Anti-Torture Laws in India
ANTI -TORTURE LAWS IN INDIA
- Joseph Antony Padikkala
In accordance with Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, the definition of torture is: “Torture means 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.
While the country gained Independence in 1947, it took nearly seventy years to establish a law that sought to uphold the fundamental right to life of a person in custody. The Prevention of Torture Bill was tabled in the year of 2010 and was the only legislation that was enacted solely for the regulation of custodial torture in the country. The case of D.K Basu v. State of West Bengal the Supreme Court gave specific guidelines as to the manner in which detainees were to be safeguarded. As per the judgement, the safeguards were that the detention is to be recorded, prompt access to a lawyer and produced before a magistrate within twenty- four hours of the arrest. The Bill sought to be the primary form of legislation that was to govern cases and matters in relation to torture and other cruel inhuman activities.
The said law was enacted with the intention to reduce the number of custodial deaths that were taking place in the country and in accordance with the directives of the UN convention on Torture and Other Cruel Activities. The Prevention of Torture Bill, 2010 laid down strict procedures with respect to the manner in which cases in relation to torture were to be treated upon enactment of the bill, and the manner in which it differed from the provisions that were laid down by the Indian Penal Code in relation to forcefully/coercing a confession.
The Prevention of Torture Bill, 2010 sought to punish any public official who inflicts harm to a person in custody. The Act lays down specific instances wherein a public official shall be held liable, namely:
1) When the act is committed in order to obtain a confession from the victim or any other information that implicates the person in custody.
2) When the Act is committed on the grounds such as religion, race, sex, language, caste or any other ground.
The Bill also lays down the due procedure that is to be followed in cases which are in relation to custodial torture. The bill clearly demarcates the manner in which nature of the crime is to be ascertained and due procedure that a victim is follow in order file a complaint with regards to the same. It also lays emphasis on types of torture and the remedies that are available to the victim in relation to the crime.
The said bill was passed to ratify India’s stance with regards to the UN convention on Torture and Other Cruel Activities as a member state of the United Nation. The government was criticised for both the implementation and the regulation of cases with respect to torture it is estimated that between the years 2010 – 2015, approximately 1500 hundred inmates died due to custodial torture. The government failed to pass the following bill due to which curtailing and conviction in cases related to torture were minimal.The bill largely reduced the functioning ambit to cases that involved crimes which were physical in nature and neglected the mental aspect that is associated with torture.
The bill did not lay down provisions which were to curb other forms of torture and was largely reduced to cases where grievous physical hurt was caused. It was also argued that as per the procedure laid down by the bill, proceeding can only started against public official after either the Central or State government approves of the same. This in turn leads to a certain amount of subjectivity and bias that arises out of the case and therefore the very intention or the remedy that is guaranteed by the bill will not be carried out in the right manner.
Section 330 and Section 331 of the Indian Penal Code deal with the aspect of forcing a confession by means of coercion. Even though certain provisions with regards to the IPC deal with the specific incidents that can be attributed to the broader concept of torture, there was no law which was solely formulated to regulate torture based crimes. Also the provisions prescribed by the IPC were strictly limited specific crimes while the victim is in custody, therefore it was imperative to legislate a law that would regulate custodial based torture crimes.
PREVENTION OF TORTURE BILL, 2017
While the Prevention of Torture Bill, 2010 laid out the basic framework that was to be adopted in order curb crimes in relation to the custodial torture, there were various loopholes that were present in the legislation that needed to be addressed for the safety of the detainees. The Prevention of Torture Bill, 2017 was the primary legislation that was enacted as law of parliament in relation to custodial torture in the country. It addressed issues in relation to the initial bill and the various reforms that were placed before by the government by the law commission. The Act was also altered to be more coherent in accordance with the UN convention of Torture and other Cruel activities as the previous Act fails to address various fundamental principles that were laid down in the convention with regards to widening the scope of crimes that were be brought under custodial torture.
The 2017 Act primarily seeks to widen the ambit with regards to the nature of cases that are to be treated as torture. It seeks bring cases which have an effect on the mental aspect of the victim and not only acts which are physical/grievous in nature.
The Amendment Act brought in a host of new provisions which were omitted in the initial bill that was tabled by the government in 2010. The newly amended bill prescribes a life term for the officials for any kind of inhuman treatment and not only with respect to injuries that were grievous/threatening in nature.The Act lays importance widening the ambit of cases that are to be brought under the same by providing damages against the mental trauma the detainee/victim is put through. While the Act prescribes damages, it leaves it to the discretion of the court as to the amount that is to be provided to each victim depending on the nature of the case.
In conclusion, it is imperative to understand that even though the 2017 amendment act provides for a variety of provisions which are mentioned under the UN convention against torture and other inhuman activities, it still fails to provide for certain integral aspects pertaining to the life of the detainee. The Act requires the case to be filed within six months of the crime, which in turn is a direct violation of convention as international law prohibits the statue of limitation in any case which is in relation to torture.
It is also to be noted that the following law doesn’t require the setting up of a separate body and cases in relation to the same come under the discretion of the respective criminal courts in the country. While the conviction with respect to custodial torture is still low due to the lack of transparency and reporting in the system, the stringent laws have brought down the rate of custodial deaths and in turn if enforced in the proper manner will help curtail custodial torture or any other torture based crimes to large extent. It is rather imperative that the country pass a law that duly addresses the issues that present in the current legislations.
REFERENCES :-
1. Anirudh, ‘Prevention of Torture Bill 2010’ (prsindia, 12 Aug 2010) <https://www.prsindia.org/theprsblog/prevention-torture-bill-2010> accessed 12 April 2020
2. Raja Reeshav Roy & Ankit Shubham, ‘Anti – Torture Laws in India : Urgent need for legislations (hrw.org, 20 Aug 2017) < https://ijlpp.com/anti-torture-law-in-india-urgent-need-for-a-legislation > accessed 12 April 2020
3. Krishnadas Rajagopal, ‘Acting against Torture’(thehindu, 3 Nov 2017)<https://www.thehindu.com/opinion/op-ed/acting-against-torture/article19969818.ece> accessed 13 April 2020
4. Jayshree Bajoria, ‘Getting Away with Torture in India’ <https://www.hrw.org/news/2017/08/20/getting-away-torture-india> accessed 13 April 2020
5. D.K Basu v. State of West Bengal [1997] 1 SCC 416
