The Prevention of Torture Bill: it’s requirement in India

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Torture Bill, 2010

The Prevention of Torture Bill, 2010 is brought to the cognizance by the Minister for Home Affairs, which makes torture comes under the forehead of punishable offense. The statement of an object for the Bill states that the Bill is being brought as by ratifying the United Nations Conventions against Torture of 1975. Though by this India becomes the signatory to such a Convention, thus to ratify this concept the Bill for the Torture of 2010 defines torture and provides us with different aspects where torture gets punishable.

The objective of the Prevention of Torture Bill, 2010 is to provide for punishment for torture brought into the commitment by the Government officials. The bill defines torture as grievous hurt, or which causes danger to life, limb, and hazards on health. Grievances against torture have to be made within six months of such torture caused. And for this request for the court’s proceedings, the sanction has to be taken from the government authorities.

Issues pertaining with the Statute regarding torture

The ambit of torture as far as is concerned with the bill finds very inconsistent with that to the definition as prescribed under the Convention against Torture, also it is like that until and unless the accused intention is not proved, the torture which was brought to face by the sufferer would not constitute to the torture. Even the definition when it is bringing into consideration with the suffering, it excludes mental pain and sufferings and various such acts which constitutes torture. There is no issuance of an independent authority for conducting investigation pertaining to complaints of torture, and no provisions for putting on compensation to victims of torture been made.

Torture and the implication of the bill

The preamble of the Bill of Torture states that the purpose for the enactment of the bill is to give punishment for practicing the torture by the public servant or any other person torturing the accused, under any consideration of any public servant and where it becomes necessary to bring into action of United Nations Convention against Torture and other Cruel, Inhuman, Degrading Treatment and Punishment.

Section 3 of the Bill defines and emancipates the act of “Torture” as ratified by the United Nations Convention against Torture and other Cruel, Inhuman, Degrading Treatment and Punishment. The section says that the act of the torture qualifies for such action when it causes the grievous hurt or causes danger to the life, limb or health whether a physical or mental effect on the health of any person. All the Offences which shall constitute the act of torture will be taken from the definition as prescribed or explained in the Indian Penal Code of 1860, which is been prescribed under section 2 of the Prevention of Torture Bill-2017.

When we go through the definition of Grievous hurt under the Indian Penal; Code- 1860, it states that if there is emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either of the ear, privation of any member or joint or if there is destruction or permanent impairing of the powers of any member or joint, if there is permanent disfiguration of the head or face, when certain acts lead to the fracture or dislocation of a bone or tooth and any hurt which endangers life or which causes the sufferer to be in a position of severe bodily pain for at least twenty days or when the sufferer is not able to follow his or her ordinary daily activities constitutes the provision for Grievous Hurt under the Indian Penal Code- 1860.

When taken into the purview the section 3 of the Bill with Section 320 of the Penal Code, will exclude several forms of torture such as beating, slapping, punching, sleep deprivation and forcing a person to sit, stand or lie down in uncomfortable positions, often generating pain for a long period of time.

Need of Anti-Torture law

There is such requirement of law and statute for the wide ambit of torture if we preferably and more specifically talk about offence which constitute tortures just because of its certain feature only as sections of the Indian Penal Code which prescribes about it, but instead of it the law has to be so mounded and briefed in manner by which the sufferer, satisfy which the accused receive for such grievous sufferings faced by the victim. Thus it has to be thought with the broader mind conceptual ideas. This has been stated so because there are many forms of torture that are prevailing but are not covered under the settled statutes of law.

It should be also brought into consideration the person who is committing such heinous crime or causes torture, is not to maintaining or establishing law with keeping into the context of a public servant only. Torture by whatsoever nature is caused has to be kept same for all and if a special statute is being framed considering the human rights and welfare of the citizen to be in a protected situation and where everyone could get justice from being getting tortured, it has to be made equal with all differentiated group too.

Despite various Constitutional safeguards given to the person who is kept in prison, but then to the deaths which are being committed because of torture are considered as one of the most heinous crimes which are practiced just torturing the people and causing their life to face death because of illicit torture. According to the report of the National Human Rights Commission, the reported cases of the custodial death were to be found was 2,318 cases in numbers. The thing which is happening is that the most cases where the death is caused because of torture inside the custody, the most cases were registered as suicides or sometimes encounters are frequently staged to murder under detention.

Thus, because of all such issues which were prevailing causing the death of the person because of torture, the Supreme Court insisted that the constitution in a specific way does not define ‘torture’, but to live with the right to a dignified life, mentioned under Article 21, is inclusive from safeguarding protection against torture.

“Torture of a person by other person is essentially a conduct to impose the will of ‘powerful’ over the ‘feeble’ which is very unpleasant as well as irrational” and thus because of it the term torture classifies itself to define or explain the darker side of the human species, which very ruthless conduct.

Torture is a practice which mainly prevails in police stations of the countries where many times it was observed that the police authorities tortured the accused with various purposes other than in need to quest the answers from them but for some other reason also, which is not demanded from the society by them and is not considered even in the eyes of law.

On Statutory Limitation

Law is not static. By virtue of the developments in international human rights jurisprudence post-1947, culminating in the drafting of the Rome Statute that established the International Criminal Court, torture can now be safely considered as a crime against humanity. To substantiate further, the settled position of law in India is that the right against torture has attained the status of a fundamental right by virtue of the interpretation of Article 21 by the Supreme Court of India. However, the Constitutional provision to have a ‘procedure prescribed by law’, which the current Bill is, should not be a procedure to proscribe the scope of a victim to pursue remedies against torture.

Often, as it has been proved in instances where brutal atrocities are committed against persons, victims take time to speak about it, for reasons like fear, an extreme state of trauma, displacement, lack of adequate knowledge or sheer absence of congenial circumstances to lodge a complaint. Further, prescribing a statutory period of limitation in the law contradicts certain existing propositions of law. The purpose of the legislation must be to criminalize torture, encouragement of the complaints pertaining to torture, prescribe a reasonable procedure for investigation and prosecution and provide punishment for the crime. All this must be conceived as aiming towards ending the practice of torture.

The quotient of the reasonableness of legislation, which is intended to prevent a heinous crime, is judged in the backdrop of the country where the legislation is implemented and the nature of the crime itself. At the moment, India is not a country where a victim of torture has all the congenial circumstances to lodge a complaint. From experience and by virtue of sheer statistics, victims of torture are from the poorest of the poor and from the marginalized communities.

Expecting everyone who are otherwise marginalized or having limited or even no resources at all to lodge complaints and pursue them to do so within a short window of time, is destined to defeat the very purpose of the law. Further, this defeat will imply that a victim’s right to prosecute a torture perpetrator will be circumscribed by the operation of limitation, unfortunately, built into an enabling law.

Conclusion

Thus from the article, it becomes much more clear in our view is that the torture, being practiced by the enforcement agencies to investigate upon the matter of crime more comprehensively. Generally, it has been argued by the investigating team is that they face a lack in advanced training and updated technological equipment which are must and thus it sometimes becomes necessary to scrutiny out all the issues by accused by giving him tough forces or may be called as torture.

It can be very effectively be taken into the understanding that the officers or servants who are been accountable with the deterrence quotient against a particular crime, will be leading to the torture of that person who has been taken into the custody and the main thing which will be left behind is the non-detection of the crime committed and thus because of it the enforcement agencies and investigating agencies are left barehanded in finding the actual scene involved in a particular act.

Law enforcement agencies including public servant are of the view that the practice of torture is the only way to have an investigation as well as to reach on a valid point satisfaction. If it is been seen in a strict sense the policymakers or critics or bureaucrats are of the opinion that there is nothing wrong in punishing the accused or the criminals when they are in custody, overall treating them as prisoner, not considering them as they are just accused of the investigative procedures to fulfilled, according to them a convict must also be the sufferer of torture.

Frequently Asked Questions: 

1) What was the objective behind the formation of the Prevention of Torture Bill 2010?

The objective of the Prevention of Torture Bill, 2010 is to provide for punishment for torture brought into the commitment by the Government officials. The bill defines torture as grievous hurt, or which causes danger to life, limb, and hazards on health. Grievances against torture have to be made within six months of such torture caused. And for this request for the court’s proceedings, the sanction has to be taken from the government authorities. 

2) What the preamble of the Prevention of Torture Bill 2010 states and how it has relevance with UN Convention against Torture?

The preamble of the Bill of Torture states that the purpose for the enactment of the bill is to give punishment for practicing the torture by the public servant or any other person torturing the accused, under any consideration of any public servant and where it becomes necessary to bring into action of United Nations Convention against Torture and other Cruel, Inhuman, Degrading Treatment and Punishment.

3) How has been the term “Torture” been defined under the Prevention of Tortuere bIll 2010?

Section 3 of the Bill defines and emancipates the act of “Torture” as ratified by the United Nations Convention against Torture and other Cruel, Inhuman, Degrading Treatment and Punishment. The section says that the act of the torture qualifies for such action when it causes the grievous hurt or causes danger to the life, limb or health whether a physical or mental effect on the health of any person.

4) What is the view of the investigation team or of the police officers in regards with the commission of torture as well as the Bill for torture is concerned?

Law enforcement agencies including public servant are of the view that the practice of torture is the only way to have an investigation as well as to reach on a valid point satisfaction. If it is been seen in a strict sense the policymakers or critics or bureaucrats are of the opinion that there is nothing wrong in punishing the accused or the criminals when they are in custody, overall treating them as prisoner, not considering them as they are just accused of the investigative procedures to fulfilled, according to them a convict must also be the sufferer of torture.

Edited by Chiranjeeb Prateek Mohanty

Approved & Published – Sakshi Raje

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Shikhar Shrivastava
Shikhar Shrivastava, currently pursuing 3rd Year Law Course [B.A.LL.B (Hons.)] from Indore Institute of Law, Indore (Madhya Pradesh). The areas of interest for him are Constitutional Law, Criminal Law, Environmental Law, Labour Law, Administrative Law, Human Rights Law. In order to pursue career in Law, he takes anxious curiosity in developing his research skills as well dealing with National and International Moot Court Competitions. He has worked with much of Online Internships for various Law firms established in Delhi, Bangalore. He too has published various Blogs, Legislative Comments, Short Articles, Newsletter articles, Articles for Journals.