Contemporary, Criminal Jurisprudence

THE NOTION OF CUSTODIAL TORTURE: WHY INDIA NEEDS TO INTROSPECT

-By Ritik Kanoujia* and Deeptam Bhadauria**

INTRODUCTION

While the world continues to tackle the global Covid-19 pandemic, a new social movement has seen sharp upsurge when two horrific cases of police brutality stunned the whole world, while the George Floyd case got ample media attention throughout the world and started a major movement related to racial discrimination. In India the Jayaraj and Bennix case has again invoked a question which has been for long subsided.

According to prison statistics of India by National Crime Records Bureau, total 1800 custodial deaths occurred in year 2017 which increased to around 1966 in 2018 and has been rising subsequently. In India there is a major acceptance in society related to these crimes and hardly ever any police officer is held accountable. While the law enforcement agencies have the rights related to arrest of a person, there is an established set of guidelines which govern these arrests. Cases of police brutality violate every major aspect of human rights law and while there have been some major cases, India severely lags behind in holding public servants liable for such crimes. In this paper the authors look to examine the history, relevant laws and issues including the Prevention of Torture Bill, 2010 which never left the doorstep of parliament.

INTERNATIONAL CONVENTIONS AGAINST CUSTODIAL TORTURE

Round the globe, there lies a plethora of International Conventions to safeguard the inherent right of the prisoners but all these conventions flow from theidea of human rights which is inter-related with the impression of human dignity. The Article 1 of Universal Declaration of Human Rights (Hereinafter, UDHR) states that ‘All human being are born free and equal in dignity and rights’. By perusing this article in UDHR, it exonerates that each individual is equivalent under the watchful eye of law and no extra privileges should be given to anyone and even if someone has committed a heinous crime, then he should be punished in rightful manner. Punishmentshould always be proportionate to respective crimes.

International Community has always condemned the practice of custodial torture and various conventions and treaties signed related to this stands as a proof of their efforts. The Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. A similar provision can also be traced from the statute of UDHR, where Article 5 prescribes prohibition of use of torture. Moreover, the UN General Assembly also adopted the Convention against Torture (Hereinafter, UNCAT) to resist use of torture as means of confessions among other things.

RIGHTS AGAINST TORTURE UNDER INDIAN JURISPRUDENCE

The Indian legislation fails to substantiate an indispensable statute for prevention of torture. Under National legislative enactments of Indian Penal Code, 1890, Section 330 and 348 laid down the punitive provisions for the offence of torment. But, when the same offence of torment is committed by the police officials on duty, the provision does not apply, thus, giving a gate-way to the authorities in uniform.

However, the Apex Court of India through their various path-breaking judgements, have tried to pave up the way to govern and sojourn the custodial torment. The case of Rudul Shah v. State of Bihardeserves much prominence as it marked the first instance which prompted the rise of compensatory statute for the infringement of rights of the prisoner under the purview of the Constitution. In the case, the liability was imposed upon the state for the wrongful detention of the petitioner. Although, Rudul Shah was one of the first cases which dealt with the concept of custodial torture but most significant case till date has been Nandani Sathpathy v. P.L. Dani. In this case, the well renowned Justice Krishna Iyer has deliberated upon some principles regarding custodial torture in consonance with the CrPC. He said and we quote that “A person while being examined under Section 161 of the CrPC is not required to answer those questions that have a tendency to self-incriminate.” This principle can be extended as even the police authority while interrogating an accused cannot force an individual to reveal any information, which can be self-incriminating or pose them to any physical and mental harm. In other landmark case of Nilabati Behera v. State of Orrisa, the Apex Court while emphasizing on the rights of the prisoner, reiterated that the safety of the inmate must be maintained by the police authority, in the custody.   

The Supreme Court while deliberating upon the case of D.K. Basu v. State of Bengal recognized the right of the prisoner against custodial torture and deaths in police custody. In addition, the Court noted that the “Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the case of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of crime has the satisfaction that ultimately the Majesty of Law has prevailed.”

In addition, the Supreme Court also extends to pay the acknowledgement and recognizes the Right against cruel and unusual punishment, Right to free legal Aid and fair trial, Right to Speedy Trial and Rights of Inmates of protective homes. This implies that the Apex Court had already in receipt of the threat of custodial torture while the executive always fails to adopt a path to curb it. Thus, it can be drawn that a specific statute is required to abolish police brutality.

THE PREVENTION OF TORTURE BILL: THE NEED OF THE HOUR

Despite established International reforms, India never complies to take a bow with the International treaties to ratify a specific governing the prisoner right against custodial torture. Though, being a signatory of the UNCAT back in 1997, Indian Parliamentary system came across to introduce the ‘Bill on Prevention of Torture’ in 2008. After its audit, it was preferred to send the bill to the Select Committee in light of its lacking provisions and arrangements. The Select Panel in the wake of exploring the bill made a draft which was narrated in the Upper House of Parliament in 2010, but further discussions were stalled for unknown reasons.

Further, Union Minister of Law in 2016, requested the Supreme Court of India to make the dead bill of 2010 spring up and make India comply with the UNCAT. The Law Commission of India presented its 273rd report which prescribed the legislature to endorse the UNCAT and further proposed the ‘Prevention of Torture Bill, 2017’. On their proposals, the Bill was again presented in 2017 and it is as yet being talked about in the parliament but it again fails to pave the way to implement an anti-torment legislation.

Critics believe that the bill has gotten simply a political plan to pick up votes as it was observed on the pronouncement of the Congress party for the Lok Sabha election in 2019. Congress party guarantees people in general to pass this bill once they come to control but never taken a step forward after the elections.

THE POLICE ACT OF 1861: EXIGENT NEED FOR RETROSPECTION

The administrative rule of governing the police officials can be traced back to the Colonial rule in 1861. With the evolving time and modernization, the reforms for the Police Act need new amendments and reformations to keep pace with other societal changes. But, Indian Police Act, 1861 remains an unaltered controversy as it provides arbitrary powers to the police officials, under various sections of the underlined act. The Act is antiquated in its charter of duties, which is narrow and limited. This demonstration has discouraged the foundation of the standard Rule of law. Furthermore, the Act has made it simpler for people in political positions to use law enforcement agency in a malicious way.

The current legislations are weak in almost all the parameters and are failing to govern the proper working of Police agency. Thus, The Police Act, 1861 should be supplanted with enactment that mirrors the democratic nature of India and the evolving times.

LACUNAE INSTILLED BEHIND THE STUMBLING BLOCK

The utilization of torture as a mean to extract confession for their crimes on accused has brought much disgrace but in the same time has become an extraordinary highlight of Indian police modus operandi. The said statement can also be retracted form the Section 27 of the Indian Evidence Act, 1872. This behaviour of police has been glorified in movies and series. Also, there are some reasons related to this such as-

Firstly, the ‘excessive interference’ of political parties in the process of investigation makes it tough for the police to conduct it efficiently and independently. These arbitrary set of rules can be retraced from the time of Colonial Police Act. ANews Study reveals that the ‘political impact’ in all parts of police operations, for instance, enrolment of police, and constraining police to utilize wrong examination strategies to convey to open when there is a grave offense and which includes open clamour.

Second explanation would be the terrible working federations of the police in India. The police officers do not have proper preparation before landing in any dangerous position and not many resources are accessible to them. They get urged to utilize agonizing techniques of torment since they believe that they will get appraisal by quickly solving a case.

Thirdly, the problematic issue why the majority of the instances of custodial torment goes unreported are on the grounds that individuals in India realize that police is the primary contact when there is an infringement of their right. At the point when the individuals consider police itself as the violator of their rights, they don’t have any clue as to who they should approach. The individuals fear going to courts and other enforcement bodies, as they sense that their activity will prompt backlashes and noxious indictment charges from the police as they are in a position of power.

CONCLUSION: THE FINAL TAKEAWAY

To conclude, one could only gather from the facts that there is an exigency to adopt the ‘Bill on Prevention of Torture’ as it was mandated by the UNCAT. The Bill should be ratified in India as it imposes a hefty fine, and punishes with life imprisonment, in cases of grave torment. On the off chance that an individual in police care is found with wounds, it should be ‘presumed that those injuries have been inflicted by the police.’ The burden of proof is on the police to clarify the injury on the accused in pre-trial. In addition, the compensation should also be sufficed to pay for the medical treatment and rehabilitation of the victim. This was also proposed in the Amendment Bill to Section 357 of the CrPC. Furthermore, the court profoundly reiterated in the case of Sarwan Singh v. State of Punjab, that while awarding compensation, it is a responsibility on the court to take into account, the nature of the crime, the injury suffered, the justness of claim for the compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine.

The out-dated piece of legislation of Indian Police Act, 1860 should be scrapped or altered accordingly with the modernisation and evolving Human rights. To be in consonance with the International Conventions, the National Human Right Commission, India should be given a free hand examining the accused, without the assistance of the police, including suo-moto examinations, and to hear protests against the police authorities all alone.

The author* and the co-author* are 1st year students at National Law University, Jodhpur.

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