The ‘Custodial death’ of a father and son in Sathankulam town in Tamil Nadu’s Thoothukudi district gave way to demands for separate law against torture.
In this context, it is essential to look into how implementing the existing laws and recommendations of various commissions would help.
What are the provisions in place?
IPC - Torture is not defined in the Indian Penal Code.
However, the definitions of ‘hurt’ and ‘grievous hurt’ are clearly laid down.
The definition of ‘hurt’ does not include mental torture.
But, Indian courts have included among others, in the ambit of torture -
Voluntarily causing hurt and grievous hurt to extort confession are also provided in the Code with enhanced punishment.
CrPC - Under the Code of Criminal Procedure, a judicial magistrate inquires into every custodial death.
NHRC - The National Human Rights Commission has laid down specific guidelines for conducting autopsy under the eyes of the camera.
SC Judgements - The Supreme Court judgment in DK Basu v. State of West Bengal was a turning point in matters of custodial torture.
The Court’s decision in Nilabati Behera v. State of Orissa is also notable.
It ensured that the state could no longer escape liability in public law and had to be compelled to pay compensation.
Therefore, there is neither a dearth of precedents nor any deficiency in the existing law.
It is not the law per se but the improper implementation that fails to deter incidents of custodial torture.
What are the drawbacks in the Prevention of Torture Bill?
A fresh draft of the Prevention of Torture Bill was released in 2017 for seeking suggestions from various stakeholders.
The Bill was vague as well as very harsh for the police to discharge its responsibilities without fear of prosecution and persecution.
It was inconsistent with the existing provisions of law.
It included ‘severe or prolonged pain or suffering’ as a form of torture but that was left undefined.
The proposed quantum of punishment was too harsh.
The 262nd Law Commission Report recommended that the death penalty be abolished except in cases of ‘terrorism-related offences.’
Despite this, the Bill provided for the death penalty for custodial deaths.
Most countries have deleted or are deleting the death penalty from their statute books.
But India is on path to enact fresh legislation with death penalty as the ultimate form of punishment.
The Bill also makes the registration of every complaint of torture as an FIR.
There is a blanket denial of anticipatory bail to an accused public servant.
This seems less reasonable.
The bail can be refused in appropriate cases.
But, excluding an investigating officer from availing such an opportunity shall amount to putting him/her on the highest pedestal of mistrust.
Overall, the proposed Bill was less reformative and more vague, harsh and retributive in nature.
What about the UN CAT?
In 2017, the Central government admitted in the Supreme Court that it was seriously considering the 273rd Report of the Law Commission (LC).
The LC recommended ratification of the UN Convention against Torture and other Cruel, Inhumane or Degrading Treatment (CAT).
CAT was signed by India, but is yet to be ratified.
However, except for minor discrepancies, the prevalent law in India is adequate and well in tune with the provisions of CAT.
What is to be done?
There is first the need to implement the existing laws and provision in its true spirit.
The investigations and the prosecutions are not fair; these must be rectified first.
There is also the need to make better the police training.
The temptation to use third-degree methods must be replaced with scientific skills.
Thus, the need of the hour is to strike at the root cause of the problem and implement recommendations of various commissions to bring in necessary reforms.
