Brain Booster Articles
CUSTODIAL TORTURE: AN INFRINGEMENT OF HUMAN RIGHTS
Author: Shivani Sangwan, V year of B.A.,LL.B. from Vivekananda Institute of Professional Studies, IP University
Human rights can generally be defined as those rights which are inherent in our nature, without which we cannot live as human beings. In order to safeguard these rights and maintain law and order in society, police play a pivotal role, vested with the primary duty to maintain law and order and enforce regulations for the prevention and detection of crimes. But to discharge these legitimate duties, wide powers of arrest and investigation are vested in the police by law, but these powers are often abused by the police to torture the suspects either to solve a crime or for sadistic pleasures, which stand paradoxically in the way of the human rights of the accused. The power of investigation affords the police the occasion to perpetrate third-degree torture on the suspects to detect crimes as a matter of routine practice. These practices of brutality by the police in police custody against the detainees or the suspects have largely tarnished the image of the police, as custodial violence has become an intrinsic part of the police administration. The total range of such mistreatments is fairly vast and can spread from minor incidents of mental and physical violence to even deaths or irreparable damage to the victims. So, most democracies must have some sort of mechanism to free society from the clutches of this cruel evil both at the organisational level and also by several arrangements participated by many social service or public-spirited institutions. In the international scenario, a significant effort has been made to combat the practice of torture in all its forms, especially by law enforcement officers. Even at the national level, starting from the Indian Constitution along with other legislations, accompanied by judicial intervention in a number of significant decisions and active involvement of the National Human Rights Commission, have made worthwhile efforts to combat brutal practices of torture by the police and other law enforcement officials. But the statistics revealed that custodial violence, torture, rape and death still continue to exist as a crowning reality, flushing down all the efforts in total failure. So, in this paper, an attempt has been made to focus on the loopholes present in the existing system which perpetuates this evil of custodial torture, in spite of repeated efforts at all levels and concludes by giving a set of suggestive remedies to strike at the very root of this evil.
Torture is considered one of the most powerful tools to extract information or extort information which sometimes also leads to the death of the person being tortured. Such deaths are quite common in India. One of the very recent incidents of custodial torture was the deaths of a father-son duo, P Jeyaraj, 62 and J Bennix, 32, from alleged police brutality during judicial custody in Tamil Nadu stirred outrage in the country. This was not a standalone case of police brutality during custody; the number of reported custodial deaths is increasing in the country at an alarming rate, as per a report published by the National Campaign Against Torture around 1,723 people died in custody in India.
Torture is defined as the willful, repetitive, or cruel infliction of physical or mental pain on one or more people to force the other person to yield information or make a confession. It denotes overwhelming physical, mental, or psychological suffering that aims at thrusting one to do or say against one’s own will. The Torture Commission of India attempted to define torture as “torture was fair by which guilt is punished, or confession extorted.” “Torture is not merely physical; there may be mental Torture and psychological Torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer, the mental torture caused by it is even more grave.”
Under customary international law, the prohibition of torture is jus cogens—a peremptory norm that is non-derogable under any circumstances. In 1999, the Israeli Supreme Court issued a pivotal decision declaring a number of interrogation techniques to be illegal. Hon’ble Judge Shri. V.R. Krishna Iyer is of the opinion that custodial torture, in comparison to terrorism, is worse because the Authority is behind it.
International Laws to Combat Custodial Torture
There is an international consensus that the abuses like custodial torture or violence violate the inherent dignity of the human being and are not justified under any circumstances. The prohibition of torture and ill-treatment, particularly in custody, is found in all major international and regional human rights treaties. At the international level, a number of significant efforts have been made which can act as important tools to fight against custodial torture.
Universal Declaration of Human Rights (UDHR)
On the international platform, the first initiative that has been taken against torture is the Universal Declaration of Human Rights (UDHR), adopted on 10th December 1948, in which Article 5 laid down that no torture and other cruel, inhumane, or humiliating treatment or punishment should never be permitted. The Four Geneva Conventions adopted by the International Diplomatic Conference in 1949, although they deal principally with international armed conflicts, common Article 3 expressly prohibits torture. Additional Protocol II is relevant in the context of internal armed conflicts such as civil wars, insurgencies and low-intensity operations against armed groups. In all circumstances, torture and ill-treatment of all persons in any form of custody are strictly prohibited under Articles 4 and 5.
International Covenant on Civil and Political Rights (ICCPR)
ICCPR, adopted on 16th December 1966, expressly prohibits torture, cruel, inhuman or degrading treatment or punishment under Article 7 and Article 10(1). Being convinced that further steps were needed to achieve the abolition of torture and ill-treatment worldwide, the UN General Assembly adopted a Declaration on the Protection of All Persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment on 9th December 1975, where Articles 2 and 5 strictly condemn torture. The UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly on 10th December 1984. It sets out the internationally accepted definition of torture and ill-treatment under Article 1 and establishes the responsibility of States for preventing these abuses under Artticles 2, 4, 10, 11, 12, 13 and 14 and provides for the creation of a Committee against Torture for the proper implementation of this Convention.
Code of Conduct for Law Enforcement Officials
It was adopted by General Assembly on 17th December 1979, which made a significant effort on the international platform to prevent custodial torture and violence. According to Articles 2, 3, 5, 6, 7 and 8, law enforcement authorities are required to respect and defend human dignity as well as uphold everyone’s human rights while carrying out their duties. Prohibition of Torture has been firmly established in European Human Rights Law since 1950, where the Council of Europe adopted the European Convention on human rights, whereby Article 3 expressly provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
The European Convention on Human Rights has been complemented by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment adopted on 1st February 1989, which establishes the European Committee for the Prevention of Torture and Inhuman or Degrading treatment or punishment. This Committee is entitled to make visits; examine the treatment of persons deprived of liberty with a view to strengthening the protection of such persons from torture, inhuman or degrading treatment or punishment. The OSCE Budapest Summit (1994) specifically recognised its importance, suggesting an endorsement of both its mechanism and preventive safeguards advocated by its Committee. The first protocol to this Convention, on entering into force, has also invited non-member States of the Council of Europe to join the Convention system. The Committee for the Prevention of Torture is composed of many independent and impartial members who can also be assisted by ad hoc experts. It can conduct periodic and ad hoc visits in places where custodial torture can be committed. The members of the Committee can communicate freely and without witnesses with the victims. It can also impose an obligation upon the State to cooperate in conducting its procedure of detecting cases of torture, especially in custody. Some of the other significant international efforts for the treatment of prisoners, which can be used as effective tools for the treatment of prisoners and in protecting the victims of custodial violence, are -
UN Standard Minimum Rules for the Treatment of Prisoners, 1977.
UN Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 18th December 1982.
UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, 9th December 1988.
UN Basic Principles on the Role of Lawyers, 7th September 1990.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 14th December 1990.
UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, 24th May 1989.
UN basic principles on the use of force and firearms by Law Enforcement Officials, 7th September 1990.
Declaration on the protection of all Persons from Enforced Disappearance, 18th December 1992.
Simply banning torture or ill-treatment in custody will not be sufficient to prevent them. Major human rights treaties establish specific Treaty-Monitoring Bodies responsible for ensuring compliance with the treaty provisions, which can also be used as effective tools for preventing custodial torture and violence.
Human Rights Committee
The International Covenant on Civil and Political Rights has established a monitoring body called the Human Rights Committee comprising of 18 independent experts, which can be significantly used as a tool to combat custodial torture. It examines reports, which the States are obliged to submit periodically and issues concluding observations that draw attention to points of concern like custodial violence and makes specific recommendations to the States. The Committee can also consider communications from the victims themselves.
The UN Committee Against Torture
This Committee Against Torture is a body of 10 experts established under Article 22 of the Torture Convention, which is also another significant instrument that can be used to prevent or to protect victims of custodial torture. It considers the reports submitted by the States and issues concluding observations on the flagrant and burning issues of human rights violations like custodial violence. It may also examine communications from individuals and other public-spirited lawyers on issues of torture.
The UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
This Special Rapporteur Against Torture was first established in 1985 by the UN Commission on Human Rights with the purpose of examining international practices relating to torture and reporting upon it. On the basis of the information received, it can communicate with the Governments and report their comments on cases of torture, which are raised. It can also use the “Urgent Action Procedure” requesting Governments to ensure that the victims inside police custody are treated humanely. They can also visit the police or judicial custody if necessary. This rapporteur also reports publicly to the UN Commission on Human Rights and UN General Assembly, thereby making the States more answerable or responsible for custodial torture.
In accordance with Principle 6 of the UN Basic Principles on the Independence of the Judiciary, the Judiciary has the right and obligation to ensure that court processes are conducted fairly and that the rights of the parties are respected. Article 15 of the United Nations Guidelines on the Role of Prosecutors expressly imposed an ethical duty upon the prosecutor to investigate and prosecute the crime of torture committed by public officials. All these efforts can be used as significant steps to combat custodial torture and provide protection to the victims. The Istanbul Protocol, 1999 is also a proposed standard international procedural guideline in regard to an examination of charges of torture or cruel, inhumane, or humiliating treatment or punishment. It was submitted to the United Nations in 1999 for further processing. Very detailed and methodical steps that would help the process of investigation into all such complaints against custodial torture have been made.
Another significant effort was the VIIth International Symposium on Torture as a Challenge to Health, Legal and other Professions, which was held in New Delhi from 22nd to 25th September 1999. Due to continuous and sustained efforts on the part of medical and other experts against torture, sufficient knowledge about torture, its methods and diagnostic methods have been gathered. It also helps in the rehabilitation of victims. This symposium concluded with the adoption of the “Delhi Declaration,” which is a plan of action to counter the widespread menace of torture. After looking at the actions taken on the international platform, the following section discusses how India deals with the right of the accused against custodial torture, harassment and ill-treatment.
Right to the accused against custodial torture, harassment and ill-treatment in India
Much before India signed and ratified the international instruments and became a party to various UN Declarations prohibiting acts of torture, the concept of prohibition and opposition of torture, especially when committed by law enforcement officers, had been in India as early as 1860 when the Indian Penal Code was enacted. Sections 330 and 331 of this Code expressly prohibit acts of torture, cruel, inhuman or degrading treatment by the police or other law enforcement officers as an offence punishable with the imposition of penalties. Besides this, under the Code of Criminal Procedure, Section 163 and Police Act, along with Section 24 of the Indian Evidence Act, have also, by law, prescribed various tasks to be fulfilled by the law enforcement agencies, which can be used as tools to prevent custodial violence. Although under Section 161 of the Code of Criminal Procedure, a police officer is entitled to examine witnesses while making an investigation, the police officer, under any circumstances, is not authorised to torture the witness before him, including the accused. Even the Indian Evidence Act of 1872 also prohibits custodial abuse or torture under Sections 24, 25 and 26.
The effect of the third degree or the subjugation and harassment of a person under custody, causing physical or mental harm, to such person, i.e., the accused or suspect, directly affects his fundamental right of freedom and is also a gross violation of Article 21 of the Indian Constitution. By virtue of active judicial interpretation and activism, the Supreme Court, through a number of important judgments and landmark decisions, included under the aegis of Article 21, i.e., protection of life and personal liberty, protection against inhuman treatment, prison torture and police atrocities. Even the responsibility for preventing brutality in the police methodology was a duty on the part of the State by virtue of the equality clause under Article 14, which obligates the States to guarantee all people equality before the law or equal protection of laws.
But in spite of all these international and national efforts to combat torture, custodial torture still continues as a crowning reality. At the international level, one of the most recent cases is the gross and systematic and rampant practice of torture carried on by the American soldiers upon the Iraqi prisoners in the Abu Garib prison in Iraq, subjecting the detainees to inhuman and humiliating and degrading treatment. None of them was allowed to have prompt access to a lawyer or their family. Even a judicial review of their detention did not take place. All these reported cases were just the tip of the iceberg, as the majority of the cases escaped unnoticed or unreported. At this juncture, it is apt to focus on the attitude of the Indian Judiciary towards custodial violence and the way they handle this evil, which has been discussed in the subsequent section.
Judicial pronouncements regarding custodial torture
The Supreme Court has taken a very positive stand against police atrocities, intimidation, harassment and the use of third-degree methods to extort confession. The Court has characterised all this as being against human dignity. The expression “life” in Article 21 means the right to live with human dignity, and this includes a guarantee against torture and assault by the State. Describing police torture as disastrous to the awareness of our human rights, the Supreme Court has held that the State is responsible for remedying the situation. If police brutality is not checked at the earliest, then the credibility of the rule of law will deteriorate in our Republic.
Rajasthan Kisan Sangathan v. the State of Rajasthan and Mohanlal Sharma v. State of Uttar Pradesh
The Supreme Court expressly stated that if police are found to ill-treat a detenu, he would be entitled to monetary compensation under Article 21 along with punishment.
Raghubir Singh v. the State of Haryana
Supreme Court asserted that it was deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under new peril when the guardians of the law gore human rights to death. These observations became necessary and indispensable to impress upon the State police echelons the urgency of stamping out the vice of “third degree” from the investigative armory of the police.
Kishore Singh v. the State of Rajasthan
In this case, emphasising the importance of human life underlying the spirit of Article 21, the Supreme Court strongly condemned the use of “third-degree” methods by the police. The Court further added that if the lower rungs are to truly emulate, the State must re-educate the constabulary out of their sadistic skills and inculcate a regard for the human being. This process must begin more by example than by precept. Thirdly, if any of these escort cops are found to have behaved inappropriately, the authorities should not be compelled to cover up the crime out of a sense of police comradery or in-service comity.
Anil Yadav and others v. State of Bihar and others
The Supreme Court observed in this case that the blinding of accused persons in custody would amount to the most flagrant violation of safeguards provided by Articles 19 and 21. The Court was determined to bring the perpetrators of this illegal barbarity to book so that such a step would be a deterrent against similar evil-minded personnel in the hope that such brutal atrocities would not happen again.
Khatri and others v. the State of Bihar
Bhagwati, J. observed that the police behaved in a most lawless manner and defied not only the constitutional safeguards but also perpetrated a crime which can be called a crime against the very essence of humanity. In Khatri (II) v. the State of Bihar, the question of compensation to be paid to the blinded victims was raised before the Supreme Court, but it was undecided as to who, in fact, particularly blinded the under-trial detenus. But however, with respect to the question of legal aid to the victims, the Supreme Court expressly held that Article 21 embodied in itself a right to legal aid to meet the requirements of “a fair, just and reasonable procedure.”
Charles Sobraj v. Supdt. Jail, Tihar
The Supreme Court expressly established its Authority that it can intervene with the prison administration to prevent custodial torture when the constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner.
D. K. Basu v. State of West Bengal
Supreme Court held that Article 21 also included within its scope, protection against custodial death and various forms of torture, cruel, inhuman and degrading treatment, and so there is a need to draw a balanced approach between the protection of fundamental rights and human rights of criminals versus duties of police with respect to custodial violence, to meet the end of justice.
Ramesh Kaushik v. Superintendent, Central Jail, New Delhi and Kathi Kalu Oghad v. the State of Bombay
Supreme Court held that prison torture is not beyond its constitutional jurisdiction by exercising which it can ensure some minimum social hygiene in prison. When the police and prison Torture escalated, the Court upheld that it owes a duty to society not to ignore such a dangerous reality.
Sheela Barse v. State of Maharashtra
The Supreme Court asserted that prison restrictions amounting to torture, pressure or infliction and going beyond what the Court order authorised were unconstitutional. An under-trial or convicted prisoner could not be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court or which was in excess of the requirement of the prisoner’s discipline or which amounted to human degradation.
Paramvir Singh Saini v. Baljit Singh
The Supreme Court has ruled that CCTV cameras must be installed in police stations and any other offices that conduct interrogations or have the authority to make arrests across the nation. The State and UT Governments were ordered by the Court to make sure that CCTV cameras are installed in each and every Police Station that is currently operational in its respective State and/or UT.
National Human Rights Commission to Curb Custodial Torture
The National Human Rights Commission (NHRC) regularly issued recommendations to combat this evil at its source in light of the rise in instances of custodial violence, custodial rape, and torture. In the Annual Report of 1997- 1998, while addressing the issue of custodial Torture, NHRC recommended:
1) Early action needs to be taken to implement the suggestion of the Indian Law Commission in its 113th report to the effect that Section 114(B) should be inserted in the Indian Evidence Act of 1872 to introduce a rebuttable presumption that the injuries sustained by a person in the police custody may be presumed to have been caused by a police officer. Such a provision would restrain the police from engaging in torture.
2) On the basis of recommendations of the Indian Law Commission, Section 197 of the Criminal Procedure needs to be amended to eliminate the need for government sanctions for the prosecution of a police officer when a prima facie case of the commission of the custodial offence has been proven in an investigation performed by a Sessions Judge.
3) As suggested by the National Police Commission, there should be a mandatory enquiry by a Sessions Judge in each case of custodial rape, death or grievous hurt.
According to the First Annual Report of NHRC, inasmuch as 26 cases of custodial deaths or custodial rape, NHRC initiated action on its own, based on newspaper reports. On the basis of these suo motu cases, NHRC issued instructions to all State Governments and Union Territory administration on 14th December 1993 that District Magistrates or Superintendents of Police must submit reports within 24 hours of such incident, and such directions were taken care of seriously by the district authorities. NHRC also recommended payment of compensation to the next of kin of the persons killed or injured. In 1995, NHRC also visited many prisons and detention centres and made recommendations for improvement of jail conditions and felt that there was a need to replace the century-old Indian Prisons Act of 1894 and to prepare a new All-India Jail Manual, which would ensure more effective implementation of the rule of law. In the Fourth Annual Report of 1996-97, NHRC focused on civil liberties in sensitive border areas, such as custodial deaths, rape and torture. The attention of the State Human Rights Commission and Human Rights Courts is appropriate on the issue.
NHRC drafted a bill to replace the Prisons Act, recommending a wide range of measures to rationalise the prison system. NHRC issues notice to the Defence and Home Ministers on the alleged misuse of the controversial Armed Forces (Special Powers) Act, which has been vehemently criticised by various organisations.
In order to tackle the rising incidences of custodial torture, NHRC directed the Central and State Governments to take immediate steps. In its 23-page judgment, the 3-member Commission headed by J. M. N. Venkatachalam made a series of interim recommendations to be implemented. Based on such recommendations, the Government of India signed the UN Convention Against Torture and Other Cruel and Degrading Treatment or Punishment 1984. NHRC has now recommended ratification of the Convention and awaits early action in this regard, which can be used as an active instrument to prevent custodial violence and protect its victims.
Using its power under Section 12(c) of the Protection of Human Rights Act, 1993, NHRC has conducted several surprise visits, under the intimation to the State Government, to any jail or institutions under the control of the State Government, analysing the living circumstances of the detainees and make recommendations regarding them in places where people are held or accommodated for the purpose of therapy, reformation, or protection. Such visits can also help to prevent custodial violence. NHRC has also called for systematic reforms of the police. Convinced by the fact that the enforcers of law had themselves to be prevented from violating human rights, NHRC has specifically stressed the need for essential changes in the character and methods of functioning of the police and made specific proposals to this end. But in spite of these significant efforts undertaken by NHRC and the States to stop the evil of custodial violence, it continues to exist, grossly violating human rights, which shows a clear lack of political commitment to strike this evil. So, the subsequent section gives a brief picture of the ground reality, criticising the existing system and focusing on the loopholes.
Suggestions and Conclusion
The problems of custodial perversions are very complex, and merit be approached comprehensively, and a plan of action is to be sustained by continuous monitoring and relentless up-gradation of the remedial efforts. Some of the preventive steps can be:
1) The State, as well as the police administration, must make it explicit and clear that any custodial perversion will not be brook. Such a proclamation must be emphatic and assertive, and such measures must be backed up by organisational field practices that follow a desirable and professed precept.
2) Greater and closer supervision by senior police officers must be ensured. If this is not done, the very credibility of the organisation will be in peril.
3) Following the recommendations of the Third National Police Commission, there is a need for integrating the people’s participation in the task of crime-fighting and efforts in this regard will be beneficial to solve the problem of custodial compulsions.
4) The workload on the police, especially on the investigator and staff in general, deserves urgent attention. Coupled with other constraints and impediments, the unfair work expectations prompt shortcuts, which lead to custodial violence. So, police work allocations should be built on scientific and modern management-oriented approaches.
5) The policy of the police organisation must be clear with regard to the “personal liability” for violations of the human rights of citizens in general and the accused in particular. Public grievance redressal must hold priority and must lie in the imagination, initiative and ability of the police leaders to take the problem of public complaints seriously and build an ethos of lawful and humane policing standards.
6) As a part of the police community relationship, an attempt must be made to provide access to the police lock-ups and records can be ventured under the direct participation of the senior police officers and carefully chosen citizens Committees.
7) Science must be fully invoked to act as a dual-purpose option as a check on the use of unjustified force on the one hand and on the other hand as documentary proof of police desire to pursue the actions strictly within the bounds of the law. So, audio and video technology during police interrogation must be used.
8) A judicial enquiry must be made mandatory in all cases of custodial deaths. The final report of judicial or Magisterial enquiry must be mandatorily published in the Official Gazette by the respective State Government soon after the receipt of the report.
9) In all cases of custodial death, post-mortem must be mandatorily conducted within 24 hours of the report of the incident. If it is not possible to meet this time limit, the concerned authorities must record in writing the reasons for the delay and ensure to take steps to complete the required post-mortem at the earliest.
10) Medical examination of the arrested accused at his instance, when produced before the Magistrate under Section 54 of the Criminal Procedure Code, 1973, must be made obligatory or mandatory in all cases of custodial violence. A copy of the medical certificate must be made available to the arrested person or his representative. Post-mortem must be done by a team of reputed doctors, not less than two. In all cases of custodial deaths, post-mortem reports must be made accessible to the relatives or family of the victim.
11) Investigation methods and documentation efforts in all cases of custodial violence must be streamlined. A specific time frame of not more than 30 days must be prescribed to finalise the investigation of the case by the police with proper preservation and maintenance of records.
12) The police must bear faithful allegiance to the Indian Constitution, and the police should uphold and respect the rights of its citizens as provided by the supreme law of India.
13) The police should recognise and respect the limitations of their powers and functions. They should not usurp the functions of the Judiciary or avenge individuals and punish the guilty. When the application of force becomes inevitable for the proper functioning of the police, only minimum force, not more than required in a given circumstance, should be used.
14) The police should always be polite and well-mannered, trustworthy and unbiased, and should possess dignity and courage and cultivate the character and trust of the people keeping in mind the welfare of the people.
15) The monetary compensation awarded to the victims of custodial torture should be saddled on the erring officials. Human rights watch groups should play a laudable role in monitoring human rights violations and bringing them to public attention.
Thus, there is a new urgency to look at custodial violence, which pragmatically makes it impossible to achieve democracy or peace, perpetuating the oppression of the accused in the hands of the police and personnel of security forces. There is a need to reconceptualise the universality and non-divisibility of human rights and rights of the accused, with radical police reform and transformation of the social attitudes towards the accused and their rights, to erase the subjection of the accused to torture or to cruel, inhuman and degrading treatment or punishment, so as to strike at the very root of this evil, before it becomes too late, as “every tomorrow is the first day of the rest of our life.”
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