Torture and the law: An indian perspective.

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Torture and the Law: An Indian Perspective
*Dr. Krishan Vij, **Dr. Dasari Harish, ***Dr. Amandeep Singh
*Professor & Head, **Reader, ***Demonstrator; Department of Forensic Medicine, Govt. Medical College,
Chandigarh.)
Corresponding Author: Dr. Dasari Harish, #1151, Sector 32-B, Chandigarh. 160030. Mobile:
+919876521551. Mail—dasariharish@gmail.com
Abstract
Torture of a fellow human being by another human being is essentially an instrument to impose the will of the
‘strong’ over the ‘weak’. Over the years, the incidence of torture has only increased, with the methods becoming
highly complex, involving psychical and/or physical exhaustion. These include deprivation of sleep, food and
drink; sometimes combined with forced physical activities or forced standing for hours or even days. Freedom of
movement and perception is restricted by confining the person to a very small dark room and his self-esteem is
eroded by deprivation of toilet facilities and clothing or by constant verbal abuse. Inspite of checks posed by
various laws including the International Humanitarian Law, such inhuman practices continue unabated. This
article describes the Indian scenario of this world-wide phenomenon, with a view to sensitize the readers about
this scourge on the society.
Introduction:
Since time immemorial man has been attempting to
subjugate his fellow human beings. Those in power
are used to twisting and turning the people through
violence and torture, and torture under custody has
become a global phenomenon. Men, women and
even children are subjected to torture in many of the
world’s countries,[1] even though in most of these
countries, the use of torture is prohibited by law and
by the international declarations signed by their
respective representatives.
A problem of increasing occurrence and repugnance
had been the methods of interrogation and torture
perpetrated upon prisoners and detainees.
Reference, in this context, is irresistibly drawn to
‘modus operandi’ exercised by the British Security
Forces in suppressing armed insurgency and
terrorism carried out by Republican and Loyalist
groups in Northern Ireland in 1969. Between 1971-
74, allegations of maltreatment and assault by the
security forces arose increasingly. Almost during the
same period, a few well-publicized cases occurred,
exposing the vulnerability of the ordinary public to
aggressive tactics of the police and the subsequent
inadequacy of the enquiries to address the public
issues. The landmark case [2] is that of one, Jim
Kelly, aged 53, who was arrested by the police in
‘drunk and disorderly’ state and was tortured
afterwards. During coroner’s inquest, police officers
admitted sitting on the victim, punching him,
squeezing his testicles and throwing him into the
back seat of the van, etc. At the police station he
was allegedly pulled from the van, banging his head
on the floor and dying shortly thereafter.
Interestingly, three postmortems were carried out
(including the one at the instance of the family at
their own expense) with all the pathologists
attributing death to “heart failure”. However, the
pathologist engaged by the family did conclude that
Jim Kelly had suffered more injury than can be
reasonably expected in a man who resists arrest;
and, that the systemic effects of such injuries, in one
way or the other, contributing towards death. A
verdict of “misadventure” was brought in after the
coroner had emphasized that the pathologists had
given the cause of death as “heart failure” and that
the Jim Kelly was drunk and had exerted himself.
However, with the development of the common law
and more radical ideas imbibing human thought and
approach, such inhuman practices have
progressively been discouraged.
Indian Scenario:
India’s refusal to ratify the UN Convention against
Torture was primarily based on the contention that
its laws were adequate enough to deal with crimes
committed by the representatives of the State.
Section 330 and 331 of the Indian Penal Code[3]
have been enacted to punish those who voluntarily
cause hurt or grievous hurt with an object to coerce
the sufferer to confess to his guilt or give information
respecting the commission of a crime or a
misconduct, or to restore property or satisfy any
claim or demand respecting thereto. Though the
sections are generally worded, the provisions are
mostly brought into requisition against police
personnel acting in furtherance of obtaining
confession through unmoded methods. Indeed, the
police personnel in an attempt to win the tributes of
superior officers or to avoid censure for slackness to
discover the culprit(s) / solve the case get tempted to
extort involuntary confession. Another driving force

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in this context may be the assumption that the law
would not admit in evidence anything said to the
police, unless, it is substantially corroborated by the
discovery of ‘the fact’ in consequence of confession /
information (Section 27 Indian Evidence Act [4]. The
ambit of these sections is wide enough as to extend
to all policemen then present, but, who do nothing to
prevent torture and either stand unconcerned or
withdraw from the scene for fear of getting
themselves implicated therein. Such an observation
came to be seen in Sham Kants’ case,[5] wherein it
was held that “the learned trial Judge was quite
wrong when he did not hold accused No.1 (ASI)
guilty of abetment only on the ground that although
he was present, he had not actively participated in
beating the suspect.”
The official machinery for the protection of human
rights in this country was set in motion by the then
President’s assent to the Protection of Human
Rights Act,[6] which came in to force on September
28,1993. Section 3 of the Act provides for the setting
up of the National Human Rights Commission
(NHRC) and Section 21 for the setting up of the
various State Commissions (SHRC). The Act also
provides for the designation of certain courts of
Session in each state as Human Rights Courts, by
the state in consultation with the Chief Justice of its
High Court. All these Commissions were given the
powers of civil courts vide Section 13(1), with the
power to summon any person to give evidence
relating to the matter under consideration (Sec.
13(2)), failing which they could be punished under
Sections 176 (omission to furnish information)&177
(giving false information) of the IPC. Section 18
provides for “interim relief” (monetary compensation)
to the victim, which could be recovered by the State
from the accused officials. However, despite such
elaborate Acts and Articles in place, along with the
requisite machinery, the mindset of the average
policeman continues to exist in a medieval time warp
and torture by the custodians of the law continues
unabated against those very persons, safe-guarding
of whose rights and liberty, is their legal duty. This
can very much be gathered from the list of police
excesses displayed by the NHRC in its web-site.[7]
The excesses listed include torture, illegal
confinement and false implications and the methods
of torture vary from beatings to amputation of the
male organ to blinding to gang rape to even death of
the victim.
Usual postures adopted by the police to evade
responsibility include : (i) showing that the body was
found on the road-side or the railway-track so as to
pass it off as a case of accidental or suicidal death,
or (ii) to make out a case that the arrested person
died after he jumped / fell from the building while
trying to escape, or (iii) jumped/ fell out of the
running vehicle as he was being transported to
some disclosed site / place to effect some recovery,
etc.
Exemplifying such like postures through citations will
make the things catchier. Nilabati’s [8] is an apt case
in this series wherein the State’s plea that the
deceased had escaped from the police custody by
chewing off the rope with which he was tied and was
then run over by the train, was disbelieved by the
Hon’ble Court after appreciation of the evidence in
entirety including the postmortem report showing
some injuries on the face being of postmortem origin
and the report of the Forensic Science Laboratory
showing incompatibility of two cut ends of the rope in
respect of physical appearance. The next to be cited
is the case of death of one Anil Kumar,[9] aged
about 21 years, wherein exceptionally intriguing
behavior of the police came to be voiced when the
police showed Anil’s death to be the result of
‘suicide’ by jumping from the building and converting
it into 304-A (causing death by rash or negligent act)
in pursuant to demonstrations of the residents and
the enquiry report submitted by the SDM.
Interestingly, the Hon’ble High Court, while hearing
the petition moved by the deceased’s mother
seeking justice and compensation for her son’s
death, expressed dissatisfaction over the approach
of the police in dealing with the matter and raised
queries over observations and conclusions made in
the CFSL report especially criticizing the suggestion
made in the report that “it seems that the deceased
could have attempted crossing the parapet wall to
get on to the grid and fallen from a height of about
15 feet to hit the ground on his left.” and asked the
scientist to explain as to how it found mention in the
report, as normally such observation was to be
made on specific query from the investigating
agency. Compensation to the tune of Rs. 9.95 lakh
was directed to the kin of the deceased and it is
perhaps, the first time that the State has been asked
to pay such a huge amount of compensation to the
victim’s family. And, finally the case was got
registered under section 304 IPC (culpable homicide
not amounting to murder).
Apart from the police, there are several other
governmental authorities like Directorate of Revenue
Intelligence, Directorate of Enforcement, Intelligence
agencies like the Intelligence Bureau (IB), Central
Bureau of Investigation (CBI), CIA, etc., which have
the power to detain a person and to interrogate him.
There are instances of torture and death in custody
of these authorities as well. For example, the Apex
Court took suo moto notice of the death of Sawinder
Singh Grover [10] during his custody with the
Directorate of Enforcement and after getting an

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enquiry conducted by the Additional District Judge,
directed the CBI to lodge a FIR and initiate criminal
proceedings against all persons named in the report.
Directorate of Enforcement was also directed to pay
a sum of Rs.2 lakh to the widow of the deceased by
way of ex gratia payment at the interim stage.
Our experience derived through the cases
conducted at the institute during the preceding ten
years shows that deaths in custody may broadly be
categorized in two groups, viz: i) death due to or
precipitated by medical condition under peculiar
circumstances, and (ii) death due to another
person’s action/behavior including those occasioned
from police torture in custody or during restraint or
after release from the custody (when death could
reasonably be traced to effects of injuries). Majority
of cases were due to or somehow related to medical
condition and our results stand substantiated by the
literature available on the subject. However, the
literature often speaks of a third category also
wherein death is attributed to deceased‘s own
causal actions i.e. self-harm (deliberate or
circumstantially triggered).
In all these cases the inquest proceedings had been
conducted by the executive magistrate as
contemplated in section 176 of the CrPC.[11] This
section is designed to provide a check on the
working of the police or to calm any alarm that has
been created in the mind of the public in cases of
death occurring under some specific circumstances.
A recent amendment in the said section requires the
inquest proceedings to be conducted by a judicial
magistrate. The amendment (effective from
23.06.2006) provides that “in case of death or
disappearance of a person or rape of a woman while
in the custody of the police, there shall be a
mandatory judicial inquiry and in case of death,
examination of the dead body shall be conducted
within 24 hours of death”. It is worth focusing here
that in the light of this amendment; the Hon’ble High
Court took objection to the inquiry proceedings
having been conducted by an SDM rather than by a
judicial magistrate in the case of custodial death of
Anil Kumar mentioned earlier.[9]
As far as the issue of compensation is concerned,
Article 9(5) of the International Covenant on Civil
and Political Rights 1966 (ICCPR) provides that
“anyone who has been the victim of unlawful arrest
or detention shall have enforceable right to
compensation”. However, India expressed specific
reservation to the effect that Indian Legal System did
not recognize a right to compensation for victims of
unlawful arrest or detention and thus did not become
a party to the Covenant. Notwithstanding all this,
the Apex Court through judicial activism evolved a
right to compensation in cases of established
unconstitutional deprivation of personal liberty or life.
The ‘Bhagalpur blinding case [12] was the first case
where the question of monetary compensation was
considered by the Hon’ble Supreme Court. The
working principles for calculating the quantum of the
compensation was laid down in another case [13]
from Bihar. In 1994, the Hon’ble Supreme Court
introduced the concept of “personal liability”[14]
wherein the State could recover the compensation
paid to the victim or his family from the official
concerned, as a deterrent to the said officers
indulging in the atrocities.
It has been furthered that this compensation was
based on strict liability and was recoverable from the
State, which shall have the right to be indemnified by
the wrongdoer. It was observed that the objective
was to apply balm to the wounds and not to punish
the transgressor or the offender, as awarding
appropriate punishment for the offence (irrespective
of the compensation) must be left to the criminal
courts in which the offender is prosecuted, which the
State was duty-bound to do under the law. Amongst
the judgments of other countries cited by the Apex
Court in this context, the judgment of the Court of
Appeal of Newzeland in Simpson Case [15]
deserves mention wherein the issue had been dealt
in a very elaborate manner. Each of the five
members of the Court of Appeal delivered a
separate judgment but there was unanimity of
opinion regarding the grant of pecuniary
compensation to the victim, for the contravention of
his rights guaranteed under the Bill of Rights Act,
notwithstanding the absence of an express provision
in that behalf.
Conclusion:
The Hon’ble Supreme Court laid down in DK Basu’s
case [16] the guidelines to be followed in all cases of
arrest or detention to combat the evil of custodial
crime and bring transparency and accountability
therein. However most of the recommendations
made by the Hon’ble courts or the various NGOs
from time to time are only observed more in the
breach and not adhered to. Though most of the rules
and instructions regarding the prohibition of torture
are incorporated in the curriculum of training of the
police force, the basic mind-set has not changed.
Hence the need of the hour is to put in serious
thinking and concerted efforts by all concerned—the
State, the voluntary organizations, the society, etc
so as to bring in the needed change in the attitude of
the custodians of law.

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Bibliography:
1. Amnesty International. Report 2000. Amnesty International
Publications. London, 2000.
2. Scraton and Grodon. British criminal justice on trial. Penguin
Books. Harmondsworth. UK. 1984:p46.
3. The Indian Penal Code, 1860. Act 45 of 1860.
4. The India Evidence Act, 1872. Act 1 of 1872.
5. Sham Kant Vs. State of Maharashtra, 1993:CrLC463pp472,
473:SC.
6. The Protection of Human Rights Act, 1993. Act 10 of 1994,
w2ith Amendment Act, 2006.
7. http://www.nhrc.nic.in.policecasec.htm. Accessed on
02/11/2007.
8. Nilabati Behera Vs. State of Orissa, 1993: 2SCC 746.
9. Phoolwati Vs State (UT of Chandigarh) and others, CWP No.
11943 of 2007, Pb & H High Court.
10. Smt Grover Vs Directorate of Enforcement, 1994 SCC (Cri)
1464; 1995: supp (4) SCC 450.
11. The Criminal Procedure Code, 1973. Act 2 of 1974. With
amendment Act 2005.
12. Khatri Vs State of Bihar. AIR 1981 SC 928.
13. People’s Union for Democratic Rights Vs State of Bihar. AIR
1987 SC 355.
14. Arvinder Singh Bagga Vs State of UP. 1994 6 SCC 565.
15. Simpson Vs. Attorney General 1994 NZLR 667.
16. DK Basu Vs the State of West Bengal. 1997(1) SCC 416.