Injustice anywhere is threat to justice everywhere. - Martin Luther King, Jr.

The practice of torture has been widespread and predominant in India since time immemorial. Unchallenged and unopposed, it has become a normal and legitimate practice all over. In the name of investigating crimes, extracting confessions and punishing individuals by the law enforcement agencies, torture is inflicted not upon the accused, but also on bona fide petitioners, complainants or informants amounting to cruel, inhuman and degrading treatment, grossly derogatory to the dignity of the human person. Torture is also inflicted on the women and girls in the form of custodial rape, molestation and other forms of sexual harassment.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

Article 5 of the UDHR, 1948 proclaims that No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. Following the spirit of Universal Declaration, India proclaimed its faith in fundamental freedoms in the Indian Constitution which provides for life and dignity and honour as incorporated in the preamble and in the chapter on Fundamental Rights. The Constitution has entrusted the work of protecting fundamental freedoms to Indian Judiciary. Therefore, the judiciary has the prime obligation to be utmost careful and to resist even the slightest intrusion into its domain in safeguarding the human dignity which our founding fathers have so passionately granted to us. Article 5 of UDHR incorporated the right to protection against torture and the same has been sought to be achieved through Declaration of Fifth United Nations Congress held in 1975.
INTERNATIONAL COVENANT ON CIVIL AND POLITICIAL RIGHTS (ICCPR)

Article 7 of the ICCPR Covenant provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiment. The first sentence of Article 7 of ICCPR reproduces Article 5 of UDHR. Article 7 cannot be derogated from in any circumstances not even during public emergency. This section shows the concern of the international community to defend and preserve the physical and moral integrity of human beings. The purpose of this article is to protect the integrity and dignity of the individuals. It is the responsibility of the Human Rights Committee under Article 40(4) of ICCPR for implementation of these rights. The Human Rights Committee adopted in 1982, general comments on Article 7 of the Covenant, after examining reports submitted by State parties. Committee observed that even in situations of public emergency as envisaged in Article 4(1) of the Covenant, this provision is non- derogable. The Committee though it said that Article 7 has a wide scope of application, it refrained from defining or providing clear criteria for application of this section. The Human Rights Committee has expanded the meaning of torture by including corporal punishment including excessive chastisement as an educational or disciplinary method. Article 7 clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.
UNITED NATIONS INSTRUMENT DEALING WITH TORTURE

The process of legal codification against torture eventually culminated in The Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (CAT) , which was adopted by the UN General Assembly on Dec 10 th, 1984.The objective of this Convention is to prevent acts of torture and other acts prohibited under this convention. Article 1 of the Convention defines torture. Significant features of the Convention

The Covention requires state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction. Article 2 of the Convention says that torture cannot be justified even during war or public emergency. Article 3 of the Convention forbids State parties to expel, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention also requires States to ensure that all acts of torture, attempts to commit torture or participation in torture are offence punishable under criminal law of their states (provided in Art 4 of the Convention). It also provides for prosecution or extradition of persons alleged to have committed acts of torture. The implementation of the Convention is monitored by a Committee against Torture, consisting of 10 experts, elected by the States parties to the Convention and serving in their personal capacity. State parties to the Convention are required to report regularly to the Committee on measures they have taken to give effect to the provisions of the Convention. The Committee considers such reports, makes general comments and inform the other state parties and General Assembly of its activity. The Committee also allows for individual complaints under Art 22, provided state has made declaration accepting the treaty bodies competence to accept complaints and local remedies have been exhausted. India has signed the Convention against torture but not ratified it. Also India has made reservations against Art20 & Art22 of the Convention. The convention was passed for ratification in february 1985.At that time twenty Nations signed and five more signed within the month. At present sixty-five nations have retified the convention against torture(CAT) and sixteen more signed but not yet ratified it. The UN General Assembly adopted Optional Protocol to CAT in December 2002. This optional protocol has created a sub

committee and allows in-country inspections of places of detention to be undertaken in collaboration with national institutions.

INDIAs RESPONSE TO TORTURE

Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution which is a non- derogable right. Article 21 was a derogable right until the 44 th Amendment to the Constitution, 1978. It includes right against torture and assault by State or other functionaries. This right is even available to foreign citizens, under-trials, prisoners and detenues in custody. In recent times there is an increasing concern of the international community about the practice of torture of prisoners and detentes. Torture is a well-established tool used by the Indian Police for investigation. In tune with international human rights instruments against torture, the Constitution also emphasizes respect and honour of human dignity and fundamental rights. Torture has not been defined in the Constitution or in other penal laws. Article 21 of Constitutional only provides no person shall be deprived of his life or personal liberty except according to procedure established by law. Life or personal liberty has been held to include the right to live with human dignity and includes within its ambit a personal guarantee against torture or to cruel, inhuman or degrading treatment or punishment, can move to the higher courts for judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed about the grounds of such arrest and cannot be denied to consult and defend himself by legal practitioner of his choice. Article 22 directs that person arrested and detained in custody shall be produced before nearest

Magistrate within 24 hrs of such arrest. Article 20(3) provides that accused shall not be compelled to witness against himself as this would amount to selfincrimination. The process of accountability was strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of the Act set up National Human Rights Commission. Legislative safeguards: Sec 330 & 331 of Indian Penal Code, which provides for punishment for injury inflicted for extorting confession. The former in case of simple hurt and the latter for greivuos hurt. Crime of custodial torture against prisoners can be brought under Sec 302, 304, 304A and 306 too. Sec54 Criminal Procedure Code, 1973 confers upon arrested person the right to have himself medically examined. A confession made to police officer is not admissible in evidence under Sec 25 and 26 of Indian Evidence Act, 1872. Sec 162 of C.P.C also provides that no statement of a witness recorded by police officer can be used for any purpose other than for contradicting his statement before the court. Sec 24 of Indian Evidence Act also provides that when admissible, confession must be made voluntarily. If its made under inducement, threat or promise, it is inadmissible in criminal proceedings; Additional safeguard is provided under Sec 164 CrPC, it is for magistrate to ensure that a confession or statement being made by accused person is voluntary. Judicial response:

India has signed but not ratified the UN Convention against Torture (CAT). There has been a continuous effort of the National Human Rights Commission (NHRC) to pursue the Government of India to ratify the Convention against Torture so that a new domestic legislation thereafter can be brought into place. But the effort has gone till date without success. However, absence of a specific law, the Supreme Court of India has condemned torture through various judgments which have contributed to create a national jurisprudence in cases of combating torture. The practice of torture by police and other law enforcing officers is a matter of deep concern, therefore it is the sacred duty of the state to protect these fundamental human rights of these citizens. The problem of police torture and violence is of universal nature. The concern regarding the problem was one of the reasons leading to provisions against torture and inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of U.S.A and other countries of the world. Though there is no separate and specific protection in the Indian Constitution against torture, the combined effect of rights against selfincrimination and of life and liberty is too evident. In Nandini Satpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law. The clear case of prohibition against torture was delivered by the Court in Sunil Batra v. Delhi Administration (1978 (4) SCC 494). The Supreme Court did not find itself handicapped by absence of specific provisions against torture in the Constitution and gathered support from Article 14 & 19 in holding against the permissibility of torture vis--vis persons suspected and accused of crime. In Raghbir Singhv. State of Haryana (1980 ( 3) SCC 70), where the violence employed by the police to extract a confession resulted in death of a person

suspected of theft, the court observed that the lives and liberty of citizens are at peril when the guardians of law stab human rights to death. Vulnerability of human rights assumes a traumatic, torturesome poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them. The court awarded life sentence to the police officer responsible for the death of the suspect in police lock up. In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11 guidelines (procedural measures) to be followed while, during and after arrest of person till he is in the custody of police. This case came up before the Court through a petition under art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to Chief Justice of India drawing his attention to news items published in a newspaper, regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court observed that Custodial Torture is a naked violation of human dignity and degrading which destroys individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded the Civilization takes a step backward. However mere formulation of guidelines and safeguards would not be sufficient, therefore Supreme Court in D.K Basu case warned that: Failure to comply with the requirements mentioned shall apart from rendering the concerned official liable for departmental action liable to be punished for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called to the police station in connection with a case. Thereafter, his whereabouts became unknown to his family members. His family members filed a writ of

habeas corpus before the Supreme Court, pursuant to which he was produced before the court. The UN Convention against Torture provides for redress and compensation to the tortured victim. Article 14 of the convention categorically emphasizes that every State party to the Convention must ensure that the tortured victim is provided fair & adequate compensation and rehabilitation. If death results in the event of torture, the family is to be provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the principle of state liability and the need for state to make reparations for such liability was recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide amplitude to provide any remedy under Public Law for any contravention of Fundamental Rights.
NHRCs guidelines and Instructions on Torture

The NHRC, soon after its establishment, identified custodial deaths and rapes as a priority area of concern and issued instructions to all states and union territories to report any instance of custodial rape or death within 24hrs of its occurrence. It also asked for reporting judicial as well as custodial deaths. NHRC later held that all postmortem examinations done in respect of deaths in police custody and in jails should be video taped and sent to the commission along with postmortem report. The Indian Government has finally initiated steps to have a law to check torture by making it a punishable offence. While the signatories to the UN Convention were only obliged to amend prevailing laws to make torture a punishable offence, the Indian Government has decided to go the full hog and bring in a new law providing for stricter punishment for those involved in incidents of torture

Every one has the Right to liability and security of persons.No one shall be subjected to aribitary arrest or detension-Article 9(1) ICCPR

In India the arrested person is presumed to be innoncent and his right are protected by constitution under part iii of fundamental right.
ARREST

An arrest is deprivation of an individual personal liberty by a legal authority .It is traditional definition (a)When police may arrest without warrant: Under sections 41 very wide powers are conferred on the police in order for them to swiftly act for the prevention or detection of cognizable offences without the formality and delay of having to go to a Magistrate for the order of arrest. Therefore, the arrest and detention of persons without warrant of caprice but are governed by rules which are clearly laid down by law. Avinash madhukar vs.state of maharastra 1983 Cr LJ 1833 There can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence Emperor vs.vimlabai Beshpande AIR 1946 PC 123 however the burden is on the police officer to satisfy the court before which the arrest is challenged that he has of suspicion8. (b) Right to know the grounds of arrest- According to section 50(1), every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.Apart from the provisions of the code recognizing the right to know the ground of arrest, our constitution has also conferred on this right the status of a fundamental right. Article 22(1) provides, No person who is arrested shall be detained in custody without being informed as soon as may be, of the ground of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of this choice. The rules emerging from decisions such as Joginder Singh v. State of UP 1994 4 SCC 260 reasonable ground

and D.K Basu v. State of West Bengal1997 1 SCC 416, referred to, have been enacted in Section 50-A Enacted by Act 25 of 2005 making in obligatory to on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest, but also to make an entry in the register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard. (c) Arrest- how to be made- Section 46 envisages three modes of arrest, i.e. submission to custody, touching the body physically, or confining the body. Arrest is restraint on personal liberty. Unless there is submission to custody, by words or by conduct, arrest must be made by actual contact Thaneil Victor vs.State Cr LJ 2416 In case force is required, it should be no more than which is justly required and this section does not give a right to cause death of a person, who is not accused of an offence punishable with the death or with imprisonment for life. Accordingly, a police officer in an attempt to re-arrest an escaped person has no right to shoot. Dakti AIR 1955 ALL 379 (d) No unnecessary restraint- According to section 49, there should be no more restraint than is justly necessary to prevent escape, i.e. reasonable force may be used for the purpose, if necessary but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without arrest is illegal. (e) Person arrested to be informed of grounds of arrest and of the right to bail- Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest, and if the arrest is made in a bailable case the person shall be informed of his right to be released on bail. Arrest without compliance of this provision will be illegal and will made the officer or person making such illegal arrest liable to all such remedies as are available in case of an illegal arrest. Section 50 is mandatory and if

its provisions are not complied with, the non-consideration of such nonconformance bythe court when considering the question of bail operates to the prejudice of the arrested person and the order is liable to be set aside on this ground. This provision carries out the mandate of Article 22(1) of the Constitution of India Govind Prasad vs.State of West Bengal AIR 1975 Cr Lj 1249 (f) Search of arrested person- Section 51 is the only provision which allows a police officer to make a personal search of arrested persons, but it comes into operation after the arrest and not before. Search should be made in the presence of a respectable and independent witness, but this provision under section 51 does not permit medical examination of the accused without his consent. With regard to the provisions of this section the reference may be made to article 20(3) of the Constitution which is a guarantee to the accused against testimonial compulsion. The principle appears to be that though an accused cannot be compelled to produce any evidence against him, it can be seized under process of law from the custody or person of the accused by the issue of a search warrant. (g) Person arrested not to be detained more than 24 hours- The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed. Khatri Vs.State of Bihar AIR 1983 SC 378 Section 57 is concerned solely with the question of the period of detention. The intention is that the accused should be brought before a magistrate competent to try or commit, with the least delay. The right to be taken out of police custody by being brought before a Magistrate is given, firstly, to prevent arrest and detention with a view to extract confession, or as a means of compelling people to give information, secondly, to prevent police stations being used as though they were prisons, and thirdly, to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.

(h) Right to consult and to be defended by a counsel of his choice and to get free legal aid in case of economically disabled accused- Apart from ensuring a fair prosecution, a society under the Rule of law has also a duty to arrange for the defence of the accused, if he is too poor to do so. Free legal aid to persons of limited means is a service which the modern State, in particular a welfare state, owes to its citizens. (i) Rights to Anticipatory Bail- Section 438 deals with this right of the arrested. Special powers have been conferred only on the High Court and the Court of Session for directing a person on bail previous to his arrest, which is commonly called anticipatorybail, imposing such conditions as the court thinks fit. The order of anticipatory bail shall take effect at the time of arrest. Baksh Singh vs. State of Punjab AIR 1980 SC 378

international human rights standards governing the treatment of arrested persons The principal international Human rights documents clearly protect the Human Rights of prisoners. The International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both prohibit torture and cruel, inhuman or degrading treatment or punishment, without exception or derogation. The ICCPR, in addition28 mandates that, all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person. It also requires that the reform and social readaption of prisoners be an essential aim of imprisonment .Several additional international documents flesh out the human rights of persons deprived of liberty, providing guidance as to how governments may comply with their international legal obligations. The most comprehensive

such guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the Standard Minimum Rules), adopted by the U.N Economic and Social Council in 1957. It should be noted that although the Standard Minimum Rules are not a treaty , they constitute an authoritative guide to binding treaty standards.

Other Documents The other documents relevant to an evaluation of prison conditions include the Body of Principles for the protection of All Persons under Any Form of Detention or Imprisonment, the basic principles for the Treatment of the Prisoners, and with regard to Juvenile Prisoners, them United Nation Standard Minimum Rules for the Administration of Juvenile justice (known as the,Beijing Rules). Like the Standard Minimum Rules, these instruments are binding ongovernments to the extent that the norms set out in them explicate the broader standardscontained in Human rights treaties.These documents clearly reaffirm the tenet that prisoners retain fundamental HumanRights. As the most recent of these documents, the Basic Principles for the Treatment of Prisoners, declares:Except for those limitations that are demonstratably necessitated by the fact of incarceration, all prisoners shall retain the Human Rights and fundamental freedom set out in the Universal Declaration of Human Rights, and where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the Optional Protocol thereto, as well as such other rights as set out in other United Nations covenants. Reaffirmation of the tenet that prisoners retain fundamental Human Rights: Endorsing this philosophy in 1992, the United Nations Human Rights committee explained that States have a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty and stated :

Not only many persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment], including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than the resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all rights set forth in the (ICCPR), subject to the restrictions that are unavoidable in a closed environment30 Significantly, the Human Rights Committee has also stressed that the obligation to treat persons deprived of their liberty with dignity and humanity is a fundamental and universally applicable rule, not dependent on the material resources available to the State party.

CONCLUSION

Alarming increase in custodial torture, assault and death has invited the attention of the judiciary to ensure that public bodies or official do not act unlawfully and perform their public duties properly, especially, when fundamental rights of citizens are involved. The judiciary has given enough directions to safeguard fundamental rights and freedoms of citizens including accused. The judicial dictates have served a useful public purpose to expose and stop the use of third degree methods by police on persons in their custody.