Every human being has a right to live with dignity, respect and honor. Dignity can’t be earned and neither can be taken away. Every other good thing in life depends upon safeguarding of our fundamental dignity. Universal Declaration on Human Rights puts it as: recognition of inherent dignity of all the members of human family is the foundation of freedom, justice and peace in the world. Human dignity is central to human identity. Human dignity forms the basis of human rights.
CUSTODIAL TORTURE AND INFRINGEMENT OF HUMAN DIGNITY
Custodial Torture is naked violation of human dignity. When human dignity is wounded, the flag of humanity falls. Torture depicts the gruesome and darker side of human civilization. The World Medical Association, in its Tokyo Declaration, 1975 defines torture 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.” “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 you, chest, cold as ice and heavy, as a stone paralyzing as steep 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
LEGAL SAFEGUARDS
No violation of any human rights has been subjected to so many declarations and conventions as torture. Article 5 of Universal Declaration of Human Rights states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” International Covenant on Civil and Political Rights explicitly prohibit torture and “cruel, inhuman or degrading treatment or punishment.” The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”) was adopted by the General Assembly of the United Nations on 10 December 1984. The Convention entered into force on 26 June 1987. UN Covention against Torture has been ratified by atleast 158 countries. States that ratify it have a treaty obligation to include the provision into municipal law. Though India had signed the convention in 1997, it is yet to ratify it.
In D.K Basu v State of W.B (1996) , the Supreme Court of India observed: “The custodial torture is a violation of human dignity and degredation that destroys self-esteem and individual personality. It is thus impermissible and offence to Article 21 of the constitution (which provides for Right to life and personal liberty)”. Having said this, it is pertinent to note that there is no comprehensive piece of legislation in India to define and punish torture. According to the National Crime Records Bureau, between 2010 and 2015, 591 people died in police custody in India. In Oct 2017, Law Commission recommended new bill, which is amended version of anti-torture draft bill “Prevention of Torture Bill, 2010”. The original draft Bill was passed by Lok Sabha on May 5, 2010. The Rajya Sabha referred it to the Select Committee for scrutiny. The Select Committee referred the Bill for enactment with certain modifications. Comments of State governments and Union Territory administrations were called. In the meanwhile, the Bill lapsed with the dissolution of the 15th Lok Sabha in May 2014, necessitating introduction of a new Bill in the House.
Highlights of the Prevention of Torture Bill, 2017:
Ratification of Covention against Torture.
Punishment for acts of torture. The punishment could extend upto life imprisonment.
Amendment of existing statutes.
A new section 114B should be inserted to the Indian Evidence Act, 1872. Section 114B would ensure that in case a person in police custody sustains injuries, it will be presumed that those injuries have been inflicted by the police, and the burden of proof shall lie on the authority concerned to explain such injury.
It also recommended an amendment to section 357B to incorporate payment of compensation, in addition to the payment of fine provided in the Indian Penal Code.
Compensation to Victims
Protection of victims, complainants and witnesses.
The principle of soverign immunity can’t override constitutional rights and while dealing with the plea of sovereign immunity, the Courts will have to bear in mind that it is the citizens who are entitled to fundamental rights, and not the agents of the State.
LOOPHOLES IN THE DRAFT BILL:
Law Commission report on torture is a step in the right direction. Although the report does have some shortcomings, it recognises that torture is prohibited under customary law without any exceptions and the condemnation of it in the Indian constitution. Some of the loopholes found and pointed out by legal experts, democratic and human rights activists, present in the bill are as under:
The 2010 Select Committee-proposed Bill, in its section on “what constitutes torture” had a broad definition of torture beyond physical pain and suffering including mental agony and trauma alongside mental pain and suffering; it also emphasised the prevention of torture in the context of discrimination based on sex, race, religion, which are excluded in the 2017 version.
Another key difference is that the 2010 Select Committee version had an explanation that recounted forms of torture based on years of documentation – whether it is electric shock, food deprivation, systematic beating, water torture, rape and sexual abuse, or the use of drugs that were meant to be illustrative, but are missing from the 2017 version.
The 2010 Select Committee version allowed for complaints of torture to be filed within two years of the incident, not six months, as the current Bill proposes.
The Select Committee had detailed some criteria for compensation, such as the gravity of suffering, lost opportunities, and legal and medical costs, but these are missing from the 2017 version of the Bill.
A prominent democratic rights activist explained: “Torture is prevalent in three different contexts in India”. In criminal cases, it is evident in the numerous custodial deaths that continue to occur even in theft or domestic dispute cases; in the context of terrorism and organised crime cases, extraordinary laws facilitate torture; in conflict environments, torture, detention and disappearances are common because those who commit these crimes have virtual impunity. There is no doubt that torture is most frequent and severe in conflict areas, but it is widespread and persistent in the other two contexts as well.
The proposed Bill targets mostly one of these areas of torture – in routine criminal cases – and may have limited impact on the two other contexts. In terrorism trials, extraordinary anti-terror laws play a prominent role in undermining constitutional and statutory safeguards against torture and illegal detention, and in conflict areas such as in Kashmir or the Northeast, the use of Armed Forces (Special Powers) Act (AFSPA) creates impunity. Both these situations remain unaddressed in the Law Commission.
WAY FORWARD
These are some indicators of the urgent need to address torture in India and a comprehensive Torture Prevention Bill that addresses all these contexts is only one step in that direction. It is imperative that a strong law that criminalises torture, imposes stringent punishment for it and contains liberal provisions for all those suffering torture to complain against their perpetrators, prosecute them and be compensated and rehabilitated, is passed at the earliest. I finish with the words of former Supreme Court Judge, Justice V.R Krishna Iyer , who said: “Custodial torture is worse than terrorism because the authority of state is behind it.”
The writer is a student of Law at Department of Legal Studies, Central University of Kashmir and he can be reached at: abrar_reyaz@live.com
