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India‘s baby step to prevent custodial tortures

Context:

The Union government is seriously considering the 273rd Report of the Law Commission, which has recommended that India ratify the United Nations Convention against Torture and pass a law to prevent torture and punish its perpetrators.

Introduction:

  • The recommendation of the Commission, headed by former Supreme Court Judge Justice B.S. Chauhan, will now work to add pressure on the government to recognise torture as a separate crime.
  • Recently, the court had sought the Centre’s response to a petition filed in public interest by former Union Law Minister Ashwani Kumar, who complained about the delay in India ratifying the UN Convention, which it had signed in 1997.
  • The petition had also favoured a standalone legislation to prohibit torture.
  • India has made many requests for extradition of offenders from other countries, and the absence of an anti-torture law may prevent these countries from acceding to India’s request.

Need for a law to quite custodial cruelty:

  • Custodial violence continues to be prevalent in India.
  • The recent example of a bus conductor being forced to confess to murdering a schoolchild is a pointer to the use of torture as an investigative tool among policemen.
  • So far, neither the Indian Penal Code nor the Code of Criminal Procedure Code specifically or comprehensively addresses custodial torture.
  • 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 had lapsed.
  • The National Human Rights Commission (NHRC) has been strongly urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law.
  • The ratification by India will improve its image as a responsible & a liberal nation & will also improve cooperation in criminal matters.
  • It would be in the national interest .
  • It will help in protecting of human rights.

Law Commissions recommendation:

  • The Law Commission of India has 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 State shall 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 Commission has asked the government to ratify the U.N. Convention Against Torture to tide over the difficulties faced by the country in extraditing criminals.

The Prevention of Torture Bill:

  • The Law Commission has proposed a new anti-torture law titled “The Prevention of Torture Bill, 2017”.
  • The Supreme Court, in a recent hearing, had described torture as an instrument of “human degradation” used by the State.

Key features of the Bill:

  • 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.”
  • The Bill was passed by the Lok Sabha in 2010 to address the problem, but it lapsed after it was referred to a Select Committee in the Rajya Sabha.
  • 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 under-trial.
  • 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.

UN Convention against torture:

  • The UN Convention against torture is an international treaty signed and enforced in 1984 and 1987 respectively.

Significance of the convention:

  • It aims to prevent torture and other acts of cruel, inhuman or degrading treatment and punishment around the world.
  • It considers all acts of torture as criminal offence.
  • It includes right of compensation for victims.
  • It forbids nations to send citizens to any country where they believe the transported person may be tortured.
  • It inspires the countries and individuals to avoid inhuman treatment to others.

India signed the convention in 1997. However, it has not ratified it till now. The ratification by making a law on the subject is in the best interest of India due to following reasons:

  • It would facilitate the extraditions of Indians from other countries, strengthening the rule of law in India.
  • It would be better served by adhering to international conventions.
  • In the era of increasing international cooperation on criminal on criminal matter, India.
  • It would facilitate the extradition of Indians from other countries, strengthening the rule of law in India.
  • It would enhance India’s credibility on human rights front.
  • In the era of increasing international cooperation on criminal matter, India’s interest would be better served by adhering to international conventions.
  • It will also support the people suffering from mental and other form of disabilities.

Issues involved in custodial tortures:

  • Misuse: There have been multiple cases of custodial tortures, deaths enforced disappearances, intimidation of opponents and activists. The problem of torture is also faced by bonded labourers, trafficked women and
  • Mental illness: In several cases torture has led to mental illness among captives where state should be held responsible for their condition.
  • Ethics of torture: There arises a complex question of ethics of human right of an individual versus the security where its not easy to take a completely black or white position.

Way ahead:

  • The government should now act with a sense of urgency without any further delay legislative measures to eliminate all forms of torture and other cruel, inhuman and degrading forms of treatment.
  • Recently, extradition courts in the United Kingdom refused to send two persons to India to face trial, on the ground that there was “no effective system of protection from torture in the receiving state”.
  • Conditions in India’s prisons, especially the chronic problem of over-crowding, are a reason for the country’s extradition requests failing.
  • The government should accept the recommendations without delay as it not only provides a penal framework for punishing public servants who inflict torture, but also lays down that just compensation be paid to victims.
  • Modernisation of criminal justice system is required.
  • Reforms in laws related to IPC, laws relating to prevention of torture, sensitization of police and improving its image is the need of the hour.
  • Modernisation of police investigation, modern forensic tools, improving human intelligence, area specialization.

Conclusion:

The government must legislate on this matter and ratify the convention as soon as possible.

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