Custodial torture, as a form of police interrogation, has re-entered public consciousness following the blood-curdling allegations levelled against IPS officer Balveer Singh, the former assistant superintendent of police at Ambasamudram. But this is not the first instance of custodial torture in the state of Tamil Nadu, nor will it be the last. Calls for arrest of errant police officials and conduct of fair investigation and trial are important, but sporadic, legal solutions. What India needs today is standalone legislation on custodial torture for it to suitably deliver the constitutional promise of the right to live a life with dignity.
A comprehensive legislation on custodial torture is something that lawyers, including myself, and human rights activists, have been demanding for decades. In 2010, the Ministry of Home Affairs introduced, in the Lok Sabha, a bill aimed at preventing custodial torture. The bill was subsequently referred to a 13-member Select Committee of the Rajya Sabha, which recommended the enactment of the legislation. Among other key modifications suggested by the Committee were that the definition of “torture” under the bill be enlarged and “attempt to torture” be stipulated as a separate and distinct offence. But the bill – strenuously opposed by some state governments – could never see the light of the day.
In 2016, former union law minister, Ashwani Kumar, filed a public interest petition in the Supreme Court stating that the absence of comprehensive legislation on custodial torture has resulted in a disturbing void in law, endangering constitutional guarantees. Kumar’s petition was, however, disposed of after the then attorney general assured the court that the government was “seriously considering” such a law. Several years have passed, but no concrete action has been taken by the government till date.
The need for standalone legislation on custodial torture is necessitated by the fact that the existing provisions under the Indian Penal Code (IPC) and the Code of Criminal Procedure are lacking in specificity to address all kinds of custodial violence. Currently, no Indian law defines “torture” or “custodial torture”. A police officer is virtually immune from accountability because custodial interrogations are the prerogative of the police, who can easily manipulate evidence. Interrogations take place behind closed doors and there is no eyewitness. Surprise inspections by official or non-official visitors seldom occur. Most police stations do not have adequate, functional CCTV cameras. Police delinquency merely leads to suspensions, transfers, or reproach. Few delinquent officers are arrested and even fewer face punishment.
While India is a signatory to the UN Convention Against Torture, the government has not, till date, shown the courage or will to ratify the Convention, which would require enabling legislation to reflect the wide definition and punishment for “torture”. The absence of standalone legislation on custodial torture means that the Supreme Court’s guidelines issued in the DK Basu case (1997) remain merely a matter of academic interest. There is no system in place to speedily prosecute delinquent police officers, lodge complaints relating to custodial torture, deal with the issue of evidence and burden of proof, ensure a speedy and fair investigation into custodial violence, speedily dispose of complaints, protect witnesses and complainants, to detect custodial violence using advanced scientific methods, or to sensitise police officers.
Custodial torture is one of the worst forms of barbarism. The rule of law cannot survive when protectors turn into oppressors. Any form of custodial treatment or behaviour that is degrading and contrary to human dignity strikes a heavy blow at Article 21 of the Indian constitution. The Indian constitution promises to secure every person the right against torture as a non-negotiable fundamental right. Sadly, neither the Parliament, nor the Supreme Court, has been able to fulfil this constitutional promise.