Custodial torture not yet a specific criminal offence

Ashwani Kumar
Former Union Minister for Law and Justice

June  26 is observed annually as the United Nations International Day in support of Victims of Torture. This is an occasion to remember those “who endured the unimaginable” and to assert our collective conscience against custodial torture that mocks humanity itself. 

The recent custodial death in a Punjab jail of a person accused of sacrilege and the conviction of a senior police officer of Gujarat in a custodial death case have reignited national debate on the question of custodial torture in the framework of constitutional guarantees. 

Human dignity and the Fundamental Rights that define it constitute the only politico-moral idea that has received universal acceptance. The Supreme Court has located the right to life with dignity in the constitutional mandate of Articles 14, 19 and 21, placing it “at the pinnacle in the hierarchy of constitutional values…”, treating the right as one that “…inhere(s) in us as a consequence of our humanity...” (M Nagaraj, 2016).

The compelling denunciation of torture as destructive of the human soul itself articulated by the Supreme Court in DK Basu (1997) citing Adrian P Bartow remains unsurpassed for its felicity and is recalled thus: “... torture is a wound in the soul so painful that sometimes you can almost touch it but it is also so intangible that there is no way to heal it . Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing 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 .…” 

The court concluded that “…….torture is the 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 backwards — flag of humanity must on each such occasion fly half- mast ….” 

The court was indeed echoing Wordsworth’s poignant expression of suffering as “…permanent, obscure and dark with the nature of infinity...” 

Its endorsement of “...dignity as an inherent dimension of equality…” whose “…boundaries do not depend upon the circumstances of any individual...” (Binoy Krishnan, 2017) and which cannot be infringed by the state is a reiteration of the established Kantian philosophical premise of humanity as an end in itself which compels us to recognise the dignity of others as a necessary condition to preserve our own.

And yet, the legislative and executive wings of the Indian state, which proclaims an irrevocable commitment to human rights, have been derelict in the discharge of their constitutional obligation to eliminate the crime of custodial torture. This crime has not been made a specific criminal offence under our domestic laws despite India being a signatory to the UN Convention Against Torture (UNCAT) as early as 1997. 

The Supreme Court has also not been able to enforce its decisions. This is so despite the recommendation of the Select Committee of the Rajya Sabha as far back as 2010 and the Law Commission in its 273rd report of 2017, the clear endorsement of the Human Rights Commission and the mandate of Articles 51(C) and 253 of the Constitution that command respect for international law which proscribes torture as a part of jus cogens — the principles which constitute the compelling norms of international law. 

In this regard, we are in the company of a few discredited nation states that have not ratified the UN Convention in the absence of a compliant domestic law. 

Meanwhile, individuals in India continue to be subjected to inhuman acts of custodial torture on a daily basis. The uncontroverted 2018 Report of the Asian Centre for Human Rights, titled Torture Update: India, has upon information furnished by the government in Parliament confirmed 1,674 custodial deaths (1,530 in judicial custody and 144 in police custody) from April 1, 2017, to February 28, 2018. It is widely believed that several thousand instances of custodial torture in the country go unreported. 

Routine instances of torture in state custody have enabled fugitives from India to resist extradition on the plea that they would be subjected to torture during the course of criminal investigation. 

The absence of a comprehensive standalone anti-custodial torture legislation and the consequential non-ratification of UNCAT have strengthened the case of criminals to resist the government’s attempts to extradite them to stand trial in India. 

As a nation aspiring to play its rightful role in shaping the new liberal global order, India must present itself as a democratic state able and willing to live up to the universal ideals of equality, freedom and dignity and to vindicate the core values of its dignitarian charter.

The shocking reality of recurring custodial torture will hopefully nudge the Modi government to enact a comprehensive and purposive law to end repeated infractions of the dignity of those in custody, thereby subserving the constitutional goal of life with dignity for all. After all, ‘Sabka Vishwas’ and ‘Sabka Samman’ are integral to each other. 

Trusted with a massive electoral mandate and sworn to uphold the Constitution, the government will hopefully regard the enactment of law against custodial torture as one of its foremost priorities. This would indeed be a significant advance in the larger story of the vindication of freedom and human dignity. 

The case is best summed up in the immortal verse of Allama Iqbal :

‘Jab ishq sikhata hai adab-e-khud-agahi,

Khulte haiñ ghulamoñ par asrar-e-shahanshahi.’

(Broadly translated: When made aware of self-esteem, even a slave is invested with regal grace).

(Views are personal)