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Anti-Torture and Custodial Death

Our constitution has embedded fundamental rights to ensure certain fundamental freedoms rights and liberties to our citizens, and several establishments like Human Rights Commission, NGOs are making commendable efforts to ensure the common man's access to and exercise of such rights. And one such issue which was highlighted by National Human Rights Commission is Anti torture practice and custodial deaths in India. Complaints of deaths in police detention facilities have been made in large numbers to the National Human Rights Commission, and the protection of civil liberty has been high on its agenda.

It has been noted that the number of deaths in police detention facilities has increased over the last few decades. Many people have died in detention, but no one has been held accountable. In India, police lock-ups are entirely managed by police officers, and such incidents are only possible as a result of their actions. Justice V.R. Krishna Iyer1., very well said that:
Today the society has nearly succumbed to the syndrome of lawless tensions, psychic penury, and miseries of conflict, at individual, domestic, local, national and international levels. The legal mutiny far from salvaging man is gnawing at him from within. Incarceration barbarity has been validated by the popular retributive- deterrent philosophy, this is a current sentencing coin in many criminal jurisdictions.

Custodial Deaths in India:
The Indian government tolerates torture in police detention facilities, deeming it necessary for the administration of justice while ensuring unchecked power for law enforcement. It is widely assumed that the judiciary will be in charge of the court lock-ups. Although it is clear that even magistrates rely on police officers to carry out their judicial functions. The fact that police officers have enormous judicial powers is at the root of all evil.

Their job begins with the arrest and continues until the arrestee is convicted. Reports have revealed that practically the independence of the judiciary has not been maintained. This is interpreted as a violation of the Constitution's principles of the Right to life and personal dignity and goes against the purpose of the Criminal Procedure Code, 1973, which establishes the judiciary as separate from the rest of the government.

According to the India Annual Report on Torture 2019 2, there were 1,731 deaths in custody in India. There were 1,606 people who died in judicial custody and 125 who died in police custody. The report focuses on the most common forms of torture, such as electric shock, hammering nails into the body, branding with a hot iron, inserting rods into the body, forcing legs apart, hanging upside down, and merciless beating, among other things.

These are some of the heinous treatments that a person who dies in custody is frequently subjected to. Generally, it is seen that the majority of these people are from oppressed groups who lack the economic and social resources to fight police atrocities.

An important part has been upheld on this subject matter in the case of DK Basu v. State of Bengal 3

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.

Legal Provision:
The Indian Constitution, the Code of Criminal Procedure of 1872, and the Indian Evidence Act4 all include safeguards to protect the rights of the accused. The IPC5 contains some legal provisions for the prevention of torture, such as those relating to causing harm or grievous harm in order to extract confessions, criminal intimidation, and wrongful confinement.

Moreover, various safeguards against custodial torture and detention are available which are as follows- Article 20(1); Article 20(2); Article 20(3) of the Indian Constitution. Other than these, there are various provisions under the Indian Penal Code (Section 348), Indian Evidence Act (Section 24, 25, and 26) as well as under the Code of Criminal Procedure, 1973 ( Section 164(4) ).

However, the majority of people believe that this is insufficient. A specific and stable law would be a far better option for persuading the community and expressing our solidarity for the protection of human rights and the prevention of torture. An attempt was made in this regard when the anti-torture law was passed in the Lower House in 20106. However, it was referred to the Rajya Sabha Select Committee, which recommended substantial changes. The bill then lapsed, and according to the Central Government's version, it is now with the Law Commission for its consideration.

It is high time for the Indian Legal system for a strict system that criminalizes torture which provides for harsh punishment for abusers and provides the necessary opportunity for victims to express their concerns and remedy, compensatory damages, and rehabilitation to be passed and enacted in accordance with the provisions as early as possible.

International Provision on Torture:
Following the brutality of World War II, the United Nations General Assembly included a prohibition on torture in the pioneer Universal Declaration of Human Rights in 1948. Article 57 of the Universal Declaration of Human Rights states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Also, UN General Assembly adopted The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 8 which 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 third person information or a confessionů."

It may be:
Inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity.

Conformity to international principles on the protection of human rights and the prevention of torture is required for any country to transform into a regime of freedom, independence, humanity, and compassion, as well as hold directly responsible officials, whether from the police, army, or paramilitary police, accountable for their deeds.

It is also necessary to establish an environment in which the criminal justice system can function without relying on harsh detention and create better community participation. It is worth noting that the Supreme Court has recognized that international treaties and covenants dealing with torture should have domestic jurisprudence.

In Chairman, Railway Board vs. Chandrima Das 9 the Supreme Court observed that "the principles of the Universal Declaration of Human Rights are very much relevant in the context of safeguarding our fundamental rights of life and liberty."

Also in Peoples' Union for Civil Liberties v. Union of India 10, the Supreme Court stated that "the provisions of the Covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those fundamental rights and hence, enforceable as such."

In light of these issues, it is worth noting that India is one of the few countries that has not ratified the UN Convention Against Torture, which sets us up for the protection of human rights in our country. India does not have a separate anti-torture law, and ratifying it would necessitate the formation of such a law.

Conclusion:
India is a welfare system governed by its Constitution, which guarantees citizens' life and personal liberty in a broad sense, and persons in custody in particular. However, the increasing burden of custodial crimes in various parts of the country is causing grave concern. Grievances of abuse of power and torture of accused persons held in custody by police and other law enforcement agencies with the authority to detain a person for investigation in connection with the interrogation of an offender are on the rise.

Custodial crimes are particularly heinous when compared to other types of crimes because they represent a deception of custodial trust by a public servant against vulnerable citizens in custody. As a result, it is imperative that laws that will help to curb such incidents be put in place as soon as possible.

Endnotes:
  1. V.R. Krishna Iyer: Constitutional Miscellany, 2nd Edition(2003) p. 149,151.
  2. India: Annual Report on Torture 2019; Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
  3. DK Basu v. the State of Bengal (1991) 1 SCC 416
  4. Indian Evidence Act 1872, Act No. 01 of 1872. Section 114(1), 114B (1) In a prosecution (of a police officer) for an offense constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period."
  5. Indian Penal Code, 1860, Act No. 45 of 1860; Section 330, Indian Pena Code: Voluntarily causing hurt to extort confession or to compel restoration of property. Section 331, Indian Pena Code, 1860: Voluntarily causing grievous hurt to extort confession or to compel restoration of property
  6. Why we need an anti-torture law, Published at-The Hindu; Available at: https://www.thehindu.com/opinion/editorial/Why-we-need-an-anti-torture-law/article16371587.ece
  7. Available at: https://www.humanrights.com/course/lesson/articles-01-05/read-article-5.html
  8. Available at: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx
  9. Chairman, Railway Board vs. Chandrima Das, AIR 2000 SC 988
  10. Peoples' Union for Civil Liberties v. Union of India, AIR 2005 SC 2419

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