Paras Marya
Introduction
Custodial torture is ‘routine’ in India and represents the worst form of abuse of power by public servants.[1] The National Human Rights Commission in 2017-18 recorded 2,896 cases of deaths in judicial custody and 250 cases of death in police custody in that year.[2]
India although a party to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 [“UNCAT”][3], is one of five countries that has not ratified it.[4] The UNCAT defines ‘torture’ as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person either by a public official or at the instigation of a public official for obtaining from them a confession, punishing them, or intimidating them.[5] Further, the UNCAT imposes a positive obligation on each State Party to take effective legislative, administrative or judicial measures to prevent acts of torture.[6]
Sections 330 & 331 of the Indian Penal Code, 1860 [“IPC”][7] deal with voluntarily causing hurt and voluntarily causing grievous hurt, respectively, to extort a confession. The illustrations to Section 330, IPC make it clear that these provisions apply to cases of torture by a police officer on a person in custody of the police.[8] However, cases of custodial torture have time and again shocked the collective conscience of the country and resulted in calls for reforming the penal laws to tackle custodial torture.[9]
Due to the peculiar nature of custodial torture, there is a need to bring certain amendments to the law. Multiple reports of the Law Commission of India [“Law Commission” or “Commission”] and various judgments of the Supreme Court have endorsed the need for a provision to reverse the burden of proof on the accused in cases concerning custodial torture. By considering the significance of the issue in hand, this blog attempts to examine the inadequacy in the law regarding custodial torture in India, and whether a provision to reverse the burden on the accused is a possible solution. The post will also analyse the constitutionality of “reverse burden” provisions in criminal legislations to determine the nature of the presumption, if so, imposed on the accused in cases of custodial torture.
Constitutionality of Reverse Burden Provisions in Criminal Law
The presumption of innocence is a cardinal principle of criminal law.[10] It recognises that the burden of establishing the charge against the accused is placed on the prosecution. However, this principle has been deviated from in several statutes such as in the IPC,[11] the Narcotic Drugs and Psychotropic Substances Act 1985,[12] and the Protection of Children from Sexual Offences Act, 2012 [“POCSO”],[13] amongst others. The Committee on Reforms of Criminal Justice System[14] found that shifting of the burden of proof has emerged to tackle new socio-economic problems, organised crimes, and crimes which involve practical difficulties in securing evidence and thereby involve lower rates of conviction.[15]
The Supreme Court discussed the constitutionality of such provisions in Noor Aga v. State of Punjab [“Noor Aga”].[16] It was held that the presumption of innocence, although central to criminal law, cannot be per se a fundamental right under Article 21 of the Constitution of India.[17] It further noted that a provision for reversing the burden is not only provided for under special acts but also general statutes like the IPC.[18] The Court reasoned that a provision does not become unconstitutional merely because it provides for a reverse burden;[19] the constitutionality of such a provision must be tested on the anvil of the State’s responsibility to protect its citizens.[20] Therefore, a limited provision which creates a reverse burden of proof on the accused is justified.[21] A limited provision does not reverse the burden of proving the essential facts to establish the charge; such a burden always rests on the prosecution.[22] The Court opined that any presumption created against an accused must be subjected to the establishment of foundational facts (determined under the statute in question) by the prosecution.[23] The Court also held that a reverse burden clause in a penal provision must allow the accused to rebut any presumption created against him.[24] A penal statue can thus provide that the court may, upon the establishment of essential facts by the prosecution, make a rebuttable presumption against an accused.
The Bombay High Court’s judgment in Zahid Mukhtar v. The State of Maharashtra,[25] relied on the Supreme Court judgment in the case of Noor Aga to create a test to determine the validity of penal provisions which create a reverse burden on the accused. The High Court acknowledged that statutes might impose an express persuasive burden on the accused.[26] It recognised three principal reasons for which statutes may provide for presumptions of fact or law and cast a burden on the accused to displace those presumptions.
Firstly, a statute may reverse the burden on to the accused to prove a negative fact. For instance, if a person is charged with selling intoxicating liquor without a license, the burden may be reversed on the accused to prove that he held a license. If such presumption of not having a license is not rebutted by the accused, he would be convicted.[27]
Secondly, where an offence requires, as a necessary ingredient, proof of a specific purpose for which the act is done, there may be a presumption of such purpose placed on the accused after the prosecution has established foundational facts. Since the purpose with which the accused did the act is within their special knowledge, it is not unfair to require them to satisfy the Court that they did the act with some other purpose.[28] For instance, Section 30 of the POCSO provides that for an offence which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state and the burden to disprove the same shall be on the accused.[29]
Lastly, if there is a difficulty or a virtual impossibility for the prosecution to fulfil the burden, and there is corresponding ease for the accused to bear the burden of proving the opposite, reversing the burden may be appropriate. For instance, a statute may impose a presumption of trafficking a prohibited substance where the accused is found with such substance wherein the amount is above a specific limit since it would be difficult to prove that the accused carrying such a substance was doing so for trafficking.[30]
Moreover, the High Court opined that for a provision providing for a reverse burden to be upheld, the prosecution must be required to prove the basic foundational facts, which create a rational connection with the presumption imposed, to make them highly probable.[31]
A similar rationale led to the insertion of Section 304B in the IPC, wherein a presumption of guilt (of dowry death) is imposed on the husband or his relatives when the death of a woman under certain circumstances takes place within seven years of marriage and after the establishment of certain facts.[32] The 91st Law Commission Report[33] recommended the provision as it stands today, due to the lack of witnesses in cases of dowry deaths;[34] moreover, the witnesses are either guilty or silent due to their relation to the accused.[35] Additionally, the fact regarding the demand for dowry is within the special knowledge of the accused and extremely difficult to prove for the prosecution; therefore, a provision of limited character was recommended.[36] Under this provision, the prosecution is required to submit evidence to discharge its initial burden and give effect to the presumption created by law.[37] The reverse burden imposed by Section 304B, IPC is said to be successful in achieving its purpose.[38] Therefore, a limited reverse onus clause is constitutional and may also be necessary for some instances.
The peculiarity of Custodial Torture
Reversing the burden of proof on to the accused in cases of custodial torture has been endorsed by the Law Commission and the Supreme Court on various occasions, given the peculiar circumstances surrounding custodial torture cases.
Observations of the Law Commission
In its 113th Report,[39] the Commission considered amendments to deal with the rampant practice of custodial torture. The Commission recommended that the Court should have the power (by amending the Indian Evidence Act, 1872) to draw a presumption where bodily injuries are caused to a person while he is in the custody of the police.[40] It noted that in cases of custodial torture, it is unlikely that anyone but the police officials would have the opportunity of inflicting injuries.[41] Moreover, the presumption being discretionary and rebuttable would ensure that a fair balance is maintained keeping in mind the rights of the accused; the provision would therefore adopt the language of “may presume” rather than “shall presume”.[42]
The 152nd Report[43] of the Commission again examined the need for laws to custodial crimes in the nation.[44] It observed that the victims of custodial torture usually belong to weaker sections of society; being unaware of the law and having little or no political or financial power to protect themselves.[45] It also noted that the victim is subservient to the alleged perpetrator and would be afraid to speak out.[46] Further, third-persons are rarely present to provide oral testimony.[47] Such circumstances make it difficult to attribute the incident in question to the custodian, under the current requirements of proof.[48]
Therefore, the Commission noted that Sections 330 & 331, IPC were inadequate,[49] since the police do not follow these provisions; instead, they evade the rigours of procedural law by manipulating records.[50] Further, the sole witnesses in such cases are either policemen or co-prisoners, both of whom are reluctant to appear as prosecution witnesses due to the ‘brotherhood’ factor (i.e., police personnel would prefer to remain silent to protect their colleagues[51]) and the fear of retaliation by the police, respectively.[52] Therefore, the Commission noted that India being a party to the UNCAT, shall insert special laws that deal with custodial torture,[53] and reiterated the recommendations of the 113th Law Commission Report.[54]
Unfortunately, this trend continued in 2003 (185th Law Commission Report[55]) and again in 2017 (273rd Law Commission Report[56]). The latter dealt with the implementation of the UNCAT through legislation in India. The Commission recommended ratifying the UNCAT and adopting a draft bill titled “The Prevention of Torture Bill, 2017” [“Bill”]. The Bill provided that where it is proved that torture took place in the custody of a public servant, the burden of proving that the torture was not intentionally caused by or was not with the consent of such public servant shall shift to such public servant.[57]
Supreme Court judgments regarding Custodial Torture
The Supreme Court in State of Uttar Pradesh v. Ram Sagar Yadav,[58] for the first time, expressed the need to amend the law regarding custodial torture. It opined that the burden of proof might be re-examined by the Legislature, since in cases of custodial torture due to the lack of evidence and the ties of ‘brotherhood’ a conviction is extremely difficult.[59]
The Supreme Court in State of Madhya Pradesh v. Shyamsunder Trivedi & Ors,[60] similarly, observed that Sections 330 & 331 of IPC were inadequate to deal with cases of custodial torture. It noted that the rate of convictions in such cases is meagre owing to the lack of direct evidence and nature of the crime.[61] Therefore, the Court reiterated the recommendations in the 113th Law Commission Report and suggested that the Legislature give serious thought to the same.[62]
This observation continued in the landmark judgment of DK Basu v. State of West Bengal.[63] The Court held that custodial torture, including death, was an affront to the rule of law.[64] Further, it was held that custodial torture violates the fundamental rights enshrined in Articles 21 and 22 of the Constitution of India.[65] Once again, Sections 330 and 331 of the IPC were deemed inadequate to meet the ends of restorative justice.[66] The Court also recognised the need for an amendment, similar to the one recommended in the 113th Law Commission Report.[67] Therefore, the Supreme Court not only reiterated the need for an amendment regarding shifting of the burden of proof but also, observed that mere punishment of the offender in such cases is not enough and compensation is necessary.[68]
In Munshi Singh Gautam v. State of Madhya Pradesh,[69] the Supreme Court noted that direct ocular evidence is unavailable in such cases and once again emphasised on the ‘ties of brotherhood’ as the cause behind the silence of police personnel.[70] A series of judgments by the Supreme Court[71] have since reiterated that establishment of proof beyond a reasonable doubt by the prosecution in cases of custodial torture, ignores the ground realities and peculiar circumstances of such cases.[72]
Conclusion
Torture in custody is indeed an affront human dignity and is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law.[73] The Supreme Court and the Law Commission have observed that the current requirement, of proof beyond a reasonable doubt, is insufficient in cases of custodial torture. Therefore, a discretionary presumption of guilt must be imposed on police officers who are in the custody of the victim, and such officers must bear the onus to discharge the contrary.[74] Moreover, awarding compensation against the State in such cases is an appropriate and effective remedial measure.[75]
The presumption must be well-reasoned and provided to create a fair balance between the interests of the State and the rights of the accused. It is undoubtedly clear, from the pronouncements in various judgments of the Supreme Court that in cases of custodial torture there is a virtual impossibility for the prosecution to fulfil the burden to prove the guilt of the accused, whereas, it would be comparatively easier for the accused to bear the burden of proving the opposite.
Therefore, in line with India’s obligation under the UNCAT, the penal laws of India should be duly amended to include a discretionary and rebuttable presumption of guilt on the police officer who had custody of the victim of custodial violence during the relevant period.
[The author is a fifth-year law student at the National Law University, Jodhpur.]
[1] National Human Rights Commission India, Annual Report 2017-2018, ¶ 4.6. [2] Id., ¶ 4.8 [3] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, GA Res. 39/46 (December 10, 1984). [4] United Nations Treaty Collection, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, GA Res. 39/46 (December 10, 1984), available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en (Last visited on November 11, 2020) (India is one of 5 countries to not ratify the UNCAT, out of 170 State Parties). [5] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, GA Res. 39/46 (December 10, 1984), Art. 1.1. [6] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, GA Res. 39/46 (December 10, 1984), Art. 2.1. [7] Indian Penal Code, 1860, §330, §331. [8] Indian Penal Code, 1860, Illustrations (a) and (b), §330. [9] The New India Express, India needs to implement laws on anti-torture before enacting new ones: Ex-SC Judge Deepak Gupta, July 4, 2020, available at https://www.newindianexpress.com/nation/2020/jul/04/india-need-to-implement-laws-on-anti-torture-before-enacting-new-ones-ex-sc-judge-deepak-gupta-2165115.html (Last visited on November 11, 2020); Live Law, Jeyaraj-Bennix Custodial Deaths: Bring In Law Against Torture, Ratify UN Convention Against Torture; CHRI Urges Centre, Live Law, June 29, 2020, available at https://www.livelaw.in/news-updates/jeyaraj-bennix-custodial-deaths-bring-in-law-against-torture-ratify-un-convention-against-torture-chri-urges-centre-159085 (Last visited on November 11, 2020). [10] Committee on Reforms of Criminal Justice System, Volume 1, (March 2003), ¶ 5.1. [11] See Indian Penal Code, 1860, §304B. [12] See Narcotic Drugs and Psychotropic Substances Act 1985, §35. [13] See Protection of Children from Sexual Offences Act, 2012, §29, §30. [14] Committee on Reforms of Criminal Justice System, Volume 1, (March 2003), ¶ 5.1. [15] Id., ¶5.9. [16] Noor Aga v. State of Punjab & Ors., (2008) 16 SCC 417. [17] Id. [18] Id., ¶53. [19] Seema Silk & Sarees and Anr. v. Directorate of Enforcement and Ors., 2008 (226) ELT 673 (SC), as cited in, Noor Aga v. State of Punjab & Ors, (2008) 16 SCC 417, ¶79. [20] Noor Aga v. State of Punjab & Ors, (2008) 16 SCC 417, ¶ 55. [21] Id., ¶ 71. [22] Syed Akbar v. State of Karnataka, 1979 CriLJ 1374, as cited in, Noor Aga v. State of Punjab & Ors, (2008) 16 SCC 417, ¶72. [23] Noor Aga v. State of Punjab & Ors., (2008) 16 SCC 417, ¶ 80. [24] Id. [25] Zahid Mukhtar & Ors. v. The State of Maharashtra & Ors., 2017 (2) ABR 140. [26] Id., ¶ 206 (per Gupte J.). [27] Id., ¶ 209 (per Gupte J.). [28] Id., ¶ 209 (per Gupte J.). [29] Protection of Children from Sexual Offences Act, 2012, §30. [30] Id., ¶ 210 (per Gupte J.). [31] Id., ¶ 211 (per Gupte J.). [32] Indian Penal Code, 1860, §304B, IPC. [33] Law Commission of India, Dowry Deaths and Law Reform: Amending the Hindu Marriage Act, 1955, The Indian Penal Code, 1860 and The Indian Evidence Act, 1872, Report No. 91, (August 1983). [34] Id., ¶ 1.9. [35] Id., ¶ 1.8. [36] Id., ¶ 3.2. [37] Bhola Ram v. State of Punjab, AIR 2014 SC 241. [38] Suresh Kumar v. State of Haryana, (2013) 16 SCC 353. [39] Law Commission of India, On Injuries in Police Custody, Report No. 113, (July 1985). [40] Id., ¶3.3. [41] Id. [42] Id. [43] Law Commission of India, On Custodial Crime, Report No. 152, (August 1994). [44] Id., ¶1.1. [45] Id., ¶1.5. [46] Id., ¶2.8. [47] Id., ¶2.8. [48] Id., ¶2.8. [49] Id., Appendix 1. [50] Id., Appendix 1. [51] Munshi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402. [52] Law Commission of India, On Custodial Crime, Report No. 152, (August 1994), Appendix 1. [53] Id., ¶4.12. [54] Id., ¶14.16. [55] Law Commission of India, On Review of the Indian Evidence Act, 1872, Report No. 185, (March 2003). [56] Law Commission of India, On Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation, Report No. 273, (October 2017). [57] The Prevention of Torture Bill, 2017, §3. [58] State of Uttar Pradesh v. Ram Sagar Yadav, AIR 1985 SC 416. [59] Id., ¶20. [60] State of Madhya Pradesh v. Shyamsunder Trivedi & Ors, (1995) 4 SCC 262. [61] Id., ¶17. [62] Id., ¶17. [63] DK Basu v. State of West Bengal, AIR 1997 SC 610. [64] Id., ¶9. [65] Id., ¶22. [66] Id., ¶41. [67] Id., ¶28. [68] Id., ¶55. [69] Munshi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402. [70] Id. [71] See, Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors., AIR 2003 SC 4567; Dalbir Singh v. State of UP & Ors., AIR 2009 SC 1674. [72] Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors., AIR 2003 SC 4567, ¶7. [73] Munshi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402. [74] Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors., AIR 2003 SC 4567, ¶8; Munshi Singh Gautam & Ors. v. State of MP, AIR 2005 SC 402, ¶8. [75] Sube Singh v. State of Haryana & Ors., AIR 2006 SC 1117.