Custodial death toll rising, yet no anti-torture law

A consensus has long existed in the international community around the fact that torture is a wholly untenable practice that can never be justified under any circumstances. The Universal Declaration of Human Rights (UDHR) reflects this view by placing an absolute prohibition on torture and cruel, inhuman or degrading treatment.

Yet, unfortunately, torture continues to remain an inextricable component of the penal culture of our country. As stated by the Minister of State for Home Affairs in Parliament in 2021, India recorded custodial deaths of 11,419 people from 2016-17 to 2021-22, i.e. over five persons per day. Institutions ranging from the Supreme Court to the Law Commission to the National Human Rights Commission (NHRC) have expressed frustration at the persisting prevalence of torture and have laid down prescriptions to prohibit the practice. However, these directives have done little to curb it.

To tackle a problem of such magnitude and persistence, the necessity of a special law has been weighed many times. However, such legislation continues to elude us. The Prevention of Torture Bill, 2010, lapsed in the Rajya Sabha after getting passed in the Lok Sabha, and since then, no such law has been introduced in Parliament despite the Law Commission proposing a draft bill in 2017.

In 2019, the Supreme Court too declined a petition that requested the court to direct Parliament to pass an anti-torture law. Moreover, the definition of torture in the 2010 bill was significantly narrower than the one provided under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), exclusively covering instances involving the extraction of confession and leaving out torturous punishment and mental torture from its ambit. Furthermore, the bill provided for a limitation period of six months for filing a complaint alleging torture. There is, thus, a critical need for expansive central legislation prohibiting torture for a number of reasons. 

First, enacting an anti-torture law would be a crucial step towards fulfilling an important international obligation. Despite being a signatory to the UNCAT since 1997, India has not ratified the convention yet. This is an inexplicable omission, as firstly, India has signed and ratified the International Covenant on Civil and Political Rights (ICCPR), which places an absolute prohibition on torture, and secondly, such prohibition is also universally regarded as a jus cogens obligation binding on all states. In addition to being a step towards the realisation of an international obligation that’s long overdue, a law that incorporates the expansive protections contained in the UNCAT would go a long way in checking police brutality in all its forms.  

Secondly, existing safeguards in the legal framework have not been very effective. Although confessions given to the police in custody carry no evidentiary value, it is almost standard protocol for the police to coercively extract confessions. As far as the IPC is concerned, the term ‘torture’ is nowhere defined. Moreover, the purview of the provisions that purportedly govern torture, namely Sections 330 and 331, is restricted to situations covered under custodial interrogation alone, such as the extraction of confessions. This leaves out abuse and cruel treatment suffered at the hands of the police in a number of contexts outside custodial interrogation. These include staged encounters, extra-legal punishments and mistreatment in prisons. An effective anti-torture law must also cover these forms of rights violations that often do not find redress through the usual routes of the criminal justice system.

Thirdly, at present, there is a lack of a framework to affix accountability for public officials engaging in acts of torture. As per NCRB data, from 2018 to 2021, no police official was convicted for custodial deaths. Excessive and high-handed police action enjoys tacit institutional support across the criminal justice system, giving rise to a culture of impunity among police officials. Following allegations of custodial torture, crucial steps such as judicial inquiry and a transparent autopsy procedure are often not adhered to. Departmental inquiries by the police serve as exercises in whitewashing. The NHRC too seldom takes a proactive approach in pursuing investigations of torture despite possessing the requisite power. A prospective anti-torture law must provide for an independent oversight mechanism and impose binding obligations on authorities to ensure the transparent investigation and prosecution of public officials.

Torture has long been entrenched in our criminal justice system, resulting in unconscionable injustice and institutionalised rights violations. It is, therefore, time to take concrete steps towards putting an end to it through an effective law that ensures the meaningful realisation of human rights, safeguards the dignity of detainees and fosters a culture of accountability. 

(The writer is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) team at Vidhi Centre for Legal Policy)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.