Law & Custodial Death

In its report: Torture in India 2008: A State of Denial - the first-ever nationwide assessment on the use of torture in India- released onJune25, Asian Centre for Human Rights stated that 7,468 persons, at an average of 1,494 persons per year or about four persons per day, have died and been killed in prison and police custody during 2002 to 2007.^[2]

Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution, a non- derogable right. Before the 44th Amendment to the Constitution in 1978, Article 21 was a derogable right. It covers the prohibition of torture and violence by government officials or other individuals. Even inmates, detainees in custody, people awaiting trial, and foreign nationals have access to this privilege. In recent times there has been a cumulative concern in the international community about the torture of prisoners and detainees. Torture is a well-established tool used by the Indian Police for investigation.

In tune with international human rights instruments against torture, the Constitution emphasizes respect and honour for human dignity and fundamental rights. Torture has not been well-defined in the Constitution or other penal laws. Article 21 of the Constitutional only provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law." Life or personal freedom has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or cruel, inhuman, or degrading treatment or punishment that can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in some instances. It declares that no person shall be detained in custody without being informed about the grounds of such arrest. It cannot be denied to consult and defend by a legal practitioner of his choice. A22 directs that person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hrs of such arrest. Article 20(3) provides that the accused shall not be compelled to witness against himself as this would amount to self-incrimination.

In the early eighties, investigative journalism exposed the practice of torture. The other was public interest litigation, based on press reports. The accountability process was strengthened by enacting the Protection of Human Rights Act 1993, and Sec 3 of the Act set up the National Human Rights Commission.

Legislative Safeguards

1. Sec 330 & 331 of the Indian Penal Code provides punishment for injury inflicted for extorting confession. The former is in case of simple hurt and the latter for grievous hurt. Crime of custodial torture against prisoners can be brought under Sec 302, 304, 304A, and 306.
2. Sec54 Criminal Procedure Code, 1973 confers upon the arrested person the right to examine himself medically.
3. A confession made to the police officer is not admissible in evidence under Sec 25 and 26 of the Indian Evidence Act 1872.

4. Section 162 of the Code of Civil Procedure also states that a police officer may not use a witness's statement recorded for any reason other than to contradict his testimony in Court.

5. Section 24 of the Indian Evidence Act also provides that confession must be made voluntarily when admissible. If it is made under inducement, threat, or promise, it is inadmissible in criminal proceedings;
6. An additional safeguard is provided under Sec 164 CrPC; the Magistrate must ensure that a confession or statement made by the accused person is voluntary.

Judicial Pronouncements

The practice of torture by police and other law enforcement officers is a matter of deep concern. Therefore it is the State's sacred duty to protect these citizens' fundamental human rights. The problem of police torture and violence is universal. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of the U.S.A and other countries. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against self-incrimination and of life and liberty is too evident.^[3]

In Nandini Satpati v P.L Dani,^[4] the Court held that physical threats or violence, psychological torture, atmospheric pressure, environmental coercion, and tiring interrogation by police are law violations.

The Court delivered a clear case of the prohibition against torture in Sunil Batra v Delhi Administration.^[5] The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the Constitution and gathered support from Articles 14 & 19 in holding against torture's permissibility of torture vis-à-vis persons suspected and accused of the crime.

In the case of Raghbir Singh v State of Haryana,^[6] where police used violence to force a confession from a suspect in the theft, the Court noted that when the defenders of the law violate human rights, the lives and liberty of citizens are in peril. Human rights violations take on a painful, traumatizing poignancy when they are committed by the police, an element of the Government whose job is to keep the public safe rather than conduct heinous crimes against them. Accordingly, the Court awarded a life sentence to the police officer responsible for the suspect's death in the police lockup.

Khatri v State of Bihar / Bhagalpur Blinding ^[7] was an example of cruel and inhuman treatment to the prisoners, which is insolating the spirit of the Constitution and human values and Article 21. Supreme Court, in this case, tackled the blinding of under-trial prisoners by the police by piercing their eyeballs with needles and pouring acid on them. This case shows the pattern of torture, the sanction of torture by State and local judicial authorities, and the routine concealment of torture.

The challenging problem in an alleged case of police torture is establishing the guilt of the perpetrators of violence. The wrongdoers may either be able to escape conviction due to a lack of the required degree of proof or may be found guilty of a lesser offence than the one warranted by the facts. It is primarily due to the situation warranted by the facts or primarily because the offenders are the comrades and colleagues of the prosecutors and the complete lack of neutral witnesses. State of U.P v Ram Sagar Yadav^[8] is a case indicative of the extreme limits police violence and highhandedness may extend. The victim complained about a policeman who demanded a bribe from him. He was arrested for his "audacity" and discovered to be in critical condition with 19 injuries to his body, ultimately leading to his demise. The Supreme Court, while affirming the seven years of rigorous punishment for culpable homicide not amounting to murder under Sec 304 of the IPC, expressed its regret that the trial judge did not find the policeman guilty of murder as indicated by the facts.

In D.K Basu v State of West Bengal,^[9] the Court laid down 11 guidelines (procedural measures) to be followed during, during, and after the arrest of a person until he is in the custody of the police. This case came up before the Court through an NGO's petition under art 32 of the Constitution. The Executive Chairman of this NGO had written to the Chief Justice of India, drawing his attention to news items published in a newspaper regarding deaths in police lock up and jails in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading, destroying an individual's personality. It is a calculated assault on human dignity; Civilization takes a step backwards whenever human dignity is wounded.

However, mere formulation of guidelines and safeguards would not be sufficient. Therefore Supreme Court in the D.K Basu case^[10] warned that:

Failure to comply with the requirements mentioned shall, apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country having territorial jurisdiction over the matter.

In Joginder Kumar v State of U.P^[11] , Joginder Kumar was called to the police station concerning a case. After that, his whereabouts became unknown to his family members. His family then petitioned the Supreme Court for a writ of habeas corpus, which led to his appearance before the Court.

The alarming increase in cases of torture, assault, and death in police custody and the non-availability to punish the culprits have been a vexing problem as the custodians have investigated such matters. Therefore, it is of utmost necessity that an objective and independent inquiry be made. Keeping it in view, the Supreme Court in Secretary, Hailakandi Bar Association v State of Assam^[12] directed the CBI to register and investigate the instant custodial death case. Again in the Supreme Court in Ajab Singh v State of UP,^[13] where the police examination of custodial death was a concocted story, directing the CBI to register the case and investigate the circumstances of custodial death. It also directed the CBI to complete the investigation expeditiously and file a copy of the investigation report in the Court.

The UN Convention against Torture provides redress and compensation to the tortured victim. Article 14 of the Convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v State of Orissa,^[14] the principle of state liability and the need for the State to make reparations for such liability was recognized. It was highlighted that the Constitution's Court under Art 32 and 226 has wide amplitude to provide any remedy under Public Law for any infringement of Fundamental Rights.

The Prevention Of Torture Bill 2010

The Bill,^[15] which purported to make torture by public employees illegal, was rightfully criticized as a fig leaf because its true goal was to ensure that public employees could use torture without being held accountable. One of its numerous flaws was the impunity clause found in Clause 6 of the Bill, which mandated that no court may move forward with an allegation of torture unless the current administration approved the prosecution of the suspect of the public servant.^[16]

This paragraph was a replica of a colonial-era clause that is now routinely referenced in most criminal statutes, including Sections 197 of the Code of Criminal Procedure, 1973, and 19 of the Prevention of Corruption Act, 1988. However, the Delhi Special Police Establishment Act, 1946 (the statute that establishes and oversees the Central Bureau of Investigation) goes further under Section 6A. It claims that without prior approval from the Central Government, the CBI cannot even open an inquiry, or examine a corruption case, much less bring charges against anyone.^[17] These impunity provisions have been the main stumbling blocks to prosecuting public servants, whether for corruption or torture.^[18]

Committee Report

After a brief, delayed debate, the Government could use its majority to approve the Prevention of Torture Bill in the Lok Sabha. However, civil society had the opportunity to review the Bill's reprehensible elements by the time it reached the Rajya Sabha.^[19] At least a few Rajya Sabha MPs paid attention and came away with the conviction that the Bill's contents needed examination. The Government rightly gave in to their demand and appointed Ashwani Kumar to lead a Select Committee.^[20]

The Rajya Sabha Select Committee's December 2010 Report on the Prevention of Torture Bill is noteworthy for how sincerely and seriously it treats the topic of torture. If adopted, the committee's recommendations will correct most of the original Bill's flaws. However, even while the entire report merits remark, its discussion and suggestions about provisions for impunity are essential.

The committee recognized the necessity to "insulate honest public officials from fraudulent, frivolous, vexatious and malicious prosecution" and took a pragmatic approach to the issue of prior sanction requirements. However, it also concluded that a provision like this should not be used to shield government personnel who "intentionally tortured or helped in the torture of victims." The committee effectively articulated the standard conflict that arises when prosecuting public employees: we want them to carry out their tasks without fear or favour, but we also want to ensure that they are held accountable for their actions.^[21]Impunity clauses like Clause 6 of the original Torture Bill or Section 197 of the Code of Criminal Procedure consider only the need to protect public employees. They do not take into account the requirement for responsibility. It disregards the second concern in favour of finding a proportionate solution that appropriately addresses both issues.

Recommendations

The committee finds a better balance "to give enough safeguards to honest and upright authorities, while at the same time ensuring that the sanction clause was not utilized to deny the victims their right to justice through quick trial." Accordingly, it suggests an updated Clause 6 (now known as Clause 7 in the Bill the committee has proposed), which comprises the following clauses to achieve this nuanced purpose.^[22]

First, the committee advises adding a deeming provision while maintaining the general necessity of previous governmental sanctions for prosecuting public employees. For instance, sanctions would be considered to have been granted if three months had passed without the Government acting on a request for sanctions. As a result, a government cannot obstruct an investigation by just declining to implement a request for sanctions.^[23]

Second, the committee suggests that the Government provide written justifications for any refusal to authorize prosecution. Currently, the Government is not required to publicly explain why it has decided not to authorize the prosecution of any public employee.^[24] Due to the lack of transparency, the administration can settle political differences rather than uphold accountability.

The committee advises that a decision rejecting such a sanction may be appealed to a High Court by a party who feels aggrieved, which is the third and possibly most crucial recommendation. There is no right to appeal a decision to withhold sanction; a person may only request a judicial review. There is a significant distinction between an appeal and a review. A review court's ability to overturn a judgement is significantly less broad than that of an appeal court. A review court ensures that specific technical decision-making standards were followed and that the conclusion was not so irrational that a reasonable person could not have taken it.^[25] On the other hand, an appellate court can examine the issue on merits and substitute its judgment for the Government. In sum, the possibility that its decision may be appealed will require the Government to act on judicial rather than political grounds while granting or refusing sanction.^[26]

These suggestions strike the ideal balance between the need to defend honourable officers and the need to hold accountable public employees. The Rajya Sabha committee should be commended for their work. However, the committee's recommended formula should not just be used for torture alone.^[27] It might also turn out to be the best solution to the issue of corruption cases being treated with impunity.

The alarming increase in custodial torture, assault, and death has invited the judiciary's attention to ensure that public bodies or officials do not act unlawfully and perform their public duties properly, especially when citizens' fundamental rights are involved. The judiciary has given enough directions to safeguard citizens' fundamental rights and freedoms, including the accused. The judicial dictates have served a valid public purpose to expose and stop the use of third-degree methods by police on persons in their custody.

The implementing and supervising authority must ensure that these guidelines have been strictly complied with. The Parliament should seriously consider the recommendation made by the 113^th Law Commission Report and amend the Indian Evidence Act to transfer the onus of proof of innocence to the police in cases where evidence shows that an arrestee suffered an injury during police custody. This provision is likely to instill fear in police officials who tend to take the law into their own hands.

NHRC's Guidelines And Instructions On Torture

The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. In addition, NHRC later held that all post-mortem examinations regarding deaths in police custody and jails should be videotaped and sent to the commission along with the post-mortem report.^[28]

The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence.^[29] While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the whole hog and bring in a new law providing stricter punishment for those involved in incidents of torture.

The Prevention of Torture Bill, 2010, drafted by the Government, includes torture by Government servants, including police officials, within the ambit of punishable offences. Under the proposed law, public servants and others responsible for causing grievous hurt or danger to any person's life, limb, or health would be liable for being punished for torture. Incidentally, the draft legislation also makes inflicting mental torture a punishable offence. In addition, public servants torturing anybody to extract information or extra-judicial confession from any accused would be punished under the proposed law.^[30]

Torturing anybody based on his race, religion, place of birth, residence, language, caste and community would also be a punishable offence. The Government of India would mandatorily submit regular reports to the UN on measures to implement the Convention. The Convention also says that if member countries have signed an extradition treaty, persons accused of torture would have to be deported. Furthermore, the Bill provides for setting up independent panels to deal with complaints of torture (at the central and State levels).^[31] All complaints in torture matters would automatically be forwarded to these panels.

The maximum punishment for torture is ten years, which, government officials say, is among the highest in the world. India signed the Convention in October 1997 but has not ratified the same despite repeated calls by human rights organizations and NGOs. Ratification is necessary for appropriate changes to be made in the prevailing laws.^[32] Once ratified and a new law in place, it would enable institutions and authorities to be committed and accountable for tackling widespread torture, especially in police custody.