Beyond the margins of law: Custodial Violence and Torture in India

“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, paralyzing 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.” Adriana P Bartow

The Police Station was dimly-lit with crumbling ceilings and aging walls. The corners were unseen blurred with a shaky shadow of iron railings. The cell was casting out a ghastly odor of human sweat mixed with blood and urine.  As I move closer to the cell, I see two men, bruised and broken. Their lips are bleeding, and their heels were ‘blue.’ I turn to the next cell; I see two children naked, their faces buried in their arms, shaking and shivering. I feel agony. I feel cold and lifeless.

Torture and custodial violence render their victims voiceless. It pronounces that unholy power breeds inequality. It normalizes physical brutality. In India where the right to life and liberty is the prized fundamental right adorning highest place amongst all essential fundamental rights, instances of torture, violence and illegal detention by the police casts a slur on the very core of constitutional integrity. Unfortunately, human rights take a back seat in this depressing scenario.


What is torture?

The Article 1 of the Convention of Torture says, ‘ 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 intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain is inflicted by or at the acquiescence of a public official or other person acting in an official capacity’.

The World Medical Association in its “Declaration of Tokyo” (1975) defines torture as follows: ‘Torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason’.

Custodial torture, often known as extra-judicial executions has been on the rise in India especially post globalization. According to the Asian Centre for Human Rights, the national figures are four custodial deaths per day. There have been 7468 reported custodial deaths between the years 2002 and 2010. However, the severity of the torture in India is far worse than statistics suggest. Victims of custodial violence rarely report cases against the police due to fear of reprisals.

The Indian Supreme court has said “dehumanizing torture, assault, and death in custody” are so widespread as to ‘raise serious questions about the credibility of rule and administration of justice.’  India’s commitment to International Human Rights Law is appalling. The Indian state ratified the International Convention on Civil and Political Rights and signed the Convention of Torture, both of which prohibit torture, yet its prison cells speak to us in a frightening voice that has drained the soul out of these laws. Further, the spirit of Human Rights which is sincerely reflected in domestic laws provide for procedural safeguards against torture yet these provisions are silenced. The Supreme Court has observed that the constitutional right to liberty and human dignity as “an inbuilt guarantee against torture or assault by the state or its functionaries.”

Why does torture continue to exist?

The many legal provisions and safeguards are insufficient because torture and custodial violence are still considered an acceptable norm for obtaining information and confessions by the men in uniform. The crudity of criminal investigation is often blamed on the crudity of resources: the lack of scientific equipment and professionally-trained persons to do the job correctly. While India rightly touts itself as an emerging economic powerhouse that is also the world’s largest democracy, its police forces, the most visible arm of the Indian state, are widely regarded within India as lawless, abusive and ineffective. A dangerous anachronism, the police have largely failed to evolve from the role-supportive, repressive forces they were designed to be under Britain’s colonial rule.

More than 70 years later, as India inches towards rapid modernization and globalization, the police remain static, immovable and dangerously stagnant in their approach towards policing. Instead of policing through public consent and participation, the police use abuse and threats as primary crime investigation and law enforcement tactic. The institutional culture of police practically discourages officers from acting otherwise, failing to give them resources, training, ethical environment, and encouragement to develop professional police tactics. Although this is an element in the problem, it is not the central one. More important is the sheer impunity enjoyed by law enforcers. This impunity is allowed to flourish for want of laws criminalizing and punishing custodial torture, and also due to corruption and the wanton degeneration of courts and other institutions for the maintenance of law in India.


What next?

First, the need of the hour is internal and external accountability. Accountability not in the form of toothless human rights institutions, most of which even today do not hold prosecution powers. Second, In the long run, India requires an overhaul of its archaic police laws, institutional structures, and practices that facilitate the abuses. Third, make up for the severe and acute shortage of police officers by increasing recruitment at all state levels.

Fourth, the Central Government should be urged to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The government has failed to ratify the treaty on spurious grounds that existing laws are good enough to prevent custodial torture which is not the case. Were that the case, seventy years after independence and despite numerous concerns and guidelines issued by courts all over India, torture would not persist unabated as it does today.

By Nirmal J Das

Nirmal J Das is a Researcher and currently works with a global anti-slavery organization

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