Four undertrials¬†die in police custody every day in India ‚ÄĒ a disturbing number for one of the oldest judicial systems in the world. Between 2001 and 2010 the National Human Rights Commission (NHRC) registered 14,231 custodial deaths. And this is just the tip of the iceberg, as custodial torture not leading to death seldom makes news. Nonetheless, once the police dismiss the death as a suicide, result of sudden medical complication or self-inflicted injuries, justice eludes the deceased‚Äôs relatives as the entire system works to shield the torturers.
India‚Äôs law enforcement agencies have perfected the use of torture to extract confessions. By legislating laws like the Terrorist and Disruptive Activities (Prevention) Act that made confessions made to police officers admissible as evidence, India has gone a step further in providing State sanction to make torture an integral part of its judicial process.
India has no explanation for rampant use of torture by investigating agencies and for the absence of an anti-torture law. After being censured by the UN Human Rights Commission in May 2008 for human rights violations ‚ÄĒ including torture and enforced disappearances ‚ÄĒ India promised to enact a law against torture and ratify the UN Convention Against Torture (UNCAT). The government subsequently drafted the Prevention of Torture Bill, 2008. Though the Lok Sabha passed the Bill without any debate, it had to be referred to a Parliamentary Select Committee following objections in the Rajya Sabha. The committee submitted a revised version of the Bill in December 2010 but this Bill has effectively been shelved. India had nothing to report when it appeared for the UN scrutiny again in May 2012.
Even the Supreme Court, despite making the right noises, has failed to stamp out torture. Although it issued a set of guidelines in 1996 for the police to follow in all cases of arrest or detention as a measure to prevent custodial violence, these guidelines have had no deterrent effect on investigating agencies. But the SC has so far, however, shied away from ruling that torture does not form part of official duty, thereby insulating investigating personnel from legal scrutiny. Under existing laws, law enforcement personnel cannot be prosecuted without prior sanction from the government. In fact, contradictory judgments by the SC on the requirement of prior sanction for prosecuting erring officials have also not helped the fight against torture.
The NHRC too has equally failed in controlling custodial deaths, not to mention torture. It rarely recommends prosecution of the guilty and limits its recommendations to compensating the victim. In the past 20 years, the NHRC has not intervened in a single torture case being tried in the courts. Although, since 1993, it has made it mandatory to submit video records of the post-mortem examination in case of a custodial death, to date it has not established a medical advisory board to examine these videos!
Internationally, India‚Äôs track record remains extremely poor. Of the 193 member states of the UN, 153 nations have ratified the UNCAT. India remains among the handful of countries that haven‚Äôt. In June 2011, the Danish High Court rejected the extradition of Kim Davy, the prime accused in the 1995 Purulia arms drop case ‚ÄĒ in which a large consignment of arms and ammunition were dropped from an aircraft in Purulia district of West Bengal ‚ÄĒ on the ground that he would risk ‚Äútorture or other inhuman treatment‚ÄĚ as India has not ratified the UNCAT. The two countries are yet to find a way to resolve Davy‚Äôs extradition.
India has so far maintained its silence both on tabling the Prevention of Torture Bill, 2010, as drafted by the Parliamentary Select Committee and the ratification of the UNCAT. But silence is not an option for India before the courts in Europe. A number of extradition requests by India relating to terror suspects are currently pending before courts in UK and possibility of torture in Indian prisons figures as the key issue against extradition. It is difficult to see how extradition can be allowed when India‚Äôs own NHRC registers four deaths in custody every day, and the government by its omission permits the use of torture for administering justice.