Custodial Torture As A Blatant Violation Of Human Rights - A Critical Examination
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
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CUSTODIAL TORTURE AS A BLATANT VIOLATION OF
HUMAN RIGHTS: A CRITICAL EXAMINATION
Aditya Soni, O.P. Jindal University
ABSTRACT
Custodial torture, a repugnant act in which people intentionally subjected to physical, mental, or psychological suffering while in the custody of law enforcement, represents a pervasive and alarming violation of human rights that reverberates throughout communities all over the world. This pervasive phenomena impacts individuals without discrimination, beyond distinctions of gender, age, or health condition. Despite arguments that attempts to justify the use of custodial torture as a strategy to combat crime rates, it is crucial to recognise that this inhuman practise has become deeply ingrained within the system and is carried out with the support of the government. This research paper performs a critical analysis of custodial torture specifically in India with an emphasis on its legal frameworks, difficulties, and preventative measures at the national levels.
This paper critically examines the national legislative framework and compliance in India, highlighting a significant discrepancy between the existing legal measures that criminalize custodial torture and their actual implementation. This clear incongruity is underscored by the use of cases and reports such as the case of Dagdu v State of Maharashtra (1977), State of Madhya Pradesh v. Shyamsunder Trivedi (1995), DK Basu V. State of West Bengal (1996), and NCRB reports, so highlighting the pressing need to rectify this disparity. This research delves further into the complex challenges associated with avoiding and solving the problem of custodial torture in India. It specifically examines the concerns related to police immunity, accountability, and societal expectations.
We are also going to discuss important interntional legal framework and treaties regarding Custodial torture including United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), niversal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). In conclusion, this research paper not only analyses the aforementioned issues, but also provides suggestions and strategies with the objective of effectively addressing the underlying factors contributing to custodial torture in India. The objective is to proactively prevent more transgressions against human rights, therefore progressing towards a future in which the practise of custodial torture becomes a relic of the past.
Moreover, it emphasizes the pivotal role of accountability mechanisms in deterring custodial torture, highlighting the imperative need for transparency and consequences for those responsible. Through this analysis, the research paper seeks to provide profound insights into the pressing issue of custodial torture in India, offering a roadmap for effective strategies to combat this grave violation of human rights, while upholding the principles of justice and dignity for all. Introduction: Custodial torture refers to the deliberate infliction of physical, mental, or psychological pain and suffering upon those who are under the custody of law enforcement. This atrocious violation of human rights casts a pervasive and alarming impact not only on communities India but also around the globe. This pervasive phenomenon impacts individuals regardless of their gender, age, or health status.
The prevalence of this issue is particularly concerning in developing nations such as India, where there has been a significant increase in brutal crimes committed by law enforcement authorities. In spite of the contentions positing the prospective justification of custodial torture as a strategy to address crime rates, it is imperative to acknowledge that this practise has become embedded within the system and under the control of the state. Consequently, it fosters a process of normalisation and rationalisation of such acts of brutality, thereby fundamentally destroying the foundations of human rights. The individuals who experience prison torture often belong to socioeconomically disadvantaged and socially marginalized groups within society, such as scheduled castes and tribes, tribal women, migrant workers, and landless labourers.
These persons who are vulnerable suffer the full impact of custody torture, thus worsening their already disadvantaged position. The utilised tactics transcend the infliction of physical pain and encompass brutal practises, including the use of lit cigarettes to burn victims, insertion of items into sensitive body areas, and exposing individuals to acts of molestation and rape. Custodial torture has serious and varied effects on human rights. Article 21 of the Indian Constitution guarantees the right to life, which includes the right to live with dignity. The act under consideration denies victims access to basic necessities like food, clothing, and the freedom to speak. It dehumanises humans, making them passive victims of mistreatment and denying them their rights.
Furthermore, the use of custodial torture has a detrimental impact on the principles of justice and the integrity of legal systems. The situation in question serves to undermine the confidence of the general public in both law enforcement authorities and the judicial system at large. The occurrence of custodial torture can cause an initial sense of disbelief throughout society. However, the subsequent public outrage tends to fade rapidly, and the responsible law enforcement personnel frequently encounter little repercussions, such as temporary suspensions. 1 The absence of accountability contributes to the continuation of a culture characterised by impunity, thus facilitating the ongoing practise of custodial torture.
Even though custodial torture is acknowledged as a criminal offence under the Indian legal framework, as stipulated by many laws such as the Indian Penal Code, Criminal Procedure Code, and other relevant legislation, the disparity between legislative regulations and their successful implementation continues to be an ongoing obstacle. 2 Human rights, as outlined in international treaties and national constitutions, are formulated with the aim of safeguarding the fundamental dignity and welfare of each person. These rights cover basic ideals including the right to life, liberty, and personal security, the outlawry of torture and harsh, inhumane, or humiliating treatment or punishment, and the requirement of a fair trial.
The act of subjecting individuals to custodial torture and resulting deaths is a clear violation of these fundamental ideals, undermining the fundamental principles of a democratic and equitable society. The prevalence of custody torture and mortality in India has reached a concerning level, representing a persistent violation of human rights. Law enforcement agencies, which are entrusted with the duty of maintaining legal order and ensuring the protection of individuals, frequently abuse their power and participate in instances of torture. Through judicial and administrative procedures, custodial torture and deaths are hoped to be addressed. Police personnel convicted of custodial torture and deaths are suspended or punished administratively, like other normal citizens.
Nevertheless, the implementation of these measures has demonstrated little effectiveness in addressing the pervasive issue of custodial torture and deaths. It is crucial to implement comprehensive changes in order to effectively tackle the underlying reasons and deter the continued occurrence of these inhuman crimes. 1 Jinee Lokaneeta, Defining an Absence: Torture ‘Debate’ in India, 49 Econ. & Pol. Wkly. 69, 69–76 (2014), available at http://www. jstor. org/stable/24480533 (last visited Sept. 24, 2023). 2 R. S. Saini, Custodial Torture in Law and Practice with Reference to India, 36 J. Indian L. Inst. 166, 166–92 (1994), available at http://www. jstor. org/stable/43951530 (last visited Sept. 24, 2023).
The research objective is to examine the subject of custodial torture and its terrible consequences, including casualties. The current research critically examines custodial torture's structural and human rights aspects and proposes solutions to combat this grave violation and uphold justice and dignity for all. 3 THE PREVELANCE OF CUSTODIAL TORTURE The nation's conscience was shaken by the murder of Ankit Gurjar in Tihar jail, Delhi, and the abuse and torture of a father and son in Tuticorin, Tamilnadu. The question posed by Justice VR Krishna Iyer in 1980 regarding the oversight of law over police agencies has once again garnered attention in light of recent events. The problem of custodial torture in India has consistently been a significant concern within both legal and non-legal spheres.
In the wake of safeguarding the well-being of the state, it is imperative that the infringement upon individual freedoms by authorities is not allowed to occur unchecked. This is due to the principle that the welfare of the people is the highest law (salus populi est suprema lex) and that the welfare of the republic is the highest law (salus reipublicae suprema lex), which coexist harmoniously. The 2020 report published by the National Crime Record Bureau highlights the declining status of the Rule of Law in India. 4 Upon analysing the data spanning from 2010 to 2020, it is evident that a total of 1080 individuals have lost their life while in police custody. This data has been duly documented.
Numerous occurrences remain unreported for a variety of reasons, such as the reportee experiencing high levels of pressure, the deceased individual being abandoned, deaths occurring in distant locations, poverty, and settlements made with law enforcement personnel. The severity of these abhorrent crimes is heightened when we examine the data pertaining to registered cases, arrests made by law enforcement personnel, and the number of individuals formally charged by the police, all of which exhibit a significant deficiency. In the year 2010, a total of 82 instances of custodial death were reported, with 42 cases officially registered, accounting for nearly half of the total deaths. Unfortunately, there is a lack of available data regarding the number of arrests made in relation to the culpable police personnel. Out of the reported cases, only 26 police personnel were formally charged.
The situation worsened in 2013, as 133 individuals lost their lives while in police custody, yet only 71 cases 3 Chetanya Sharma, Genesis of Custodial Violence in India: A Critical Analysis, 3 Indian J. L. & Legal Rsch. II (n. d. ). 4 N. S. Kamboj, Police Custodial Death: A Growing Abuse to Human Rights in India, 36 J. Indian L. Inst. 372, 372–77 (1994), available at http://www. jstor. org/stable/43952351 (last visited Sept. 24, 2023). were officially registered. Shockingly, a mere 2 police personnel were charged in connection with these incidents. 5 In the case of Dagdu v State of Maharashtra (1977), the court incidentally references the act of subjecting a witness to torture, without delving into a comprehensive analysis of the matter. The normalisation of torture becomes apparent through the court's admission of the confession procured using coercive interrogation methods.
State of Madhya Pradesh v. Shyamsunder Trivedi (1995) -Here the Supreme Court discussed about this issue of custodial torture and its ramifications on human rights. The court stressed the need of ensuring accountability for authorities in cases of torture or violence committed while in custody, and emphasised the importance of protecting the rights of the accused. IMPUNITIES India became a signatory to the United Nations Convention Against Torture (UNCAT) in 1997, almost ten years subsequent to the Convention's adoption by the United Nations in 1984 (UNTC 1984). 6The UNCAT establishes a worldwide prohibition on torture and ensures governmental oversight and responsibility through monitoring mechanisms. Nevertheless, India has not yet ratified the agreement due to the lack of precise legislation that defines and enumerates punishments for torture.
There exist specific constitutional and procedural requirements, notably Article 21 of the Constitution and Sections 330 and 331 of the Indian Penal Code (IPC), which pertain to the issue of custodial assault and torture. Nevertheless, it has been determined that these provisions are insufficient. For example, according to the Indian Penal Code of 1860, it is legal to lodge a First Information Report (FIR) against a police officer found guilty of engaging in violent acts. However, the effectiveness of this provision is constrained due to the absence of a process for conducting an impartial investigation. The misuse of Section 197 of the Criminal Procedure Code (CrPC) has been observed in cases where the filing of First Information Reports (FIRs) against accused officer(s) has been prohibited (Kini, 2019).
In addition, it has been observed that Section 49 of the Code of Criminal Procedure (CrPC) and Section 46 of the Evidence Act of 1872, among
5 Available at URL
https://ncrb. gov. in/sites/default/files/CI12020%2OVolume%203. pdf, accessed on 19/11/2021 other relevant provisions, have demonstrated inadequacy in effectively addressing cases involving the use of deadly torture (Roy and Shubham 2019). The Supreme Court delivered a significant ruling in the case of DK Basu V. State of West Bengal (1996), wherein it upheld the rights of the individual being arrested and condemned unauthorised arrests or detentions. 7 The Court emphasised that custodial death is considered one of the most severe offences in a civilised society that adheres to the principles of the Rule of Law. According to Anand (1996), it is imperative to diligently and conscientiously safeguard the rights enshrined in Articles 21 and 22(1) of the Constitution.
Nevertheless, considering the aforementioned NHRC data and the conviction rate of police personnel implicated, it appears that the Supreme Court's ruling has not yielded the intended outcome. A noteworthy worry arises from the findings of the State of Policing Report 2019, which reveals that 20% of police professionals hold the view that eliminating dangerous offenders is preferable to subjecting them to a judicial trial (Common Cause and CSDS 2019). The aforementioned findings indicate a pressing necessity for the implementation of a unique and distinct legislation in India that specifically addresses the prevention of custodial violence and torture. HUMAN RIGHT RAMIFICATION Plenty of forms of custodial torture violate principle of human rights, including life and security. A person's right to life is violated when they die from police torture or abuse.
Custodial deaths occur when people are denied their lives without due process or legal reason, violating their right to life. Torture and cruel, brutal, or degrading treatment during incarceration also violate the right to security. Custodial torture includes physical assault, electric shocks, sexual assaults, and other forms of aggression. These activities cause serious physical and psychological harm and destroy safety and well-being. Custodial torture violates the right to a fair trial by different means: First, the right to a fair trial requires the presumption of innocence, which holds that people are innocent unless proven guilty. This undermines the assumption since custodial torture involves 7 Jitendra Mishra, Custodial Atrocities, Human Rights and the Judiciary, 47 J. Indian L. Inst. 508, 508–21 (2005), available at http://www. jstor. org/stable/43951999 (last visited Sept.
24, 2023). physical and psychological assault to force confessions for crimes they may not have committed. Their right to innocence unless proven guilty is violated. Second, the right to legal advice and aid is essential to a fair trial. However, custodial torture often occurs when people lack legal representation, preventing them from defending themselves and seeking legal guidance. Third, the right to due process includes a fair trial, including a fast and impartial hearing. Custodial torture can lead to coerced confessions that can be used as evidence in court. This violates their right to a fair trial. Fourthly, the right to a fair trial includes protection from torture and cruel, inhuman, or degrading treatment. This fundamental right is violated by custodial torture, which involves intentional bodily and psychological suffering.
The right to effective remedies, which include restitution for fundamental human rights violations, is another essential part of the right to a fair trial. Custodial torture often goes unpunished, allowing perpetrators to escape justice. This practise denies custodial torture victims legal recourse and compensation. HUMAN RIGHTS VIOLATION IN THE NAME OF NATIONAL SECURITY In addition to the call for addressing individuals who exhibit a high level of criminality and expertise, there are instances where the denial of fundamental human rights, such as the freedom from torture, is occasionally deemed justifiable on the basis of safeguarding national security.
There is a contention that the government bears a responsibility to counteract individuals involved in acts of terrorism, insurgency, and arson, as these activities jeopardise the lives of innocent individuals and pose a threat to national security through their violent and anti-national actions. The organisation is bestowed with extensive authority to address exceptional circumstances. In the given circumstance, it is unavoidable that there will be a departure from some rights and liberties. Furthermore, it is important to note that rights and liberties are not inherently absolute, devoid of any form of constraint, as such a scenario would result in a state of anarchy and disorder. The enjoyment of individual rights by man is contingent upon the presence of civil and social order within a given state.
The individual's ability to exercise their rights is impeded within a situation of anarchy. Therefore, the acquisition and utilisation of all privileges are contingent upon rational stipulations, including the preservation of public health, maintenance of peace and order, adherence to community morals, promotion of decency, and safeguarding national security. Restrictions on the fundamental rights of individuals are a prevalent feature in numerous constitutions worldwide, including the Indian Constitution. There is a widespread consensus in favour of implementing acceptable limitations on human rights. However, the state has infringed upon the rights and liberties of individuals in the pursuit of national security.
These infringements include actions such as the confiscation or nationalisation of private property, surveillance through wiretapping and mail interception, arbitrary search and seizure, indefinite arrest and detention, suspension of habeas corpus, expedited trials and executions, denial of judicial appeals, use of torture, concentration camps, and even the killing of suspects or accused individuals while in custody. Thus, human rights and national security collide. However, they may be linked. A charter of rights may not matter to people who live in anarchy. When a nation faces impending external threat or internal unrest, individual rights may be sacrificed. Human rights depend on strong national security. However, authoritarian or dictatorial regimes' repeated violations of human rights cause anger, frustration, and disappointment.
Thus, insurrection and internal unrest can undermine national security. The main question is whether national security can be achieved by sacrificing individual rights. In order to provide a comprehensive response, it is imperative to establish a clear understanding of the notion of national security and differentiate it from the security of a regime or individual. Similar to individuals, each state possesses the intrinsic right to engage in self-defense. The aforementioned entitlement is accessible to the state in every circumstance that poses a threat to its survival. In light of the circumstances, the government has the authority to employ extraordinary measures during a crisis, thereby departing from its customary duty to safeguard and uphold the fundamental rights of its people. The concept of derogation of state rights is recognised within several human rights frameworks.
However, it is important to note that while human rights and fundamental freedoms are not without limitations, the authority of the state to derogate from these rights is also subject to certain limitations. During a public emergency, it is imperative that certain rights remain unaltered. Regardless of the presence or absence of an emergency, it is impermissible to suspend these rights. The rights referred to as "nonderogable" including the right to life and the freedom from torture, are recognised and enshrined in many international treaties on human rights. The protection of national security shall not be exploited as a justification for the infringement of fundamental and non-derogable rights, such as the right to life and freedom from torture.
Under no circumstances, regardless of how dire the situation may seem, may these rights that are considered "non-derogable" be permitted to be derogated. The perpetuation of power among those in authority often occurs when derogation is initially justified, leading to a subsequent inclination to further restrict human rights under the pretext of national interest. CAUSES LEADING TO CUSTODIAL TORTURE
1. Police Subculture - The police subculture places a significant emphasis on traits such
as toughness and the projection of a macho image, so fostering an environment in which violence may be perceived as permissible or even indispensable. The existence of this subculture has the potential to give rise to a conflict of egos between law enforcement officials and incarcerated individuals, which may subsequently manifest in the form of unwarranted aggression or acts of torture. The prioritisation of control and dominance can supersede the adherence to human rights and appropriate protocols in the treatment of individuals under suspicion.
2. Public Misbehaviour with the Police - When people from the general population engage
in disrespectful or confrontational conduct towards law enforcement personnel, it has a chance to foster a climate of enmity and hostility between these two entities. The breakdown in communication and erosion of trust can contribute to an increased likelihood of law enforcement officers resorting to harsh or coercive tactics, such as the use of force or torture, in order to exercise their authority or address challenging circumstances.
3. Insufficient training and knowledge among law enforcement officials may lead to custodial
crimes in various ways: Limited understanding of human rights: Without proper training, law enforcement professionals may struggle to understand the need of upholding them. This may lead to a disregard for prisoners' rights, making them more likely to abuse them. • Lack of control over psychological and social factors can lead to stress and emotional intensity in custodial situations. Without proper training, law enforcement personnel may struggle to handle situations effectively, leading to the use of excessive force or violence. Limited understanding of alternatives also contributes to police aggression. By training and raising awareness, law enforcement can learn a variety of nonviolent approaches to handle difficult situations.
Sensitization training sessions can help police recognise abuse/mistreatment and foster empathy. Without proper training, law enforcement may overlook custodial offences, allowing misconduct to continue unchecked. Additionally, police officers may reinforce negative attitudes and biases. However, training and sensitization can solve this issue. These programmes confront and address police biases.
LEGAL FRAMEWORK
ICCPR - The International Covenant on Civil and Political Rights guarantees several rights to people, including prisoners. Article 7 of the ICCPR prohibits torture and cruel, inhuman, or degrading treatment or punishment. Article 10 of the international legal system mandates that prisoners will be treated with humanity and dignity. Indian Constitution – It grants certain rights to individuals who are imprisoned, under suspicion, or facing criminal charges. The right to life and personal liberty, as enshrined in Article 21, encompasses the entitlement to be exempt from any form of torture or treatment that is deemed cruel, inhuman, or humiliating. The Indian Evidence Act of 1872 encompasses measures that safeguard the rights of individuals who are suspected or accused of wrongdoing.
Provisions 24, 26, and 27 of the aforementioned sections explicitly prohibit use of coerced confessions or testimonies acquired through the means of torture or coercion. UNCAT - United Nations Convention against Torture The definition of torture, as outlined in Article 1, encompasses any deliberate act that causes significant physical or mental pain or suffering to an individual. The reasons behind such acts may include extracting information or a confession, administering punishment for a particular action, or instilling fear or coercion in either the individual or a third party. According to Article 2, it is obligatory upon nations to implement comprehensive legislative, administrative, judicial, or alternative measures in order to proactively deter instances of torture from occurring within their respective jurisdictions.
According to Article 4, it is obligatory upon nations to guarantee that all instances of torture are deemed criminal offences within their respective domestic legal frameworks. Furthermore, these actions must be subject to suitable sanctions that duly acknowledge their severe gravity. Universal Declaration of Human Rights (UDHR) - According to Article 5, individuals are protected from being subjected to torture or any form of cruel, inhuman, or degrading treatment or punishment.
SUGGESTIONS AND
CONCLUSION
1. Education and training programmes aimed at law enforcement personnel regarding
human rights, namely the prohibition of torture, might contribute to the cultivation of understanding and sensitivity towards this matter. This objective can be achieved by means of specialised training programmes and workshops.
2. The utilisation of scientific aids in investigations is proposed in the text, specifically
highlighting the incorporation of forensic evidence and contemporary investigative procedures, with the aim of enhancing the overall efficacy of the investigative process. This approach has the potential to decrease dependence on coercive techniques and improve the reliability of evidence.
3. The active involvement of the court in overseeing police remand is crucial. This may
encompass periodic assessment of the circumstances surrounding confinement, guaranteeing the availability of counsel during the process of interrogation, and promptly addressing any claims pertaining to the use of torture.
4. The necessity to modify the law of state immunity, which frequently provides protection
to law enforcement agents from legal accountability for instances of torture, is evident. The elimination of this immunity can contribute to the promotion of accountability and deterrence.
5 Enhancing Oversight procedures
Enhancing oversight procedures, such as the establishment of independent police complaints agencies or human rights commissions, with the aim of thoroughly investigating allegations of custodial torture and ensuring that those responsible are held accountable.
6 Public awareness as well as Advocacy
The development of general awareness on the matter of custodial torture through media campaigns, public discussions, and advocacy endeavours can facilitate the generation of public pressure for reforms and guarantee that victims are provided with a platform to express their grievances. In conclusion, custodial torture constitutes a severe violation against fundamental human rights and constitutes a pressing concern necessitating attention and resolution.8 The issue
8 A.G. Noorani, Custodial Torture, 32 Econ. & Pol. Wkly. 2374, 2374 (1997), available at
http://www. jstor. org/stable/4405859 (last visited Oct. 31, 2023). at hand is a multifaceted one that can be traced to various underlying factors, such as lacking in holding individuals accountable, a prevailing culture of impunity, inadequate provision of training and resources, overcrowded and substandard circumstances, instances of prejudice and discrimination, as well as a general lack of knowledge and insufficient public pressure. In order to address the issue of custodial torture, it is imperative to enact broad reforms that prioritise training, accountability processes, and the broader organisational culture inside law enforcement organisations. Prisoners, suspects, and accused individuals are afforded rights and safeguards by both international conventions and Indian legislation. However, the efficacy of their implementation and enforcement necessitates attention.
Furthermore, the notable role of the judiciary in defending the rights of individuals and providing reward to victims is achieved through the practise of judicial activism. 9 However, additional endeavours are necessary to achieve the complete elimination of custodial torture and the preservation of the rights and dignity of all individuals, with utmost respect and protection. The eradication of custodial torture and the promotion of a just and compassionate society necessitate the collaborative efforts of governments, law enforcement agencies, civil society organisations, and individuals. 9 P. N. Bhagwati, Human Rights in the Criminal Justice System, 27 J. Indian L. Inst. 1, 1–22 (1985), available at http://www. jstor. org/stable/43950897 (last visited Oct. 31, 2023).
REFERENCES
1 Kumar, Dilip. Role of Judiciary in Protecting Human Rights in India
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2. National Human Rights Commission, India, Annual Report 2019-2020, at i–viii
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9. International Covenant on Civil and Political Rights (ICCPR).
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13 National Campaign Against Torture (NCAT), India
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