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Torture as a challenge to civil society and the administration of justice
by Justice Markandey Katju*

Cite as : (2000) 2 SCC (Jour) 39

Torture is essentially a problem of criminal law, and normally happenings of torture are reported during the investigation. Investigation is the most important part of criminal jurisprudence but unfortunately adequate attention has not been paid to it. It is during investigation that the basic facts relating to a crime are enquired into, and the facts found during the investigation are placed before the court. Hence unless there is an efficient, prompt and fair investigation justice in criminal cases cannot be ensured. Even in the cases where the accused is nabbed early full facts about the crime can only be ascertained by the police investigation.

There are two great difficulties faced by the police in investigation:

(I) Investigation is a science, and hence the police have to be given training in scientific investigation, which in our country is unfortunately not provided to them. Modern scientific investigation does not rely on torture. For example, in the stories of Sherlock Holmes we see that Sherlock Holmes does not resort to torture for doing his investigation, but conducts it in a scientific manner. Modern scientific investigation requires both proper training and proper equipment. In Western countries scientific methods of investigation are used e.g. by Scotland Yard or the FBI. For instance, in Western countries during the investigation the fingerprints of a suspect are taken and fed into a computer which is connected to a computer network and in almost no time it can be ascertained whether the suspect has a criminal background and other details about him. Similarly the DNA test of hairs, blood, semen, saliva etc. and chemical analysis of substances is of great help in criminal investigation and is widely used. Also, in Western countries there are modern methods of communication etc., which are very helpful in the investigation. Hence in Western countries torture is not normally used during investigation and the correct facts can be usually ascertained without resorting to torture. Even during interrogation torture is not normally used by an intelligent interrogator, as he has no need to resort to use of physical force on the accused.

In our country, on the other hand, in most police stations the investigating officers have not been given training of modern scientific investigation, nor do they have the equipment and modern facilities for this purpose, and hence there is no such thing as scientific investigation in our country.

(II) Independent witnesses are reluctant to come forward, and sometimes even family members do not volunteer to give evidence as they fear their safety. Also, witnesses are often harassed, as they have to come again and again to the court because the cases are often not taken up and are frequently adjourned for various reasons.

For both the above reasons the police resort to the usual and time-honoured method of torture of the accused during investigation.

The great danger in this is that even an innocent person under torture often admits to a false charge, and this can lead to conviction of innocent persons.

The use of torture is a feudal practice. It was commonly used during feudal times, e.g. in the Spanish Inquisition in which the suspects were brutally tortured and made to confess to their connection to the devil and witches. Under torture Joan of Arc confessed to be a witch in league with the devil.

In modern times use of torture in the investigation is regarded as an uncivilized and illegal practice. The main problem is how to conduct a proper investigation in criminal cases without the use of torture. For this purpose training in scientific methods of investigation are necessary, and the appropriate equipment should be provided to police stations. We must not forget that the police work under great pressure and with inadequate manpower, with little equipment and with no proper means of communication, often in vast rural areas having bad roads.

It is submitted that if proper training and proper equipment are not provided to the police elimination of torture in the investigation will remain a pipedream however many laws safeguarding the interest of the accused are made. Mere paper statements that torture is bad will remain an eyewash for the vast population.

Article 20(3) of the Constitution of India states:

"20. (3) No person accused of any offence shall be compelled to be a witness against himself."

The above provision is on the lines of the Fifth Amendment to the US Constitution, which prohibits self-incrimination.

Section 25 of the Evidence Act states:

"25. No confession made to a police officer, shall be proved as against a person accused of any offence."

Section 26 of the Evidence Act states:

"26. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."

A similar provision has been made in Section 162 of the Code of Criminal Procedure.

An interesting question arises as to why confession to the police was made inadmissible in evidence by the British rulers who made the Indian Evidence Act in 1872. The answer is obvious. In India there is no proper training given to police inspectors for conducting scientific investigation nor are they provided with proper equipment for this purpose. On the other hand the police inspector has to show that he has solved the crimes in an area, and since that can truthfully be done only by scientific investigations for which he is neither given training nor the equipment, the only way for him is to secure a conviction by using torture in police custody.

In D.K. Basu v. State of W.B.1 the Supreme Court has rightly condemned the use of torture by the police. The Supreme Court observed: (SCC p. 424, para 9)

"Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law...."

The Supreme Court held that torture was violative of Articles 21 and 22 of the Constitution of India. The Supreme Court pointed out that Article 5 of the Universal Declaration of Human Rights states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United Nations General Assembly on 9-12-1975 adopted a Declaration on the Protection of All Persons From Being Subjected to Torture or Cruel, Inhuman or Degrading Treatment or Punishment. In order to make more effective the struggle against torture the United Nations General Assembly on 10-12-1984 adopted a Convention known as the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. This Convention came into force on 26-6-1987 when it was ratified by 20 States, and subsequently it was signed by more than 120 nations.

The term "torture" has been defined in Article 1 of the Convention as follows:

"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 officer or other person acting in an official capacity."

Article 2 para 1 of the Convention provides that each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture under its jurisdiction. Torture cannot be justified even in exceptional circumstances whatsoever, whether there exists a state of war or a threat of war, internal political instability or any other public emergency. An order from a superior officer or a public authority cannot be invoked as justification for torture. Each State party has to ensure that all acts of torture are offences under its criminal law.

For implementation of these provisions the Convention has provided for a Committee Against Torture consisting of ten experts of high moral standing and recognized competence in the field of human rights.

In India the Supreme Court has in a series of decisions held that the right to life in Article 21 of the Constitution does not mean mere animal existence but means a life of dignity vide Charles Sobraj v. Supdt., Central Jail2, Francis Coralie Mullin v. Administrator, Union Territory of Delhi3, Sunil Batra v. Delhi Admn.4 Even a person in custody or jail is not bereft of his fundamental rights.

In Joginder Kumar v. State of U.P.5 the Supreme Court held that arrest is not a must in every case. The Court also held that the arrested person is entitled, if he so requests, to have one friend, relation or other person known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. In D.K. Basu case1 the Supreme Court laid down several guidelines to prevent third-degree methods which are still being used in many police stations, despite being declared illegal. The Supreme Court referred to the historical decision of the US Supreme Court in Miranda v. Arizona6 in which several safeguards have been laid down by the US Supreme Court.

In Miranda case6 the constitutional issue was regarding admissibility of statements obtained from the accused questioned while in custody. In that case the accused was questioned by the police officers, detectives and the prosecuting attorney in a room in which he was cut off from the outside world. The questioning elicited oral admissions, and some accused signed confessions also, which were produced during the trial.

In Miranda case6 the US Supreme Court observed that if a person in custody is interrogated he must be told in clear and unequivocal terms that he has a right to be silent.

Warning of the right to remain silent must be accompanied by the explanation that anything said by the accused can be used against him in court. Also, right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege. With a lawyer present the likelihood that the police will practise coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. If the accused is an indigent then he must be told that a lawyer can be appointed free of cost to represent him.

The above discussion makes it clear that torture has been condemned by the international community as well as by our laws and court decisions. However, as already mentioned above, the truth is that torture is still widely used by the police, and will continue to be used unless the entire police and administrative apparatus is restructured, and investigations made really scientific. It is of common knowledge that the moment a suspect is brought to a police station in our country third-degree methods are used, and the various laws and court decisions against the use of torture remain on paper only.

To eliminate the use of torture during the investigation proper scientific training and equipment must be provided to the police and it is no use blaming the police in the absence of these. This should not be treated as a justification for the use of torture but it is merely a statement of the hard realities prevailing in our country.

*      Judge, Allahabad High Court Return to Text

  1. (1997) 1 SCC 416 : 1997 SCC (Cri) 92 Return to Text
  2. (1978) 4 SCC 104 : 1978 SCC (Cri) 542 Return to Text
  3. (1981) 1 SCC 608 : 1981 SCC (Cri) 212 Return to Text
  4. (1978) 4 SCC 494 : 1979 SCC (Cri) 155 Return to Text
  5. (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 Return to Text
  6. 384 US 436 : 16 L Ed 2d 694 (1966) Return to Text
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