If the Manmohan Singh government has its way, India will soon adopt a law against torture that will make a mockery of our obligations as a democracy, a civilised society, and a signatory to the United Nations Convention Against Torture (CAT). India signed CAT in 1997 and is meant to pass standalone domestic legislation outlawing this barbaric crime. Unfortunately, the Prevention of Torture Bill, 2010 falls far, far short in this regard. Indeed the draft law, if passed unchanged by the Rajya Sabha, will make the elimination of torture and the punishment of its practitioners more difficult than it is under existing law. To begin with, the Bill's definition of torture makes two unwarranted departures from international norms. Where CAT speaks of torture and “cruel, inhuman or degrading treatment or punishment” and builds its definition around the inflicting of severe pain or suffering, the proposed law raises the bar of what constitutes unacceptable treatment much higher. Only acts that cause grievous hurt — defined in the Indian Penal Code in relation to damage to limbs and organs — or which endanger the life, limb, or health of a person will be considered torture. Excluded thus are torture techniques that cause intense pain and suffering but no permanent damage to the victim. Secondly, only torture inflicted in the course of an interrogation will attract the sanctions of the new law — but not torture inflicted to punish, coerce, or intimidate an individual, which CAT covers.
A bizarre aspect of the draft is the implication that a public servant can be punished for torture he or she inflicts in the course of investigating a crime only when the victim is being targeted on account of his or her religion, caste, language, and so on. Such linkage only raises the bar for prosecution. The law also does not specify minimum punishment for a person convicted of torture; and the maximum it prescribes (10 years in prison) is too low for a case in which torture leads to death. There is also no justification for giving the victim of torture just six months to file a complaint. What happens if the victim is still in custody? Finally, when Article 2(1) of CAT clearly says that “no exceptional circumstances … whatsoever may be invoked as a justification of torture,” the requirement of prior government sanction smacks of bad faith. It is unfortunate that the Lok Sabha passed such a poorly drafted Bill without making amendments. Several Rajya Sabha MPs cutting across party lines have issued notice for the Bill to be referred to a select committee. The government, and all those parties which allowed the Bill to pass in the lower house, should not worry about the loss of face a last-minute rethink might entail. If the law is passed as it is, it is India that stands to lose face.
A sentence in the second paragraph of the Editorial “Torture Bill is a travesty” (August 31, 2010) said: “Finally, when Article 2(1) of CAT clearly says that “no exceptional circumstances … whatsoever may be invoked as a justification of torture,” It should have been Article 2(2) of CAT and the full version is:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.
Keywords: Torture Bill