In a recent judgment, the Supreme Court stated that “when the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern”. A recently-reported case of torture is of Jayaraj in Tamil Nadu. Very few victims get justice. Most of them are not reported and the reported cases die because of weak mechanisms to deal with them. I take this opportunity to suggest reforms to the Government of India-constituted five-member committee, meant to propose reforms to criminal laws.
The mandate of the government to the committee is not available in the public domain. Only the broad terms, drawn by the committee itself, are available. It is not known, out of the large number of issues, which areas shall be on the agenda. The broad terms are enough to consider anything or ignore everything. Pertinently, the specific issue of “preventive criminalisation of acts or omissions, including attempt” is mentioned but the term “custodial torture” is missing in the broad terms.
There are two provisions in the Constitution in this regard. Article 20(3), a pro-liberty provision, protects an accused of any offence from being a witness against himself. Article 22(4) regulates the preventive detention of a person by permitting it under certain circumstances. Allowance of preventive detention is an anti-liberty concept and such a provision is rarely found in constitutions of modern democracies. Article 20(3) is the safeguard against custodial torture.
It is surprising that instead of focussing on an area that requires comprehensive legislation, which is an important pro-liberty issue, relatable to Article 20(3), the committee has chosen to outline the term “preventive criminalisation”, which will be anti-libertarian although a harsh law, the National Security Act, is already in force.
In 1980, the Supreme Court said it was “deeply disturbed by the diabolical recurrence of police torture”. Again in the D K Basu case in 1997, it said that “the word torture today has become synonymous with the darker side of the human civilisation” and also declared protection from torture “within the inhibition of Article 21” — the right to life. There are statutory provisions in the Code of Criminal Procedure, 1973 and the Evidence Act to assure that torture is avoided but the same have seemingly failed to tackle the issue.
The dignity of an individual is “natural” and ingrained in a human being, an inalienable command of the respect of persons. It cannot be understood to be a right available at the mercy of the state’s mechanism. With the most comprehensive Constitution, we have no comprehensive legislation to deal with horrendous acts of torture. We have comprehensive legislative mechanisms to deal with harassment of women in the workplace and rightly so; negligent driving causing harm to bodily injury; domestic violence and even the prevention of cruelty to animals. Our system has not considered the issue of torture serious enough to bring about a comprehensive law to ensure discipline in the functioning of the police, which derives its powers from the colonial-era Police Act of 1861.
According to a report published by a voluntary organisation, the National Campaign Against Torture, in 2019, 117 people died in police custody and 1,606 died in judicial custody. It noted that “most deaths in police custody occur primarily as a result of torture”. The methods of torture used in 2019 included hammering iron nails into the body, stretching legs apart, striking genitals, stripping, waterboarding, electric shocks, and even more horrific examples. These victims of custodial torture are mostly left “damaged” for life, unable to find closure, justice or even the treatment they need in its aftermath. According to the National Crime Records Bureau, custodial deaths have increased by 9 per cent from 92 in 2016 to 100 in 2017.
The Lok Sabha had passed the Prevention of Torture Bill, 2010, wherein “torture” was expanded to include food deprivation, forcible feeding, sleep deprivation, sound bombardment, electric shocks, cigarette burning, and other acts. The Indian police force uses these techniques. A Select Committee of Parliament endorsed the Bill and made some positive recommendations for rehabilitation, compensation and witness protection. Upon the lapse of this Bill, in 2017, another Bill on torture was brought out which changed the essence of the proposed mechanism of the 2010 Bill. Every possible change that can dilute the culpability of the accused, making the detainee vulnerable, has been brought about in the more recent Bill.
Our large network of institutions is weak and dependent on the police system. Perhaps that is the reason we cannot take appropriate action against this menace. Law-making in India has been very weak when it comes to fixing the accountability of people occupying public posts, including the police. I hope the committee will take this issue seriously and tells policy-makers how an effective law, in line with the 2017 Bill, is the need of the hour.
The writer is advocate on record, Supreme Court of India