Torture or practice of inflicting severe pain on someone

                

                 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.

–         
Adriana P. Bartow

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            Torture can be referred to as the inhumane
and adverse conduct of a person in authority towards another person under his
custody. This fiendish menace haunts the prisoners all over the world whether
they are under-trials or convicts. The situation is grimmer in India, where,
due to the absence of any legal provision to this effect, this evil goes
unaccounted for. Though, due efforts have been made by human rights activists,
scholars and the pro bono members of the public to propose an anti-torture
statute in the past few years, no initiative has been taken up by the
Government in this regard.

            Thousands of custodial deaths,
hundreds of suicides by the inmates, failed extraditions, an unratified
international treaty, a disregarded Rajya Sabha bill, an unimplemented Law
Commission Report, and various guidelines by the Hon’ble Supreme Court, all
have proved to be insufficient to recognize this as one of the gravest human
rights violation. A learned bench of the Hon’ble Apex Court recently dismissed
a petition challenging this delay, opining that its interference in this regard
would amount to taking judicial activism too far and has therefore shrugged off
its responsibility. Challenges, complexities, failures! Meanwhile, yet another
prisoner being stripped off his dignity. It is indeed a matter of utmost
urgency in a nation where “human dignity has to be preserved even when a
prisoner is sentenced to death”1.

            The word ‘torture’ in its strictest
form and dimensions has not been legally defined per se. However, the Oxford
Dictionary defines ‘torture’ as “the action or practice of inflicting severe
pain on someone as a punishment or in order to force them to do or say
something”.  Albeit this definition
provides a restricted understanding of the word, it lays down the primary
concept by describing ‘torture’ as the use of such methods that cause severe
pain or distress to someone in order to extort some information through his confession.

            The Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)2
is the only breakthrough and dedicated treaty adopted by the United Nations to
describe what constitutes ‘torture’, to punish the malefactors and to grant
compensation to the victims. The term is defined under Article 1 to the widest
extent covering all of its facets as:

                 The
term “torture” means 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.

            This definition broadens the scope
of ‘torture’ as something which is not only limited to one’s physical senses,
but also causes mental suffering to a person. UN has adopted many other conventions
that prohibit and provide protection against torture. Article 5 of The
Universal Declaration of Human Rights (UDHR)3
and Article 7 of the International Covenant on Civil and Political Rights
(ICCPR)4
provide that “no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment”. It can be inferred from the above that the
prohibition of torture has been a recognized right throughout the world and the
CAT has categorically expanded its scope and understanding by enacting
provisions and rights thereof. However, despite this, the term ‘torture’ does
not find much regard in the Indian legal system.

            The Constitution of India or any other
statutory law in India (except for a few safeguards in the Indian Penal Code,
18605,
the Code of Criminal Procedure, 19736
and the Indian Evidence Act, 18727
which are faraway to torture) provide no categorical protection to the basic
human right of protection against torture to the prison inmates.

            The absence
of an anti-torture law has immensely blotted the Indian administrative
machinery in the last two decades. This is starkly depicted in a report
published by the National Crime Records Bureau which evinces that a total of 92
unnatural deaths were caused in police custody across India in the year 2016
and 74 of them occurred due to injuries caused due to physical assault by
police, suicides or illness.8 It
is startling to note that, in out of these 92 cases, the concerned police personnel
were not convicted even once, even when a charge sheet was filed against them
in 24 cases. It is pertinent to note here that deaths due to suicides and
illness are directly or indirectly, a result of the deteriorated condition of
the jails, which, according to the aforementioned definitions, amounts to
torture. The pathetic condition of the jails can be determined from the fact
that the population of 1401 jails in India exceeded their actual capacity by
52,842 in 2015 at an Occupancy Rate of 114.4%.9
These statistics clearly point towards the fact that the cases of torture are
dealt with very lightly in India.

            Recently, a
school bus conductor was arrested on the allegation of murdering a seven year
old boy studying in Ryan School. The alleged was “punched in the stomach and
whisked off to the police station” and was not provided with any meals for a
couple of days. He was “tied up, slapped, beaten, brutally tortured, and
threatened by Gurgaon Police personnel”.10
Later, as the investigation took shape, it was discovered that a senior student
of the school had committed the murder and not the bus conductor. A mere allegation
made him suffer for his dignity due to the moral neglect of the police
personnel. This is only one of the many such torture cases that take place
across the nation, unreported. Such acts might also lead to a false confession
by the victims and lead to their unwarranted conviction. This conduct clearly
violates Article 20(3) of the Constitution of India which provides that “no
person accused of any offence shall be compelled to be a witness against
himself”. Further, it also stands in violation of Article 21 which grants Right
to Life and Personal Liberty to every citizen and covers within itself a right
to live with human dignity as reiterated by the Hon’ble Supreme Court in a
catena of judgements.

            The saga of
injustice does not end here. This custodial torture also paints a gloomy
picture of the class divide prevalent in India. The gulf between the haves and
the have nots extends its arms to the treatment of the inmates by the
personnel. Former Bihar Chief Minister Lalu Prasad Yadav was recently convicted
in a fodder scam case by a CBI court and was reported to get facilities like
TV, newspaper, and personal meetings in Birsa Munda jail.11
While on one hand, a bus conductor was tied and beaten up on a mere allegation,
on the other, a scandalous minister who stashed his vaults with the exchequer’s
money will be provided with luxuries within the jail. In the words of Lord
Hewart CJ, “not only must justice be done, it must also be seen to be done”12.

            The Indian
machinery has proved to be a failure in protecting its citizens from torture
which has led to a loss of reputation internationally. It has been unable to
ratify the Convention against Torture even after being a signatory to it. This
has also led to India’s failure to enter into successful extradition treaties. When
an attempt was made to extradite Mr Vijay Mallya to India in a loan default
case, his counsel urged, “given Mr Mallya’s medical conditions, which included
diabetes, coronary artery disease and sleep apnoea, he could not be extradited
to Indian prisons due to lack of medical facilities available and prevailing
unhygienic conditions”.13
Despite assurances by the Indian Parliament, the United Kingdom has blatantly
refused the extradition requests of India and hence fulfilling its obligation
under Article 3(1) of the CAT which provides:

                 No State Party shall expel, return
(“refouler”) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected
to torture.

            This is
only one such instance where India’s extradition requests have failed, others
including that of Kim Davy (a Danish citizen who was accused in the Purulia
Arms Drop Case, 1995), Sanjeev Chawla (a prime accused in the South-Africa
India match fixing case) etc. Such cases provide as a clarion call for India to
enact a dedicated law that prohibits torture.

            The various
human rights activists, scholars and members of the public have called for a
stringent law banning torture, but unfortunately, any such law has not been
enacted till date. The Select Committee of the Rajya Sabha, in the year 2010,
recommended a Prevention of Torture Bill which contained scope, sanctions and
remedies against torture. The Law Commission of India has recently strengthened
this Bill further, and has proposed a ‘Prevention of Torture Bill, 2017’ in its
273rd Report14
released on 30th October, 2017. The text of this Bill has been
adopted from the previous Rajya Sabha version with some amendments. The proposed
bill has recommended an expansion in the provision for ‘burden of proof’ under
Indian Evidence Act suggesting that if the death or an injury is caused to a
person while he is in police custody, the court may presume that it has been
caused by the concerned police official himself. The proposed Bill is the
farthest step taken so far and its quick enactment is the need of the hour. The
enactment of a committed law has been much delayed and a judicial interference
in the matter has become all the more important.

            The
judiciary has a critical role to play considering that it is replete with
instances where it has actively taken up the role of protecting the rights of its
citizens. The Hon’ble Supreme Court, in Bandhua
Mukti Morcha v. Union of India15,
protected the human dignity of bonded labourers freeing them from the horrors
of bonded labour. Again, in Vishaka v.
State of Rajasthan16,
the Court sought to intervene in matters related to sexual harassment and took
a step in the direction of protecting the dignity of women in India. All this
has been done with a view to scrutinize and prohibit human rights violations in
India. As far as the issue of torture and its prohibition is concerned, the
judiciary has time and again come up with various judgements where it has
recognized the issue. The Hon’ble Supreme Court in D.K.
Basu v. State of West Bengal17 held:

                 ‘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 Learned Bench
of the Supreme Court in Shabnam v. Union
of India18
held that:

                 Human dignity is infringed if a
person’s life, physical or mental welfare, is harmed. It is in this sense that
torture, humiliation, forced labour etc. all infringe on human dignity. It is
in this context, many rights of the accused derive from his dignity as a human
being… Even after conviction, when a person is spending prison life, allowing
humane condition in jail is a part of human dignity. Prison reforms or jail
reforms are measures to make convicts reformed persons so that they are able to
lead normal life and assimilate in society after serving the jail term, are
motivated by human dignity jurisprudence.

            Hence, it
is a well-established fact that the Supreme Court has criticized the practice
of torture in the past. But what good are these when there is absolutely no law
in existence to govern cases related to this human rights violation? The nation
including the Government, the Judiciary and the citizens cannot stand in
abeyance when such a precious right of the individual is being frequently
violated. It is unfortunate that the judiciary has overlooked its duty to pass
sufficient guidelines in this respect.

            A Public
Interest Litigation was recently filed by the former Union Law Minister, Mr
Ashwani Kumar in the Supreme Court to press on the need for the Indian
government to ratify the UN Convention against Torture and to pass a domestic
standalone law in this respect. The Court dismissed the petition by holding
that the issue is being looked after by the government. The Hon’ble Chief
Justice categorically stated that: “How can we compel the Government to make a
law? Can we ask the Government to ratify a treaty by way of Mandamus?”19

            A pertinent
question that lies here is, if the judiciary refuses to take a positive stand
concerning a critical human right violation, then what is the purpose of filing
PILs? The Judicial Activism under Article 32 of the Constitution of India must
be at its highest when the human rights of its citizens are flouted in their
own country and the nation is criticized all over the world for its apathy. Although
it cannot be denied that the Doctrine of Separation of Powers is a basic
feature of the Constitution, but the principle of checks and balances is
equally important for the healthy functioning of a democracy. There can be
absolutely no recourse for the citizens of the country if all the three pillars
of democracy will choose to remain silent under the garb of the principle of
non-interference.

            India is on
the verge of failing its democratic structure as the country has failed to take
effective steps to tackle the present issue of human rights violation which so
profoundly concerns the custodial rights of prisoners in India. Not only this,
India is going through a phase, where, given its repute of custodial torture
and inadequate prison infrastructure, it is failing to carry out extraditions
successfully. India’s requests of extradition have been repeatedly failing
owing to the alleged human degradation that the prisoners have to suffer in the
Indian prisons. If India aspires to seek centre stage in the world, there
exists a duty on its part to fulfil its jus
cogens obligation to respect and honour internationally recognized rights
and treaties which so closely influence human rights and dignity. These
international obligations can be looked after only through the introduction of
reforms in this area.

            The
foremost step in this regard is the ratification of the Convention against
Torture by enacting a municipal law in this respect. India needs to go a long
way if it seeks to honour its obligations which will mandatorily apply on India
after it ratifies CAT. Article 2 of the CAT mandates for every state party to
take effective legislative, judicial and administrative actions to prevent acts
of torture in its territory. For India to honour this commitment, commencement
of a strong domestic law for prevention of torture in its territory is the
need.

            India will
have to specifically focus on the education and training of the police
officials and other persons who are involved in the custody of a person. With
the police reforms already in initiation by the present Government, it is only
a matter of time that India should be able to successfully provide requisite
training and education to the officials concerned.

            Further, Article
11 of the CAT read with Article 17 of the Optional Protocol to the Convention
carries immense significance and is an extremely important step in the direction
of preventing torture. Article 11 of CAT provides that each state party is
required to keep under check and regularly review the methods of interrogation,
rules, instructions and practices used by the police personnel in relation to
the people under detention. For this purpose, Article 17 of the Optional
Protocol to CAT mandates that every state party within one year of the
ratification of the Protocol has to establish and maintain one or several
National Preventive Mechanisms for protection against torture. Such mechanism
will ensure prevention of torture through regular checks and visits to the
India prisons. However, for India to establish such Preventive Mechanisms,
large scale training will have to be put in place.

            The enactment
of above stated reforms in order to ensure adequate transparency and
accountability is now an unavoidable responsibility on the shoulders of the
Government. This menace needs to be addressed immediately before every convict
in India starts urging that his punishment be elevated a level up from
imprisonment to capital punishment. A reform is necessary not only to protect
the uninfringeable fundamental rights of the citizens, but also as an
international duty of a nation that believes in the philosophy of Mahatma
Gandhi that:

                 Swaraj (self-rule) is a purification
undertaken for the purpose of national happiness. Happiness here means an
enlightened realization of human dignity.

1
Shabnam v. Union of India, A.I.R. 2015 S.C. 3648.

2Dec.
10, 1984, 1465 U.N.T.S. 85, available at https://treaties.un.org/doc/source/docs/A_RES_39_46-Eng.pdf.

3G.A.
Res. 217A (III), U.N. Doc. A/810 at 71 (1948), available at http://www.un.org/en/universal-declaration-human-rights/.

4Dec.
16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

5 No.
45, Imperial Legislative Council, 1860.

6 No.
2, Acts of Parliament, 1974.

7 No.
1, Imperial Legislative Council, 1872.

8 Ministry of Home Affairs,
Government of India, 2016, Report: Crime
in India 2016 Statistics, National Crime Records Bureau.

9 Ministry of Home
Affairs, Government of India, 2015, Report: Prison
Statistics in India, 2015, National Crime Records Bureau.

10 Sakshi Dayal, Ryan School Murder Case: Tied Me Up, Gave
Electric Shocks, Says Bus Conductor, The
Indian Express (Nov. 25, 2017), http://indianexpress.com/article/india/ryan-school-murder-case-tied-me-up-gave-electric-shocks-says-bus-conductor-4951808/.

11 Press Trust of
India, Lalu Prasad Yadav Gets Access to
TV, Newspaper in Jail, The Indian
Express (Dec. 24, 2017), http://indianexpress.com/article/india/lalu-gets-access-to-tv-newspaper-in-jail-4997216/.

12 The King v. Sussex
Justices. Ex parte McCarthy, 1924 K.B.
256.

13 Vidya
Ram, Vijay Mallya’s Defence Surprises Prosecution
with Puzhal, The Hindu, (Dec.
15, 2017), http://www.thehindu.com/news/international/vijay-mallya-extradition-hearing-put-off-to-next-year/article21665460.ece.

14 Law
Commission of India, Oct. 2017, 273rd Report on Implementation of
‘United Nations Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment’ through Legislation, 2017, available at http://lawcommissionofindia.nic.in/reports/Report273.pdf.

15 A.I.R.
1984 S.C. 802.

16 A.I.R.
1997 S.C. 3011.

17 (1997)
1 S.C.C. 416.

18 supra note 1.

19 Krishnadas
Rajagopal, Can’t Force Govt. to Frame a
Law: SC, The Hindu (Nov. 28,
2017), http://www.thehindu.com/todays-paper/tp-national/cant-force-govt-to-frame-a-law-sc/article21013049.ece.