“As such, the concept of torture is completely alien to our culture and it has no place in the governance of the nation."
India’s official position on torture was articulated thus in May 2017 by the then attorney general Mukul Rohatgi in a statement before the United Nations Human Rights Council (UNHRC).
However, the prevalence of torture of prisoners is something that most widely acknowledge, and some explicitly support. In this context, a recent report by NGO Commonwealth Human Rights Initiative (CHRI) revealed several grim details on the extent of the practice, and the ways in which it is carried out.
The study revealed that nearly half of the prisoners interviewed (47 percent) claimed to have been subjected to degrading and inhuman treatment, including torture, in police custody. The methods of torture ranged from verbal abuse and slapping to more severe forms such as electric shocks, waterboarding and harm to sexual organs. The report also shed light on relatively unexplored facets, such as torture of women prisoners. Multiple female prisoners claimed to have been physically tortured, sexually abused or threatened with sexual abuse. Two women prisoners said that they were given electric shocks.
While the prevalence of such torture is hardly new information, what is interesting is how it occurs despite several safeguards. One of these being Section 54 of the Code of Criminal Procedure (CrPC), under which an accused can inform a magistrate that he or she was tortured, and the magistrate is expected to ask a doctor to examine the accused.
The Supreme Court judgment in the DK Basu vs State of West Bengal case directed that if the accused so request, they can be medically examined at the time of arrest, and any injuries which they have can be recorded. The judgment also stated that the accused should be medically examined by a trained professional every 48 hours in police custody.
However, these safeguards mean little when the accused are unaware of their rights and have poor legal representation. Violations are also enabled by the actions and inaction of authorities. For instance, the CHRI report mentioned a prisoner who sustained serious injuries to his scrotum during torture, and had to undergo two surgeries.
The prisoner claimed that the jail medical officer did not record his testimony during his first medical checkup after he entered prison. This would violate the guidelines of the Haryana Jail Manual, which states that a doctor should examine all newly-admitted inmates carefully, and that when a “prisoner with injuries on his body is admitted into a prison from police custody, he shall be examined immediately by a responsible medical officer.”
Similarly, the report also mentioned a woman prisoner who said she did not speak about her torture in front of a magistrate because of fear, and the magistrate did not pose any questions to her in this regard. Thus, if the magistrate had asked her whether she had faced torture, the prisoner may have narrated her ordeal in court.
Moreover, the CHRI report stated that its team “did not find a single prison that accepted complaints from inmates about police torture after their admission.”
Speaking to Firstpost, Sabika Abbas, the main author of the report, said, “Many prisoners choose not to disclose such things to the authorities for fear that they may be tortured again by the police. Moreover, our experience was that in several cases, doctors do not ask prisoners if they faced any torture in police custody. Sometimes, even when prisoners do mention such allegations against the police, doctors do not mention them in their reports.”
Listing out measures that can be taken to identify signs of torture, she added, “The profarmas that doctors use to examine prisoners should have a specific column for such injuries, if any. Further, district legal services authorities (DLSAs) should conduct visits to prisons, in which they can examine such cases and also ensure proper legal representation for inmates."
For Haryana, the CHRI report noted that all prisons had legal aid clinics, and lawyers also visit jails for this purpose. Despite this, 90 inmates of the 475 respondents said they did not have a lawyer. Worryingly, the report said none of the female wards in the prisons had a separate legal aid clinic, and visits by lawyers to the female sections were rare.
However, the mere existence of legal aid is hardly enough to ensure proper representation in courts. As has been backed by numerous studies, legal aid lawyers often have little time or inclination to understand their clients’ cases or to interact with them. Also, lawyers are paid much less for legal aid cases than private practice, which contributes to their lack of motivation.
Further, a study by the National Law University, Delhi, found that legal aid lawyers were found to be lacking in competency as compared to private advocates, as per the assessment of most judges. The long and short of this is that the economically disadvantaged, who are more likely to be arrested, are less likely to get access to justice in the true sense of the term.
In such a situation, widespread torture of prisoners, as seen from the CHRI report, only makes the criminal justice system even more tilted against marginalised sections of society.
Updated Date: Aug 30, 2019 16:10:28 IST