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Report No. 273

Implementation of 'United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment' through Legislation

Table of Contents

Chapters

Title

Pages

I

Introduction

1-8

II

International Scenario

9-27

III

Examination of issues relating to Torture by various Commissions

28-33

IV

Constitutional and Statutory Provisions

34-40

V

Judicial Response to Torture in India

41-55

VI

Compensation for Custodial Torture / Death

56-63

VII

Recommendations

64-66

Annexure:

Prevention of Torture Bill 2017

67-75

Chapter - I

Introduction

A. Background

1.1 The history of torture throughout the ages reveals1 that torture was employed by various communities either in their religious rites or its code of punishment. Torture is a form of crudity and a barbarity which appals modern civilisation. The tormenting of those captured in war was looked upon and accepted as inevitable. Often such captives were sacrificed to the gods. Ordeals of fire, water, poison, the balance, and boiling oil, were employed in the trial of accused persons. References are made to the use of anundal by officials of the Southern Indian provinces in the collection of land revenue.

One of the most popular methods known as thoodasavary which is known as beating up now-a- days, was used by tax collectors and others for inducing the payment of dues and debts, as well as for eliciting confessions and securing evidence in criminal cases. Subjects were forced to drink milk mixed with salt, till they were brought to death's door by diarrhoea. People were forced to accept death by suffocation in a small cell where a large number of persons, several times than its capacity to accommodate where put and forced to torment by intolerable thirst, lack of fresh air and ruinous odour of the cell.

1.2 Depriving a person from sleep impairs the normal functioning and performance of individual which amounts to mental and physical torture as it has a very wide range of negative effects.2

1.3 The "Trial and Torture to Elicit Confession" is discussed in detail in Kautilya's Arthashastra3. The relevant part thereof reads as under:

There are in vogue four kinds of torture (karma):- Six punishments (shatdandáh), seven kinds of whipping (kasa), two kinds of suspension from above (upari nibandhau), and water-tube (udakanáliká cha). As to persons who have committed grave offences, the form of torture will be nine kinds of blows with a cane:- 12 beats on each of the thighs; 28 beats with a stick of the tree (naktamála); 32 beats on each palm of the hands and on each sole of the feet; two on the knuckles, the hands being joined so as to appear like a scorpion; two kinds of suspensions, face downwards (ullambanechale); burning one of the joints of a finger after the accused has been made to drink rice gruel; heating his body for a day after he has been made to drink oil; causing him to lie on coarse green grass for a night in winter.

These are the 18 kinds of torture. ..,... Each day a fresh kind of the torture may be employed. Those whose guilt is believed to be true shall be subjected to torture (áptadosham karma kárayet). But not women who are carrying or who have not passed a month after delivery. Torture of women shall be half of the prescribed standard.

1.4 There is a necessity to protect the society from the hands of criminals which has been emphasised by Manu and the law givers of this age.4

1.5 Under the old Greek and Roman laws, it was specified that only slaves could be tortured but later on, the torture of free-men in cases of treason was also made allowed. In AD 240, the right to torture slaves was abolished under the Roman law. In the Middle Ages, torture was included in the proceedings of the Catholic Church in the 'Spanish Inquisition', which employed it to obtain confessions.5

1.6 History reveals that various known warriors and emperors were subjected to torture such as thumbscrews after they had lost the battles.6

1.7 During the Mohammeden era, the Shariat Law, 'an eye for an eye', was made applicable. The basic principles of Muslim criminal jurisprudence are still followed in many Islamic countries. Legislation of some Islamic Countries provides for certain brutal physical punishments eg. Public whipping, executing by lynching, or amputation of limbs. The British Raj was, by no means, less notorious in committing torture on persons in police custody. Men, women and children were beaten and tortured to make confessions to crimes which they had never committed. Same had been the fate of political workers if they did not provide the desired reply.

1.8 In D.K. Basu v. State of West Bengal7 the Supreme Court observed that:

"Torture has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of the human civilisation". The Court quoted the definition of torture by Adriana P. Bartow as under:

"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also such intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."

1.9 In Elizabethan times 'torture warrants' were legally issued 8 . Examination by torture was last used in England in 16409. 'Judicial torture' was abolished by the Treason Act 1709 which is considered to be the first formal abolition of torture in any European state.

1.10 Alfred McCoy, in a review of the history of secret torture and torture training by the US Central Intelligence Agency (CIA), describes how CIA-funded experiments on psychiatric patients and prisoners in the 1950s developed into 'no-touch torture' which is based primarily on sensory deprivation10.



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