JKJ 2008 (1) J-1

Torture An Age-Old Heinous Human Practice

By:- S.C Sharma (Advocate J&K High Court Jammu)

Introduction

Torture is an age old; its real age is a few centuries. It is as old as human beings. The oxford dictionary meaning of this word is “inflicting of severe bodily and mental pain or suffering e.g. punishment. Torture means ’human torture’. It results in human sufferings and pains. There are many types of torture; police torture, employer torturing employees, husband torturing wife and rich torturing poor etc. It is laid down in history that King Humarabi of Babylon (Middle East Country) and Chengis Khan are famous for torture. During Colonial British Regime for 250 years in India, people were deported for life in the island of Andaman Nicobar (Kalapani). The Russians used to send suspects for life exile in the severest climate of Siberia during 1910-40. Hitler and his Nazi troop sent thousands of Jews and others to cruel and inhuman concentration camps during II world War. In the Indian context the Dalits, Harijan, Schedule caste and tribes are being constantly tortured in villages by the rich upper class and landlords.

Motive

In common parlance now-a-days torture means human torture by the police which is an universal phenomena and torture of downtrodden by the rich powerful upper class. There are various motives of torture, such as: (a) to extricate information, truth (section 330 Penal Code); (b) as a punitive measure; (c) to show muscle power; and (d) the rich powerful and influential proves their supremacy over the poor, weak and downtrodden villagers. There is a national upheaval regarding the topic. “Administration of Criminal Justice System which strikes and shakes the very roof of this century old notion torture’. Our Constitution (Articles 14, 19, 21) safeguards people against torture. Moreover, the Human Rights Commission is a safeguard key against torture. The Penal Code, Juvenile Justice Act has legal provisions regarding ’Human Torture”.

Modern Definition of ‘Torture’

Article 1(1) of UN Convention against torture (1984) has defined torture. We can extract three essential elements which constitute torture: (a) The intentional infliction of severe mental or physical pain or sufferings; (b) by or with consent or acquiescence of State Authorities; (c) for a special purpose, such as gaining information, punishment or intimation.

Torture these days has deep rooted and strong legal sense. It is an emotive word, but one, which should not be used lightly. Torture is characterized and distinguished from other forms of ill-treatment by the severe degree of suffering involved. It is therefore important to reserve the term for the most objectively serious forms of ill-treatment. International law gives us two main guidelines to apply in assessing whether or not a set of facts amounts to torture.

Torture on Women folk

There are lots of violence on Indian women. Sexual harassment of women at their work place is palpable violation of the Right of Dignity of women.(AIR 1997 SC 3011).

Section 304-B, 354, 376, 493-498-A, 509 of Penal Code, Sections 113-A, 113-B of Evidence Act, touch “torture on Women”. The Dowry Prohibition Act, The protection of Women from Domestic Violence Act, 2005 exist to protect Indian women at large. There is no Act on “Trafficking, Commercial and Sexual Exploitation of women and Children. Bangladesh has even come out with a Statute on this subject. It is basic right of a female to be treated with decency and proper dignity. There are various provisions such as section 51(2) of the Code of Criminal procedure, Section 50 (4) of NDPS Act which are enacted to see that women are treated with decency and proper dignity at all times. (AIR 1999 SC 2378).

Police torture

Violence in custody of the police is prohibited in total by law. It is very unfortunate that police, who is the custodian of law, violate all norms of humanist constitutional order by indulging in torture on prisoners, accused persons, under trials and even on suspects. The Supreme Court has characterized all these as being against human dignity. Though this right is not mentioned specifically in the Constitution the Supreme Court of India through progressive Interpretation has conferred this right on individuals. (AIR 1980 SC 1087). Thus in number of cases Supreme Court has condemned police brutality and torture. (AIR 1995 SC 1117). In AIR 1981 SC 746 Supreme Court has held the police torture as violative of Art. 14 and 21 of the Constitution and cruelty inhuman or degrading treatment enunciated in Art. 5 of the Universal Declaration of Human Rights and guaranteed by Art. 7 of the International Covenant on Civil Political rights.

Police harassment and custodial death (AIR 1997 SC 610) are the most burning problems at present times. The Supreme Court has held that inside Article 21 there is an inbuilt guarantee against torture/assault by police. Police torture raises serious questions about the credibility of Rule of Law and Administration of Criminal Justice System. The Community rightly gets disturbed. Justice Brandeis’s observation which have become classic are in following immortal words: “Government as the omnipotent and omnipresent teacher teaches the whole people by its example if the Government becomes law breaker, it breads contempt of law. It invites every man to become a law into himself.’

Conclusion

All men are created equal and the creator endowed them with certain unalienable rights like life, liberty and pursuit of happiness. Human rights are fundamental and life, dignity, liberty and other important values depend on them. The rights of men are God’s gift in that they result from his creation and every man is born with them. It should be noted that human rights can be institutionalized in national and international legal system, because torture tries to crush this divine element of human rights.