ANTI-TORTURE LAW- A DIRE NEED IN INDIA
ABSTRACT
“Life means
not only physical existence. It means the use of every limb or faculty through
which life is enjoyed. The right to life includes the right to a healthier environment”.
~ Justice
P.N. Bhagwati
As protests
grew worldwide against the police brutality after the death of George Floyd,
conversation in India around finding justice, for the victims of police
brutality, struggle to take place. It’s not because India doesn’t have a
problem with police violence, it’s because instances like these are very common,
that to many, it’s a normal part of policing. On the streets, extra-judicial
killings by the police are so common that some police officers have build a
career as what’s known as an “encounter specialist”. Often the men in ‘Khaki’
are the only witnesses in these encounters and hence get away with the killings,
by calling it self-defense. Police can keep a suspect in detention for up to 24
hours or if the courts allow, upto 15 days. But the number of people who have
died in this short span of time, is remarkably high. More than 1700 people have
died in police custody, nation-wide, since 2001 to 2018, but only 810 cases
were filed against police officers and just 26 police officers were actually
convicted for the deaths. Mostly, justice is delayed or out-right denied. For
many of those impacted by custodial torture, it is not economically possible to
file a case against the police. The word torture today has become synonymous
with the darker side of human civilization. What Justice VR Krishna Iyer said
in 1980, that who will police the police, makes sense now.
EXISTING
SCENARIO
It has been
established through judicial interpretations and different texts that committing
a crime doesn’t reduce the status of a human being to that of a non-human
being. Every person, regardless of their locus standi, is entitled to the basic
rights. Basic fundamental rights provided under articles 14, 19 and 21, Part
III of the Indian constitution, are provided to the prisoners at all times.
Discussions for the protection and retention of prisoners’ rights, have taken
place even at international levels. Despite being a signatory to the UN
convention against Torture in 1997, India lacks its implementation. The recent
case of Jayaraj and Benix, the father-son duo, who were arrested in the state
of Tamil Nadu for keeping their shop open during the curfew hours, were
brutally tortured and sexually harassed, leading to their ultimate death. This
case of police brutality has shaken our country, creating distrust of the
uniform, which is meant to protect us. Custodial torture has become engrained
and common in the investigation proceeding. Moreover, it is so casually
glorified in movies that people have now started considering it as a part of
criminal justice.
INEFFICIENT
LAWS FOR PRISNORERS
Till now,
there is no robust law against custodial torture in India. Torture is not even defined
anywhere in the IPC. Though, ‘hurt’ and ‘grievous hurt’ are mentioned, but the
definition of hurt doesn’t include mental torture. The Code of Criminal
Procedure provides for a judicial magistrate enquiry into every custodial death
but very few cases come to light. The National Human Rights Commission has laid
down specific guidelines for conducting autopsy under the eyes of the camera.
The Supreme Court’s decision in the case of Nilabati Behera v. State of
Orissa, made sure that the state could no longer escape liability in public
law and had to be compelled to pay compensation. Protection from torture is a fundamental right
enshrined under Article 21 (Right to Life) of the Indian constitution. The
right to counsel is a fundamental right under Article 22(1) of the India constitution.
Section 41 of the Criminal Procedure Code was amended in 2009 to include
safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for
interrogation have reasonable grounds and documented procedures. In the year 2017, a draft of ‘Prevention of
Torture bill’ was proposed by the law commission of India, in its 273rd
report but it was vague in nature and very harsh for the police to discharge
its responsibilities without any fear of prosecution and persecution. It was
inconsistent with the existing provisions of law and included ‘severe or
prolonged pain or suffering’ as a form of torture but that was left undefined.
Torture is punished under Sections 330 and 331 of the Indian Penal Code, 1860
which encompasses hurt and grievous hurt. These provisions cover only a few
elements of torture and are mere parchment barriers to prevent custodial
torture, miserably failing to provide any pragmatic protection to a person in
custody. Moreover, the absence of legislation makes it easier for the police to
move scot-free.
NEED OF
AN ANTI-TORTURE LAW
Amidst this
culture of impunity, custodial brutality continues unceasingly in our country.
Despite denying to form a legislation for the prevention of torture, the courts
on numerous occasions have focused on the basic human rights of the prisoners
and the urgent need to curb custodial violence. Police officers believe that
the use of counter violence to incapacitate criminals will prevent them from
further harming innocent citizens but this presumption has led to decay of the
code of conduct among officers, leading many to commit terrible breach of authority
to assert their dominance over the public. The various suggestions made by the
Apex court in judgements like DK Basu v. State of Bengal must be
enforced and any default by reluctance or ignorance of any police station or
public authority should be strictly penalized. Public awareness of protections
such as Article 39 – A of the constitution which providing free legal aid to
the poor or disadvantaged sections of society so the provision of justice can
be extended to all citizen despite economic or educational hindrances. Immediate
amendment and reform of the “Police act of 1861” which contains several
provisions that enable violation of rights by the hands of police officers.
This act born in the era of pre independence was made only to hold the lives of
our countrymen on a leash, it contains several loopholes wherein the police get
away with lesser consequences compared to the gravity of the crimes they have
enabled over and over. Crime
in India data on convictions and acquittal of police personnel would be more
comprehensive if the NCRB also included information on the status of pending
cases against police personnel, irrespective of the year of death of a person
in custody. This will enable assessment of the extent of and timespan for
obtaining police accountability. Inclusion of information on initiation of
departmental inquiries and rate of filing chargesheet in criminal proceedings,
would also improve understanding around police accountability for deaths. A specific anti-torture law also needs to be
laid down, which is detailed, comprehensive and conform to international
standards. It should contain a broad descriptive definition of torture that includes
mental torture as well.
CONCLUSION
Custodial
torture is a violation of human dignity involving various fundamental rights.
An arrested person has the right to life and liberty and it could only be taken
away by the procedure established by law. Thus, the torture inflicted on a
person is a violation of Article 21 of the Constitution. It is noteworthy that
even after 75 years of independence and 25 years after signing UNCAT, no
substantial steps have been taken to effectuate it. It is high time that the
Government ratify UNCAT and bring a legislation with strong penal provisions
ensuring that anyone indulged in the act of torture should not get away from
the hands of justice. India is not new to custodial torture. Irrespective of
this widespread anathema, India not only lacks a separate anti-torture
legislation but also, an inefficient implementation of the existing laws. India
being a proud democracy, should not be lagging in passing a humanitarian law.
The courts have been crying hoarse ever since, stressing on the enjoyment of
Articles 14,19 and 21 by the prisoners, but unless the State recognizes
custodial violence as a crime and the fact that monetary compensation is not
necessarily the only appropriate relief, such unnatural deaths will continue persistently.
Human rights are not dependent on the status of a person but are universal in
nature. The police and even people glorifying custodial deaths of criminals
need to understand that being behind bars or committing a vile act does not
deprive them of their basic human rights. When the guardians of the law whose
paramount duty is to protect the citizens, themselves destroy human rights, it
scars the minds of the people that their life and liberty is in jeopardy. But
more than that, it inflicts a gaping wound on our Constitution and the Rule of
law. Thus, in an attempt to protect fundamental rights of those being
victimized at the hands of the State, a separate legislation to prevent
torture, cruelty or any kind of degrading treatment behind the bars is of utmost
importance. The need of the hour is to strike at the root cause of the problem
and implement recommendations of various commissions to bring in necessary
reforms. A commitment to eradicate
torture also requires the police force as a whole to have zero tolerance for
the practice and reinvent its purpose and not as an oppressive force at the
beck and call of the powerful but as a service whose main work is the protection
of the lives and liberties of each of us.
REFERENCES
· https://m.facebook.com/viceworldnews/posts/193925405589297?locale2=nl_NL
· https://ijlra.com/wp-content/uploads/2020/12/Volume-1-Issue-5-Jahnavi-Vora.pdf
· https://blog.nextias.com/anti-torture-law-in-india
· https://www.thehindu.com/opinion/op-ed/why-a-separate-anti-torture-law/article32132114.ece
· https://curiousforlaw.com/police-brutality-in-india/
· https://notjustlex.com/anti-torture-law/
· https://www.indiaspend.com/how-better-data-could-help-prevent-custodial-deaths/
· https://ijlpp.com/anti-torture-law-in-india-urgent-need-for-a-legislation/
Well done beta.. 👍
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