Rights Of Prisoners Against Custodial Torture In India: Analysing The Need For A Seperate Anti-Torture Law (By-Tanish Pankaj Amin)

Rights Of Prisoners Against Custodial Torture In India: Analysing The Need For A Seperate Anti-Torture Law

Authored By-Tanish Pankaj Amin

Symbiosis Law School, Pune

Abstract

From the earliest of times, torture has been existent in almost all the parts of the world; it is only that after the rise of human rights, we begun the journey to define basic fundamental rights and duties. Torture in the most laymen terms can be described as imposing the will of the superior on the inferior/weak. Custodial torture tends to define the place of this violation, whether it be under judicial or police custody.

Apart from bringing awareness about basic custodial rights of prisoners and identifying the root cause of the problem from the Indian scenario, this research paper is an attempt to identify the need for codification and implementation of a anti-torture law in India. If a need for the same evolves through the course of this paper; a basic structure of an ideal anti-torture law shall also be framed keeping in  mind the judicial review till date, the law commission recommendations, analysis of the previous anti-torture bill, and international conventions.

Keywords: rights of prisoners, anti-torture law, custodial torture, criminal justice system.

Introduction

“In our world prisoners are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrum of inmates range from driftwood juveniles to heroic dissenters”

- Justice V.R. Krishna Iyer

The Criminal Justice System of India has evolved its theories of punishments from deterrent theory, retributive, preventive to finally reformative theory which is followed in today’s time. Similarly, the concept of prison and prisoners have also significantly advanced from being barbaric and extremely brutal to recognizing the person, its inner personality and its scope for reform and not the offender. The virtues of non violence and empathy as conceptualized by the great Mahatma Gandhi in the roots of the Indian socio-legal system is still being followed and hence it is believed that an person who committed an offence or is accused of committing an offence does not cease to be a human being. A person thus can not be deprived of his or her rights which constitutes a part of human dignity. Basic rights are hence conferred to all prisoners and are subject to enforceability of all fundamental rights inscribed under part III of the Indian Constitution except those restricted by imprisonment.

In spite of various mechanisms created to define and create rights available to prisoners like right to legal aid, right to speedy trial, right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from Torture, right to meet friends and consult a lawyer, right to reasonable wages in prison etc, still there are various human rights violations and barriers which exist and prevent prisoners to access justice. Hence, this paper aims to analyse the nuances of arbitrary arrests, solitary confinement, bar fetters etc, and link it with the custodial rights of persons on the other side[1].

The increasing number of torture cases has led us to delve into the Prevention of Torture Bill of 2010, reasons for the failure of the bill as well its shortcomings. Further, the need for an anti-torture law in India is discussed by taking into account not only the torture bill and the landmark

cases which seeks to define a few rights of prisoners but also the international treaties and conventions. This has led us to come up with a draft law against torture which shall include the basic principles on which the anti-torture law can be formed for the smooth and efficient functioning of the Indian criminal justice system.

Literature Review -

Agarwal: Apart from providing a thorough understanding of the concept of torture and custodial torture, the author has also conducted a two year long experiment in Department of Forensic Medicine and Toxicology, Govt. Medical College, Amritsar and has showcased that more than 71 percent of torture cases were from jail custody, around 24 percent were from police custody and the remaining were the result of domestic violence. The author has effectively gauged the results of this study conducted with the goal of enhancing the level of awareness in the society; especially the ones which occur in custody and prevention of the same.[2]

Dr. A. Sinha: The author has proposed to provide a constitutional perspective on the Indian scenario of custodial deaths and human rights. This is also backed by the Judicial perspective and how it has changed during the course of post independence period. The root cause of the problem of custodial torture has been traced back to the British era till 73 years post Independence and how India is yet to resolve this problem. The author has introduced a very innovative suggestion of establishing police complaint authorities in every district and a similar appellate body on a state level. This will aid in introducing authorities who are not biased and will ultimately lead to delivering justice to the victim through compensation and penalizing the police personnel. [3]

Singla: The lack of a precise definition of the term ‘custodial torture’ has been identified by the author. This paper has furthered the cause for the need of a special legislation against torture by providing thorough analysis of the Indian Constitution, Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Prevention of Torture Bill, 2010, Prevention of Torture Bill 2017 as well as the

Indian Evidence Act, 1872. India is one of the nations which haven’t ratified the Convention against torture and other cruel, inhuman or Degrading Treatment or punishment and while comparing India as a nation, its legal policies, criminal justice system and the judiciary with nations who have not ratified this treaty, India clearly seems to be a more progressive state. The thorough analysis and lacunae of the previous anti torture bill has led me to develop a structure for an ideal anti-torture law. [4]

Research Methodology

The main aim is to examine the research problem and suggest a recourse which is efficient, reduces the burden of the judiciary and enhances the overall functioning of the Indian Criminal Justice system. The research methodology adopted is a combination of doctrinal as data is collected through various peer to peer reviewed indexed legal journals, legal articles and books.

 Various analytical tools and statistical data will be shall be used to identify the root cause of torture within the Indian context and ways to mitigate them with an angle of ‘the need for an anti-torture law in India’.  This will be in line with analyzing the efficacy of the E-prison guidelines, guidelines relating transgender persons in prison and other reforms taken by the Ministry of Home Affairs even though prison is a state subject under the Constitution of India.

Along with the domestic steps, international guidelines like the United Nation’s General Assembly ‘The Basic Principles for the Treatment of Prisoners’ in the year 1990 which is also in line with the Universal Declaration of Human Rights and International Human Rights including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also known as the ‘Torture Convention’, International Covenant on Civil and Political Rights (ICCPR), Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment shall be examined.

Objectives Of The Study

Some of the primary objectives of writing this paper on the above mentioned topic are as follows:-

To understand what is custodial torture  and rights of the prisoners so that they can be safeguarded from the hardships in the name of the trial by police officials and sometimes by their fellow jail mates too.
To analyse and understand the root cause behind the rising number of custodial torture cases.
To analyse the inconsistencies of the torture bill and come up with a basic framework of anti-torture law in India.
To analyse several laws on custodial torture which have been implemented in other foreign countries across the globe and how Indian government can use them to make new and powerful laws so that custodial torture cases can minimized in the near future.

Findings And Discussions

IDENTIFICATION OF THE RESEARCH PROBLEM -

Arbitrary arrests:

One of the biggest problem faced by the Indian Criminal Justice system is an arbitrary arrest. This was also reiterated in landmark cases like Arnesh Kumar V. State of Bihar[5] and Lalita Kumari V. State of Uttar Pradesh[6]. Strict guidelines for police officers and magistrates were issued in Arnesh Kumar case regarding reasons for arrest and remand to custody which was significantly aimed to reduce such instances in the future.

In Prithipal Singh V. State of Punjab[7], illegal abduction and later murder of a journalist and human rights activist I.e. Enforced disappearance by the state authorities took place.

Another major issue which is violative of Article 21 which encompasses Right to Life and Dignity enshrined under the Indian Constitution is of torture. The Apex court in the landmark case of Mehmood Neyyar Azam V. State of Chattisgarh[8] was of the view that even anything which causes fear in the minds of prisoners mainly by the police constitutes psychological harassment as it results in denigration of humanity.

Solitary Confinement:

Solitary confinement can not be conferred on a death row convict until and unless the execution and the death sentence itself is beyond the judicial scrutiny. This was laid down in the landmark case of Sunil Batra V. Delhi Administration[9].

 Further restrictions were also laid down by the court by stating that the exercise of using bar fetters should be limited to exceptional circumstances only and after taking the permission from Sessions Judge or Chief Judicial Magistrate.

Custodial deaths:

Custodial Deaths is another major human right violation faced by the prisoners due to petty reasons like aggression from the police officials, delay in providing medical facilities due to negligence etc,. As per the data released from the National Human Rights Commission, more than 17,100 deaths were reported in either judicial or police custody over a period of just one decade from March 2010 to March 2020. This accounts for 4.6 deaths every single day. One major reason of custodial deaths is the physical torture to which an accused is exposed to by the police officers in order to procure more information thereby building up the investigation.At times, this path of inhumanity is also taken up by judicial officers[10].

On 23rd June, 2020 a father son duo were were declared dead due to deadly injuries suffered because of police brutality. They were placed in Thoothukudi district prison of Tamil Nadu. This incident resulted due to a squabble between the father, son and the police authorities because of non compliance in closing the shop establishment selling mobile accessories during lockdown curfew. Another such incident occurred in February, 2020 wherein a Dalit man was allegedly killed when he was under police custody in the state of Rajasthan pre-detention under charges of theft.

Police Custody Death Cases In A Year

In spite of various mechanisms created to define and create rights available to prisoners like right to legal aid, right to speedy trial, right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from Torture, right to meet friends and consult a lawyer, right to reasonable wages in prison etc, still there are various human rights violations and barriers which exist and prevent prisoners to access justice. Nine specific problems were identified by the court of law in the landmark case of Rama Murthy V. State of Karnataka[11] which affects prisons and rights of prisoners, they are as follows -

?Prisoners kept under detention even after bail is being granted.
?Various malpractices including Corruption.
?Hampered trial proceedings.

?Harsh psychological and physiological torture.
?Punishment given through court verdict not in line with the punishment carried out by jail authorities.
?Lack of proper legal aid.
?Callous and insensitive attitude of jail authorities.
?Lack or insufficient provision of medical aid to prisoners.

Steps Taken To Implement Convetion Against Torture:

The Prevention of Torture Bill was introduced for the very first time in the year 2010 which was a first step towards ratifying the UNCAT. Unfortunately, this bill was soon lapsed.

The National Campaign against Torture released their 2019 data which mentioned about more than 1,700 people dying due to police custody which accounts for five deaths every day.

Before the ratification of any international treaty, the first step taken by the Indian Government is to pass a similar legislation which seeks to express the obligations of the treaty. The major recommendation from the Law Commission of India in 2017 was to pass a national law ratifying the United Nations Convention Against Torture.

Afterwards, the Commission also prepared a draft for the same, although it lacked the basic essentials for a stable law as it disturbed the provisions of the CrPC and IPC.

Shortcomings Of The Torture Bills

Prevention of Torture Bill, 2010
The major reasoning provided for the introduction of the ‘Prevention of Torture Bill, 2010’ was to protect innocent people from torture committed by government officials. The bill sought to add a kind of time limit to the period of filing a complaint I.e. within six months from the commitment of the incident as well as authority of a government before a court of law in order for it to entertain the complaint[12]. This would have a caused a disruption as the current existing criminal laws do not provide for the same.

The definition of torture as provided in the bill was not in line with the international convention against Torture. Considering the dualism which exist in India and not paying heed to the definition in an International convention; the definition in the bill lacked ingredients which constitutes emotional torture.

There was no provision for a different body to handle complaints against torture as well as it lacked proper redressal mechanism I.e. granting aid to victims.

These constituents shall be taken care of and a precise draft of the anti-torture law shall be presented if the need for such a law is found viable.

Prevention of Torture Bill, 2017
The Prevention of Torture Bill, 2010 was successful in laying out a basic structure of an anti-torture law in India, although it had many lacunae due to which it was not implemented. The Prevention of Torture Bill, 2017 was more in line with the law commission recommendations as well as the UN convention of Torture and other Cruel activities. The 2017 bill sought to increase the breadth of the conventional concept of torture as it also included emotional or mental torture[13].

 In spite of all of this, the 2017 bill was not implemented as it had some fundamental issue with it.

There was a lack of a resolution mechanism, so the burden of the same was laid on the criminal courts and police officials when majority of the cases of custodial torture occur under police custody.
Many a times there are common grounds for infliction of torture, like attempt to bring out the truth  although there are other discriminatory grounds like race, gender, sex, age etc,. The bill failed to mention the justifiability of the same.
Lack of command responsibility was another issue faced by the bill as quite often it has been observed that justice to the victim is eventually denied due to the co-workers of the perpetrator as they seem to cover up the ill-acts. This is a major factor behind custodial torture being unchecked throughout the course of history of the Indian Criminal Judicial system.
Along with physical harm and mental agony, the bill could have also included acts done in order to change/ alter the personality as well as decrease the capabilities of the person whether physical or mental even if they do not cause physical harm/ mental agony.

The words used to define torture are similar to that of the Indian Penal Code’s definition of grievous hurt which leads to setting the bar of physical torture too high for a perpetrator to be penalized.

Indian Guidelines And Welfare Schemes -

Although prison is a state subject under the seventh schedule of the Constitution of India, the Ministry of Home Affairs provides a long term vision and guidance on the conditions of prisons and reformation of inmates. The Ministry of Home Affairs along with various guidelines, launched the E Prisons guidelines and also conceptualized the project. The main aim of the project was to create a central database of all inmates, under trials and their important details with the goal to automate the prison administration[14].

Guidelines relating to Transgender Persons in Prisons were also released catering to the identification, specific infrastructure needs, rehabilitation and sensitization of the officials.

The National Crime Records Bureau has published a report wherein a compiled state wise welfare schemes and best practices followed are mentioned. The state of Haryana has launched the ‘prison calling’ system which helps in connecting with friends, family etc, ‘Mulakat Kaksh’ for conducting small get together with other inmates, ‘Parole Software’ to monitor the parole status, applications and overall smooth functioning. The state of Mizoram has launched the Prisons Welfare Committee under which funds are raised and allocated for needs of the prisoners and especially the poor and needy ones for their medical treatments and home going fares. Similarly other states have also launched various welfare schemes like grant of Rs.5,000 for rehabilitation, vocational training programs, prison bazaar, prison adalat, jail varta (video conferencing facility) etc,.

International Guidelines

The United Nation’s General Assembly has adopted and also proclaimed ‘The Basic Principles for the Treatment of Prisoners’ in the year 1990 which clearly emphasizes on the importance of the basic fundamental rights and other moral rights like to undertake basic work and earn, taking part in cultural and educational activities, avail basic health services, providing suitable circumstances

to reintegrate prisoners who have served their term into the society etc[15],.

 This is in line with the Universal Declaration of Human Rights and the respective rights to prisoners mentioned therein. The Universal Declaration of Human Rights mainly seeks to provide the right to equal protection, protection from arbitrary arrests, due process of the law and protection from torture. International Human Rights including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also known as the ‘Torture Convention’, International Covenant on Civil and Political Rights (ICCPR), Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment have achieved significant development in prohibiting inhuman and cruel behavior with prisoners.  The Beijing Rules (also known as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice) caters to protection of rights of juvenile prisoners.

The United Nations Nelson Mandela Rules implemented by the United Nations Office on Drugs and Crime, the Guidelines for investigating deaths in custody implemented by the International Committee of the Red Cross are some other international guidelines catering to human right violations in prison and overall prison administration.

RIGHTS OF PRISONERS CONFERRED UNDER THE INDIAN CONSTITUTION AND VARIOUS STATUTES -

Constitution of India:
Article 21 (1) and Article 21 (2) of the Indian Constitution grants the following rights to prisoners -

?Right to fair trial,
?Right against custodial violence and death in police lock-ups or encounters,
?Right of inmates of protective homes,
?Right to free legal aid,
?Right to live with human dignity,
?Right to speedy trial,
?Right against cruel and unusual punishment.

Other rights like right to reasonable wages in prison, meet friends and consult lawyer of choice, right to know the grounds of arrest, right against handcuffing, solitary confinement and bar fetters,

 right to receive books and magazines and publication etc, are granted by the Indian Constitution. Right against self incrimination and double jeopardy are some other rights available to prisoners.

Prisons Act, 1894:
Various sections under this statute cater to rights of prisoners, they are as follows -

?Section 7 of the Prisons Act, 1894 provides for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison,
?Section 24(2) of the Prisons Act, 1894 mentions about right of prisoners to medical examination by any qualified Medical officer,
?Section 4 of the Prisons Act, 1894 talks about accommodation and sanitary conditions for prisoners,
?Sections 31 and 35 of the Prisons Act, 1894 states about provisions relating to treatment of  prisoners who are on parole as well as temporary release, under trial and civil prisoners. Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and under trial prisoners are mentioned under Section 27 of the Prisons Act, 1894.
 

Code of Criminal Procedure, 1973:
Chapter 5 of the Code of Criminal Procedure which mentions about Arrest of Persons grants some rights to persons arrested, they are as follows -

Section 50 (1) and section 50 (2) of the CrPC provides the right to the arrested person to be informed of grounds of arrest provided the arrest is made without any warrant and the right to avail a bail provided such a person is being accused of bailable offence respectively. Article 22 (1) of the Indian Constitution grants a similar right.

Section 54 (1) mentions about the examination of the person arrested as a right by any medical officer and in the absence of a medical officer, a registered medical practitioner.

According to section 57 of the code provides the right to any person arrested to be presented before the court of law within twenty four hours with the exception of section 167 of the code.

Any arrest or detention made for interrogation should have strong reasonable grounds and be made open to public, friends, family along with fair legal representation under sections 41 (A), 41 (B), 41 (C) as well as 41 (D). This provision was added in the 2009 amendment.

Proposing bribe, intimidation, promise to further the scope of investigation is restricted as per section 163 of the Code. This is because under section 24 of the Indian Evidence Act (1872), any statement or confession made by the undertrial is inadmissable which also gives the right to not make any confession against the will of such person. If such a thing is considered admissable, the police would be encouraged to rely on torture to obtain evidence against him.

Redressal Mechanism

National Human Rights Commission:

The National Human Rights Commission which came into being in October, 1993 is the most sought after platform for the promotion and protection of all human rights. It received the status of a statutory body after the Protection of Human Rights Ordinance was converted into an act. Chapter 3 of the Protection of Human Rights Act,1993 deals with the functions and powers of the National Human Rights Commission under which section 12 (c) grants the power to the commission to visit any jail or other institution under the State Government, make a report on the living conditions of the people and submit suggestions to the Government accordingly.

The service of online filing of complaints can also be availed through the HRC Net portal available on the NHRC website and one can also track the status of their grievance filed irrespective of whether it being filed on the National Human Rights Commission [16]or any State Human Rights Commission.

Under the Code of Civil Procedure, 1908 the NHRC has the powers of a civil court and can summon, examine, enforce witnesses on oath, acquire any documents from the court or other office, on the base of affidavits receiving evidences etc,. This power is granted under section 13 (power relating to inquiries) of the Protection of Human Rights Act, 1993.

Once a complaint is received, the legitimacy of the issue and if a human right is violated, the commission checks if whether any step is being taken to resolve it and if not the commission leads the investigation through its investigation team.

NGO’s:

Various prominent NGO’s like Kashish Educational and Welfare Trust (Jammu and Kashmir), International Bridges to Justice India Trust (New Delhi), John Augustus Prison and Social Welfare Services (Odisha), Defence Pensioners Welfare Association (Allahabad) etc, provides legal support and humanitarian aid I.e. pro-bono to the inmates in order to restore their fundamental rights.

The leading anti-torture platform for Non Governmental Organizations ‘The National Campaign Against Torture’  published their report in June 2020 which stated 125 custodial deaths out of which 124 deaths occurred under police custody due to impunity and torture. The police brutality was covered in detail and the main cause stated for the same was ‘extracting information/confessions merely based on allegation[17]s.’

Suggestions

Future Scope:

Custodial death - Till date, law remains silent on the failure to report a custodial death, although as per the guidelines laid out by National Human Rights Commission, ‘if any custodial death is not reported within 24 hours of occurrence, it is presumed that there was an attempt to suppress the incident.’ There should be some kind of punishment/recourse if authorities fail to report custodial deaths. As most of the custodial deaths take place under police custody; the police departments often come up with various trivial reasons if at all an internal inquiry is conducted.

Many a times deaths outside the lockup are not even informed to the National Human Rights Commission. As per the guidelines issued by the National Human Rights Commission, within a period of two months of such custodial death a magisterial inquiry is compulsorily to be held in order to investigate the reason of death and the instances which led to such an incident. In case of

custodial deaths, filing of First Information Report is vital and necessary but is barely followed by the authorities. Law needs to be amended to increase the compliance rate in this regard.

Need for a specialized law - A central/state specific law enforcement agency is the dire need in today’s time which can cater to human rights violations and discrepancies in the police departments leading to torture/non-compliance of law. Creation of a central agency might not be hassle free as prison falls under state governments.

Open prison system - The total number of prisons in India is more than 1,350 and only 70 of them have adopted open prison system. Compulsory induction of open prison system in all jails across India. This helps in reducing the issue of over crowding and also reduce overall operational cost of prisons.

Lacunae in Protection of Human Rights Act, 1993 - The commission is not authorized to penalize those who do not comply with the passed orders and it can only provide with recommendations for the remedy to be followed by the parties. Hence, it is implied that they are not binding on the parties. This furthers the cause for a different legislation which includes the establishment of central and state specific authorities to deliver justice.

This leads to a scope of amending the same which can include not only delegating the powers of delivering binding orders but also basic anti-torture provisions. The main issue till remains that India is still not a signatory to the Convention against Torture.

Conclusion

As Mahatma Gandhi rightly stated, “Hate the crime and not the criminal.”  People do not lose their humanity whenever they are imprisoned. The apex court has stated this in various landmark cases so that prisoners are provided with proper rehabilitative environment which can assist them in growing and becoming a better person in life. It is the  state governments' duty not only to provide inmates with morally acceptable living conditions, but also to inform them about their fundamental freedoms so that they are not mistreated by the dominant in the prison.

Torture as a matter cannot be termed as legitimate ever be in under any given situation. Public crisis, rebellion, wars cannot be used as an excuse to justify torture. It is duly restricted by Indian Constitution, various landmark Supreme Court judgments and laws. The UN human right standards and the humanitarian law term torture as illegal. Nevertheless, the number of petitions mentioning torture are increasing day by day as well as custodial deaths, because of the actions of those responsible for serving our Constitution and Republic laws, along with security of our residents.

The judiciary of any country plays a very crucial role in defending the interests of inmates whenever the executive has overstepped the mark. Judicial activism has played a vital role in curbing human rights violations and has repeatedly acted as a savior for convicts. Although there is still much left to be done. Prison as a subject matter should be included in the concurrent list so that an enactment of uniform prison law could be implemented along with a central department for prison management and grievance resolution which can be backed by similar state departments.