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The issue of custodial violence is widely debated. Several laws have been passed against custodial violence but the status is more or less the same. The prevention of torture has been one of the key human rights developments in the past decade. The victim of torture goes through severe harassment when he approaches the court to obtain justice. The public denial of the existence of torture and its silent acceptance is even more shocking. There must be serious laws in force and not just in force but also in legal action ensuring the moral and legal rights of the accused. We must address the ways in which the inequalities continue to exist and questions must be raised on our very own criminal justice system which turns a blind eye when it comes to custodial violence.
With the Universal Declaration of Human Rights in 1948 ‘torture’ as a form of human rights violation was acknowledged for the first time. Article 5 of the said declaration states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Even after the acknowledgement of this and the declaration being signed by member nations, torture continues to exist. After the 9/11 terrorist attack on the USA, GITMO was established in 2002 by George Bush’s administration during the ‘War on Terror’. ‘War on terror with terror’ is my question. There have been numerous instances where the human rights organizations worldwide have spoken against the tragedies happened at Guantanamo Bay. The form of torture thus mentioned was the highest and the gravest form of state-inflicted torture. Here, in the name of prevention of terrorism, society has accepted any kind of treatment towards people of certain identities that are part of the “dangerous other” (Julia Ekert 2008).
The World Medical Association, in its Tokyo Declaration, 1975, defined “torture” as , “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason.
Philosophy and Torture
Torture is a vivid term and for most, it is the practices and distressing images that fall indisputably within its sphere of reference but its boundaries are contestable. Torture is vague because the term used in law used by most countries like ‘severe physical or mental pain or suffering’ is vague. The moral justifiability of torture concerns the torture of the extremist groups and hence the justification for custodial violence.
The Natural Law theory is mostly associated with St Thomas Aquinas who propagated Aristotle’s philosophy through his work. Aristotle said that good humans were those who fulfilled the purpose of human life and this is applied to all things. Taking this theory forward Aquinas argues that since we cannot know what God wants us human beings to do with our lives then we must consider before making any decisions whether it is natural or it is a part of human nature to do so. Therefore, according to the proponents of the natural law theory torturing human beings is unnatural and to torture people means to violate the natural rights and dignity of an individual.
The Greeks have defined different kinds of love and the word ‘agape’ is more specific and means love not just for people you know or fancy but for all other humans and other beings of the world. The thing wrong with torture is that consists of intentional, substantial curtailment of individual autonomy and are morally wrong even if it is seen independently of the physical suffering that is involved.
The contemporary debate concerning the legalization of torture the liberal front argues that this theory or act will be in direct conflict with the values underpinning liberal institutions and the justification of torture even in extreme emergencies will lead to the legalization of the gravest form of injustice and violation of human rights and hence it should be never legalized or institutionalized rather criminalized. Many have said that torture is a greater evil than killing or even murder. For example, Michael Davis claims that “both torture and (premature) death are very great evils but, if one I greater evil than the other, it is certainly torture.” Similarly, David Sussman says, “yet while there is a very strong moral presumption against both killing and torturing a human being, it seems that we take the presumption against torture to be even greater than that against homicide.”
Coming to custodial violence, there are numerous instances as discussed in here, where the accused are met with harsh treatment when in custody. The pain inflicted in the police cells is often kept a secret and which is known and yet not acknowledged i.e a public secret. The victim in that situation is powerless, the victim cannot defend or is unable to defend himself from what is being inflicted upon him and amounts to destruction of his autonomy. A lot more that goes on here in the psychology of the torturer is a ‘power game’. The one who inflicts torture holds a position of power and it gives him a sense of superiority and dominance over the one tortured. Custodial violence is performed by state actors for the purpose of extracting information or establishing guilt whatsoever. The question here is, is it the only effective and efficient option available for retrieving information thereby securing the conviction of the offender. The police or the state is not morally entitles let alone morally obliged to torture the offender.
Custodial Torture and India
Custodial Torture is widespread in India. According to the Asian Centre for Human Rights, the nationwide figures are four custodial deaths per day and it is even more horrid because more than half of the cases of custodial tortures go unreported. It is often called extra-judicial execution, another but more discreet form of ‘state inflicted’ torture. Though it is acknowledged little steps are against it.
There has been no consistent documentation of torture-related complaints. The National Crime Records Bureau (NCRB) does not document cases of custodial torture. The NHRC does deal with cases of torture in custody, but the annual figures related to such cases do not get reported in its reports. (Kaur, 2018). While the award of compensation in 684 cases of custodial violence was given by NHRC alone from 1994 to 2007, although only seven police personnel in 2004 and 2005 took place (Third Report of National Police Commission, 1980, para 22.28).
Muhammad Aamir Khan in his autobiographical account, ‘Framed as a Terrorist’ reveals a very brutal picture of how his detention and how he was framed into false charges of terrorism. The most horrid part of the book is where he explains and gives the minutest details of the torture inflicted on him under police custody (Mohd Aamir Khan v. Union of India). He has been acquitted against all charges and later was paid Rs. 5 Lakh by NHRC. There was no regret, no apology from the state. The stories of torture narrated the book is horrid. The nails being pulled out, using high-pressure water to not let the prisoner breathe, even these specials cells in the jails for ‘dangerous class of prisoners’ are not fit to even keep the animals let alone humans.
Provisions against Torture
- Article 21 of the Constitution of India, 1950 and is the pride of the Constitution of India mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This includes a right to live with human dignity.
- Chapter V of the Code of Criminal Procedure, 1973 (for short the ‘Code’) deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person.
- Indian Evidence Act, 1872 (Section 25) provides that a confession to a police officer cannot be proved as against a person accused of any offense, confession caused by threats would be irrelevant in criminal proceedings. Hence, custodial torture is not expressly barred in Indian Law but the evidence brought forth by torture and threats in unacceptable in the courts.
- Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. Article 22 provides four fundamental rights with respect to conviction. Namely, being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws, and production before nearest Magistrate within 24 hours of the arrest of that person.
- India signed the UN Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) in 1997. However, taking necessary legal steps to make Indian laws correspond to the UN convention commitments) is yet to be done.
- The 185th Law Commission Report also recommends the rights of arrested persons with respect to the Indian Evidence Act, 1872 (Section 27).
- Section 330, 331, 342 and 348 of IPC – these provisions were designed to deter a police officer who is empowered to arrest a person and to interrogate him during an investigation from resorting to third-degree methods causing ‘torture’.
- After the Mathura Rape Case, an amendment was brought to Section 376 of IPC, Section 376 (1)(b) penalizes custodial rape committed by police officers.
- Section 7 and 29 of the Indian Police Act, provides for penalty and dismissal of officers who violate various constitutional and statutory safeguards.
2008, a Prevention of Torture Bill was brought in Parliament, but was sent to the select committee draft was presented in the upper house in 2010, but it remained stuck ever since. Law Commission of India submitted its 273rd report recommending the government to ratify the UNCAT and also proposed the Prevention of Torture Bill 2017. In response to a question asked with regard to steps taken to prevent custodial cruelty, in Parliament in March 2018, the Ministry of Home Affairs responded that the government has proposed amendments in Sections 330 and 331 of the Indian Penal Code (IPC).
This Court has in a large number of cases expressed concern at the atrocities perpetrated by the protectors of law. In Raghubir Singh v. State of Haryana (AIR 190 SC 1087) and Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath Dhoble and Another (2003 (7) SSC 749) , Gauri Shankar Sharma v. State of UP (AIR 1990 SC 709 ), Munshi Singh Gautam (D) & Ors vs State Of M.P on (16 November 2004) the SC expressed its concern time and again. As was held by the Supreme Court, “custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent human personality.
The mentality that there is no harm if one prisoner dies in custody is a total miscarriage of justice. The prosecution in pursuing the goal of proving the guilt beyond reasonable doubt crosses the limits and the judgments that it is proof enough if the accused accepts his guilt in police custody he will be proved guilty.
But these have not proved to be enough. The NHRC, Law Commission and Supreme Court of India have recommended on different occasions to the Government of India to enact a special law against torture. The UN Committee on the CAT explains that a special law will necessitate that torture and ill-treatment are defined and criminalized distinctly from assault or other crimes by alerting everyone, including perpetrators, victims and the public to the special gravity of the crime of torture.
Is there hope?
The Law Commission’s bill must be brought in the parliament for discussion and measures need to be taken towards its swift enactment. Even though, this bill has certain loopholes which will impede the prevention of torture and justice to torture victims. The definition of torture as recommended by the select committee draft of 2010, the definition of torture should be broadened to include discrimination of any kind as one of the purposes of torture. This is included in Article 1 of UNCAT. It should also include mental agony and tension arising from coercion. The methods used for torture are such that it does not leave any physical marks and hence no evidence, and among those methods is the harming of the mental health of the victim. There have been cases where such harassment to mental health has led the victim to end commit suicide. The definition of torture should not have the exception: “Pain … arising from … any act committed in accordance with the procedure established by law,” as this will leave scope for the state to enact new laws that may qualify any form of torture as a legal act.
The six-month restriction for filing the complaint should be removed. Similarly, the requirement of prior sanction from the government should be removed as trends show the reluctance of the governments to give sanction and then it is further harassment for the victims to go to court against the denial of sanction. The provision of a medical examination should be further specified as this forms the most crucial evidence in custodial violence cases. Also, in addition to submitting the medical reports to the court, it should be mandatory for the medical practitioners themselves to furnish these reports to the victim or the family immediately.
First and foremost thing that needs to be done is to criminalize custodial torture. There is a need for codification of rights of an arrested person. Guidelines were given by Supreme Court in D.K. Basu v. the State of WB with respect to the rights of an arrested person. The most significant being, right to get medically examined in every 48 hours. It is imperative to evolve a system such that it allows the police to effectively maintain law and order without jeopardizing the legal rights of the offender as well as civilians. There must be some control over the police and their conduct with the offenders in custody should also be monitored. The need of the hour is to devise an effective grievance-redressal system to vindicate the excesses of police.
When it comes to ‘custodial violence’, India has been living in denial. The change that is required will take time to get the effect and legal sanction. On the one hand, there is an overt and covert public denial of the existence of torture by the state actors, and on the other, there is a silent acceptance of torture in the society. Thus, torture has become a “public secret,” (Jinee Lokaneeta 2014).
By – Ritika Chaturvedi
(Faculty of Law, University of Delhi)
- NLC Ethics Project
- Jermy Waldron, NYU, School of Law
- Torture (Stanford Encyclopedia of Philosophy)
- A Critical Introduction to Torture (statecrime.org)
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