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

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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:

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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,

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:

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

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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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june 19, 2010 vol xlv no 25