Custodial torture is global, old and stubborn. Recent incident where the Kerala high court ordered a probe into the actions of Idukki magistrate over custodial death of a 49-year-old man. This is the fifth allegation of custodial death against the Kerala Police since 2016. In India, the National Human Rights Commission figures of reported torture cases, the report said the figures showed custodial violence and torture continue to be rampant in the country. It also pointed out that the number of reported cases being only a fraction of actuals, the situation was serious.

Body:

Custodial torture is an inhuman practice:            

• It represents the worst form of excesses by public servants entrusted with the duty of law enforcement.
• The practice of custodial power is about men — and sometimes, women — who are in positions of power, even if for a brief while and over a limited terrain, having custody over a powerless person.
• Custodial death, when not ‘natural’, is the extreme end-point of custodial torture. The death penalty, notwithstanding ‘due process’, is a close kin to this lawless and heartless game.

Need for an anti-torture legislation in India:

• India has practised and continues to practise the ‘third degree’ with impunity.
• India signed the UN Convention against Torture in 1997, but neither has it ratified nor followed or preceded by domestic legislation to outlaw and prevent custodial torture.
• India’s non-ratification of the Convention is both surprising and dismaying.
• In 2010, the then government introduced Prevention of Torture Bill in the Lok Sabha in 2010 and had it passed in 10 days. The bill as passed by the Lok Sabha was referred to a select committee of the Rajya Sabha.
• The committee gave its report recommending the Bill’s adoption later the same year. It lapsed with the dissolution of the 15th Lok Sabha. And was not revived by the 16th, the present Lok Sabha.
• The current government spoke of amending Sections 330 (voluntarily causing hurt to extort confession) and 331 of the Indian Penal Code, but in vain.
• There has been no consistent documentation of torture-related complaints. The National Crime Records Bureau (NCRB) does not document cases of custodial torture. The NHRC does deal with cases of torture in custody, but the annual figures related to such cases do not get reported in its reports.
• In the ten-month period between September 2017 and June 2018, English language news reports on Internet noted 122 incidents of custodial torture resulting in 30 deaths. In several cases among these 122 incidents, there were multiple victims.
• The procedure to deal with children in conflict with law is different from the routine procedure of criminal justice system. But incidents show that children have been subjected to torture in police custody
• Torture is not just confined to police custody, but is also perpetrated in otherwise assumed to be “safer” custodial institutions like judicial custody (prisons), juvenile homes, de-addiction centres etc
• Nine years after the report of the Select Committee and 21 years after signing the Convention, India is yet to legislate a law that will outlaw torture

Way Forward:

• In a matter that concerns ‘life and liberty’, the Supreme Court is the guardian of the Constitution’s guarantees.
• The Law Commission of India submitted its 273rd report recommending government to ratify the UNCAT and also proposed the Prevention of Torture Bill 2017.
• Definition of torture should be broadened to include discrimination of any kind as one of the purposes of torture. It is widely recognised that discrimination based on religion, caste and association with ideas does have an impact on the incidence and extent of torture.
• Given the fact that there is a possibility of a range of acts that can be committed under torture, cruelty and ill-treatment leading to differing severity of harm—the punishment prescribed should have further gradation. Also, death penalty should not be included as the punishment.
• The bill should enlist possible factors based on which the calculation of compensation should be devised.
• It is imperative that the democratic opposition makes the ratification of the Convention and a new anti-torture legislation part of its common programme. The 17th Lok Sabha must take a stand on this matter.
• It gives us a choice to join the civilised world in moving away from ancient barbarism

Conclusion:

The prevention of torture has been one of the key human rights developments in the last decade. With India’s strong stake for a seat at the UNSC, the issue has assumed importance. There is an urgent need to address the ways in which inequalities continue to exist and question the nature of our criminal justice system which turns a blind eye to torture.