Democracy and Human Rights

Pallab Bhattacharyya

(Retd DGP & Retd Chairman, APSC)

On 27th November 2019, a 26-year-old veterinary doctor (named 'Disha' like the Delhi girl 'Nirbhaya') was gang-raped and murdered brutally in Shamshabad near Hyderabad under the Commissionerate of Cyberabad and this incident sparked outrage across India and Indian diaspora abroad. Four suspects were arrested and, according to the Cyberabad Metropolitan Police, confessed to having raped and killed the doctor. Interestingly all the four were killed by police in an encounter while going for recreation of the crime scene, triggering a chorus of praise for what many saw as speedy justice. A PIL was filed by one GS Mani at the Supreme Court on 7-12-2019 against the encounter and the Justice VS Sirpurkar Commission set up by the Supreme Court, in its report, stated that it believed the accused were deliberately fired upon with an intent to cause their death and with knowledge that the firing would invariably result in death.

Two custodial deaths took place in 48 hrs on 12-06-2022 following which an embarrassed Tamil Nadu police had to issue an SOP for custodial interrogation. Only in May/2022, six Chennai cops were arrested on murder charges after a 25-year-old Dalit man died in custody. Meanwhile, police in Saharanpur, UP, have been caught on camera brutally beating nine Muslim men arrested after 10th June's rioting incidents. Custodial violence is a colonial legacy, but the reality is that generations of Indian politicians and, therefore, cops have winked at this scourge.

In this connection the spate of encounters taking place in Assam over the last one year or so, irrespective of the victims being drug traffickers, smugglers or history-sheeters, deserve special mention. In this regard the Gauhati High Court is at present hearing a petition (PIL NO-86/2021) filed by advocate Arif MD Yeasin Jwadder in December last year, alleging that 80 incidents of fake encounters had happened in the state since May 2021 and resulted in 28 deaths and left 48 injured. The taking up of the case by Indira Jaisingh, ranked 20th in the list of 50 Greatest Leaders of the World by Fortune magazine in the year 2018, deserves special mention.

All these events taking place in different parts of the country have brought back the spotlight on policing in general and functioning of the Constitutional bodies and others that were established to maintain human/fundamental rights. What is intriguing is the fact that India has not yet ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (abbreviated as UNCAT) though it has signed it way back on 14th October, 1997.

It is worth mentioning that any international convention that a country signs, it has to indicate to the related Committee what measures it has taken to bring to effect the undertakings of the convention. Thus, ratifying the UNCAT would mean that India would have had to take effective legislative, administrative, judicial or other measures to prevent acts of torture. The undertakings prescribed under UNCAT require the State to ensure that its authorities make investigations when there is reasonable ground to believe that an act of torture has been committed and to ensure that acts of torture are serious criminal offences within its legal system. Most importantly, and the one undertaking that remains pertinent, is that the State cannot expel or extradite a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture. It is widely believed that India's differential treatments to non-Muslims so far as CAA is concerned vis-à-vis the Rohingyas of Myanmar underlines the basic dilemma for ratifying the UNCAT.

The UPA-II Government in the year 2010 brought the Prevention of Torture Bill with a view to ratify UNCAT as is evident from the initial statement of the bill which reads as follows:

"A Bill to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant, and for matters connected herewith or incidental thereto. WHEREAS India is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; AND WHEREAS it is considered necessary to ratify the said Convention and to provide for more effective implementation. " India's refusal to ratify UNCAT and its unwillingness to have any law that condemns torture only indicate its subservience to the doctrine of sovereign immunity. The doctrine of sovereign immunity is a concept of common law principle consistently followed in British jurisprudence in last several centuries that 'King commits no wrong' and has evolved on the principle of sovereignty that a State cannot be sued in its own court.

The 273rd Law Commission Report released in 2017 suggested, among other things, payment of compensation to victims of torture keeping in mind socio-economic background of the victim, nature, purpose, extent and manner of injury, including mental agony caused to the victim such as the amount suffices the victim to bear the expenses on medical treatment and rehabilitation. The Commission had also observed that tolerance of police atrocities, amounts to acceptance of systematic subversion and erosion of the rule of law and that it is not permissible whether it occurs during investigation, interrogation or otherwise.

If we see the judicial pronouncements, in DK Basu v State of West Bengal, of 18.12.1996 the Supreme Court had observed, "Torture has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of the human civilization". The Judgment also prescribed a set of 11 guidelines to be followed for custodial interrogation/arrest, failing to observe which necessarily invite departmental action.

In Raghubir Singh v. State of Haryana 1980, a case where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court had observed "The state, at the highest administrative and political levels, we hope, will organize special strategies to, to prevent and punish brutality by police methodology. Otherwise the credibility of the Rule of Law in our Republic vis-à-vis the people of the country, will deteriorate."

In another case, State of UP v Ram Sagar Yadav 1985 AIR 416, the Supreme Court dealt with a case where the policemen murdered one Brijlal who not only refused to pay a bribe of Rs 100 in a trivial matter of cattle trespass, but also complained about demand of bribe to senior police officers. The Court observed that "Police officers alone and none else can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody... The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are." The Court recommended that the "law as to the burden of proof in such cases may be re-examined by the legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection."

While there are some safeguards against torture in Indian law, they are seldom taken seriously and enforced. For instance, Section 54 of Code of Criminal Procedure (CrPC) extends safeguard against any infliction of custodial torture and violence by providing for examination of arrested person by medical officer and Section 176 of the Code provides for compulsory magisterial inquiry on the death of the accused in police custody. When most of the countries of the world had ratified UNCAT, the land of Mahatma Gandhi refusing to ratify it, is indeed an enigma to the rest of the world. Article 21 of our Constitution, which emphasizes protection of life and personal liberty, will be meaningless if we refuse to ratify UNCAT. The four pillars of democracy should also play their part in this regard. We can conclude with the famous statement of Nelson Mandela "To deny people their human rights is to challenge their very humanity."