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
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.
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