32 Torture: Constitutional and Legislative Provisions in India

Dr. Y S R Murthy

1. Introduction

2. Definition of Torture

3. Forms of Torture

4. International Law Instruments dealing with Torture

4.1 Universal Declaration of Human Rights, 1948

4.2 International Covenant on Civil and Political Rights, 1966

4.3 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

5. Non-binding International Law Standards

5.1 Standard Minimum Rules for the Treatment of Prisoners (1955)

5.2 Code of Conduct for Law Enforcement Officials (1979)

5.3 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)

5.4 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)

5.5 Basic Principles for the Treatment of Prisoners (1990)

5.6 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (1999)

5.7 Rome Statute of the International Criminal Court (1998)

6.Summary

Introduction

Human Dignity is an important component of the international human rights discourse. Torture at the hands of the formal law enforcement officals is considered to be one of the cruelest forms of human rights violations. The reason why it is regarded as the harshest violation is that it is rendered by those who are entrusted with the task of protecting human rights. Over the years, the international community has arrived at a consensus to come up with a legal framework to end this human rights violation. The underlying motivation behind this consensus is that there is a growing realization among the civilized nations which ensures the dignity of the individual.

Addressing security concerns along with ensuring protection of human rights is an important balancing act for law enforcement machineries in democratic states. As a result, several international law instruments have come about to address concerns regarding human rights violation due to torture. In this module, several binding and non-binding international law instruments have been discussed in detail.

Torture

To begin with, it is important to understand the definition of the term torture. In Oxford Dictionary, the term torture has been explained as-“The action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something. Torture is a brutal act having an adverse impact on the body and mind of the victim. It has been prevalent in world since ancient times in diverse forms including, though not limited to sleepless nights, beatings, electric tremors, hanging by limbs, forceful bogus executions and sexual attack, especially rape to create fear, extract confessions and take revenge. Practicing it in any form, causes severe deprivations to one’s right to live freely in a dignified manner, without any sort of fear.”

Torture seeks to destroy the human spirit. It deliberately attacks the physical and emotional well-being of individuals and in some cases, the dignity and will of entire groups. Though the human rights standards, which have evolved over past seventy years or so, prohibit it under any circumstance, yet it is practised in many countries of the world.

Forms of Torture

Torture encompasses a variety of methods including severe beating, electric shock, sexual abuse and rape, prolonged solitary confinement, hard labour, near drowning, near suffocation, mutilation, and hanging for prolonged periods. It also encompasses being forced to stand spread eagled against the wall for hours; being subjected to bright lights or blindfolding; being subjected to continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant standing or crouching; or violent shaking.

Moreover, torture is not limited to acts causing physical pain or injury. It includes acts that cause mental suffering, such as through threats against family or loved ones.

International Law Instruments dealing with Torture

Liability of the state for torture committed by agents of the state (e.g. police officers, soldiers, prison guards etc.) is clear under international law. Some argue that the state is also responsible for torture carried out by private individuals (“non-state actors”) in the form of racist attacks or domestic violence, for example, if it does not do enough to prevent such abuses.

Every state is required to take effective legislative, administrative, judicial, or other measures to prevent acts of torture in its territory. Acts of torture must be offences under criminal law. There is no justification to the use of torture in exceptional situations, e.g. during a state of war, internal political instability, or any other public emergency. Following an order from superior authorities also does not justify torture, under the UN Convention against Torture.

The concept of human dignity first and foremost being found in the Universal Declaration of Human Rights (UDHR) states “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.1 The UDHR, that is interpreted as a as a constitutional document of International legal order2, commits states to the notion that human dignity is a norm that cannot be deviated from when pursuing any state policy. Another equally important document upholding the value of the human dignity, the International Covenant on Civil and Political Rights, states in its preamble that the states that have ratified the Covenant shall recognize-“the inherent dignity and inalienable human rights of all members of the human family”. The preamble of the ICCPR also states “human rights derive from the inherent dignity of the human person”.3 Furthermore, the United Nations Charter also states that every state must “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nationals large and small”.

It can be seen from the above discussion that the relationship between human dignity and idea of human rights is immensely important. The fundamental premise of the idea of human rights lies in assuring the dignity to the individual.

The UN Convention on Torture was the most significant development in the area of international law with regard to torture. But before this convention came into being, several international law instruments had laid down the ground for it.

1. Universal Declaration of Human Rights, 1948

Article 5 of the Universal Declaration of Human Rights states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition against torture came into the Universal Declaration on Human Rights as a result of the horrors that the world had seen during the Second World War. The atrocities committed by the Nazis were too horrific as it compelled the international community to ensure that such acts did not occur in the future.

2. International Covenant on Civil and Political Rights, 1966

Article 7 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

3. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

The UN Convention on Torture was a direct result of the ‘Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’19 (the “Torture Declaration”) by the General Assembly on 9 December 1975. The Convention follows the structure of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights with a preamble and 33 articles, divided into three parts. Till 2017, this Convention has one hundred and sixty two state parties; however seven countries (including the U.S.A and India) have signed and not yet ratified this convention.

4. Definition of Torture

The definition of the term-Torture is given in Article 1 as follows:

“For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

It can be clearly observed that the definition adopted by the UN Convention against Torture is very expansive and broad. The definition adopted by this Convention under Article 1 has been largely based on the UN Declaration against Torture. “However it drifts away from the declaration definition as it deliberately lowers the threshold. Unlike the declaration, it does not describe torture as an aggravated and deliberate form of inhuman treatment. The convention places an obligation on each and every signatory to implement effective measures to combat torture.”

Obligations under this Convention

Article 2 of the Convention lays down the following obligations for Member States:

• “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
• No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
• An order from a superior officer or a public authority may not be invoked as a justification of torture.”
• Apart from the above mentioned obligations, the member states are also required to undertake following steps with regard to changes in the criminal law.

Article 4 sets out the following obligations:

• “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
• Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

Steps to be followed when a case of torture is reported

Article 6 of the Convention lays down the following procedure:

• “Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
• Such State shall immediately make a preliminary inquiry into the facts.
• Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.
• When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.”

Highlight of this Convention

The highlight of this convention is the Committee against torture that is set up “to receive, study and comment on periodic reports from the States parties on the measures they have taken to give effect to their undertakings under the Convention; to initiate an investigation when there is reliable information which appears to contain well-founded indications that torture is being systematically practiced in the territory of a State party and to receive and examine complaints by one State party of violations of the Convention by another State party.”

Committee against Torture

Article 17 of the Convention against Torture lays down the foundation of Committee against Torture:

• “There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.
• The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture.”

Article 18 of the Convention lays down the composition of the Committee and prescribes the term and meeting procedure.

Powers of the Committee

Article 19 of the Convention lays down the following powers of the Committee:

• “The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request.
• The Secretary-General shall transmit the reports to all States Parties.
• [Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.
• The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.]”

Optional Protocol to Convention Against Torture, 2002

The Protocol aims to prevent torture and other cruel, inhuman or degrading treatment or punishment by establishing a system of regular visits to all places of detention. These visits will be carried out by independent “national preventive mechanisms” which states parties undertake to establish or designate, and by a new international expert body, the Subcommittee for the Prevention of Torture (Subcommittee).

Non-binding Standards

There are several non-binding international instruments which are relevant to the prohibition of torture. Some contain explicit prohibitions of torture and ill-treatment; others set out standards, safeguards and other measures contributing to prevention. Most of the instruments are in the form of resolutions adopted by the UN General Assembly or other UN bodies. Although not binding under international law, these “soft law” instruments should not be regarded as mere sets of recommendations which governments are free to follow or not as they choose.

The adoption of these instruments has often involved a scrutiny as intense as that applied to the drafting of treaties. Many of them have been adopted without a vote, a sign of strong agreement by states that the standards set out in them should be implemented. These “soft law” standards may subsequently be adopted as legally binding obligations, as happened when various provisions of the Declaration against Torture were incorporated in the Convention against Torture. Some “soft law” standards may reflect actual or emergent rules of general international law. The standards may be used by national and international judicial bodies to elaborate the scope of established rules of law and to interpret and develop the rules set out in international human rights treaties.

Standard Minimum Rules for the Treatment of Prisoners (1955)

The Standard Minimum Rules seek “to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions”. They apply to all categories of detainees, including sentenced prisoners, those under administrative detention and persons detained without charge. On the whole, they represent “the minimum conditions which are accepted as suitable by the United Nations”. The Rules lay down minimum standards for registration; separation and classification of detainees; accommodation; sanitary installations; provision of food, drinking water, articles necessary for personal hygiene, clothing and bedding; religious practice; education; exercise and sport; medical services; and treatment of mentally ill prisoners. They regulate disciplinary and complaints systems, the use of instruments of restraint and the transport of detainees. In particular, all cruel, inhuman or degrading punishments, including corporal punishment, are completely prohibited as punishments for disciplinary offences. There is also a section regulating the qualifications and behaviour of institutional personnel.

Code of Conduct for Law Enforcement Officials (1979)

It contains guidelines for the use of force, including firearms, and the provision of medical treatment to persons in custody. The term “law enforcement officials“ is widely interpreted as including all officers of the law who exercise police powers, especially powers of arrest and detention. The prohibition of torture in article 5 derives from the Declaration against Torture. According to the commentary to article 5, the term “cruel, inhuman or degrading treatment or punishment” should be interpreted “so as to extend the widest possible protection against abuses, whether physical or mental”.

The Code authorizes law enforcement officials to use force “only when strictly necessary and to the extent required for the performance of their duty” (art. 3). It may thus be used only for the prevention of crime or in effecting or assisting in the lawful arrest of offenders, and its use must be proportionate to the legitimate object to be achieved. Firearms should be used only in the event of armed resistance or jeopardy to the lives of others and only where less extreme measures are not sufficient to apprehend the suspect. Law enforcement officials should fully protect the health of persons in their custody and take immediate action to secure medical attention when required (art. 6).

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)

It specifies the rights of persons under arrest and detention to, inter alia, legal assistance, medical care and access to records of their detention, arrest, interrogation and medical treatment. States should prohibit any act contrary to the Principles, make such acts subject to appropriate sanctions and conduct impartial investigations of complaints (principle 7).

Principle 6 states that: “No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” According to a footnote, the term “cruel, inhuman or degrading treatment or punishment” should be interpreted “so as to extend to the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time”.

Principle 21 states that no detained person may be subjected to violence, threats or methods of interrogation which impair his or her decision-making capacity or judgement. No detainee may be subjected, even with his or her consent, to medical experimentation that may be detrimental to his or her health (principle 22).

Non-compliance with the Principles in obtaining evidence should be taken into account when determining the admissibility of evidence against a detained person (principle 27).

Detained persons or their legal representatives have the right to lodge a complaint, especially regarding torture or other ill-treatment, with the authorities responsible for the place of the detention and, where necessary, to appropriate authorities vested with reviewing power. Such complaints should be promptly dealt with and replied to without undue delay. No complainant should suffer prejudice for lodging a complaint (principle 33).

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)

They address the lawful use of force and firearms, the policing of unlawful assemblies and of persons in custody or detention, and reporting and review procedures concerning the use of force and firearms in the line of duty. Principle 7 states that the arbitrary or abusive use of force and firearms by law enforcement officials should be punished as a criminal offence under domestic law. Principle 8 stipulates that exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from the principles.

Force and firearms may be used only if other means remain ineffective or without any promise of achieving the intended result (principle 4). Law enforcement officials should act in proportion to the seriousness of the offence and the legitimate object to be achieved. Damage and injury should be minimized, medical assistance rendered to injured persons, and relatives or close friends informed at the earliest possible moment (principle 5).

Basic Principles for the Treatment of Prisoners (1990)

They require that prisoners should be treated with respect for their inherent dignity as human beings. They should not suffer discrimination and their religious beliefs and cultural precepts should be respected. They should have access to cultural and educational activities aimed at full development of the human personality, to meaningful remunerated employment that will facilitate their reintegration into society and to all health services without discrimination. Efforts to abolish solitary confinement are encouraged.

Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (1999)

The Manual and the Principles it contains were produced by a coalition of experts representing 40 organizations or institutions. In resolution 55/89, to which the Principles are annexed, the General Assembly strongly encouraged Governments to “reflect upon the Principles as a useful tool in efforts to combat torture” (para. 3).

The Istanbul Protocol describes in detail the steps to be taken by States, investigators and medical experts to ensure the prompt and impartial investigation and documentation of complaints and reports of torture.

The investigation should be carried out by competent and impartial experts, who are independent of the suspected perpetrators and the agency they serve (principle 2). They should have access to all necessary information, budgetary resources and technical facilities. They should have the authority to issue summonses to alleged perpetrators and witnesses, and to demand the production of evidence (principle 3(a)). The findings of the investigation should be made public (principle 5(b)). The alleged victims and their legal representatives should have access to any hearing and to all information relevant to the investigation (principle 4).

Rome Statute of the International Criminal Court (1998)

The Rome Statute, which establishes an international tribunal to try perpetrators of genocide, crimes against humanity and war crimes, was adopted by a United Nations on 17 July 1998.

According to article 7, the systematic or widespread practice of torture and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” constitute crimes against humanity. Torture is defined as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”.

Even the definition of Genocide [Art. 6 of Rome Statute] and War Crimes [Art. 8 of Rome Statute] also have torture as a constituent element but the legal threshold is very high. In the case of genocide, torture (besides killing and other such acts) must be committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. In the case of war crimes, torture or killing or other acts mentioned in Article 8, must be committed in particular as part of a plan or policy or as part of a large-scale commission of such crimes.

Summary

In this module, the entire international law framework dealing with torture has been discussed. There are several binding and non-binding international law instruments which deal with the prohibition of  torture. The most significant development in this area has been the UN Convention against Torture which was adopted in 1984. This Convention provides for an effective mechanism of ensuring that there is an end to the practice of torture. The idea behind this Convention is based on the principles laid down in the foundational documents on human rights i.e. Universal Declaration on Human Rights and International Covenant on Civil and Political Rights.

Reference

1. Dr. S.P. Sathe, “Liability of a Police Officer for Custodial Death: A Note” Ashwatthe, Vol.4 Issue 1 (January-March, 2004).
2. H.H. Singh, “Importance of judicial activism in preventing custodial violence” Central India Law Quarterly, Vol. XVI, 431 (2003).
3. Constitution of India
4. Indian Penal Code, 1860
5. Indian Evidence Act, 1872
6. Code of Criminal Procedure, 1973
7. Police Act, 1861
8. Prevention of Torture Bill, 2010