Custodial torture challenges democracy and dignity

Ashwani Kumar

Former Union Minister for Law and Justice

THE Prime Minister’s recent advice to the police top brass to shun the danda (baton), along with his declaration that the new criminal laws have been crafted with the spirit of ‘citizens first, dignity first and justice first’, is a hopeful augury for the much-delayed enactment of a comprehensive, standalone legislation to prevent recurring acts of custodial torture that shame the nation. The new year should indeed be an occasion for the country to reinforce its democratic credentials anchored in a steadfast commitment to the advancement of human dignity as the foremost fundamental right.

The much-awaited comprehensive legislation addressing various aspects of the crime of torture will be in furtherance of the guaranteed right to life with dignity under Article 21. Such a law will also enable India to ratify the United Nations Convention against Torture (UNCAT), which has not been possible in the absence of a compliant domestic law. India’s ratification of the UNCAT will spare the country the embarrassment of facing repeated calls for accountability at the United Nations Human Rights review meetings, for non-ratification of the convention. Ironically, in a first resolution to be proposed by a third-world country, it was India that had initiated the United Nations Resolution 32/64 of December 8, 1977, calling upon governments to unilaterally comply with the declaration against torture. Over the years, India has been a signatory to several international treaties that prohibit torture in any form and seek its elimination. Articles 51(c) and 253 of the Indian Constitution mandate respect for international law and compliance therewith. Considering its legitimate aspiration for a rightful role in shaping the new world order anchored in democracy and respect for human rights, India cannot be seen standing with the likes of Angola, Bahamas, Brunei, Gambia, Haiti, Palau and Sudan, who have not ratified the UNCAT.

Pertinently, the necessity of a standalone comprehensive legislation, covering several aspects connected with custodial torture, has been recognised by a select committee of Parliament that had, in a demonstration of bipartisan support, recommended such a law in the form of Prevention of Torture Bill, 2010. Regrettably, 14 years hence, the nation still awaits this critical piece of legislation against torture. The Law Commission of India, in its 273rd report (2017), and the National Human Rights Commission, in an affidavit filed before the Supreme Court, have also endorsed the advisability of such a legislation. The need for a comprehensive anti-custodial law, on the lines of UNCAT, as against a piecemeal tinkering with the wholly inadequate provisions in the existing criminal laws to address several issues arising out of the acts of custodial torture, is self-evident.

These include a comprehensive definition of torture as a specified crime; prosecution of delinquent public servants, including police authorities; mode and manner of lodging of complaints against custodial torture; protection of public officials against vexatious complaints; ensuring fair and impartial investigation; the question of burden of proof; interim compensation and rehabilitation of victims and witnesses of custodial torture; parameters for deciding the quantum of compensation to be awarded to victims; speedy trial and disposal of complaints; grievance redressal mechanism for complaints that may arise from such trials and disposal thereof; protection of victims, witnesses and complainants; education and sensitisation of police authorities and public servants to encourage the use of scientific methods for effective and timely investigation and interrogation. Endorsing the need for legislation as an instrument of policy, the Consultative Council of European Judges stated in its Opinion No. 18 (2015): “A lack of legislation… may be contrary to the principle of legal certainty.” The enactment of requisite legislation, apart from reinforcing the nation’s commitment to constitutionalism and democracy, will disable fugitives from the law, currently abroad, to evade justice in India on the basis of apprehension of torture in custody.

Torture is a crime that scars the soul, mutilates the body, breaks the human will and dehumanises the victim. It leaves behind for its victims, as author Maria Popova has said, “A suffocating penitentiary in which one’s inner scream becomes deafening, deadening…” and the deepest sense of alienation in one’s innermost recesses “cold as ice and heavy as a stone…” There is no scope, therefore, for executive apathy, legislative lassitude and judicial inconsistency/ambivalence in the matter of a joint resolve against torture, anywhere and in any form. The enactment of an anti-torture legislation is a collective burden of the executive, legislative and judicial wings of the Indian state who are mandated by the first principles of constitutional governance to work in unison for the advancement of national goals.

With our debilitating politics generally limited to a constant ‘jostling in the crowd’ over personal vanities and political animosities, the representatives of the people cannot escape their share of responsibility for ignoring the compelling priority of our times. Nor has the highest constitutional court been able to effectively fill a glaring gap in the law and ensure the effectuation of its elevating jurisprudence on human dignity in relation to acts of torture. The landmark court judgments in this regard that demand validation through a purposive effective implementation include Sunil Batra (2017), Francis Coralie Mullin (1981), DK Basu (1997), Prithpal Singh (2012), Shabnam (2015), KS Puttaswamy (2017), Nambi Narayanan (2018) and Romila Thapar (2018).

Indisputably, a nation inspired by the ideals of a dignitarian Constitution cannot carry the burden of an unconscionable indifference to the inadequacy of legal structures to prevent brazen infractions of individual dignity by torture in custody of the state’s agencies. India’s pre-eminence in the global arena will rest on the strength of its democratic edifice sustained and nurtured by an abiding deference to human rights and accountability of state power. For all the above reasons and more, the logic of an effective anti-torture legislation is unexceptionable. The question is: will keepers of the constitutional faith vindicate the republic’s conscience? The resilience of a nation on the move will be tested by whether those responsible for charting the nation’s destiny and revitalising its democracy live up to their responsibilities.

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