Mahatma Gandhi once said, “I object to violence because when it appears to do good, the good is only temporary, the evil it does is permanent.” Undoubtedly, there is no justification for violence, even more so when such violence emanates from those conferred with solemn duty to protect the citizens of a county. Despite this, incidents of custodial torture, violence, and police atrocities are not uncommon. Such incidents are universally recognized as an attack on the basic principles of Human Rights and the Rule of Law.
The Hon’ble Supreme Court, while observing, “[c]ustodial torture” is a naked violation of human dignity and degradation”, recognized that such incidents of custodial torture/ violence and abuse of power are widespread. It is settled law, even convicts, prisoners, or undertrials are not denuded of their fundamental rights under the Article 21 Constitution of India (“Constitution”). Accordingly, incidents of custodial torture/ violence run contra to the principles enshrined under the said Article and that provided under Article 22 of the Constitution. Further, the Constitution provides that the statements/ confessions elicited by such means violate the protection conferred under Article 20(3) thereto.
Undoubtedly, India is not bereft of Laws, safeguarding the interests of convicts, undertrial prisoners, etc. As per Section 24 of the Indian Evidence Act, 1872 (“Evidence Act”), any confession obtained by inducement, threat, or promise from an accused or made in order to avoid any evil of temporal nature is considered, irrelevant. Further, Sections 25 and 26 of the said Act, respectively, provide that the confessions made by an accused/ person to the police officer and that made during police custody, cannot be proved against such person. Similar embargoes are also provided under Sections 27 and 132 of the said Act. Under the Code of Criminal Procedure, 1973 (“CrPC”), provisions relating to the procedure of arrest, restrictions from unnecessary restraint, informing the accused about the grounds of arrest, prevention from unnecessary detention/ production before Court/ Magistrate, etc., exist to protect the rights of accused. Sections 7 and 29 of the Police Act, 1861 provide for dismissal and other penalties to police officers who are negligent in the discharge of their duties or unfit to perform the same.
Similarly, under the Indian Penal Code, 1860, Sections 330, 331, 342 and 348, are meant to act as a deterrent on the police officer to resort to third-degree interrogative methods on prisoners/ accused, etc., including, use of violence, threat, wrongful confinement. etc. Further, the Indian Judiciary has consistently taken note of rampant acts of custodial violence and third-degree methods used in police interrogations and suggested certain preventive measures to be adopted to tackle this menace. The Law Commission of India (“Law Commission”) in several of its Reports, recommended amendments to be made to the provisions of existing enactments to tackle with the problem of police atrocities/ violence/ torture.
Under the International regime, Article 5 of the Universal Declaration of Human Rights provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Further, Article 7 of the International Covenant on Civil and Political Rights, inter alia, prohibits subjugation of persons to torture, cruel, inhuman, or degrading treatment or punishment. Keeping its commitments to ensure protection of all persons from torture and other cruel, inhumane or degrading treatment, the United Nations’ General Assembly, adopted the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and subsequently, text on Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment/ United Nations Convention against Torture (“UNCAT/ Convention”). The Convention, inter alia, defines the term “Torture” and makes it incumbent, under Article 2 thereof, on each of its Party State to take effective legislative, administrative, judicial, or other measures to prevent acts of torture, without the events such as state of war, political instability, public emergency, orders from a superior officer, etc., being cited as exceptions/ justification to torture.
Significantly, under Article 4 of the Convention, duty is cast upon the ratifying States to ensure that all acts of torture, including attempts, complicity, or participation therein, are declared as offences under their respective criminal law(s), punishable by appropriate penalties depending on the gravity of the said offence. The Convention, inter alia, provides for guiding principles in relation to custody, extradition or suspected offender, training of law personnel, prompt and impartial investigation, right of a victim of fair hearing and examination by a competent authority, right of fair and adequate compensation to the victim, etc. Though India is a signatory to the Convention, however, the same has not been ratified till date on certain reservations regarding provisions, inter alia, relating to inquiry by the Committee against Torture (Article 20) / CAT; State complaints (Article 21), and individual complaints (Article 22), etc., existing therein. Despite the same, a need has been often felt for such ratification and a standalone law dealing with torture, inter alia, on the ground that the absence of laws dealing with custodial torture makes extradition of offenders to India, difficult.
On April 26, 2010, the Prevention of Torture Bill, 2010 (“2010 Bill”) was introduced in the Lok Sabha by the Minister of Home Affairs, with an object to ratify the Convention. The 2010 Bill, inter alia, defines torture as an act dealing with grievous hurt, danger to life, limb, or health (mental or physical), and provides for punishment for torture. As per Section 5 of the said Bill, cognizance of such offence could be taken by the Court only when the complaint against such offence “is made within six months from the date on which the offence is alleged to have been committed”. However, the 2010 Bill, under Section 6 thereof, provides for a requirement of a previous sanction against the erring public servants, for the Court(s) to take such cognizance against the said officials. Noting several inherent lacunae in the 2010 Bill, the Select Committee on the Prevention of Torture Bill, 2010, recommended proposals for amendment of the said Bill in its Report to the Rajya Sabha. Recommendations were, inter alia, made by the said Committee for amending the definition of torture to make it more comprehensive; prescribing minimum punishment and fine clause as a penalty against the offender; enhancing the time period for cognizance, and making provisions for the protection of victims, etc. Pertinently, though, the 2010 Bill was passed by the Lok Sabha on May 6, 2010, however, the same could not be passed by the Rajya Sabha and subsequently, lapsed with the dissolution of the 15th Lok Sabha.
Discussions and proposals for the need of anti-torture laws were reignited with a reference made by the (then) Central Government to the Law Commission, to examine the issue of ratification of the Convention/ UNCAT. Based on such reference, the Law Commission carried out a thorough review on the topic and submitted its Report containing, inter alia, recommendation/ proposal in the form of the prevention of Torture Bill, 2017 (“2017 Bill”). The said Bill provides for an extensive definition of torture (under Section 3) and under Section 4 thereof, makes provisions for penalties, including, death, imprisonment for life and fines/ compensation/ etc.
As per Sections 5 and 6 of the 2017 Bill, cognizance of offence can be possible only on a complaint, within six months from the date of alleged commission, condonable on sufficient grounds. Though, 2017 Bill retains the provisions regarding the previous sanction, however, in order to make the proposed legislation in tandem with the provisions of UNCAT, provides for the absence of exceptions to offence (Section 8) and provisions relating to victim protection (under Section 9). Simultaneously, the 2017 Bill, inter alia, makes provisions for an amendment to/ insertion under CrPC and Evidence Act relating to compensation, a presumption of torture/ shift of the burden of proof, etc. Though, an improvement over the 2010 Bill, unfortunately, the provisions of the 2017 Bill also did not see the light of day.
Quite recently, a petition was moved before the Hon’ble Apex Court seeking, inter alia, directions against the Central Government to enact a suitable stand-alone, comprehensive legislation against custodial torture. In this regard, the Hon’ble Apex Court, while acknowledging that any form of torture would violate the provisions of Articles 21 and 14 of the Constitution and reaffirming its solemn duty to “step in, when required, to protect fundamental rights”, refused to interfere in the executive’s power to legislate citing the doctrine of separation of powers.
As early as the year, 2010, the (then) Chairperson of the National Human Rights Commission, Hon’ble Mr. Justice (Retd.) J.S. Verma had urged the Government of India to “announce a date by which the nation and the world can expect the completion of the ratification process by our country, and to abide by that date.” However, despite there being several draft laws/ Bills, to date, no statutory enactment has come into force for dealing with the serious issue of police violence/ torture. Undoubtedly, the Courts in India have consistently stepped-up to take cognizance of such deplorable events/ incidents of torture/ violence. However, lack of a statutory provision leaves the demon of “torture”, unhinged and disruptive. It a sacrosanct duty of the State to abide by its commitments towards those who seek its patronage. A welfare state affords no privilege to play mute and dumb to the atrocities of its fellow citizens. Experiences have shown that despite several judicial dicta, the absence of enacted provision has failed to invoke fear in the minds of those in power. Therefore, time is ripe for India to make strict and efficient codified laws to tame the unruly horse of torture and the curb the privilege which the ‘so-called guardians’ of State deem to enjoy for the reasons of their positions. In the words of Benjamin Disraeli, “Power has only one duty, to secure the social welfare of the people.”
About the Authors
Mr. Abhishek Goyal is an Advocate based in Delhi and presently is a part of the Disputes Resolution Team of L&L Partners Law Offices, Delhi, designated as a Managing Associate. Mr. Goyal began his journey in the profession in the year 2010, immediately on conclusion of a three years Law Graduation course from the Campus Law Centre, Delhi University (which was subsequent to graduation in Zoology (Honors)/ B.Sc. Zoology (Honors), from the Hindu College, Delhi University). He started in the profession as an Associate to one of the learned Standing Counsel (then) at the Hon’ble Delhi High Court and subsequently worked under the guidance and mentorship of Hon’ble Ms. Justice Mukta Gupta and Hon’ble Mr. Justice V.P. Vaish, Hon’ble Judges of the Hon’ble Delhi High Court, as a Law Researcher for approximately three years (cumulative). Prior to joining L&L Partners, Mr. Goyal worked at an IPR Firm based in Gurugram; Chadha & Chadha IP for a period of one year. His areas of interest and expertise involve Insolvency and Bankruptcy Laws, Arbitration Laws, other Civil and Criminal Laws, etc., and has an experience of around ten years into the profession.
Mr. Abhishek Emmanuel Kisku is an Advocate based in Delhi and presently is a part of the Disputes Resolution Team of L&L Partners Law Offices, Delhi, designated as a Managing Associate. Mr. Kisku completed his graduation in 2009 from The West Bengal National University of Juridical Sciences, Kolkata (NUJS, Kolkata). After graduating, he started his career as an Associate at Fox & Mandal, Kolkata where he worked for almost 2 and a half years. Thereafter, he moved to New Delhi where he practised his trade with RDA Legal, a law firm started by his college seniors. Prior to joining L&L Partners, Mr. Kisku worked under the able guidance of Mr. Arun Monga (then practising before the Hon’ble Supreme Court of India and Hon’ble Delhi High Court and presently Ld. Judge at the Hon’ble High Court of Punjab and Haryana). His areas of interest and expertise involve Arbitration Laws, Insolvency and Bankruptcy Laws, Corporate Commercial disputes, other Civil and Criminal Laws, etc., and has an experience of around eleven years into the profession.
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