21, Nov 2017 | Teesta Setalvad
In a major victory for the human rights movement in the country, the Law Commission of India (headed by justice BS Chauhan) has recommended that the Indian government ratify the Convention Against Torture for ratification enact a Prevention of Torture Law. In its 273rd report submitted to the Law and Justice Minister Ravi Shankar Prasad on October 30, 2017, the Commission makes a substantive argument for the prevention of torture. The entire report of the Law Commission may be read here.
Official figures recorded by the National Crime Records Bureau reported no less than 97 cases for custodial torture during 2015 from every state in India, the highest was reported from Maharashtra. In 2014, Chhattisgarh was the state in central India with the maximum number of complaints (3,105) against the police for human rights abuses. Judicial or magisterial inquiries –a must under criminal law—were, however instituted in only 924 cases. The high powered panel on the Socio-Economic, Health and Educational Status of Tribal Communities in India (Ministry of Tribal Affairs, May 2014) documents a large number of tribals languishing in Chhattisgarh’s jails without trials concluding. Multiple cases of rape and gendered violence against tribal women were reported from the same state in 2015-2016. These figures do not reflect the state of affairs in states like Manipur and Jammu and Kashmir where the violations of custodial torture, extra judicial killings and enforced disappearances have forced Courts to intervene.
Though India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, popularly known as the UN Convention against Torture, “CAT” on October 14, 1997, it has been reluctant to ratify it. Ratifying the Convention means allowing for an Inquiry by the CAT (Art. 20) as also State complaints (Art.21) and individual complaints (Art.22), the issues that India has always been reluctant to lay itself open to.
A year before India signed CAT, in 1996, the Supreme Court of India passed a seminal judgement, DK Basu versus State of West Bengal, that not only outlined the gross failures of the Indian criminal justice system but outlined how deep-rooted the tendencies to use coercive methods, including torture, by the Indian police and security agencies, are. In Basu the Court held “Custodial violence including torture and death in lock ups 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.” ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture today has become synonymous with the darker side of the human civilisation”. The Court quoted the definition of torture by Adriana P. Bartow as under:
“Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”
Neither the Indian Constitution nor statutory law contain an express definition of torture. However, different and separate provisions in law allow the police to use power and force, albeit in certain circumstances. Draconian provisions of anti-terror laws have been used by state agencies to violate human rights. For example, the Terrorist an Disruptive Activities Act (TADA), Prevention of Terrorism Act (POTA), Armed Forces Special Powers Act (AFSPA), Assam Preventive Detention Act, National Security Act, Armed Forces (Jammu and Kashmir) Special Powers Act (1990) have worked in a sense to institutionalize torture.
In a long line of cases, the Indian higher judiciary has commented repeatedly and adversely on the widespread practice of torture, something that the Indian executive and democratic structures have adamantly refused to act upon.
In another judgement, Raghubir Singh v. State of Haryana , a case where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court had passed severe remarks “We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of law gore human rights to death.” The Court further observed that vulnerability of human rights assumes a traumatic, torturous poignancy, the violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. In another case, State of U.P. v. Ram Sagar Yadav, the Supreme Court dealt with a case where the policemen murdered one Brijlal who not only refused to pay bribe of Rs.100 in a trivial matter of cattle trespass but also complained about demand of bribe to senior police officers. The Court observed that “Police officers alone and none else can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody ….. The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are.” The Court recommended that the “law as to the burden of proof in such cases may be re-examined by the legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection.”
The long list of judicial pronouncements against torture does not end here. In Prakash Kadam v. Ramprasad Vishwanath Gupta , expressed its displeasure on fake encounters. Some police officers and staff were engaged by private persons to kill their opponent. If the police personnel act as contract killers, there could be very strong apprehension in the mind of the witnesses about their own safety that the police may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. The protectors have become the predators. …The Court observed that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. The policemen were warned that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death.
These words from India’s higher judiciary are comforting given the widespread prevalence of inefficient means of investigation, false implications of innocents in serious crimes, coercive methods used against marginalized communities falsely incarcerated and of course the use of torture. However, the logical corollary to these observations has not followed. Rarely, if ever have we seen the serious punishment of police officials involved in the use of such extra legal practices.
Apart from the proposed Prevention of Torture Bill that may be read in the annexure to the 273rd Law Commission report, the Law Commission has proposed an amendment to existing statutes to make the intent of the abolition of torture, meaningful.
For instance, the existing legal provisions on compensation and burden of legal proof (CRPC, 1973 and Indian Evidence Act, 1872) requirement change through legal amendment. In this report, the Law Commission has clearly recommended an amendment to section 357B to incorporate payment of compensation, in addition to payment of fine, as provided under section 326A or section 376D of the Indian Penal Code, 1860.
Besides, this report of the Commission reminds us that the recommendation of its earlier Report No.113, and, as reiterated in Report No.152, that the Indian Evidence Act, 1872 requires insertion of section 114B. Such an amendment will ensure that in case a person in police custody sustains injuries, it is presumed that those injuries have been inflicted by the police, and the burden of proof shall lie on the authority concerned to explain such injury.
Besides, in order to curb the menace of torture and to have a deterrent effect on acts of torture, the Commission recommends stringent punishment to the perpetrators of such acts. The draft Bill annexed to this Report provides for punishment extending up to life imprisonment and fine. In this report, dealing with the crucial issue of Compensation to the Victims of Torture, the Law Commission has left it to the Courts to decide upon justiciable compensation after “taking into account various facets of an individual case, such as nature, purpose, extent and manner of injury, including mental agony caused to the victim as also the socio-economic background of the victim and will ensure that the compensation so decided will suffice the victim to bear the expenses on medical treatment and rehabilitation. ” Besides, the Commission has recommended the establishment of an effective mechanism to protect victims of torture, complainants and witnesses to instances of torture against possible threats, violence and ill treatment.
Applying the law of torts which states that ‘liability follows negligence’ , the Indian state must own responsibility for the injuries caused by its agents on Indian citizens. Agents of the state often claim sovereign impunity and here the Law Commission has commented “it is the citizens who are entitled for fundamental rights, and not the agents of the State.”
How did this Journey Begin?
The Law Commission of India, in its first Report (1956) titled “Liability of the State in Tort” observed that at the time of framing the Constitution the question as to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation. Thus, in the changed circumstances / conditions, the country should also formulate suitable legislation. The old distinction between sovereign and non-sovereign functions should no longer be involved to determine the liability of the State and therefore, State should be subjected to the general law liability for injuries caused to the citizens and also in case if the State employees commit wrong in discharge of their duties.
The 113th Report of the Law Commission made special recommendations on custodial torture and recommended the amendment to the Indian Evidence Act, 1872, by inserting section 114B providing that in case of custodial injuries, if there is evidence, the court may presume that injury was caused by the police having the custody of that person during that period. Onus to prove contrary is on the police authorities. Law requires for adoption of a realistic approach rather than narrow technical approach in cases of custodial crimes. The amendment proposed by the Commission reads as under:
“114-B. (1) In a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.
(2) The court, in deciding whether or not it should draw a presumption under sub-section (1), shall have regard to all the relevant circumstances including, in particular,
(a) the period of custody,
(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence,
the evidence of any medical practitioner who might have examined the victim, and
(d) evidence of any magistrate who might have recorded the victim’s statement or attempted to record it.”
Thereafter, in 1994 the 152nd report of the Law Commission, while dealing with Custodial Crimes made strong observations. The Commission dealt with the issues of arrest and abuse of authority by the officials and making reference to all Constitutional and statutory provisions including Articles 20, 21 and 22 which are bound to be observed mandatorily as they deal with the life and liberty of persons. Though these findings go back 23 years, the Indian Executive and Legislature has not acted on these recommendations
In the 152nd report, the Commission took into consideration the provisions of the Indian Penal Code, 1860 particularly sections 166 & 167 (disobeying directions of law by public officers), 220 (confining a person for corrupt and malicious reasons), 330 & 331 (illegal restraint and causing harm to body) sections 340-348 (wrongful restraint and wrongful confinement), sections 376(2) (aggravated form of rape committed by police officers etc.), 376B to 376D (Custodial sexual offences) and sections 503 and 506 (criminal intimidation). The Commission also considered the provisions of Cr.PC, particularly section 41 (arrest), section 49 (restraints), section 50 (grounds of arrest), section 53 (medical examination of the accused), section 54 (medical examination at the request of the arrested person), sections 56-58 (action after arrest), sections 75-76 (arrest under warrant), section 154 (information in cognizable cases), section 163 (provision of inducements) section 164 (confession before magistrate), section 313 (examination of the accused in court), section 357 (compensation).
The Commission also considered the various provisions of the Indian Evidence Act, 1872, e.g., sections 24-27. The main recommendation of the Commission included amendment of IPC by inserting new provision for punishing the violation of section 160, Cr.PC. It also recommended amendment of Cr.PC by adding the provision section 41(1A) for recording the reasons for arrest and to add section 50A to inform the relatives etc. With regard to Indian Evidence Act, the Commission reiterated adding new provision, i.e. section 114B as recommended in the 113th Report.
Even the Fourth Report of National Police Commission (1980) took note of the fact that custodial torture had been prevalent and admitted that torture on a person in police custody was the most dehumanising. The police did not have a good image in the estimation of the public. Police practice torture in order to achieve quick results by short cut methods. Causing hurt is a punishable offence under sections 330-331 Indian Penal Code, 1860, but the atrocities were committed within the four walls of the police stations and thus, no evidence could be available and as a result thereof the conviction in torture by police cases has been a rare phenomenon. It was difficult to find as to who was the offender.
Between 2015-2017, the question of a legislation on torture has been discussed extensively. The Central Government initially took the stand that under the Indian Penal Code, 1860 torture is a punishable offence. Later on, it was decided to go for standalone legislation and the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha to give effect to 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 had proposed amendments to the Bill to make it more compliant with the torture Convention. However, the Bill lapsed with dissolution of the 15th Lok Sabha.
Thereafter, in response to the Supreme Court’s Observations in a case, the Central Government vide its letter dated July 8, 2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.
A long line of Indian jurisprudence, responding to situations on the grounds has not once, but repeatedly demanded that Indian democracy and the State legislate adequately stringent provisions within our statutes to protect the rights of individuals to life and liberty as enshrined in our Constitution. However the Executives and Legislatures –coming from different and varied shades of political opinion – have simply not acted. Allowing inhuman means of torture by state agencies to become an everyday norm.
|Significant Judicial Pronouncements on Custodial Violence & Torture :|
Mehboob Batcha v. State: The respondents policemen wrongfully confined one Nandagopal in police custody on suspicion of theft from May 30, 1992 till June 2, 1992 and beat him to death with lathis. Worse, they also gang raped his wife Padmini in a barbaric manner. The accused also confined several other persons (who were witnesses) and beat them in the police station with lathis. The graphic description of the barbaric conduct of the accused in this case shocked the conscience of the Court and it observed that Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people.
The State of Andhra Pradesh v. N. Venugopal: the Supreme Court held that there is no provision that authorise the police officers to torture the suspects during investigation/Trial or conviction.
The Court held:
‘The Court has to remember in this connection that an act is not “under” a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done “under” a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done “under” the particular provision of law.
The High Court fell into the error of thinking that whatever a police officer does to a person suspected of a crime at a time when the officer is engaged in investigating that crime should be held to be done in the discharge of his official duty to investigate and as such under the provisions of the law that imposed this duty on him. This view is wholly unwarranted in law.’
Haricharan v. State of M.P: 107 Supreme Court reiterated that “life or personal liberty in Article 21 includes right to live with human dignity. Therefore, it also includes within itself guarantee against the torture and assault by the States or its functionaries.” The State mechanism must not be used for inflicting torture on people.
Nandini Satpathy v. P.L Dani & Anr, the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law.
Khatri & Ors v. State of Bihar (Bhagalpur Blinding case): which was an example of cruel and inhuman treatment to the prisoners which are insulting the spirit of Constitution and human values as well as Article 21. Supreme Court in this case dealt with the blinding of under-trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture and its implicit endorsement by the State. What was significant about this case is the fact that in this case of police torture, the guilty perpetrators (offenders) were hand in glove with the local police and there was an absence of witnesses.
Bhagwan Singh & Anr. v. State Of Punjab was case of death in police custody where the Supreme Court observed that the interrogation does not mean inflicting injuries. “Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid.”
Dagdu & Ors. v. State of Maharashtra, the Supreme Court observed: “If the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. If police officers that have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher.”
Ram Lila Maidan Incident v. Home Secy, Union of India, the Supreme Court held:
“Article 355 of the Constitution provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless, the very essence of constitutionalist is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution…..Therefore, every act which offends or impairs
human dignity tantamount to deprivation pro tanto of his right to live and the State action must be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.”
CBI v. Kishore Singh , a person was arrested without any compliant by constable Kishore Singh suspecting illicit relationship with one Smt. Gaj Kanwar, his relative. He was not only physically assaulted but his penis was chopped off with a sharp edged weapon. The Supreme Court while dealing with the appeal of the CBI against the order of reduction of sentence by the High Court and against acquittal of one accused observed that in a police station, there will be no witness except the policemen and the victim, since the police station is not a public place. The Court further observed: “In our opinion, the policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policeman to protect the people and not break the law themselves. If the protector becomes the predator society will cease to exist”
Sheela Barse v. State of Maharashtra: the Supreme Court laid down guidelines regarding arrest in general, and arrest of women in particular. The Court directed that four or five police lock-up should be reserved for female suspects and they should be kept away from the male suspects and be guarded by female constables; interrogation of females should be carried out only in the presence of female police officers/constables; the District Judge would make surprise visits to police lock ups periodically with a view to providing the arrested persons an opportunity to air their grievances and ascertaining what are the conditions in the police lock ups and whether the requisite facilities are being provided and the provisions of law are being observed and the directions given by us are being carried out and the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or mal-treatment in police custody and inform him that he has right under Section 54 of the CrPC 1973 to be medically examined.
Relying on this consistent judicial view, the Law Commission has, now in 2017 273rd report concluded that ‘Torture has been a contentious issue having a direct bearing on the right to life and liberty of an individual. The Commission is of the opinion that such heinous acts must be curbed through strong legislation providing stringent punishment, which will act as a deterrent…Further, the Commission is of the view that there has to be some effective mechanism to protect the interests of the victims of torture, the complainants and the witnesses against ill-treatment, threats or physical and mental violence. ”