In 2017, EPW ran a report which said, “..where there were no cameras, they were assaulted with wooden logs and pipes. They were forced to do 500 sit- ups without break and kneel down for a long time. A few of them were tonsured and abused as well,” and in the same year, Times Now reported, “..convicts in Uttar Pradesh’s Hamirpur District Jail have been mercilessly whipping under-trials with leather belts even as the jailor watches without intervening.”
Reports by both government entities and civil society organisations over the years has proved that custodial torture is endemic in India. In fact, the Law Commission of India, shocked at the proliferation of custodial torture, recommended in its 273rd report that those state agents accused of committing custodial torture – be it policemen, military and paramilitary personnel– should be criminally prosecuted instead of facing mere administrative action.
What the Statistics Say
Based on figures placed by the Union Ministry of Home Affairs before the Rajya Sabha on 14th March 2018, a report entitled ‘Torture Update India’ provides some appalling statistics. According to the report, 1,674 custodial deaths took place from April 2017 to February 2018, which turns out to be over five custodial deaths a day.
The Need for Ratification of UNCAT
Though India had signed the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1997, it is yet to ratify it. Efforts to bring a law against torture had failed. The government has been urged by the National Human Rights Commission (NHRC) to recognise torture as a separate crime and codify the punishment in a separate penal law. With India vying for a seat at the security council, the issue has assumed importance. Going by this instance, India’s commitment to preventing and abolishing torture as well as punishing its perpetrators is perceived as extremely weak in the international forum.
Non-ratification of the UNCAT has also resulted in India not being able to get many fugitives extradited and making them face the law. Vijay Mallya is the latest fugitive to have used this loophole to argue against his extradition. India has requested for extradition of a number of offenders from other countries, and the absence of an anti-torture law may prevent these countries from acceding to India’s requests.
The use of excessive force including torture is also specifically used to target marginalised communities and control people participating in movements or propagating ideologies which the state perceives as opposed to its stature. Post 9/11 and the “war on terror”, society has accepted any kind of treatment towards people of certain identities that are part of the “dangerous other” in the name of prevention of terrorism. And this terrorism discourse has added Muslims and other minorities into this category.
The Prevention of Custodial Torture Bill 2018
Giving credence to the need of the hour, Member of Parliament representing Arunachal East Shri Ninong Ering had introduced the Prevention of Custodial Torture Bill to provide for punishment for torture, other cruel, inhuman or degrading treatment inflicted by public servants, or any person with the consent of any public servant, on those in custody.
Definition of torture:
The Bill defines what ‘torture’ is. Although some provisions relating to the matter exist in the Indian Penal Code 1860, they neither define “torture” as clearly as this Bill does. Article 3 of the Bill says that whoever, being a public servant or with the consent of the public servant, intentionally inflicts on any person grievous hurt or suffering (whether physical or mental), or danger to life, property, limb or health, commits the offence of torture.
Punishment to the Convict, Compensation to the Victim:
This Bill sets out the punishment for the convict as not be less than three years, but extendable upto seven years and shall also be liable to fine. Where death is caused due to torture, the convict shall be punishable with death or imprisonment for life. More importantly, the victim will be entitled to any fine imposed under this section.
For the purpose of providing speedy trial, the Court of Session shall make an endeavour to conclude the trial within a period of one year from the date of cognizance of the offence. Moreover, the Bill states that no court shall take cognizance of an offence under this Act unless the complaint is made with in a period of three months from the date on which the offence is purported to have been committed.
Burden of Proof Placed on the Police:
If there is evidence that torture was inflicted during a period when that person was in the custody of the police, the court may presume that the death or injury was inflicted by the police officer having custody of that person during that period.
The Bill directs the State to ensure proper medical examination of every person remanded to custody in jail and the report of such medical examination to be transmitted to the concerned Court of Sessions.
The Way Forward
When we focus on developing and enacting legislation of this stature, the ends of justice are fully served and the values of our Constitution, our laws, and treaty obligations are brought to bear to end the impunity of those who may engage in this practice. While enacting a law prohibiting torture is both a moral necessity and a pragmatic imperative, equally important is to repair our centuries-old system of prisons. To ensure that prison conditions are in tune with human rights norms, there is a need to render conditions within prisons less harsh and more humane where inmates are accommodated with due regard to their basic human needs and are handled with dignity. To break the silence surrounding torture and to reform India’s criminal justice system at large, there can be no further delay in taking such legislative measures.
About the author: Vaibhavi and Mordhwaj were Research interns at Office of MP Ninong Ering and worked under the guidance of Abhishek Ranjan, Research & Policy Analyst and Vijay Tyagi, Ex-LAMP Fellow )
Also Read: Know An MP’s Fight To Include Isolated Tribes In ST List Through Private Member’s Bill & Significance Of It