India has signed the United Nations Convention against Torture but has not ratified it so far. In November, 2017, the Law Commission in its 273rd report has recommended that Government should ratify the convention. The report also presented a draft of new Prevention of Torture Bill to the government. Such an enabling legislation would be needed to ratify the convention.
What is torture?
The constitution of India does not define torture. Torture is infliction of mental or physical suffering by or with the consent of state authorities inflicted for a specific purpose such as gaining information, punishment or intimidation. There are several laws and international conventions which consider torture to have taken place only when a public official is involved. Torture includes a variety of methods like beating, electric shock, sexual abuse, prolonged solitary confinement, deprivation of sleep, food and water among others. Further, torture is not only limited to the physical suffering but also the mental suffering.
Who are viewed as the perpetrators of torture?
The key perpetrators of torture include Police; Armed forces; Paramilitary forces; Prison officers; State-controlled contra-guerilla forces; gendarmerie (this institution exists in some countries); any government official and co-detainees acting on the orders of public officials. Around 15,300 people died in India in Police custody between 2001 and 2015, while 16000 injured. Around 98 people die in police custody every year.
United Nations Convention against Torture
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”) was one of the first documents at the international level to address the issue of torture. It was adopted by the General Assembly of the United Nations on 10 December 1984. The Convention entered into force on 26 June 1987. The convention condemns torture, inhuman and degrading treatment of prisoners by public officials.
The convention was the result of deliberations after the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly on 9 December 1975.
Objective
As per Article 2 of the convention against torture, the main objective is to prevent torture and to ensure that effective remedies are available to the victims.
Some important articles of the convention:
- Article 3: prohibition on deportation or extradition to torture and other cruel, inhuman or degrading treatment or punishment.
- Article 4: criminal liability for torture. States need to ensure that all acts of torture are offence under their criminal law.
- Article 10: education and information for prevention of torture
- Article 12: procedures of investigation, injury and trial
- Article 13: protection to victims and witnesses.
- Article 14: compensation to and rehabilitation of victims of torture.
- Article 15: criminal offence of utilizing information from torture.
Obligation of states under this convention
The states which are party to this convention are required to take the following steps:
- Take preventive actions against torture like criminalizing acts of torture an enacting domestic laws and regulations to respect human rights of the alleged victim and the accused.
- Need to outlaw torture and refrain from using ‘higher orders’ or exceptional circumstances’ as excuses for committing acts of torture.
According to some critics, State is also responsible for torture committed by private individuals like racist attacks, domestic violence. But the convention does not impose enough obligations on the state parties to prevent such abuses.
What are the other international conventions against torture?
Torture and other cruel and inhuman treatments of humanity are strictly prohibited under international law. The following international conventions are prohibiting torture:
- The Geneva Conventions
- The International Covenant on Civil and Political Rights (Article 7)
- The Universal Declaration of Human Rights (Article 5)
- Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975).
India’s stand so far
India signed the UN convention on October 14, 1997 but has not yet ratified it. The reason the government gives is that it has already criminalized torture under penal law. However, sections 330 and 348 of the Indian Penal Code, 1860 do not particularly criminalize torture instead it penalizes certain acts that involve torture. In addition, the provisions grant immunity to the police officers, armed forces personnel and public servants unless the government approves their prosecution.
India has also expresses its reservations against the following provisions of the convention:
- Inquiry by the CAT (Article 20)
- State complaints (Article 21)
- Individual complaints (Article 22)
International pressure on India
The International Commission of Jurists had earlier criticized India’s failure to tackle issues of torture and unaccountability of armed forces. It asked India to adopt the reforms suggested by the United Nations Human Rights Council and ratify convention against torture. Out of the 80 countries which participated in the second Universal Periodic Review of human rights record, 22 States urged India to immediately ratify the torture convention. The Universal Periodic Review is an interactive process carried out every four years. Under this framework, UN member states are reviewed for their human rights record.
According to the Report of the Working Group on Human Rights in India, torture and ill-treatment are widespread in India. The report has also called for immediate intervention by the government against torture.
Law Commission’s 273rd Report : Key Recommendations
The key recommendations of law commission’s 273rd report are as follows:
- India should ratify the UN Convention to tide over the difficulties in getting criminals extradited.
- Amendments to the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872, to accommodate provisions regarding compensation and vesting the burden of proof on accused officers that they are not involved in torture.
- Stringent punishment to curb the menace of custodial torture, including life imprisonment and fine.
- Courts should decide on compensation after taking into account various facets of each case, such as the nature, purpose, extent and manner of injury, including mental agony caused to the victim. The courts will bear in mind the socio-economic background of the victim and will ensure that the compensation covers the expenses on treatment and rehabilitation.
- Effective mechanism to protect the victims of torture, the complainants and the witnesses against possible threats, violence or ill treatment.
- The State should own the responsibility for the injuries caused by its agents on citizens, and that the principle of sovereign immunity cannot override the rights assured by the Constitution.
Prevention of Torture Bill, 2017
India had earlier introduced the Prevention of Torture Bill, 2010 in the Lok Sabha on April 26, 2010. While Lok Sabha passed the bill, Rajya Sabha referred it to a Select Committee. The Select committee had proposed to amend the bill to make it more complaint with the torture convention. The bill then lapsed and government also did not show any urgency to enact a revised torture bill. In addition, India has also refused to repeal the Armed Forces Special Powers Act (AFSPA), which enables Armed Forces to perpetrate human rights abuses in the North East eastern states and Kashmir.
In its 273rd report, the law commission had provided a draft Prevention of Torture Bill, 2017. The key features of this bill are as follows:
- This bill makes provisions for punishment (including life term) to officials for any kind of torture and inhuman treatment.
- It makes provisions for compensation to victims of torture. The courts will decide upon the justifiable compensation after taking into account the various facets of case.
- The courts will bear in mind the socio-economic background of the victim and ensure that the compensation helps the victim to bear the expenses on medical treatment and rehabilitation.
Discussion
Why countries resort to torture in the first place? What are the arguments justifying torture?
Torture is justified by its advocates that it helps to extract crucial information which could save the lives of hundreds of people. For instance, the prisoner may know the whereabouts of a ticking bomb, terrorist attack etc.
In a survey conducted by BBC few years ago, 27,000 people belonging to the 25 countries considered that a degree of torture is acceptable if it could save some lives.
What are the arguments by the opponents of torture?
- Torture is used as a tool by the State to silence people and suppress their voice against injustice.
- Torture tends to degrade and corrupt the society.
- Information provided by the prisoners under torture is unreliable as they tend to say anything to escape torture.
- Torture is against the principles and conventions of UN and they tend to negate the inalienable rights of all members of human family.
What is the way forward?
As the law commission recommended, the government may take steps to ratify the convention against torture by enacting a revised prevention of torture bill in the parliament.