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.
Adriana P. Bartow
Torture means inflicting pain, whether physical or mental, upon a person for the purpose of obtaining information or confession. Custodial killing and torture has been the integral part of police since colonial times. It has now become the police culture.
Govt data shows that there are 1727 deaths recorded in police custody between 2001-2018. But the sorrow is that only 26 police officials were convicted. Report (Torture Update India) by Asian Centre for Human Rights provides for 5 custodial deaths (in judicial custody as well as police custody) per day on an average between April 2017 and February 2018.
Reports by Amnesty International, People’s Union for Democratic Reforms, complaints received by National Human Rights Commission (NHRC), all shows and confirms the prevalence of custodial killing and torture in India. And it is sure that actual deaths are many more than the reported ones.
Judicial stand on Torture
Supreme court from time to time has highlighted this torture culture in India in its judgements.
In Raghbir Singh v. State of Haryana (1980), the court expressed its sadness and distress on the recurrence of police torture leading to the creation of fear in the minds of common citizens. Their lives and liberty are under a new danger when their own protector crushes human rights.
In Prem Chand v. UOI (1981), SC raised the question that who will police the police? It observed that police torture deserves strong disapproval by this court.
In Francis Coralie Mullin v. Union Territory of Delhi (1981) and Sheela Barse v. State of Maharashtra (1987), SC observed that cruelty and torture are violative of right guaranteed under Article 21.
In DK Basu v. State of West Bengal (1996), the court provided 11 commandments relating to any arrest by police officer. It provided
1. all officials must carry name tags and full identification,
2. arrest memo must be prepared,
3. Arrest must be intimated to one family member or friend,
4. Arrestee must be made aware of his right to be informed,
5. Periodical medical examination must be done
In 2015, 8 more commandments were added to it by the court like setting up State Human Rights Commission (SHRC) in every state, all prisons should have CCTVs etc.
But in reality these guidelines are rarely followed. These have just remained on a piece of paper.
Anti Torture Legislation
In India, there is no specific legislation dealing with custodial killing and torture. IPC and CrPC also does not provide any provision for containing police torture and does not provide any punishment for such torture.
India is a signatory to United Nation Convention Against Torture and Other Cruel, Inhuman or degrading treatment or punishment (UNCAT) since 1997 but has not ratified it. UNCAT aims to prevent torture and other acts of cruel, Inhuman or degrading treatment or punishment around the world. India is among the list of 19 countries to have not adopted it.
In 2010 Prevention of Torture Bill was passed by Lok Sabha. Rajya Sabha sent it to a select committee for making it in conformity with UNCAT. The report was submitted in 2012 but it was never considered and hence the bill lapse.
In 2016, petition was filed by Ashwani Kumar in SC for enactment of torture law but was dismissed by the court saying it a policy matter.
In 2017, Law Commission submitted its 273rd report and a draft of torture law. Herein, the commission provided that if any person dies in police custody then the burden lies on police to show that they are not responsible, those who are accused of custodial killing and torture must be criminally prosecuted.
India is a signatory to UNDHR, which guarantees human rights with dignity under its constitution. It should respect this law of land. UNCAT should be ratified as soon as possible. Non- ratification is also one of the reason because of which other countries fear to extradite criminals to India.Law Commission’s 273rd report should be considered and an effort should be made to convert the draft into a legislation because this indeed, is the need of the hour.
This article is written by Rawal Shweta and edited by Rupreet Kaur Dhariwal.