Clamour for Concrete Anti-Torture Laws in India
Written by Ritik Tyagi
Second Year, BA. LLB. National Law University, Jodhpur
Source: TIME Magazine
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The custodial deaths of the father-son duo, Jayaraj and Bennix at the Santhankulam police station in the Tuticorin District of Tamil Nadu have sparked again the wave for anti-torture laws and police reforms in India. Dubbed as the “George Floyds of India” the father-son duo passed away as a result of the third-degree torture they were subjected to in police custody.
The world had not yet recovered from the George Floyd incident that this incident took place. The past few months have seen a lot of cases highlighting police brutality be it the George Floyd incident, Jayaraj-Bennix case in India or the custodial death of Jeffrey Epstein who was found unresponsive on August 10, 2019, in his jail cell while awaiting trial on sex trafficking charges.
According to a report by the National Campaign Against Torture (NCAT), a rights group, 1,731 people died in police custody in India this year. Out of the 1,731 deaths, 1,606 deaths occurred in judicial custody while 125 occurred in police custody. The state of Uttar Pradesh accounted for the most deaths in police custody.
Time and again, most of the custodial deaths, be it in India or any other country in the world, are a result of the torture the deceased was subjected to while being in police custody. Torture, although being strictly prohibited under International Law via conventions like the United Nations Convention Against Torture, 1987 (UNCAT), is in practice in signatory countries too for the purpose of extracting information, confessions etc.
Indian laws do not have any specific definition for “torture”. The most widely accepted definition of torture is mentioned in UNCAT, 1987, i.e.
"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 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.
Furthermore, the Optional Protocol to the UNCAT (OPCAT), provides for the protocol to establish a system of regular visits to be undertaken by independent international and national bodies to places where violations of liberty are reported and to prevent torture and other inhuman activities. Since UNCAT’s enaction, the absolute prohibition against torture and other cruel, inhuman and degrading treatment or punishment has become accepted as a principle of customary international law.
India being a signatory to the UNCAT, 1987 has still not ratified it owing to some political hindrances. But this cannot be inferred to state that the Indian courts are ignorant towards the human rights of the accused and convicts, the Indian courts through various judgements have laid down guidelines for limiting police power, protection of the accused and prevention of torture. In the landmark case of D.K. Basu vs. State of West Bengal, the court held “Custodial violence including terror and death in lock ups strikes a blow at the rule of law which demands that the powers of the 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”. In the same case the court quoted 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.”
Removing the misunderstanding of the police that they have the implied authority to torture suspects during an investigation, the apex court in N. Venugopal Case clearly stated that “there is no provision that authorises the police officers to torture the suspects during investigation/Trial or conviction”. Torture in layman’s terms generally refers to custodial torture but in reality, it is much more than that. Torture can extend to include custodial torture by police, using draconian provisions of anti -terror laws (like the TADA act, POTA act, AFSPA act etc.), torture against women in the form of molestation, rape etc.
Presently, India does not have any specific legislation for torture or custodial torture specifically but the Indian Penal Code,1860, Criminal Procedure Code, 1973 and the Evidence Act, 1872 contain several provisions for safeguarding the fundamental rights and interests of a person in custody. The Indian Penal Code (IPC), 1860 under sections 330 and 348 penalises acts that can also be considered as torture with seven and three years of imprisonment respectively if proven guilty.
Moreover, Part III of the Indian Constitution relating to fundamental rights, Article 20 of the same contains provisions relating to the criminal process. Article 20(1) prohibits retrospective operation of penal legislations, Article 20(2) guards against the double jeopardy for the same offence and Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself.
The Right to life and personal liberty as per Article 21 is guaranteed to every person, citizen or alien. For the want of a specific law on torture and custodial deaths, courts have often expanded the scope of article 21 so as to prevent government impacting the personal liberty of a person. The state mechanism must not be used for inflicting torture on people., life or personal liberty in Article 21 includes the right to live with human dignity. Therefore, it also includes within itself guarantee against the torture and assault by the States or its functionaries. In the Neelabati Behera case, the Supreme Court held that “…there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life”.
Guidelines regarding the arrest of women, in particular, were laid down by the Supreme Court in the Sheela Barse Case. Guidelines like an interrogation of females should be carried out only in the presence of female police officers/constables were laid down. The Law Commission in its 273rd report concluded that “Torture has been a contentious issue having a direct bearing on the right to life and liberty of an individual…..and that such heinous acts must be curbed through strong legislation providing stringent punishment.”
For the want of a definition of “torture” it sometimes becomes very difficult to decide what is included in torture and what is not. The Supreme Court in Nandini Satpathy Case held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violations of the law, thereby for the first time elaborating on the meaning of torture.
The courts, often taking fake encounters within the purview of torture, expressed its displeasure in the Prakash Kumar Case on fake encounters. The court in this case opined that where a fake encounter is proved against a policeman in a trial, they must be given the death sentence, treating it as the rarest of rare cases. Fake encounters don’t just refer to taking an innocent’s life or not giving someone the right to approach the court for justice but has a whole process involving false implication of innocents in serious crime and of course the use of torture in interrogation.
Thus, it cannot be said that the Indian courts act totally ignorant towards torture or custodial torture in particular but the present scheme of anti-torture legislations aren’t enough, there is still the need to enforce the already set guidelines, reforms and laws more efficiently. Nothing is more shameful than the fact that despite a number of judgements regarding an accused’s right to life and personal liberty while being in police custody, there is still a spate in the number of custodial deaths.
More than efficient enforcement of these laws and reforms, there is a need for an autonomous body to supervise the enforcement of anti-torture provisions. If India ratifies the UNCAT, 1987 in the near future, the said autonomous body could be established for investigating allegations of systematic torture vide article 20 of the same and more importantly it could result in more concrete and stringent anti-torture laws.
Just like the Police Reform Bill introduced by the Democrats in the USA post the George Floyd incident, it is time India took concrete steps towards preserving human rights of the accused and convicts and those in police custody by taking steps towards strengthening the anti-torture laws in India.
 Jayaraj-Bennix Custodial Deaths: Four Cops Arrested, Murder Charge Against 6, HUFFPOST, https://www.huffingtonpost.in/404/?error=entry_not_found&url=%2Fentry%2Fjayaraj-bennix-case-sathankulam-arrest_in_5efd5d02c5b6ca970919186  Derrick Bryson Taylor, George Floyd Protests: A Timeline ,New York Times. https://www.nytimes.com/article/george-floyd-protests-timeline.html  Jeffrey Epstein: Financier found dead in New York prison cell, BBC News https://www.bbc.com/news/world-us-canada-49306032  Inderjeet Badhwar, Making the State Culpable, IndiaLegal https://www.indialegallive.com/top-news-of-the-day/making-the-state-culpable  United Nations Convention Against Torture, 1987, https://www.ohchr.org/en/professionalinterest/pages/cat.aspx  Art. 1, United Nations Convention Against Torture, 1987 https://www.ohchr.org/en/professionalinterest/pages/cat.aspx  Optional Protocol To The United Natiaons Convention Against Torture, 2007.  D. K. Basu V. State Of West Bengal, ((1997) 1 SCC 416)  State of Andhra Pradesh v. N. Venugopal (1964 AIR 33, 1964 SCR (3) 742)  Sriram Ananthanarayanan, Impact of Anti-Terrorism Laws on the enjoyment of Human Rights in India , SAMAR (South Asian Magazine for Action and Reflection)  (THE) TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987  The Prevention of Terrorism Act, 2002  Armed Forces (Special Powers) Act, 1958.  The Indian Penal Code, 1860  INDIA CONST. art. 20  INDIA CONST. art 20 cl. 1  INDIA CONST. art. 20 cl. 2  INDIA CONST. art. 20 cl.3  INDIAN CONST. art. 21  Neelabati Behera v. State of Orissa and others ((1993) 2 SCC 746)  Sheela Barse v. State of Maharashtra (1983 AIR 378, 1983 SCR (2) 337)  273rd Law Commission Report on Implementation of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation, SCC Online. https://www.scconline.com/blog/post/2017/11/03/273rd-law-commission-report-implementation-un-convention-torture-cruel-inhuman-degrading-treatment-punishment-legislation/#:~:text=Punishment%20Through%20Legislation-,273rd%20Law%20Commission%20Report%20on%20Implementation%20of%20UN%20Convention%20against,Treatment%20or%20Punishment%20through%20Legislation&text=The%20Central%20Government%20initially%20took,torture%20is%20a%20punishable%20offence  Nandini Satpathy v. P. L. Dani, (AIR 1978 SC 1025)  ACHR,The State of Encounter Killings in India, NCAT, http://www.uncat.org/by-country/india/the-state-of-encounter-killings-in-india/  Prakash Singh v. Union of India, ((2006) 8 SCC 1)  INDIA CONST. art. 20  Alessio Dellanna, US Democrats propose sweeping police reform as response to Floyd death, Euronews, https://www.euronews.com/2020/06/08/george-floyd-minneapolis-to-dismantle-police-force-as-chauvin-makes-first-court-appearence
Jayaraj-Bennix Custodial Deaths: Four Cops Arrested, Murder Charge Against 6 available at https://www.huffingtonpost.in/entry/jayaraj-bennix-case-sathankulam-arrest_in_5efd5d02c5b6ca970919186b
George Floyd Protests: A Timeline ,( July 10, 2020) available at https://www.nytimes.com/article/george-floyd-protests-timeline.html
Jeffrey Epstein: Financier found dead in New York prison cell, (August 10, 2019) available at https://www.bbc.com/news/world-us-canada-49306032
Impact of Anti-Terrorism Laws on the enjoyment of Human Rights in India, (April 2008) available at https://www.upr-info.org/sites/default/files/document/india/session_1_-_april_2008/libinduprs12008liberationuprsubmission.pdf
Making the State Culpable, (July 11, 2020) available at https://www.indialegallive.com/top-news-of-the-day/making-the-state-culpable
US: Democrats unveil Police Reform Bill after George Floyd’s death, (June 13, 2020) available at https://www.latestlaws.com/human-rights-news/us-democrats-unveil-police-reform-bill-after-george-floyd-s-death/
1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (June 26, 1987) available at https://www.ohchr.org/en/professionalinterest/pages/cat.aspx
2. Optional Protocol To The Convention Against Torture (OPCAT), (February 2007) available at https://www.ohchr.org/En/HRbodies/opcAt/Pages/OPCATIndex.aspx
1. DK Basu vs. State of West Bengal (1997 (1) SCC 416), available at http://www.wbja.nic.in/wbja_adm/files/Requirements%20to%20be%20folled%20in%20all%20cases%20of%20arrest.pdf 2. The State of Andhra Pradesh vs. N. Venugopal And Others (1964 air 33) (1964 SCR (3) 742) available at https://www.casemine.com/judgement/in/5609ab28e4b014971140bd52
3. Nilabati Behera vs. State of Orissa and Others (1993 (2) SCC 746) available at https://www.refworld.org/cases,IND_SC,3f4b8e004.htm
4. Sheela Barse vs. State of Maharashtra (JT 1988 (3) 15), available at https://www.casemine.com/judgement/in/5609ac0ce4b014971140de33
5. Nandini Satpathy vs. PL Dani (1978 AIR 1025, 1978 SCR (3) 608), available at https://indiankanoon.org/doc/1938988/
6. Prakash Kadam & Etc. vs. Ramprasad Vishwanath Gupta & Anr (2011 (6) SCC 189), available at https://indiankanoon.org/doc/1979158/
Constitutional Provisions and Statutes:
1. Section 330, Indian Penal Code (1860) available at http://legislative.gov.in/actsofparliamentfromtheyear/indian-penal-code
2. Section 348, Indian Penal Code (1860) available at http://legislative.gov.in/actsofparliamentfromtheyear/indian-penal-code
3. Article 20, The Constitution of India (1949) available at https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pd
1. 273rd Report, Law Commission of India (2017), available at https://www.scconline.com/blog/post/2017/11/03/273rd-law-commission-report-implementation-un-convention-torture-cruel-inhuman-degrading-treatment-punishment-legislation/
2. The State of Encounter Killings in India, (2018) available at http://www.uncat.org/by-country/india/the-state-of-encounter-killings-in-india/