCAT. By 2017, the Law
Commission had submitted its 273rd report and an accompanying draft torture
law. But the Supreme Court dismissed the petition on grounds that the government
cannot be compelled to make a law by mandamus; treaty ratification was a
political decision; and that it was a policy matter.
Even with failings, the Commission’s
draft Bill is better than not having one at all. A version based on this draft
was circulated to State governments for views, but nothing has come of it, and
nothing is likely to, either. This reluctance is arguably because all
governments appear to collectively agree that police brutality is a necessary
evil to maintain law and order.[5]
The Law Commission of India released
its last year recommending the implementation of United Nations Convention
against Torture through a legislation. The key recommendations of law
commission’s 273rd report are as follows:
Ø As the law commission recommended, the
government may take steps to ratify the convention against torture by enacting
a revised prevention of torture bill in the parliament [7].
Ø 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.
Ø 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.
Ø Effective mechanism to protect the victims of
torture, the complainants and the witnesses against possible threats, violence
or ill treatment.
Ø Strong punitive punishments for those who
indulge in torturing which could range up to life imprisonment.
Ø 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.
Ø The courts will bear in mind the
socio-economic background of the victim and ensure that the compensation helps
the victim to bear the expenses on medical treatment and rehabilitation.
Ø Ratifying UNCAT would mean that India would
have had to pass the Prevention of Torture Bill that was first introduced by
the UPA II government in 2010. The bill defined torture as: an act by a public
servant or by a persons with acquiescence of a public servant, causes grievous
hurt or danger to life, limb or health (whether mental or physical). It
proposed punishment of minimum 3 years which may be extended to 10 years and
fine, for torture inflicted for purpose of extorting confession, or for
punishing or on the ground of religion, race, place of birth, residence,
language, caste or community or any other ground.
Ø The 273rd Law Commission report released in
2017 suggested, among other things, payment of compensation to victims of
torture keeping in mind socio-economic background of the victim, nature,
purpose, extent and manner of injury, including mental agony caused to the
victim such as the amount suffices the victim to bear the expenses on medical
treatment and rehabilitation. The Commission had also observed that tolerance
of police atrocities, amounts to acceptance of systematic subversion and
erosion of the rule of law and that it is not permissible whether it occurs
during investigation, interrogation or otherwise.
Ø India’s refusals to ratify UNCAT and its
unwillingness to have any law that condemns torture only makes its fealty to
the doctrine of sovereign immunity apparent. The doctrine of sovereign immunity
is a concept of common law principle consistently followed in British jurisprudence
in last several centuries that ‘King commits no wrong’ and has evolved on the
principle of sovereignty that a State cannot be sued in its own court [8].
5. SUPREME COURT OF INDIA 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
Torture. 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 v. Delhi Administration,[9] 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 [10],
the Bhagalpur blinding case, 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 state
of Bihar [11],In
1994, the Court in Arvind Singh Bagga v. State of UP [12],
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.
In D.K. Basu v. State of West Bengal
[13] the Supreme Court had observed,
“Torture has not been defined in the Constitution or in other penal laws.
‘Torture’ of a human being by another human being is essentially an instrument
to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word
torture today has become synonymous with the darker side of the human
civilisation”.
In Raghubir Singh v. State of
Haryana [14],
a case where the violence employed by the police to extract a confession
resulted in death of a person suspected of theft, the court had passed severe
remarks “We are deeply disturbed by the diabolical recurrence of police torture
resulting in terrible scare in the minds of common citizens that their lives
and liberty are under a new peril when the guardians of law gore human rights
to death.”
In another case, State of U.P. v. Ram Sagar Yadav [15],
the Supreme Court dealt with a case where the policemen murdered one Brijlal
who not only refused to pay a bribe of Rs.100 in a trivial matter of cattle
trespass but also complained about demand of bribe to senior police officers.
The Court observed that “Police officers alone and none else can give evidence
as regards the circumstances in which a person in their custody comes to
receive injuries while in their custody… The result is that persons on whom
atrocities are perpetrated by the police in the sanctum sanctorum of the police
station are left without any evidence to prove who the offenders are.” The
Court recommended that the “law as to the burden of proof in such cases may be
re-examined by the legislature so that handmaids of law and order do not use
their authority and opportunities for oppressing the innocent citizens who look
to them for protection.
6. PREVENTION
OF TORTURE BILL, 2017 [16]:-
6.1. Progress in Passing the Bill :-
Although India signed the UNCAT in
1997, it is yet to ratify it. In 2010, a weak Prevention of Torture Bill was
passed by the Lok Sabha, and the Rajya Sabha later sent it to a Select
Committee for review in alignment with the UNCAT. But the Committee’s recommended
law, submitted in 2012, never fructified, as the Bill was allowed to lapse. In
2016, Ashwani Kumar, a senior advocate and former Union Minister of Law, sought
the enactment of a torture law via a Supreme Court petition [17]. By 2017, the Law Commission had
submitted its 273rd report and an accompanying draft torture law. But the
Supreme Court dismissed the petition on grounds that the government cannot be
compelled to make a law by mandamus; treaty ratification was a political
decision; and that it was a policy matter.
India had earlier introduced the
Prevention of Torture Bill, 2010 in the Lok Sabha on April 26, 2010. While Lok
Sabha passed the bill, Rajya Sabha referred it to a Select Committee. The
Select committee had proposed to amend the bill to make it more complaint with
the torture convention. The bill then lapsed and government also did not show
any urgency to enact a revised torture bill [18].
In addition, India has also refused to repeal the Armed Forces Special Powers
Act (AFSPA), which enables Armed Forces to perpetrate human rights abuses in
the North East eastern states and Kashmir. The Prevention of Torture Bill, 2010
sought to punish any public official who inflicts harm to a person in custody.
The Act lays down specific instances wherein a public official shall be held
liable, namely:
1) When the act is committed in order to obtain a confession from the
victim or any other information that implicates the person in custody.
2) When the Act is committed on the grounds such as religion, race, sex,
language, caste or any other ground.
The Bill also lays down the due
procedure that is to be followed in cases which are in relation to custodial
torture [19]. The bill clearly demarcates the
manner in which nature of the crime is to be ascertained and due procedure that
a victim is follow in order file a complaint with regards to the same. It also
lays emphasis on types of torture and the remedies that are available to the
victim in relation to the crime.
6.2 Features Of Draft Prevention Of Torture Bill, 2017 [20]:-
§ Any public servant or an individual authorised
by him indulges in an act of torture if they inflict on another person: (i)
grievous hurt, (ii) danger to life, limb, or health, (iii) severe physical or
mental pain, or (iv) death for the purpose of acquiring information or
punishment.
§ Punishment for torture includes imprisonment
up to 10 years and fine. In case torture leads to death, the punishment
includes death or life imprisonment in addition to fine.
§ The bill makes state governments responsible
for protecting victims of torture, complainants, and witnesses against possible
violence and ill- treatment. The state government will provide such protection
from the time of submission of complaint till conclusion of trial for the
offence.
§ The Law Commission recommended amendments to
the Code of Criminal Procedure, 1973 to allow for payment of compensation in
case of torture. It made this recommendation citing that courts have previously
awarded compensation for various forms of torture including illegal detention,
and custodial torture.
§ The Law Commission recommended amendments to
the Indian Evidence Act, 1872 to ensure that in case a person sustains injuries
in police custody, it will be presumed that these have been inflicted by the
police. The burden of proof shall lie on the police authorities to explain such
injuries.
7. CONCLUSION AND
SUGGESTIONS: -
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.
SUGGESTIONS:-
§ A country like India should
domesticate the UNCAT definition of torture into their law as it. Moreover must
acknowledge the universal jurisdiction applicable to torture such that torture
perpetrators are left no room to escape liability.
§ Out of 170 signatories to the United
Nations Convention against Torture and other Cruel, Inhuman and Degrading
Treatment or Punishment, India remains one of the only eight countries yet to
ratify the Convention.
§ In India, as the law commission
recommended, the government may take steps to ratify the convention against
torture by enacting a revised prevention of torture bill in the parliament.
§ There is no independent authority to
investigate complaints of torture, and no provision for granting compensation
to torture victims has been made
Therefore finally in this
article by stating that no human being should inflict physical or mental
torture and other degrading acts on another human being and if it is done, the
government should punish the perpetrators and at the same time provide adequate
compensation to the victim.
----------------------------------------------------------------------------------------------------------------
[1] . National
Crime Records Bureau records also available at
http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.pdf
[2].Torture
Update: India Asian Centre of Human Rights also available at
http://www.achrweb.org/wp- content/uploads/2018/06/TortureUpdateIndia.pdf
[3].
https://indianlawwatch.com/law-commission-report-no-273-implementation-of-united-nations-
convention-against-torture-through-legislation
[5]
.https://www.thehindu.com/opinion/lead/indias-torture-culture-needs-to-end-
now/article31973431.ece
[6] .273rd
law commission report also available at https://www.scconline.com/blog/post/2017/11/03/273rd-law-commission-report-implementation-un-
convention-torture-cruel-inhuman-degrading-treatment-punishment-legislation/
[8]. India among 9 nations that have not
ratified UN Convention against Torture , OUTLOOK, May 4, 2017
9.
1980 AIR 1579
10. AIR 1981 SC 928
[16]. http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/torture-E-151217.pdf
[17] . Ashwini Kumar vs
Union Of India, writ petition (civil) no. 738 OF 2016
[18] .Dr. Shashi
Tharoor urges Govt to bring law against torture, LIVE LAW, December 13, 2018
[20] .
Supra
43
Article Information
“A CRITICALLY ANALYSIS OF TORTURE WITH SPECIAL REFERENCE TO INDIA”
Authors: B. KUBENDRAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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