Article by Abhiraam Shukla
(Student at National Law Institute University, Bhopal)
"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This immortal observation was considered by the Supreme Court when it deprecated that state of custodial jurisprudence in India in Raghubir Singh. This landmark judgment was dictated by the Apex Court in 1980. However, the state of rights of people in judicial and police custody in India is still deplorable. Latest addition to the instances of gross and pitiless violation of human rights by the authorities in India has been the case of IP Jeyaraj and J Benniks, a father-son duo from Tuticorin district in Tamil Nadu who were brutally tortured and murdered by several policemen in Santhakulam Police station between 19 and 23 June, 2020. Their only fault was that they had kept open their mobile-shop after the government mandated curfew time.
Since custodial torture has become a shameful norm in our country, it is pertinent for us to realize why has India failed to safeguard the basic rights of detainees. Also, we have to keep in mind the different international instruments, regulations and conventions which protects the liberty and well-being of prisoners and detainees in different nations of the world. This article seeks to comprehensively analyze the safeguards provided by different international conventions and treaties which India has signed.
STATE OF CUSTODIAL TORTURE IN INDIA
In India, there has been a plethora of cases where persons have been fatally tortured by the police in judicial-custody. But in no incidents the police have been held accountable for their barbaric ways. In 2019 alone, the National Human Rights Commission (NHRC) recorded 1,723 cases of death in custody. It noted that “most deaths in police custody occur primarily as a result of torture”. Another report titled ‘India: Annual Report on Torture 2019’ by an NGO called National Campaign against Torture highlighted how the police in India continues to use torture as their most favorable method to extract information and confessions from the detainees or sometimes just to torment the backward sections of the society.
It was stated by Amnesty International in its report of 2017-18, that the number of deaths in judicial custody for the year of 2017 was 894 and those in police custody were 74. Even the Indian Supreme Court, in the recent case of Munshi Singh Gautam vs. State of Madhya Pradesh summarizes their grief concern about this problem of torture in Indian prisons by police. The Supreme Court stated that: “The dehumanising torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.”
INTERNATIONAL LEGAL FRAMEWORK GOVERNING CUSTODIAL JURISPRUDENCE
There have been a number of international treaties, conventions, regulations and declarations safeguarding the basic humanitarian rights of the of the detainees. These include Universal Declaration of Human Rights (1948), Standard Minimum Rules for the Treatment of Prisoners adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders held at Geneva in 1955 and approved by the Economic and Social Council by its resolutions, Draft Principles on Freedom from Arbitrary Arrest Detention and Exile (1963), Declaration on the Protection of All Persons from being subjected to Torture and other Cruel Inhuman or Degrading Treatment or Punishment (1975), International Covenant on Civil and Political Rights (1976), Optional Protocol to the International Covenant on Civil and Political Rights (1976), Code of Conduct for Law Enforcement Officials (1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987).
Universal Declaration of Human Rights (1948)
Universal Declaration of Human Rights, the most significant of all instruments protecting human rights provides that in no circumstances anyone should be subjected to torture, inhuman or cruel treatment or inhuman behavior. It is also declared by this convention that every person is to be assumed innocent until proven guilty (Article 4) and that no one should be subject to arbitrary arrest or detention by the law enforcements (Article 5).
Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975)
This statute declares a number of provisions to prevent torture and inhumane treatment of the detainees. The covenant provides that any form of torture or inhuman treatment or punishment is an offence to the human dignity and shall be condemned and no state shall permit such torture or inhumane treatment. Article 9 of this statute provides that in case an offence of torture is committed on the detainees, the State authorities shall conduct an impartial investigation of the same whereas Article 10 provides that criminal proceedings might be instituted against the perpetrators in case their offence is proved.
Code of Conduct for Law Enforcement Officials (1979)
Code of Conduct for Law Enforcement Officials mandates that law enforcement officials must respect the rights and human dignity of the person detained. They must use force against the detainees to a proportionate extent and only in those exceptional circumstances (Article 3) and there should be no enforcements of law which shall inflict, tolerate or instigate torture or any other degrading, cruel or inhuman treatment on prisoners or detainees. (Article 5).
LEGAL FRAMEWORK IN INDIA
As India has already signed or ratified the above-mentioned instruments except Optional Protocol and Anti-Torture Convention, it is expected by the world community that India enacts and implements sufficient laws to protect such rights. But much to our disappointment, this has not been the case with our country.
In India the laws against use of force on detainees and prisoners are much less than required. Under IPC Sections 330 & 348, makes the act considered as torture as penal, with 7 and 3 years of imprisonment, but when this offence is committed by a police officer on duty, it is not applied. Therefore, these provisions fall short of covering all the prospects of torture as defined in the Convention against torture. The main provision which is formulated in India to prevent custodial torture are the guidelines held by the Supreme Court in the landmark case of D.K. Basu vs State of West Bengal.
CONCLUSION AND SUGGESTIONS
Despite so many international rules and regulations against custodial torture, detainees in India still suffer at the hands of the police which flouts the Indian laws blatantly. This it has become the need of the hour to introduce certain changes in the working of the legal framework of the country in order to overcome this humanitarian crisis.
India should start by ratifying “United Nations Convention against Torture” which it signed in 1977. This can only be done after India has passed a law against prohibition of torture. Both the National Human Rights Commission and SC have recommended this step again and again.
India has already signed the “United Nations Convention against Torture” in 1977; next step for India is to ratify it forthright. If this happens India will account for every case relating to torture in front of the UN and this will help India to tackle these cases accordingly.
Another measure which can be done is the amendment of “Police Act of 1861” which has been notoriously used to suppress and violate rights of the people. Police have been using the said instrument again and again to torture the persons under its custody even if they are brought in for interrogation in respect of a particular offence.
The Government should also make people aware of their rights relating in respect of judicial and police custody. People should know what remedies are for them in case of any violation by the police.
Lastly NHRC should be given the power so that it can conduct investigations without the help of police. This should include the power to conduct investigations on its own and to hear complaints against the police officials on its own.
 Raghubir Singh vs. State of Haryana, AIR 1516, SC 1974  Annual Report, National Human Rights Commission (2017-2018)  Saini, R.S. “CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA.” Journal of the Indian Law Institute, vol. 36, no. 2, 1994, pp. 166–192. JSTOR, www.jstor.org/stable/43951530. Accessed 2 Aug. 2020.  Munshi Singh Gautam vs. State of Madhya Pradesh, AIR, 1272, SC 2004  Universal Declaration of Human Rights, UNGA (1948)  Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNGA (1975)  Code of Conduct for Law Enforcement Officials, UNGA (1979)  DK Basu vs. State of West Bengal, (1) SCC 416 1997 Picture Courtesy- Dev Asangbam/@devasangbam