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Prevention of Torture Bill: A Feeble Attempt

Despite signing the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment in 1997, India is ratifying it only now with parliamentary consideration of the Prevention of Torture Bill, 2010. However, the bill fails to comply with the basic requirements of the UN Convention. In fact, it shows up the government's reluctance to give effect to the Convention and resolutely address the endemic problem of torture. The bill needs serious reworking if a new law has to have any effect on the widespread use of torture and other cruel, inhuman and degrading treatment routinely meted out to suspects and detainees by law enforcement officials.

COMMENTARY

Prevention of Torture Bill: A Feeble Attempt

Ravi Nair

Despite signing the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment in 1997, India is ratifying it only now with parliamentary consideration of the Prevention of Torture Bill, 2010. However, the bill fails to comply with the basic requirements of the UN Convention. In fact, it shows up the government’s reluctance to give effect to the Convention and resolutely address the endemic problem of torture. The bill needs serious reworking if a new law has to have any effect on the widespread use of torture and other cruel, inhuman and degrading treatment routinely meted out to suspects and detainees by law enforcement officials.

Ravi Nair (rnairsahrdc@gmail.com) is with the South Asia Human Rights Documentation Centre, New Delhi.

Economic & Political Weekly

EPW
june 19, 2010 vol xlv no 25

I
ndia signed the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment1 (hereinafter “Convention”) on 14 October 1997 but did not ratify it.2 Ratification through the passing of appropriate domestic legislation is essential for the Convention to come into effect.

Now, nearly 13 years later, the Prevention of Torture Bill, 2010,3 seeks to complete that long pending process. However, the text of the bill only reinforces the impression that New Delhi has never been sincere either about giving effect to the Convention or resolutely addressing the endemic problem of torture in this country. In its present form the bill will have little impact on the widespread use of t orture and other cruel, inhuman and degrading treatment routinely meted out to suspects and detainees by law enforcement officials in India.

Investigation, Prosecution, and Punishment

The bill’s requirement of prior government sanction in order to prosecute a public servant accused of torture runs afoul of the Convention’s requirement of effective,4 impartial and prompt investigation,5 prosecution and punishment.6

Despite the Convention’s clear directives intended to “eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment”,7 Section 6 of the bill states: “No court shall take cognisance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction” of the relevant central, state, or other authority competent to remove the public servant in question from her/his office.8

It is not possible to ensure effectiveness, impartiality, and promptness when the government authority of which an alleged perpetrator is an employee must provide authorisation to carry out any prosecution. Further, any prosecutions would inherently be biased from the outset since only those desired by the requisite government authority would go forward. Similarly, given the inherent resistance to providing sanction, even if sanction were

granted it would only come after struggle and inevitable delay.

Moreover, the requirement in Section 5 of the draft bill that a torture victim file a complaint within six months of any alleged torture also wrongfully inhibits effective investigation and prosecution. Those tortured during arrest or detention often remain in custody for long periods, are often threatened with further torture and/or ill-treatment if a complaint is made, and are therefore unlikely to be able to complain within the specified p eriod. The inevitable physical and mental trauma faced by victims and the fear of r eprisals would also prevent them from filing prompt complaints. The bill takes none of these factors into account.

These legal barriers to investigation and prosecution will only lead to continued immunity for perpetrators,9 as evidenced10 by the long history of the failure of the central and state governments to authorise prosecutions under the parallel provisions of the Criminal Procedure Code (CrPC)11 and the Armed Forces Special Powers Act (AFSPA).12

Compensation

Under Article 14 of the Convention, victims must have “an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible”.13 The bill is silent on this.

The Committee against Torture – which monitors states’ compliance with the Convention – has explained that state parties must “offer full reparation, including fair and adequate compensation…and provide [victims] with medical, psychological and social rehabilitation.”14 The United Nations Special Rapporteur on the Right to Reparation has additionally stated that victims of abuse must receive restitution, compensation, rehabilitation, and guarantees of non-repetition, and that compensation be given for the following:

  • (a) Physical or mental harm;
  • (b) Pain, suffering and emotional distress;
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  • (c) Lost opportunities, including education;
  • (d) Loss of earnings and earning capacity;
  • (e) Reasonable medical and other expenses of rehabilitation;
  • (f) Harm to property or business, including lost profits;
  • (g) Harm to reputation or dignity;
  • (h) Reasonable costs and fees of legal or expert assistance to obtain a remedy.15
  • The bill does not provide any mechanism by which a victim of torture can seek or obtain compensation, let alone broader reparations.16 Although the Constitution grants the Supreme Court and high courts the authority to issue compensation awards for torture17, the Supreme Court has greatly limited the scope of compensation awards in fundamental rights cases, created excessively high standards for such awards, and held that all awards are left to the court’s discretion.18 Indeed, the Indian government made a declaration when ratifying the International Covenant on Civil and Political Rights that “under the Indian Legal System (sic), there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State”.19

    Restrictive Definition

    The bill has a much more limited definition of torture than the Convention, which defines torture as:

    any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.20

    Instead, the bill states as follows:

    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 for the purposes to obtain from him or a third person such information or a confession 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:
  • Whereas the Convention’s definition includes actions carried out for three main purposes (obtaining information, punishment, or intimidation/coercion), the bill only includes the first. Additionally, the degree of harm required to constitute torture is more severe in the bill. Whereas the Convention’s threshold starts from “pain or suffering”, the bill states that only actions that cause actual damage or danger constitute torture. The bill relies on the definition of “grievous hurt” found in the Indian Penal Code, which includes:

  • “Emasculation.
  • Permanent privation of the sight of either eye.
  • Permanent privation of the hearing of either ear.
  • Privation of any member or joint.
  • Destruction or permanent impairing of the powers of any member or joint.
  • Permanent disfiguration of the head or face.
  • Fracture or dislocation of a bone or tooth.
  • Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits.”21
  • All elements of this definition include physical harm that is visible upon and after its infliction. This is highly restrictive. For example, there are certain abuses such as sleep deprivation, forced positions, sexual humiliation, limited starvation, sensory deprivation, and threats of abuse, which may not cause long-term or permanent physical damage nor pose any danger to health, but would still constitute torture under the Convention in view of the immense pain and suffering caused.22 The bill does not take this into account and effectively gives law enforcement officials enough room to use methods that leave no visible marks of torture but still cause immense pain and suffering during and after infliction.

    Moreover, Section 4 of the bill infuses an additional – and restrictive – element into the definition of torture. It seeks to inflict punishment:

    Where the public servant referred to in Section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person:

    (a) for the purpose of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and

    (b) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever (emphasis added).

    Whereas the Convention includes infliction of harm based on discrimination as one alternative purposive element of torture, this Section requires both elements to be present. Thus, someone who inflicts grievous hurt only to extract information cannot be punished for torture; neither can someone who only inflicts grievous hurt because of animosity toward dalits or Muslims, for example. Both elements – desire to extract information and animosity towards certain groups or kinds of people

    – have to be present for such an act to be considered as torture. This is neither logical nor acceptable. A person may be tortured for the mere reason that he or she belongs to a group detested by a torturer and has been taken into custody only for that reason. Another person may be tortured irrespective of his or her caste, religion or other characteristic, the torturer wishing merely to elicit information or force a confession.

    Furthermore, the draft bill does not include offences less severe than torture, including those in the Convention, namely: complicity and participation in torture,23 and cruel, inhuman or degrading treatment.24 Although it makes reference to “abetting” and “acquiescence”, those terms appear only in the context of a requirement that an act of torture must have some connection to a public official.

    Derogation

    Section 3 of the draft provides for possible derogation in violation of the requirement under Article 2 of the Convention that: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. …An order from a superior officer or a public authority may not be invoked as a justification of torture.”25 The Committee against Torture has noted that the non-derogable nature extends to cruel, inhuman or degrading treatment and incorporates most of the Convention’s relevant articles.26

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    In contrast, Section 3 of the bill states that it does not apply to “any act, which is inflicted in accordance with any procedure established by law or justified by law”.27 The ambiguity of this language could allow the government to enact new legislation prescribing acts which would otherwise constitute torture and/or allow those who commit torture to claim they acted in the name of, for instance, criminal investigation in a terrorism case. While Article 1 of the Convention states that the torture definition “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”,28 it does not imply, as the bill does, that torture itself can be part of lawful sanctions.

    Absent Provisions

    In addition to the above flaws, there are various other important components of the Convention that are not contained in the bill.

    Statements Obtained Through Torture:

    Article 15 of the Convention requires the exclusion in all proceedings of any statements made as a result of torture except as evidence against an accused torturer. The protection against self-incrimination found in Article 20(3) of the Indian Constitution would only prohibit the inclusion, in a criminal trial, of any statement by an accused person against herself/himself made under compulsion, as a result of torture or otherwise.29 A statement made, for example, by accused person X as a result of torture that was incriminating against person Y could still be admitted into evidence under the Constitution.

    Moreover, many government agencies that are not necessarily involved in interrogations that would lead to evidence in criminal cases, such as the Directorate of Enforcement, Intelligence Agencies, Directorate of Revenue Intelligence, have been noted by the Supreme Court to commit torture and other ill-treatment.30 Furthermore, in practice it is difficult for a detainee to prove that an incriminating statement was made under compulsion. Indeed, rules such as those under the Maharashtra Control of Organised Crime Act, 1999, for example, whereby confessions made to police are admissible as evidence,31 only create greater incentives for officials to engage in torture.

    Expulsion, Refoulement, and Extradition to Torture: The bill is silent on the requirement of Article 3 of the Convention that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”32 These prohibitions are particularly pertinent given that India has not ratified the 1951 Refugee Convention33 and does not have any national legislation for the protection of refugees.34 The prohibition on extradition is also particularly apt in the current global context of growing instances of renditions for torture.

    Review Mechanisms: The bill also fails to provide for the establishment of appropriate review mechanisms of interrogation practices and custodial treatment.35 Similarly, it does not provide any mechanisms to ensure proper education and training of law enforcement officers, medical personnel, public officials and others interacting with those arrested or detained.36 The absence of such provisions dilutes its capacity to prevent torture in practice.

    Prompt Access to Legal Counsel: Given the important role lawyers can play in preventing custodial abuse,37 the bill fails to provide mechanisms to ensure access to legal counsel immediately following arrest or detention. Prolonged preventive detention, failure to produce individuals before a magistrate within the constitutionally mandated 24 hour period, and failure to provide prompt access to a lawyer to those detained38 greatly enhance the risks of torture and other abusive treatment in custody,39 and also increase the risk that de

    de

    --
    tainees will make false claims of torture.40

    Optional Protocol: It is silent about the Optional Protocol to the Convention against Torture.41 The Optional Protocol calls for (a) the establishment of an international Subcommittee on Prevention that can make visits and recommendations related to protection against, (b) the creation of independent national preventive mechanisms by State Parties, and (c) the granting of access by State Parties to the subcommittee and national bodies to visit and monitor places of detention.42 If the government intends to ratify the Convention and is truly concerned about preventing torture, it should also ratify the Optional Protocol.

    Conclusion and Recommendations

    Torture, recognised by the Supreme Court as “a naked violation of human dignity and degradation”,43 remains a serious problem in India. The UN Special Rapporteur on Torture has repeatedly received allegations of torture, and although denied access to India by the government since 1993, has condemned the widespread use of torture in the country,44 as have many other international organisations.45 The current draft of the bill falls short of ending these practices and meeting the requirements of the UN Convention.

    In the light of the above analysis, at a minimum the draft Prevention of Torture Bill, 2010 must be amended in the following ways in order to comply with the basic requirements of the Convention against Torture:

  • Remove the requirement of sanction for prosecution of public officials accused of torture and other ill-treatment found in Section 6.
  • Provide a clear and appropriate mechanism for victims of torture and other illtreatment to seek and obtain compensation from the government for the abuse they have suffered.
  • Eliminate the time limit prescribed for a victim of torture to file a complaint in Section 5.
  • Amend Sections 3 and 4 in order to delineate a clear and precise definition of prohibited actions under the act that at a minimum prohibits torture as well as cruel, inhuman or degrading treatment as defined in the Convention against Torture.
  • Ensure that the definition of torture at a minimum includes acts done for the purpose of extracting information, punishing, intimidating, or any reason based on discrimination; and ensure that these varying purposes are alternative elements of punishable torture rather than additional elements that all must be shown to allow for punishment.
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    COMMENTARY

  • Remove the exception from prosecution found in Section 3 for pain, hurt, or danger caused by acts inflicted in accordance with procedures established by law or justified by law.
  • Add a prohibition on the use of any evidence obtained through torture or cruel, inhuman or degrading treatment in any court, investigative authority, quasi judicial authority or other tribunal.
  • Add a prohibition on the expulsion, return, or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment.
  • Provide for the establishment of a comprehensive mechanism for monitoring and evaluating interrogation methods and conditions of custody with an aim towards preventing torture.
  • Provide for the establishment of a comprehensive mechanism to ensure proper education and training of civil and military law enforcement personnel, medical personnel, public officials, and others involved in arrest, detention, and imprisonment.
  • Provide for the assurance of prompt and where necessary free legal counsel to all individuals arrested or detained.
  • Provide for the ratification by India of the Optional Protocol to the Convention against Torture.
  • Extend a standing invitation to the UN Special Rapporteur against Torture to visit India.
  • Notes

    1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 10 December 1984. Available at: http://www2.ohchr.org/english/ law/cat.htm (hereinafter “Convention against Torture”).

    2 Status of ratification as on 6 June 2010. See, http://treaties.un.org/Pages/ViewDetails.aspx?src =TREATY&mtdsg_no=IV-9&chapter=4&lang=en.

    3 The Prevention of Torture Bill, 2010, Bill No 58 of 2010. Available at: http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/torture%20 58%20of%202010.pdf.

    4 Convention against Torture, Article 2.

    5 Convention against Torture, Articles 12, 13.

    6 Convention against Torture, at Articles 12, 13;

    Concluding Observations of the Committee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009; Conclusions and recommendations of the Committee against Torture: Kyrgyzstan, A/55/44, para. 75c, 18 November 1999.

    7 General Comment No 2, Committee against Torture, CAT/C/GC/2, 24 January 2008, para 4. 8 The Prevention of Torture Bill, Section 6.

    9 Defusing the Ticking Bomb Scenario: Why We Must Say No to Torture, Always, Association for the Prevention of Torture, 10, 2007. Available at: http:// www.apt.ch/component/option,com_docman/task, cat_view/gid,115/Itemid,99999999/lang,en/

    28

    10 See, e g, Arun Ferreira, “A Critical Appraisal of the Prevention of Torture Bill, 2010”, Economic & Political Weekly, Vo XLV, No 21, 22 May 2010. 11 Code of Criminal Procedure, 1973, Section 197.

    12 The Armed Forces (Special Powers) Act, 1958, Section 6. 13 Convention against Torture, Article 14. 14 See, e g, Concluding Observations of the Commit

    tee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009.

    15 Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Special Rapporteur Theo van Boven, E/CN.4/Sub.2/1993/8, 2 July 1993.

    16 See Convention against Torture, Article 14. 17 See Nilabati Behera vs State of Orissa, 1993 AIR 1960. 18 See, e g, M C Mehta vs Union of India, 1987 AIR 1086; Rudul Sah vs State of Bihar, 1983 AIR 1086. 19 Reservation by the Government of the Republic of India to Article 9, ICCPR (right to liberty and security of person). Available at: http://treaties. un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-3&chapter= 4&lang=en#EndDec.

    20 Convention against Torture, Article 1. 21 Indian Penal Code, Section 320.

    22 See,eg, Letter from the American Civil Liberties Union to Members of the United Nations Human Rights Committee, 2 September 2005. Available at: www2.ohchr.org/english/bodies/hrc/docs/ngos/ aclu.doc; See also, Arun Ferreira, “A Critical Appraisal of the Prevention of Torture Bill, 2010”, Economic & Political Weekly, Vol XLV, No 21, 22 May 2010.

    23 Convention against Torture, Article 4.

    24 Convention against Torture, Article 16. 25 Convention against Torture, Article 2(2, 3).

    26 General Comment No 2, op cit, at para 6. 27 Prevention of Torture Bill, Section 3.

    28 Convention against Torture, Article 1.

    29 Smt Selvi and Ors vs State by Koremangala Police

    Station Crl. WP No 64 of 2004, at 3. 30 D K Basu vs State of West Bengal, (1997) 1 SCC 416. 31 “MCOCA”, Section 18. 32 Convention against Torture, Article 3.

    33 See Ratification of International Human Rights Treaties – India, University of Minnesota Human Rights Library. Available at: http://www1.umn. edu/humanrts/research/ratification-india.html.

    34 See, e g, T Ananthachari, “Refugees in India: Legal Framework, Law Enforcement and Security” in Indian Society of International Law Yearbook on International Humanitarian and Refugee Law, 2001.

    35 Convention against Torture, Article 11.

    36 Convention against Torture, at Article 10.

    37 See The Constitution of India, Article 22(1); D K Basu vs State of West Bengal, (1997) 1 SCC 416; Legal Safeguards to Prevent Torture: The Right of Access to Lawyers for Persons Deprived of Liberty, Association for the Prevention of Torture, March 2010. Available at: http://www.apt.ch/component/option,com_docman/task,cat_view/ gid,132/Itemid,99999999/lang,en/.

    38 See, e g, Country Reports on Human Rights Practices, 2009: India, United States Department of State, 11 March 2010. Available at: http://www. state.gov/g/drl/rls/hrrpt/2009/sca/136087.htm.

    39 See, e g, Report of the Special Rapporteur on Torture, Theo van Boven, E/CN.4/2003/68, 17 December 2002.

    40 See, e g, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Maldives, CAT/OP/MDV/1, para. 62, 26 February 2009.

    41 See Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 18 December 2002, entered into force 22 June 2006, A/RES/57/199.

    42 Id.

    43 D K Basu vs State of West Bengal, (1997) 1 SCC 416.

    44 See, e g, Report of the Special Rapporteur on Torture, Nigel S Rodley, E/CN.4/1998/38, 24 December 1997. 45 See, e g, Country Reports on Human Rights Practices, 2009: India, United States Department of State, 11 March 2010. Available at: http://www.state. gov/g/drl/rls/hrrpt/2009/sca/136087.htm; “India: Time to End Torture: Open Letter to Indian Authorities,” ASA 20/01 3/2009. Available at: http://www. amnesty.org/en/library/asset/ASA20/013/2009/en/ b194d11a-dcd1-4291-bc67-007b55fe7685/ asa200132009eng.html.

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