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HRCP ASSIGNMENT

● Deepjyoti Barman

● Roll - 1917242

● Section - B

● Contact - 8287660669

● Email - barmandeepjyoti02@gmail.com

Topic - “Torture is a form of violence of rights”: A Case Study of India.

INTRODUCTION :-

The word torture has been derived from the Latin word "tortus", meaning to torment, used to

denote a deliberate action that is done to cause harm, is an intentional act which unknowingly or

negligently inflict suffering or pain, without a specific intent to do so, are not typically

considered torture. The official website of Amnesty International states that, "Torture is when

somebody in an official capacity inflicts several mental or physical pain or suffering on

somebody else for a specific purpose." So, when an official cause suffering to somebody else

within his/her official capacity, in any form mental or physical, it is regarded as torture.

The United Nations Convention against Torture (UNCAT) is one of the first documents at the

international level that deals with the prevention of torture. India signed it in October 1997 but

has yet to ratify it. Convention condemn torture, inhuman and degrading treatment of prisoners

by public officials.
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TORTURE IN INDIA :-

Many researches and reports have shown us that there is a pervasive presence of torture within

the Indian Criminal Justice System. It has forced us to confront the realities of torture and given

us an insight into ways in which the inbuilt checks against custodial torture, such as medical

examination by the doctors and the right of the accused to be presented before a magistrate have

routinely failed. An imperfect system with no modernisation of the police force encourages the

use of torture techniques in investigations to secure convictions. Despite being inadmissible,

torture-based confessions to the police find its way into the evidence through Section 27 of the

Indian Evidence Act, 1872. Methods of torture have also evolved in very sophisticated and brutal

ways. Forms of torture have outpaced the methods to detect it.

While India has signed the UN Convention against Torture and other Cruel, Inhuman or

Degrading Treatment on 14th October, 1997, it has not ratified it till date. A draft bill against

torture is in consideration by the government, but a comprehensive domestic legislation on

torture has not found the necessary political will in Parliament. The challenges within the

existing legal framework to hold the errant police personnel accountable has created a sense of

impunity amongst the police force. Despite the recognition by the Supreme Court in the D.K.

Basu vs. State of West Bengal (1997) of the state's obligation to prosecute instances of custodial

violence, the burden to pursue prosecution invariably falls on the victims or their families.

Initiating criminal proceedings against a public servant for acts done in discharge of official duty

require prior government sanction.

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While the Supreme Court in the State of M.P. vs. Shyamsunder Trivedi (1995) has ruled that

courts should not insist on direct evidence in these cases, this position is rarely applied.

Similarly, claiming reparation for the acts of the perpetrators is not easy.

There was a tragic death case in 2020 during covid related to P. Jayaraj and J. Benicks, a

father-son duo in a small town in Thoothukudi, Tamil Nadu. Jayaraj, 58, was arrested by the

police following an altercation with them on keeping his son’s mobile phone shop open in

violation of lockdown rules. After Benicks was also taken into custody, the two were mercilessly

thrashed to death. Being found guilty of the ‘offence’ of keeping a shop open during the

lockdown would have ordinarily granted Jayaraj and Benicks a maximum of only three months

of imprisonment. The series of events, starting with the cruel lockdown enforcement methods

and concluding with the utterly gruesome and entirely avoidable deaths, is a sign that we are

living with a completely broken system of law enforcement. Torture is, in fact, an integral part of

police culture all over the country. Indeed, it would not be amiss to argue that this culture in

India today is reminiscent of the brutality of the colonial police forces that we are so keen to

forget.

Supreme Court on Raghbir Singh v. State of Haryana (1980) case quoted “deeply disturbed by

the diabolical recurrence of police torture resulting in a terrible scare in the minds of common

citizens that their lives and liberty are under a new peril when the guardians of the law gore

human rights to death.”

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Torture is not criminalised in law as a separate or special offence. Provisions in the Indian Penal

Code, 1860 (sections 330 & 348) penalises acts that can also be considered as torture, with seven

and three years of imprisonment respectively if proven guilty. But the offence attracts no

particular relevance if the crime is committed by a police officer. The temporal treatment of the

law is to deal with a regular offence. The two provisions also fall short of covering all aspects of

torture, as defined in the Convention against Torture.

In addition, the reduced possibility of a proper forensic medical examination of a victim and the

complete absence of a witness protection mechanism facilitates easy escape of the criminal. 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 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.

There is no specific law concerning witness protection in India. The only possible measure is for

the court to impose a condition at the time of considering a bail application. The usual practice is

to impose conditions like the accused shall not interfere with the witness or the evidence in the

case. But there is no safe and watertight framework within which compliance to these conditions

could be guaranteed. It is a common practice in India for the accused to try to threaten the

witnesses and/or tamper with the evidence in a case.

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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 all the sections of the law enforcement agencies, the paramilitary and

military units. Torture, as a form of violence, is used for social control.

Trauma from torture affects an individual's capacity to act prudently and further to respond

normally to incidents. Concern regarding the widespread use of torture in India has been

expressed by domestic as well as international experts, particularly the mandate holders under

the UN framework. 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.

The UN Human Rights Committee as early as 1997 has expressed its concern about the

widespread use of torture by the law enforcement agencies in India. Similar concerns were

expressed by the Committee on Elimination of Racial Discrimination in 2007 and the Committee

on Economic, Social and Cultural Rights in 2008.

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CONCLUSION

Torture is an act which violates the basic principles of the human rights and especially when this

is practised by the very people who are the protector of law it is gross and unjust, therefore, there

is a dire need with regard to the current scenario that India ratifies the UNCAT and bring in a

specific legislation which will protect the interest of the people. Justice requires us to uphold the

human rights of all persons who are capable of reason and therefore, are worthy of respect.

Torture has been used as a method of police interrogation or the armed forces in the conflict

zones to extract statements, confessions and any information, which are considered necessary in

safeguarding the country

The whole concept of torture cannot be justified, not even to extract the military information as it

takes away the basic human right of that person and will set a precedent for the others. Although

in reality it can never be stopped being practised, however, should remain anathema to liberal

democracy and should never be regulated, countenanced, or covertly accepted in a war on terror.

Current laws facilitate such torture, such as through the admissibility of confessions as evidence

under the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism

Act, which continues refurbished as the Maharashtra Control of Organised Crime Act.

What we really need is a recognition that torture is endemic and a systemic problem, and the

only answer lies in stringent legal framework that is aligned with and committed to the principles

of international law under the UN Convention Against Torture (UNCAT) to which India has been

a signatory since 1997. Only the people which include important stakeholders like the Bar, the

media, civil society and student groups can rise up against these practices, just as they are doing

in other parts of the world.