By Harpreet Kaur, Advocate

BACKGROUND:

Literally, the word torture means the action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something. It is derived from the Latin word tortura meaning twisting, torment and torquere meaning to twist.

Torture may be defined as the infliction of excruciating physical or psychological pain for such reasons as punishment, intimidation, coercion, the extraction of a confession, or for obtaining the information.

The Declaration of Tokyo (1975) has described torture as a deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority to force another person to field information, to make a confession, to make a confession or for any other purpose.

HISTORICAL PERSPECTIVE

Throughout history, governments and regimes have used torture against their enemies and as a part of their legal systems. The term has also been most generally applied to acts by individuals outside of government, as, for example, by criminals, particularly terrorists.  Modes of inflicting pain range from physical devices to chemical injections to elaborate psychological techniques designed not only to break down resistance but also to subvert personality.

Torture was commonly practiced in many ancient civilizations. The ancient Greek practice of torturing slaves to obtain information influenced early Roman laws, which gave the testimonies of slaves and people of low status more validity. Between the 12th and 18th centuries, a number of factors contributed to rise in interest in torture. These factors included a renewed interest in Roman Law, dissatisfaction with existing modes of securing reliable information and the development of strong political authorities.

Prior to this period, oath, ordeals and combats were common ways to resolve judicial conflicts. By the 13th century, confession became, along with the testimony of eyewitnesses, the means of determining guilt in most of Europe. Suspects could not be convicted on the basis of circumstantial evidence. Torture was increasingly used to extract confessions, but in general was legal only if there was considerable evidence against the suspect.

Most European countries had legally abolished the use of torture in the eighteenth century. However, in the 20th century it reappeared in unexpectedly high proportions. The political pressures of the modern state have been blamed for this increase, particularly its use by armies during wartime and by intelligence agencies. It was in countries that used law as a means imposing ideology, however, that torture became most widespread, for example, in the fascist countries of Italy and Nazi Germany and the communist government of USSR under Joseph Stalin. Despite the United Nations’ Universal Declaration of Human Rights (1948), a number of instances of mass torture have been reported. These include widespread practice of torture in French Algeria and in Greece during 1950s and in many regions, including Latin America, Africa and Middle East in recent past.

TYPES OF TORTURE

From didactic point of view, torture methods have been divided into physical, psychological and sexual.

Physical Torture: The methods for physical torture are those that inflict pain, discomfort and dysfunction in different parts of the body. The torturer also takes care that the torture inflicted upon the victim remains undetected by an ordinary examination. Methods may include the following:

  1. Beating and Severe Beating: Beating with a variety of objects is very common and will results in usual signs i.e. bruising, abrasions and lacerations. Particular weapons/objects may leave particular pattern, for example, a blow/strike from a rod or thong will commonly result in parallel tramline bruises. Where the skin gets lacerated, the scar left will provide evidence of site of injury. The sites of beating are again variable. Blow to head, back, buttocks, perineum and soles of feet (falanga) are favourite sites for beating.
  2. Falanga: Severe beating over the soles of feet is known as falanga. It is the commonest form of beating. It may be administered while a person is either suspended upside down or when the legs are immobilized. It has long term consequences, including immobilization of feet, severe pain and injury.
  3. Ear torture: The victim’s ear may be twisted or pulled to such an extent that external ear gets torn. One victim may be asked to torture another in this way. Producing impairment in hearing by beating both ears simultaneously may also be used, which is known as telephono. This may lead to rupture of tympanic membrane causing extreme pain, bleeding or hearing loss.
  4. Finger torture: Pencil or similar object is put between two fingers, which are then pressed hard together against the object. Similarly, fingers may be twisted to cause severe pain.
  5. Hair torture: The victim is dragged by hair. The hair may be cut short or the head shaven altogether. Hair may also be pulled out forcibly.
  6. Suspension: The victim is suspended by legs or arms or by hair. Suspension is usually combined with other forms of torture like severe beating, electric shock, falanga, heat or cold torture.
  7. Forced position: The victim may be forced to remain in an abnormal or strained position for hours together and may also be exposed to kicks, blows, etc. In some cases, the victim may be tied down in many ways and then kept in this position for several hours.
  8. Electric torture: This is excruciating painful and is commonly used because it leaves little permanent signs.
  9. Stripping: it can be used to humiliate a person and make him feel exposed and therefore, vulnerable.
  10. Suffocation: it is known especially in the form of ‘wet submarine’. The head of the victim is forced under water polluted with excrement, urine, vomit or blood. In ‘dry submarine’, the victim’s head and face are tightly covered with plastic bag or similar article. The victim may also be suffocated by closing of his mouth and nose with some object or even with bare hands.
  11. Burning or heat torture: burns may be inflicted from anything that will either burn or can be heated, for example, cigarette stubs, hot irons, molten rubber, etc.
  12. Cold torture: the victim is subjected to varying degree of cold in different ways. He may be forced to sleep on damp floor, may be stay naked in extremely cold weather.

Psychological torture: This type of torture may include several categories, which are as follows:

  1. Deprivation Techniques: Victims are deprived of various necessities so that they are mentally tortured. These techniques may include ‘sensory deprivation’, where the victim is deprived of various sensory stimuli such as light, sound etc. the victim may be blindfolded, hooded or kept in dark room, etc. ‘Perceptual deprivation’, where victims are deprived of perceptions so that they become disoriented and confused, for example, frequent transfer of victim from one place to another while blindfolded, frequent disturbance of sleep, etc. ‘Social deprivation’, where victims are deprived of seeing visitors or confined to an isolated cell. ‘Deprivation of Basic Needs’, where victims are deprived of basic needs like food, water, medical facilities, clothes, comforts, communication etc.
  2. Witness torture: the victims are forced to witness the torture of another prisoner or of family members.
  3. Threats and Humiliation: the torturer may perform humiliating acts such as urinating upon victim. Sometimes, the victims are threatened with death.
  4. Pharmacological Techniques: various drugs may be used torture the victim, to facilitate torture, to mask the effects of torture and also as a means of torture, for example, use of drugs to induce self disclosure, pain inducing drugs or psycho-pharmacological drugs.

Sexual torture: Most investigators, lately, have defined sexual as follows:

  • Violence against sexual organs such as electric torture in genital areas, the introduction of foreign bodies into the genitalia or rectum.
  • Physical sexual assault, such as rape by torturer or victim, forced masturbation etc.
  • Mental sexual assault, such as forced nakedness, sexual humiliation, forced witness of sexual torture.
  • Any mixture of these.

LAWS ON CUSTODIAL TORTURE:

INTERNATIONAL PERSPECTIVE:

India is a signatory to the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which came into force in 1987. The Government of India signed the UN Convention in October, 1997.

Article 5 of the UDHR (Universal Declaration of Human Rights), 1948 proclaims that “No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.” Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian Constitution which provides for life and dignity and honour as incorporated in the preamble and in the chapter on Fundamental Rights. The Constitution has entrusted the work of protecting fundamental freedoms to Indian Judiciary. Therefore, the judiciary has the prime obligation to be utmost careful and to resist even the slightest intrusion into its domain in safeguarding the human dignity which our founding fathers have so passionately granted to us.

International Covenant on Civil and Politicial Rights (ICCPR): Article 7 of the ICCPR Covenant provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment. The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Article 7 cannot be derogated from in any circumstances not even during public emergency. This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights. The Human Rights Committee adopted in 1982, general comments on Article 7 of the Covenant, after examining reports submitted by State parties. Committee observed that even in situations of public emergency as envisaged in Article 4(1) of the Covenant, this provision is non- derogable. The Committee though it said that Article 7 has a wide scope of application, it refrained from defining or providing clear criteria for application of this section.

DOMESTIC LAWS:

Although the term ‘Torture’ has not been defined in the Constitution or in any other penal laws yet Article 21 of Indian Constitution provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment. A person can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed about the grounds of such arrest and cannot be denied to consult and defend himself by legal practitioner of his choice.

In law, torture is punishable under the following legal provisions:

  • Section 321,IPC- Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.
  • Section 322,IPC- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes grievous hurt, is said “voluntarily to cause grievous hurt.”Explanation- A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
  • Section 324, IPC- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
  • Section 326,IPCWhoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  • Section 330, IPC- Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
  • Section 331,IPC- Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security, or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  • Protection of Human Rights Act- whose aim is to curb human rights violations and provide protection against torture.

CUSTODIAL TORTURE AS VIOLATION OF ARTICLE 21:

That in the case of Dr. Mehmood Nayyar Azam v. State of Chhattisgarh (SC), 2012(8) SCC 1, Hon’ble Supreme Court, while referring to the case of Joginder Kumar, observed that any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen, for a citizen does not shed off his fundamental right to life, the moment a policeman arrests him. The right to life of a citizen cannot put in abeyance on his arrest. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

Also, in Neelabati Bahera v. State of Orissa, 1994(1) Recent Criminal Reports 18 (SC) Hon’ble Supreme Court pointed out that prisoners and detenus are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestee and detenus. It was observed :

“It is axiomatic that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authority to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrong-doer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.”

Moreover, in Munshi Singh Gautam (D) v. State of M.P. 2005 AIR (SC) 402, it was observed by Hon’ble Supreme Court that:

Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the ‘Constitution’) and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the ‘Code’) deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures.

GUIDELINES ISSUED IN THE CASE OF DK BASU

In a very important judgment of D.K. Basu v. State of West Bengal (SC),   1997 AIR (SC) 610, the Hon’ble Supreme Court issued Guidelines to safeguard the rights of detenu from illegal detention and the relevant paragraph from the said judgment has been reproduced below:

36. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours of his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

  1. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.”

ENQUIRY BY AN INDEPENDENT INVESTIGATING AGENCY

That it was observed by Hon’ble High Court of Punjab and Haryana in case, Kulwinder Singh v. State of Punjab (P&H) (D.B.), 2013(2) R.C.R.(Criminal) 985, that “One cannot expect an impartial investigation from the police officer who happened to man the police station in which the custodial death took place. Further, the matter was entrusted to the SHO to initiate investigation as against DSP as well. Therefore, we direct that the State shall entrust such custodial death cases to an independent premier investigating agency of the State or the Centre, as the case may be, in order to do complete justice to the victim as well as to the society at large.”

GRANT OF COMPENSATION

In the case of D.K. Basu v. State of West Bengal (SC), 1997 AIR (SC) 610, the Hon’ble Supreme Court observed that:

UBI JUS IBI REMEDIUM – There is no wrong without a remedy. The law wills that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.

Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

In Sube Singh v. State of Haryana, 2006(1) R.C.R.(Criminal) 802, a three-Judge Bench of the Apex Court, after referring to its earlier decisions, has opined as follows :-

“It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure.”

Also, in the case of Dr. Mehmood Nayyar Azam v. State of Chhattisgarh (SC), 2012(3) R.C.R.(Criminal) 925, the Hon’ble Supreme Court while upholding the Sube Singh Judgment (Supra) observed that Police arresting the Appellant in a theft case and took his photograph compelling him to hold a placard on which it was written (I, Dr. M.N. Azam, am a cheat, fraud, thief and rascal). The photographs were circulated in general public. The appellant has thus been humiliated causing him mental trauma. Any psychological torture inflicts immense mental pain. State is directed to pay compensation of 5 Lakhs and realise the same from erring officers – Contention that Appellant should sue for damages – Contention repelled. Held, Police has tortured and humiliated the appellant while in custody and thus violated in human rights of appellant envisaged in Article 21 of Constitution. It is breach of public law duty. It enables the citizen to seek recourse to Public law remedy . Further held:-

The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort. 2006(1) RCR (Crl.) 802 : 2006(1) Apex Criminal 298 : 1994(1) RCR (Crl.) 18, relied.

CONVICTION OF POLICE OFFICIALS

In the case of Haricharan v. State of Madhya Pradesh (SC) 2011(4) SCC 159; it was observed that “Deceased was taken in custody in a theft case. He died in Police custody due to torture by police. In the Prosecution of guilty Police Officials (SHO and two Head Constables), All the Prosecution witnesses (son, widow, brother of deceased) turned hostile except one. Trial Court acquitted all the accused. Accused however, convicted by High Court on following grounds :-

(i) At the relevant time all the three accused were posted at the Police Station where crime was committed.

(ii) The fact that deceased was tortured and subjected to electric shock whilst in police custody is well established by the medical evidence.

Supreme Court held that High Court committed no error in accepting the evidence of PW 6 and the medical evidence. The evidence on the record clearly shows that death of Mathura was a direct consequence of the inexcusable and inhuman torture by the police. The prosecution has proved beyond reasonable doubt that Mathura was taken to the police station. Whilst at the police station, he was subjected to third degree torture. He was given electric shocks in the scrotum. Such torture was inflicted on Mathura merely for the purpose of extracting a confession.”

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