Introduction
The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practised in every police station in the country. Torture in police custody involves a range of practices including position abuse, shackling, beating with canes, batons, iron rods and rubber pipes, the pouring of water to disrupt sleep, the administration of electric shocks to the body . Torture being a crime committed by the State agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally and thus torture is to be considered as a crime against humanity.
In India all the State agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including silencing of opposition, irrespective of its nature. The practice of torture in India has permeated a high degree of fear about the State agencies in the psyche of the ordinary population. On the contrary, fear generates mistrust, thereby impending the establishment of the rule of law in the country.
It has long been overdue as torture is recognised as a heinous practice that needs to be criminalized. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant, whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator.
Throughout history, torture has often been used as a method of effecting political re-education and coercion. In the 21st century, torture is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially do agree not to torture prisoners in armed conflicts. Torture is also prohibited by the “United Nations Convention Against Torture” which has been ratified by 147 states .
Torture – its meaning
The word ‘torture’ comes from the French torture, originating in the Latin tortura and ultimately deriving the past participle of torquere meaning ‘to twist’.
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions(1).
Torture , the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.
Custodial torture in India : Issue
India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s in Lok Sabha , the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded. Torture in police custody remains a widespread and systematic practice in India. ACHR’s research into patterns of torture in police custody since 2008 (ACHR’s2008 and 2009 Annual Reports on Torture) suggests that victims suffer high risks of torture in the first twenty four hours following detention.
There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture. Torture is the most naked assault on human dignity. In India as elsewhere, it is the aam aadmi who suffers the most. Torture in state detention is endemic in India, involving a range of practices including shackling, beatings and the administration of electric shocks. Disadvantaged and maginalized groups including women, Dalits, Adivasis and suspected members of armed opposition groups are those most commonly abused. Torture is also reportedly widespread in prisons. The National Human Rights Commission registered 1,596 complaints of torture of prisoners in 2008-09. The number of deaths due to torture is not routinely reported.
Torture and impunity – Legal Perspective
Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”[2] .The Supreme Court has upheld this provision[3] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity. Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5].
Similarly with respect to national security legislation, the in famous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill[6]. The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India[7]. Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India[8], the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement. Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act[9]. Law enforcement personnel enjoy virtual immunity from prosecution for torture and other human rights abuses, and prosecutions remain sporadic and rare.
In “disturbed areas”, such as Jammu and Kashmir and the north-eastern states where the Armed Forces Special Powers Act is in effect, Armed Forces personnel enjoy additional immunity protection and there is virtually no accountability for violations.
The Prevention of Torture Bill, 2010
The Prevention of Torture Bill, 2010 is also a very important step in this regard. The Prevention of Torture Bill in India, 2010 is meant to bring India closer in line with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention in 1997 but has yet to ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue.
Highlights of the Bill
- The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
- The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
- Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.
The Bill defines torture in a limited sense. It states that if a public official intentionally does an act to seek information or confession from a person by inflicting,
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.
Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture. The definition not only ignores other purposes of torture like punishment and intimidation but also makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.
Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if a public official inflicts grievous hurt on a person to extract information he would not be liable unless it is proved that he had animosity against a group or community to which the person belonged.
Defects of the Bill
Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.
Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.
The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.
Suggesstions for improvement of the Bill
1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.
2. Compensation Schemes must be enumerated in the bill.
3. Proper review mechanisms for interrogation must be established.
4. Clauses like procurement of prior governmental sanction and limited time period to file complaints must be removed.
5 A prohibition on the expulsion, return or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment must be added.
6. Immediate legal aid must be provided to the arrested.
7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.
Conclusion
If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight.
The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards. Inviting suggestions for the Bill, the Select Committee said it would consider suggestions to incorporate provisions for monetary compensation of the victims of torture, payable by the torturers in addition to making the provisions regarding sanction of prosecution of the offending public servants purposive and meaningful.
Among other provisions, the definition of torture in the proposed Bill and the need to protect honest officials against frivolous prosecutions will also receive the committee’s attention.
The committee could also consider views on preventing tortured confessions to distort the course of justice.
References
- Press Release- Amnesty International of the USA, more information visit (www.amnestyusa.org)
- The Statesman – custodial death on the rise(14 april 2010).
- Deccan Herald – Experts differ on torture bill, by Deepak k Upreti, New Delhi, DHNS.
- Asia Centre of Human Rights: Prevent custodial Death in India(One World South Asia).
- PRS Legislative Research: Security/Law/Strategic affairs.
- Ethiopian Review, Amnesty International.
- The Prevention of Torture Bill (www.weeksupdate.com).
- The Torture Bill (www.indiaexpress.com).
- South India Cell for Human Right Education and Monitoring,(The Prevention of Torture Bill- an affront to civil liberties).
10. Human Right Feature, Voice of Asia Pacific Human Right Network(www.hrdc.net/sahrdc)
11. The Tribune Online Edition, Chandigarh, India(Prevention of Torture: Weak bill won’t do by Pushkar Raj (the writer is General Secretary of People’s Union for Civil Liberties, New Delhi).
End notes
- Torture, according to the United Nations Convention Against Torture.
- Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: https://www.vakilno1.com/bareacts/CrPc/s197.htm
- See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44.
- CrPC, Section 45(1).
- CrPC, Section 132(1).
- See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: https://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html.
- Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
- Masooda Parveen v. Union of India and Ors, 2007 AIR 1840.
- Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a).