Ex-SC judges believe use of torture is prevalent in criminal justice system

Several former Supreme Court judges believed that the practice of torturing an accused was rampant in the criminal justice system, according to a report released by the Centre on Death Penalty of the National Law University, with one judge even pointing out that hardened criminals would not yield to "mere casual questioning".

In the report -- "Matters of Judgment" -- a study on the criminal justice system and death penalty in India, one of the judges said he was in dismay when during an event at the National Judicial Academy, Bhopal, he found out that the majority of the participating judges were of the view that the truth behind a crime would not come out unless the police had the power to torture.

"Five of 12 former judges, justifying torture, said the police resorted to it because the investigating agencies worked under strenuous conditions, without adequate time and independence to investigate cases," the report said.

The study also records the acknowledgement and concern of the former apex court judges about the "crisis" in the country's criminal justice system, on account of the widespread prevalence of torture, fabrication of evidence, the abysmal quality of legal aid and wrongful convictions.

Of the 39 former judges, who discussed the prevalence of torture in the criminal justice system, 38 believed it to be rampant, while one former chief justice of India was of the opinion that there was no torture.

"Seasoned criminals...They will not yield to mere casual questioning," said a judge, who has served in appellate courts for 22 years. 

Another former judge said the mindset of the police was affected by how poorly they were treated by VIPs when they were deployed on law-and-order duties.

"This, in turn, affects them (police) as when it comes to crimes, they will pick up small men and adopt third-degree methods to elicit a confession and make them accused, whether they have committed the crime or not," he was quoted as saying in the report.

The probe agencies either being "lazy" or "not having enough manpower" or "not knowing the methods of scientific investigation" were also cited by some of the judges to explain the prevalence of torture in the criminal justice system.

However, 17 of the judges believed that torture undermined the system and said they were inherently opposed to it, irrespective of its utility.

They also felt that the use of torture was an unreliable way of getting to the truth and recalled that it had led to undesirable results at times.

A former chief justice of India said because of the prevalence of torture in the criminal justice system, he would tend to take the recovery statements (recorded by the probe agencies) "with a pinch of salt".

Of 58 judges, 38 were of the view that the investigating agencies abused section 27 of the Indian Evidence Act, 1872, which dealt with the recovery of evidence.

Twelve judges were aware that the provision was used to subliminally increase the use of torture as an investigative technique and therefore, were cautious of such recoveries as torture was often the starting point of an investigation.

"We have mentioned the names of the judges but have not disclosed who said what. This is to ensure that the focus stays on the issue and does not shift to the person," Anup Surendranath, the director of the centre, said while releasing the report.

The 60 judges interviewed by the study have adjudicated 208 death penalty cases between them, from 1975 to 2016.