DECEMBER 19, 2020 Vol LV No 50

` 110

A SAMEEKSHA TRUST PUBLICATION www.epw.in

EDITORIALS Curbing Police Atrocities

 Politics of Law against Inter-religious
Marriages
Sustained public outrage is needed to check the power
 Cine Star in Electoral Politics
of the police in order to ensure justice and accountability
for the heinous offence of torture. page 32
FROM THE EDITOR’S DESK
 The Meaning of Mixed Marriages
LAW & SOCIETY Harnessing Agri-start-ups
 Cow Slaughter Laws as
State-sanctioned Violence
The impact of COVID-19 on start-ups engaged in agriculture
has been devastating, and government investment is
COMMENTARY crucial to unlock this sector’s potential. page 13
 How Did Agri-start-ups Fare during the
COVID-19 Pandemic? Challenges and the
Way Forward
Why and How Crude Oil Price Violence in the Law
Became Negative? Karnataka’s poorly drafted cow slaughter bill is an
 Central Bank Profits in National Accounts
example of state-sanctioned violence being used to
REVIEW ARTICLE subject the marginalised to further atrocities within the
 Resurgent Asia: Diversity in Development framework of law itself. page 10
Asian Transformations: An Inquiry into the

Development of Nations
Asia’s Journey to Prosperity:

Policy, Market, and Technology over 50 Years

Crude Oil Price Hits Sub-zero
Crude oil price becoming negative is a rare event, the
INSIGHT
effects of which, while not benefiting end users in India,
 Police Atrocities and the Quest for Justice
will have an impact on the country and investors. page 18
SPECIAL ARTICLES
 The Invisible Last Mile of Mumbai’s Lifeline
Hyundai and the Law of Resale Price

Maintenance in India
Last Mile of Mumbai’s Lifeline
Last-mile connectivity could play a vital role in the twin
DISCUSSION
pursuits of retaining and augmenting the sustainability
 Green Revolution and the Yield Question
gains from public transport and improving commuter
CURRENT STATISTICS experience in Mumbai. page 38
 december 19, 2020 | vol LV No 50

Politics of Law against Inter-religious Marriages EDITORIALS

Politics of Law against Inter-religious Marriages ...7
7 Legal intervention in a democratic society should promote freedom of
choosing a life partner. Cine Star in Electoral Politics ................................8

Cine Star in Electoral Politics FROM THE EDITOR’S DESK

The Meaning of Mixed Marriages ..........................9
8 Can the superstar provide traction to majoritarian politics in the Dravidian
heartland?
From 50 years ago ..............................................9

Cow Slaughter Laws as State-sanctioned Violence LAW & SOCIETY

10 The Karnataka Prevention of Slaughter and Preservation of Cattle Bill, 2020 Cow Slaughter Laws as
is poorly drafted, raising questions on whether it is just a tool of State-sanctioned Violence
state-sanctioned violence. — Alok Prasanna Kumar —Alok Prasanna Kumar ..................................... 10

COMMENTARY
How Did Agri-start-ups Fare during the COVID-19 Pandemic?
How Did Agri-start-ups Fare during
13 Although agricultural start-ups in India took a hit due to the COVID-19- the COVID-19 Pandemic?
induced lockdown, they have enormous potential in aiding economic recovery. Challenges and the Way Forward
— Neeru Bhooshan, Anjani Kumar —Neeru Bhooshan, Anjani Kumar ...................... 13

Why and How Crude Oil Price

Why and How Crude Oil Price Became Negative?
18 The real reason for oil prices to move into sub-zero level is not attributable to
the supply–demand mismatch, but to the timing of this movement and the
“day-of-the-week effect.” — Palanisamy Saravanan
Became Negative?
—Palanisamy Saravanan ................................... 18
Central Bank Profits in National Accounts
—Romar Correa ................................................. 21

Central Bank Profits in National Accounts REVIEW ARTICLE

Resurgent Asia: Diversity in Development;
21 The transfer by the Reserve Bank of India of a record surplus to the coffers Asian Transformations: An Inquiry into the
of the government is examined in a stock-flow-consistent model. Development of Nations; Asia’s Journey to
— Romar Correa Prosperity: Policy, Market, and Technology
Over 50 Years—East Asia’s Paths to
Industrialisation and Prosperity:
Police Atrocities and the Quest for Justice Lessons for India and Other Latecomers in
South Asia
32 Catapulted by the June 2020 case of brutal custodial torture and killings of
—Nagesh Kumar ................................................24
Jayaraj and Bennix in Thoothukudi, Tamil Nadu, this article examines the
issue of police atrocities through human rights and legal perspectives.
INSIGHT
— Saumya Uma, Vijay Hiremath
Police Atrocities and the Quest for Justice
—Saumya Uma, Vijay Hiremath .........................32
The Invisible Last Mile of Mumbai’s Lifeline
38 The railways’ wide geographical presence across Mumbai city and access to SPECIAL ARTICLES
45% of the city’s commuters can be utilised to develop stations as the The Invisible Last Mile of Mumbai’s Lifeline
harbinger of futuristic and sustainable modes of transport for all of Mumbai. —Srishti Gupta, Vignesh P ................................ 38
— Srishti Gupta, Vignesh P Hyundai and the Law of Resale Price
Maintenance in India
—Shilpi Bhattacharya,
Hyundai and the Law of Resale Price Maintenance in India Aditi Khemani ....................................................47
47 The Competition Commission of India’s landmark order in the Hyundai case
on resale price maintenance is analysed in light of the CCI’s broader
DISCUSSION
decisional practice on RPM. — Shilpi Bhattacharya, Aditi Khemani
Green Revolution and the Yield Question
—Rajinder Chaudhary ...................................... 54
Green Revolution and the Yield Question
54 Based on research conducted by the Indian Council of Agricultural Research, CURRENT STATISTICS........................................... 57
it is argued that the green revolution could not have been the only option for
India in the mid-1960s. — Rajinder Chaudhary Letters .................................................................. 4
INSIGHT
Police Atrocities and
the Quest for Justice
Saumya Um a, Vijay Hiremath
In recent times, we have
witnessed an exponential
increase in incidence of police
atrocities all over the country.
Catapulted by the June 2020 case
of brutal custodial torture and
killings of Jayaraj and Bennix in
Thoothukudi, Tamil Nadu, this
article examines the issue
through human rights and legal
perspectives. It discusses the gaps
in the law and its implementation,
and examines ways of addressing
the same.
The authors thank the peer reviewer for the
insightful comments and suggestions received.
Saumya Uma (saumyauma@gmail.com)
teaches at Jindal Global Law School, O P Jindal
Global University, Haryana. Vijay Hiremath
(vijayhiremathoffice@gmail.com) is a human
rights lawyer practising in Mumbai.
32
T
he shocking and brutal custodial
torture and killings of Jeyaraj and
Bennix—the father and son—by
the police of Santhankulam police station
in Thoothukudi, Tamil Nadu in June 2020
have, once again, catapulted the discourse
on the impunity with which the police
force functions across India. While many
incidents of police brutality take place
regularly, and often in public spaces, few
of them get highlighted in the media or
witness public outrage in the same
manner. Then too, once the initial phase
of public outrage tides over—assuaged
through enquiries, arrests and investiga-
tion—very rarely are police officials
prosecuted and convicted for these hei-
nous acts of violence. While law is often
touted as a solution to social issues,
including police torture, custodial vio-
lence and extrajudicial killings, this arti-
cle argues that the provisions of law and
their implementation are part of the
problem. It explores some ways of add-
ressing the impunity through domestic
law reform, advocacy and adherence to
international human rights standards.
Existing Law and Legal Processes
The Indian Constitution guarantees a
fundamental right to life and liberty to
all persons (Article 21), and further pro-
vides safeguards against arbitrary arrest
and detention, by requiring that the
arrested person has the right to be
informed of the grounds of arrest and the
right to consult and be represented by a
lawyer of their choice (Article 22[1]).
The arresting authority is also duty-
bound to produce the arrested person
before the nearest magistrate within
24 hours (Article 22[2]). The fundamental
rights are specifically enshrined in the
Constitution as a safeguard against state
authorities and public servants, who wield
enormous powers vis-à-vis laypersons,
december 19, 2020
and whose powers have the potential
for misuse.
Under statutory law, the Indian Evi-
dence Act, 1872 makes any confession
extracted through inducement, threat or
promise inadmissible during a criminal
trial (Section 24), and specifically makes
a confession made to a police officer
inadmissible in evidence for obtaining a
conviction (Section 25). These provisions
were enacted to rule out torture by the
police in custody for the purpose of
extracting a confession. However, it is
important to note that the police subject
the detenu to torture, harassment, de-
grading and humiliating treatment not
only for the purpose of obtaining a con-
fessional statement, and not only in custo-
dy. Subjecting civilians to inhumane, hu-
miliating and degrading treatment is the
police’s way of asserting their power and
authority, and teaching a lesson to those
whom they consider as criminals because
they anticipate that the courts may acquit
them. Seen in this light, the provisions in
the Indian Evidence Act discussed above
are certainly not helpful in curtailing
such forms of brutality.
The Code of Criminal Procedure (CrPC),
1973, prohibits the police from subject-
ing the detenu to more restraint than
is necessary to prevent their escape
(Sections 46[3] and 49). However, this is
frequently violated. The code also man-
dates a medical examination of the arre-
sted person prior to remand (Section 54).
However, due to a nexus between the
medical officer and the concerned police
officials, an accurate medical examina-
tion and report is often not forthcoming,
and medical issues arising from police
torture are not brought on record. The
Thoothukudi case illustrates this nexus,
leading to a denial of urgent medical treat-
ment to the detenus (Subramanian 2020).
In the case of D K Basu v State of West
Bengal (1997), several guidelines were
passed by the Supreme Court of India as
specific requirements for police, magis-
trates and other actors in the criminal
justice system to follow during arrest,
detention and interrogation of a person.
These include: issuance of arrest memo
by the arresting police officer; informing
vol lV no 50 EPW Economic & Political Weekly

the accused about the grounds of arrest;
informing family members of the arrested
person about the arrest and place of det-
ention; physical examination at the time
of arrest; medical examination every 48
hours during detention in custody; and
the right of the arrested person to meet a
lawyer during the interrogation. Despite
the fact that many of these directives
were subsequently incorporated in the
CrPC, they are often flouted, and custo-
dial torture has not reduced.
Role of the Magistrate
Much of the custodial torture can be pre-
vented if the magistrates, before whom
the accused are produced for remand,
are vigilant. The magistrate, prior to
remand, is duty-bound to examine the
demeanour of the arrested person to
detect any injuries or mental agony due
to police brutalities; however, this has
become a mere formality and rarely does
the magistrate look at or ask the arrested
person about possible custodial torture.
Conversely, the accused persons are
intimidated by the police into silence, and
often fail to complain to the magistrate of
torture meted out in custody. The law, on
its part, lacks the imagination to create a
secure and enabling environment for
the arrested person to inform the magis-
trate about police brutality.
In the case of Jayaraj and Bennix,
media reports state that the magistrate
granted custody after looking at the
accused from his balcony of the court
and did not even ask the accused any
questions (Janardhanan 2020). Given the
distance and the angle, the magistrate
may not have been able to observe their
bleeding injuries and their blood-soaked
clothes. This is not an exception. For
example, in the Bhagalpur blinding case
of 1979, the police had poured acid in the
eyes of the accused and they were then
produced before the magistrate. The
magistrate did not take the cognisance
of the fact that the accused were blinded
while in custody by the police (Khatri
and Others v State of Bihar and Others
1981). In the case of Soni Sori—a tribal
woman—she was administered electric
shocks, and stones were inserted in her
vagina and anus while in police custody,
and could not walk to the courtroom at
Economic & Political Weekly EPW december 19, 2020
the time of remand. In a clear violation
of the law and legal processes, the mag-
istrate passed an order for continuing
remand without even seeing her, while
she was kept in a police van (Indian Ex-
press 2011). These instances indicate that
while the magistrate’s legal mandate at
the time of remand is to check abuse
and violations of the law by the police,
there needs to be an oversight mecha-
nism to ensure that the magistrates dis-
charge this responsibility with utmost
sincerity and seriousness, with dire con-
sequences for their failure to do so.
Prosecution of Perpetrators
Though torture is inflicted routinely by
the police force, leading to grievous inju-
ries and gruesome killings, there are
very few instances when the concerned
officials have been prosecuted. The most
recent statistics gathered by the Nation-
al Crime Records Bureau (NCRB 2018)
indicate that in 2018, a total of 5,479
cases had been registered against police
personnel, out of which only 580 were
arrested, and 545 acquitted as against a
conviction of 41 personnel. The number
of acquittals is more than 13 times those
of convictions of police personnel for a
range of offences registered against them.
The NCRB statistics are only the tip of the
iceberg as far as such cases are reported
to the police, on which first information
reports (FIRs) have been registered.
Prosecuting Police Officials
A major challenge to prosecution is posed
by the procedural requirement of sanc-
tion for prosecution. Section 197 of the
CrPC mandates sanction of the govern-
ment for prosecution of public officials.
Courts have repeatedly emphasised that
this procedural requirement is important,
to protect public officials (including the
police) from vexatious, frivolous litiga-
tion in connection with their discharge
of public duties. However, the provision
for sanction has become a protective
shield behind which heinous offences
committed by the police force are shel-
tered from any process of accountability.
The question that arises is: Are acts of
torture, harassment, illegal detention,
enforced disappearances and extrajudi-
cial killings acts done in the course
vol lV no 50
INSIGHT
of discharge of official duty or reason-
ably connected with the same, so as
to extend procedural immunity to the
official concerned? In P P Unnikrishnan
v Puttiyottil Alikutty (2000), two police
officials illegally detained a person in
a police lock-up for several days and
inflicted torture on him at a police
station in Kerala. The Supreme Court
dispensed with the need for governmental
sanction to prosecute the officials, on the
grounds that they were abusing their
duty and were acting outside the con-
tours of their duty, and hence were not
eligible to obtain protection from prose-
cution under Section 197 of the CrPC. In
a subsequent judgment, the Gujarat High
Court applied this reasoning and denied
protection to police officials accused of
custodial torture of a detenu for three
days (S S Khandwala [IPS] Addl DGP v
State of Gujarat 2003).
In the case of S P Vaithianathan v
K Shanmuganathan (1994), the Supreme
Court clearly stated that “by no stretch of
reasoning can it be said that the res-
pondent’s action of torturing the appe-
llant was in discharge of any duty or
function under the Act or any other law.”
In a case before the Allahabad High
Court, police and paramilitary officials
were accused of a range of offences,
such as indiscriminate and deliberate
firing on an assembly of unarmed pro-
testers, commission of molestation and
rape on several women, illegal deten-
tions and custodial torture, planting of
evidence to show fake recoveries and
tampering with evidence. The court said
that these were not acts done or purport-
ed to be done in discharge of the official
duties, and hence, no sanction from the
government was required for prosecu-
tion (Uttarakhand Sangharsh Samiti v
State of UP 1995). In People’s Union for
Civil Liberties v Union of India (1997),
the Supreme Court categorically stated
that public officials could not claim im-
munity on the grounds that they were
exercising the sovereign power of the
state while depriving detenus of their
life and liberty.
However, judicial responses have been
confusing and inconsistent. In several
instances of custodial torture and deaths,
where the government’s refusal to grant
33
INSIGHT
sanction for prosecution was challenged
in courts, the courts have opined that it
was a decision of the executive, and
refused to intervene unless mala fides of
the executive is proved. In this manner,
Section 197 of the CrPC has shielded
police officials accused of heinous of-
fences from prosecution. For example,
several senior police officers from Gujarat
and Rajasthan were discharged by the
court in the case of the extrajudicial
killings of Sohrabuddin Sheikh, Kausar
Bi and Tulsi Prajapati, where the officers
were alleged to have killed these persons
in a fake encounter. The discharge was on
the grounds of want of sanction for prose-
cution (Modak 2018a). Thus, the grant of
sanction is often a considered decision by
the state or central government based
on political ramifications, and the court’s
non-interference with such a decision
exacerbates the impunity that is caused
by the legal requirement of sanction.
Challenges to Justice
Despite judgments restricting the require-
ment of governmental sanction for prose-
cution as discussed above, in reality,
police officials skirt justice and account-
ability in a number of ways. First, FIRs
are not registered against such police of-
ficials accused of acts of torture, killings
and other violations. Even if an FIR is
registered, sanction for prosecution being
an executive act, police officials with
considerable political clout ensure that
sanction is not granted; the nexus be-
tween the political masters and the police
force facilitates this. When granted, it is
usually to prosecute subordinate officers
to assuage public outrage. Thus, it ap-
pears that the entire criminal justice sys-
tem is stacked against the victim and the
family of the victim who will need to
show tremendous courage and determi-
nation to stand up and seek justice
against all odds, including addressing
their own survival needs and threat of
violence and harm to self and family.
Even if a case is registered against the
police officers, the victims’ families have
to deal with several hurdles in the pro-
cess till the end of the trial and a convic-
tion, which could take several years.
Second, the investigation is mostly
conducted by the police officers of the
34
same department or the police force
belonging to the same state as the accused
police officers, leading to biased and
botched investigations. The sense of soli-
darity and brotherhood that the inve-
stigating officers feel with police officials
accused of heinous crimes, has been
judicially recognised. In Munshi Singh
Gautam v State of MP (2005), the Supreme
Court observed as follows:
Rarely in cases of police torture or custodial
death, direct ocular evidence is available of
the complicity of the police personnel, who
alone can only explain the circumstances
in which a person in their custody had died.
Bound as they are by the ties of brother-
hood, it is not unknown that police person-
nel prefer to remain silent and more often
than not even pervert the truth to save their
colleagues … The exaggerated adherence
to and insistence upon the establishment of
proof beyond every reasonable doubt by the
prosecution, at times even when the pros-
ecuting agencies are themselves fixed in the
dock, ignoring the ground realities, the fact
situation and the peculiar circumstances of
a given case, often results in miscarriage of
justice and makes the justice-delivery sys-
tem suspect and vulnerable.
Third, in some cases, the government
admits that the person died in custody
but their bodies were never found. The
cases of Khwaja Yunus from Mumbai
and Kausar Bi from Gujarat are some
such examples. The witnesses to a custo-
dial torture are often other inmates, or
subordinate police personnel stationed
at the same police station, who may not
speak up or give statements against the
accused police officers due to fear of
threat and harassment.
Fourth, the accused police officers get
ample time and opportunity to tamper
with and destroy evidence before the
case is taken up for investigation, as the
documents, scene of crime and weapons
used for the crime are within their cus-
tody. For instance, in the case of Jayaraj
and Bennix, a lady police officer who
witnessed the brutal torture purportedly
stated how the evidence of torture—
bloodstains on a table and lathis—were
tampered with. On this basis, the Madras
High Court ordered the Crime Branch
Criminal Investigation Department (CB-
CID) to take charge of the case till the
Central Bureau of Investigation (CBI) takes
over the investigation, so that further
december 19, 2020
destruction of evidence does not take
place (Wire 2020).
Fifth, the public prosecutors who reg-
ularly take instructions from the police
in other cases are expected, in cases of
custodial torture and killings, to prose-
cute the same police officials. This is a
major obstacle to an effective prosecu-
tion. For a fair and unbiased prosecution
in the cases of custodial violence, there
ought to be separate machinery to inves-
tigate the offence and a separate cadre
of public prosecutors. In addition, very
rarely are lawyers of the victim’s choice
appointed as the prosecutor, as the dis-
cretion is with the court to permit the
same. In one of the ongoing trials of cus-
todial deaths, the state of Maharashtra
removed the public prosecutor who was
appointed on the request of the victim’s
family as the prosecutor made an appli-
cation for bringing in more police offic-
ers as accused (Modak 2018b).
Additionally, the concerned police offi-
cials delay the prosecution for several
years by raising the issue of requirement
of sanction, and the delay is favourable
to the accused as it gives them time to
weaken the determination of the victims
and their families, threaten witnesses,
and tamper with evidence. A case in
point is the Vakapalli incident, where 11
tribal women from the Vakapalli village
of Andhra Pradesh were allegedly gang-
raped in 2007 by police personnel be-
longing to the anti-Naxal elite force, the
Greyhounds. Eleven years later, during
which time two of the victims died, the
trial had not commenced, and one of
the delaying tactics was to insist on gov-
ernmental sanction for prosecution. The
inordinate delay has caused crucial evi-
dence to be tampered with, with
the police failing to produce the duty
roster and armoury general diary in court
as they are “untraceable” (Mohammed
2020). Similarly, in the case of Khwaja
Yunus, who was killed in custody in
2003, the trial has not been completed
and remains pending before the sessions
court at Mumbai.
‘Reward’ for Custodial Torture
The immediate response of the police
force to a public outrage about torture or
custodial killings is suspension of the
vol lV no 50 EPW Economic & Political Weekly

errant police personnel. While this as-
suages the public, it is often an eyewash;
suspension happens through public an-
nouncements, but reinstatement is done
subsequently, surreptitiously, after pub-
lic memory fades or the public engages
with other important issues.
A case in point are the officials prose-
cuted for the killing of Khwaja Yunus.
Sachin Waze (assistant police inspector),
the main accused, and his three sub-
ordinates were reinstated in June 2020,
16 years after their suspension in 2004
(Ali and Samervel 2020). Waze, after his
suspension from the police force, had
joined one of the present ruling parties
in Maharashtra and contested elections.
The reinstatement assumes further sig-
nificance as the trial for the extrajudicial
killing against those officials who have
been reinstated is still pending in a ses-
sions court in Mumbai.
One cannot forget the police medal
for gallantry awarded to Ankit Garg, the
superintendent of police at Dantewada,
Chhattisgarh in 2010, under whose cus-
tody Soni Sori was sexually tortured,
administered electric shocks and stones
inserted in her genital tract and rectum
(Sethi 2012). Garg has not been made ac-
countable for the crimes he committed
of directing his subordinates to inflict
torture on Soni Sori. A Ravi Kumar, a
police official accused of gang-raping the
tribal women at gunpoint in Vakapalli,
was given a promotion in 2012, even while
the prosecution was pending against
him (TOI 2012).
K Vijay Kumar—who headed the joint
special task force (JSTF) of Karnataka
and Tamil Nadu from the latter state and
coordinated the anti-Veerappan opera-
tions, including his killing—was accused
of arbitrary arrests, incarceration, sys-
tematic torture, humiliating and degrad-
ing treatment and extrajudicial killings
of hundreds of victims who lived in the
border area of Sathyamangalam forest
and were considered informers and sup-
porters of the forest brigand Veerappan
(Uma 2013: 24–59). While the National
Human Rights Commission (NHRC nd)
awarded crores of rupees as interim
compensation to the victims of the
atrocities, it did not recommend pro-
secution against Kumar or other police
Economic & Political Weekly EPW december 19, 2020
officials involved in the heinous offences.
The officials of the JSTF were awarded
promotions, double promotions and med-
als, and rewarded with land, cash awards
and the like (Tiphagne 2014: 278).
These awards and recognition, con-
ferred by state and central governments,
convey a clear message to the police
force that the atrocities they commit will
be overlooked by the political masters
and that they will escape the clutches of
law. On the other hand, such incidents
alienate the public and reduce their con-
fidence in the legal system, and weaken
the rule of law.
Convention against Torture
Although the Universal Declaration of
Human Rights (UDHR) and the Interna-
tional Covenant on Civil and Political
Rights (ICCPR) prohibit torture, cruel or
degrading treatment or punishment, the
United Nations (UN 1984) Convention
against Torture (CAT) is the primary con-
vention setting normative standards and
institutional mechanisms. The CAT de-
fines torture as
Any act by which severe pain or suffering,
whether physical or mental, is intention-
ally inflicted on a person for such purposes
as obtaining from him or a third person in-
formation or a confession, punishing him for
an act he or a third person has committed
or is suspected of having committed, or in-
timidating or coercing him or a third person,
or for any reason based on discrimination of
any kind, when such pain or suffering is in-
flicted by or at the instigation of or with the
consent or acquiescence of a public official
or other person acting in an official capacity.
(Article 1)
So the purpose of torture extends be-
yond extracting confessions, to punish-
ing, intimidating, coercing and discrimi-
nation of any kind.
CAT vests states with the responsibili-
ty to prevent torture by effective legisla-
tive, administrative, judicial or other
measures as well as to punish the perpe-
trators (UN 1984: Articles 2 and 4). CAT
further excludes any justifications for
inflicting torture, such as war, internal
conflict and states of emergency, and ex-
cludes “superior order” to torture as a
defence in favour of the accused (UN
1984: Article 2). The convention calls
upon state parties to ensure that all acts
of torture, and acts of complicity in and
vol lV no 50
INSIGHT
abetment of torture are offences under
its criminal law (UN 1984: Article 4).
This necessarily warrants the enactment
of a domestic law outlawing torture if
there are none, or to amend the law to
bring it in conformity with the interna-
tional standards. The CAT was adopted
in 1984 and entered into force in 1987.
India became a signatory to the conven-
tion on 14 October 1997, which signified
that it was in agreement with the princi-
ples enshrined therein, and intends to
implement them at the national level.
It is yet to accede to the treaty, which
would make its provisions legally bind-
ing on India.
In fact, the offence of “torture” has
particular connotations in international
law, as it is a jus cogens crime, a peremp-
tory norm of international law. Jus cogens
norms are so fundamental in interna-
tional law that no deviations and dero-
gations from them are permissible, even
in times of war, internal armed conflict
and states of emergency. Torture also
gives rise to obligation erga omnes, which
means that all states have a mandate to
investigate, prosecute, punish and extra-
dite offenders even if the offence was
not committed on the state’s territory, in
other words, universal jurisdiction (Wet
2004). Indeed, CAT provides for univer-
sal jurisdiction for prosecution, punish-
ment and prevention of torture, irre-
spective of where the offence is commit-
ted or the nationality of the alleged per-
petrator. It is important for a domestic
anti-torture legislation to incorporate
these provisions to bring about parity with
international human rights standards.
During the Universal Periodic Review
(UPR)—which is a mechanism by which
each country’s human rights record is
examined by other countries’ delegates
every four years—a most frequent recom-
mendation made by other countries to
India is ratification of CAT. In its second
cycle in 2012, almost 100 states recom-
mended that India ratifies CAT and en-
acts a domestic anti-torture legislation.
In India’s third cycle in 2017, many coun-
tries reiterated the recommendation
(HRC 2017a). In its statement during the
UPR, it reaffirmed its commitment to
ratify CAT and stated that the Law Com-
mission of India (LCI) was examining
35
INSIGHT
specific aspects of domestic law reform,
and that in the meanwhile, existing
Indian law was adequate in combating
torture (HRC 2017b).
The NHRC has, time and again,
requested the Government of India to
ratify CAT and to enact a domestic legis-
lation. In the NHRC’s (2017: 139) submis-
sion to the UN Human Rights Council for
the third UPR of India, it stated as follows:
A mendacious view prevails in the Govern-
ment that existing provisions with slight
amendment in the IPC are sufficient to deal
with torture. Delay in bringing out the
changes in the law as a pre-requisite for
ratification of CAT is disquieting as five years
have passed without any significant change.
Domestic Initiatives at Law Reform
Although the Constitution protects life
and liberty of all persons, there is no ex-
plicit fundamental right against torture.
The National Commission to Review the
Working of the Constitution (NCRWC),
established by the government in 2002,
recommended that the existing Article 21
be numbered as Article 21(1) and a
clause added as follows: “(2) No one
shall be subjected to torture, or to cruel,
inhuman or degrading treatment or
punishment” (NCRWC 2002). The Gov-
ernment of India has not acted upon this
recommendation till date.
The term “torture” has not been defined
in the Constitution or in the criminal
laws of the country. The proximate
offence in the Indian Penal Code (IPC) is
“voluntarily causing grievous hurt”
(defined in Section 322), which is pun-
ishable with imprisonment of up to sev-
en years and fine. The IPC also has a pro-
vision that makes voluntarily causing
grievous hurt by dangerous weapons or
means which is a higher degree offence,
punishable with life imprisonment or
imprisonment of up to 10 years with fine
(Section 326). These provisions are not
comparable to the offence of torture;
they are equally applicable to grievous
hurt inflicted by one civilian upon an-
other. In that sense, the provisions do
not capture the severity of the offence of
torture, nor are they context-specific;
the sections do not reflect the power
dynamics between the detenu and the
perpetrator, that is, a public servant in
36
uniform who may or may not have
custody over a detenue but certainly has
authority over, and power to arrest the
ordinary person. Hence, it is important
for the offence in Indian law to reflect
the language, substance and severity of
the offence of torture.
Eleven years after its signature of CAT,
the Indian government took an initiative
to enact a domestic legislation proscrib-
ing torture, by way of introducing a
Prevention of Torture Bill, 2008 in Par-
liament. The bill was passed in the Lok
Sabha on 6 May 2010. However, the bill
had many problematic provisions which
were not in compliance with the provi-
sions of CAT and other international
standards; hence, the Rajya Sabha referred
the bill to a select committee for further
examination. The select committee modi-
fied the draft and presented it before the
Rajya Sabha in 2010 but the bill was not
passed. It lapsed due to the dissolution
of the 15th Lok Sabha in May 2014.
In 2016, a petition was filed in the
Supreme Court by a former union law
minister, Ashwani Kumar, seeking India’s
compliance with CAT (Dr Ashwini Kumar
v Union of India 2017). The Court
referred the issue to the LCI for its exami-
nation. The commission submitted its
273rd report on the issue in October 2017,
in which it made the following important
recommendations (LCI 2017):
(i) that India should ratify CAT at the
earliest;
(ii) that a stand-alone legislation prohib-
iting torture should be enacted;
(iii) the legislation should provide for
stringent punishment;
(iv) that some provisions of the CrPC,
1973 should be amended (primarily these
deal with an award of compensation to
victim or victim’s family);
(v) that some provisions of the Indian
Evidence Act, 1872 should be amended,
in order to shift the onus of proof of cus-
todial torture on the accused police offi-
cials, since the evidence is in their
knowledge and within their control; and
(vi) that an effective mechanism must
be put in place to protect victims, com-
plainants and witnesses against possible
threats or violence.
While not endorsing the contents of
the Prevention of Torture Bill, 2017 that
december 19, 2020
was presented by the LCI in its entirety,
it will suffice to state that the draft bill is
potentially a starting point for a new
round of deliberations and advocacy ini-
tiatives with multiple stakeholders, that
can culminate in the passage of the bill.
Conclusions
One may feel elated and relieved that
five police officials have been arrested in
the custodial torture and killing of
Jayaraj and Bennix in Thoothukudi, a
transfer of investigation to the CBI has
been effected, and the criminal law pro-
cess has commenced, owing largely to
public outrage and vigilance. However,
challenges to justice persist. It is impor-
tant that this public outrage is sustained
through a determination to condemn all
incidents of torture, cruel, inhuman,
and degrading treatment by personnel
in uniform. It needs to be recognised
that the legal mandate given to the
police force is for fair investigation of
offences; it is not up to the police force to
determine the guilt or innocence of the
persons in their custody, or to inflict
punishment or degrading treatment on
them in the anticipation that they will
be released by courts of law. A selective
outrage will be counterproductive to the
cause of justice and accountability, and
will only embolden the perpetrators.
In the contemporary context of the
COVID-19 pandemic, the Indian govern-
ment has used a punitive approach rath-
er than a humanitarian approach in the
implementation of lockdown measures.
A brute police force is relied upon by a
masculinist and authoritarian state that
uses violence and threat of violence to
control the people, quell dissent and
assert its power. In this process, the
unchecked power of the police is aug-
mented, reducing the human security of
civilians, and leading to a breakdown of
constitutional governance. It is true that
a sound law with effective implementa-
tion are key aspects in the quest for jus-
tice. However, dismantling the current
environment of over-criminalisation, and
shifting the power from the police to the
public are equally crucial aspects for
restoring rule of law and democracy.
Social movements and sustained vigilance
by concerned citizenry are invaluable
vol lV no 50 EPW Economic & Political Weekly

for ensuring justice and accountability
for the heinous offence of torture.
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Features
Contains data sets for
• Coal Mines
• Non-Coal Mines
Structured as follows:
• Number of Mines,
Employment and Output
• Average Weekly Wages
• Consumption of
Explosives
• Usage of Machineries
• Accidents and Casualties
• Gassiness in Coal Mines
• Export‒Import of Coal
and Lignite
Presents All-India and State-
wise annual data from 1965
depending upon availability
37