Promoting psycho - legal framework to reduce TOV in India: an initiative of JanMitra Nyas & PVCHR

 1. What is the context and rationale of the project?

India signed the UNCAT and has not ratified yet, our Supreme Court had brought about glorious jurisprudence highlighting the many problems with the country’s torture culture. In Raghbir Singh v. State of Haryana (1980), the Court was “deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death.” These sentiments were revisited in Francis Coralie Mullin v. Union Territory of Delhi (1981) and Sheela Barse v. State of Maharashtra (1987), where the Court condemned cruelty and torture as violation of Article 21 of Constitution of India. This interpretation of Article 21 is consistent with the principles contained in the UNCAT. The Government of India is not likely to take up the torture law. Indeed, the manner in which the torture bill has been treated reveals a betrayal of the people of India by successive governments. India has twice given promises at UPR sessions for ratification of the CAT and still the PREVENTION OF TORTURE BILL, 2017 is also pending at upper house of parliament. The Law Commission of India has recommended the Central Government to ratify the UNCAT and frame a standalone anti-torture law directly making the State responsible for any injury inflicted by its agents on citizens. The National Human Rights Commission and UPR of Human Rights Council have been strongly urging the government to recognize torture as a separate crime and codify the punishment in a separate penal law. http://twocircles.net/2012jul18/torture_one_most_common_forms_human_rights_violations.html https://nhrc.nic.in/press-release/government-urged-ratify-un-convention-against-torture

https://theleaflet.in/indias-continued-refusal-to-ratify-u-n-convention-against-torture-lacks-substance/

 Around 40% of human rights violation cases lodged annually by the National Human Rights Commission (NHRC) in the past three financial years till this October 31 were from Uttar Pradesh, according to data provided by the Ministry of Home Affairs to the Rajya Sabha. Of the total number of cases, Uttar Pradesh accounted for 41,947 cases in 2018-19, 32,693 cases in 2019-20, 30,164 in 2020-21 and 24,242 in 2021-22 till October 31. https://www.thehindu.com/news/national/other-states/up-tops-list-in-human-rights-violation-cases-3rd-year-in-row-mha/article37904825.ece

 NHRC said as of 30 June 2001, there were 2,90,065 inmates in the jails of 26 States and 6 Union Territories of the country whose authorized capacity at this period was 2,19,880 – resulting in an overcrowding of 31.2% in Indian jails. 74.18 per cent of prison population are under trials. https://nhrc.nic.in/press-release/7418-cent-prison-population-are-undertrials-nhrc

 Analysis of the individual cases of torture handled by PVCHR illustrates the critical failings in a dysfunctional public justice system in India. Prison conditions in India are appalling with all the known symptoms of poor correctional systems. There is no unified correctional system in India but many different systems in the individual states. The biggest problems are found in the district prisons. Dalits, Tribal Groups, and Religious Minorities: Mob violence by extremist groups in collaboration of fascist regime against minority communities and dalit continued. PVCHR in collaboration with UNVFVT provided psychological support to more than 50 %women facing torture. All these are indicative of the extent of the problem which proves that human rights initiative in India lacks gender and caste perspective of Torture. This project is multi layers and multi – dimensional initiative for providing direct support to the survivors of torture. The main emphasis of the project will be providing psycho – social support based on active listening with empathy to the survivors and their family members, which will create resilience and break the culture of silence and eliminate the fear and empower survivor to lead normal life. Thus, testimonial therapy offers a platform for victims to narrate their suffering and transform their pain, and not only get healed, but be the crusaders in saving others, whether the frame of reference is existential, psychodynamic, psycho-legal, spiritual, political, cognitive-behavioural, or narrative. https://pvchr.blogspot.com/2023/01/application-usage-and-effectiveness-of.html  It will be implemented in Uttar Pradesh, Bihar and Jharkhand State.

2. What is the national legal, policy and institutional framework for torture victims (please also refer to possible gaps in services)?

The Constitution, adopted in 1950, guarantees fundamental rights, such as the right to life and personal liberty, equality before the law, procedural rights, freedom of religion, freedom of expression, cultural and educational rights, and the right to redress in courts. The Constitution prohibits caste-based discrimination, but while caste barriers have largely brokendown in large cities, they persist in rural areas where 72% of India's population lives. Nevertheless, caste system, in various forms, continues to survive in modern India strengthened by a combination of social perceptions and divisive politics. The Indian Criminal Justice System: The State structure of the criminal justice system connoting the criminal law and its implementing machinery - mainly the police, court and jails-obtaining in our country is a legacy of the British and it obviously has the colonial roots. Despite constitutional prescriptions and judicial pronouncements over several decades,there has been no noteworthy change that would bring the law in tune with the constitutional emphasis on right to life and personal liberty as well as other human rights. The Indian Penal Code (1860) and the Code of Criminal Procedure (1872) were drafted in the 1830s and 1840s by the first law commission. The repressive role of the police, spelt out in the Police Act of 1861, was further stressed by the Indian Penal Code and Criminal Procedure Code which were also enacted in 1861. The police force as well as the entire criminal Justice was designed to preserve and perpetuate the exploitative colonial structure created by the British. In India, neither Constitution nor statutory law contains an express definition of torture. However, different provisions in law provide police power for use of force only in three circumstances; Firstly, to apprehend a person who resists an endeavor to arrest him or attempts to evade arrest under Section – 46 of Code of Criminal Procedure, 1973; secondly, for the dispersal of an unlawful assembly under Section-129 of Code of Criminal Procedure,1973 and thirdly, in the exercise of the right of private defense under Section-100 and 101of the Indian Penal Code, 1860. The legal provisions in laws and procedures in India, allow police in respect of police use of force in certain situations.

The 'India: Annual Report on Torture 2019' has identified `15 trends of torture and impunity’ which reveal how torture has also become a systemic tool of oppression, extortion and silencing dissent.https://thewire.in/rights/custodial-torture-continues-unabated-in-india-amidst-culture-of-impunity-report A ‘macho’ culture in the police forces that valorises those who indulge in violence ensures that no one ever challenges the system.https://thewire.in/government/why-police-brutality-and-torture-are-endemic-in-india Those tortured during arrest or detention often remain in custody for long periods, are often threatened with further torture and/or ill-treatment if a complaint is made, and are therefore unlikely to be able to complain within the specified period.

However, police generally believed that use of force is necessary to detection and prevention of crime and so called third degree or torture are considered as an effective instrument for seeking confession. Prison Legislative: The Prisons function within the legal framework of the Constitutional and the Municipal laws that comprise mainly of the Constitution of India, 1950, the Prison Act, 1894, Prisoners Act, 1900, Laws related to Preventive Detention, Probation of Offenders Act, 1959, etc. Though the wide range of statutory laws constitute the normative basis for the Prison functions, but at the actual functional level often doubts and controversies arise regarding the ambit and interpretations of the statutory rules, thereby calling for frequent adjudications by the Courts. Various Committees, Commissions, working groups have been constituted from time to time both by the State Governments and the Government of India to improve the prison conditions to the extent as are conducive to the culture of reformation and rehabilitation of prisoners. Under Indian law, there is a lack of enforceable right to rehabilitation for torture survivors. Private medical and psychological support is offered by few rehabilitation centers. Torture survivors cannot access the public health sector due to lack of specialized rehabilitation, rejection and apathy from the health care providers. In this context of impunity, limited access to justice, and limited rehabilitation services, PVCHR identified a need for a psycho-legal approach and developed Testimonial Therapy in Indian Context.