Source: DH
Subject: Governance
Context: Despite recorded custodial deaths of over five persons per day in India, a comprehensive anti-torture law remains elusive, with the most recent legislative attempt having lapsed in Parliament.
- Current discussions highlight India’s failure to ratify the UN Convention Against Torture (UNCAT) and the lack of a legal definition for torture in the Indian Penal Code.
About Custodial Death in India:
What it is?
- Custodial death refers to the death of a person while in the custody of law enforcement agencies (Police or Judicial/Prison custody). It is often the result of excessive use of force, torture, medical negligence, or poor conditions of confinement, representing one of the most severe violations of the Fundamental Right to Life and Dignity under Article 21 of the Indian Constitution.
Data & Stats on Custodial Death:
- Frequency: India recorded 11,419 custodial deaths between 2016-17 and 2021-22, averaging more than five deaths every day.
- Low Conviction Rate: National Crime Records Bureau (NCRB) data shows that from 2018 to 2021, not a single police official was convicted for custodial deaths.
- Under-reporting: While the NHRC receives thousands of complaints, a vast majority of staged encounters or deaths in rural lockups go unreported as custodial torture.
- International Standing: India is one of the few major democracies that has signed (1997) but not ratified the UN Convention Against Torture (UNCAT).
- Demographics: A disproportionate number of custodial victims belong to marginalized communities, including Dalits, Adivasis, and religious minorities.
Factors Leading to Rising Custodial Death:
- Culture of Impunity: Police officials often feel protected by institutional support and slow legal processes.
Example: The lack of a single conviction between 2018 and 2021 emboldens officials to use third-degree methods without fear of consequences.
- Coercive Interrogation Protocols: Extracting confessions is often treated as the primary method of solving crimes.
Example: Despite confessions to police being inadmissible in court, they are still used to discover evidence, leading to physical abuse during interrogation.
- Institutional Whitewashing: Internal inquiries often protect the accused rather than seeking the truth.
Example: Departmental inquiries are frequently conducted by colleagues of the accused, leading to clean chits and the suppression of transparent autopsy reports.
- Lack of Specialized Legislation: The absence of a specific Anti-Torture Law creates a legal vacuum.
Example: The IPC does not define torture, and existing sections (330, 331) only cover physical hurt for confession, leaving out mental agony and extra-judicial punishments.
- Normalization of Violence: Public and political narratives sometimes glorify instant justice or encounter culture.
Example: High-handed police action often receives tacit social approval, which discourages victims’ families from pursuing long, expensive legal battles against the state.
Supreme Court Judgments on Custodial Death:
- D.K. Basu vs. State of West Bengal (1997): The landmark judgment that laid down 11 mandatory guidelines for arrest and detention to prevent custodial torture.
- Nilabati Behera vs. State of Orissa (1993): Established that the state has a strict liability to pay compensation for the violation of the right to life in custody.
- Prakash Singh vs. Union of India (2006): Directed the setting up of a Police Complaints Authority (PCA) at the state and district levels to look into complaints of serious misconduct.
- Sube Singh vs. State of Haryana (2006): Rebalanced the state’s power by affirming that the sovereign immunity defense does not apply in cases of custodial torture.
- Paramvir Singh Saini vs. Baljit Singh (2020): Mandated the installation of CCTV cameras and recording equipment in all police stations across the country to ensure transparency.
Challenges Associated:
- Definitional Gaps: The current legal understanding of torture is too narrow.
Example: The lapsed 2010 Bill ignored mental torture and non-interrogation abuse, which are central to the UNCAT definition.
- Statutory Limitations: Filing complaints is often hindered by short windows of time.
Example: Previous draft bills proposed a six-month limitation period, which is insufficient for victims who are often too traumatized or intimidated to act immediately.
- Procedural Lapses: Crucial steps like independent autopsies are often bypassed.
Example: Without a binding legal obligation for a transparent, third-party autopsy, evidence of physical abuse is easily erased or altered.
- Weak Oversight: Bodies like the NHRC often lack proactive investigative teeth.
Example: The NHRC seldom pursues independent investigations into torture, often relying on the same police reports that are under question.
- Resource Constraints: Most police stations lack the infrastructure to comply with judicial mandates.
Example: The Supreme Court’s order to install functional CCTVs remains unfulfilled in thousands of stations due to budget and maintenance issues.
Way Ahead:
- Ratify UNCAT: India must move beyond being a signatory and ratify the UN Convention Against Torture to align domestic laws with global human rights standards.
- Enact Comprehensive Legislation: Pass a dedicated Anti-Torture Act that defines torture expansively, including mental and psychological abuse.
- Independent Investigation Agency: Create an independent oversight body, separate from the police, to investigate all cases of custodial death and torture.
- Strict Accountability: Implement command responsibility where senior officers are held accountable for the actions of their subordinates in lockups.
- Sensitization Training: Revamp police training to focus on scientific interrogation techniques (like forensic DNA and data analysis) rather than physical coercion.
Conclusion:
Torture is a relic of a colonial penal culture that has no place in a modern constitutional democracy. The rising toll of custodial deaths is a stark reminder that judicial guidelines alone cannot substitute for a robust, central anti-torture law. Until accountability is institutionalized and the dignity of detainees is safeguarded by statute, the promise of Article 21 will remain unfulfilled for the most vulnerable.
