Torture is a wound in the soulso painful that sometimes you can almost touch it, but it is also suchintangible that there is no way to heal it.
Torture is anguish squeezing inyour chest, cold as ice and heavy as a stone paralyzing as sleep and dark asthe abyss. Torture is despair and fear and rage and hate. It is a desire tokill and destroy including yourself.- Adriana P.
Bartow Torture can be referred to as the inhumaneand adverse conduct of a person in authority towards another person under hiscustody. This fiendish menace haunts the prisoners all over the world whetherthey are under-trials or convicts. The situation is grimmer in India, where,due to the absence of any legal provision to this effect, this evil goesunaccounted for. Though, due efforts have been made by human rights activists,scholars and the pro bono members of the public to propose an anti-torturestatute in the past few years, no initiative has been taken up by theGovernment in this regard.
Thousands of custodial deaths,hundreds of suicides by the inmates, failed extraditions, an unratifiedinternational treaty, a disregarded Rajya Sabha bill, an unimplemented LawCommission Report, and various guidelines by the Hon’ble Supreme Court, allhave proved to be inadequate for India to recognize this as a grave humanrights violation. A learned bench of the Hon’ble Apex Court recently dismisseda petition challenging this delay, opining that its interference in this regardwould amount to taking judicial activism too far and has therefore shrugged offits responsibility. Challenges, complexities, failures! Meanwhile, yet anotherprisoner being stripped off his dignity. It is indeed a matter of utmosturgency in a nation where “human dignity has to be preserved even when aprisoner is sentenced to death”1. The word ‘torture’ in its strictestform and dimensions has not been legally defined per se. However, the OxfordDictionary defines ‘torture’ as “the action or practice of inflicting severepain on someone as a punishment or in order to force them to do or saysomething”.
Even though this definitionprovides a narrow understanding of the word, it lays down the primary conceptby describing ‘torture’ as the use of such methods that cause severe pain ordistress to a person in order to extract some information through his confessionor admission. The Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment (CAT)2is one of the breakthrough and exclusive treaties adopted by the United Nationsto describe what constitutes ‘torture’, to punish the perpetrators and toprovide compensation to the victims. The term is defined under Article 1 to thewidest extent covering all of its facets as: Theterm “torture” means any act by which severe pain or suffering,whether physical or mental, is intentionally inflicted on a person for suchpurposes as obtaining from him or a third person information or a confession, punishinghim for an act he or a third person has committed or is suspected of havingcommitted, or intimidating or coercing him or a third person, or for any reasonbased on discrimination of any kind, when such pain or suffering is inflictedby or at the instigation of or with the consent or acquiescence of a publicofficial or other person acting in an official capacity. It does not includepain or suffering arising only from, inherent in or incidental to lawfulsanctions.
This definition broadens the scopeof ‘torture’ as something which is not only limited to one’s physical senses,but also causes mental suffering to a person. UN has adopted many other conventionsthat prohibit and provide protection against torture. Article 5 of TheUniversal Declaration of Human Rights (UDHR)3and Article 7 of the International Covenant on Civil and Political Rights(ICCPR)4provide that “no one shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment”. It can be inferred from the above that theprohibition of torture has been a recognized right all over the world and theCAT has categorically expanded its scope and understanding by enactingprovisions and rights thereof. However, despite this, the term ‘torture’ doesnot find much regard in the Indian legal system. The Constitution of India or any otherstatutory law in India (except for a few safeguards in the Indian Penal Code,18605,the Code of Criminal Procedure, 19736and the Indian Evidence Act, 18727which only remotely relate to torture) provide no categorical protection to thebasic human right of protection against torture to the prison inmates.
The absenceof an anti-torture law has immensely blotted the Indian administrativemachinery in the last two decades. This is starkly depicted in a reportpublished by the National Crime Records Bureau which shows that a total of 92unnatural deaths were caused in police custody across India in the year 2016and 74 of them occurred due to injuries caused due to physical assault bypolice, suicides or illness.8 Itis startling to note that, in out of these 92 cases, the concerned police personnelwere not convicted even once, even when a charge sheet was filed against themin 24 cases. It is pertinent to note here that deaths due to suicides andillness are directly or indirectly, a result of the deteriorated condition ofthe jails, which, according to the aforementioned definitions, amounts totorture. The pathetic condition of the jails can be determined from the factthat the population of 1401 jails in India exceeded their actual capacity by52,842 in 2015 at an Occupancy Rate of 114.
4%.9These statistics clearly point towards the fact that the cases of torture aredealt with very lightly in India. Recently, aschool bus conductor was arrested on the allegation of murdering a seven yearold boy studying in Ryan School. The alleged was “punched in the stomach andwhisked off to the police station” and was not provided with any meals for acouple of days. He was “tied up, slapped, beaten, brutally tortured, andthreatened by Gurgaon Police personnel”.10Later, as the investigation took shape, it was discovered that a senior studentof the school had committed the murder and not the bus conductor. A mere allegationmade him suffer for his dignity due to the moral neglect of the policepersonnel.
This is only one of the many such torture cases that take placeacross the nation, unreported. Such acts might also lead to a false confessionby the victims and lead to their unwarranted conviction. This conduct clearlyviolates Article 20(3) of the Constitution of India which provides that “noperson accused of any offence shall be compelled to be a witness againsthimself”. Further, it also stands in violation of Article 21 which grants Rightto Life and Personal Liberty to every citizen and covers within itself a rightto live with human dignity as reiterated by the Hon’ble Supreme Court in acatena of judgements.
The saga ofinjustice does not end here. This custodial torture also paints a gloomypicture of the class divide prevalent in India. The gulf between the haves andthe have nots extends its arms to the treatment of the inmates by thepersonnel. Former Bihar Chief Minister Lalu Prasad Yadav was recently convictedin a fodder scam case by a CBI court and was reported to get facilities likeTV, newspaper, and personal meetings in Birsa Munda jail.11While on one hand, a bus conductor was tied and beaten up on a mere allegation,on the other, a scandalous minister who stashed his vaults with the exchequer’smoney will be provided with luxuries within the jail. In the words of LordHewart CJ, “not only must justice be done, it must also be seen to be done”12. The Indianmachinery has proved to be a failure in protecting its citizens from torturewhich has led to a loss of reputation internationally. It has been unable toratify the Convention against Torture even after being a signatory to it.
Thishas also led to India’s failure to enter into successful extradition treaties. Whenan attempt was made to extradite Mr Vijay Mallya to India in a loan defaultcase, his counsel urged, “given Mr Mallya’s medical conditions, which includeddiabetes, coronary artery disease and sleep apnoea, he could not be extraditedto Indian prisons due to lack of medical facilities available and prevailingunhygienic conditions”.13Despite assurances by the Indian Parliament, the United Kingdom has blatantlyrefused the extradition requests of India and hence fulfilling its obligationunder Article 3(1) of the CAT which provides: No State Party shall expel, return(“refouler”) or extradite a person to another State where there aresubstantial grounds for believing that he would be in danger of being subjectedto torture. This isonly one such instance where India’s extradition requests have failed, othersincluding that of Kim Davy (a Danish citizen who was accused in the PuruliaArms Drop Case, 1995), Sanjeev Chawla (a prime accused in the South-AfricaIndia match fixing case) etc. Such cases provide as a clarion call for India toenact a dedicated law that prohibits torture. The varioushuman rights activists, scholars and members of the public have called for astringent law banning torture, but unfortunately, any such law has not beenenacted till date.
The Select Committee of the Rajya Sabha, in the year 2010,recommended a Prevention of Torture Bill which contained scope, sanctions andremedies against torture. The Law Commission of India has recently strengthenedthis Bill further, and has proposed a ‘Prevention of Torture Bill, 2017’ in its273rd Report14released on 30th October, 2017. The text of this Bill has beenadopted from the previous Rajya Sabha version with some amendments. The proposedbill has recommended an expansion in the provision for ‘burden of proof’ underIndian Evidence Act suggesting that if the death or an injury is caused to aperson while he is in police custody, the court may presume that it has beencaused by the concerned police official himself. The proposed Bill is thefarthest step taken so far and its quick enactment is the need of the hour. Theenactment of a committed law has been much delayed and a judicial interferencein the matter has become all the more important. Thejudiciary has a critical role to play considering that it is replete withinstances where it has actively taken up the role of protecting the rights of itscitizens. The Hon’ble Supreme Court, in BandhuaMukti Morcha v.
Union of India15,protected the human dignity of bonded labourers freeing them from the horrorsof bonded labour. Again, in Vishaka v.State of Rajasthan16,the Court sought to intervene in matters related to sexual harassment and tooka step in the direction of protecting the dignity of women in India. All thishas been done with a view to scrutinize and prohibit human rights violations inIndia. As far as the issue of torture and its prohibition is concerned, thejudiciary has time and again come up with various judgements where it hasrecognized the issue.
The Hon’ble Supreme Court in D.K.Basu v. State of West Bengal17 held: ‘Torture’ of ahuman being by another human being is essentially an instrument to impose thewill of the ‘strong’ over the ‘weak’ by suffering. The word torture today hasbecome synonymous with the darker side of the human civilisation.The Learned Benchof the Supreme Court in Shabnam v. Unionof India18held that: Human dignity is infringed if aperson’s life, physical or mental welfare, is harmed.
It is in this sense thattorture, humiliation, forced labour etc. all infringe on human dignity. It isin this context, many rights of the accused derive from his dignity as a humanbeing… Even after conviction, when a person is spending prison life, allowinghumane condition in jail is a part of human dignity. Prison reforms or jailreforms are measures to make convicts reformed persons so that they are able tolead normal life and assimilate in society after serving the jail term, aremotivated by human dignity jurisprudence. Hence, itis a well-established fact that the Supreme Court has criticized the practiceof torture in the past. But what good are these when there is absolutely no lawin existence to govern cases related to this human rights violation? The nationincluding the Government, the Judiciary and the citizens cannot stand inabeyance when such a precious right of the individual is being frequentlyviolated. It is unfortunate that the judiciary has overlooked its duty to passsufficient guidelines in this respect. A PublicInterest Litigation was recently filed by the former Union Law Minister, MrAshwani Kumar in the Supreme Court to press on the need for the Indiangovernment to ratify the UN Convention against Torture and to pass a domesticstandalone law in this respect.
The Court dismissed the petition by holdingthat the issue is being looked after by the government. The Hon’ble ChiefJustice categorically stated that: “How can we compel the Government to make alaw? Can we ask the Government to ratify a treaty by way of Mandamus?”19 A pertinentquestion that lies here is, if the judiciary refuses to take a positive standconcerning a critical human right violation, then what is the purpose of filingPILs? The Judicial Activism under Article 32 of the Constitution of India mustbe at its highest when the human rights of its citizens are flouted in theirown country and the nation is criticized all over the world for its apathy. Althoughit cannot be denied that the Doctrine of Separation of Powers is a basicfeature of the Constitution, but the principle of checks and balances isequally important for the healthy functioning of a democracy. There can beabsolutely no recourse for the citizens of the country if all the three pillarsof democracy will choose to remain silent under the garb of the principle ofnon-interference. India is onthe verge of failing its democratic structure as the country has failed to takeeffective steps to tackle the present issue of human rights violation which soprofoundly concerns the custodial rights of prisoners in India. Not only this,India is going through a phase, where, given its repute of custodial tortureand inadequate prison infrastructure, it is failing to carry out extraditionssuccessfully.
India’s requests of extradition have been repeatedly failingowing to the alleged human degradation that the prisoners have to suffer in theIndian prisons. If India aspires to seek centre stage in the world, thereexists a duty on its part to fulfil its juscogens obligation to respect and honour internationally recognized rightsand treaties which so closely influence human rights and dignity. Theseinternational obligations can be looked after only through the introduction ofreforms in this area.
Theforemost step in this regard is the ratification of the Convention againstTorture by enacting a municipal law in this respect. India needs to go a longway if it seeks to honour its obligations which will mandatorily apply on Indiaafter it ratifies CAT. Article 2 of the CAT mandates for every state party totake effective legislative, judicial and administrative actions to prevent actsof torture in its territory. For India to honour this commitment, commencementof a strong domestic law for prevention of torture in its territory is theneed.
India willhave to specifically focus on the education and training of the policeofficials and other persons who are involved in the custody of a person. Withthe police reforms already in initiation by the present Government, it is onlya matter of time that India should be able to successfully provide requisitetraining and education to the officials concerned. Further, Article11 of the CAT read with Article 17 of the Optional Protocol to the Conventioncarries immense significance and is an extremely important step in the directionof preventing torture. Article 11 of CAT provides that each state party isrequired to keep under check and regularly review the methods of interrogation,rules, instructions and practices used by the police personnel in relation tothe people under detention. For this purpose, Article 17 of the OptionalProtocol to CAT mandates that every state party within one year of theratification of the Protocol has to establish and maintain one or severalNational Preventive Mechanisms for protection against torture. Such mechanismwill ensure prevention of torture through regular checks and visits to theIndia prisons. However, for India to establish such Preventive Mechanisms,large scale training will have to be put in place. The enactmentof above stated reforms in order to ensure adequate transparency andaccountability is now an unavoidable responsibility on the shoulders of theGovernment.
This menace needs to be addressed immediately before every convictin India starts urging that his punishment be elevated a level up fromimprisonment to capital punishment. A reform is necessary not only to protectthe uninfringeable fundamental rights of the citizens, but also as aninternational duty of a nation that believes in the philosophy of MahatmaGandhi that: Swaraj (self-rule) is a purificationundertaken for the purpose of national happiness. Happiness here means anenlightened realization of human dignity.1Shabnam v. Union of India, A.I.R. 2015 S.
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N.T.S. 85, available at https://treaties.un.org/doc/source/docs/A_RES_39_46-Eng.pdf.3G.
A.Res. 217A (III), U.N. Doc. A/810 at 71 (1948), available at http://www.
un.org/en/universal-declaration-human-rights/.4Dec.16, 1966, S. Treaty Doc. No. 95-20, 6 I.
L.M. 368 (1967), 999 U.
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5 No.45, Imperial Legislative Council, 1860.6 No.2, Acts of Parliament, 1974.7 No.1, Imperial Legislative Council, 1872.
8 Ministry of Home Affairs,Government of India, 2016, Report: Crimein India 2016 Statistics, National Crime Records Bureau.9 Ministry of HomeAffairs, Government of India, 2015, Report: PrisonStatistics in India, 2015, National Crime Records Bureau.10 Sakshi Dayal, Ryan School Murder Case: Tied Me Up, GaveElectric Shocks, Says Bus Conductor, TheIndian Express (Nov. 25, 2017), http://indianexpress.
com/article/india/ryan-school-murder-case-tied-me-up-gave-electric-shocks-says-bus-conductor-4951808/.11 Press Trust ofIndia, Lalu Prasad Yadav Gets Access toTV, Newspaper in Jail, The IndianExpress (Dec. 24, 2017), http://indianexpress.com/article/india/lalu-gets-access-to-tv-newspaper-in-jail-4997216/.12 The King v.
SussexJustices. Ex parte McCarthy, 1924 K.B.256.
13 VidyaRam, Vijay Mallya’s Defence Surprises Prosecutionwith Puzhal, The Hindu, (Dec.15, 2017), http://www.thehindu.com/news/international/vijay-mallya-extradition-hearing-put-off-to-next-year/article21665460.
ece.14 LawCommission of India, Oct. 2017, 273rd Report on Implementation of’United Nations Convention against Torture and other Cruel, Inhuman andDegrading Treatment or Punishment’ through Legislation, 2017, available at http://lawcommissionofindia.nic.in/reports/Report273.
1984 S.C. 802.16 A.I.R.1997 S.
C. 3011.17 (1997)1 S.C.
C. 416.18 supra note 1.19 KrishnadasRajagopal, Can’t Force Govt. to Frame aLaw: SC, The Hindu (Nov. 28,2017), http://www.thehindu.com/todays-paper/tp-national/cant-force-govt-to-frame-a-law-sc/article21013049.ece.