India’s Cruel Torture Bill

By at 29 July, 2010, 7:51 pm

Statistics

1. Every year number of custodial deaths increase considerably.

2.  From 1994-2008; 16,886 custodial deaths were recorded.

3.  In 2007-08; 188 and 1789  people died in police and  judicial custody respectively.

Definition of Torture

Article 1 of United Nations Convention against torture, 1984 defines torture as:-

Any act by which public officials intentionally  inflict severe pain or suffering ( physical or mental) to a person for fullfiling certain purposes like seeking information or a confession, punishment, intimidation or discrimination of the victim.

Indian Position

India signed the UN Convention against torture in 1997 but did not ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue. However the bill stands flawed on various grounds.

Definition

The  Bill defines torture in a  limited sense. It states that if a public official  intentionally does an act to seek information or confession from a person by inflicting

(i) grievous hurt to any person; or

(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.

Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture.

The definition not only ignores other purposes of torture like punishment and intimidation but also  makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes  include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.

Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if  a public official  inflicts grievous hurt on a person to extract information he would not be liable  unless it is proved that he had animosity against a group or community to which the person belonged.

Defects :-

Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.

Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.

There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.

The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.

Recommendations

1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.

2. Compensation Schemes must be enumerated in the bill.

3. Proper review mechanisms for interrogation must be established.

4.Clauses like procurement of  prior governmental sanction and  limited time period to file complaints must be removed.

5 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 must be added.

6. Immediate legal aid must be provided to the arrested.

7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.

Conclusion

It is unfortunate that after lapse of 13 years the government has come up with an inefficient piece of legislation which doesn’t even recognize the International Convention which was signed by India. The restrictive clauses in the bill would  help the perpetrators rather than assisting the victims. The bill must be reviewed carefully and necessary changes must be incorporated.

In the present form the bill is a license to torture rather than a prohibition to inflict harm.

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Comments
Sidhi July 29, 2010

I don’t understand why is the UPA government coming up with so many legislation which are more defective than effective. These people must seriously start thinking.

meghna July 29, 2010

Thanks Sidhi.. I agree UPA government is rushing up with the legislation. Most of the legislation are highly flawed and defective. There is definitely a need to revise these bills before they come into existence.

Vinay Kakkar July 31, 2010

The beating to death is for poor people and those who do not have political connections/money to bribe the cops.There are so many cases where nothing has been done to the wrong doers.Some of them are enumerated below-
(a) Murder of Bibi Jagir Kaur’s daughter
(b) Rape of maid servant by Barnala’s son around 2 yrs back.
(c) Rape of French tourist Katia in Chandigarh by grandsons of CM Beant Singh some 15 -16 years.For them a Govt rest house was notified as a jail and not a .wimper from our free press .Only consolation that Beant Singh was killed in a bomb blast soon after this incident.
(d) Rape of maid servant by Shiney Abraham
(e) No action against corrupt Judges
(f ) Acquittal of Shibu Soren
(g ) Lalu’s Chara Gotala etc,et
(h ) Patudi’s illegal Shikar case
( I ) the release of all accused in Purilia arms dropping case

The conviction rate for rape is around 8% and murder 4% which speaks volumes for the justice delivery system of this country.The list of injustices is endless.We are actually a feudal society when it comes to the justice delivery system and we still have a medieval cocept that the high and mighty should be able to do anything and get away with it.

meghna July 31, 2010

I completely agree with you Vinay. You have brought some shocking realities in your comment. I’m sure you have given all of us food for thought about what exactly is going wrong in our society.

Vinay Kakkar August 1, 2010

These are only incidents that come to memory.In fact Brittania biscuit king Pillai, was tortured to death in tihar jail as thr cops were asking him to give a maruti car in return for not being tortured.There is another dimension to torture.it is not to extricate the trutrh but to know how much of booty ,illgotten money is lying with the person in custody and to illegally misappropriate it by the cops.if not then illegally extract money from his relatives who are trying to secure his release,that is why people die in custody and no high profile person is tortured cos palms have been greased the moment he is arrested. There is an IPS officer arrested for running a drug racket of sorts and he was supposed to be from anti-narcotics.There was an IPS officers wife who was runing an adoption agency in Hyderabad some 20 yrs ago where in children were surreptiously sent abroad some 22 odd years ago; nothing has happened to her.We may soon become the most paedophile favored country in the world.Our chol;dren can be taken to gulf countries for camel racing,our workers can be iltreatedin gulf countries.Their people can keep abusing/raping our women who work as maidservants.Our people can keep getting beaten up in Australia.There is still a racket of young minor girls of the poor being married off to Arabs in some states.Our govt should stop anyone from going to these countries for 3 months, they will come down on their knees because they need our people -the power of numbers can be used to our advantage.Bit no one cares becuase we are immune to the suffering/wrongs perpetrated against our country men

meghna August 3, 2010

True.. Pedophile is a problem we can’t ignore any more. The nation needs to take drastic steps in this regard both on diplomatic as well as national level. I’m happy that public spirited people like you are concerned for the cause and want to make a difference.

sreenivas October 6, 2010

in India ” custodial interrogation” is a euphemism for torture and use of third degree methods to get confession. all know this and even judiciary knows this. sadly, even after this knowledge police/CBi custody is granted by judge/magistarte in every case. Hence there is no way for a comman man to escape torture perpetrated by authorities.

only the Judiciary, particularly the lower judiciary where arrested are produced within 24 hours can help.

meghna October 6, 2010

I completely agree with you Sreenivas.. The police often treats custodial interrogation as a licience to carry-on custodial violence on the people. There is an urgent need to ensure transperancy and accountability in the system.

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