Law Panel Recommends Life Term For Government Officials Indulging In Torture

Let me begin first and foremost with a most candid confession. No report of Law Commission has given me so much of immense satisfaction as this one. Yes, I am talking about Report No. 273 titled 'Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment' through Legislation”. Recommending life in jail for public servants convicted of torture, the Law Commission on October 30, 2017 said unambiguously that the Government should ratify a UN Convention to tide over difficulties in extraditing criminals from foreign countries due to the absence of a law preventing harsh treatment by authorities. It also said that in case the Government decided to ratify the UN convention on torture and other inhuman and degrading treatment or punishment, a Bill should be introduced in Parliament to amend various laws to prevent torture by Government officials.

To be sure, India signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [adopted by General Assembly of the UN on 10thDecember, 1984 (Resolution No. 39/460)] (known as the UN Convention against Torture, in short 'CAT”) on October 14, 1997 however, so far it has not been ratified. India has expressed its reservations against certain provisions contained in the Convention, such as Inquiry by the CAT (Art. 20); State complaints (Art. 21) and individual complaints (Art. 22). Still India cannot backtrack from its unswerving commitment to ensure that those government officials who are guilty of perpetrating torture are most strictly punished in accordance with the due procedure of law.

As things stand, the International Commission of Jurists, and other organisations have urged India to adopt the reforms suggested by the Convention. The Universal Periodic Review is an interactive process carried out after every four years. Under this framework, the Human Rights Record of UN member States is reviewed. India has also been requested to ratify the Torture Convention by some State parties during the Universal Periodic Review of Human Rights. The Working Group on Human Rights in India has called for intervention by the Government against torture. All this has been even noted and cited by the Law Commission of India in its 273rdreport.

It needs no rocket scientist to conclude that human rights of convicts and even undertrials are accorded a very low priority in India. This alone explains why so many undertrials are languishing in jails since last many decades and many even die in jail before their case is finally decided. As if this is not enough, many are subjected to the worst kind of torture and the guilty government officials are at the most transferred or suspended for a short span of time and that too under unrelenting pressure of media and after some time everything is forgotten.

No doubt, this has to change now! Status quo on this count cannot be permitted under any circumstances! It has dented India's image all over and this must now be discarded by putting an end to all 'sovereign immunity” enjoyed by public servants while on duty which is abused by them whimsically. They must be now made accountable by subjecting them to life imprisonment or at least 14 years imprisonment so that the gross abuse and mockery of human rights by government officials is checked to the bare minimum.

As is well known, the International Committee of Jurists (ICJ), in a 2012 report as also global human rights NGO Human Rights Watch in a 2016 report titled 'Bound by Brotherhood”, sharply castigated India's abominable practice of granting continued immunity to policemen and security forces personnel who are neck deep in custodial torture and custodial killings. The ICJ has condemned this 'epidemic of torture” in most clear and express manner. Yet very rarely do we see them landing behind bars even for a short time. This has to end once and for all. They deserve no mercy of any kind!

It also has to be borne in mind that in its India Human Rights Report 2016, the US State Department said that the most significant human rights problems that have been plaguing India involved instances of police and security force abuses, including extrajudicial killings, torture and rape. The report also noted with concern that, 'There continued to be reports of custodial death cases, in which prisoners or detainees were killed or died in police custody. Decisions by central and state authorities not to prosecute police or security officials despite reports of evidence in certain cases remained a problem.”

It is of immense significance to note here that the National Commission to Review the Working of the Constitution (2002) set up by the Law Ministry specifically recommended for 'prohibition of torture and cruel, inhuman or degrading treatment or punishment' as one of the additions to the fundamental rights chapter as Article 21(2) on the basis of the dicta laid down in various Supreme Court judgments in recognition of torture in our constitutional jurisprudence. In the relevant portion of the Commission's Report it is stated:-

'3.9 Rights against torture and inhuman, degrading and cruel treatment and punishment.

3.9 Rights against torture and inhuman, degrading and cruel treatment and punishment grossly violate human dignity. The Supreme Court has implied a right against torture, etc. by way of interpretation of Article 21 which deals with Right to life and Liberty. The Universal Declaration of Human Right 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966 prohibit such acts in Art. 5 and 7 respectively. It is therefore, recommended that the existing Art.21 maybe numbered as Clause (1) thereof and a new clause should be inserted thereafter on the following lines – '(2) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

It is most hurting to see that this landmark recommendation of amending Article 21 of the Constitution is gathering dust even after more than 15 years of its recommendations! To say the least, even now it is not too late. This landmark recommendation must now be incorporated forthwith. No more delay, no more excuses now!

Needless to say, the draft 'Prevention of Torture Bill, 2017' proposed 'stringent punishment” to perpetrators to curb the menace of torture and to have a deterrent effect on acts of torture. The punishment could extend even up to life imprisonment and also include a fine. The report submitted to the Law Ministry said the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872, require amendments to accommodate provisions regarding compensation and burden of proof.

To put things in perspective, it recommended an amendment to Section 357B to incorporate payment of compensation, in addition to the payment of fine provided in the Indian Penal Code. The report, now in the public domain, said the Indian Evidence Act required the insertion of a new Section 114B. This is really a landmark step and must be implemented at the earliest.

Be it noted, the report also sought the insertion of this new said Section 114B on the ground that, 'This will ensure that in case a person in police custody sustains injuries, it is presumed that those injuries have been inflicted by the police, and the burden of proof shall lie on the authority concerned to explain such injury.” Under no circumstances should those cops be allowed to get away lightly who indulge in custodial violence. They must be made to languish in jail for the rest of their lives. Only then will a right, clear and strong message go out that even those in police uniform cannot think themselves to be above law and escape even after committing the worst custodial torture.

While craving for the exclusive indulgence of my esteemed readers, let me also inform them that while referring to compensation to victims, it said the courts would decide upon a 'justiciable compensation” after taking into account various facets of an individual case, such as nature, purpose, extent and manner of injury, including mental agony caused to the victim. It is worth noting that the panel also recommended that, 'The courts will bear in mind the socio-economic background of the victim and ensure that the compensation will help the victim bear the expenses on medical treatment and rehabilitation.” There can be no denying it.

As it turned out, the 273rdreport of the Law Commission also said that an effective mechanism must be put in place to protect victims of torture, complainants and witnesses against possible threats, violence or ill-treatment. The Commission very rightly recommended that the State own the responsibility for injuries caused by its agents on citizens and the 'principle of sovereign immunity cannot override the rights assured by the Constitution. It also was absolutely right in saying this most convincingly that, 'While dealing with the plea of sovereign immunity, the Courts will have to bear in mind that it is the citizens who are entitled for fundamental rights and not the agents of the State.”

It cannot be lost on us that the Supreme Court while reproducing the words of Adriana P Bartow in its landmark DK Basu judgment to explain the hugely debilitating impact of torture on human dignity rightly said that, 'Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.” Also, in this case of DK 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 any other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of the human civilization.” As I see it, there can be no justification whatsoever for torturing anyone. Even criminals must be strictly interrogated but without subjecting them to any kind of physical or mental torture which can completely destroy them.

It cannot be lightly dismissed that recently, while hearing a PIL filed by former Union Law Minister Ashwani Kumar, the Supreme Court had itself described torture as an instrument of 'human degradation” used by the state. Also, it cannot be conveniently ignored that it was after the scathing remarks that the government had referred the question of a law on torture to the Law Commission. Finally, the Law Commission on receiving the reference from the government on the question of a law on torture decided to work out on it extensively and this culminated in the landmark 273rdreport which is there before all of us to read for ourselves!

In hindsight, the landmark recommendation of the Law Commission in its 273rdreport headed by former Supreme Court Judge, Justice BS Chauhan, will allow human rights advocates to pressurize the government to recognize torture as a separate crime. Also, the guilty government officials could face sentence up to life imprisonment which will certainly act as the single biggest deterrent against committing any kind of torture in the future. This alone explains why it must be implemented without any more further delay!

Let me be direct in saying: Torture even of convicts cannot be justified under any circumstances. Torture is the biggest insult to Article 21 of the Indian Constitution which talks about right to life and personal liberty. In a recent case titled Shatrughan Chauhan v Union of India (2014) 3 SCC 1, the Supreme Court while discussing the scope of torture in the execution of death sentence observed that, '…..undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual case and no exhaustive guidelines can be framed in this regard.”

It is noteworthy that the draft Bill has recommended punishment for torture ranging from fine to life imprisonment. In no uncertain terms the 273rdreport of Law Commission asks the Government to put an end to endemic torture. In case a person in police custody is found with injuries, it would be 'presumed that those injuries have been inflicted by the police”. The onus would be on the police to prove that those injuries were not caused by it. The panel rightly said that the state should take responsibility for injuries caused by its agents on citizens and the principle of sovereign immunity cannot override rights assured by the Constitution. The fundamental rights of citizens are supreme and cannot be trampled upon by government officials on one pretext or the other. This stands vindicated by the 273rdreport of the Law Commission which must be implemented without anymore further delay!

Having said this, let me not shy away from bringing out here that the greatest lacuna of this 273rdreport of Law Commission is that it does not prescribe a certain minimum punishment of at least 10 or 14 or 20 years for those who indulge in inhuman torture of any person while in their custody. This glaring lacuna will undoubtedly help public servants to get away lightly even after committing torture of a serious nature. This is just not done! This must be reviewed and necessary corrections must be made in this regard.

It must be brought out here that the Law Commission in its 273rdreport retains the six months limitation that has been prescribed from the date on which the offence is alleged to have been committed, with a proviso that the court may condone the delay on sufficient grounds being shown. Here too I feel that this time period is grossly inadequate. The limitation period should be increased from 6 months to 3 years or at least 2 years because this will only serve to protect the victims right to seek legal remedy even after the stipulated period of 6 months is over!

It must also be brought out here that the Law Commission has also stipulated that if the required prior sanction for the prosecution of government officials is not grantedwithin three monthsfrom the date of application by the prosecution, it should be deemed to have been granted. A reasoned decision has to be given when sanction is declined and it would be appealable which is right. But here too I feel that at the first place, what is the need for prior sanction? Why can't they be prosecuted straightaway just like any other person? Those government officials who indulge in third degree torture should not enjoy any such 'ring of protection” as this will only enable them to buy more time and arm themselves with more evidence by hook or crook to defend themselves from being prosecuted for indulging in the worst kind of torture!

Tell me: Can this open sham of 'due process of law” be permitted to happen in our country under any circumstances? Certainly the answer is a 'resounding no”! Therefore they must be immediately booked and prosecuted for torture of the person whom they tortured whilst in their custody! The punishment for them must range from minimum 14 years to maximum life term. Only then will the government officials stop thinking that they can get away easily even after perpetrating the worst kind of torture on any person as per their own whims and fancies! Only then will they think hundred times before indulging in torture of any kind on any person! Only then will a loud and clear message go out to all government officials that they too can be sent behind bars for life if they dare to torture any one on any pretext whatsoever!