Torture Is Not Just Physical; If You Keep A Person Behind Bars For Minor Reasons, That's Also Torture : Justice Deepak Gupta

The webinar featured the presence of Justice Deepak Gupta, former Union Law Minister Dr. Ashwini Kumar and National Editor of Political Affairs at Hindustan Times Sunetra Choudhary. It was moderated by Advocate Avani Bansal.

The discussion commenced with a reference to the brutal custodial deaths of the father-son duo in Thoothukudi, Tamil Nadu, wherein the two were picked up by the police for keeping their shop open for 15 minutes after curfew hours. The duo was mercilessly beaten up in custody, which led to their death, however, the police attempted to cover up the same by releasing a statement which said that they had succumbed to heart illnesses.

In this context, Bansal asked Justice Deepak Gupta about how, despite the existence of a series of guidelines underlining rights of a prisoner which were laid down in the DK Basu v. State of West Bengal, there was a challenge to its implementation.

Justice Gupta responded to the question by stating that though there was no questioning of the need of an anti-torture, the same could only be brought about by the Parliament and not the Supreme Court (in reference to the petition filed by Dr. Ashwani Kumar seeking for an anti-torture law, which had been dismissed by the Supreme Court).

"The Court can only decide what is legal and what is not legal. I have been called an activist judge, and I'm happy about that. But, we can only be activists within the four corners of law."

The former Supreme Court Judge further highlighted that the need of the hour was the proper implementation of the existing laws.

"In DK Basu Case, the Court thought that we could give certain suggestions to the Parliament. In Tamil Nadu, there are Rules which have been framed which state that the accused must be produced physically before being remanded. You have that Rule, but it was violated."

"Let's first implement the law as we have it. The investigations, the prosecutions are not fair; these must be rectified first", he said.

Justice Gupta also underlined the fact that majority of the cases were against the poor, and not the privileged. He stated that there was a need to reform the investigations, the prosecution and to first implement the law as we have it.

"Even during COVID times, we see cases of police brutality and the police being helpful. But, the former is more and it's against the poor. In the Tamil Nadu case, they had kept the shop open for 15 extra minutes? Was it that serious an offence?"

In response to the role and accountability of Magistrates when there is excess of authority on behalf of the police, Justice Gupta commenced his answer by iterating that there was a need for a change in mindset before bringing in an anti-torture law. Referring to the shocking Hyderabad Encounter case where the rape and murder accused were shot to death by the police in an alleged attempt to flee, Justice Gupta said, "We have a fair trial to Kasab, then why not to them?"

Also Read : Can't Let Muscularity Replace Constitutionality, Senior Adv Ashwini Kumar On Custodial Torture

Justice Gupta commented on the legal accountability if a Magistrate is in violation of Rules by stating that the High Court should supervise the same as they have the right to do so. 

"Article 21 of the Constitution says that no person can be deprived of life or personal liberty except by procedure established by law. Now what does Section 167 of CrPC say? The Magistrate will decide whether to release an accused on bail or whether to remand the accused in judicial or police custody. The High Courts have the right to take action. They must do so, and if they do, the rest will fall in line."

Justice Gupta further stated that the Courts were reluctant to give bail to people as they thought, "Yeh toh criminal hain, isse jail mein rehene do."

"Torture is just not physical torture. If you keep a person behind bars for minor reasons, that is also torture. I also feel that there has to be some accountability when it comes to higher posts".

Justice Gupta concluded the webinar by stating that the Hyderabad Encounter case had been very disturbing, and there was a need to train the police authorities in a better manner, before instituting comprehensive reforms to the statutes.

He also spoke about the need for imparting better skills to the police for investigation of crimes, so that they don't feel tempted to use third degree methods against accused.

"If the police are trained in a better manner, then even our existing police can do better..The police have very little training; they have no forensic training. We have to divide law and order, and there are so many who do VIP duty and are rendered useless." he said.