In 1997, the Supreme Court made clear its position on torture. The Constitution does not define the term “torture”, the court ruled, but the right to dignified life guaranteed by Article 21 includes protection against torture.
“Torture of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering,” it said. “The word torture today has become synonymous with the darker side of the human civilisation.”
While the judiciary has reacted strongly to almost every case of torture brought to its notice, the same cannot be said of the executive and the legislature. In this context, the 273rd report of the Law Commission of India, released on Wednesday, is an indictment of the central government’s apathy and failure to deal with this crime.
Despite signing several international conventions expressly prohibiting all forms of torture, India has failed to pass a domestic law to sternly deal with this menace. Indeed, perpetrators of torture in this country are often state agencies, particularly the police and the armed forces.
The commission’s report provides yet another opportunity to set right this lacuna.
That torture was anathema to a civilised society was recognised in the West in 17th century, with Britain outlawing it in 1640. In the 20th century, Britain took the lead in implementing the United Nations’s Convention against Torture by introducing Section 134 of the Criminal Justice Act in 1988.
The United States honoured it in 1992 by adopting into its law the convention’s definition of torture. The Department of Justice is required to enable victims of torture to institute criminal proceedings and civil suits for damages.
India, in contrast, has a disappointing record. It signed the convention in October 1997, but is yet to ratify it. In 2010, the Prevention of Torture Bill was passed by the Lok Sabha and forwarded to the Rajya Sabha, which sent it to a select committee. The committee recommended some amendments, but the Bill lapsed before it could be passed in the Upper House. In the seven years since, no attempt has been made to revive the legislation even as the courts continue hearing cases that would come under the definition of torture, including custodial deaths and fake encounters.
A major reason for the Indian government’s reluctance to ratify the UN Convention against Torture is the Armed Forces Special Powers Act, which gives the security forces sweeping powers in areas where it is implemented. Signing the convention would mean either repealing the law or dropping key provision such as the concept of sovereign immunity, which gives the security forces protection against certain crimes. The convention is clear that torture is prohibited under all circumstances, including in times of war, and no extraordinary circumstance could justify circumventing human rights – a principle that the Armed Forces Special Powers Act clearly falls foul of.
The Law Commission’s report is a result of nudging by the Supreme Court: in 2014, the court said the report on torture should be taken up as a “matter of extreme urgency”, compelling the Centre to write to the Law Commission to expedite the process.
Although the commission has steered clear of dealing with the Armed Forces Special Powers Act as such, it has nevertheless given the Centre a draft law that could deal with the crime of torture effectively.
For one, it has said the concept of “sovereign immunity” should be watered down, a suggestion, which, if implemented, is bound to weaken special laws that are often described as draconian. The report states: “While dealing with the plea of sovereign immunity, the courts will have to bear in mind that it is the citizens who are entitled to fundamental rights, and not the agents of the State.”
The commission has recommended stringent provisions to deal with custodial violence. The commission has gone to the extent of stating that when someone in custody is hurt, the onus of proving it was not the result of torture should be on the state. Further, if a person dies due of torture, the perpetrator could be given the death penalty.
It has also recommended significant changes to a clutch of criminal laws such as the Indian Evidence Act and the Code of Criminal Procedure to allow victims of torture to seek compensation.
The first step to all this, of course, is ratifying the Convention against Torture, which would automatically obligate the Indian government to enact stringent provisions to honour its international commitment.