The draft law excludes many scenarios and forms of torture rampant in India. The Rajya Sabha must insist on amendments.

The Prevention of Torture Bill, 2010, which the Rajya Sabha will take up for consideration on Friday, is a deeply flawed piece of legislation that will weaken, rather than strengthen, existing legal sanctions against a crime that is widely acknowledged to be rampant across India.

Though the Lok Sabha approved the Bill without changes on May 6, it is essential that the upper house remedies the flaws it contains before it is too late.

The stated purpose of the law is to fulfil the country's obligations under the United Nations Convention Against Torture (CAT). India signed the Convention in 1997 but is perhaps the only democracy yet to ratify it. But if this belated push for ratification is a welcome development, the weak provisions of the proposed law bear little resemblance to the contents of the CAT.

The definition

Let us start with the definition of torture. This is how the Convention defines it. Article I says “torture” means any act done by or with the consent or acquiescence of a public official “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.”

The Indian draft borrows some of this language but arbitrarily narrows the scope of this Article. According to Section 3 of the Bill, torture will said to have been inflicted only when “(i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person” is caused by public servants for the purposes of “obtain[ing] … information or a confession from him or a third person”.

In other words, torture that is in inflicted by the police or a public servant as a form of punishment, intimidation or coercion will not be considered “torture” under the new law. Nor will any torture visited on an individual solely on account of her or his religion, caste, gender or economic status.

The omission of such situations — as envisaged by an international convention to which India is a party — is unforgivable given the prevalence of torture for these very reasons.

What makes this definitional narrowing even more problematic is the high threshold set for torture itself. The CAT speaks of “severe pain or suffering” rather than “grievous hurt” or “danger to life, limb or health” because it is the infliction of severe pain which is common to all forms of torture, even those which do not have long-term consequences for the health of the victim. Electric shocks, water boarding and the insertion of chilli powder in the sensitive parts of an individual's body will cause severe pain or suffering without necessarily endangering her or his health or even causing “grievous hurt”. Why has the Manmohan Singh government chosen such a narrow definition, excluding both motives for, and forms of, torture that are widely prevalent in India?

Having defined torture in such a restrictive way, the Bill goes on to narrow it even further in Section 4, which deals with punishment. It says a public servant shall be punishable for up to 10 years if he tortures any person “(a) for the purposes of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and (b) on the ground of his religion, race, place of birth, residence, language, caste or community or any ground whatsoever”.

Here, it would seem that even the class of persons who are tortured in order to extract a confession or some information from them must fulfil another condition before they can be considered torture victims: they must also have been targeted on account of some ascriptive identity. When Section 3 defines what constitutes torture, it is strange that the section on punishment should confine itself to torture done on specific grounds.

Cruel irony

Another major flaw with the Bill is the six-month time limit a torture victim is given under Section 5 to file a complaint. This is especially problematic for cases of custodial torture, which, unfortunately, are the norm in India. Most victims of torture may not feel confident about filing a complaint when the policemen or public servants who tortured them continue to have the capacity to inflict bodily harm. And, in a cruel irony, any act of violence inflicted upon a complainant — since the aim is not to make them confess or provide information but simply to coerce them into withdrawing their charges — would actually be excluded from the Prevention of Torture Bill's definition of torture.

Despite the gravity of the offence — which cannot be considered part of the legitimate discharge of duty by a public servant — the Bill has a section which says that “previous sanction” of the Central or relevant State government is needed in order for a court to take cognisance of an offence. In other words, after arbitrarily narrowing the scope and definition of torture and making it extremely difficult for a victim to file a complaint, the government gives the torturers within its ranks yet another layer of protection. Across India, there are dozens of cases in which sanction to prosecute is never given despite public officials being accused of heinous crimes. The inclusion of “previous sanction” in the torture Bill does not speak well of the government's intentions.

Even at this late stage, it is essential that the Rajya Sabha insist on four changes.

First, the definition of torture should be harmonised with CAT, to which India is a signatory. Second, Section 4 dealing with punishment should be harmonised with the updated definition of torture. Third, there should be no time limit for a victim to file a torture complaint. Torture is a crime and if other crimes are not subject to an arbitrary ‘statute of limitations', why should this? Fourth, the Section on previous sanction should be deleted or altered to say that where the government is of the view that a public servant should not be prosecuted for the crime of torture, it must state the reasons in writing.