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Why a separate anti-torture law?
Context: The death of a father and son due to alleged custodial torture in Thoothukudi district of Tamil Nadu.
P. Jayaraj(58) and his son J Beniks(31), were taken into police custody for violating COVID-19 curfew hours. However, they died four days later allegedly due to custodial torture.
This incident has once again given rise to the demand for a separate law against torture.
Did You Know?
Torture is not defined in the Indian Penal Code, but the definitions of ‘hurt’ and ‘grievous hurt’ are clearly laid down.
India has signed U.N. Convention against Torture and other Cruel, Inhumane or Degrading Treatment (CAT), but is yet to ratify it
Does that mean there aren’t safeguards against torture?
No,there are provision in law and Court judgements that provide safeguards
Though the definition of ‘hurt’ does not include mental torture, Indian courts have included psychic torture, environmental coercion, tiring interrogative prolixity,among others, in the ambit of torture
Voluntarily causing hurt and grievous hurt to extort confession are also provided in the Indian Penal Code with enhanced punishment.
Under the Code of Criminal Procedure, a judicial magistrate inquires into every custodial death.
The National Human Rights Commission has laid down specific guidelines for conducting autopsy under the eyes of the camera, to prevent interference by police
Supreme Court Judgements on Custodial Torture
D.K. Basu v. State of West Bengal: Under this case, the Supreme Court of India observed in this widely publicized death in police custody that using torture to impermissible and offensive to Article 21.
NilabatiBehera v. State of Orissa: Court made sure that the state could no longer escape liability in public law and had to be compelled to pay compensation
Similarly, the Court has held in many cases that policemen found guilty of custodial death should be given the death penalty.
Therefore, there is neither a dearth of precedents nor any deficiency in the existing law
Was there any attempt at enacting specific legislation on prevention of torture?
Yes, a fresh draft of the Prevention of Torture Bill was released in 2017 for seeking suggestions from various stakeholders.
It included ‘severe or prolonged pain or suffering’ as a form of torture but that was left undefined.
Criticism of the bill
The Bill was not only vague but also very harsh for the police to discharge its responsibilities without fear of prosecution and persecution.
It was inconsistent with the existing provisions of law.
The proposed quantum of punishment was too harsh.
Though the 262nd Law Commission Report recommended that the death penalty be abolished except in cases of ‘terrorism-related offences’, the Bill provided for the death penalty for custodial deaths
In the Bill, the proposed registration of every complaint of torture as an FIR and blanket denial of anticipatory bail to an accused public servant was not reasonable.
Overall, the proposed Bill was not a reformative one.
Way Ahead
Retired Supreme Court Justice Deepak Gupta has said that is need to first implement the law as we have it
The investigations, the prosecutions are not fair and these must be rectified first
The temptation to use third-degree methods must be replaced with scientific skills
There is need for better training for police officers
