Custodial Torture: Legislative Vacuum?

Outrage erupted last month when a Tamil Nadu shopkeeper and his son died while being held by the police. Their alleged wrong-doing: criticizing the police for their handling of COVID-related restrictions.

Given the lack of a central legislation on custodial torture, the Supreme Court has been developing guidelines to address the issue for over two decades. This year, it may once again revisit its famous directions in DK Basu (1996). As we wrote last week, Senior Advocate Abhishek Manu Singhvi has filed an application requesting the Court to update DK Basu and take action to prevent custodial violence.

In his application, Sr. Adv. Singhvi prays for a series of directions intended to ensure that all cases of custodial death are investigated and prosecuted in a timely and independent manner. He requests the Court to issue detailed directions on everything from special public prosecutors to CCTVs in police stations.

Perhaps most importantly, he requests the Court to direct the Union to ratify the 1987 UN Convention against Torture. Although India is already a signatory to the Convention, ratification will require the Centre to pass a legislation to prevent custodial torture and other forms of police violence and to submit regular reports to a monitoring committee on the measures taken to prevent torture in India.

Unfortunately for Sr. Adv. Singhvi, the Supreme Court declined a similar application last year by former MP Dr. Ashwini Kumar. Dr. Kumar too had requested the Court to direct Parliament to pass a law against custodial torture.

While the Court recognized the need for such a law, it declined to intervene out of respect for the separation of powers. Chief Justice Gogoi’s Bench noted that Parliament was already drafting a bill based on recommendations of the Law Commission. It concluded that were it to issue directions, it would trespass into the legislature’s domain.

Unfortunately, previous attempts by Parliament to pass a legislation on torture have not been successful. The Prevention of Torture Bill, 2010 was criticized for its failure to meet international standards in its definition of torture; it also did not provide for an independent authority to investigate complaints. The Bill subsequently lapsed in the Rajya Sabha and the matter has not been addressed by the legislature since.

In light of the lacuna in the law and the pressing need for a comprehensive legislation on torture, how will the Court respond to Sr. Adv. Singhvi’s application?