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"Constitutionality is being replaced with muscularity, and in a democracy, we cannot let that happen", said Senior Advocate and Former Union Law Minister, Dr. Ashwini Kumar on the instances of custodial torture happening in the country.
He was speaking at a webinar organized by LiveLaw on the topic "Custodial Deaths: Need For An Anti-Torture Law".
The webinar featured the presence of former Judge of the Supreme Court Justice Deepak Gupta, Dr. Ashwini Kumar, and National Editor of Political Affairs at Hindustan Times Sunetra Choudhary. It was moderated by Advocate Avani Bansal. The discussion commenced with a reference to the brutal custodial deaths of the father-son duo in Thoothukudi, Tamil Nadu, wherein the two were picked up by the police for keeping their shop open for 15 minutes after curfew hours. The duo was mercilessly beaten up in custody, which led to their death, however, the police attempted to cover up the same by releasing a statement which said that they had succumbed to heart illnesses. In this context, Bansal asked Dr. Kumar about his views on why there was no anti-torture law in India yet to which Dr. Kumar responded that his head hangs in shame that his country has yet to come up with domestic legislation to ratify The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("The Torture Convention"). "India is yet to enact a law which is a prerequisite for us to become a responsible member of the international legal regime against torture."
Dr. Kumar narrated the events that led to the dismissal of his Writ Petition. He stated that despite the matter being heard and him arguing for 4 hours, the matter concluded with a 40-page judgment whereby the Court refrained from framing guidelines.
Dr. Ashwani Kumar was then asked about the challenges that are faced by the lawmaker when it comes to discourse in the Parliament. Dr. Kumar, in response, highlighted the Universal Periodic Review which involves a review of the human rights records of all UN Member States. The Attorney-General of India represents the country. "Since 2008, the AG of the country of that day has been promising the UN about the passing of the law, and every year, there has been a polite censor from the UN about how India has still not fulfilled its commitment to ratify the Torture Convention."
Dr. Kumar drew attention to the draft law on anti-torture which addresses compensation, witness protection, issues of sanction. The law further gives an inclusive definition of torture; anything that causes physical or mental torture is proscribed. "I just read the news from Kashmir where one person was incarcerated for 24 years! Who will give him back the 24 years of his life? Our conscience as a nation has truly been scarred. We need to take a pledge that this kind of torture shall not be tolerated." In the context of the Madras High Court order which stated that the police welfare program should continue, Choudhary talked about the mental well-being of police officers, which, according to her, contributed to violent behavior. She responded saying that it is an extremely important factor as the government as well as the policy-makers make the police work under distressed circumstances which turns the oppressed into the oppressors. "They're compensated poorly, they work under pressure. This, of course, does not condone the acts of the police. However, it is a factor and I'm aware that they work under horrific circumstances. They're tired, they're harassed, and they end up harassing others. The authorities don't give them resources and cut corners."
"I am absolutely baffled that the Supreme Court chose not to exercise their power to delve into this matter. The happenings in Tamil Nadu have once again shocked the conscience of the nation." Dr. Kumar expressed that the Court ought to have exercised its "nudge and suggestive" jurisdiction to frame appropriate guidelines to address the legislative vacuum. "This is far too important a subject for which the Court must take the lead. My disappointment is with the government, yes. But, all governments fail. However, my greatest disappointment is with the Court because this is one case that I thought was immensely important." Sunetra Choudhary said that the apathy that people felt towards alleged criminals was at the core of custodial torture. "First of all, I disagree with the notion that there are rising incidents. I truly believe that these cases were always there. But, the issue is that, for a long time, people thought that those who were in custody, deserved to be there. If you read Justice Krishna Iyer's judgments, the Rules we have in place, the Code of Criminal Procedure, you can see that we have a system in place. So, what has gone wrong? My theory is that a majority of the people really do not care about the torture that is happening because they think it's happening to criminals and they deserve it."
Choudhary alluded to her book "Black Warrant" wherein the torture of the Nirbhaya convicts, and the death of Ram Singh has been highlighted.
"While hearing the mercy petitions of the murderers and rapists of Nirbhaya, my book 'Black Warrant' was highlighted to show that they were tortured in custody, with Ram Singh dying. When this was brought before the Bench, they did not care. Compare it with what happened in the US when Epstein died in jail. They did not sweep it under the carpet; they had a proper inquiry. Did we have that? No."
Choudhary elaborated upon how the mindset of people needs to be tackled before venturing into the amendments to laws or promulgation of new laws. This mindset gets perpetuated by society, the government, and the policy-makers.
"The entire mindset is that if someone is so horrific, then it's okay if they get tortured. If you come from that mindset, then the police also have no issues in torturing someone who's an alleged criminal."
Dr. Ashwani Kumar then emphasized the collective need for everyone to work in aid of Constitutional goals.
"There can be no justification for the abdication of anyone's roles. There is a need for political mobilization as well. What compensation can you give to a man who has spent years in jail? Sometimes, lawmaking becomes a function of popular response. The Tamil Nadu case must spur the response so that we have a reasonable and purposive law in place." Dr. Kumar concluded the webinar by castigating the influence of media trial on court proceedings. "Every day, under the nose of the Supreme Court, media trial has been happening. The right of the media to express itself is subject to the right to get a fair trial, unlike the cacophony that happened in Hyderabad".
"Torture is just not physical torture. If you keep a person behind bars for minor reasons, that is also torture", said Justice Deepak Gupta, former Judge of the Supreme Court of India at a webinar organized by LiveLaw on the topic "Custodial Deaths: Need For An Anti-Torture Law".
Bansal asked Justice Deepak Gupta about how, despite the existence of a series of guidelines underlining rights of a prisoner which were laid down in the DK Basu v. State of West Bengal, there was a challenge to its implementation. Justice Gupta responded to the question by stating that though there was no questioning of the need of an anti-torture, the same could only be brought about by the Parliament and not the Supreme Court (in reference to the petition filed by Dr. Ashwani Kumar seeking for an anti-torture law, which had been dismissed by the Supreme Court). "The Court can only decide what is legal and what is not legal. I have been called an activist judge, and I'm happy about that. But, we can only be activists within the four corners of law." The former Supreme Court Judge further highlighted that the need of the hour was the proper implementation of the existing laws. "In DK Basu Case, the Court thought that we could give certain suggestions to the Parliament. In Tamil Nadu, there are Rules which have been framed which state that the accused must be produced physically before being remanded. You have that Rule, but it was violated."
"Let's first implement the law as we have it. The investigations, the prosecutions are not fair; these must be rectified first", he said.
Justice Gupta also underlined the fact that the majority of the cases were against the poor, and not the privileged. He stated that there was a need to reform the investigations, the prosecution, and to first implement the law as we have it. "Even during COVID times, we see cases of police brutality and the police being helpful. But, the former is more and it's against the poor. In the Tamil Nadu case, they had kept the shop open for 15 extra minutes? Was it that serious an offense?"
In response to the role and accountability of Magistrates when there is the excess of authority on behalf of the police, Justice Gupta commenced his answer by iterating that there was a need for a change in mindset before bringing in an anti-torture law. Referring to the shocking Hyderabad Encounter case where the rape and murder accused were shot to death by the police in an alleged attempt to flee, Justice Gupta said, "We have a fair trial to Kasab, then why not to them?"
Justice Gupta commented on the legal accountability if a Magistrate is in violation of Rules by stating that the High Court should supervise the same as they have the right to do so.
"Article 21 of the Constitution says that no person can be deprived of life or personal liberty except by procedure established by law. Now, what does Section 167 of CrPC say? The Magistrate will decide whether to release an accused on bail or whether to remand the accused in judicial or police custody. The High Courts have the right to take action. They must do so, and if they do, the rest will fall in line."
Justice Gupta further stated that the Courts were reluctant to give bail to people as they thought, "Yeh toh criminal hain, isse jail mein rehene do." "Torture is just not physical torture. If you keep a person behind bars for minor reasons, that is also torture. I also feel that there has to be some accountability when it comes to higher posts". Justice Gupta concluded the webinar by stating that the Hyderabad Encounter case had been very disturbing, and there was a need to train the police authorities in a better manner, before instituting comprehensive reforms to the statutes.
He also spoke about the need for imparting better skills to the police for investigation of crimes, so that they don't feel tempted to use third-degree methods against the accused.
"If the police are trained in a better manner, then even our existing police can do better..The police have very little training; they have no forensic training. We have to divide law and order, and there are so many who do VIP duty and are rendered useless," he said.
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