Insights into Editorial: Reality of impunity, rhetoric of human rights
In recent issue in Sitamarhi district, Bihar, two families received the bodies of their two sons from the police.
The two men were questioned at the Dumra police station for a case of theft and murder in the area.
Instead, they came back dead. The ritual bathing revealed torture tell-tale marks of nails hammered into their thighs and wrists.
Torture is a form of crudity and a barbarity which appals modern civilisation.
The history of torture throughout the ages reveals that torture was employed by various communities either in their religious rites or its code of punishment.
Absence of torture law endangers constitutional rights of people:
The original petition submitted that “by virtue of Article 51 of the Constitution of India, an international obligation is cast upon India to prevent custodial violence and torture” since India was a signatory to the 1997 convention.
The Central Government vide its letter on 8th July, 2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.
Data related to Police Custody and Physical Torture:
Official statistics show that last year there were 144 deaths in police custody.
About 40% of complaints received every year by the NHRC are against the police, mainly for custodial violence. It is forbidden by law. It makes people to lose trust in police.
It destroys the process of decision making through evidence-based means, whether the accused is the real perpetrator or not.
Centre should have a comprehensive and stand-alone legislation against Torture.
The Law Commission has suggested that the State should not claim immunity from the actions of its officers or agents.
Custodial torture violated Human Dignity: Need for a Legislative Protection:
The Prevention of Torture Bill was first introduced and passed in the Lok Sabha in 2010.
In August 2010, it was referred to a select committee of parliament, which was chaired by Kumar and comprised 13 members of Rajya Sabha.
Kumar submitted that “after long and comprehensive deliberations, we unanimously proposed a standalone legislation against torture so as to comply with the requirements of UN Convention on Torture.”
Subsequently, the Prevention of Torture Bill, 2017 was appended to the Law Commission Report.
According to analysts, the proposed text largely followed the recommendations of the select committee of the Rajya Sabha. However, there were some differences, too especially in “what constitutes torture.”
Recent petition before the Supreme Court stated that custodial torture was a naked violation of human dignity and degradation that destroys the self-esteem of the victim.
It said: “Since there is no scientific method of investigation, torture remains integral to the investigation to obtain confessions from suspects.
Despite the guarantee under Article 21 and directions from the apex court, it pointed out there were “no checks and balances against the personnel who commit custodial torture” and thus “an intervention from Judiciary has become imperative.”
However, despite the commitment, it charged, “the entire constitutional framework, the legislature and executive in India have abjectly failed to discharge their constitutional obligations.”
The absence of a standalone, comprehensive and purposeful municipal legislation for the prevention of custodial violence, “has resulted in a disturbing void in law endangering the constitutional right of persons”.
Need for “Comprehensive Torture Prevention Law”:
The right to freedom from torture is enshrined in number of human rights instruments which provide for protection of all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, such as to obtain information.
The prohibition of torture and other cruel, inhuman or degrading treatment is enshrined in many regional and universal human rights instruments.
The Supreme Court, in last month, reserved its judgment on former Union Law Minister and Senior Advocate Ashwani Kumar’s PIL for an effective and purposeful legislation to check instances of custodial torture.
The International Commission of Jurists has criticized India’s failure to tackle issues of torture and unaccountability of armed forces.
According to the Report of the Working Group on Human Rights in India, torture and ill-treatment are widespread in India. The report has also called for immediate intervention by the government against torture.
In May 2017, addressing representatives from countries at the UN’s Human Rights Council, the then Attorney General of India said, “The concept of torture is completely alien to our culture and it has no place in the governance of the nation.”
The prohibition of torture is a part of customary international law and is a part of compelling law.
Inclusion of extradition prohibitions in the Torture Convention enjoins more States to ensure accountability worldwide for acts of torture.
Some of the Isolated innovations are happened here and there. But they are not enough and torture is embedded itself in the sub-culture of policing.
For Instance, Kerala Police Act puts the onus on all police officers to report any physical torture they know of. Prisons in Telangana refuse to admit people brought into judicial custody, if they appear injured. Such persons are sent back to hospitals, forcing their injuries to be properly recorded.
Therefore, there is a need for “Comprehensive Torture Prevention Law”, which puts certain bar on physical and mental torture especially for depressed sections of the society.