TORTURE IN INDIA

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. Human rights takes a back seat in this depressing scenario. Use of excessive force and exceeding lawful authority by the police, resulting in death in custody, have become quite common. If torture of a suspect during police custody is inhuman, causing death by beating in police custody is even more inhuman. Custodial death is perhaps one of the worst crimes in a civilized society governed by the Rule of Law. It is indeed a matter of great concern for every human being. Thinking of the pain and trauma that a victim suffers due to torture, the protection of his life and liberty from such inhuman treatment becomes the most sacred duty of every authority who cares for human rights. In custodial crimes, not only the infliction of body pain is worrisome, but also the trauma and mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is third degree torture or death in police custody, the extent of annoyance caused to the humanity is beyond the purview of law. Repeated incidents of Custody deaths in the country have not only shaken the people’s conscience, forcing them to take to the street against the inhuman torture techniques adopted by the police, but

has also highlighted the hostile attitude of law enforcing agencies in containing such heinous crime against the humanity. The sad part of the story is that the force which is supposed to protect the life and liberty of the citizen when behaves inhumanly and perpetrate crime it brings to fore the most crude form of violence against the whole humanity. It undoubtedly, encourages lawlessness and breeds contempt for law. The rights inherent in Article 21 and 22(I) of the Constitution of India require to be zealously and scrupulously protected.

Custodial violence including torture, death and staged encounter, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Inspite of clear prohibition in law from subjecting third degree torture upon any person, Supreme Court and various High Courts and even the National Human Rights Commission and State Human Rights Commissions across the country are over flooded with complaints of custodial torture and deaths in police custody or fake encounters. According to a statement placed in the Lok Sabha in 2000, more than seven hundred and ninety persons lost their lives in police custody in the country in the past. Unofficial figures even go upto five figures. Showing deep concern over the increasing tendency among the police officials in subjecting third degree torture upon the suspect resulting in the custodial death of the suspect and the suppression of such occurrences by the erring cops, the National Human Rights Commission issued strict directions to all the State governments and Union territories in 1993 as under:-

“ In view of the rising number of incidents of custodial deaths and custodial rapes and reported attempts to suppress or present a different picture of these incidents with the lapse of time, the commission directs to all the District Magistrates and Superintendents of Police of every district in the country that they should report to the Secretary General of the National Human Rights Commission about such incidents within 24 hours of such occurrence or of these officers having come to know about such incidents. Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident.”

The third report of the National Police Commission in India released in 1996, expressed deep concern at the increasing incidents of custodial violence and deaths in lock-up. It took serious note of the demoralizing effect which custodial torture was creating on the society as a whole. It held that “the Protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law.”The Magna Carta of human rights, as it is known, ‘The Universal Declaration of Human Rights’, which marked the emergence of a worldwide trend of Protection and guarantee of certain basic human rights, stipulates in Article 5 that “ No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Article 1 of the ‘Convention against Torture and other Cruel, Inhuman or Degrading treatment or punishment’, defines torture 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 intimidated 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 that person acting in official capacity.”

The Article 4 of the Convention says, “each state party shall ensure that all acts of torture are declared as offence under its Criminal Law. ”

The apex court as also various High Courts of the country have always shed light to dispel the darkness of inhuman and brutal torture techniques which amounts to an attack on the fundamental right to life and liberty of the victim.

Justice S. Mohan of Supreme Court of India speaking for the bench in the case of “Arvinder S. Bagga Vs. State of U.P.” aptly observed, “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.”

Justice Kuldip Singh and Justice Dr. A.S. Anand, the pillars of Human Rights movement in India observed in the landmark Judgment on Custodial crimes, titled “D.K.Basu Vs. State of West Bengal that “Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial Violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The Protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. “Torture “ of a human being by another human being is essentially an instrument to impose the will of the “strong” over the “Weak” by suffering. The word “torture” today has become synonymous with the darker side of human civilization. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward—flag of humanity must on each such occasion fly half-mast. In all custodial crimes what is of real concern is not only infliction of body pain but also the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, person experiences is beyond the purview of law.” He further observed in another judgment on human rights dealing with the effect of torture in the mind of common citizen, titled “ State of M.P. Vs. Shayamsunder Trivedi and others” and held that “tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them within the torture. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees /undertrial prisoners or suspects tarnishes the image of any civilized nation and encourages the men in “Khaki” to consider themselves to be above the law and sometimes even to become law unto themselves.”

Historian Badriana P. Bartow also explained the trauma of torture in his own words, “Torture is a 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 paralyzing 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. ”

The temple of Justice, as he is known, Mr. Justice V.R.Krishna Iyer the then Chief Justice of Supreme Court, dwelled in detail the evil of torture in a case titled “ Raghubir Singh Vs. State of Haryana” and observed, “we are really pained to note that such things should happen in a country which is still governed by the Rule of Law. We cannot but express our strong displeasure and disapproval of the conduct of the concerned police officers. We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scare in the minds of common citizens that they are under a new peril which the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy when the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case. Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.”

In an attempt to weed out the evil of torture from the Police Stations, Punjab & Haryana High Court in a Public Interest Litigation, titled, “Dr.Vineeta Gupta and another Versus State of Punjab & others” reported in Judicial Reports(Criminal) 1998 Page 561 held that no instruments of torture would be kept in any Police Station in Punjab, Haryana and Union Territory of Chandigarh and no person would be subjected to torture in Police Custody.

Dr. Martin Luther King (Jr.) in a letter to his country men once wrote, “Injustice anywhere is threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of density. Whatever affects one directly affects all indirectly.”

It is a matter of common knowledge that when a complaint is made against torture, death or injury in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police stations easily manipulate the record and tamper with the evidence. The courts and the judges, if we may say so with respect, exhibit a total lack of sensitivity and a “could not careless” attitude in appreciating the evidence on the record and thereby condoning the barbaric third degree methods which are still being used, at every police station, despite being illegal. They must bring a change in their attitude particularly in cases involving custodial crimes and should exhibit more sensitivity and a realistic rather than a narrow technical approach, while dealing with such cases, so that as far as possible within their powers, the guilty must not escape and that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. Otherwise, the victim becomes frustrated and contempt for law develops.

 

Arunjeev Singh Walia
Advocate