Torture and its Medico Legal Aspects

Introduction
Torture has existed in the society for time immemorial. In older days torture of alleged
criminals, spies, and political prisoners was considered acceptable, but today in modern
civilized society torture in any form for whatever motive, is considered a crime and
universally condemned. Torture infliction is still prevalent in some form or the other all over
the world. According to Amnesty International, the worldwide organization that monitors
human rights violation, torture is practiced in 65 out of 144 countries and is on the rise. Not
surprisingly, in its annual report issued by the UN on torture 2018, India appears in the list of
29 countries, where torture is fairly extensive, Medical profession and human rights are
closely related. Usually doctors are the first ones to come in contact with torture survivors
thus can alleviate violation of human rights. Torture Medicine is an evolving branch of
clinical Forensic Medicine dealing with medico legal and ethical aspects of torture.

Definition of Torture
Literal meaning of torture is anguish of body or mind; the infliction of intense, pain or to
punish; coerce, or afford sadistic pleasure. With time definition of torture also has undergone
refinement.
• The physical and mental suffering deliberately inflicted upon a human being by any other
human being.
• The infliction of suffering, upon anyone for any purpose- or for no purpose.
Tokyo Declaration of the World Medical Association in 1975 1, defined torture in relation to
detention and prison as “the deliberate or intentional systematic wanton infliction of physical
of mental suffering by one or more persons acting alone, or on the orders of any authority, to
force another person to yield information, to make a confession, or for any reason”.
Modern definition of torture as given in the “U.N. Convention Against Torture and Other
Cruel Inhuman or Degrading Treatment or Punishment” of 1984 is “ Any act of which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or third person, information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from inherent in or incidental to lawful
sanction”.

1
Adopted by the World Medical Assembly (WMA), Tokyo, Japan, October 1975.

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Methods of Torture
With times methods and intensity of torture have come a long way, from predominantly
physical to mental form of torture. Torturers keep on devising newer sophisticated and more
effective methods of torture as per their aptitude and imagination. Torturers today are able to
create conditions which effectively break down the victim’s personality and identity. Medical
practitioners should keep afresh with these ones for effective diagnosis and management of
the victims. Of the innumerable existing methods of torture some of the common ones are-

1. Physical torture
The severity, extent and appearance of injuries depend on the various factors like the age of
the person, sex, presence/absence of clothing, built and nourishment, presence of any
preexisting illness, type of the offending object, the force of impact, number and duration of
the each session of beatings, time interval between the sessions of beatings and time interval
between the torture and examination. Some of the torture manoeuvres are mentioned below.
These by no means are exhaustive but will help us gain understand the concept of torture
medicine.

a. Repeated beatings
Severe forms of blunt trauma, including beatings on the back and buttocks. It is common
practice to repeatedly hit on the back of the person with sticks and lathis. On external
examination there may be presence of abrasions, contusions or lacerations. Often presence of
fracture can be detected and confirmed only by radiological investigations.2

b. Beatings on the soles of the feet (phalanga)

Variously known as bastinado, foot whipping is a process in which soles of the feet are
repeatedly beaten with lathis/rods. Usually the victim may be immobilized before this act.
The physical findings vary from case to case and change over time. Immediate signs and
symptoms includes swelling of the foot associated with severe pain. At times it is associated
with the extravasation of blood and hematoma leading to discoloration of foot. Fractures of
tarsals, metatarsals and phalanxes can be present and the same can be documented and
confirmed by radiological investigations. There will be loss of soft tissues in the heels.
Because of the pain, walking is impaired. Typically, the torture victim is only able to walk a
limited distance after which he will be overwhelmed by the excruciating pain which will be
relieved by taking rest.

c. Prolonged handcuffing, Restraint and shackling:

The true reason for subjecting the detainees to these procedures is to prevent them from
escaping. But often they have been used as a means of punishment, humiliation, coercion and
to extort bribe. Nonetheless globally restraint and shackling are used on the detainees. The
use of leg irons is widespread in Pakistan. The prolonged shackling and restraint use was
allegedly used by the US military in its Guantanamo Bay detention camp is a detainment and

2
Module No. 34 : Custodial Torture by Dr. Mahesh Kumar, p.7

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interrogation facility. In China, many euphemisms are given to shackling to morph the
agonizing nature of the process.

d. Positional Torture
Many forms of positional torture are practiced around the world. Characteristically the victim
is tied in unnatural positions which cause severe discomfort and pain.
A small compact cell dubbed as 'the refrigerator' is used to keep the victim immobile for
hours or days. Depending on the type of position and the duration, injuries to soft tissues to
the body may be produced which are difficult to recognize even after radiological
examination.

e. Suspension for long hours

Suspension of the victim by a rope tied to the roof ceiling is a common form of torture that
can result in immense discomfort and pain with little visible external injury. Different types
include crossed suspension, Butchery suspension, Reverse butchery suspension, Flexed
forward suspension, Palestinian suspension, parrot perch suspension etc.
Depending upon the type and duration characteristic Brachial Plexus injuries can lead to
paralysis of the arm involving segments of upper limbs. While conducting clinical
examination of such victims along with external examination one has to look for any
peripheral neurological deficits.

f. Crushing Injuries
At times the victims are made to spread their hands on the floor only to be stamped
repeatedly by the torturer with heavy leather boots leading to fractures of the carpal,
metacarpal and phalangeal bones. Another type of crushing which was practiced in Punjab
called “Ghotna”. The most common method is, with the victim seated or lying on the back
and a Ghotna (a wooden pole used to pound spices and grains) to be rolled up and down the
front of the thighs with one or more individuals standing on it. Occasionally, with the victim
prone, it is rolled over the hips till the calf avoiding the bony areas. The direct effects are
extensive bruising and inability to walk and even years later there is usually pain on walking
far. On examination there may be scarring on the bony points with noticeable tenderness on
thigh muscles.

g. Abnormal Stretching
“Cheera” is the Punjabi word for tearing is the pet name given to for this torture manoeuvre.
The victim is seated on the floor, often with one torturer supporting him from behind and two
others forcefully stretching the legs forcefully causing extensive hematomas in the groin
region. Sometimes the pelvic girdle is injured and rarely femur is fractured. At times it is
accompanied by repeated kicking of the external genitalia adding further insult and injury.
The victims usually develop long term disability and can never walk or stand in normal way.

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h. Burning or Scalding
Cigarette burns, or burns with other instruments (branding) is also practiced around the
world. If the cigarette is deliberately stubbed out and held immobile on the skin, the scar is
often characteristically circular about one centimetre in diameter, with a hyper-pigmented
periphery and an atrophic, hypo-pigmented “tissue paper” center. Acid burns may leave a
trail indicating the victim's posture. Scarring tends to be more elaborate, and in some cases
may lead to keloid formation. Heated metal objects often leave scars of distinctive shape of
the offending object can be seen.

i. Electric Shocks
Electric shocks have been used commonly by torturers because they cause immense pain but
seldom leave identifiable physical signs. Usually genitals and breasts are targeted and the
victim is humiliated and serious bodily injury is threatened. Sometimes an electrode is
inserted in the anus which may lead to uncontrolled urination and defecation accompanied by
terrible pain and hopelessness. Sometimes the electrodes can leave small burn injury. After
sometime it may lead to small hyper-pigmented patch. On external examination this can be
inconclusive but can have corroborative value.

j. Prolonged exposure to hot or cold temperatures:

Sometimes victims are subjected to prolonged exposure to either hot or cold temperatures. In
hot climatic places like deserts, they may be tied under direct sunlight needless to say without
food or water causing various effects like exhaustion and heat stroke. In cold places they may
be exposed to sub-zero temperatures without cloths leading to variety of conditions like
Chilblains, Frostbite, trench foot and in extreme cases hypothermic shock.

k. Trauma to the eyes

Repeated punches to the face over the orbit can cause serious damage to the orbital complex.
The spectrum of damage sustained may range from simple contusion around the periorbital
region to serious injuries like retinal haemorrhage, dislocation or subluxation of ocular lens,
detachment of retina etc. Sometimes chili powder or some other irritant may be smeared to
the eyes. In China sometimes police officials use „tigerbalm‟ a powerful analgesic ointment
causing serious damage to the eyes.

l. Trauma to the ears:

“Telefono‟ is a slang that is used to describe hard slapping to the ear(s) usually leading to the
rupture of the tympanic membrane. Sometime it might lead to serious damage to the middle
ear’s ossicles or even the inner ear.

2. Sexual Torture
It usually begins with forced nudity making the victims helpless enhancing the psychological
horror of the impending torture. This is usually accompanied by verbal abuse, mock
execution and threats which will only add to mental anguish. At times it is just a symbolic
ritual. There may be constant verbal threat of inflicting the victim with HIV and STDs and in
case of females; the threat of becoming pregnant adds to the anguish.

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In women, there may be mutilation of the breasts and genitalia, and in men there may be
hematoma in testicles due to repeated squeezing. Sometimes a smooth lathi is lubricated with
oil and smeared with chilli powder and then inserted into anus causing unimaginable pain and
suffering.

3. Psychological Torture
These manoeuvres apart from causing physical pain are intended to inflict greater
psychological harm to the victim.

a. Prolonged sleep deprivation:

Prolonged lack of sleep does have severe psychological consequences. Significant cognitive
impairments including deficits in memory, reasoning, learning, decision-making may happen.
The UN Committee against Torture has noted that sleep deprivation for prolonged duration
constitutes torture.

b. Sexual humiliation:
Here victims may be forced to perform humiliating acts like prolonged nudity, human nude
pyramid, performing sexual exercises with animals, forced sexual encounters between brother
and sister often exploiting cultural and religious sensitiveness leading to enormous shame,
guilt and worthlessness.

c. Mock execution:
A mock/sham execution is a trick which is deliberately played by the torturer. Here the victim
might be blindfolded, transported to remote place, made to dig their grave, followed by
holding a gun to their head and pulling the trigger, often shooting near but not touching the
victims. The psychological trauma during the act is very intense as the victim literally counts
his/her last breath. This will continue in the immediate aftermath and the victim may feel that
it is a planned rehearsal and there is a real possibility of the execution in the future.

d. Near Asphyxiation
The most common way of inducing asphyxia to near-death is called “submarino”. Here the
head is immersed in water for minutes at a time to the point of drowning, then brought out
and immersed again. Sometimes the victim may be suspended head down and with the help
of the rope and pulley, the same act is executed.
To further cause psychological distress, the water bath might be contaminated with sewage
and fecal matter. In another method called “dry-submarino” a plastic bag is inserted to the
head and tightened in the neck, stopping the air supply to the nostrils creating near
asphyxiation. Another infamous method called “Water boarding” which has its history that
dates back to the middle ages and recently practiced by the United States in the aftermath of
9/11. Victims are strapped to a board or made to lie in a supine position with their heads
lower than the rest of their bodies, their faces covered with cloth, and water is poured over
their mouths to create the sensation of drowning.

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e. Sensory Bombardment:
The use of very powerful lights and loud music may lead to mental distress and
disorientation.

f. Use of Animals
Sometimes victims might be threatened with impending attack by ferocious animals like
dogs. In some parts of the world, snakes, spiders, scorpions, etc., are used to instill fear in the
mind of victims.

4. Pharmacological torture
Here psychotropic and/or other chemicals are used to induce pain and agony. Likewise victim
is forcibly injected with addictive drugs so much so that he becomes addicted to it only to be
denied to the drug and forced to go through withdrawal symptoms, unless they comply with
the demands of torturer, drug will not be given to them. Strong acids/alkalis are used to cause
burns.

Consequences of Torture
Depending on type method and duration of torture outcome can vary from mild to severe
physical, psychological and social trauma. Physical consequences can be early or delayed in
form of severe pain, hemorrhage, infection, scars, mutilation, disfiguration etc. Psychological
consequences include anxiety, depression, phobia, sleep disturbances, alcohol/ drug abuse,
post traumatic stress disorders, suicidal tendencies etc. Social consequences are related to
social stigma, unemployment, negativity in social activities etc.3

Management of torture victims

Torture shatters the victim not only physically but also psychologically. Primary
responsibility of medical practitioner is to diagnose, take care and provide relief to such
people. While physical trauma is comparatively easy to diagnose and treat, assessment of
extent of psychological and social trauma remains the big challenge. A careful and detailed
clinical examination is necessary to derive a complete picture. Doctor should be very
sensitive and patient, while dealing with torture victim and should try to win patient’s
confidence, as assessment of psychological trauma is very important. Physical and
psychological treatment should be provided simultaneously. Physical treatment includes
drugs and physiotherapy while psychological and social treatment includes psychotherapy
and counseling, usually with whole family and providing overall support and rehabilitation.

Ethical Aspects of Torture

Doctor’s involvement in torture may be direct or indirect in form of:
1. Evaluation of victim’s capacity to withstand torture.
2. Providing professional knowledge and skill to the torturer.
3
J.P. Modi : Medical jurisprudence and Toxicology, 25th Edition, p. 163.

6
3. Supervising torture through provision of medical treatment
4. Deliberately omitting medical information when issuing health certificates or autopsy
reports.
5. Withholding information about incidence of abuses.
6. Administering torture by direct participation.4
Torture is considered utterly unethical and doctor should not have any involvement with such
a process except for examination and treatment of the tortured. As per medical ethics, various
codes and convention, as well as other guidelines, doctors are prohibited from using their
professional knowledge to harm their patients. As per the declaration of Tokyo (World
Medical Association, 1975) the doctor shall not
1. Participate or be accomplices in the practice of torture or any form of cruel, inhuman or
degrading procedures against individuals or fail to denounce them when learning about them.
2. Provides means, instruments, substances or knowledge designed to facilitate the practice of
torture or other forms of cruel, inhuman or degrading procedures against individuals.
3. Be present during any procedure involving cruel or inhuman activities.
4. Forcibly feed any person on hunger strike who is regarded capable, physically and
mentally, to have perfect judgment on the possible consequences of his attitude. In such
cases, physicians should let him know on the probable complications of prolonged fast, and
in the hypothesis of impending danger to life and treating him.
5. Use any procedure that might alter personality or consciousness, for the purpose of
diminishing his physical and/ or mental resistance, in the course of police investigation of any
other kind.

Legal safeguard against torture

1. Constitutional Safeguards
It has been held in a number of judgments that just because a person is in police custody or
detained or under arrest, does not deprive of him of his basic fundamental rights and its
violation empowers the person to move the Supreme Court under Article 32 of the
Constitution of India. Detention does not deprive one of his fundamental rights. The remedies
available to a person in the constitution against torture are as follows:

a. Article 20 of the Constitution

Article 20 primarily gives a person the rights against conviction of offences. These include
the principle of non-retroactivity of penal laws (Nullum crimen sine lege) i.e. ex-post facto
laws thereby making it a violation of the persons fundamental rights if attempts are made to
convict him and torture him as per some statute. Article 20 also protects against double
jeopardy (Nemo debet pro eadem causa bis vexari). This Article most importantly protects a

4
J.P. Modi : Medical jurisprudence and Toxicology, 25 th Edition, p. 156

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person from self-incrimination. The police subject a person to brutal and continuous torture to
make him confess to a crime even if he has not committed the same.

b. Article 21 of the Constitution

This article has been understood in the Indian judiciary to protect the right to be free from
torture. This view is held because the right to life is more than a simple right to live an
animalistic existence.5The expression "life or personal liberty" in Article 21 includes a
guarantee against torture and assault even by the State and its functionaries to a person who is
taken in custody and no sovereign immunity can be pleaded against the liability of the State
arising due to such criminal use of force over the captive person.6

c. Article 22 of the Constitution

Article 22 provides for basic fundamental rights with respect to conviction. These include
being informed of the grounds of arrest, to be defended by a legal practitioner of his choice,
preventive detention laws and production before the nearest Magistrate within 24 hours of
arrest of the person. Thus, these provisions are designed to ensure that a person is not
subjected to any ill-treatment that is devoid of statutory backing or surpasses prescribed
excesses.

2. Other Statutory Safeguards

a. Indian Evidence Act, 1872

A confession to police officer cannot be proved as against a person accused of any offence
(Sec. 25 Evidence Act) and confession caused by threats from a person in authority in order
to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-
alia, provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by
law in India, the evidence collected by illegal means, including torture is not accepted in
courts.

b. Code of Criminal Procedure, 1973

Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of
an offence punishable with death or imprisonment for life and also during escape. Sec. 50-56
are in consonance with Article 22. Sec. 54 of the Code is a provision that to a significant
extent corresponds to any infliction of custodial torture and violence. According to it, when
an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there
required to examine his body and shall place on record the result of his examination and
reasons therefore.7 It gives them the right to bring to the Court’s notice any torture or assault
they may have been subjected to and have themselves examined by a medical practitioner on
their own request.8 A compensatory mechanism has also been used by courts.9 When the

5
Sarah Smith, The Right to Life in India : Is it Really the ‘Law of the Land’? available at
http://www.hrsolidarity.net/mainfile.php/2005vol15no05/2446/
6
D.K. Basu v/s State of West Bengal (1997) 10 SCC 416
7
A.K. Sahdev v/s Ramesh Nanji Shah, 1998 CrLJ, 2645
8
Shakila Abdul Gafar Khan v. Vasntraghunathan Dhoble, 2004 (1) GCD 812 at 823 SC
9
Y.V. Chandrachud & V.R. Manohar, The Code of Criminal Procedure, 18 th Edition, P.114

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Magistrate does not follow procedure with respect to entertaining complaint of custodial
torture, it calls for interference by the High Court under Sec. 482 of the Code.10
Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of
the Code where a compulsory magisterial inquiry is to take place on death of an accused
caused in police custody. Sections 167 and 309 of the Code have the object of bringing the
accused persons before the court and so safeguard their rights and interests as the detention is
under their authorisation.11

c. Indian Police Act:

Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers
who are negligent in the discharge of their duties or unfit to perform the same. This can be
seen in the light of the police officers violating various constitutional and statutory safeguards
along with guidelines given in D.K Basu v. State of West Bengal.12

d. Indian Penal Code (IPC) , 1860

After the controversial Mathura Rape case13, an amendment was brought about in Sec. 376 of
the IPC. Sec. 376(1)(b) penalizes custodial rape committed by police officers. This was a
welcome change made to the section in question as it finally condemns the acts of police
officers who take advantage of their authority.

Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police
officer, who is empowered to arrest a person and to interrogate him during investigation of an
offence from resorting to third degree methods causing ‘torture’.14

Conclusive Analysis
As we see the aforesaid things following point regarding happening of torture arise before
us:
1. Torture is practiced as a routine and accepted as a means for investigation. Most police
officers and other law enforcement officers consider torture as an essential investigative
tool, rather than an unscientific and crude method of investigation. Policy makers and
bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not
realising the fact that a person under investigation is only an accused, not a convict and
further, that even a convict cannot be tortured. This is due to the lack of awareness about
the crime, its nature and about its seriousness. Torture is practiced by the all sections of
the law enforcement agencies, the paramilitary and military units. Torture, as a form of
violence is used for social control

10
Mukesh Kumar v. State, 1990 CrLJ 1923 at 1925
11
Bhai Jasbir Singh v. State of Punjab, 1995 CrLJ 285 (P&H) cf. P.C. Bannerjee, Criminal Trial and Investigation,
(Orient Publishing Co.) 3rd Edition, 2003, p. 222
12
AIR 1997 SC 610
13
(1979) 2 SCC 143
14
State of Madhya Pradesh v. Shyamsundar Triwedi(1995) 4 SCC 262 at 273.

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2. The National Human Rights Commission of India has repeatedly recommended to the
Government of India to ratify the Convention against Torture and to criminalise the act of
torture in the country. However, India has not ratified the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, but has signed the
Convention on 14 October 1997. To ratify this convention India has to amend its Penal
and Procedural laws.
3. An act of torture, if proved, does not require the perpetrator to pay compensation to the
victim. The right against torture is not a fundamental right. The courts in India, thus far
have taken a minimalistic view on compensatory claims concerning acts of torture. A
claim for compensation is dealt within the realm of personal injury claims. Awards of
compensation vary widely from court to court throughout the country.

Thus, to prevent torture following steps should be taken:

1. Government should ratify the Convention Against Torture;
2. Government should amend Cr.P.C and Evidence Act and strictly prohibit torture;
3. Government should make torture as a specific offence;
4. Doctor who examines the person tortured must disclose the happening of torture and the
WMA will support and should encourage the international community, the national
medical associations, and the fellow doctors to support the doctor and his or her family in
the face of threats, or reprisals resulting from a refusal to condone the use of torture or
other form of cruel inhuman or degrading treatment.
5. Freedom from torture or other form of cruel inhuman or degrading treatment should be
introduces as a right.

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Bibliography
1. J. P. Modi, Medical Jurisprudence and Toxicology, 25th Edition
2. J.N. Pandey, Constitutional Law of India, 55th Edition
3. R.V. Kelkar, Criminal Procedure, 7th Edition
4. Y.V. Chandrachud & V.R. Manohar, The Code of Criminal Procedure, 18th Edition
5. Dr. Mahesh Kumar, Module No. 34 : Custodial Torture
6. Tanuj Kanchan & T.S. Mohan Kumar, Torture and Role of Medical Practitioner

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