Author Name:   Rukmani Seth

This article deals with the current scenario with respect to custodial torture in India, the constitutional and legislative provisions that deal with the same and their inadequacy to counter the issue of custodial torture. Finally...

Custodial Torture And Its Remedies

“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing 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

Custodial torture ranging from assault of various types to death by the police for extortion of confessions and imputation of evidence are not uncommon. Such a method of investigation and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of criminal justice, not only disregards human rights of an individual and thereby undermines his dignity but also exposes him to unwarranted violence and torture by those who are expected to ‘protect’ him.[1]
In India where rule of law is inherent in each and every action and right to life and liberty is prized fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration.[2] Human rights take a back seat in this depressing scenario. Torture in custody is at present treated as an inevitable part of investigation. Investigators retain the wrong notion that if enough pressure is applied then the accused will confess.[3] The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse than terrorism because the authority of the State is behind it.[4]

It is a paradox that torture continues to exist in India. This is because India is a liberal democracy with very clearly articulated constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary. This raises the question: how does torture continue to persist in India?[5]

The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job properly. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalising and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India. Where a torture victim must wait for years in hope that a judge may one day take up his/her case, while meanwhile the perpetrator is being promoted, the very concept of justice is undermined.

Custodial torture is universally held as one of the cruellest forms of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations forbid it. But the police across the country defy these institutions. Therefore, there is a need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.[6]
Custodial Torture and Death-The Current Status:

The World Medical Association, in its Tokyo Declaration, 1975, defined "torture"[7] as
"the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reason".

Custodial torture, often known as extra-judicial executions has been on a rise in India especially between 2002 and 2007. According to Asian Centre for Human Rights, the nationwide figures are four custodial deaths per day.[8] There have been 7468 reported custodial deaths in this five year period. However, the severity of the torture in India is far worse than statistics suggest. This is because victims rarely report cases against the police due to fear of reprisals. More than half the cases of custodial torture are not even reported.[9]

While award of compensation in 684 cases of custodial violence was given by the National Human Rights Commission alone from 1994 to 2007, conviction of only seven police personnel in 2004 and 2005 took place as against these overwhelming figures of custodial torture and subsequent deaths. This has led to a deep concern among the authorities.[10]

The explanations for torture can be broadly discussed under categories such as role of media, colonial origins, and institutional weaknesses. Firstly, there is a strong sense that the media exaggerates the incidents of torture and creates a negative image of the police. Second, scholars contend that the current police still suffer from the impact of their colonial origins as a repressive instrument of the police raj (rule). As a result, the “police mindset is steeped into colonial era when the police were supposed to treat every Indian as an enemy of the state.”[11] Third, there is constant pressure on the police from all quarters including politicians and bureaucrats to show instant results.[12] The lack of adequate facilities and personnel for investigation and the extremely high case load with an inefficient supervisory structure also hinders the ability of the police to produce the results required of them, prompting them to take short cuts.[13] In addition, the lack of training in human rights is considered a primary reason why third degree torture continues to exist in India.

For instance, the recent cases of custodial killings reported from the state of Gujarat show a consistent and alarming pattern of tolerance of the use of torture by the government and promotion of it as if it is an essential element of law enforcement and investigation of crime. In Gujarat, the interrogation centres -- often torture chambers -- of the state police have been functioning in full public view. The suspects are brought in, kept in illegal detention and tortured as part of questioning and later killed and declared as killed in encounter. This procedure is public knowledge, yet no one dares to challenge it. Officers, right from the top are involved in this endeavour.

In a proceeding in the Supreme Court regarding this, the state government admitted in court that it was aware of the existence of the interrogation and torture centres. The government also admitted that in several cases the officers might have also killed the witnesses of arrest and detention in order to avoid questions at a later stage. The Gujarat experience, while being a shocking revelation of the state of policing in that state is also the proof that the public could be forced to silence, if the state so requires, by imparting fear.

Interrogation centers in India are run in the cover of prevention of terrorist activities. Interrogation centers are not limited to the state of Gujarat. In several other states like Uttar Pradesh, Madhya Pradesh, Uttaranchal, Chhattisgarh, Andhra Pradesh and Rajasthan the state governments run similar centres. In some states these centres are run in the name of anti-naxalite action.

In the state of Chhattisgarh for example, the naxalite and anti-naxalite activity has killed hundreds of innocent people. Use of brute force by the state and non-state actors irreparably destroys the social fabric. Besides promoting private armed groups, the state has also pressed into use questionable legislations like the Chhattisgarh Special Public Security Act, 2005. This statute is so loosely worded that anyone could be charged for a crime in this law. Many accepted legal norms in criminal law like non-retroactivity is negated in this statute.

Violence is used widely with impunity in the North-Eastern states. The state of Manipur in particular, is completely militarised. The paramilitary and the army detachments stationed in that state is notorious for the use of torture and violence as the only tool for investigation. Cases reported from Manipur, are mostly involving the armed forces, the Assam Rifles in particular.

Administrative neglect promoting the use of torture is misused by the police and other law enforcement agencies as an excuse for demanding bribe and for not doing their job according to the law. Continuing neglect by the government has also considerably reduced the morale of the law enforcement agencies. Rather than being considered as an essential state service police and other law enforcement agencies are viewed as state sponsored terror agencies mostly filled with criminals.

Remedies Against Custodial Torture:
There are two approaches with respect to the remedies provided for against custodial torture and subsequent death as well. These two approaches are – legal regime and judicial precedents. They can be explained as follows:

Legal Regime:
Constitutional Safeguards:
It has been held in a catena of judgements that just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Constitution of India.[14] Detention does not deprive one of his fundamental rights.[15] They don’t flee the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration.[16] However, the extent of shrinkage can and should never reach the stage of torture in custody of such a nature that the persons are reduced to a mere animal existence.

Article 20 of the Constitution of India:
Article 20 primarily gives a person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege[17]) i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some statute. Article 20 also protects against double jeopardy (Nemo debet pro eadem causa bis vexari[18]). This Article most importantly protects a person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the same.

Article 21 of the Constitution of India:
This article has been understood in the Indian judiciary to protect the right to be free from torture. This view is held because the right to life is more than a simple right to live an animalistic existence.[19] The expression "life or personal liberty" in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person.[20]

Article 22 of the Constitution of India:
Article 22 provides four basic fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed excesses.

Other Statutory Safeguards:
Indian Evidence Act, 1872:
A confession to police officer cannot be proved as against a person accused of any offence (Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts.

Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent corresponds to any infliction of custodial torture and violence. According to it, when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore.[21] It gives them the right to bring to the Court’s notice any torture or assault they may have been subjected to and have themselves examined by a medical practitioner on their own request.[22] A compensatory mechanism has also been used by courts.[23] When the Magistrate does not follow procedure with respect to entertaining complaint of custodial torture, it calls for interference by the High Court under Sec. 482 of the Code.[24]

Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the Code where a compulsory magisterial inquiry is to take place on death of an accused caused in police custody. Sections 167 and 309 of the Code have the object of bringing the accused persons before the court and so safeguard their rights and interests as the detention is under their authorisation.[25]

Indian Police Act:
Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. This can be seen in the light of the police officers violating various constitutional and statutory safeguards along with guidelines given in D.K Basu v. State of West Bengal.[26]

Indian Penal Code (IPC), 1860:
After the controversial Mathura Rape case[27], an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b) penalises custodial rape committed by police officers. This was a welcome change made to the section in question as it finally condemns the acts of police officers who take advantage of their authority.

Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest a person and to interrogate him during investigation of an offence from resorting to third degree methods causing ‘torture’.[28]
Judicial Precedents:

The Supreme Court is heralded as a beacon of rights against torture. Indeed, since the 1990s, the Supreme Court has come up with two innovative ways of dealing with custodial torture and custodial death cases namely, the right to compensation for custodial death and torture and the formulation of custody jurisprudence.

The case of Sheela Barse v. State of Maharashtra[29] has provided for guidelines on rights of the arrested persons especially women. The court in this case also emphasised on the need for Magistrates to inform all arrested persons of their rights. Guidelines were also given by the Supreme Court in D.K Basu v. State of West Bengal with respect to rights of arrested persons. The most significant one being the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors and copies of all prescribed documents should be sent to the concerned Magistrates. Also, the arrestee may be permitted to meet his lawyer during interrogation.

Other Authorities:
It has been recommended in the 177th Law Commission Report by the 16th Law Commission that requisite amendments should be brought about in the Code of Criminal Procedure making it the duty of the police officers in whose custody there are arrested persons that they should ensure their safety and holding them responsible for failure of the same. Thirty years hence, this amendment has still not been incorporated. The presence of an advocate during interrogation of the arrested person is also a recommendation that has been made. The 185th Law Commission Report also makes recommendation regarding rights of arrested persons with respect to the Indian Evidence Act, 1872 which are with respect to s. 27. The Malimath Committee Report has also emphasised on the need for codification of the rights of the arrested persons.[30]

Despite the above, the abominable figures regarding custodial torture have still not improved. One very simple reason behind this could be that persons who are supposed to protect people are themselves the wrongdoers. The criminal justice system in India is supposed to use the reformist approach; however, the approach is such that animals get better treatment.

Conclusion:
The very ideas of a human being in custody save for protection and nurturing is an anathema to human existence. The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody.

In a complaint of custodial torture, the court should not adopt a casual approach to it on the ground that it has been made by a habitual offender.[31] It is a perennial problem of statecraft.[32] It therefore, becomes imperative to evolve a system of state governance that allows the police to effectively maintain law and order and to prevent and detect the commission of a crime without jeopardizing legal rights; privileges and claims of laymen. Such a system obviously warrants appropriate control over the police in order to discourage them from exercising their power in a capricious manner. Similarly, an effective institutional grievance-redressal mechanism to vindicate ‘police excesses’ is also the need of the hour.[33]
As held by the Supreme Court, "custodial torture" is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality.

First, custodial torture must be made a crime. This could be brought in by way of a special law. Secondly, many cases of custodial torture could be prevented if law-enforcing agencies followed the existing laws relating to arrest and detention. The rules established by the Supreme Court--though not a complete remedy--should be applied without failure. Those who fail to comply must be prosecuted.

Thirdly, the public--and especially concerned professional groups, including rights groups and the media--must closely monitor police practices to see that government promises are upheld. The political opposition must also see to it that the Director General of Police submits a report to the legislative assembly, and an investigative report, on every case of custodial death and torture.

Fourthly, the central government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is evidently not the case. Were that the case, 60 years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.
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[1] K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice Process in India, (Eastern Book Company, Lucknow, 1st Edition, 2004) p. 219
[2] The Sikh Coalition, Custodial Deaths in Punjab; 1997-2001, http://www.sikhcoalition. org/HumanRights4.asp (Visited on January 18, 2010)
[3] Asian Human Rights Commission, INDIA: Government of Kerala must criminalise torture to prevent custodial deaths,  http://www.ahrchk.net/statements/mainfile.php/2006state ments/688/(Visited on January 23, 2010)
[4] The Hindu, Custodial Torture Worse than Terrorism, http://www.thehindujobs.com/the hindu/2003/07/27/stories/2003072703510500.htm (Visited on January 23, 2010)
[5] Jinee Lokaneeta, Torture in Postcolonial India: A Liberal Paradox?, http://www.wicked ness.net/els/els2/lokaneeta paper.pdf (Visited on January 19, 2010)
[6] Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260
[7] (1999) 7 SCC (Jour) 10
[8] Merinews.com, Indian jails cause rise in custodial deaths, http://www.merinews.com/cat Full.jsp?articleID=139864 (Visited on January 23, 2010)
[9] Vibha Sharma, Human Rights: 7,468 custodial deaths in 5 yrs, http://www.tribuneindia. com/2008/20080628/nation.htm#3 (Visited on January 23, 2010)
[10] Third Report of the National Police Commission, 1980, para 22.28
[11] K. Ravindran, Custodial Violence and Measures to Curb, The PRP Journal of Human Rights, January-March (2002): 7-8., p. 7
[12] Dikshit, Police and Human Rights Issues; Armugam, Custodial Violence and Deaths: Problems and Prevention; Sen et al, Custodial Deaths in India; R.S. Saini, Custodial Torture in Law and Practice with Reference to India, Journal of the Indian Law Institute 36 (2): 166-192; Arora, Custodial Torture in Police Station in India; Subash C. Raina, Custodial Torture, National Capital Law Journal 5(2000): 1-20; Archana Sinha, Torture Is a Challenge to the Administration of Justice, Journal of Human Rights 5(2001): 34-43; Joginder Singh, Third Degree Violates Human Rights, Civil and Military Law Journal 39 (2003): 143-145; Sudesh Kumar Sharma, Human Rights, Police and Custodial Violence: A Perspective, M.D.U. Law Journal 5 (2000): 40-44.
[13] Baxi, The Crisis of the Indian Legal System, p.130-5
[14] V.N. Paranjape, Criminology and Penology, (Central Law Publishing, Allahabad, 12th Edition, 2005) p. 381
[15] Prabhakar Pandurang v. State of Maharashtra, AIR 1966 SC 424; D.B. Mohan Patnaik v. State of A.P, AIR 1971 SC 2092
[16] Sunil Batra (II) v. Delhi Admn., (1980) 2 SCR 557
[17] "No crime, no punishment without a previous penal law", Article 22 of the Rome Statute of the International Criminal Court
[18] “No one ought to be twice troubled or harassed [if it appear to the court that it is] for one and the same cause”, http://www.wordinfo.info/words/index/info/view_unit/3475 (Visited on January 23, 2010)
[19] Sarah Smith, The Right to Life in India: Is It Really the 'Law of the Land, http://www. hrsolidarity.net/mainfile.php/2005vol15no05/2446/ (Visited on January 23, 2010), Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors, AIR 1981 SC 746a; Bandhua Mukti Morcha v. Union of India, (1997)10SCC549; People's Union for Democratic Rights and Ors v. Union of India (UOI) and Ors, AIR 1982 SC 1473
[20] D.K.Basu v. State of W.B, (1997) 1 SCC 416
[21] A.K Sahdev v. Ramesh Nanji Shah, 1998 CrLJ 2645 at 2650 (Bom.)
[22] Shakila Abdul Gafar Khan v. Vasanttraghunath Dhoble, 2004 (1) GCD 812 at 823 (SC)
[23] J. Y.V Chandrachud & V.R Manohar, The Code of Criminal Procedure, (Wadhwa Nagpur, 18th Edition, 2006) p. 114
[24] Mukesh Kumar v. State, 1990 CrLJ 1923 at 1925
[25] Bhai Jasbir Singh v. State of Punjab, 1995 CrLJ 285 (P&H) cf. P.C Bannerjee, Criminal Trial and Investigation, (Orient Publishing Co, Allahabad, 3rd Edition, 2003) p. 222
[26] AIR 1997 SC 610
[27] (1979) 2 SCC 143
[28] State of Madhya Pradesh v. Shyamsunder Tviwedi, (1995) 4 SCC 262 at 273
[29] 1983 CrLJ 1923 (Del)
[30] Malimath Committee Report, Volume I, Para 7.26.8-7.26.9
[31] D.J. Vaghela v. Kantibai, 1985 CrLJ 974 (Guj)
[32] Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
[33] S.C Sarkar, Sarkar’s Commentary on Code of Criminal Procedure, (Dwivedi Law Agency, Allahabad, 1st Edition, 2005) p. 506

The  author can be reached at: rukmaniseth26@legalserviceindia.com

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