DR.

RAM MANOHAR LOHIYA NATIONAL

LAW

UNIVERSITY,
LUCKNOW

PROJECT
BASIC OF LEGISLATION

Title-” Anti-torture laws-analyzing international and

Indian perspectives”

SUBMITTED By- DEEPENDRA SINGH RATNOO

ENROLLMENT NO.- 200101058
B.A LLB (HONS.)1ST YEAR

SUBMITTED TO-
DR. SHASHANK SHEKHAR SIR
Table of contents-1.
introduction…………………………………………………. ……………….3

2.international perspective………………………………………………………4
2.1 international treaties………………………………………
2.2 U. K………………………………………………………
2.3 U.S.A…………………………………………………….

3.Indian perspective……………………………………………………………6
3.1 Existing constitutional and statutory framework………….
3.2 Judicial response………………………………………………
3.3. Recommendations by Law commission……………………..

4.Does India need comprehensive Anti-torture legislation?.............................9

1. INTRODUCTION-
Custodial death of father son duo in state of Tamilnadu in last June,had brought back our
attention on “Torture” acts of torture, cruel, inhuman or degrading treatment or punishment
and how the law seeks to prevent these.United Nation convention against torture defines it as
“any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions”.1
In our country torture is quite prevalent in law enforcement mechanism, it violates the notion
of Human dignity and fundamental rights which has been recognized globally by various
international conventions and treaties. According to data released by National human rights
commission, India recorded a total of 1,723 cases of death of persons in judicial custody and
police custody across the country from January to December 2019. These included 1,606
deaths in judicial custody and 117 deaths in police custody.2 i.e., an average of five deaths
daily.
In this background we will examine various international treaties in this regard, practices in
U.K. and U.S.A. and current existing framework of laws in India to deal with Acts of torture.

1
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at:
https://www.refworld.org/docid/3ae6b3a94.html [accessed 30 January 2021]

2
See NHRC Monthly Human Rights Cases Statistics from January to December 2019 at
https://nhrc.nic.in/complaints/human-rightcase-statistics
2.International perspective-
2.1 international framework-
Freedom from torture is recognized by various Human right instruments which provide for
protection of all individuals from being intentionally subjected to severe physical or
psychological distress by, or with the approval or acquiescence of, government agents acting
for a specific purpose, such as to obtain information.it is one of the most universally
recognized human right
Universal declaration of human rights (UDHR) recognizes notion of Human dignity as first
and foremost in is Article 1, in article 5 it explicitly provides that “No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment”.
Article 7 of International Covenant on Civil and Political Rights also recognizes this. Article
3 of the European Convention on Human Rights states that: 'No one shall be subjected to
torture or to inhuman or degrading treatment or punishment'.
the prohibition on torture has attained the status of jus cogens or peremptory norm of general
international law, also giving rise to the obligation erga omnes (owed to and by all States) to
take action against those who torture. As such, the prohibition may be enforced against a
State even if it has not ratified any of the relevant treaties, and the prohibition is not subject to
derogation, even in times of war or emergency.
• Convention Against Torture-
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) is an international human rights treaty, under the aegis of the
United Nations that aims to prevent torture and other acts of cruel, inhuman, or
degrading treatment or punishment around the world.it was adopted in year 1984 and
came into force in year 1987.it lampoons the widespread and systematic use of torture
as crime against humanity.it places an obligation on state party to take effective
measures to prevent acts of torture.it is a right that can’t be compromised with, not
even in times of emergency.The highlight of this convention is the setting up of the
Committee against torture, that is set up “to receive, study and comment on periodic
reports from the States parties on the measures they have taken to give effect to their
undertakings under the Convention.
India has signed this treaty in 1997, but hasn’t ratified yet.

2.2 U.K.
 • In U.K. common law prevented Torture, but it was in year 1640 Parliament formally
abolished the practice of torture.in Scotland it is prohibited by section 5 of Treason
Act,17083

• Apart from the established Common law provisions, section 134 of Criminal Justice
Act,1988 explicitly makes it an offence for any public official to ‘intentionally inflict
severe pain or suffering on another in the performance of his official duties”. But it
also falls short of Absolute prohibition on Torture, because section 5 of the act
provides defense against prosecution for torture in cases where a defendant claims to
have lawful authority, justification or excuse.

• Under its commitment to combat torture U.k. govt. Maintains that, it never extradites
someone to a country where they face risk of Torture.Human rights Act,1998 is to
inhuman or degrading treatment or punishment can be directly enforced in U.K.

2.3 U.S.A-
• United states signed the UNCAT in 1988 and ratified it in 1994
• Torture and other cruel treatment are prohibited under U.S. law. As stated in the
2013 U.S. report to the United Nations Committee Against Torture, “All acts of
torture are offenses under criminal law in the United States.”
As the U.S. government has stated, “Protection against torture and cruel, inhuman or
degrading punishment or treatment is provided by the Fifth, Eighth and Fourteenth
Amendments to the U.S. Constitution.” The Supreme Court in chavez v. martinez has
affirmed that the Fifth Amendment’s right against self-incrimination prohibits “torture or
other abuse” to obtain confessions. The Court also recognized that the “use of torture or its
equivalent violates an individual’s fundamental right to liberty,” contrary to the requirements
of the Fifth Amendment’s Due Process clause. The Supreme Court has also held in case of 0
Gregg v. Georgia that the Eighth Amendment’s prohibition on “cruel and unusual
punishments” bans “‘torture’ and other ‘barbarous’ methods of punishment” and that
excessive police force violates the Fourth Amendment’s prohibition of “unreasonable
searches and seizures.” The Fourteenth Amendment extends the constitutional prohibitions on
torture and other cruel treatment to state governments.4
• Detainee Treatment Act. Prohibits the Department of Defense (DOD) from using
“cruel, inhuman, or degrading treatment or punishment” against any “individual in the
custody or under the physical control of the United States Government, regardless of
nationality or physical location.”Requires DOD personnel to only use techniques in
the Army Field Manual— which explicitly prohibits torture and cruel, inhuman, or
degrading treatment—when conducting interrogations.5
• 18 U.S.C. 242 – Deprivation of rights under color of law Provides that individuals
cannot be deprived of “any rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States.” The U.S. government has repeatedly

3
Torture in UK Law, available at: https://justice.org.uk/torture-uk-law/ (visited on 31-01-2021).
4
Human right first, 'Human Right First ' (Human Right
First , 2017) <https://www.humanrightsfirst.org/sites/default/files/Issue-Brief-Laws-Against-
Torture.pdf> accessed 31 January 2021
5
Ibid.
 affirmed that “most, if not all, acts that would qualify as torture could be prosecuted
under 18 U.S.C. 242.6
• U.S. Torture Act Prohibits torture or attempted torture by U.S. nationals and nonU.S.
nationals who are in the United States. Allows the United States to prosecute those
who commit acts of torture outside the United States. The statute defines torture as
“an act committed by a person acting under the color of law specifically intended to
inflict severe physical or mental pain or suffering.
• Apart from these measures under domestic law United States is party to
UNCAT,ICCPR,Geneva conventions-which forms the basis of law of armed conflict

3.Indian perspective-
3.1 existing constitutional and statutory provisions-

• Article 20(3) of the Indian constitution provides that a person accused of any crime
shall not be compelled to become a witness against himself. The accused in any case
of any crime has a full-fledged right to be silent and not disclose his/her defense
before the trial. Article 21 of the Indian constitution provides for the right of life and
liberty and ensures that no one is deprived of it without following the procedure
proscribed by the law. The SC at various times has established that the Custodial
torture is violation of article 21 of the Indian constitution The SC in the case of Sunil
Batra v. Delhi Administration7 held that “fundamental rights do not flee the person as
he enters the prison although they may suffer shrinkage necessitated by
incarceration.” Further Article 22 sub section 1 & 2 elaborates upon the protection
against arrest and even detention in certain cases. It provides for the informing of
grounds of detention and also provides for the absolute right to be defended by a legal
practitioner of his/her choice, also production of the accused before the nearest
magistrate is a mandatory constitutional requirement. The article also sets the limit for
the duration of the detention except in cases where the extension is allowed by a
competent judge/magistrate. Further, the punishments which are either too cruel or
torturous were held unconstitutional time and again by the SCs and various HCs.
• Apart from constitutional provisions, there are various statutory provisions which
deals with Aspect of Torture. Under the code of criminal procedure sections
46(3),49,50,56 provides for checks to tortuous activities These include protection of a

6
Ibid.
7
Sunil Batra v. Delhi Administration (1978) 4 SCC 409
 person from police custody unless there is a charge of an offence punishable with a
death sentence or life imprisonment. Another protection given in these statutes is that
the person under police custody can’t be subjected more restraint necessary to keep
him/her from escaping. More so, the person so arrested must be informed of his
grounds of arrest and his right to bail which is in conformity with Article 22 of the
constitution. Section 176 provides for compulsory magisterial inquiry on the death of
the accused in police custody but on the other side Section 132 and 197(1) grant
immunity to public servants from prosecution, if the public servant is accused of any
offence alleged to have been committed by him while discharging his official duties.
• Indian Police act is another statute where the protection against torture is provided.
Sections 7 and 29 provide for dismissal and other penalties to police officers who are
negligent in discharge of their duties or unfit to perform the same.
• Section 24-27 of the Indian Evidence Act, 1872 provide for a similar checks and
protections. Section 24 of IEA dismisses any confession obtained by inducing any
threat or promise or is obtained by inducing fear of torture. If the court is satisfied that
the confession is obtained by any of above-given ways
• Section 330, 331 of the Indian Penal Code make it punishable for persons who cause
hurt for the purpose of extorting the confession by making the offence punishable
with sentence up to 10 years of imprisonment.

3.2 Judicial response-

When we talk about judicial response to acts of torture, supreme court judgement in
D.K.BASU8 holds immense significance, in this case court observed that “, “Custodial
violence including torture and death in lock-ups strikes a blow at the rule of law which
demands that the powers of executive should not only be derived from law but also that
the same should be limited by law.” it laid down guidelines for prevention of police
violence and torture in custody-

8
,D.K Basu v. State of W.B, AIR1997 SC 3017.
 1. Suitable identification of all officials on their person. Preparation of arrest memo,
attested by a family member of the accused.
2. Recording of injuries of the accused in the inspection memo, if requested by the
accused. And signing of the memo by both the parties.
3. Providing all details of time and place of arrest.
4. Intimation of the location of arrest to the family members of the accused and all
details to any nearby legal aid centre.
5. maintenance of daily diary in the police station and procedure of its maintenance.
6. Medical examination of the arrestee, after the arrest, by a trained doctor.
7. Right of the arrestee to meet and consult lawyers.
8. Making it mandatory for the police to send copies of all relevant documents to a
local magistrate.
9. Setting up of police control rooms where all such information would be properly
preserved.
In Francis Coralie Mullin v. Administrator, U.T. of Delhi9, the Supreme Court held
that Article 21 includes the right to protection against torture. In Nilabati Behera v.
State of Orissa10, the Supreme Court said “in a civil action but by way of
compensation under the public law jurisdiction for the wrong done, due to breach of
public duty by the State of not protecting the fundamental right to life of the citizen.
To repair the wrong done and give judicial redress for legal injury is a compulsion of
judicial conscience”. Before this case, there was no structured formulation to grant
compensation on cases of custodial death on this front, the decision was a landmark
one. Shyamsunder Trivedi v. State of MP, the Supreme Court rightly realized that in
the absence of direct evidence, it becomes increasingly hard to indict the culpable
police officials. AS all police officers would try to save their colleagues, the Court
ordered for insertion of section 114-b into the Indian Evidence Act 1872, This would
ensure that if the injury was caused during the custody, the court would presume that
the police officer having custody of the person is responsible. Thus, it reverses the
burden of proof. But it is yet to be inserted.

9
Francis Coralie Mullin v. Administrator, U.T. of Delhi AIR 1981 SC 746
10
Nilabati Behera v. State of Orissa AIR 1993 SC 1960
3.3 Recommendations by law commission-
Over the years law commission in its various reports suggested overhauling of existing legal
framework dealing with acts of torture by those in authority, most recent of this is law
commission’s 273rd report in it .it was recommended that definition of torture should be
expanded to include inflicting injury, either intentionally or involuntarily, or even an attempt
to cause such an injury, which will include physical, mental or psychological injury. Apart
from this law commission suggested amendment to existing statues to insert section-114B in
Indian evidence act,1872 which would place onus on accused officer to prove that it hasn’t
happened, amendment to section 357B to incorporate payment of compensation, stringent
punishment, doing away with sovereign immunity which would make state vicariously liable
for acts of torture by its officer, ratification of UNCAT etc.

4.Does India need a comprehensive Anti-torture legislation, and

ratifying of UNCAT?
After going through the international as well as Indian practices my opinion India need a
comprehensive anti-torture legislation and need to ratify UNCAT.in India we have various
laws in practice to combat acts of torture, but they are inefficient in countering it because
many of these are outdated and carries the legacy of colonial period so they can hardly be
human right conscious. apart from this these are easy to tweak by police itself. In absence of
any robust mechanism, they largely remain on paper. In India torture is not recognized per se
under the law, for this courts refer to use of force resulting in “serious injuries and/or
custodial deaths” which unwittingly creates a high threshold for what amounts to torture. It
fails to acknowledge the existence of forms various other types of torture i.e. Mental, physical
not amounting to serious injury. Also there are laws which grant immunity to officers while
discharging their duty, also requirement of prior sanction from the government operates as
the foremost hurdle in initiating criminal complaints. Enacting a comprehensive law on terms
of UNCAT dealing with all aspects of torture will be more effective in combating torture.