33 Supreme Court Jurisprudence on Torture

Dr. Y S R Murthy

Learning Outcomes:

To learn the constitutional basis for protection against torture and various cases which expanded the scope of right to life.
To understand the guidelines regarding arrest laid down by Supreme Court decisions with regard to arrest and custodial torture.

Introduction:

Fundamental rights occupy a place of pride in the Indian Constitution. No civilized nation can permit torture to happen. Does a citizen discard his fundamental right to life, the moment a policeman arrest him? Can the right to life of a citizen be put in abeyance upon his arrest? These questions touch the core of human rights jurisprudence. The answer indeed has to be an emphatic ‘no’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenues and other prisoners in custody except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. Through numerous judgements, following jurisprudence has emerged from the Hon’ble Supreme Court with regard to the issue of torture.

Constitutional Basis for protection against Torture

In Maneka Gandhi’s case, judiciary has expanded the scope and ambit of Article 21 of the Constitution. The right to life under Article 21 is not confined merely to physical existence but it includes within its ambit the right to live with human dignity. In Inderjeet v State of Uttar Pradesh, the Supreme Court held that punishment which has an element of torture is unconstitutional. The Court has frowned upon the practice of keeping prisoners who have been awarded death sentence in solitary confinement. Apart from Article 21, the Court has also held it invalid under Article 20(2). A person under death sentence is held in jail custody so that he is available for execution of the death sentence when the time comes. No punitive detention can be imposed on him by the jail authorities except for prison offences. He is not to be detained in solitary confinement as it will amount to imposing punishment for the same offence more than once which would be violative of Article 20(2).

ln Inder Singh v State (Delhi Admn.), the Supreme Court issued certain directions regarding treatment of two young men convicted of murder and sentenced to life imprisonment with a view to reform them. Article 21 of the Constitution is the jurisdictional root for this legal liberalism.

In Raghubir Singh v Haryana, the Supreme Court said, “We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scars in the minds of common citizens that their lives and liberty are under a new peril because the guardians of the law destroy human rights.”

In Pram Shanker Shukla v Delhi Administration, the Supreme Court held that handcuffs are prima facie inhuman, unreasonable, and at first blush arbitrary without fair procedure and objective monitoring. The Court recognized the need to secure the prisoner from fleeing but asserted that this does not compulsorily require handcuffing. The guidelines laid down by the Court are: (i) To be used only if a person is:

Involved in serious non-bailable offences, has been previously convicted of a crime; and/or
Is of desperate character, violent, disorderly or obstructive; and/or
Is likely to commit suicide; and/or
Is likely to attempt escape.
Reasons for handcuffing must be clearly recorded in the police Daily Diary in order to reduce discretion.
Police must first seek judicial permission for the use of restraint during arrest or on a detainee.
At first production of an arrested person, the Magistrate must inquire whether handcuffs or fetters

were used, and if so, demand an explanation. In the case of Sunil Batra (II) v Delhi Administration, the Court reiterated that “handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice”.

In Kishore Singh v State of Rajasthan case, Krishna Iyer, J. has observed, “Nothing is more cowardly and unconscionable than person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”.

In Francis Corali Mullin v Union Territory of Delhi, the Supreme Court has condemned cruelty or torture as being violative of Article 21 in the following words, “any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an in-road into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with the procedure prescribed by law”.

The Supreme Court asserted in Sheela Barse v. State of Maharasthra case that prison restrictions amounting to torture, pressure or infliction were un-constitutional when they go beyond the order of the court. An under trial or convicted prisoner could not be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court or which was in excess of the requirement of prisoner’s discipline or which amounted to human degradation. In Mohan Lal Sharma v State of Uttar Pradesh, the Supreme Court has ruled that it is well recognised right under Article 21 that a person detained lawfully by the police and that legal detention does not mean that he could be tortured or beaten up. If it is found that the police have ill-treated a detenue, he would be entitled to monetary compensation under Article 21.

Guidelines on Arrest

In Joginder Kumar v State of Utter Pradesh, the Supreme Court set four major guidelines that are to be followed by the police in all cases of arrest. These are:-

An arrested person in custody is entitled, if he so requests, to have one friend or relative or other person known to him or likely to take interest in him told as or relative or other person known to him or likely to take interest in him told as far as is practicable, that he has been arrested and details as to where he is being detained;
The officer shall inform the arrested person of the above rights;
An entry is to be made in the case diary as to who was informed of the arrest (in the concerned case); and
Departmental instructions are to be issued that a police officer making arrest should record in the case diary, the reasons for making the arrest. In order to ensure that the above directions complied with; the Court declared that it shall be the duty of the Magistrate (before whom the arrested person is produced) to satisfy that these requirements have been met.

Taking cognizance of the reporting of large number of custodial crimes in India, the Supreme Court delivered a historic judgement in D.K. Basu v State of West Bengal which laid down rules for custody jurisprudence. The apex court felt the urgency of streamlining the structure and functions of the law enforcement machinery responsible for effecting arrests in the country. The Court observed that there should be more transparency and accountability in the system so far as arrests and detentions of the offenders are concerned. In addition to the statutory and constitutional requirements, it was made mandatory on part of the law enforcement agencies to observe the following guidelines at the time of effecting arrest of an offender:-

The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the arresting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
The arrestee should, where he/she so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.
The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director Health Services of the concerned State or Union Territory. Director Health Services should prepare such a panel for all Tehsils and Districts as well.
Copies of all the documents including the memo of arrest referred to above, should be sent to the ‘Illaqua Magistrate’ for his record.
The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
A police control room should be provided at all district and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and it should be displayed on a conspicuous notice board at the police control room.

The Court in the same case observed that failure to comply with the requirements mentioned above shall, apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having jurisdiction over the matter. The extent of these detailed instructions is itself an indication of judicial concern over illegal detention, torture and custodial deaths. However, an individual being picked up by the police anywhere in the Country is under enormous pressure and he or she would not directly confront the power of the men in uniform. In such a situation, it is extremely unlikely that he or she will be able to insist on the safeguards these judicial orders provide.

Judgements on Protection of Women against Torture

In the case of Sheela Barse, the Court has given directions to ensure protection against torture and maltreatment of women in police custody which are as follows:

Female suspects must be kept in separate lock-ups under the supervision of female constables.
Interrogation of females must be carried out in the presence of female Police officials.
A person arrested without a warrant must be immediately informed about the grounds of arrest and the right to obtain bail.
As soon as an arrest is made, the police should obtain from the arrested person, the name of a relative or friend whom s/he would like to be informed about the arrest. The relative or friend must then be informed by the police.
The police must inform the nearest Legal Aid Committee as soon as an arrest is made and the person is taken to the lock-up.
The Legal Aid Committee should take immediate steps to provide legal assistance to the arrested person at State cost, provided such person is willing to accept legal assistance.
The magistrate before whom an arrested person is produced shall inquire from the arrested person whether s/he has any complaints against torture and maltreatment in police custody. The magistrate shall also inform such person of her/his right to be medically examined.

In case of Arvind Singh Bagga v State of Uttar Pradesh, the Court has given an extensive definition of ‘torture’. According to the Court, “torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police”. The detention of a married woman in custody who is not an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers concerned is itself a great mental torture for her which cannot be compensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and compel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed . She was made to write a statement as commanded by investigation officers.

In Christian Community Welfare Council of India and Others v State of Maharashtra and Others, on the intervening night of 23 June-24 June 1993 at 12:45 P.M., 10 Policemen of Nagpur Crime Branch took railway worker Jaonious Adam, his wife Jarina Adam and their two children into custody, detained them for allegedly harbouring a person suspected in robbery. Adam was brutally beaten and died in the cell. His wife was beaten and repeatedly molested. According to High Court, “not only taking away a lady forcibly in the mid night by male police officers was deplorable but also gross and blatant abuse of power shows that such police officials have no regard for public morality and decency. The State should ensure that, female person is not arrested without the presence of a lady constable and in no case, after sunset and before sunrise”.

The State of Maharashtra went in appeal to the Supreme Court and the Apex Court gave its verdict in State of Maharashtra v Christian Community Welfare Council of India and held that ‘all efforts’ should be made to have a lady constable present. If the arresting officers could reasonably satisfy that it is not possible to have a lady constable present or there could be a delay in arresting; he can record reasons either before or immediately after the arrest and is permitted to arrest a woman for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.

Women organizations and legal activists have a different opinion. They feel that practical considerations cannot overrule the ground reality in the attitude of the police to women. The National Commission for Women, based on the reports of the National Expert Committee on Women Prisoners and the All India Committee on Jail Reforms, recommended to the Union Home Ministry that woman should not be arrested between sunset and sunrise and not arrested except in the presence of woman. Section 46(4) is inserted by the Code of Criminal Procedure (Amendment) Act, 2005 to protect a woman from custodial torture. In case of Mehboob Batcha and Others v State Rep. by Superintendent of Police, the Supreme Court observed, “Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes and disrupt the entire social fabric and hence they call for harsh punishment”.

Recommendations of the Law Commission of India

After the judgement in the case of Ram Sagar Yadav’s case, the Law Commission of India recommended the insertion of new Section in the Indian Evidence Act, 1872, as under:-“114B

(1) In a prosecution of a police officer for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.

(2)The Court in deciding whether or not it should draw a presumption under sub-section (1) shall have recourse to all the relevant circumstances, including, in particular,

(a) the period of custody,

(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence,

(d) evidence of any magistrate who might have recorded the victim’s statement or attempted to record it”.

Unfortunately, these recommendations have not been implemented till today although instances of custodial torture are going on. Recommendations of Law Commission and Apex Court should be implemented to check and curb custodial crimes.

In Bhagwan Singh v State of Punjab, the Supreme Court said, “If a person is in police custody, then what has happened to him is peculiarly within the knowledge of the police officials who have taken him into custody when the other evidence is convincing enough to establish that the deceased died because of the injuries inflicted by the accused, the circumstances would only lead to an irresistible inference that the police personnel who caused his death must also have caused the disappearance of body”.

The need for a change in the rule regarding burden of proof was adverted to in the case of Nilabati Behera v State of Orissa. The victim taken into police custody was on the next day found dead at a place near the police post. The Court held that the burden was on the State to prove how the victim came to sustain the injuries resulting in his death. In Shakila Abdul Gafar v Vasant Raghunath Dhobla, keeping in view the dehumanizing aspect of the crime, the Court held that, “the flagrant violation of the fundamental rights of the victim and the growing rise in the crimes of this type, where only a few come to light and others don’t, the Government and the legislature must give serious thought to the recommendations of the Law Commission and bring about appropriate change in the law not only to curb the custodial crime but also to see that custodial crime does not go unpunished”.

In Munshi Singh Gautam v State of M.P., the Court held that rarely in cases of police torture or custodial death, only direct ocular evidence of custodial death are police personnel and they can only explain the circumstances in which the person died in custody. They are bound by the ties of brotherhood and it is not unknown that the police personnel prefer to remain silent and more often than not, even prevent the truth from coming out to save their colleagues.

Summary

In this module, the key take away is that the Constitutional provisions could be read in a liberal sense to give protection against Torture. The Hon’ble Supreme Court of India has performed this task in a calibrated way to ensure that there is no misuse of the police power to arrest. There are certain important guidelines laid down in the D.K. Basu case which became the guiding light for the jurisprudence in cases of custodial torture. Moreover, there are strong guidelines with regard to the protection of women against torture given by Supreme Court decisions.

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Reference

DivyaVikram. (2010) India’s Response Against the act of Torture, Retrieved from https://indialawyers.wordpress.com/2010/07/22/india%E2%80%99s-response-against-the-act-of-torture/
Avinash Rajput. Human Rights Violation in Custodial Torture, Retrieved from http://www.academia.edu/2207092/Human_Rights_violation_in_Custodial_Torture
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
D. K. Basu v. State of West Bengal, AIR 1997 SC 610
Inderjeet v State of Uttar Pradesh
Inder Singh v State (Delhi Admn.),
Raghubir Singh v Haryana
Pram Shanker Shukla v Delhi Administration
Kishore Singh v State of Rajasthan
Francis Corali Mullin v Union Territory of Delhi
Sheela Barse v. State of Maharasthra
Mohan Lal Sharma v State of Uttar Pradesh
Joginder Kumar v State of Utter Pradesh