Monday, February 7, 2011

Redefining torture in Prevention of Torture Bill, 2010

Redefining torture

in New Delhi

The Rajya Sabha Select Committee's report attempts to correct some of the distortions in the Prevention of Torture Bill, 2010.

A demonstration in Bangalore on the International Day in Support of Victims of Torture.

THE Report of the Select Committee on the Prevention of Torture Bill, 2010, presented to the Rajya Sabha on December 6 has been hailed as a significant step forward in undoing the injustice caused by the hasty passage of the Bill without any debate in the Lok Sabha last year.

The Central government introduced the Bill in the Lok Sabha on April 26, 2010, to allow India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Lok Sabha passed it on May 6. The passage of the Bill, with members expressing no concern about its inability to prevent torture, disappointed human rights activists.

However, the Rajya Sabha adopted a motion on August 31 referring the Bill to a Select Committee, comprising 13 of its members, for examination. Chaired by Ashwani Kumar of the Congress, the committee included E.M. Sudarsana Natchiappan of the Congress and Brinda Karat of the Communist Party of India (Marxist). The committee held nine sittings and met the inmates of Tihar Jail, New Delhi, who had suffered torture at the hands of the police. It also heard the views of human rights activists and legal experts before finalising the report. The committee's recommendations merit sincere consideration by the government, especially in the light of the fact that eminent members of civil society have serious misgivings about the Bill.

The foremost of these is the very objective of the Bill, which was conceived merely as an enabling piece of legislation to ratify CAT. The United Nations General Assembly adopted CAT on December 9, 1975. India signed the Convention on October 14, 1997, when I.K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for a member-country to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujral's successors, Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation.

When the Manmohan Singh government, in its second term, introduced such a Bill in Parliament, its sudden change of heart surprised observers. A close scrutiny of the Bill, however, revealed that the government was more interested in symbolic conformity with the requirement of ratification rather than substantive compliance with CAT. India is one of the few countries that have not yet ratified CAT, and the inordinate delay in doing so appears to have eroded its moral standing within the international community. However, India's credibility would have suffered a serious dent if the Rajya Sabha too had passed the Bill as done by the Lok Sabha.

Restrictive provisions

The Bill seeks to provide punishment for torture inflicted by public servants or for torture with the consent or acquiescence of a public servant. As the Indian Penal Code (IPC) neither defines nor deals with torture, Clauses 3 and 4 of the Bill aim to fill this gap. Activists and experts find these provisions very restrictive. According to the Bill, to amount to torture, an act must either cause grievous hurt or must cause mental or physical danger to life, limb or health. Article 1 of CAT, however, defines torture as "severe pain or suffering whether physical or mental". The Working Group on CAT interpreted the word "severe" to mean "prolonged coercive and abusive conduct which, in itself, is not severe but becomes so over a period of time".

The Pre-Legislative Briefing Service (PLBS), a group of young legal experts consulted by the Rajya Sabha Select Committee, pointed out in its report that acts that in themselves may not constitute torture become so by reason of their repeated application. The PLBS pointed out that the term "grievous hurt" set the bar too high, without any recourse for persons suffering slightly less but still severe hurt. In particular, it brought to the committee's attention the following examples of severe hurt for which a police officer would be punishable under the IPC under Section 330 (dealing with ordinary hurt) but not under the torture Bill:

i) Stubbing a cigarette on the body of a person several times;

ii) Whipping a person with various instruments;

iii) Causing a person severe pain that lasts for less than 20 days.

In order to include many instances of torture within its ambit, the PLBS suggested that the words "grievous hurt" and "danger to life, limb or health" be replaced with "severe pain or suffering" in line with CAT. The Select Committee has accepted its suggestion and recommended that the definition of torture be suitably enlarged so as not to exclude acts generally known to be committed on persons in custody which cause severe physical and mental injury, pain, trauma, agony, and so on.

The committee is of the view that the definition of torture should not only be consistent with that of CAT but should also be enlarged to include specific and serious offences against the human body as enumerated in the IPC.

Anomaly in the Bill

The PLBS also revealed another anomaly in the Bill. Clauses 3 and 4 of the Bill indicate that only the person who actually committed the act of torture be punished. This implies that a public servant who abets, consents, acquiesces or conspires in an act of torture cannot be punished under the Bill. It "incentivises and legitimises the outsourcing of torture to private parties and provides the impunity for the public servant who planned or directed the torture," the PLBS reported. The Select Committee appears to have missed this subtle distinction between a public servant who commits torture and the one who simply abets or attempts it, and the need to punish both.

The Select Committee, however, has recommended that the definition of public servants should be enlarged to include those employed in government companies or any institution or organisation, including educational institutions under the control of the Union and State governments.

The committee has recommended that a minimum punishment of three years be provided to make the law more deterrent. Similarly, it has proposed that a minimum fine of Rs.1 lakh be imposed on the torturer. The Bill does not provide for any minimum punishment for torture, thus leaving the scope for lesser punishments not consistent with the gravity of the offence of torture.

The committee has also made recommendations for suitable provisions in the Bill to rehabilitate victims of torture. It feels the Bill should indicate guidelines to be followed to arrive at a fair and adequate compensation to the victim, and in case of death, to his or her dependants.

Children of torture victims and children affected by various social disorders at a summer camp in Alagarkoil near Madurai in May 2009.

The Bill implies that an act of torture is not punishable unless it is committed for the purpose of extracting a confession and on the grounds of religion, race, and so on, of the victim. The PLBS suggested that the conjunctive clause "and" was inappropriate because it had the effect of making a narrow definition of punishable torture. The PLBS suggested that an act of torture committed by a public servant – in his public capacity – must be punishable regardless of the reason for which that act was committed. The Select Committee has not found it necessary to deal with these suggestions.

Clause 5 of the Bill states that no court shall take cognisance of torture unless the complaint is made within six months from the date on which the offence is alleged to have been committed. The PLBS suggested that this clause be deleted, as the limitation period of six months imposed an arbitrary restriction on cognisance of cases relating to torture by courts. The Standing Committee, however, has recommended that a liberal limitation period of two years from the date on which the alleged offence was committed for filing of the complaint would give sufficient time to enable the victim of torture to initiate proceedings against those responsible for torture. The committee has also considered it necessary to vest the discretion with the court to entertain complaints even beyond the period of two years so as to advance the ends of substantive justice.

Clause 6 of the Bill requires prior sanction for the prosecution of a public servant accused of torture. The committee feels that there is a need to retain the provision of prior sanction of a competent authority before proceeding against the public servant concerned so as to insulate honest public servants from false, frivolous, vexatious and malicious prosecution. At the same time, the committee has opined that such a provision should not be used to shield those officials who have, in fact, intentionally tortured or abetted the torture of individuals.

It, therefore, has recommended a provision in the Bill under which if the requested sanction is not granted within a period of three months from the date of application, it would be deemed to have been granted. This, the committee hopes, will help ensure that the right of the victim is not lost owing to procedural delays and he is not made to run from pillar to post to get justice.

The committee has recommended that sanction in blatant cases of torture should be the norm and where sanction to prosecute is declined, the said decision should be supported by reasons, and the decision must also be appealable. The committee also wants the trial of offences under the Bill to be concluded within one year from the date of cognisance of the offence. It has urged Parliament to include in the Bill suitable provisions to protect victims, complainants and witnesses.

Observers wonder whether the government will revise the Bill in the light of the Standing Committee's significant recommendations.


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