The Convention Against Torture and other Cruel, Inhuman or Degrading treatment or Punishment defines ‘torture’[2]as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or, other person acting in official capacity. It does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.
Torture is an atrocious violation of human dignity. It dehumanizes both the victim and the perpetrator. It is a crime against humanity.
Incidents of torture
Torture is widely spread in the prisons across the country. The latest event of the torture and death of a PWD engineer Manoj Kumar Gupta by a MLA[3] in Uttar Pradesh is just the tip of the iceberg.
Torture was widely practiced during the 1975 emergency.
Custodial violence and torture are frequently practiced in prisons as well as the police lock ups.
The National Human Rights Commission in its annual report of 2001-2002 recorded 1307 instances of custodial deaths in India, 165 of these took place in police custody and the rest in judicial custody.[4]
Peoples Union for Democratic Rights, a Delhi based NGO, reports that a number of cases don’t have a record of arrest (arrests made without warrant) and in cases of custodial deaths, the body is disposed off denying detention.
Torture is done to criminals, innocent people trapped by law enforcement agencies, spies, prisoners of wars, refugees, opposition leaders, journalists, leaders of ethnic minorities and others including their family members, both adult and children by those in power. It is used as a political weapon for obtaining confessions and sometimes for destroying evidence.
Torture is often justified by saying that there exists a public emergency or an order of the superior officer by those who resort to it. But torture and other cruel treatments are inhuman in nature and cannot be justified on any ground.
Preventive measures
The various steps taken at both international and national levels to curb torture are as follows:
(a) International
A number of international instruments gave protection to all people from torture and all other forms of cruel, degrading and inhuman forms of treatment and punishments.
(1) The Universal Declaration of Human Rights, 1948
Article 5 of the Declaration provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
(2) The International Covenant on Civil and Political Rights, 1966
Article 7 of the covenant gives protection from torture. It states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Further it states that in particular, no one shall be subjected without his free consent to medical or scientific experimentation.
(3) The Convention Against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment
The General Assembly adopted the Convention on December 10, 1984. It came into force on June 26, 1987.
Article 1 of the convention defines torture.
In its various provisions the Convention lays down the obligations of the State parties to prevent torture.
Article 2 Para 1 provides that each party shall take legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
Article 2 Para 2 provides that torture cannot be justified even in exceptional circumstances whatsoever, whether there exists a state of war or a threat of war, internal political instability or any other public emergency. An order from a superior officer or a public authority may not be invoked as justification of torture.
Article 3 provides that the state shall not expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subject to torture.
Article 4 Para 1 provides that each state Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitute complicity or participation in torture.
Article 4 Para 2 provides that each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Article 5 provides that each state party shall take measures as may be necessary to establish its jurisdiction over the offences committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state. States shall establish their jurisdiction over the alleged offender when he is a national of that state or when the victim is a national of that state if that state considers it appropriate.
Article 7 provides that the state party in the territory under whose jurisdiction a person alleged to have committed an offence is found shall submit the case to its competent authorities for the purpose of prosecution.
Implementation procedure
(1) Committee Against Torture
Article 17 provides for the establishment of a committee consisting of ten experts of high moral standing and recognized competence in the field of human rights. It was established in 1987.
(2) Inter state Communication system
Article 21of the convention lays down the procedure for the inter state communications in cases of torture.
(3) Individual’s communication system
Article 22 of the convention provides for the individual’s communications.
A special rapporteur on torture was appointed by the Commission on human rights in 1985.
Optional Protocol On Convention Against Torture
An optional protocol on convention against torture was endorsed by the Economic and Social Council to the General Assembly on December 18,2002.
(b) National
The various preventive measures at national level are:
(1) Legislative measures
(i) The Constitution of India
Article 21 provides that no person shall be deprived of life or personal liberty except for in accordance with the procedure established by law.
Article 22 lays down various measures to be taken in cases of arrests. Clause (1) to Article 22 states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Clause (2) to Article 22 states that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the set period without the authority of a magistrate.
Article 300 lays down the provisions of the tortuous liability of the State.
In Rudul Shah v State of Bihar[5], the Supreme Court awarded Rs. 35000 as compensation against the State of Bihar to the petitioner because he was kept in jail for 14 years after he was acquitted by a criminal court.
In Saheli v Commissioner of Police[6], the state was held liable to pay compensation to the mother of the deceased who had died because of police beating and assault.
In Nilabati Behera v State of Orissa[7], the court awarded damages in case of police custodial death.
(ii) The Evidence Act, 1872
Section 25 of the Evidence Act provides that no confession made to a police officer, shall be proved as against a person accused of any offence.
(iii) The Code of Criminal Procedure,1973
(a)Right to know the grounds of arrest
Section50 (1) provides that in cases of arrest without warrant the arresting officer shall communicate the grounds of arrest
Section 75 provides that the police officer or other person executing a warrant of arrest shall notify the subject of it to arrested and if required show him the warrant.
(b)Information regarding the right to be released on bail
Section 50(2) provides that where a police officer arrests without warrant he shall inform the person arrested that he is entitled to be released on bail
(c)Right to be taken before a magistrate without delay
Section 56 provides that the arrested person should be taken before a magistrate having jurisdiction in the case without any unnecessary delay
(d)Right of not being detained for more that 24 hours without judicial scrutiny
Section 57 provides that the arrested person must be brought before the magistrate or court within 24 hours
(e)Right to consult a legal practitioner
Section 303 provides that any person against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice.
(f)Right to be examined by a medical practitioner
Section 54 gives the accused the right to have himself medically examined to enable him to defend and protect himself properly.
(2) Law reforms
The Law Commission of India in its 113th Report on “Injuries in Police Custody” published in 1985 proposed amendment in the Evidence act, 1872 in the form of addition of a new section, section 114-B, providing for the court to take into consideration the injuries on the body of the accused and his statement as to how they were produced and the period of custody.[8]
(3) Judicial approach
The Supreme Court of India as well as the various state High Courts have taken an active part in protecting the rights of the arrested persons.
In the case of Joginder Kumar v State of Uttar Pradesh[9], the Supreme Court has held that the arrested person is entitled to have one friend,relative or other person told that he had been arrested and an entry to be made in the diary as to who was informed of his arrest.
In the case of D.K. Basu v State of West Bengal[10] , the supreme court has laid down various precautions to be taken by the arresting authority to ensure that there is no custodial violence or torture in police lockups. The court laid down the following guidelines:
(i)The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate ,visible and clear
identification and name tags with their designations .The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(ii)That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made .It shall also be countersigned by the arrestee and shall contain the time and date of the arrest.
(iii)A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or have a interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or relative of the arrestee.
(iv)The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(v)The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(vi)An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has bee informed of the arrest and the names and particulars the police officials in whose custody the arrestee is.
(vii)The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subject to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(ix) Copies of all documents including the memo of arrest, referred to above, should be sent to the ilaqa Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation.
(xi) A Police Control Room should be provided at all districts and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
(4) Role of human rights commissions
The human rights commissions were established under the provisions of the Protection of human Rights Act, 1992. The Act provided for commissions at national, state and subordinate levels to study and monitor the instances of human rights violations. The commissions have played an important role in filing cases against the various authorities in order to prevent custodial torture. The national Human Rights Commission has also published its report on the instances of torture in the police custody.
Conclusion
Every human being has a right to be treated with respect and dignity whether he is a free individual or one detained under any criminal law. However, the incidences of torture across the country and continents are very common.
Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person's autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim's will.[11]
A number of steps have been taken at both the national as well as the international levels to curb the menace of torture and cruel treatment meted out to the prisoners. However, it can be seen that these measures have not been very useful in their object.
The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.[12]
Torture is one of the most inhuman forms of treatment and there is need for curtailing it all levels and opposing it at every possible instance. It is required that more stringent provisions are made and implemented in order to curb this evil treatment.
Suggestions
Though a number of provisions have been laid down the incidences of torture are still widespread across the nation as well as continents. In order to make these more effective the following steps may be useful:
(1) The basic awareness relating to human rights and the knowledge that torture is the grave violation of individual’s rights and dignity should be spread widely.
(2) The role of the various non government organizations in the control of torture should be recognized as well as increased.
(3) At the national level, the policies laid down by the Supreme Court in the case of D. K. Basu v State of West Bengal[13] should be given legislative strength.
(4) The various legal provisions providing for the human treatment of prisoners should be strictly implemented.
(5) Committees at different levels should be established to look into the matters of human rights violations of the prisoners.
(6) Strict penalties should be awarded to those resorting to torture and inhuman acts and treatments. Courts should also decide these cases rapidly.
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