CONTENTS

Page
No.
Certificate i
Declaration by Candidate ii
Acknowledgements iii
Preface v
Contents viii
List of Cases xv

CHAPTER 1 INTRODUCTION 1-66

 Legal Concept of Human Rights 6

 Evolution of the Concept of Human Rights in India 10
 Police: Meaning and Evolution of the Concept of Police 15
 Historical Perspective of Indian Police 16
 Police Custody 20
 What is Torture? 22
 Three Vital Elements in Definition of Torture 25
 Torture: Past and Present 28
 Torture in India 32
 Victims of Torture 42
 Dalits and Adivasis 42
 Women 43
 Children 46
 Politicians and Human Rights Activists 47
 Weaker Sections of the Community 48
 Causative factors for Custodial Torture 49
 Police Sub-Culture 50
 Familial Cause 50
 Social Causes 51
 Public Approval 51
 Performance Pressure 52
 Economic Causes 53
 Lack of Supervision of Lock-ups 54
 Lack of Judicial Vigilance 54

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  Political Interference 55
 The Existing Problems in Statutory Provisions and Judicial
56
System
 Defects in Investigation System 57
 Defects in Recruitment and Training 58
 Stress and Strain 59
 Methods of Torture 60
 Physical Torture 60
 Types of Physical Torture 60
 Psychological Torture 62
 Sexual Torture 63
CHAPTER 2 INTERNATIONAL CONVENTIONS ON
67-117
CUSTODIAL TORTURE
 The United Nations International Instruments Containing Torture
68
Prohibiting Clauses
 The Universal Declaration of Human Rights, 1948 69
 Geneva Conventions 71
 Geneva Convention relative to the Protection of Civilian 72
Persons in Time of War, 1949
 Geneva Convention relative to the Treatment of Prisoners of 72
War, 1949
 Protocol I, relating to the Protection of Victims of 72
International Armed Conflicts, 1977
 Protocol II, relating to the Protection of Victims of Non- 73
International Armed Conflicts, 1977

 The International Covenant on Civil and Political Rights, 1966 73

 The First Optional Protocol to the International Covenant on 74

Civil and Political Rights, 1966
 Declaration on the Protection of All Persons from Being 75
Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1975
 Standard Minimum Rules for the Treatment of Prisoners, 76
1977
 Code of Conduct for Law Enforcement Officials, 1979 76
 Principles of Medical Ethics relevant to the Role of Health 77
Personnel, particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1982

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  United Nations Convention against Torture and Other Cruel, 78
Inhuman or Degrading Treatment or Punishment, 1984
 State Parties Obligations under the UNCAT 80
 Scope of UNCAT 85

 The Optional Protocol to the Convention against Torture, 2002 88

 United Nations Instruments relating to the Special Rights of 89

Juvenile Accused
 United Nations Standard Minimum Rules for the 89
Administration of Juvenile Justice (The Beijing Rules), 1985
 United Nations Rules for the Protection of Juveniles Deprived 89
of their liberty, 1990
 United Nations Special Rapporteur on Torture and Other Cruel,
90
Inhuman and Degrading Treatment or Punishment, 1985
 The Body of Principles for the Protection of All Persons under
91
any form of Detention or Imprisonment, 1988
 World Conference on Human Rights Vienna Declaration, 1993 93
 The Istanbul Protocol in the UN System, 1999 94
 United Nations Basic Principles and Guidelines on the Right to a 97
Remedy and Reparation for Victims of Gross Violation of
International Human Rights Law and Serious Violations of
International Humanitarian Law, 2005
 European Regional Instruments Containing Torture Prohibiting 99
Clauses
 The European Convention for the Protection of Human Rights 99
and Fundamental Freedoms (ECHR), 1950
 The Council of Europe Declaration on the Police, 1979 99
 The European Convention for the Prevention of Torture and
100
Inhuman or Degrading Treatment or Punishment, 1987
 The European Committee for the Prevention of Torture (CPT) 104
 The Inter-American Regional System Containing Provisions Relating 105
Torture
 American Convention on Human Rights, 1978 105
 Inter-American Convention to Prevent and Punish Torture, 1985 106
 African Regional System Containing Provision Relating Torture 111
 African Charter on Human and Peoples’ Rights, 1981 111
 International Tribunals Containing Provisions Relating Torture 113

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  Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian 113
Law committed in the Territory of former Yugoslavia (ICTY)
(1993), Tribunal on Rwanda, 1994 (ICTR)
 Rome Statute of International Criminal Court, 1998 115
CHAPTER 3 CUSTODIAL TORTURE: CONSTITUTIONAL 118 -
AND LEGISLATIVE PROVISIONS IN INDIA 183

 Provisions under the Indian Legal System: To Protect a Person from 119
Custodial Torture
 Protection against Conviction or Enhanced Punishment under Ex- 119
Post Facto Law
 Protection against Double Jeopardy 121
 Right not to be Witness against Himself 122
 Right to Life and Personal Liberty 126
 Right of Privacy 128
 Right to be Informed of the Ground of Arrest 130
 Right of an Accused Person to Counsel 132
 Right to Speedy Trial 133
 Protection against Illegal Arrest 135
 Guidelines on Arrest 141
 The National Human Rights Commission’s Guidelines on 144
Arrest
 Provisions Under the Indian Legal System: To Protect A Woman 150
from Custodial Torture
 Provision Under the Police Act, 1861– To Protect A Person from 160
Custodial Torture
 Provisions under Army Act, 1950– To Protect a Person from 161
Custodial Torture
 Provisions under Navy Act, 1957– To Protect a Person from 162
Custodial Torture
 Provisions Under Air Force Act, 1950– To Protect A Person From 163
Custodial Torture
 Legal Remedies in Cases of Torture Committed in Third Countries 165
 Prosecution of Act of Torture Committed in Third Countries 165
 Extradition Laws 165
 Laws Relating to Immunities Available to Public Servants 166
 Prevention of Torture Bill, 2010 172
 Definition of Torture 173
 Limitation Period 177

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  No change in Existing Systems of Impunity 177
 Silence on Certain Provisions 179
 Penal Offences 179
 Death in Custody 180
 Statements Obtained through Torture 180
 Presumption 180
 Right of Victims to Redress 180
 Criminal Liability of Superior Officers for Acts of Torture 181
 Review Mechanisms 181
 Power to Make Rules 181
 Expulsion and Extradition Provisions 181
 Use of Scientific Tests 182
 Optional Protocol 182
CHAPTER 4 LAW RELATING TO TORTURE IN USA, UK 184-
AND CANADA 224
 The United States Law on Torture 184

 Torture as Federal Crime 186

 Other United States Law Relating to Torture 190
 The Federal Death Penalty Act (FDPA), 1994 190
 Torture Victim Protection Act, 1991 190
 Alien Tort Claims Act, 1789 192
 The Foreign Sovereign Immunities Act, 1976 193
 Torture Victim Relief Act, 1998 194
 The Detainees Treatment Act, 2005 194
 Military Commission Act, 2006 195
 Implementation of the Convention against Torture in the 198
United States
 The United Kingdom Law on Torture 203
 Definition of Torture under Criminal Justice Act, 1988 204
 Jurisdiction 208
 Retrospectivity 209
 Extradition 209
 Double Criminality 212
 Evidence obtained by Torture 213
 Civil Law relating to Torture 214
 Canada’s Law on Torture 216
 Immigration and Refugee Protection Act (IRPA), 2002 220

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CHAPTER 5 ROLE OF JUDICIARY, HUMAN RIGHTS
225-
COMMISSIONS AND NGOs IN TACKLING
262
CUSTODIAL TORTURE
 Judicial Initiatives on a Persons’ Rights from the Pre-Detention 227
Period till his Release
 Fair and Speedy Investigation 227
 Arrest and Detention 229
 Harassment and Ill Treatment 231
 Unhygienic Conditions in Lock-up 234
 Privilege against Self-Incrimination 235
 Bail and Remand 235
 Treatment of Women in Custody 236
 Prohibition against Detention of Juvenile in Adult Custodial 237
 Institutions
Compensation to Victims of Abuse of Power 238
 Initiatives of Human Rights Commissions 243
 National Human Rights Institutions Origin 244
 Functions of the National Human Rights Commission 246
 Powers of the National Human Rights Commission 246
 Restrictions on Power of National Human Rights Commission 247
 Human Rights Courts 247
 Investigation Division 248
 Inquiry into Complaints 248
 Complaints against Armed Forces 249
 Guidelines/Instructions issued by the NHRC 250
 Law Reforms 251
 Review of International Conventions 252
 Compensation to Victims of Torture 253
 Effectiveness of National Human Rights Commission 257
 The Role of Non Government Organizations (NGOs) in the 259
Prevention of Torture
 Human Rights Awareness Building 261
 Organization of People around Specific Issues of Human Rights 261
 Violations
Investigation and Fact Finding 261
 Recourse to Judicial Remedies 262
 Advocacy and Lobbying 262
 Networking 262

xiii
CHAPTER 6 STATE LIABILITY FOR CUSTODIAL 263-
TORTURE 298
 State Liability 263
 State and Law 264
 Development of the concept of State Liability 265
 Liability of the State during the Vedic Period 265
 Liability of the State during the Mughal Period 265
 Liability of the State during the British Period 266
 Liability of the State under the Indian Constitution 269
 The liability of the State under the Law of Torts 270
 Liability of the State in Criminal Law 276

CHAPTER 7 CONCLUSION AND SUGGESTIONS 299

BIBLIOGRAPHY 312

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