Custodial torture is the infliction of physical or mental pain or suffering on a person who is in the custody of the police or other authorities. It is a grave violation of human rights and dignity and often leads to custodial deaths, which are deaths that occur while a person is in custody. Death in police custody is perhaps one of the worst kind of crimes in a civilized society and poses a serious threat to an orderly civilized society.
Types of Custodial Death:
Death in Police Custody: Death in police custody can result from excessive force, torture, denial of medical care, or other forms of abuse.
Death in Judicial Custody: Death in judicial custody may occur due to overcrowding, poor hygiene, lack of medical facilities, inmate violence, or suicide.
Death in the Custody of Army or Paramilitary Forces: Can happen through torture, extra-judicial killings, encounters, or crossfire incidents.
International Conventions for Human Rights.
International Human Rights Law, 1948: The International Human Rights Law contains a provision which protects people from torture and other enforced disappearances.
United Nation Charter, 1945:
The United Nations Charter calls for treating prisoners with dignity. The Charter clearly states that despite being prisoners, their fundamental freedoms and human rights as set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are to be protected.
Custodial violence, torture and abuse of police power is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity.
The Universal Declaration of Human Rights in 1948 marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in
Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
Protectors of peoples’ rights and yet -men in uniform to settle personal scores.
Article 21 mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.
Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person.
No torture and custodial violence can be permitted to defy the rights flowing from the Constitution. Atrocities perpetuated by the protectors of law. Custodial torture being crime against humanity which directly infracts and violates Article 21 of the Constitution,
Celebrated decision in D.K. Basu v. State of West Bengal (1997 )directions/ guidelines with respect to rights/custodial torture were issued however it seems that the inhuman approach in dealing with persons in custody has not come to an end.
Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues – . The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable.
Unless stern measures are required to be taken to check the malady. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself.
Jurisprudence -for providing compensation for the unconstitutional deprivation of fundamental right to life and liberty as a public remedy in addition to claims in private law for damages by tortuous acts of public servants.
Dr Ashwini Kumar vs Union Of India Ministry Of Home( 2019)
A recent Judgement of the Supreme Court discussed the need of a separate law against custodial torture. The petition made demand for direction for entirely separate legislation for the Country which deals with Custodial Torture.
Enacting comprehensive legislation explicitly criminalizing custodial torture.
Ensuring prompt and impartial investigations into allegations of custodial torture.
Holding perpetrators accountable through fair and expeditious trials.
Police Reforms and Sensitization:
Enhancing police training programs to emphasize respect for human rights and dignity.
Promoting a culture of accountability, professionalism, and empathy within law enforcement agencies.
Establishing oversight mechanisms to monitor and address cases of custodial torture effectively.
Empowering Civil Society and Human Rights Organizations:
Prem Shankar Shukla v. Delhi Administration,(AIR 1980 SC 1535)
Prisoner in the Tihar Jail, sent a telegram to the Court protesting against the humiliation and torture. The Court held that the blurred area of 'detention jurisprudence' where considerations of prevention of escape and a personhood of prisoner come into conflict, Court considered Article 5 ( Art. 5 --No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.) of the Universal Declaration of Human Rights, 1948, all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
The Role of the Law Commission of India in Reforming the Criminal Legal System: Addressing Torture
Introduction
The Law Commission of India has played a pivotal role in reforming India's legal framework, including addressing critical issues such as custodial torture. Torture, particularly in police custody, remains a grave concern in India, undermining constitutional protections and human rights. While India is a signatory to the United Nations Convention Against Torture (UNCAT), it has yet to ratify it, leaving gaps in its domestic legal framework. The Law Commission has made significant recommendations to bridge these gaps and align India's laws with international standards.
Law Commission's Contributions on Torture
The Law Commission of India has addressed torture through various reports, most notably its 273rd Report (2017) and 152nd Report (1994), which proposed comprehensive reforms to prevent custodial torture and ensure accountability.
273rd Report: UNCAT Implementation
The 273rd Report focused on India's obligations under UNCAT and recommended the enactment of standalone anti-torture legislation. Key proposals included:
Definition of Torture: Expanding the definition to include physical, mental, or psychological injuries caused intentionally or involuntarily by public servants or individuals acting with their consent.
Punishments: Stringent penalties for acts of torture, including life imprisonment and fines for severe cases.
Compensation for Victims: Courts were advised to award compensation based on the nature, extent, and socio-economic background of victims to cover medical treatment and rehabilitation.
Burden of Proof: Amendments to the Indian Evidence Act were recommended to presume injuries sustained in custody as inflicted by police unless proven otherwise.
Protection Mechanisms: Effective measures to safeguard victims, complainants, and witnesses from threats or ill-treatment during trials.
152nd Report: Custodial Crimes
The 152nd Report highlighted systemic issues contributing to custodial torture, such as organizational flaws within the police force and inadequate safeguards during arrests. Recommendations included:
Splitting police functions into separate units for law enforcement and investigation to reduce conflicts of interest.
Amending procedural laws like the Code of Criminal Procedure and Indian Penal Code to strengthen safeguards against custodial violence.
Introducing mandatory medical examinations for arrested persons and ensuring accountability for officers involved in custodial crimes.
Challenges in Implementation
Despite these recommendations, several hurdles persist:
Delay in Ratifying UNCAT: India's reluctance to ratify UNCAT stems from concerns about international scrutiny and the absence of enabling domestic legislation.
Lack of Comprehensive Legislation: The Prevention of Torture Bill, 2010, introduced in Parliament, failed due to its narrow scope and lack of alignment with international standards.
Weak Enforcement Mechanisms: Existing constitutional protections under Article 21 and judicial guidelines (e.g., D.K. Basu v. State of West Bengal) are often inadequately enforced.
Recommendations for Reform
To address these issues effectively, the following measures are essential:
Enactment of Anti-Torture Legislation: A robust Prevention of Torture law should be passed, incorporating stringent penalties, victim compensation mechanisms, and provisions for witness protection.
Ratification of UNCAT: Ratifying UNCAT would reinforce India's commitment to international human rights norms and facilitate extradition processes.
Police Reforms: Splitting investigative and law enforcement functions within the police force can reduce custodial violence and improve accountability.
Judicial Oversight: Magistrates should actively monitor investigations involving police custody to ensure compliance with legal safeguards.
Conclusion
The Law Commission of India has made significant contributions toward addressing custodial torture by proposing legislative reforms, enhancing accountability mechanisms, and advocating alignment with international standards. However, the government's reluctance to implement these recommendations fully undermines progress. Enacting comprehensive anti-torture legislation and ratifying UNCAT are imperative steps toward eliminating custodial violence and upholding India's constitutional commitment to human dignity.
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