Q) What do you understand by custodial torture? Examine its current status in India and discuss how the current laws have proved insufficient to deal with such cases.
Why this question?
Important part of GS Paper-II.
Key demand of the Question
Discuss what custodial torture is, explain and present its status in India and discuss the challenges faced in curbing it.
Examine – When asked to ‘Examine’, we must look into the topic (content words) in detail, inspect it, investigate it and establish the key facts and issues related to the topic in question. While doing so we should explain why these facts and issues are important and their implications.
Start by giving a definition of custodial torture.
In the first part, present the status of custodial torture in India. Use statistics to substantiate the answer.
In the next part, list down the challenges in curbing the same and explain how the available safeguards have proved insufficient to deal with issues of custodial torture.
Conclude with a way forward.
Custodial violence or custodial torture primarily refers to violence in police custody and judicial custody. It may be mental or physical in nature. According to National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1,727 such deaths being recorded in India.
Status in India:
- Only 4.3% of the 70 deaths in 2018 were attributed to injuries during custody due to physical assault by police.
- Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Odisha, no policeman was convicted for such deaths across the country.
- Apart from custodial deaths, more than 2,000 human rights violation cases were also recorded against the police between 2000 and 2018. And only 344 policemen were convicted in those cases.
Constitutional and Legal Provisions:
- Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian constitution.
- The right to counsel is also a fundamental right under Article 22(1) of the India constitution.
- Section 41 of Criminal Procedure Code (CrPC) was amended in 2009 to include safeguards under 41A, 41B, 41C and 41D, so that arrests and detentions for interrogation have reasonable grounds and documented procedures, arrests are made transparent to family, friends and public, and there is protection through legal representation.
- Absence of Strong Legislation: India does not have an anti-torture legislation and is yet to criminalise custodial violence, while action against culpable officials remains illusory.
- The Indian state either denies the existence of torture in the country or defends its resistance to enact a law by claiming there are sufficient provisions in the domestic legal framework to prohibit and penalise torture.
- These claims however remain superficial and without any such protections.
- Institutional Challenges: The entire prison system is inherently opaque giving less room to transparency.
- Prison access is not provided without prior permission such as depositing “Rs. 1 lakh in the name of the superintendent of the concerned jail” before entry.
- Excessive scrutiny is done of all recorded or documented material in the prison.
- India has also failed to bring the much-desired Prison Reforms and prisons continue to be affected by poor conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons.
- Excessive Force: The use of excessive force including torture to target marginalised communities and control people participating in movements or propagating ideologies which the state perceives as opposed to its stature.
- Not Adhering to International Standard: Although India has signed the United Nations Convention against Torture in 1997 its ratification still remains.
- While Signing only indicates the country’s intention to meet the obligations set out in the treaty, Ratification, on the other hand, entails bringing in laws and mechanisms to fulfil the commitments.
- India should ratify the UN Convention against Torture: It will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment.
- It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.
- Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
- Access to Prison: Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed.
- CCTV cameras should be installed in police stations including in the interrogation rooms.
- Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measure against custodial torture as suggested by the SC in the DK Basu Case in 2015.
- Effective Implementation of Law Commission of India’s 273rd Report that recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
Custodial torture is a serious human right violation that not only undermines the ideals enshrined in the Constitution of India but also diminishes the image of India as a responsible country globally. Therefore, steps must be taken to prevent such incidents.