By Mili Budhiraja
[Mili Budhiraja is a II year student of LL.B. at the Faculty of Law, University of Delhi.]
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
–Justice A.S. Anand, D.K. Basu v. State of West Bengal
Torture is the most outrageous violation of the Fundamental Rights of an individual which directly strikes at the heart of personal liberty. It is a form of human rights violation regarding which a significant number of Conventions and Declarations exist in the international realm. The prohibition on torture can be traced to Article 2 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Article 3 of the Human Rights Convention and Article 5 of the Universal Declaration of Human Rights (UDHR) also cast a ban on torture. Under Article 7 of the International Covenant on Civil and Political Rights (ICCPR), all degrading treatments are prohibited. Essentially, a ban on torture requires States to provide humane treatment at all times. In the case of Osbourne v. Jamaica, the Human Rights Committee held that:
Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to Article 7 of the Covenant.
The prohibition of torture has attained the status of jus cogens or the peremptory norm of international law which gives rise to obligation erga omnes to take action against those who perpetrate torture. Despite this, it is extremely unfortunate that this horrendous practice exists unabated in society, with a hint of implicit acceptance.
The practice of torture persists in various forms in many nations. Recently, the abhorrent practice of custodial torture has been brought to the fore with the incidents of George Floyd in the United States of America, and Jayaraj and Bennix in India. In Singapore, a British schoolboy was sentenced to 20 years of imprisonment and subjected to caning. In the past decade, Maldives had become notorious for flogging its abused and raped women on charges of adultery. In Aceh, a female flogging squad was constituted in order to punish the women flouting Islamic Law. The domain of criminal justice system is infiltrated with such shameful practices in the name of punishment and investigation.
Such brutal practices should find no scope in the criminal justice system as they are dehumanizing and stand in explicit violation of the fundamental human rights. They fall in the gamut of torturous activities which are prohibited in the domain of international law. Yet, India has failed to implement a comprehensive regime to confront this pernicious issue.
International Conventions and the Indian Scenario
Committing torture is a grave breach of humanitarian law. Article 1 of the UNCAT identifies three elements which constitute torture –
1. Intentional infliction of severe pain or suffering;2. For a specific purpose, such as to obtain information, as punishment, or to intimidate, or for any reason based on discrimination;3. By or at the instigation of or with the consent or acquiescence of State authorities.
The Human Rights Commission (HRC) has extensively appraised the issue that whether a particular treatment constitutes a violation of Article 7 of the ICCPR. The HRC held that it would fundamentally depend on all the circumstances of the case. Further, Article 10 of the Covenant prohibits torture and ill-treatment. These practices harm the physical and mental integrity of an individual and expose them to pain, community degradation and humiliation.
India has been a signatory to UNCAT since 1997, but it remains one of the nine countries in the world which have not ratified this Convention. This Convention requires nations to take effective steps to prevent torture within their territorial limits and forbids the State actors to send its citizens to countries where they may be tortured.
Keeping in lines with its international obligation, the Parliament of India introduced the Prevention of Torture Bill, 2017, but the Bill is characterized by insufficiency and ineffectiveness. It reflects the misconceptions in the criminal justice system of India regarding the belief that torture aids in conducting fruitful investigations. The Bill is met with a great abyss in terms of defining torture and leaves the ambit of interpretation upon judicial discretion, which can significantly render the prevention of torture ineffective. The Bill provides under Section 3 that an act which causes grievous hurt or danger to life is prohibited. This leads to the conclusion that simple hurt and mental agony do not make the cut to be qualified as torture. This signifies how the concept of mental torture is entirely neglected by the legislature of the country. The aspects of mental health and turmoil needs to be included in the ambit of torture along with physical violence. The Apex Court in D.K. Basu v. State of West Bengal observed, and it will be relevant to quote verbatim:
In all custodial crimes that is of real concern is not only infliction of body pain but 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 a person experiences is beyond the purview of law.
Moreover, since the Bill expressly mentions grievous hurt, it has entrenched a very high standard of physical injury required. This would result in torture being committed in a controlled way as the acts which are considered to be more gruesome would be noticed, whereas the acts which fall into the category of ‘milder’ form of torture would be overlooked. Another aspect to be discerned is the use of the word “intentionally” under Section 3, thereby providing that establishing proof against the public servant will be difficult as the animus or mens rea has been brought into consideration. It is because of these fundamental loopholes and skewed definition of torture that the Bill remains hugely inadequate to tackle the menace of torture.
A petition under Article 32 of the Indian Constitution seeking an effective and purposive legislative framework and law against custodial torture was instituted in the Apex Court. The Bench observed that Article 51(c) and Article 253 of the Indian Constitution underscore the constitutional imperative of aligning domestic laws with international law and obligations. But it held that it does not hold power under judicial review to issue directions to the Centre to enact laws in compliance with international principles.
The Roman dilemma: “Who will guard the guardians”, the so-called “rakshak bhakshak” syndrome needs to be subjected to stringent scrutiny. Torture is anathema to democracy, and does not seem soluble even today, despite the progressive steps taken by the Supreme Court in cases like Joginder Kumar (1994) and Nilabati Behera (1993) to grapple with the core issue.
Recently the Supreme Court ordered the Central, States and Union Territories to mandatorily install CCTVs in police stations and offices of other agencies. But this would be another superfluous attempt to address the conundrum of custodial violence since practically, these acts of violence often take place outside the police establishments.
The absence of a suitable legislation provides a leeway for crimes to permeate or for illegalities to sustain, and is a threatening fault line running through the criminal justice system. It is high time that the State listens to the death knell of torture that rings vociferously with the passage of time. In this light, it is suggested that –
Firstly, there needs to be an impetus on the part of the Government to ratify the treaty so that the Constitutional imperative to cater to this menace strengthens. Ratification is a strong consensual signal in the international space that the State agrees to be bound by a treaty. The State is then met with an international obligation to frame necessary legislations to give effect to the fulcrum of the treaty.
Secondly, there is a need for bringing in a purposive legislation which provides a wider gamut of consideration. The Prevention of Torture Bill, 2017 painfully limits the ambit of torture and therefore, it cannot meet the threshold required by the international conventions. In this light, a holistic legislative framework needs to be drafted which is inclusive of every aspect related to torture so that the Fundamental Rights of an individual are not violated under the cloak of technical inconsistencies.
Thirdly, the gradations that are prescribed for torture need to be either removed or confined to ingredients of a legal provision. These gradations allow violence to persist and swiftly fall into the peg hole of acceptable treatment. This gradation also entirely excludes mental torture. This gives a leeway for the officials to systematically inflict harm, thereby bypassing any liability for the violence.
Lastly, there should be an appointment of a member of legal aid cell in the police stations to ensure that the accused persons receive humane treatment. It is noted in most cases that the police officials overstep their area of operation since the victims of torture are significantly ignorant of their rights. In such a scenario, it becomes crucial that legal aid is readily available to a person so that the arbitrary action of the officials does not infringe the Fundamental Rights which form part of the Constitutional scheme.
The practice of torture is antithetical to the democratic edifice of a country. It quells dissent and diversity. The State is required to sternly address to the problem and endeavour to weed out the poisonous elements which impede the functioning of an efficient criminal justice system. There is a dire need for international condemnation and threat of sanctions to completely extinguish this practice, and provide propulsion to the States to abide by the international obligations.