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POLICE TORTURE: LEGAL ISSUES AND REMEDIES Anandita Mehta and Gaurav Goyal

The practice of torture has been widespread and predominant in India since time immemorial. Unchallenged and unopposed, it has become a normal and legitimate practice all over. In the name of investigating crimes, extracting confessions and punishing individuals by the law enforcement agencies, torture is inflicted not upon the accused, but also on bona fide petitioners, complainants or informants amounting to cruel, inhuman and degrading treatment, grossly derogatory to the dignity of the human person. Torture is also inflicted on the women and girls in the form of custodial rape, molestation and other forms of sexual harassment. During the discussions which took place on the Indian Code of Criminal Procedure in 1872, some observations were made on the reasons which occasionally led native police officers to apply torture to prisoners. An experienced civil officer observed, `There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.' This was a new view to me, but I have no doubt of its truth. -Sir James Fitzjames Stephen1

Police torture of prisoners is a colonial legacy and red pepper spray was one of the tools the police in British India used to extract confessions from prisoners. The debate over such inhuman practices is over 125-years-old, though the colonial police resorted to it only 'occasionally'. Is laziness, as seen by the senior civil officer and endorsed by Sir James Fitzjames Stephen, Member, Viceregal Council for India, an English legal luminary and the architect of the Indian Evidence Act, 1872, the major factor responsible for torture or is there something more to it? The debate is never ending. This article examines the scope of the police torture and highlights the procedural loopholes in the trial of the police officer and also aims at giving suggestions to improve the criminal justice system. 'Torture' has not been defined in the Constitution of India or in other penal laws. The 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. It is the shadow of civilization 2. The Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has defined 'torture' as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." 3 'Custodial torture' is a naked violation of human dignity and degradation, which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward 4. The United Nation's Special Rapporteur on Torture, reported that people are 'routinely tortured' in India 5. It has become a common phenomenon and routine police practice of interrogation these days. Reports from metropolitan cities and various other cities reveal that the nation's custodians of law are among the major perpetrators of crime against humanity. It is almost an unwritten understanding that when an officer asks his subordinates to 'thoroughly interrogate a suspect' it would simply mean 'torture'. Human Rights Commission's statistics reveal that no part of India is free from this scourge to spell the list. Third degree is generally believed to be a short - cut method of investigation by the police . Recent Episodes of Police Atrocities On 28 July, 2007, eight persons were killed and eight others injured in police firing and related incidents when the Andhra Pradesh bandh called by the Left parties in Khammam (AP). Basing on the directions from the AP High Court, the Principal District Judge of Khammam conducted a probe and submitted his report to the high court and observed that "the police have exceeded the limits and fired indiscriminately. If mob control was the objective, they should have resorted to lathi charge and if that were to prove unavailing, fired below the knees but, the police fired directly on the mob with AK 47 rifles on innocent people."

On 14 March , 2007 the West Bengal Government send a huge contingent of police to Nandigram, which led to the killing of at least 11 people in police firing . According to newspaper reports, at least 5,000 strong police force encircled Nandigram from two pointsBhangaberia and Tekhali as a result of which 11 persons were killed when they were opposing acquisition of farmland for industries. In keeping with the guidelines issued by the National Human Rights Commission, the state government authorities have been reporting all deaths in custody to, police as well as judicial, natural or otherwise, to the Commission. In the year 2004-2005, out of a total of 1493 custodial deaths reported to the Commission, 136 deaths took place in police custody and 1,357 deaths in judicial custody. For killings from police encounters during the year 20042005, there were 66 cases from Uttar Pradesh, 18 from Andhra Pradesh, nine from Delhi and five each from Maharashtra and Madhya Pradesh. Separately, the Commission also received 84 complaints about alleged killings in fake encounters. Stern Punishments to Erring Police Officials: New Trend On 14 December, 2006 a retired ACP was convicted for murder under Section 302 of the Indian Penal Code by a City Court in Delhi for beating an accused to death in Vivek Vihar, East Delhi. Another retired ACP and a sub-inspector were convicted for dereliction of duty and tampering with records, respectively, for attempting to shield the guilty6 and sentenced to life imprisonment. On August 18, 2007 the Sessions Court of Vijayawada in Andhra Pradesh sentenced a lady sub inspector of police to life imprisonment for the death of a dalit woman inside lock up in a Mahila Police Station7. The victim's body was recovered from the police station and the police officials reported that she committed suicide. A special police team, CID investigated into the offence and submitted the report that it is not a suicide but murder. Prominent Forms of Police Torture We see that the arrested persons, the under trials and sentenced persons are treated in subhuman conditions. Even when every detained or arrested persons has a right to know for which offence (s) he or she has been detained, the detaining authorities frequently breach this

right. Though international laws criminalise torture, torture enjoys unprecedented license in India. Torture seems to be legalized in India. The methods of torture adopted by government officers involve gross forms of inhumanity. The prominent forms of police torture are 1) custodial violence (using third degree methods to get confessions) 2) custodial death 3) fake encounters and 4) indiscriminate police firing. Custodial violence is an important form of torture. It is a challenge which requires to be met squarely and decisively. There is a great responsibility on the police and prison authorities to ensure that the citizen in its custody is not deprived of his right to life. A profound respect for the sanctity of human life underpins jurisprudence. The latest pronouncement by the Supreme Court of India in Shri Prakash Singh's case 8 , in which National Human Rights Commission had intervened, aimed at police reforms, when implemented would perhaps go a long way to sensitize the police and prison authorities. Judicial Approach towards Police Torture Courts all over the world have upheld the human rights of the accused and observed that the torture of innocent people by the police is inhuman, degrading and barbaric, that death in police custody is perhaps one of the worst kind of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. The Miranda Court quoted from the conclusion of the Wickersham Commission Report made nearly half a century ago to the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey) : "It is not admissible to do a great right by doing a little wrong.... It is not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only, does the use of the third degree involve a flagrant violation of Law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. 'If you use your fists, you are not so likely to use your wits9. 'We agree with the conclusion expressed in the

report, that 'the third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.' Justice A Pasayat in Munshi Singh Gautam & Others v State of Madhya Pradesh 10, asserted, "custodial violence, torture and abuse of police power are not peculiar to India". But pray, in which other democracy governed by the rule of law is it so widespread and unchecked? The court's observations that followed this could be quoted extensively. "It is assuming alarming proportions, nowadays. All around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peaceloving puritans and saviours of citizens' rights." India has signed but not ratified the UN Convention against Torture (CAT). There has been a continuous effort of the National Human Rights Commission (NHRC) to pursue the Government of India to ratify the Convention against Torture so that a new domestic legislation thereafter can be brought into place. But the effort has gone till date without success. However, absence of a specific law, the Supreme Court of India has condemned torture through various judgments which have contributed to create a national jurisprudence in cases of combating torture. The practice of torture by police and other law enforcing officers is a matter of deep concern, therefore it is the sacred duty of the state to protect these fundamental human rights of these citizens. The problem of police torture and violence is of universal nature. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and other countries of the world. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against self incrimination and of life and liberty is too evident.

In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law. The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by absence of specific provisions against torture in the Constitution and gathered support from Article 14 & 19 in holding against the permissibility of torture vis--vis persons suspected and accused of crime. In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court observed that the lives and liberty of citizens are at peril when the guardians of law stab human rights to death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. The court awarded life sentence to the police officer responsible for the death of the suspect in police lock up. Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an example of cruel and inhuman treatment to the prisoners which are insolating the spirit of Constitution and human value as well as Article 21. Supreme Court in this case tackled the blinding of under-trial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture, the sanction of torture by state and local judicial authorities, the routine concealment of torture. Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack of required degree of proof or maybe found guilty of lesser offence than the one warranted by the actual facts. This is primarily due to the situation that the warranted by the actual facts. This is primarily due to the situation that the offenders are the comrades and colleagues of the prosecutors and the complete lack of neutral witness. State of U.P v. Ram Sagar Yadav (1985 (1) SCC 552 ), is a case indicative of extreme limits to which police violence and

highhandedness may extend. The victim made a compliant against a policeman who demanded bribe from him. He was arrested for his audacity and shortly afterwards while in custody was found in a serious condition with 19 injuries on his body eventually causing his death. The Supreme Court while affirming the punishment of 7years rigorous punishment for culpable homicide not amounting to murder under Sec 304, expressed his regret that the trial judge did not find policeman guilty of murder as indicated by the facts. In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines (procedural measures) to be followed while, during and after arrest of person till he is in the custody of police. This case came up before the Court through a petition under art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of India drawing his attention to news items published in a newspaper, regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading which destroys individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded the Civilization takes a step backward. However mere formulation of guidelines and safeguards would not be sufficient, therefore Supreme Court in D.K Basu case warned that: Failure to comply with the requirements mentioned shall apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police station in connection with a case. Thereafter, his whereabouts became unknown to his family members. His family members filed a writ of habeas corpus before the Supreme Court, pursuant to which he was produced before the court. Alarming increase in cases of torture, assault and death in police custody and non availability to punish the culprits in such cases have been an vexed problem as the investigation into such

matters have been by the custodians themselves. It is therefore, of utmost necessity that an objective and independent enquiry should be made. Keeping it in view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam (1995) Supp (3) SCC 736 , directed the CBI to register and investigate the instant case of custodial death. Again in Supreme Court in Ajab Singh v. State of UP (2000) 3 SCC 521, where the police examination of a custodial death was a concocted story, directing the CBI to register the case and conduct an investigation into the circumstances of custodial death. It also directed the CBI to complete investigation expeditiously and file a copy of the investigation report in the court. The UN Convention against Torture provides for redress and compensation to the tortured victim. Article 14 of the convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746 ); the principle of state liability and the need for state to make reparations for such liability was recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide any remedy under Public Law for any contravention of Fundamental Rights. A suggestion to control the custodial violence may be, as was suggested by Mallimath Committee and the Law Commission of India that a special investigation police must be in place to interrogate the criminal cases rather than a constable who is an SSC pass, investigating the case using third degree methods to elicit the truth (or the statement they wanted to have) from the accused. Custodial Death: Difficulties in Gathering Evidence against the Erring Police It is pertinent to discuss the difficulties being faced by the courts in bringing the erring police to justice. The first hurdle is gathering the evidence. The offence is committed in the dark rooms of the police stations in the presence of other police personnel who will never speak against their colleagues or superiors whoever had committed the torture, it becomes difficult to collect the ocular evidence. To help the prosecution a suggestion was made by the Law Commission in its 113th Report19 which recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having

caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless, the police officer proves to the contrary. The onus to prove the contrary must be discharged by the concerned police official. The recommendation, however, appears to have gone unnoticed and the crime of custodial torture, etc. flourishes unabated. Another major hurdle is the criminal jurisprudence mandate that the guilt of the accused must be proved beyond reasonable doubt which brings in lots of difficulties in conviction of the police personnel. According to the statistics given by NHRC in the year 2004-2005, 1504 cases were reported in our country. The actual figure may be far high from this official figure. But the conviction rate is considerably low. The Supreme Court in State of MP v Shyam Sunder Trivedi20 observed that "the courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crimes so that as far as possible within their powers advise the legislature to implement the suggestions given by the Law Commission of India in its 113th report". The high incidence of custodial death and low conviction rate of delinquent police shows the grimness of the situation. Some changes in the rules of evidence are to be made owing to the special nature of the offence. One suggestion in this direction may be to lower the standard of proof from 'proof beyond reasonable doubt' to 'clear and convincing method'. Another suggestion is that the legislature must immediately take notice of the Law Commission's Suggestion and give effect to it by amending the Indian Evidence Act. Awarding compensation to the victims of custodial deaths The Supreme Court of India time and again in a plethora of cases awarded compensation to the victims of the police firing and lockup deaths under public law remedy. The Court awarded compensation to the victim of lockup death in Mani Kumar Thapa v State of Sikkim21. In Sube Singh v State of Haryana and Ors 22 for the question whether compensation should be awarded under Articles 32 and 226, and for every violation of Article 21 of the

Constitution of India where illegal detention or custodial violence was alleged. The Apex Court laid down the parameters to award the compensation and said that: " In cases where custodial death or custodial torture or other violation of rights guaranteed under Article 21 of the Constitution was established, courts may award compensation in a proceeding under Articles 32 or 226 of the Constitution but before awarding compensation, the court would have to pose the following questions to itself: (a) whether the violation of Article 21 of the Constitution was patent and incontrovertible, (b) whether the violation was gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged resulted in death or whether custodial torture was supported by medical report or visible marks or scars or disability." In Vikram Dhillon v State of Haryana and Ors 23 the Supreme Court said, "award of compensation in a proceeding under Article 32 or 226 of the Constitution is a remedy available in 'public law' based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply." There is positive trend of the judicial policy for compensating victims in torture. But compensation was awarded without any basis or principles for quantifying the amount. Judges went by intuition rather than any rational basis. Increasing use of compensation remedy may also give an impression that the state is ready to compensate if it can purchase the right to continue to inflict constitutional deprivations on its citizens. Whether a death is deliberate, accidental, suicide or due to neglect or however it is caused, the net result is a custodial death. Then the question is how to compensate for the life that has been lost, of the fact that state agencies have committed a crime and therefore, the state must pay compensation. The question remains about the prosecution of those officials who have committed the crime. The next form of torture is fake encounters. Sec 46 (3) of the Code of Criminal Procedure, 1973 gives power to the police to go to the extent of causing death of the arrestee in case he is absconding or evading the arrest and has committed a serious offence which is punishable by

either imprisonment for life or death. This provision becomes crucial in the wake of fake encounters. The very recent case of Sohrabuddin encounter by Gujarat Police which caught the eye of the nation, Rubabbuddin Sheikh v State of Gujarat and Ors. (2007) 24 , Sohrabuddin Sheikh and his wife Kausarbi were picked up from Hyderabad and were killed in a fake encounter at the hands of the Anti Terrorist Squad (ATS) Police, Gujarat and Rajasthan Special Task Force (STF), the Supreme Court forwarded the letter to the Director General of Police, Gujarat to take action . DGP, Gujarat, directed Mrs. Geetha Johri, Inspector General, Police (Crime), to inquire about the facts stated in the letter. She had given three reports narrating the facts of the incident but they were not produced before the court for a long time. At this juncture it becomes imperative to follow the guidelines issued by the Human Rights Commission in encounter cases: When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the state CID. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation. Can a case be filed against the police officer who shot the accused

The question is very short, but is important. If there is an encounter and a policeman kills a citizen either in an exchange of fire or in self-defence, whether any case has to be registered for causing the death of citizen? The pattern which we have seen from various FIRs registered after encounter resulting in death is that an FIR is registered under Section 307 of the Indian Penal Code against the dead person. The police officers who were responsible for the death of these persons give complaints to the local police and a crime is registered against the deceased person under Section 307 of the IPC. The question which fell for its consideration is in the following terms: "Thus, the whole lis revolves around whether the criminal prosecution should be initiated against the police, who participated in the encounter by registering a case under Sections 302 and 201 IPC and whether the practice followed by the police in registering a case under Section 307 IPC against the deceased persons is correct?" The judgment of the Andhra Pradesh High Court reported in K G Kannabiran v Chief Secretary25 lays down the law that in case of any death of a citizen occurring during the course of encounter or a shoot-out or exchange of fire or in police custody, it has to be registered as a case of culpable homicide. Human Rights activists are arguing that if death of a citizen is caused as a result of encounter, where police used force in its self-defence, the incident has to be registered and investigated as a 'homicide' and whether the death was caused in self-defence or not is a matter which has to be decided by the courts. The police cannot kill a person and hold on its own that the death was caused in self-defence. Registration of a case against dead person under Section 307 of IPC was a fraud on the rule of law. In all fake encounters the victim becomes the accused. Police will file an FIR against the deceased saying that he attempted to commit murder on them and in self defence they had to open fire. Therefore, it is high time that we need a mechanism to check and control the police excesses. An enquiry commission must be set up in all districts to take cognizance suo mottu of all lockup deaths, fake encounters without waiting for an allegation or complaint to be

made by the victim because in most of the cases victims are poor people, they may not come forward to register an FIR even if they come it is obvious how difficult it is for him to put up a case against the police in the same police station with the same police asking him to take action. Let the investigation be impartially conducted if the police is sincere, they need not be worried about this mechanism. Leaving the victims again in the hands of the accused is serious injustice. Inquest by Judicial Magistrate a Mandatory Provision Under the New Cr.PC Amendment Another check on the police excesses is already in place in the Code of Criminal Procedure., a special provision is made in Cr.PC under sub-section (1) of Section 176 of the Code, when a person dies while in police custody, a magistrate may hold an inquiry into the cause of death. The recent amendment made in 2005 extended the ambit of the sec 176 to disappearance and custodial rape also. When a person is killed in an encounter or in police custody or in exchange of fire, inquiry shall be conducted by a judicial magistrate and Section 176 of the Code must be made applicable to all the above said cases because as the law stands now it applies to custodial deaths only, but not to deaths caused in exchange of fire or in encounter. Are our statutes over empowering the police? Sometimes our laws give more teeth than what is required to the police which is misused and abused by them, an example of such category is Armed Forces (Special Powers) Act, 1958 which is in operation in Jammu and Kashmir and Manipur and other North Eastern States. Human rights activists have long argued that this Act is unconstitutional and violates international humanitarian laws. Section 4(b) of the Act allows such military personnel to destroy any shelter from which, in his opinion, armed attacks 'are likely to be made' or which has been utilised as a hideout by absconders 'wanted for any offence'. This latitude has permitted the destruction of large number of dwellings and other buildings in the state, including in collateral damage when buildings adjoining the one targeted have been damaged or destroyed. Section 4(c) of the Act permits the arrest without warrant, with whatever 'force as may be necessary' vis-a-vis any person against whom 'a reasonable suspicion exists that he

is about to commit a cognizable offence.' This has provided the basis of indiscriminate arrests, and the use of brutal force including firing against innocent civilians. Section 4(d) authorises the entry and search, without warrant, of any premises to make arrests as sanctioned under Section 4(c), or to recover any person 'believed to be wrongfully restrained or confined', or any property 'reasonably suspected' to be stolen property or any arms, ammunition or explosive substance 'believed to be unlawfully kept in such premises...' For military personnel operating in a culturally alien terrain, 'beliefs' and 'reasonable suspicions' are often wholly unfounded leading to human rights abuses. We should therefore look into the laws of this category to prevent the abuses and excesses of the police. Duty of the Legislature and Government of India Torture and other cruel, inhuman or degrading treatment or punishment are particularly serious violation of human rights and, as such, are strictly condemned by international law. The Convention entered into force on 26-06-1987. The Government of India should ratify the Convention against Torture and other forms of Cruel Inhuman and Degrading Punishment or Treatment, which was signed by India on 14 October 1997. More than eight years have gone by since India signed the Convention, its ratification, is still awaited. Ratifying the Convention is to fulfill not only its obligation under the international humanitarian law but also to honour the promise made at the time of signing the Convention by the permanent representatives of India to the United Nations, namely, that India would "uphold the greatest values of Indian civilization and our policy to work with other members of the international community to promote and protect human rights." Conclusion Torture violates the inherent dignity of a person. It not only humiliates the victim but reduces him to a sub human level. The descent to the sub human level is not only that of the victim but of the perpetrator as well. The victim's descent can be redeemed. But the perpetrator defies redemption. He develops a cynical contempt for the values of the democracy, the laws he is paid to enforce and for the courts to which, he as a witness, is accountable. He becomes

impervious to the fact that he is a part of an institutional setup erected for ensuring greater freedom for members to progress towards a meaningful, mature and human society. There are numerous provisions in the Constitution of India and also in other laws, but unfortunately most of the provisions have remained paper tigers without teeth. It is generally the poor, disadvantaged and the weaker sections of the society who are victims of custodial crimes because there is no one to care for them and to protect them. It is therefore, for the government and the legislature to give a serious thought to the recommendation of the Law Commission and National Human Rights Commission and bring about appropriate change in the law both to curb custodial crimes and also to ensure that the guilty are punished. Torture in custody flouts the basic rights of the citizens recognized by the Constitution of India and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing.
NHRCs guidelines and Instructions on Torture The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. NHRC later held that all postmortem examinations done in respect of deaths in police custody and in jails should be video taped and sent to the commission along with postmortem report. The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence. While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the full hog and bring in a new law providing for stricter punishment for those involved in incidents of torture.

The Prevention of Torture Bill, 2008, drafted by government includes torture by Government servants, including police officials, within the ambit of punishable offences. Under the proposed law, public servants and others responsible for causing grievous hurt or danger to life, limb or health of any person would be liable for being punished for torture. Incidentally, the draft legislation also makes inflicting mental torture a punishable offence. Public servants torturing anybody for the purpose of extracting information or extra-judicial confession from any accused would be punished under the proposed law. Torturing anybody on the ground of his race, religion, place of birth, residence, language, caste and community would also be a punishable offence. Government of India would mandatorily made to submit regular reports to the UN on measures it has taken to implement the convention. The convention also says that that if extradition treaty has been signed by member countries, then an persons accused of torture would have to be extradited. The Bill provides for setting up of independent panels to deal with complaints of torture (at the central level as well as the state level). All complaints in torture matters would automatically be forwarded to these panels. The maximum punishment prescribed for torture is 10 years, which, government officials say, is among the highest in the world. India signed the Convention in October 1997, but has not ratified the same despite repeated calls by human rights organisations and NGOs. Ratification is necessary for appropriate changes to be made in the prevailing laws. Once ratified and a new law is in place, it would enable institutions and authorities to be committed and be accountable to tackle instances of widespread torture, especially in police custody

______________________ 1. Stephen, History of Criminal Law, p. 442.B 2. "Custodial Crimes: Some Observations", Punjab Police Academy, Phillaur (1997).B 3. Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.B 4. D. K. Basu v State of West Bengal, 1997 Cr.L.J.743 S.C.B

5. Available at www.un/specialrapporteur/torture.org. 6. Reported in Times of India, on 15th December, 2006.B 7. S.I. Jyothi Rayudu, commited the lock up death on may 5th 1998. Reported in Enadu News Paper on August 19th, 2007.B 8. (2006) 8 SCC 1.B 9. (384 US 448).B 10. (2005) 9 SCC 631.B 11. AIR 1990 SC 709.B 12. 1999(5) SCALE 3 72.B 13. AIR 1970 SC 1969.B 14. 1994 Supp (3) SCC 100.B 15. 1995(2) Crimes304(SC).B 16. 1997(6) SCALE 442.B 17. 1995(3) SCALE 343.B 18. AIR 1983 SC 1086.B 19. Introduction of 114B to the Indian Evidence Act, Law Commission of India, 113th report, P.5.B 20. Supra at note.17.B 21. AIR 2002 SC 2920.B 22. AIR 2006 SC 1117.B 23. JT 2007 (2) SC 250.B 24. Writ Petition (Crl.) No. 6 of 2007, Decided On: 17.05.2007.B

25.[1] 1997 (2) ALD 523 (DB).