New Delhi: On January 8, the Supreme Court will take up for discussion an interlocutory application filed by former Union law minister and senior advocate Ashwani Kumar seeking directions to the Centre for bringing a standalone legislation against custodial torture.
Taking up the plea filed in September, a division bench of the court comprising Chief Justice Ranjan Gogoi and Justice Ajay Rastogi had on November 26 heard the submissions of Kumar in the matter. It also heard Attorney General K.K. Venugopal and then decided that another bench headed by the Chief Justice will take up this matter for discussion.
Kumar said it was a crucial development. The original writ petition was filed in public interest to ensure that India has a comprehensive law for the prevention of torture, cruelty, inhuman or degrading treatment and death in police custody. Also, he said, “Such a law was necessary to ensure that the rights of individuals in custody were protected and consistent with the UN Convention against Torture, the Universal Declaration of Human Rights and dignatarion goals of the constitution.”
The petition stated that India signed the UN Convention against Torture in 1997. The same year, the Supreme Court dealt with the malaise of custodial violence and torture in D.K. Basu vs State of West Bengal. In the judgment, the apex court recognised the importance and inviolability of the affirmed human rights of every human being and that custodial violence including torture and death in lock-ups strikes at the root of rule of law.
But despite the court’s observation, India did not bring in the enabling law. Also, while it signed the convention, it could not ratify it in the absence of a domestic enabling and enforceable legislation.
‘Absence of torture law endangers constitutional rights of people’
The original petition submitted that “by virtue of Article 51 of the Constitution of India, an international obligation is cast upon India to prevent custodial violence and torture” since India was a signatory to the 1997 convention. However, despite the commitment, it charged, “the entire constitutional framework, the legislature and executive in India have abjectly failed to discharge their constitutional obligations.”
The absence of a standalone, comprehensive and purposeful municipal legislation for the prevention of custodial violence, it said, “has resulted in a disturbing void in law endangering the constitutional right of persons”.
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The petition demanded that there was a need to align the Prevention of Torture Bill, 2010, which was passed in the Lok Sabha in 2010, to align with the UN Convention on Torture. Therefore, a demand was made to introduce it.
‘Torture a naked violation of human dignity’
Stating that custodial torture is a naked violation of human dignity and degradation that destroys the self-esteem of the victim, the petition noted that “since there is no scientific method of investigation, torture remains integral to the investigation to obtain confessions from suspects.”
As despite the guarantee under Article 21 and directions from the apex court, there has been “no checks and balances against the personnel who commit custodial torture”, the petition stated that “an intervention from this Hon’ble Court has become imperative”.
It was thus prayed by Kumar that appropriate writs, orders or directions be issued “to ensure an effective and purposeful legislative framework/ laws and its enforcement to fulfill the constitutional promise of human dignity and prevention of custodial torture at all levels”.
He had also called for direction to ensure that India meets its constitutional and international commitments with regard to the prevention of torture, custodial violence and the preservation of human dignity. Further, he demanded that the Centre be directed to invest and empower agencies such as NHRC for implementation of the court’s orders and directions.
Parliament panel had unanimously proposed standalone legislation
On the need for moving the apex court, Kumar told The Wire that after the Torture Bill was passed by the Lok Sabha, it was referred to a Select Committee of Parliament, chaired by him, and comprising 13 members of Rajya Sabha in August 2010.
“After long and comprehensive deliberations, we unanimously proposed a standalone legislation against torture as to comply with the requirements of UN Convention on Torture,” he said.
But while that report was submitted in December 2010, Kumar lamented that “for eight long years nothing happened”. So, he said, in 2014 he wrote to then Union home minister Rajnath Singh to bring in this legislation. “But there was dilly-dallying and nothing happened.”
In 2016, the Ministry of Home Affairs in reply to a parliament question stated that “the Prevention of Torture Bill, 2010 had lapsed on the dissolution of the 15th Lok Sabha. However, a proposal to suitably amend Section 330 and 331 of the Indian Penal Code was currently under examination.”
However, Kumar said, the government did not state when India would ratify the UN Convention against Torture or whether the said amendments in IPC would be sufficient to ratify the convention.
Then in 2017, he said, both the Centre and the National Human Rights Commission submitted that a legislation was needed.
‘No action despite assurances, five custodial deaths taking place every day’
“The Attorney General made a statement last year when this matter was raised that the government would seriously consider the recommendations of the Law Commission. But till now despite the assurance of the A-G, nothing has happened and an average of five custodial deaths are taking place every day,’ Kumar said, indicating why urgent intervention of the court was necessitated.
He also insisted that “this is a matter of fundamental importance for the way our dignitarian constitution unfolds itself.”
Kumar said when the Centre did not do anything for a year, he filed the interlocutory application, urging the court to take action in the matter.
“Since 2008, India has been represented every year by its Attorney General in the Universal Periodic Review done by the UN Committee against Torture in Geneva. And every year, the international community singles India through the UN Human Rights Council and asks why have you not enacted this law against torture,” pointed out Kumar.
Also read: NHRC to Probe Allegations of Custodial Torture of Undertrials Accused in Terror Cases
“Every time,” he added, “the A-G makes a weak plea that we are committed to this. This makes us a subject of ridicule because on the one side we say we have a constitution that upholds human rights and on the other, we do not enact this legislation.”
India facing problem in securing extradition due to absence of torture law
The legal luminary said India has also been facing problems because of this stance.
This is what prevented the international extradition of people like Kim Davy in the Purulia arms drop case and Abu Salem in the 1993 Mumbai blasts case. “Even now Nirav Modi and Vijay Mallya say that we cannot be extradited because the conditions in Indian prisons are inhuman and prisoners are tortured. This is a standard defence taken against India in all extradition proceedings. So the idea was that India should assure the international community that it is committed to human rights.”
A question of India’s standing in international community
Kumar said it is also not only a matter of domestic constitutional imperative, but it is also a question of India’s standing in the international community on the human rights issue.
“Custodial torture mocks our constitutional conscience and interrogates India’s commitment to human rights. It is time therefore that rising above partisan considerations, Indian parliament and the Supreme Court ensures that the dignitarian mandate of the constitution is strengthened through the enactment of a standalone comprehensive legislation against torture. This would enable India to ratify the UN Convention against Torture which we had signed as early as 1997.”