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We cannot compel Centre to ratify UN convention against torture, says SC

The Supreme Court on Monday said it respects the government’s “political compulsions” and will not compel the Centre to ratify the U.N. Convention against Torture or command it to frame a standalone anti-torture legislation.

The decision to refrain from passing any positive orders from a Bench led by Chief Justice of India Dipak Misra came in a PIL filed by former Union Law Minister Ashwini Kumar for a standalone anti-torture law. Mondau’s decision to dispose of the PIL came almost a year after the court had been entertaining it.

During the weekend, the judiciary had faced a repeated barrage of criticism for its “judicial activism.” Government ministers, speaking at Law Day and Constitution Day functions, had said that PILs cannot replace governance and policy decisions of the Executive.

Chief Justice Misra had strongly responded that the Supreme Court has never crossed its limits and upholds the code of mutual respect between judiciary and the government.

“How can we compel the government to make a law? Can we ask the government to ratify a treaty by way of a mandamus?” Chief Justice Misra asked Mr. Kumar.

Justice D.Y. Chandrachud, on the Bench, said “the government has to take a political decision on whether it should ratify the treaty.”

Mr. Kumar said the government has given a commitment to the international community to address torture, especially custodial torture.

“The government has made a commitment to the international community. It is conscious of its obligations. We would be crossing judicial limits by issuing a mandamus to the government. We have to respect the political compulsions of the government,” Justice Chandrachud observed.

Mr. Kumar argued it was the duty of the court to fill the gaps in written laws. “But it is a policy matter,” Justice A.M. Khanwilkar observed.

Attorney General K.K. Venugopal intervened to submit that the government is considering an anti-torture law.

The Law Commission of India has already recommended the Centre to ratify the United Nations Convention Against Torture and frame a standalone anti-torture law directly making the State responsible for any injury inflicted by its agents on citizens.

The Law Commission has suggests that the State should not claim immunity from the actions of its officers or agents.

“The State should own the responsibility for injuries caused by its agents on citizens... while dealing with the plea of sovereign immunity, the courts will bear in mind that it is the citizens who are entitled for fundamental rights, and not the agents of the State,” the Law Commission of India has advised the Centre.

Though India had signed the U.N. Convention against Torture in 1997, it is yet to ratify it. Efforts to bring a standalone law against torture have lapsed. The National Human Rights Commission has been strongly urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law.

The Supreme Court, while hearing the PIL filed by Mr. Kumar, had described torture as an instrument of “human degradation” used by the State.

It was after the scathing remarks of the apex court, the government had earlier referred the question of a law on torture to the Law Commission, its highest recommendatory body on laws.

In its 273rd report handed over to the Law Ministry on October 30, the Commission has proposed a new anti-torture law titled ‘The Prevention of Torture Bill, 2017’ which provides a wide definition to torture not confined to physical pain but also includes “inflicting injury, either intentionally or involuntarily, or even an attempt to cause such an injury, which will include physical, mental or psychological in nature.”

The draft Bill has recommended punishments for torture ranging from fine to life imprisonment on the perpetrator. In case a person in police custody is found with injuries, it would be “presumed that those injuries have been inflicted by the police.” The burden of proof is on the police to explain the injury on the undertrial.

The Bill proposes to give the courts to decide a justiciable compensation for the victims taking into consideration his or her social background, extent of injury or mental agony. The compensation should suffice to pay for the medical treatment and rehabilitation of the victim.


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Printable version | Jan 21, 2022 8:30:34 AM | https://www.thehindu.com/news/national/we-cannot-compel-centre-to-ratify-un-convention-against-torture-says-sc/article20970246.ece

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