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PUCL, 20 Aug., 2010

Prevention of torture: A weak law won’t do

-- Pushkar Raj

The Lok Sabha passed the Prevention of Torture Bill, 2010, on May 6, 2010 and is now pending before the Rajya Sabha. It has long been overdue as torture is recognised as a heinous practice that needs to be criminalised.

To this end, the United Nations adopted the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) that was opened for signature, ratification and accession by the General Assembly in 1984 and came into force in 1987.

India signed the convention in 1997 pending ratification preceded by the enabling domestic legislation.Given the frequency of torture in India, there should have been a law in place against torture long back. According to the National Human Rights Commission, an average of 158 people died every year in police custody from 1994 to 2008.

Deaths in judicial custody hovered around over a thousand per year during the same period. It is a fact that punishment for custody death is more an exception rather than the rule. If an attempt to punish a perpetrator is made at all, it takes decades. By then, either he is past active life or is dead. Judicial custody deaths are not even considered worth prosecuting as only one-sided story emerges from the four walls of the jail, protecting the perpetrators of the crime and thereby encouraging the culture of impunity.

Otherwise, what is the explanation for increasing police and judicial deaths in the country year after year? For example in 1994-95, there were 111 police custody deaths and 51 judicial custody deaths. This number reached 188 and 1789 respectively for each in 2007-08.

It is apparent that to deal with such a widespread menace, we need a very strong law in accordance with the international standards set by the United Nations. However, the government has chosen to come up with a weak and inherently flawed Bill that at best could be described as a law in name only. It will make no difference at the ground level in curtailing torture as widely practiced by the internal security forces.

The Bill in question is a one-and-a-half page piece with five sections dealing with a clause each on definition, punishment and limitation for cognisance of offences. Though the statement of its intent reads “whereas India is a signatory to the United Nations Convention Against Torture; and whereas it is considered necessary to ratify the said convention and to provide for more effective implementation …”, the Bill completely omits the important provisions enumerated in the UN Convention such as ensuring that an order from a superior officer or a public authority may not be invoked as a justification for torture, ensuring that torture is an extraditable offence, establishing universal jurisdiction to try cases of torture, providing mechanisms to promptly investigate any allegation of torture, providing an enforceable right to compensation to the victims of torture and banning the use of evidence produced by torture in the courts, etc.

Torture as defined in the Bill is narrow and vague. It reads, “whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act which causes — (i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person is said to inflict torture.”

The definition does not make any reference to other cruel, inhuman or degrading, treatment or punishment. Nor are intimidation and coercion included in the Bill. The gamut of mental torture though mentioned, is left completely unaddressed.

While dealing with torture cases, UNCAT clearly states that there should not be any exceptions — not even war or a threat of war; internal political instability or any other public emergency may be invoked as a justification for torture. Yet, the Bill puts a ceiling of six months beyond which no court can take cognisance of any offence under this Act. This violates the existing law under the Criminal Procedure Code that does not put such a limitation in the case of grievous hurt caused to a person by any other citizen, thereby giving preferential treatment to public officials.

The situation is made worse with Section 197 of Cr PC that requires prior sanction from the government to prosecute public servants accused of torture and other human rights violations. Apparently, the Bill in the present form will not be an effective weapon to fight the curse of torture as it is practiced by state agencies. The Bill needs to be completely redrafted taking inputs of civil society groups, lawyers, academicians and above all, the concerned ordinary citizens who bear the brunt of torture without an effective remedy. This is the least that is expected from a democratic government.

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014