Torture in custody

Published November 7, 2022
The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

IN the D.K. Basu case, the Indian supreme court, while discussing custodial torture, observed, “Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. … Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”

The experience of custodial torture has perturbed Senator Azam Swati who has appealed to the chief justice of Pakistan to inquire into his allegation of being stripped and tortured while in FIA custody. Similarly serious allegations were levelled by PTI’s Shahbaz Gill who asserted he was tortured, stripped and abused in custody. Journalist Jameel Farooqi has also alleged custodial tribulations.

Custodial violence is rampant in Pakistan. Justice Project Pakistan has identified thousands of reported incidents of torture. In 2016, Human Rights Watch also highlighted sickening incidents of torture in police custody. If there are incidents of politicians and journalists being tortured, imagine the plight of ordinary citizens arrested by police on allegations of wrongdoing. Unfortunately, their excruciating ordeal goes mostly unnoticed.

Article 9 of the Constitution grants protection of life. The right to life is an inalienable, indivisible right; it cannot be slashed by any means. The term ‘life’ includes the right to live free from state-sponsored torture and intrusion of the state. By all means, custodial torture is an egregious violation of Article 9.

Moreover, Article 14 prohibits its use. Additionally, the right to dignity has been enshrined in our constitutional philosophy as inviolable. Custodial torture is an affront to human dignity, in fact, it makes protection granted by Article 14 inoperable.

Laws against torture have lost their relevance.

Pakistan is also lagging behind in fulfilling its international commitments. We ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2010. In 2019, the CAT Committee expressed grave concerns over the prevalence of custodial torture in Pakistan and also emphasised the need to prosecute police officers involved in custodial torture.

Also read: Imran decries 'custodial torture' of Azam Swati

Recently, the Torture and Custodial Death Bill, 2022, was passed by parliament, criminalising custodial torture. Under it, torture by public servants is a cognisable, non-compoundable and non-bailable offence. Undeniably, it is progress but the problem will stay if the law is not effectively enforced. Many laws prescribing remedies for police torture exist but they have lost their relevance due to minimal implementation.

For instance, the ‘district safety commissions’ envisaged by Police Order, 2002, are not functional. Moreover, there is minimal enforcement of Article 156 (d) of Police Order, 2002, which criminalises police torture. Also, Section 176 of the CrPC, which mandates a magisterial inquiry in all cases of custodial deaths, is rarely invoked.

To effectively prevent custodial torture, the powers of arrest need to be rationalised in Pakistan. In England, custodial torture was once regarded as a routine matter, but ultimately, it was done away with. In 1981, the Report of the Royal Commission recommended that the power to arrest without a warrant should only be allowed in limited circumstances, for instance, to prevent the suspect from destroying evidence, interfering with evidence, warning accomplices and repeating the offence. These suggestions were incorporated leading to a major reduction in custodial torture.

The courts are also required to exhibit more sensitivity and adopt a humanist rather than a mechanical approach, while dealing with cases involving custodial torture. Granting remand is a judicial function; it should be granted only on exceptional grounds. The reasons for remand must be disclosed. Any remand application which fails to do so or lacks supporting material should be rejected outright.

Pursuant to Article 4, our Constitution enforces the concept of rule of law that is rooted in the doctrine of specified powers. Public officials have no inherent power and can only exercise such power as vested in them by the law. The police while arbitrarily arresting and torturing citizens or barefacedly outsourcing them to some other law-enforcement agency outrageously violate this very safeguard granted to the citizen by the Constitution itself.

The bodily harms inflicted on Swati and others who have undergone similar trauma will heal but the grievous injury inflicted on their minds and soul may not. Such demonic episodes of custodial torture result in terrible fear in the minds of the common citizens. They become convinced that their lives are consistently under threat and that the protectors themselves are busy bludgeoning human rights to death.

The writer is a lawyer based in Lahore.

Published in Dawn, November 7th, 2022

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