The death of a 28-year-old school teacher in police custody in Srinagar on March 19, 2019, sparked protests in the valley. Earlier this month, two men in Bihar were picked up by the police and allegedly tortured to death in Patna. India has had a long history of custodial death and police torture.

With India not doing well in the human rights arena, it is time the country ratifies the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (also called The United Nations Convention against Torture (CAT) which was signed by India on October 14, 1997.

The Convention talks about holding State officials accountable for any torture done by them outside of lawful sanction. Article 1 of the Convention defines the term ‘torture’.

“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.”

Currently, India does not have any express provisions in the Indian Penal Code, Code of Civil Procedure or the Constitution which penalizes the custodial tortures and death. Therefore, if India ratifies the convention, it will have to legislate a law against torture as the Convention puts an obligation on each state party to take effective legislative, administrative, judicial or other measures to prevent acts of torture (Article 2).

The Law Commission submitted its 273rd Report under the Chairmanship of Dr. Justice B. S. Chauhanon the Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation. The Commission stated in its report that India has faced problems in the extradition of criminals from foreign countries.  This is because the convention prevents extradition to a country where there is a danger of torture (Article 3).

The Prevention of Torture Bill, 2010

In 2010 The Prevention of Torture Bill was introduced in the Lok Sabha to bring to effect the provisions of the Convention. The Bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the Bill to a Select Committee which proposed amendments to make it more compliant with the Convention. However, the Bill lapsed with the dissolution of the 15th Lok Sabha.

In 2016 a writ petition was filed in the case of Ashwani Kumar v. Union of India before the Supreme Court saying, “India faces problems in the extradition of criminals from foreign countries because of this [having no law against torture]. It’s in our own national interest to have such a law”. The petitioner sought directions to the government to have a legal framework and proper guidelines in terms of CAT guidelines to prevent torture, cruelty, inhuman or degrading treatment to jail inmates. The petition is pending.

The Supreme Court of India on ‘torture’

Article 11 of the Convention mandates each State Party to keep under systematic review the interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. In the absence of any such provisions in India, it is the Supreme Court that has time and again given judgments against the torture by police

After perusing several reports on custodial violence, the Supreme Court has also laid guidelines in D.K Basu v. State of W.B (1997), stating that “Custodial violence including torture and death in lockups strikes a blow at the rule of law which demands that the powers of executive should not only be derived from law but also that the same should be limited by law.”The Apex Court has also read such violence to be against Article 21 of the Indian Constitution. In Arvinder Singh Bagga v. State of U.P (1995) the Apex Court said that torture “is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands.”

In Shatrughan Chauhan v. Union of India (2014),the Supreme Court while discussing the scope of torture in the execution of death sentence observed, ‘…..undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.’

In Francis Coralie Mullin v. Administrator, U.T. of Delhi(1981), theSupreme Court observed, “……..any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.”

However, despite multiple rulings by the Supreme Court in various cases, there have still been repeated allegations of such torture. The Government should ratify the Convention and come up with a law against torture.

Earlier Law Commissions

There have been two other Law Commission Reports to have pointed out on torture by police. The 113th Report the Law Commission recommended the amendment to the Indian Evidence Act, 1872, by inserting section 114B providing for a presumption in favour of the victim alleging custodial injuries and the onus to prove otherwise on the police authorities. In the 185th Report, the Commission pointed out that a reference was in fact made by the Supreme Court to the 113th Report of the Law Commission in State of MP v. Shyam Sunder Trivedi (1995). It was pointed out that in cases of custodial death or police torture, it is difficult to expect direct ocular evidence of the complicity of the police. There will hardly be any evidence available to the prosecution to implicate the police.

Conclusion

In its 273rd Report on Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation, the Law Commission recommended a “The Prevention of Torture Bill, 2017”. A law should be brought in place keeping the Convention and this bill in view.

India has expressed its reservations against certain provisions contained in the Convention, such as Inquiry by the CAT (Art. 20); State complaints (Art.21) and individual complaints (Art.22). However, India is not agreeable to repeal the Armed Forces (Special Powers) Act, 1958 (AFSPA) which remains a big blot on the Indian democracy. In the veil of this act, innumerable atrocities are committed against the people in many parts of the country. Also, India says that ratifying the Convention would mean international interference in sovereign matters, but if we look at the reservations made by India, they clearly keep the international interference at bay.

In Shyam Sunder Trivedi (1995), the Supreme Court rightly said, “Men in ‘khaki’ are not above the law”. The convention should be ratified so that India comes under the obligation of legislating an act on the subject and legislation should be brought in place so that violation of Article 21 at the hands of police authorities can be checked. As the Bible says “If the salt has lost its savour, wherewith shall it besalted?”

 

About the Author:

 

Aamna Nabeeha Naqvi is a 5th-year student at Faculty of Law, Jamia Millia Islamia. She has a high interest in Criminal Law and Constitutional Law. She has few publications in her name in the field of Jurisprudence, Constitution, Women’s right and Data Protection.

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