Abstract
Even as the Constitution makes an unambiguous pledge in Article 21 to protect life, liberty and dignity from the arbitrary whims of the State, custodial torture endures as one of the most intractable and serious human rights abuses in India’s criminal justice system. In this paper we put that paradox under a microscope to see if such violence is the result of constitutional guarantees falling short or of institutional arrangements that simply let impunity run its course.
Our analysis is both doctrinal and comparative. We have looked at the constitutional text, key judicial rulings, statutory protections and Law Commission reports alongside international human rights instruments to get a measure of the legal framework as it stands today. We also set India’s methods side by side with those of the United Kingdom and South Africa, as well as the UN Convention against Torture, in order to spot what best practices might be had for ensuring accountability.
The argument here is that you can not lay the blame for ongoing custodial torture at the door of weak constitutional safeguards alone. It is a product of structural failings in the police force, poor oversight, prosecution that does not deliver and no specific anti-torture law on the books. While our constitutional governance and jurisprudence is progressive enough, it has not been enough to secure institutional compliance in the absence of police accountability, proper enforcement and legislative backing. Ultimately, the study finds that for India to make good on its constitutional promises and win back the public’s faith in the rule of law, there is a need for sweeping anti-torture legislation, independent means of investigation and thoroughgoing police reform.
Keywords: Custodial Torture, Article 21, Police Accountability, Anti-Torture Legislation, Constitutional Governance.
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Introduction
1.1 Background and Context
India has an elaborate structure of fundamental rights, yet custodial torture endures as one of the country’s most intractable breaches of human rights and constitutional order.[1] On paper the Constitution is clear: it affords all persons the right to life and personal liberty, equality under the law and a shield from being arbitrarily arrested. In reality, however, there is a disturbing gulf between such lofty ideals and how institutions actually operate, as evidenced by the ongoing toll of custodial violence and deaths.
The Supreme Court has been unambiguous in its view, labelling torture an affront to the rule of law and to human dignity itself. It has made plain that the State has a duty to protect anyone in its custody, no matter what they are accused of.[2] But judicial edicts have not been enough to put an end to the problem. One still sees reports of police overstepping their authority, of coercive questioning and outright assault in custody, which serves to show that the mere existence of constitutional safeguards has not been sufficient to change the way investigations are conducted.
1.2 Statement of the Problem
That custodial torture has not been put to rest in India is proof enough that the problem has become as much an institutional one as it is a constitutional matter.[3] You will find plenty of statutes on the books to make violence by public officials a crime, yet there is no specific anti-torture law to speak of – nothing that puts a clear definition on torture or sets up independent bodies to investigate and hold people to account with proper standards. In the absence of such legislation, enforcement is poor, prosecutions are put off and a kind of institutional impunity takes root. All too often, what the constitution offers in the way of protection is little more than theory.
[1]INDIA CONST. arts. 14, 20(3), 21 & 22.
[2]D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
[3]Law Commission of India, 273rd Report on Implementation of ‘United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation (2017); United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.T.S. 85.