Law commission report No. 273: Implementation of “United Nations Convention against torture through legislation

Law commission report No. 273: Implementation of “United Nations Convention against torture through legislation

Introduction

The biggest democracy in the world, India with the lengthiest written Constitution  provides almost all the freedoms enumerated in the different international instruments. Article 21 of the constitution provides the right to life and dignity and includes rights related to all aspects of life. But on the other hand, India is facing the issues like custodial deaths, fake encounters, miscarriage of justice etc. all these issues can be put under the category of torture. As per the National Crime Record Bureau (NCRB) 2021 data, India recorded 88 custodial deaths. The data suggests a 53 percent rise from the figure of 15 custodial deaths in 2020. In D.K. Basu v. State of West Bengal AIR 1997 SC 610 the Supreme Court observed that: “Torture has not been defined in the Constitution or in other penal laws.

India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the UN on 10th December 1984 (known as the UN Convention against Torture, in short, “CAT“) on October 14, 1997, however, so far it has not been ratified. The International Commission of Jurists and other organisations have urged India to adopt the reforms suggested by the Convention. The government decided to have stand-alone legislation thus Prevention of Torture Bill, 2010 was presented before the parliament but it lapsed.

On 8^th May 2017 the central government asked the law commission of India to prepare a report on the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. This article discusses this report on issue of torture, custodial deaths.

International scenario of torture

Human rights instruments

The right to freedom from torture is one of the basic human rights which is enshrined in several international instruments. These instruments are aimed to protect all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, such as to obtain information. The right to freedom from torture includes the following rights and obligations:

(1) The right of individuals to be protected by the State from torture by its agents

(2) The State’s duty to prosecute torturers; and,

(3) The right of individuals not to be returned or extradited to another State where they may have the risk of being tortured.

The right to freedom against torture has been provided under the following Instruments:

1. Universal Declaration of Human Rights, 1948 (Art. 5)
2. American Declaration of the Rights and Duties of Man, 1948 (Art. 27)
3. European Convention for the Protection of Human Rights and Fundamental     Freedoms, 1950 (Art. 3)
4. United Nations Convention Relating to the Status of Refugees, 1951
5. United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955 (Art. 31)
6. Draft Principles on Freedom from Arbitrary Arrest, Detention, and Exile (1963).
7. International Convention on the Elimination of All forms of Racial Discrimination, 1965 (ICERD)
8. International Covenant on Civil and Political Rights, 1966 (Arts. 4, 7 and 10)
9. American Convention on Human Rights, 1969 (Art. 5)
10. Declaration on the Protection of All Persons from being subjected to Torture and other Cruel Inhuman or Degrading Treatment or Punishment (1975).
11. Optional Protocol to the International Covenant on Civil and Political Rights (1976)
12. Code of Conduct for Law Enforcement Officials (1979) articles 2-3 & 5-6.
13. Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)
14. African Charter on Human and Peoples’ Rights, 1981 (Art.5)
15. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),1984
16. UN Declaration on Basic Principles of Justice for Victims of Crime and abuse of power, 1985
17. Inter-American Convention to Prevent and Punish Torture, 1985
18. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment, 1987
19. Convention on the Rights of the Child, 1989 (Art. 37)
20. European Convention for the Prevention of Torture and other Cruel, Inhuman or degrading treatment or punishment, 1989
21. Cairo Declaration on Human Rights in Islam, 1990 (Arts.19-20)
22. Charter of Paris for a New Europe, 1990
23. Convention on the Protection of the Rights of Migrant Workers and Members of their Families, 1990 (Art. 10)
24. International Convention on the protection of the Rights of All persons against Enforced Disappearance 1992 (CPAED).
25. Arab Charter on Human Rights, 1994 (Arts 8)

From the abovementioned instruments, it becomes clear that the right against torture is recognized as jus cogens or peremptory/absolute norms in the international sphere.  Peremptory norms are the rules of international law under which the prohibition may be enforced against a state even if it has not ratified any of the relevant treaties, and the prohibition is not subject to derogation, even in times of war or emergency. Jus cogens are international norms considered so fundamental that no deviation from them is permitted

Implementation of convention against torture in various jurisdictions

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is an international human rights treaty, under the aegis of the United Nations that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world. The convention has 83 signatories and 173 state parties to it. There are only 20 state parties that have not taken action to implement the convention and the rest of the countries had incorporated the provisions of the convention in their domestic laws. Here we are discussing examples of some nations that implemented the convention in their countries.

• United Kingdom

Section 134 of Criminal Justice Act, 1988 makes it an offence for any public official to ‘intentionally inflict severe pain or suffering on another in the performance of his official duties. This provision was introduced to honour the UK’s commitments under the 1984 Convention. Further, The UK Government maintained that it would never return someone to a country where they face a risk of torture.

• United States of America

In the US, Torture is prohibited throughout the United States. It is categorically denounced as a matter of policy and as a tool of State authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorised to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional

circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. In 1994 the United States Congress enacted important legislation which authorises the Attorney-General to institute civil law suits to obtain remedies for patterns or practices of misconduct by law enforcement agencies and agencies responsible for the incarceration of juveniles

• Russian Federation

Article 21 (2) of the Russian Constitution, 1993 provides that “no one shall be subjected to torture, violence or other cruel or degrading treatment or punishment. No one may be subjected to medical, scientific or other experiments without voluntary consent“.

Human rights concerns for death penalty and torture are often cited as grounds for refusing extradition requests. Countries that have abolished death penalty often need diplomatic assurances that rights of the person to be extradited shall not be breached. If it appears that death penalty may be given, or there are grounds for believing that if the person is extradited he may be tortured or subjected to cruel, inhuman and degrading treatment or denied any of the rights guaranteed to him by various international law instruments such as ICCPR and UNDHR. It would hardly be conducive to the object of the convention when a State party surrenders a suspect or fugitive knowingly to another State party where he will be in real danger of being subjected to torture, it would run contrary to the spirit and intention of the Convention itself, to expose a person to the real risk of torture or cruel, inhuman and degrading treatment.

The concept of universal jurisdiction shall be applicable to decide the question of jurisdiction which shall not be based only on territory or the offender’s nationality but also over the acts of torture committed outside the territory of the States even by persons who are not their nationals. This principle is already accepted in conventions against hijacking of aircraft and other terrorist activities which was accepted and is mentioned under Article 5(2) of the Convention.

Decisions by various international adjudicatory forums

The activities prohibited by various regional and international treaties under relevant provisions came up for consideration of international adjudicatory forums while dealing with torture and inhuman treatment.

In Ireland v. United Kingdom, the European Court of Human Rights laid down factors to be taken into account in determining the severity of treatment like the age, sex, and state of health of the victim. The court held that the methods of interrogation should not cause physical injury. the court said that forcing the detainees to remain in stressful positions for long periods, subjecting them to noise, and depriving them of food, water and sleep amounted to ill-treatment, but refused to hold that the treatment amounted to torture.

In Cantoral-Benavides v. Peru, the Inter-American Commission found that ‘according to international standards for protection, torture can be inflicted not only via physical violence but also through acts that produce severe physical, psychological, or moral suffering to the victim.

In Osbourne v. Jamaica the Human Rights Committee ruled that Corporal punishment is a cruel, inhuman, and degrading treatment or punishment that violates the prohibition of torture. Hence corporal punishment is prohibited by Article 7 of the Covenant and violates the right to dignity.

In International Pen & Others v. Nigeria, the African Commission on Human and Peoples’ Rights held that where the State had detained individuals sentenced to death in leg irons and handcuffs and had denied access to attorneys and necessary medicines, is violative of Article 5 of the African Charter.

From the above-mentioned judgments, it is clear that the right against torture is available even to prisoners and no country will extradite a person to a country in which he may be subject to torture. Hence not ratifying the convention against torture may lead to difficulties in cases involving extradition, as the foreign courts may refuse extradition or may impose limitations, in the absence of anti-torture law in line with the Convention, while granting extradition.

Examination of issues relating to Torture by various Commissions

Several commissions have been constituted for dealing with the issue of torture. The reports and recommendations made thereunder have become an important source for determining the current position of torture-related law in India. some of the reports are discussed below:

• National Commission to Review the working of the Constitution

The National Commission to Review the Working of the Constitution (2002) recommended for insertion of a new fundamental right against torture or cruel or degrading treatment or punishment.

• 113th Report (1985): Injuries In Police Custody

The commission suggested for inserting section 114B providing that in case of custodial injuries if there is evidence, the court may presume that injury was caused by the police having custody of that person during that period. The onus to prove the contrary is on the police authorities

•  152nd Report (1994): Custodial Crimes

The main recommendation of the Commission included amendment of IPC by inserting a new provision for punishing the violation of section 160, Cr.P.C It

Also recommended amendment of Cr.PC by adding the provision section 41(1A) for recording the reasons for arrest and to add section 50A to inform the relatives etc.

• 177th Report of the Law Commission (2001) titled “Law Relating to Arrest

 The commission recommended inserting section 55A to CrPC imposes the obligation to the police officer to take care of the health of the arrested person

• 268^th Report (2017): Amendments to Code of Criminal Procedure 1973: Provisions Relating to Bail

In its 268th Report, the Law Commission recommended the insertion of section 41(1A) and amendment to 41B, Cr. PC requiring the police officer to intimate the rights of the person arrested, for bail and liberalising the process of bail.

Constitutional /Statutory provisions related to torture in India

A. Constitutional provisions

As per article 20(3) of the constitution of India, a person accused of any offence shall not be compelled to become a witness against himself. This rule is known as the right against self-incrimination. The supreme court in the matter of Yogendra Kumar Jaiswal & Ors. State of Bihar & Ors. AIR 2016 SC 1474 held that the accused has a right to maintain silence and not to disclose his defence before the trial. In another case namely Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974 the Test results of polygraph and brain fingerprinting tests have been held to be testimonial compulsions and thus have been held to be barred by Article 20(3) further the court held that the recoveries under section 27 of Indian Evidence Act, 1872 are not permitted to be procured through torture.

Article 21, one of the tangents of the golden triangle of fundamental rights under the Indian constitution, provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The Supreme Court in numerous cases held that custodial torture violates the right to life enshrined in Article 21 of the Constitution. While affirming the rights of prisoners, the Supreme Court in Sunil Batra v. Delhi Administration AIR 1978 SC 1675 held that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.”

Article 22(1) and (2) prohibits detention of any person in custody without being informed of the grounds for his arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. While discussing the effects of the trial the court held that a criminal trial that may result in depriving a person of not only personal liberty but also his right to life has to be unbiased and without any prejudice for or against the accused.[1] In 1979 Supreme Court held that a punishment that is too cruel or torturous unconstitutional.[2] Article 22 also mandates that the accused should be informed about the grounds of arrest. The right to consult and to be defended by a legal practitioner of his choice is also mandatory.[3]

B. Statutory provisions

i. Indian Evidence Act. 1872

Section 24 of the Act makes any confession an irrelevant fact in a criminal trial that has been obtained by threat or promise from the accused or made in order to avoid any evil of temporal nature

In Ram Singh v. Central Bureau of Narcotics AIR 2011 SC 2490, the court held that Section 25 of the Act provides that a confessional statement of an accused to a police officer is not admissible in evidence and cannot be brought on record by prosecution to obtain a conviction.

Also, Section 26 provides that a confession by an accused while in police custody could not be proved against him. The statement made in police custody remains unreliable unless it is subjected to cross-examination or judicial scrutiny (Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974).

According to section 132  if a witness is questioned relevant to the matter in issue in any civil suit or criminal proceeding he can be compelled to answer all questions and cannot be excused from answering any question on the ground that the answer might expose him to a civil or criminal proceeding or may tend to his prejudice The proviso, on the other hand, protects witness that if a witness is compelled to answer, he shall not be liable for arrest or prosecution nor the answer can be proved against him in any criminal proceeding.

ii. Code of Criminal Procedure, 1973

Under sections 46(3) and 49, the police officer cannot use more Restraint than is necessary to prevent his escape. The sections Apply in cases where the person arrested is not accused of an Offence punishable with death or imprisonment for life.

Section 57 requires the police to produce the suspect / accused before the nearest magistrate within 24 hours of arrest. It corresponds to Article 22(2) of the Constitution.

Section 160 (1) provides “No male person under the age of 15 years or   woman shall be required to attend at any place other than in which such male person or woman resides.”

Sections 162, 163(1), and 315 disallow (i) forced confession and (ii) testimony, as inadmissible in the court of law and protect the accused against such confession. Sections 162, 163(1), and 315 disallow (i) forced confession and (ii) testimony, as inadmissible in the court of law and protect the accused against such confession.

Section 357A provides for framing of the victim compensation scheme by every State Government in coordination with the Central Government.

Section 358 provides for compensation to persons groundlessly Arrested.

iii. Indian Police Act, 1860

Sections 7 and 29 provide for dismissal and other penalties to Police officers who are negligent in the discharge of their duties or unfit to perform the same.

iv. Indian Penal Code, 1860

Sections 330, 331, 342, and 348 have purposely been designed to deter police officers who are empowered to arrest a person and to interrogate him during the investigation of an offence from resorting to third-degree methods, which may amount to torture.

Section 376(1) (b) provides for a graver penalty in case of custodial Rape committed by police officers. Section 376C provides a penalty for sexual intercourse by a person in authority.

v. Armed Forces Special Powers Act, 1983

Section 6 of the Act creates the concept of sovereign immunity as it protects the security forces against alleged crimes.

Judicial Response to Custodial Deaths & Violence

For a long time, the issues of fake encounters; illegal, unjustified, and unwarranted arrests without any valid ground like eliciting a confession from innocent persons for offences which they have never committed, by way of custodial violence; etc. are the subject matters of consideration by the Indian courts.

Meaning of custody

Before discussing the issue of custodial death it is important to understand the meaning of the term “custody”. According to the Oxford and Webster’s dictionary custody includes “Safe-keeping, protection, charge, care, guardianship, confinement, imprisonment, durance of person, guardianship, the act or duty of guarding and preserving, control of a thing or person.

As per Black’s Law Dictionary, the expression “custody” means actual imprisonment or physical detention and does not necessarily mean actual physical detention in jail or prison but rather is synonymous with the restraint of liberty.

In Directorate of Enforcement v Deepak Mahajan AIR 1994 SC 1775, while differentiating between arrest and custody the apex court observed “‘.in every arrest, there is custody but not vice-versa. ‘Custody’ may amount to an arrest in certain circumstances but not under all circumstances”

From the abovementioned judgment, it becomes clear that the term ‘custody’ should be understood in the contextual reference, and depending upon the facts and circumstances of a case it may mean that the law has taken control of the person. Also, arrest and custody are not synonymous.

Judicial response to the custodial death

In a plethora of cases, The Indian courts show their concerns over the issue of custodial death, the difficulties that are faced during the trial of such cases, and the inhuman treatment of prisoners in the prisons.

In Francis Coralie Mullin v. Administrator, U.T. of Delhi AIR 1981 SC 746, the Supreme Court observed:

“any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with the procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would be unconstitutional and void as being violative of Articles 14 and 21.”

In Gauri Shanker Sharma etc. v. State of U.P. AIR 1990 SC 709, the Supreme Court held:

“…it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third-degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case. …The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody. Death in police custody must be seriously viewed for otherwise, we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behavior. There can be no room for leniency.”

Also In Munshi Singh Gautam v. State of M.P AIR 2005 SC 402. The Apex Court held that peculiar type of cases must be looked at from a prism different from that used for ordinary criminal cases for the reason that in a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence.

The Supreme Court in Mehmood Nayyar Azam v. State of Chhattisgarh AIR 2012 SC 2573 held that any form of torture or cruel, inhuman, or degrading treatment would fall within the ambit of Articles 20 & 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise.

In D.K Basu v. State of W.B AIR1997 SC 3017 after perusing several reports on custodial violence Supreme Court held that, “Custodial violence including torture and death in lock-ups strikes a blow at the rule of law which demands that the powers of executive should not only be derived from law but also that the same should be limited by law.”

While expressing its displeasure on fake encounters the Supreme Court observed that in cases where a fake encounter is proved against policemen in a trial, they must be given a death sentence, treating it as the rarest of rare cases (2011) 6 SCC 189.

In Nandini Satpathy v. P.L Dani & Anr. AIR 1978 SC 1025, the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, and tiring interrogation by police are violation of the law.

In Bhagwan Singh & Anr. V. state of Punjab AIR 1992 SC 1689 a case of death in police custody the Supreme Court observed that the interrogation does not mean inflicting injuries

In S. Nambi Narayanan v. Siby Mathews & Ors. (2015) 14 SCC 664, the Supreme Court entertained a case in which a scientist of high repute had been taken into police custody without any justifying cause. The Court observed that non-interference in such a case would give the police a long rope to take anyone into custody without any reason. Though the Investigating Officer has reached the age of superannuation, he was directed to be prosecuted

Therefore, it could be seen from the aforesaid judicial pronouncements that torture by a public servant or its implicit endorsement by the State has always been condemned by the Courts. Becoming a public servant does not provide them a license to the officer for torture.

Recommendations made by the Commission

After deep scrutiny of the issue at hand, the commission provided many recommendations to the government for tackling the issue of torture and the feasibility of adopting the United Nations convention against torture. The recommendations can be summarized in the following categories.

1. Ratification of the convention: the commission observed that India has faced problems in the extradition of criminals from foreign countries. This is because the convention prevents extradition to a country where there is a danger of torture. It recommended that this issue should be resolved by ratifying the convention.
2.  Definition of torture: since there is no definition of torture under Indian law hence the commission defines torture under the draft prevention of torture Bill, 2017. As per the bill, any public servant or an individual authorised by him indulges in an act of torture if they inflict on another person: (i) grievous hurt, (ii) danger to life, limb, or health, (iii) severe physical or mental pain, or (iv) death for the purpose of acquiring information or punishment.
3. Punishment for acts of torture: To curb the menace of torture and to have a deterrent effect on acts of torture, the Commission recommends stringent punishment to the perpetrators of such acts. According to the draft Prevention of Torture Bill, 2017, punishment for torture includes imprisonment of up to 10 years and fine. In case torture leads to death, the punishment includes death or life imprisonment in addition to fine.
4. Protection for individuals: The Commission suggested that an effective mechanism should be put in place to protect victims of torture, complainants, and witnesses against possible violence and ill-treatment. Under the draft Prevention of Torture Bill, 2017 state governments are responsible for protecting these individuals. The state government will provide such protection from the time of submission of the complaint till the conclusion of trial for the offence.
5. Compensation for torture: The Commission suggested amendments to the Code of Criminal Procedure, 1973 so that compensation can be provided in the case of torture. This recommendation is based on the fact that courts have previously awarded compensation for various forms of torture including illegal detention, and custodial torture. According to the recommendations, the courts should determine compensation on the bases of nature, purpose, and extent of injury caused to a person, among other factors. Further, courts should keep in mind the socio-economic background of the victim to ensure that the compensation covers medical treatment and rehabilitation.
6. Custodial injury: The Commission recommended amendments to the Indian Evidence Act, 1872 to ensure that in case a person sustains injuries in police custody, it will be presumed that these have been inflicted by the police. The burden of proof shall lie on the police authorities to explain such injuries.

Conclusion

The Ministry conceded that while India had signed UNCAT, it had not ratified it. A treaty enters into force in accordance with the requirements stipulated in its provisions. If so, provided, a treaty may enter into force on signature. In other cases, it may require ratification. Multilateral treaties may enter into force through signature followed by ratification or through accession.  The instruments of ratification or accession are prepared by the Legal and Treaties Division and put up for the President’s signature.  In case of a bilateral treaty, the Instruments of Ratification become effective only after they are exchanged, which may be done through the concerned Territorial Division. In case of a multilateral treaty, the instrument of ratification is to be deposited with the depositary to the treaty.

India has developed a strong international presence and influence by joining several international organisations by signing and ratifying most of the international treaty mechanisms, which eventually helped it to become a strong economy with well developed legal framework. The Law Commission in its recommendation observed that to tide over the difficulties faced by the Country in getting criminals extradited, in the absence of an anti-torture law; and to secure an individual’s right to life and liberty, the Commission recommends consideration of the Convention Against Torture for ratification. Ratification of the convention will ease the process of extradition to India, and it will open the doors for legislation for the prohibition of torture. Recent changes have been done to ensure protection from torture includes Section 50A was inserted to CrPC on the recommendations of 152nd report. It deals with duty of police officer to inform the relatives of arrested person about his arrest Section 41B was added to CrPC on the recommendations of 268th report. Section 41B deals with intimation the arrested person about his right to bail and have a attorney of his choice.  Section 55A CrPC was added on the recommendations of 177th report which deals with duty of police officer to take care of the health of arrested person. Since 2010, the Prevention of Torture, Bill has also lapsed. India awaits way forward in legal framework on the issue of torture.