Right Against Inhumane and Degrading Treatment: A Critical Analysis

This article is written by Simran Kaur Bilkhu, Balaji Law College, Pune University during her internship with LeDroit India.

Introduction

In this society, where we frequently are inclined to disregard certain subject matters that might need one’s attention have been ignored while this ignorance is further normalized; formed for these must aimed subjects to be dealt with. The United Nations began a debate to make an anti-torture law in the UN Convention against torture and other cruel, inhuman, or degrading treatment or punishment in 1975. If India wants to implement the same law, being the signatory of the United Nations members would have to first make a law for the same that the Parliament approves of. In 2010, thus the Prevention of Torture Bill was introduced which was lapsed several times.
The Powers the higher authorities have been misused several times by renowned positions. In a recent case of Jeyaraj Beniks residing in Thoothukudi in Tamil Nadu ran a mobile shop nearby a market, one of the days during the curfew they were alleged for keeping their shop open for fifteen minutes hence they were taken into custody for three days and were tortured pathetically over a minor violation. While due to this they took their last breath on their third day of lockup.
Now, Complaints of Abuse of power and torture of suspects into custody of police and other law enforcement agencies that have the power to detain a person for investigation in connection with interrogation of an offence are on an upward trend.

Rights against Inhuman and Degrading Treatment

Article 15: Freedom from torture or cruel, inhuman or degrading treatment or punishment of the Convention on the Rights of Persons with Disabilities (CRPD) clearly defines that,
“1. No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.

2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
   However, in India, no specific laws have been demonstrated to safeguard the rights of an individual against torture. It is mortifying that the legislation of India has no specific legislation enacted to endorse the convention even after 2 years of India signing the ‘Convention against Torture. Nothing yet has been done to enact the prohibition of Torture.
   The Indian Constitution has no provisions regarding torture, while, the Indian Supreme Court once while deciding the scope of the Fundamental Rights granted to every individual of the Indian Constitution asserts that “each individual has the right to life and he should live it with human dignity” which makes it clear that torture is a form of debarring the human dignity factor should not be used on a person which does affect his or her right to live with dignity.
   This has now played a very vital role in deciding the major role in granting the prisoners their rights. In National Legislations, “IPC, 1890”, u/s 330 and 348, makes the said act considered as torture as penal, with 7 and 3 years of imprisonment, nonetheless, when this same offence is committed by a police officer on duty, it is not applied at all. Therefore, these laws still fall short of covering all the prospects of torture as defined in the Convention against torture.
   There are rights of prisoners and undertrials against custodial torture in India, even after the common general public has accepted that these are the normal routine interrogations conducted by the police on account of a crime committed by an individual. The violations that the officers do include illegal detention, torture, fake encounters, etc. but for obvious reasons they are reframed and vocabulary-ly reframed as ‘sustained interrogation’, ‘examining’, ‘questioning’. The main abuser of this human right against custodial torture was considered as the police and jail authorities who were given the duty of protecting the rights of every human being. The brutal atrocities by these agencies are even today increasing menacingly day by day.
   As in the recent case of Munshi Singh vs. the State of MP, the Supreme Court stated that “The dehumanizing torture, assault and death in custody which has assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system… the concern which was shown in Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change.
   The anguish expressed in the cases of Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of Bihar, Kewal Pati v State of UP, Inder Singh v. the State of Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark case of D K Basu vs. State of West Bengal seems ‘not even to have caused any softening of attitude in the inhuman approach in dealing with persons in custody.”
   The statement by the National Human Rights Commission (NHRC) and the Supreme Court of India indicates the presence of the use of torture in India. While it is a crystal to suggest that even after the formation of these guidelines by the Apex Court in different cases and various judgments that these of Torture is a “Violation of fundamental right under Article 21” of the Constitution.

Rights under UDHR

1. All people are entitled to rights without distinction based on race, colour, sex, language, religion, opinion, origin, property, birth or residency.
2. All Human beings are free and equal in dignity and rights.
3. Right to life, liberty and security of person.
4. Freedom from slavery
5. Freedom from torture.
6. Right to be treated equally by the Law
7. Right to equal protection by the law.
8. Right for all too effective remedy by a competent tribunal.
9. Freedom from arbitrary arrest.
10. Right to a fair public hearing by an independent tribunal.
11. Right to presumption of innocent until proven guilty at public trial with all guarantees necessary for defence.
12. Right to privacy in home, family and correspondence.
13. Freedom of movement in your own country and the right to leave and return to any of the countries.
14. Right to political asylum in other countries.
15. Right to nationality.
16. Right to marriage and family and equal rights of men and women during and after the marriage.
17. Right to own property.
18. Freedom of thought and conscience and religion.
19. Freedom of opinion and expression and to seek, receive and impart information.
20. Freedom of association and assembly.
21. Right to take part in and select government.
22. Right to social security and realization of economic, social and cultural rights.
23. Right to work, to equal pay for equal work and to form and join trade unions.
24. Right to reasonable hours of work and paid holidays.
25. Right to adequate living standard for self and family, including food, housing, clothing, medical care and social security.
26. Right to education.
27. Right to participate in cultural life and to protect intellectual property rights.
28. Right to social and international order permitting these freedoms to be realized.
29. Each person has responsibilities to the community and others as essential for a democratic society.
30. Repression in the name of rights is unacceptable.

What can be rendered?

1. The ratification process that was left passing out should be carried forward and further processed, which was never enacted. The NHRC and the Indian Supreme Court has been recommended repeatedly to enact special legislation on ‘torture’. The UN Committee on the Convention against torture explains that a “special law will necessitate that torture and ill-treatment are defined and criminalized distinctly from assault or other crimes by alerting everyone, including perpetrators, victims and the public to the special gravity of the crime of torture”. But looking at the history of politicians’ denial for ‘torture’ being added to the legislation, changes in the scenario which looks upon to us still like a dream. Only if India legislates the Convention which it has been a signatory of since 19077, India would be held accountable for every case relating to torture in front of the UN which would help India tackle these cases and legislation for this would be left with no loopholes.
2. Then to change the provisions of the “Police Act 1861” which only has provisions that were only meant to suppress and violate people’s rights. Police have been favoured time and again for their acts due to the privileges they have due to the said Act. A new reform should be brought to change the working of police officers.
3. Reaching out to the public of India through media to make them aware of situations like these for as they can reach out to other people and can bring in public support.
4. Giving NHRC full power to investigate without the help of the police officials and to receive complaints against the officers.

Conclusion

In India, the first visible point of contact for the people in event of a crime is the ‘Police’. It is the only agency having the widest possible contact with the people. Therefore, it should be the responsibility of the police to do their duty and protect the rights of people rather than violating them themselves. commonly, police officers have been the critics globally for the excess of powers and duties to which they are entrusted to.
The Universal Declaration of Human Rights is a document that states that everyone has the right to live Despite being a genuine endeavour to make the world a better place for cohabitation, the declaration’s non-binding character impeded its goal in certain ways. Again, the broad scope specified for each of the declarations score rights ensured that future international and domestic law might include nearly anything and everything under the sun within its sphere of operation.
It should be highlighted that, notwithstanding all of the substantial laws planned with the UDHR at its helm, the change in the ground zero scenario is far from what the situation appears to be on the theoretical front. Human rights breaches are frequently claimed to have been committed by State actors or, in certain cases, non-state actors who are financed by the State. As a result, as long as we continue to promote our interests at the expense of others, the world will never be a secure place to live, and we will always have to battle to safeguard our rights.
The unfortunate situation here is because the powers granted to the officers to carry out investigations have been violating citizens’ rights rather than protecting their rights or them. Human Rights are available for everyone even if one has committed a crime. The prison cannot keep out the basic rights of an individual. The prisoners in India are entitled to Article 21 of the Indian Constitution of Right against Custodial Torture. However there are other ways like NGO’s It is mortifying that India hasn’t made special specific legislation for Torture and even after the introduction of ‘Prevention of Torture Bill, 2017’ in the Indian parliament, no such legislation was passed. This shows the voluntary delay of the Indian government to ratify the convention, the main cause of which is to prevent themselves to be answerable to theUnited nations for the torture cases.