MALPRACTICES BY AUTHORITIES IN INDIA

TUSHAR RANJAN & ANSHU JAYKAR | On 19^th June 2020, the Tamil Nadu police arrested P. Jayaraj and his son J. Fenix for keeping their shop open longer than permitted under the lockdown rules during COVID 19. Four days later they both were dead. Unfortunately, custodial deaths aren’t something new in India. The police routinely use torture and break protocols while investigating cases. In 2019, the National Campaign against Torture (NCAT) documented the death of 125 persons in 124 cases in police custody across the country. Out of the 125 deaths, 93 persons (74.4%) died during police custody because of alleged torture/foul play.

India is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). To produce a more effective implementation the said convention must be ratified in India. Accordingly, the Prevention of Torture Bill was introduced in the Lok Sabha on 26^th April 2010.

THE PREVENTION OF TORTURE BILL, 2010

Under clause 3 of the Prevention of Torture Bill, 2010, torture is defined as an act done intentionally on a person to obtain from him or a third person such information or a confession which causes,- (i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person. Nothing contained in this section shall apply to any pain, hurt, or danger as aforementioned caused by any act, which is inflicted under any procedure established by law or justified by law. It is further provided that words and expressions used in this Act shall have the same meanings respectively assigned to them in the Indian Penal Code.

This definition of torture and was considered to be too narrow and excluded various specific and serious offences recognized under the Indian Penal Code. It has limitations and drawbacks in recognizing acts of torture. This research paper tries to identify whether the definition under the Prevention of Torture Bill, 2010 is adequate to criminalize acts of torture routinely inflicted by public servants in India.

ISSUES AND DRAWBACKS

In the definition, the purpose for which torture is inflicted must be made clearer. Obtaining information or confession is a legitimate government function, the problem arises when there is an essence of brutality or sadism in implementing these functions or an intention of incriminating the innocent. Importance must be given to specific techniques of interrogation. This can be tackled by setting definite rules for the treatment of prisoners in custody.

Grievous hurt defined in Sec. 320 of the IPC is an exhaustive definition that contains eight categories of grievous hurt which are of a high threshold and magnitude. Commonly used methods of 3rd-degree interrogation include severe beatings, electric shocks, headbanging, punching, cigarette burning, rubbing of pepper, or other substances on mucus membranes and other forms of aggravated deliberate subjection of a person’s body to pain.None of the aforesaid mistreatments would be considered to be torture as they do not fall under the eight categories of grievous hurt. In Jalim Singh v. State of Rajasthan gunshot injuries to the arms, thighs, and back of a victim were held as not causing grievous hurt as injuries caused to the complainant were not imminently dangerous nor caused on any vital part of the body.

Special provision for mental agony, injury, pain or trauma must be made. Torture on the mind of the victim does not leave any physical marks as evidence, often resulting in the victim committing suicide. Methods used to obliterate the personality of the victim or diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish must be considered as psychological torture.Assault on the mind can be broadly divided into three categories:

(a) Psychological- Isolation, sensory deprivation, sensory overload, sleep deprivation, temporal disorientation;

(b) Psychophysiological: Thermal, stress positions;

(c) Psychosocial: Cultural humiliation, sexual degradation.

Clustering of these environmental stressors appears to cause particularly pernicious psychological impairment in exceptional, extreme and torturous environments. The jurisprudence of International tribunals confirms that psychological suffering alone can amount to torture or cruel and inhuman treatment. A leading case can be found in the Inter-American System: the “street children case” in which the Court found that a 16-year-old and a 17-year-old who had been abducted and killed by police officers must have known before their deaths that there was a serious risk to their lives and that this fact alone occasioned “a situation of extreme psychological and moral suffering.”

The European Court has had a significant influence in shaping international norms by deciding numerous cases involving torture and ill-treatment. The Court acknowledged that a special stigma is reserved for conduct constituting torture, it has asserted that an evolving standard should be used to evaluate conduct in light of present-day conditions and human rights norms. Torture must be defined by taking into consideration the following sections of the society.

1. WOMEN

Article 21 guarantees the fundamental right to live with human dignity, this applies even while under police custody. In March 1992, Amnesty International’s report which described rape as a common form of torture in India. This report confirms the fact that rape is an unsettling feature of torture on women under custody. Agger defines sexual torture as the use of any form of sexual activity to manifest aggression and of causing physical and psychological damage. Article 15(3) of the Constitution allows the Union and the State Governments to make special provisions to protect and safeguard the interests of women. The stoicism women took and the vulnerability she has faced makes it necessary for the government to adopt certain measures so that the socio-economic, political and other disadvantages faced by her. Special laws have been enacted and amendments have been for the same. Given the seriousness and the increasing pervasiveness of gender violence on women under custody specifically considering women while defining torture represents good public policy.

2. JUVENILES AND MINORS

Juveniles are exposed to violations while under police custody, Juvenile Justice Homes, and Observation Homes. International standards for juvenile justice provide that children should be held under detention for the shortest time possible even though keeping a child in lock-up is prohibited in India the actual reality is different. Aangan, an Indian NGO researched in 3 Indian states revealing that almost all children in the observation homes have had their rights violated and have suffered extreme violence. 76% of juveniles reported have been in lockups for long periods. The children often cope with such brutality with self-harm. The NCRB in its “Crime in India- 2018” recorded  3,164  cases of simple hurt and grievous hurt caused by the police on 3,467 minor victims.

The concept of protective discrimination under Article 15(3) applies to children as well. To safeguard the interests of children the social evil against them must be eradicated. The rate of growth of torture on children can be seen from the above data. The pain threshold of juveniles is way lesser than that of adults. Acts that cause torture to a juvenlie may not be tortorous to an adult. The present definition is inadequate to define torture for a juvenile for this very reason they deserved to be considered while defining torture.

3. LGBTQ

The rights of the LGBTQ community were recognized with Navtej Singh Johar vs Union of India, this judgment was built upon various other judgments like National Legal Services Authority vs Union of India, where the Supreme Court recognized transgender as a third gender with the right to enjoy all fundamental rights. Transgender persons must be considered while defining torture as they are subjected to arbitrary arrests, custodial torture, and even illegal detention emerging from non-conforming gender identity, moral, religious, and social stigma. The United Nations Special Rapporteur on torture has settled the fact that ill-treatment of LGBTQ persons is often deemphasized and not recognized due to gender stereotypes.

The violence against kothis and hijras is an all-encompassing nature of  violence, from both state and civil society, the nature of surveillance by the state, and the deeply sexual nature of the violence. They are subjected to verbal abuse, beatings, and other such disgraceful acts including the insertion of foreign bodies into the sex organs or rectum or electrical torture of the genitals under police custody. Torture, as defined under the bill completely, overlooks the present position of the LGBTQ community.

• SCHEDULED CASTE, SCHEDULED TRIBES, AND MINORITY GROUPS

Derogatory, cruel, and inhumane treatment has been advocated in the society based on religion, caste, or even gender, the perfect example the world could ever see is the Holocaust. In 2019, NCAT documented deaths of 125 persons in police custody of which 75 persons belonged to the poor and marginalized communities, these included 13 victims from Dalit and tribal communities, 15 victims belonged to the Muslim minority community.

The Special Rapporteur’s report, 1986 on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment encloses a list of acts which amounts to torture. The list incorporates methods of physical torture which includes “Falanga” that consists of hitting the feet with a stick or a metal instrument and proves a long term syndrome without apparent wounds on the feet, “Parilla” that consists of the attachment of a prisoner to the grill of burning coal, sexual aggression and even electric shock. Including such a list in the form of a schedule in the Prevention of Torture Bill would help in defining torture by establishing current trends as acts of torture with proper categorization.Torture cannot have a concrete definition as it takes various forms and evolves but a non-exhaustive list of declared acts of torture will help in better deliverance of justice.

CONCLUSION

Sexual Violence against men have been overlooked in India. Sexual offences against women are specifically provided for. Men suffer torture in the form of sexual violence the most while under police custody. Including sexual violence against men in the schedule will give a broader protection to men.

In the drafting history of the UNCAT alternative formulations for the definition of torture were proposed. The United Kingdom proposed “systematic and intentional infliction of extreme pain or suffering”, France advocated a clear distinction to be made between penalties affecting the person and honour of the criminal and treatment which causes violent physical pain. A similar approach can be used while defining torture in India.Torture, as defined under the Prevention of Torture Bill 2010, is not adequate to criminalize the torturous activities which are inflicted upon persons in India today. Through the ages, torture has been inflicted in gruesome ways. To frame a more adequate definition, women, juveniles, the LGBTQ Community, members of the backward classes, tribes, and minority groups have to be considered. A broader definition can be achieved by an alternative formulation of the definition by minimizing the pain threshold and including mental and psychological pain. It is time that a law against torture is passed.

Tushar Ranjan & Anshu Jaykar are third year student of NUSRL, Ranchi.

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