Torture is now absolutely and without any reservation prohibited under international law whether in time of peace or of war...[T]he prohibition of torture can be considered to belong to the rules of jus cogens. If ever a phenomenon was outlawed unreservedly and unequivocally it is torture...If there was some disagreement [in the General Assembly] in respect to [the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], it had to do with the methods of control and implementation. There was no disagreement whatsoever to the fact that torture is absolutely forbidden.
— "1st Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment", in Customary International Law and Torture: The Case of India, by A Mark Weisburd
Custodial violence refers to violence that is experienced physically, psychologically as well as emotionally in the custody of law and lawful authority, which includes enforced disappearance, illegal detention, torture, extrajudicial execution, and various other forms of cruel, inhuman, and degrading treatments and punishment. Custodial violence involves specific situations such as those where custody itself is prima facie unlawful or does not have any authority of law, which is a violation of rights originating at the moment of invoking custody, and this continues post custody too, for instance, crimes of illegal detention and enforced disappearance by state or agents of state, that is, public authorities.
Another specific situation is when the custody itself is lawful but the standards of custodial practices are not followed post custody. Thus violation of rights starts at some point of time post detention custody and this may continue during custody.
The role of the police and the nature of policing have become the focus of debate and controversy among politicians, media, and the public. With the police often being the major violator of human rights and the culprit in custodial violence, Indian policing is often perceived to be in a state of crisis. Major misuse of power and cause of injustice to the people have weakened the public confidence in police. There has been little agreement on what the police should do and not do, and this is the reason why there is a huge commotion in the structural foundation of the entire police system in India.
Legal instruments against torture in India
The crime rate in India is much higher as compared to other nations, especially when it comes to violation of human rights and human dignity. The ever-escalating trajectory of the crime rate also questions the role and status of the police system and the overall administration of law, order, and justice in the country. There lies a huge responsibility with the police force of the country to curb crime.
As per the Indian Constitution, members of the police force are public servants and a police station is considered as public property. Therefore, the duty and the conduct of a police officer must conform to the law of the land, respect basic human freedom, and obey as well as maintain law and order in the country. However, time and again, we observe a contrasting character where members of the police are involved in custodial violence, torture, inhuman treatment, handcuffing prisoners, use of third degree methods, and so on, which are often demonstrated and practised by the police force during their official duties.
Relevant provisions under the Indian Constitution
The CoI is based primarily on the principle and concept of equality among all citizens irrespective of their status, gender, caste, or creed and social, economic, and political justice. The Constitution also guarantees some exclusive rights for persons who are under institutional custody besides other rights including fundamental rights. The concept of equality and the provision for protection against torture or any other arbitrary behaviour forms the basis of the Indian Constitution. Thus each and every citizen of the country has the right to equality and protection before law.
This can be in the form of reasonable, right, and fair conduct and protection from any kind of arbitrary treatment. In addition, the Supreme Court of India has also acted towards supporting protection from such treatment and has discouraged the death penalty, which denotes an act of arbitrary treatment. Thus, protection of the rights of the citizens of this country is the first and foremost duty of the government or any of its representatives.
Besides providing the right to equality and protection from arbitrary treatment, the Constitution also guarantees another exclusive freedom to citizens, namely, freedom of movement, association, assembly without arms, and so on, but these freedoms can be restricted by law in certain conditions such as upholding integrity, sovereignty, security, public order, morality, and decency and while maintaining friendly relations with foreign states.
The Constitution also guarantees protection against self-incrimination, double jeopardy, and ex post facto laws. This means that no person in the country can be forced or compelled to provide any testimony against himself. Forced or compelled testimony is not only limited to confessions or statements but also includes incriminatory statements.
The right to life and personal liberty as guaranteed by the Constitution establishes that nobody’s life and liberty can be taken away and nobody can be deprived of their right to life and personal liberty unless there is a procedure that has been established by law.
The Supreme Court of India has further interpreted the “procedure established by law” as “due process of law” and thus stated that as per Article 21 of the Constitution, the procedure of law must be fair, just, and reasonable and not arbitrary, cruel, or whimsical, which thus provides a triangular relationship between Articles 14, 19, and 21.
The Constitution also guarantees protection against detention, which includes the right to be informed about the grounds for detention and the right to consult and to be defended by a lawyer of choice. But it is also the duty of the detaining authority to produce the detained person before the competent magistrate within 24 hours of detention or arrest. However, such right to protection is not given to any enemy or alien during war and in case of preventive detention laws.
Moreover, such preventive detention is time bound, that is, it should not be for more than three months. The Constitution also states that the rights guaranteed under Articles 20 and 21 must not be suspended even during emergency.
Although “torture” is not defined per se in the CoI, the Constitution emphasises the fundamental rights of its citizens and provides for respect and human dignity. Article 21 of the CoI provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. This can be interpreted as a guarantee to live life with dignity, free from any kind of torture or cruel, inhuman, and degrading treatment or punishment.
Further, Article 22 of the Constitution provides protection against arrest and detention in certain cases and provides guarantee against detention or custody without proper information on the grounds for arrest. It also provides that such detained persons have the right to consult a lawyer and defend themselves. Article 22 further states that the arrested and detained person is required to be produced before a magistrate within 24 hours of the arrest. Article 20(3) provides that the accused person shall not be forced into self-incrimination, that is, to be a witness against himself.
Other legal provisions
- Section 54 of the CrPC, 1973, grants the arrested person the right to have himself medically examined. Under sec. 164 of CrPC, making a confession is a voluntary action and it is made in front of a metropolitan or judicial magistrate. Section 162 of CrPC provides that no statement of a witness or any person during an investigation recorded by a police officer can be used for any purpose other than to contradict his statement before the court.
- Sections 330 and 331 of the IPC provide for punishment for injury inflicted for extorting confession. Section 330 provides for causing a simple injury, while sec. 331 provides for causing grievous injury or harm to any person. Further, the crime of custodial violence or torture against prisoners can be brought under secs 302, 304, 304A and 306.
- Under the Indian Evidence Act, 1872, secs 25 and 26, a confession made to a police officer is not admissible in evidence. Section 24 of the act provides that a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat, or promise.
Excerpted with permission from Torture Behind Bars: Role Of The Police Force in India, Joshua N Aston, Oxford University Press.