By Mani Munjal and Aakarsh Banyal
Image by Chase Baker (Unsplash)
In the wake of outrage surrounding the death of George Floyd at the hands of a police officer, India witnessed a similar occurrence: the custodial torture and death of a father and his son over an alleged violation of pandemic control rules. This incident has initiated a national outrage against the effectiveness of the legal safeguards in upholding the internationally recognised human rights.
This blog seeks to provide a background of India’s engagement at national and international fora with the subject of prevention of torture. This will be followed by a critique of India’s ‘Prevention of Torture Bill’ (“Bill”) which was introduced to further the tenets of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”). The UNCAT build on the principles enshrined in Article 7, International Covenant on Civil and Political Rights (“ICCPR”), which provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment.
India’s efforts and policy considerations
India’s signing of the UNCAT in 1997 prompted the Ministry of Home Affairs to introduce the Bill in the Lower House of Parliament in 2010. However, even after undergoing several rounds of discussion and recommendations, the Bill lapsed with the dissolution of the Lower House. The reintroduced Bill in 2018 suffered the same fate. In addition, pursuant to Article 2 of the ICCPR, India was obligated to undertake necessary steps to legislate on issues concerning violation of human rights.
The urgent need for an anti-torture law was acknowledged by the Law Commission of India in its 273rd Law Commission Report. Reflecting the remarks of a Select Committee of the Upper House of Parliament, the Report recommended amendments to existing laws such as the Indian Evidence Act 1872 and Criminal Procedure Code 1973. However, these recommendations have not been implemented by the Central Government.
In 2017, at India’s Universal Periodic Review, the Indian leadership posited that “torture is alien to Indian culture and has no place in the governance of the nation”. However, no steps have been taken to address the problem as of date. In 2019, the National Human Rights Commission of India recorded more than 1700 deaths of individuals under police or judicial custody in a single year. It is clear that the lack of a legal framework governing this issue is providing tacit approval to widespread human rights violations, and also reducing India’s standing at the international front as a guardian of human rights.
India’s failure to proclaim an anti-torture law also entails key diplomatic considerations. Article 3 of the UNCAT prohibits extradition, inter alia, of individuals to States where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” This implies that State parties to the UNCAT can rely on the aforementioned provision to deny extradition of individuals to India on account of the absence of legal safeguards to protect individuals in custody coupled with a high number of deaths caused by custodial torture, as shown earlier.
Presently, India has ratified the ICCPR but has been unable to ratify the UNCAT, standing as mere signatory. Ratification of the UNCAT would further strengthen India’s bid for a permanent seat in the United Nations Security Council as the move exhibits utmost reverence to the idea of peace-making and ensuring protection for individuals.
Analysis of the Prevention of Torture Bill
At this point, it is pertinent to review the Bill as it is the closest legislative effort towards penalising custodial torture. A brief analysis of the Bill uncovers a multitude of legislative imperfections, some of which are inconsistent with the UNCAT.
Firstly, pursuant to Section 3, the definition of ‘torture’ is constrained. This is because only instances which amount to grievous hurt or pose a threat to life, limb or health are classified as torture. Per contra, the UNCAT, contains no such restrictions. Furthermore, unlike the UNCAT, Section 3 also does not encompass instances of mental trauma and suffering.
Secondly, the Bill penalises only those torturous acts which are committed to extract information or on the ground of religion, race, place of birth, residence, caste, community, or language, whereas the UNCAT seeks to denounce all torturous acts, regardless of prejudice.
Thirdly, the doctrine of proportionality suggests that the punishment ought to be commensurate with the seriousness of the offence. The Indian Supreme Court has also alluded to this doctrine in several judgments. However, the Bill contains no such differentiation in punishment on the basis of the resulting outcome. For instance, under this Bill, the present case of torture that resulted in the victims’ death would be penalised just as a milder act inflicting grievous hurt would.
Fourthly, the Bill fails to provide for any independent investigation mechanism. This poses the risk of diluting the principles of natural justice and opens up the possibility of suppression of information, leading to ineffective investigations.
Fifthly, the Bill provides for a limitation period of six months to file a complaint. This practice is inconsistent with the Code of Criminal Procedure, 1973 wherein no time limit has been stipulated for offences which are punishable with imprisonment that may extend to ten years. There seems to be no reasonable justification to draw such a distinction between torture and other crimes.
Although a meaningful endeavour to safeguard an individual’s freedoms, the Bill is swathed with legislative deficiencies that allow an accused to escape liability for internationally reprehensible conduct recognised under the UNCAT, the same Convention the Anti-Torture Bill seeks to ratify.
Despite the Convention being in consonance with the ethos of according paramount reverence to an individual’s life and liberty, India has been unable to keep up with the current international human rights standards of torture prevention as laid down in the Convention. The need of the hour is to initiate a discourse that is geared towards enacting a legislation that shifts the dynamic from “Crime and Impunity” to “Crime and Punishment” for internationally reprehensible acts that impinge on an individual’s right to life and liberty.
Mani Munjal and Aakarsh Banyal are students of law at Symbiosis Law School, Pune, India. Their areas of interest include Public International Law, Human Rights Law and Security Studies.