Interrogations and Custodial Tortures: Why India Needs To Re-Analyse Its Lacunae Of Anti-Torture Laws?

The Legal Arc Volume 1 Issue 1 Articles

Mohd Rameez Raza

Rameez is a student of Bachelor of Law at Integral University, India; he is also the Changelooms Fellow of Uttar Pradesh Cohort. He is an experienced Legal Researcher and Policy Interventionist. He has a deeply vested interest in Human Rights Law, Indian Constitutional Law, and Gender Studies; accompanied by a wide experience of grass-root level program implementation and research in the mentioned areas.

Ujjwal Singh

Ujjwal is a Middler law-student; interested in legal research and is an avid reader. He has a deep interest in studying Procedural Laws, International Law, Jurisprudence, and History. He always keeps a keen eye for the new socio-legal development happening around.

Introduction: Custodial Tortures in India

For a long time, India has been notorious for custodial tortures and such violation of human rights have recently been on the rise. Despite the entire world speaking up against police brutality, India’s police department stands tainted due to recent events of custodial death. These events have stirred a nationwide debate on the diabolical recurrence of police brutality. As the protectors become the destroyers[1], the lives and liberties of the common citizens remain under a constant state of peril. This article seeks to find the root cause of the growing menace of custodial deaths and analyses the lacunae in the Indian legal system through an international comparative study.

International Laws and Principles: Guarding Against Torture

It is erroneously believed that using torture and abuse in interrogations is an effective way to elicit accurate information from the victim. However, the case is not so and sometimes the move can backfire as the application of psychological, emotional, or physical pressure can force the victim to say anything simply to end the painful experience. This defeats the aim of the interrogation since the object of the process of interrogation is not ‘to make people talk’ but to obtain credible information. Additionally, torture is an inhumane process as it directly infringes the right to life with human dignity.

In order to tackle this situation, legislatures across the world have tried to develop a comprehensive set of laws to prevent torture during interrogations. One of the results of such deliberations is the Miranda Warning. This warning consists of notifications customarily given by the police to suspects in police custody or custodial interrogations, including making them aware of their right to remain silent. By making statements made under such force inadmissible, not only do these warnings prevent the police from using force but they also make the interrogatee aware of the rights available to him. These warnings have helped create a framework around which nations around the world have formulated their laws. One of the best examples of this is the Section 10 of Canadian Charter of Rights and Freedoms, 1982 which requires the arrested individuals to be informed of the reasons for their arrest and grants them the right to procure counsel immediately.

Torture and abusive interrogation techniques are illegal under international law. The major conventions in this regard are the Convention against Torture, the Geneva Convention, and the International Covenant on Civil and Political Rights, all of which bar torture and abuse of prisoners by authorities. India, however, has no framework for any such law. Despite having ratified and acceded to the Geneva Convention and the ICCPR, India has failed to comply with the requisites mentioned therein.

Indian Legislation: Existing Laws and Lacunae

India does not have a distinct piece of legislation which deals with the issue of torture by a police officer and this lack of legislation is justified on grounds that the Constitution and the criminal laws of the county are adequate to deal with the issue. The Supreme Court, through its various judgements[2], has continuously reiterated that the Right to Life guaranteed under Article 21 of the Constitution includes within its ambit an individual’s Right Against Torture. Therefore, being a fundamental right, Article 21 provides blanket protection against every arbitrary act of state against an individual and becomes relevant at the time of arrest and remains so in effect so long as one is subjected to criminal prosecution.[3]

When it comes to ‘protection’ against torture, Article 20(3) gives protection against self-incrimination. This indirectly lays a bar against torture, as the primary reason for subjecting an accused to torture is to extract a confession. However, this bar is not absolute in nature as the facts arising out of such a confession may be used to corroborate the evidence used against the accused.[4] Section 27 of The Indian Evidence Act, 1872 also states that any facts discovered as a result of a confession or statement may be used against the accused, thereby allowing torture to continue unchecked in India. Article 22(2) of the Constitution also seeks to prevent torturous activities by providing for a bar of 24 hours on detention of an individual on the basis of judicial discretion. Nobody can be detained beyond the period of 24 hours without the orders of a magistrate. Provisions on similar lines are laid out under Section 57 of the CrPC where the Judicial Magistrate is to keep a check on torture by way of a medical examination. Any ill treatment of the accused is to be recorded by the Magistrate after examination of his body and the reason of any injuries is to be inquired upon.[5] This process, however, ignores any injuries which are not physically visible but attack the mental health of the accused. One such noteworthy practise is that of sleep deprivation.  

Conclusion: Solving the Nodus and the Way Forward

The need for anti-torture laws has resurfaced. It is common knowledge that torture in India is professionally accepted and is practiced as a potent means of criminal investigation by the authorities. There are an alarming number of cases where the police, the paramilitary and the military forces have resorted to these barbaric practises in order to extract information from those in custody. Currently, Indian laws deal with torture like any other regular offence and attract penalties under the IPC. However, these laws have their own limitations. The first being that the laws take into consideration only physical tortures and do not cover any other forms of torture the signs of which may not be physically visible. Additionally, the laws fail to distinguish between a civilian perpetrator and a perpetrator who is a government servant. Such demarcation is necessary as the laws in both the consequences in both the scenarios would be completely different.

Due to the absence of any stringent laws, according to the National Human Rights Commission Report, there have been 2318 cases of death in police custody and 716 fake encounters registered since 1993. These numbers continue to haunt the system since the majority of custodial deaths are generally reported as suicides and these numbers reflect only a minuscule part of the total pool of such cases.

India needs to recognise torture as a systemic problem and to work on laying a stringent legal framework which is in consonance with internationally accepted provisions in order to put an end to such a barbarous practice. The first step towards bringing about reform in the system could be to accede to the various international treaties which govern torture and strictly abide by them. This would help lay the foundation for a torture-free interrogation system. After the signing of international treaties, an enactment of a domestic law would allow the laws to become binding in nature. This law could be the Prevention of Torture Bill, which has been pending for more than a decade.

In addition to these, one of the most effective and long-term strategies for the prevention of torture can be the establishment of an independent authority for the investigation of any accusations of torture by authorities during an interrogation. This would allow for transparency in the investigation of these issues since the investigation of any such accusations is usually done by the very authorities who may be responsible for such torture.

People across the world have protested the death of George Floyd and such protests have forced the government of the U.S. to take stringent steps to prevent such incidents from happening again. It is time to stop waiting for any future incidents to put forth our views and to start voicing our opinion through our elected representatives to raise this issue of anti-torture law in the Parliament so that no other person has to die owing to our failures of enacting effective legislations.

[1] Raghbir Singh v. State of Haryana, 3 SCC 70 (1980).

[2] D.K. Basu v. State of West Bengal, 1 SCC 416 (1997); See also: Joginder Kumar v. State of U.P., 4 SCC 260 (1994); Nilabati Behera Alias Lalit v. State of Orissa And Ors., 2 SCC 746 (1993).

[3] Sheela Barse v. State of Maharashtra, 2 SCC 96 (1983).

[4] Pakkirisamy v. State, 8 SCC 158 (1997).

[5] A. K. Sahdev v. Ramesh Nanji Shah, Cri.LJ 2645 Bom (1998).

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