"Life means not only physical existence. It means the use of every limb or faculty through which life is enjoyed.". -- Justice P.N. Bhagwati

One of the most shocking incidents happened on June 19, 2020. Police Officers picked up and questioned and tortured 59 years old, P. Jayaraj and his 31 years old son, Bennicks (a.k.a. Fenix) in Sathankulam. This ultimately led to the death of both father & son. All this happened for a simple reason i.e. for violating lockdown rules and keeping their mobile store open beyond the curfew time.

Madras High Court on June 22 took suo motu cognizance of the said matter and has directed for detailed inquiry including post-mortem and filing of a status report. The said investigation has been taken over by the Central Bureau of Investigation (CBI) wherein the police officers have been charged with murder and currently, the CBI is looking into the matter.

It is alleged that the father-son duo was brutally thrashed, sodomized, and tortured by the police while in custody, leading to their deaths. Eyewitnesses have alleged that they were stripped naked, their knees were smashed and their chest hair was ripped out. They further claimed that the cops inserted metal objects into one of the victims' rectums. They were bleeding from their rectums so much that they had to change their 'Lungis' seven times in about 5 hours.

On June 22, Fenix reportedly succumbed to his injuries at Kovilpatti General Hospital after complaining of pain in his chest while his father breathed last on June 23rd.

What Is Torture?

In the year 1984, the General Assembly of the United Nations vide resolution 39/46 had signed, ratified, and adopted the "Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment".

Torture is defined under Article 1 wherein it means 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.

India is a signatory to the said convention but despite signing it in the year 1997 has not ratified it till date. Even though the Prevention of Torture Bill, 2010 was tabled in Lok Sabha with the intent to ratify the aforesaid convention, the said Bill was never passed by Rajya Sabha. In 2017, once again, the said Bill was introduced in Rajya Sabha but was not passed by it.

In India, from April 2017 to April 2018, there were on average 5 custodial deaths daily[1]. In the year 1996, Hon'ble Supreme Court in the case of Ramamurthy vs the State of Karnataka identified unnatural deaths in prison as one of the nine issues which needed reforms for prisons. There have been innumerable cases time and again regarding the torture inflicted on prisoners by the officials or by the persons designated by such officials.

In 1975, the Hon'ble Apex Court in the case titled Inderjeet v. State of Uttar Pradesh held that prison restrictions amounting to torture, pressure, or infliction and going beyond what the court authorities have permitted, are unconstitutional. It further extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amounts to human degradation.

Law Protecting Against Torture

Constitution of India
Article 32 guarantees protection and resort directly to the Supreme Court against wrongful detention or arrest which is violative of fundamental rights. Article 20 prevents a person from giving self-incriminatory statements, thus wiping out the possibility of custodial torture as any of such statements is not admissible. Article 21 enshrines the right to life & personal liberty. The expression "life or personal liberty" in Article 21 also guarantees the right to protection against torture and assault.

Article 22 safeguards rights w.r.t. being informed of the grounds of arrest, getting consultation of a legal practitioner, protection against preventive detention laws, and surety of being produced before the nearest Magistrate within 24 hours of the arrest of the person.

Other Statutes
S.330, 331 & 348 of the Indian Penal Code safeguards a person from extortion of confession by a police officer or such designated personnel who voluntarily either causes hurt, grievous hurt, or wrongfully confines that person. S.25 & 26 of the Indian Evidence Act brings a confession made to a police officer out of the purview of admissible evidence. Section 46, 49, 76, 176(1) of the Code of Criminal Procedure stipulates the procedure for arrest, confessions, and appearance before the magistrate along with inquiry into the death of the accused. And lastly, Section 29 of the Police Act, 1861 punishes a police officer for neglecting his duty.

The Case Of Jayaraj & Fenix

In the present case, the State Government announced a compensation of Rs. 20 lakh, and DMK's Thoothukudi MP, Mr. Kanimozhi declared a compensation of Rs. 25 lakh for the family of the victim.

It is evident that the Supreme Court in many of its decisions started a new trend of compensatory jurisprudence in Indian legal history. This newly-forged weapon to help the torture victims has been sharpened in many of its decisions, like Rudul Shah v. State of Bihar [(1983) 4 SCC 141], Bhim Singh v. State of J&K [AIR 1986 SC 494] and Saheli v. Commr. of Police [(1990) 1 SCC 422] to name only a few.

In the case of Nilabati Behera v. State of Orissa, the Court crystallized the judicial right to compensation, which was further reiterated in the landmark decision of D.K. Basu v. State of W.B.

In D.K. Basu's case, the Hon'ble Apex Court went to the extent of saying that since compensation was being directed by the courts to be paid by the State, therefore making the State vicariously liable for the illegal acts of its officials, the reservation to Article 9(5) of International Covenant on Civil and Political Rights (ICCPR) by the Government of India had lost its relevance.

In fact, the sentencing policy of the judiciary in torture-related cases against erring officials in India has become very strict. For an established breach of fundamental rights, compensation can now be awarded in the exercise of public law jurisdiction by the Supreme Court and High Courts, in addition to private law remedy for tortuous action and punishment to the wrongdoer under criminal law.

The Supreme Court in the case of Nilabati Behera held that the Court cannot stop by giving a mere declaration in the cases of infringement of fundamental rights. It (the court) must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to a 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.

Problem Yet Unresolved
The death of the father-son duo was not only because of the atrocities done by the Police but also because of various other factors. It is the current machinery of law and implementation that leaves some loopholes that enables Police to commit torture and illegal & unlawful acts on prisoners.

Firstly, non-prosecution of the police officers and mere suspension is not a remedy for the current problem;

Secondly, granting of police remand mechanically without any application of mind by the Magistrate gives immense power to the Police to abuse its powers;

Thirdly, merely granting compensation to the family of the victim without a finality of the prosecution and judgment on such officials do not act as a deterrent for other potential police officers/ assigned personnel.

And lastly, no accountability of police officers in relation to the acts done by them in police stations or during their duty, and a lenient approach towards vigilance inquiry further enables such atrocities on prisoners.

Therefore, it is time to address these issues as the laws (being on paper) duly protect the rights of the accused and convicts but their non-implementation encourages or at the least fails to curb such police atrocities.

End-Notes:

1. Prison Statistics India 2015 report by the National Crime Records Bureau (NCRB)