Monday 27 August 2012

Analysis of prevention of torture bill 2010

The Bill under consideration:

The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practiced in every police station in the country. In addition to the state police, other law enforcing and security agencies like the Border Security Force, Central Reserve Police Force, Forest Guards and Customs and Central Excise officers also resort to torture in India. We have come across cases where the state agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including but not limited to extraction of bribes and the silencing of opposition, irrespective of its nature.

Over the past seven years, the AHRC, along with its local partner organisations like Nervazhi have documented cases of torture from India. On each occasion we have brought the case to the attention of the relevant authorities in the country and have requested the government to undertake an impartial and prompt investigation. From our experience of intervening in these cases, we have understood that the practice of torture has permeated a high degree of fear about the state agencies in the psyche of the ordinary population. We are of the opinion, and is certain that the Committee will agree that this fear of the average citizen about the law enforcement agencies has in fact isolated the agencies from the people they are paid to serve and thus to protect.

We are certain that the Committee is aware that in a democratic framework fear must not be the denominator with which law and order is maintained. On the contrary, fear generates mistrust, thereby impeding the establishment of the rule of law in a country. For this very reason the question of torture has remained the key area of our work in Asia.

We are certain that the Committee is conscious about the seriousness with which torture is condemned in mature democracies. Torture being a crime committed by the state agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally. It is a crime considered with such seriousness that today, torture is considered as a crime against humanity.

At the moment, there is no functioning legal framework in the country that can adequately address the question of torture. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant; whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator. There must be also a procedure by which a victim of torture can access and receive redress and adequate rehabilitation to regain the balance in life, which every victim of torture is certain to loose, irrespective of gender, social status, race and nationality.

For this framework to be established in India, what is required is a law that forms the basic legislative outline to deal with torture. As mentioned earlier, such a framework does not exist in India at the moment.

We are afraid that the current Bill under the consideration of the Committee is far too inadequate to pave the foundation for such a legislative and/or procedural framework. It is this aspect that we wish to highlight to the Committee in the following paragraphs and suggesting possible ways with which it could be addressed, before the Bill in its current form, is enacted.

The purpose of the Bill and the definition of 'torture':
The Preamble of the Bill states that the purpose of the Bill is "... to provide punishment for torture inflicted by public servants or any persons inflicting torture with the consent or acquiescence of any public servant, and for matters connected therewith or incidental thereto..." and "... whereas it is considered necessary to ratify the said Convention and to provide for more effective implementation..." of the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT). For this to be realised, the primary requisite is to define what amounts to torture.

Section 3 of the Bill defines the 'act' of torture. The Section however qualifies torture to those acts which cause (i) grievous hurt or (ii) danger to life, limb or health (whether mental or physical) of any person. The Bill in Section 2 draws meanings to words and expressions used in the Bill from the Indian Penal Code, 1860.

'Grievous hurt' however is defined in Section 320 of the Penal Code as "(f)irst - Emasculation; Secondly - Permanent privation of the sight of either eye; Thirdly - Permanent privation of the hearing of either ear; Fourthly - Privation of any member or joint; Fifthly - Destruction or permanent impairing of the powers of any member or joint; Sixthly - Permanent disfiguration of the head or face; Seventhly - Fracture or dislocation of a bone or tooth; Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

Reading Section 3 of the Bill with Section 320 of the Penal Code, will exclude several forms of torture that are routinely practiced in India. For instance some of the most common forms of torture practiced in India at the moment are beating, slapping, punching, sleep deprivation and forcing a person to sit, stand or lie down in uncomfortable positions, often generating pain for prolonged periods. All these methods of torture need not always qualify as 'grievous hurt' as envisaged in Section 320 of the Penal Code. Yet all of them would be considered as torture according to the CAT.

Additionally, the test of what amounts to torture has to be subjective as well as objective. It is a settled position in international human rights law since 1978.ii We are certain that the Committee will agree that Indian's disserve equal treatment in law in comparison to anyone else, elsewhere in the world.

The Bill excludes metal torture. We are certain that the Committee is aware that a person can be tortured mentally, without the perpetrator having to be in physical contact with the victim. Such practices are widely used particularly against vulnerable communities like religious or racial minorities, children and women. For instance, threatening a woman or girl of rape or forcing a person of any particular religious belief to eat prohibited food -- like a Muslim to eat pork or a Brahmin to eat beef can amount to severe mental torture, which the Bill at the moment omits.

The definition of torture, in its simplest form is provided in the CAT. We urge the Committee to suggest a revision of Sections 2, 3 and 4 to incorporate the letter and spirit of Article 1 of the CAT in the Bill, without which the purpose of the Bill will be defeated.

In this context we wish to place on record before the Committee, a UN General Assembly Resolution sponsored by India in 1977. The Resolution requested the then UN member states to make unilateral declarations of intent to implement and comply with the Principles of the Declaration on Torture.iii A copy of the Resolution is annexed herewith for the perusal of the Committee.

We urge the Committee to bring this Resolution to the attention of the Honourable Members of the Rajya Sabha, and request them to assist the country in fulfilling the promise India made to the global community as early as 1977 in realising effective prohibition of torture globally, and further, promoting universal respect of human dignity and the right of every human being to be free from torture. A proper law against torture will demonstrate the country's commitment in letter and spirit to the promise it made in 1977.

On statutory limitation:
Section 5 of the Bill places a statutory limitation of six months for taking cognisance of an offense punishable under the Bill. India has acceded to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity on 12 January 1971. It is well settled that torture is a crime against humanity. Being party to the above convention, India is bound by the principle of pacta sunt servanda not to legislate a law that vitiates its treaty obligations.

It is true however that 'torture' is not explicitly mentioned in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. It must not be for India to pose hindrance to the development of customary international law.iv In fact it cannot.

Law is not static. By virtue of the developments in international human rights jurisprudence post 1947, culminating in the drafting of the Rome Statute that established the International Criminal Court, torture can now be safely considered as a crime against humanity. Indeed, India has neither ratified nor acceded the Rome Statute. However, India's refusal to accede to the Rome Statute and to submit to the jurisdiction of the International Criminal Court was not because -- at least on records -- of the fact that torture was considered a crime against humanity.

The principal objections by India against ratifying the Rome Statute is mentioned in an explanatory statement on vote on the adoption of the Statute of the International Criminal Court issued by India's then Additional Secretary to the UN, Mr. Dilip Lahiri, on 17 July 1998. While enumerating India's position against the Rome Statute, Lahiri did not argue against the inclusion of crimes like torture as a crime against humanity, triable by the ICC.

To substantiate further, the settled position of law in India is that the right against torture has attained the status of a fundamental right by virtue of the interpretation of Article 21 by the Supreme Court of India.v However, the Constitutional provision to have a 'procedure prescribed by law', which the current Bill is, should not be a procedure to proscribe the scope of a victim to purse remedies against torture.

Often, as it has been proved in instances where brutal atrocities are committed against persons, victims take time to speak about it, for reasons like fear, extreme state of trauma, displacement, lack of adequate knowledge or sheer absence of congenial circumstances to lodge a complaint. Further, prescribing a statutory period of limitation in the law contradicts certain existing propositions of law. For instance, at the moment, there is not prescribed period of limitation for initiating prosecution in a case of murder. Torture could often result in murder.

The purpose of the legislation must be to criminalise torture, encourage complaints of torture, prescribe a reasonable procedure for investigation and prosecution and provide punishment for the crime. All this must be conceived as aiming towards ending the practice of torture.

The quotient of reasonableness of a legislation, which is intended to prevent a heinous crime, is judged in the backdrop of the country where the legislation is implemented and the nature of the crime itself. At the moment, India is not a country where a victim of torture has all the congenial circumstances to lodge a complaint. From experience and by virtue of sheer statistics, victims of torture are from the poorest of the poor and from the marginalised communities. This stratum of the Indian population itself make up to an estimated 60 percent of the total population amounting to millions.

Expecting everyone who are otherwise marginalised or having limited or even no resources at all to lodge complaints and pursue them to do so within a short window of time, is destined to defeat the very purpose of the law. Further, this defeat will imply that a victim's right to prosecute a torture perpetrator will be circumscribed by the operation of limitation, unfortunately built into an enabling law.

Requirement of prior sanction:
No Indian statute condones the commission of a crime in the course of employment. Neither is torture an act that could be committed 'in the course of employment', since it is expressly barred by existing departmental orders and by virtue of judicial decrees.

Requiring prior sanction from the government to take cognizance of a crime of torture implies that in cases where the government denies the sanction, torture is condoned. It could also mean that if the Bill is enacted, the right against torture and that of a victim to seek redress will be at the mercy of an executive decision. This is a proposition that will defeat the purpose of the law and further, the CAT.

Moreover, Section 6 will be used as an excuse for preventing the initiation of an investigation on a complaint. This will end in the destruction or in the erosion of evidence, which will adversely affect the rights of the victim.

Torture can be part of a state regime's clandestine policy, particularly to silence political opposition. Should Section 6 be enacted, it implies the outright denial of prosecution of perpetrators in states where torture is widely used as state policy. No Indian state is an exception to this practice at the moment.

Additionally, the right against torture being interpreted as a fundamental right, requiring a prior sanction to initiate prosecution of the case will imply that Section 6 of the Bill is worded to restrict the realisation of a right. Further Section 6 will only contribute to the existing delay in the prosecution of cases will increase the number of cases before the High Courts and the Supreme Court. At the minimum, taking a cue from the Bikari Paswan's case from West Bengal and many thousands more, Section 6 of the Bill is destined to defeat the victim and protect the perpetrator.viThe settled position of law in India at the moment is that public servants can face prosecution without prior sanction of the appropriate authorities, as all their acts in the purported discharge of the official duties cannot be brought under the protective umbrella of Section 197 of the Criminal Procedure Code, 1973 (Cr.P.C).

The Supreme Court of India in January 2009 has settled the law concerning the requirement of prior sanction while deciding, once again a case involving a police officer from West Bengal, Deputy Superintendent of Police Mr. Sahabul Hussain, who was thus far protected from prosecution by the state government. The Court said: "... all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.PC. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him".

Justice Kabir, a judge in the Sahabul Hussain's case, perusing an earlier ruling of the apex court said:  "...the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinise the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the concerned official."

"However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."

At the minimum, Section 6 of the Bill under review by the Committee is a reintroduction of the 'ruled out' protection of Section 197 of the Cr.P.C, which must not be permitted.

Aspects missing in the Bill relevant to torture and the CAT: The Bill falls short of specifying a mechanism to investigate torture, and any witness protection arrangements. Given the nature of the crime, it is imperative that torture must be investigated by an investigating agency independent of the police and having no officers on deputation from any other law enforcement agencies.

One of the reasons for the failure of successful prosecution of complaints against police is that the investigation is conducted either by police officers directly or indirectly involved in the crime or by their superiors. There is no need to enumerate why a victim or witness having a complaint against a government servant like a police officer in India requires protection. In countries where the practice of torture has been reasonably contained, both these requirements are met. In jurisdictions where these basic requirements are not followed, like in Sri Lanka, the corresponding law has become useless.

What can the Committee do? Contrary to common belief, that the Committee can only file a report to the parliament concerning the Bill under review, the Committee is empowered to engage in the following acts:

By virtue of Rule 84 of the Rajya Sabha Rules of Procedure , the Committee can call for expert opinions about the Bill. The Committee is urged therefore to facilitate such a process, involving the members of the Civil Society, the National Human Rights Commission as well as jurists.

Rule 90 empowers the Committee to furnish to the parliament, along with its report a recommendation to the member in charge of the Bill, that his next motion should be a motion for circulation, or where the Bill has already been circulated, for recirculation.

Last but not least, all or any member of the Committee can record a minute of dissent on any matter connected with the Bill.

Conclusion: Torture is practiced by law enforcement agencies in India as a crude shortcut for crime investigation. Investigating agencies justify the use of torture arguing that they often lack advanced training and equipments for crime investigation. The concept of modern policing is still a mirage in India, where the police is expected to function as a tool for social control than to serve the citizens.

It can be argued that a large number of law enforcement officers in the country believe that the deterrence quotient against a crime is the possibility of being tortured, rather than the crime being detected, prosecuted and punished in the legal process. Extensive delays in court proceedings and the repeatedly demonstrated professional and intellectual paucity of the country's prosecutors appear to offer a layperson's excuse for the widespread belief among law enforcement officers that the only punishment a criminal might get in India is the torture at the hands of the investigator.

This has led into a situation where torture is widely practiced, particularly in the police stations, throughout the country. Police officers and other law enforcement officers generally consider torture as an essential investigative tool for investigation. Policy makers and bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not realising the fact that a person under investigation is only an accused, not a convict and further, that even a convict must not be tortured. This is due to the lack of awareness about the crime, its nature and seriousness.

As early as in 1981 the Supreme Court of India has said "...(n)othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights" Kishore Singh V. State of Rajastan (AIR 1981 SC 625). Internationally, torture is considered as one among the most heinous crimes like slavery, genocide and maritime piracy against which there is an absolute prohibition and the principle of ius cogens applies.

When torture is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, torture can also be treated as a crime against humanity under the Rome Statute.

The National Human Rights Commission of India has repeatedly recommended the government to criminalise torture. The Commission once said "(d)aily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens. Such a situation must end, through the united efforts of the Government....".

The UN Human Rights Committee as early as 1997 has expressed its concern about the widespread use of torture by the law enforcement agencies in India. (CCPR/C/79/Add.81). The Committee on Elimination of Racial Discrimination has expressed similar concerns (CERD/C/IND/CO/19) in 2007 and the Committee on Economic Social and Cultural Rights (E/C.12/IND/CO/5) in 2008.

In a democratic framework, torture undermines democracy and the rule of law. Its open or clandestine use undermines the fundamentals of democratic governance. Law enforcement agencies, particularly the police, practicing torture reduce itself into an instrument of fear.

This image and torture often diminish criminal investigation into a mere charge based on confessions. Fair trial, an important part of the rule of law framework, has no place in such an environment. The practice of torture is not limited to policing. Paramilitary and military units also resort to torture, often brutal. Whether torture is practised by a military detachment or by the local police, the possibility for a victim of torture to complain is very limited in India.

The absence of witness protection laws, proper investigation mechanisms including medico-legal facilities, and prosecution mechanisms, render complaint making suicidal for a victim. This allows torture to also be used for blackmailing, as a form of revenge and for monetary gain.

A domestic law against torture is thus required to deal with the central deficit in India's policing.

Indeed the Committee need not redraft a new law in lieu of the Bill the Committee is requested to review. Yet, the Committee could recommend in its report that the Bill need to be relooked, taking into account the concerns raised by us before the Committee, and probably similar concerns expressed by other Civil society groups and jurists in the country.

In this context, to guide the Committee and to suggest to the Committee as to what should be incorporated in a Model Bill to criminalise torture, we wish to present before the Committee a Model Bill on the subject entitled Torture and Custodial Death (Prohibition) Act, 2010.

iv India however was the only country that abstained from voting on 22 December 2003, from the UN General Assembly Resolution, 'Protection of Human Rights and Fundamental Freedoms While Countering Terrorism', A/Res/58/187
v AIR 1980 SC 1579 Sunil Batra v. Delhi Administration
vi Bikari Paswan disappeared in 1993 from West Bengal. Lakichand Paswan, the father of Bikari Paswan contented that Additional Superintendent of Police Mr. Harman Preet Singh and three of Singh's subordinate officers had murdered his son. A complaint filed by Lakichand Paswan was stopped from being investigated or prosecuted due to a misinterpretation of Section 197 of the Code of Criminal Procedure, 1973. The West Bengal State Government never issued a sanction order to prosecute the police officers, despite repeated attempts by Lakichand. A writ application filed by Lakichand at the Kolkata High Court took ten years to decide, though the court only took less than half an hour to decide the case on the final hearing date, 8 July 2004, to conclude that murder is not an act that comes under 'in the course of employment' and directed prosecution of accused. A day prior to the decision of the High Court, Lakichand passed away. This is a thousand times repeated story in India. Section 6 is a yet another attempt to statutorily cement this unfortunate fate of the victims.
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