Image courtesy: nhritortureprevention.org
 
Recently there was again a bit of a hullabaloo about the need for a specific law against torture in India. The practice of torture is endemic to the Indian police and other agencies permitted the right to custodial interrogation. The enforcement directorate, the department of customs and excise and the income tax department have all been indicted for this. In areas where the AFSPA is in force the armed forces of the Union, the army and the para militaries, are said to routinely practice torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture. In private a very large number of judges will say that it is impossible to run the country without permitting the police to use third degree methods. 

For the longest time the governments of the day denied the need for a separate law/ mechanism to address the issue of custodial violence and killing. It was argued that the existing law of the land, the IPC, was sufficient to deal with such offences by the police and other agencies. Ultimately the government did come up with a draft law – The Prevention of Torture Bill, 2010. The farcical nature of the draft is evidence of the difficulties that we face in framing such a law. The question here, however, is, do we need such a law?  And, as a corollary, can there be a law that takes care of all or most of the tortures that are inflicted upon people in India? 

An answer to these questions must also address several related issues. For example, we are notorious as a polity that does not implement its laws. The reasons are many (and complex) but the simple fact of non-implementation is sufficient to put a big question mark against the proposal. It is obvious that all the factors that operate to make us a polity with a low index of effective implementation will operate with redoubled force in the case of a law against torture. 

There is also the issue of coming up with effective definitions and descriptions of actions that must be construed as ‘torture’. The 2010 draft bill defines torture as action that “intentionally” inflicts “grievous hurt” or “danger to life, limb or health (whether mental or physical)”, for obtaining “information or a confession” as ‘torture’. It, however, excludes “pain, hurt or danger… inflicted in accordance with any procedure established by law or justified by law” from the definition (section 3, 2010 bill).  Needless to say, the definition is highly inadequate.

I will not dwell upon the ridiculous absurdity of the definition, since it has been taken from a mere draft bill. But it is not unreasonable to assume that the drafters of the bill were not patently malafide or, even less likely, patently stupid. In which case, it would be useful to hazard a guess at the possible reason (or reasons) for such a definition. To a drafter of bills, vagueness and/or lack of precision are the stuff of nightmares. Since, over inclusion and/or under inclusion are among the most common faults when it comes to definitions it seems to me that the drafter of the Torture Bill, 2010 decided to err on the side of caution and render a definition so narrow as to virtually eliminate the offence. Add to this the need to ensure that the definition does not make it impossible for the police to function, and the definition in the Bill becomes (almost) understandable. I would argue that this difficulty would remain in any fresh effort at a law against torture, and any definition that is ultimately adopted is likely to be inadequate, to say the least. 

While extraction of a confession and/or other information about the facts and circumstances of a crime indubitably feature prominently as motive for torture they are far from comprising the whole of it or, even, most of it. Similarly, proscribing the inflicting of hurt, injury, pain, or analogously putting life and limb in danger does not cover all or even most of the ground. For example, Indian law enforcement agencies routinely torture by filing false cases against their chosen victims. They manufacture evidence against such persons, thereby ensuring that the victims are denied bail and spend considerable time in jail even if they are ultimately acquitted. Literally hundreds of thousands of Indians languish in jail every year, as under trial prisoners, for varying lengths of time, many for years. Cases of people being acquitted after a decade or more of incarceration are not uncommon. To my mind this is torture. And, I do not think any “law” against torture will be able to satisfactorily address this aspect of the issue.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation because the state of the system makes it virtually impossible to prove the culpability of the actors involved. Besides, probably because of the continual need to deny the actual extent of the collapse, the denizens of such a system become adept at imparting a patina of functionality to the system; thereby rendering the crime (of torture) and its perpetrators, even more invisible.

In such a regime the magistrate before whom an undertrial prisoner is produced can easily get away with failing (or, even refusing) to listen to his complaints of torture. It is not uncommon for magistrates to ignore even flagrant marks of torture while remanding prisoners to judicial custody or, even, further police custody. Besides, as the lowest rung of the justice system, magistrates lead a cheek by jowl existence with the police. Sheer survival requires them to maintain a “balance” in their functioning, and turn a blind eye to such practices. On top of this, an overwhelmingly large percentage of magistrates profess the belief that in India policing is impossible without torture. The fact that 95% or more of the accused that come before them belong to a different (lower) class or caste or are part of a religious ‘other’ helps in rationalising such conduct. 

In such a regime doctors frequently overlook or under report injuries and other signs of torture upon prisoners brought before them for the mandatory medical check-up, immediately after arrest or before and after a spell of police custody. Almost as a corollary, doctors are also amenable to providing off the record treatment to prisoners needing patching up, whenever requested by the police. Thus, the law making such medical examinations mandatory has barely impacted on the incidence of torture in the country, if at all. Nor has it helped in increasing the rate of conviction of police officials accused of custodial violence.

The annals of the justice system of such a regime are full of accounts of prosecutions of police personnel (on charges of torture or custodial death) that resulted in acquittal of most if not all the accused police personnel. In many cases no one is convicted – not police, not doctors, not magistrates – even though a person died while in police custody.  In fact, it is unheard of to prosecute doctors or magistrates, even though they are frequently culpable, at least by the strict liability principles and definitions that are applicable in such cases. 

Yet, the cases go on for years.  As if in recognition of its inability (leavened at least in some measure by its unwillingness) our higher judiciary has evolved an instrument of redress that virtually obviates the need to punish, namely compensation. Once again, it is not uncommon for the high court or, even, the Supreme Court, to dispose of a case with directions to the state to pay compensation to the survivor victims (or victims) of the crime, while the criminal prosecution of the accused police personnel is still in process.

This makes the courts look good: compassionate, caring. Besides the victims/victim survivors are almost invariably people who desperately need the money. Yet, I have not come across a case where the court revisited a case to ascertain the outcome of the criminal prosecution. Since it is only the rare, pig headed, victim/survivor who will likely have the steely determination necessary for seeing the criminal prosecution through, in most cases the order granting compensation is the end of the matter.   

Despite torture being endemic we have virtually no jurisprudence on the subject. Nor do we have reliable statistics, the national crime records bureau and the NHRC/SHRCs notwithstanding. No one follows up criminal prosecutions in cases of custodial torture and death. Inevitably then, we have an endless series of cases of torture and custodial death. It is unlikely that a law on torture will be able to cover cases such as I have described. It is more likely that the agencies involved will come up with new ways of circumventing the new law.

The writer is a senior advocate in the Supreme Court.
 

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