Anti-torture law

Will implement the existing recommendations of various commissions go a long way?

#GS2 #Governance #Social Justice

 

Context: 

The alleged torture of a father­son duo in Sattankulam town in Tamil Nadu has once again given rise to the demand for a separate law against torture.

 

Torture in Indian Laws

  • Torture is not defined in the Indian Penal Code, but the definitions of ‘hurt’ and ‘grievous hurt’ are clearly laid down. 
  • Though the definition of ‘hurt’ does not include mental torture, Indian courts have included psychic torture, environmental coercion, tiring interrogative prolixity, and overbearing and intimidatory methods, among others, in the ambit of torture. 
  • Voluntarily causing hurt and grievous hurt to extort confession are also provided in the Code with enhanced punishment. 
  • Under the Code of Criminal Procedure, a judicial magistrate inquires into every custodial death. 
  • The National Human Rights Commission has laid down specific guidelines for conducting autopsy under the eyes of the camera. 
  • India signed the UN convention on October 14, 1997, but has not yet ratified it. 
  • Sections 330 and 348 of the Indian Penal Code, 1860 do not particularly criminalize torture instead it penalizes certain acts that involve torture. 
  • In addition, the provisions grant immunity to the police officers, armed forces personnel, and public servants unless the government approves their prosecution.
  • India has also expressed its reservations against the following provisions of the convention:
    • Inquiry by the CAT (Article 20)
    • State complaints (Article 21)
    • Individual complaints (Article 22)

 

Law Commission’s 273rd Report Key Recommendations:

  • India should ratify the UN Convention to tide over the difficulties in getting criminals extradited.
  • Amendments to the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872, to accommodate provisions regarding compensation and vesting the burden of proof on accused officers that they are not involved in torture.
  • Stringent punishment to curb the menace of custodial torture, including life imprisonment and fine.
  • Courts should decide on compensation after taking into account various facets of each case, such as the nature, purpose, extent, and manner of injury, including mental agony caused to the victim. The courts will bear in mind the socio-economic background of the victim and will ensure that the compensation covers the expenses on treatment and rehabilitation.
  • An effective mechanism to protect the victims of torture, the complainants, and the witnesses against possible threats, violence, or ill-treatment.
  • The State should own the responsibility for the injuries caused by its agents on citizens, and that the principle of sovereign immunity cannot override the rights assured by the Constitution.

 

Court Rulings

  • The Supreme Court judgment in DK Basu v. State of West Bengal was a turning point in the evolving jurisprudence on custodial torture. 
  • The Court’s decision in Nilabati Behera v. State of Orissa made sure that the state could no longer escape liability in public law and had to be compelled to pay compensation. 
  • Similarly, the Court has held in many cases that policemen found guilty of custodial death should be given the death penalty. Therefore, there is neither a dearth of precedents nor any deficiency in the existing law. 

 

Prevention of Torture Bill, 2017

  • India had earlier introduced the Prevention of Torture Bill, 2010 in the Lok Sabha on April 26, 2010. 
  • While Lok Sabha passed the bill, Rajya Sabha referred it to a Select Committee. The Select committee had proposed to amend the bill to make it more compliant with the torture convention. 
  • The bill then lapsed and the government also did not show any urgency to enact a revised torture bill. 
  • In addition, India has also refused to repeal the Armed Forces Special Powers Act (AFSPA), which enables Armed Forces to perpetrate human rights abuses in the North East eastern states and Kashmir.

 

In its 273rd report, the law commission had provided a draft Prevention of Torture Bill, 2017. The key features of this bill are as follows:

  • This bill makes provisions for punishment (including life term) to officials for any kind of torture and inhuman treatment.
  • It makes provisions for compensation to victims of torture. The courts will decide upon the justifiable compensation after taking into account the various facets of the case.
  • The courts will bear in mind the socio-economic background of the victim and ensure that the compensation helps the victim to bear the expenses on medical treatment and rehabilitation.

 

Anomalies in the Prevention of Torture Bill

  • A fresh draft of the Prevention of Torture Bill was released in 2017 for seeking suggestions from various stakeholders. 
  • The Bill was not only vague but also very harsh for the police to discharge its responsibilities without fear of prosecution and persecution. It was inconsistent with the existing provisions of law. 
  • It included ‘severe or prolonged pain or suffering’ as a form of torture but that was left undefined. 
  • The proposed quantum of punishment was too harsh. 
  • Though the 262nd Law Commission Report recommended that the death penalty be abolished except in cases of ‘terrorism­related offenses’, the Bill provided for the death penalty for custodial deaths. While most countries have deleted or are deleting the death penalty from their statute books, for India to enact fresh legislation with the death penalty as the ultimate form of punishment shows its continuing passive mindset towards human life.
  • In the Bill, the proposed registration of every complaint of torture as an FIR and blanket denial of anticipatory bail to an accused public servant was not reasonable. 
  • The bail can be refused in appropriate cases, but excluding an investigating officer, struggling every day to meet the challenges of emerging crime, from availing such an opportunity shall be no less than putting him on the highest pedestal of mistrust. 
  • Overall, the proposed Bill was not a reformative one. It was vague, harsh, and retributive in nature. 
  • In 2017, the Central government admitted in the Supreme Court that it was seriously considering the 273rd Report of the Law Commission that recommended ratification of the UN Convention against Torture and other Cruel, Inhumane, or Degrading Treatment (CAT). CAT was signed by India but is yet to be ratified. 
  • Except for minor discrepancies, the prevalent law in India is adequate and well in tune with the provisions of CAT.

 

 United Nations Convention against Torture

  • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”) was one of the first documents at the international level to address the issue of torture. 
  • It was adopted by the General Assembly of the United Nations on 10 December 1984. 
  • The Convention entered into force on 26 June 1987. The convention condemns torture, inhuman and degrading treatment of prisoners by public officials. 
  • The convention was the result of deliberations after the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly on 9 December 1975. 
  • The main objective is to prevent torture and to ensure that effective remedies are available to the victims.

 

United Nations Convention against Torture

  • It was adopted by the General Assembly of the United Nations on 10 December 1984. 
  • The Convention entered into force on 26 June 1987. 
  • The convention condemns torture, inhuman and degrading treatment of prisoners by public officials.

 

 Some important articles of the convention:

  • Article 3: prohibition on deportation or extradition to torture and other cruel, inhuman, or degrading treatment or punishment.
  • Article 4: criminal liability for torture. States need to ensure that all acts of torture are offenses under their criminal law.
  • Article 10: education and information for the prevention of torture
  • Article 12: procedures of investigation, injury, and trial
  • Article 13: protection to victims and witnesses.
  • Article 14: compensation to and rehabilitation of victims of torture.
  • Article 15: criminal offense of utilizing information from torture.

The obligation of states under this convention

The states which are party to this convention are required to take the following steps: 

  • Take preventive actions against torture like criminalizing acts of torture enacting domestic laws and regulations to respect the human rights of the alleged victim and the accused.
  • Need to outlaw torture and refrain from using ‘higher orders’ or exceptional circumstances’ as excuses for committing acts of torture.
  • According to some critics, State is also responsible for torture committed by private individuals like racist attacks, domestic violence. But the convention does not impose enough obligations on the state parties to prevent such abuses.

 

Other international conventions against torture

Torture and other cruel and inhuman treatments of humanity are strictly prohibited under international law. The following international conventions are prohibiting torture:

  • The Geneva Conventions
  • The International Covenant on Civil and Political Rights (Article 7)
  • The Universal Declaration of Human Rights (Article 5)
  • Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975).

   

Way Forward

  • We first need to implement the law as we have it. 
  • The investigations, the prosecutions are not fair. These must be rectified first. 
  • The police need to be trained better. 
  • The temptation to use third-­degree methods must be replaced with scientific skills. 
  • The government may take steps to ratify the convention against torture by enacting revised prevention of torture bill by clearing the anomalies in the parliament.
  • The need of the hour is to strike at the root cause of the problem and implement recommendations of various commissions to bring in necessary reforms.
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