An Act Of Torture
By Arun Ferreira
12 May, 2010
Countercurrents.org
A critical appraisal of the proposed Prevention Of Torture Bill, 2010
The government is attempting to pass the PREVENTION OF TORTURE BILL, 2010 after it has received the nod from the cabinet on April 8, 2010. Although the Government of India signed the United Nations Convention against torture and other cruel, inhuman or degrading treatment or Punishment (UNCAT) almost 13 years ago, it has failed to ratify it till date. Coming under heavy pressure from the International community and civil society this proposed Bill is an attempt to “amend prevailing laws” so as to make torture a punishable offence. But as we shall see further, such a proposed legislation is only playing lip-service to the obligations set by the UNCAT and is nothing but a mere eyewash. The proposed legislation is not only a climb down from the standards set by the UNCAT but in many ways is in direct opposition to the basic norm of non-derogability of the Right of Freedom from Torture.
A watered down Definition of Torture
The definition of an act of torture specified in the proposed Bill has narrowed the scope of acts to be considered as offences amounting to torture. The definition of torture is elaborated in Article 1(1) of the UNCAT, which states:
“…torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
While on the other hand the proposed Bill defines torture as
“TORTURE
3. Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act which causes –
(i) grievous hurt to any person or
(ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture.
Provided that nothing contained in this section shall apply to any pain hurt or danger as aforementioned caused by an act, which is justified by law.
Punishment for Torture
4. Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person –
(a) for the purpose of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct;
(b) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
Given that the words and expressions of this proposed Bill have the same meanings as the Indian Penal Code (IPC) read with the comments added in the draft Bill, it is necessary to critically examine the implications of such a proposed definition. First of all, there is a drastic narrowing down of what constitutes an act of torture. The UNCAT lays emphasis to the infliction of “severe pain or suffering”, whereas the proposed Bill uses phrases such as “grievous hurt/danger to life, limb or health”. These expressions have a much narrower interpretation. For instance, acts of beating the victim with a stick, inserting chilli powder or petrol in the rectum of the victim, stretching the victims legs apart to an unbearable extent; application of electric current to the victims body or private parts; hanging the victim upside down from the ceiling, waterboarding; illegal detention, etc. currently practiced by our security agencies would cause “severe pain and suffering” but may not amount to “grievous hut/danger to life, limb or health” even in its broadest sense. Such acts which have conveniently evaded prosecution under the existing penal laws will continue to do so, even more, under the proposed Bill.
Secondly, certain acts which are already considered as torture under IPC (Section 330) have been consciously evaded in the proposed definition. Here, simple “hurt” by a public servant would call for a punishment of a seven year term and find. Thirdly, the purposes of torture included in the definition of the UNCAT are as (1) obtaining information/confession (2) punishment (3) Intimidation/coercion and (4) based on discrimination. On the other hand the proposed Bill restricts itself to only two of these i.e. the first and fourth. By such a restrictive definition torture committed by over-zealous public servants who see themselves as extra judicial penal authorities would not be liable for punishments. In such cases, like the Bhagalpur blindings, torture is committed for the sole purpose of punishment. Similarly in areas of mass resistance, acts of torture are committed on the protesters for the only purpose of forcing them into submission. Here to,, such an act would not attract any punishment under the proposed Bill. Finally, on the question of quantum of punishment there is no advancement to the existing provisions under section 331 IPC, which punishes grievous hurt with imprisonments upto ten years and fine. But for an act causing “danger to life” which would be prosecutable under section 307 IPC and attract punishment for life, the proposed Bill in fact seeks to reduce the punishment.
Overall, the proposed Bill rather than providing effective punishments for torture is instead a climb down from the International anti-torture standards and has even gone to the extent of diluting existing penal laws with regards to torture.
No change in the existing systems of Impunity
A major obstacle in punishing those who are responsible for acts of torture is the fact that they are “public servants”. The prosecution of a public servant becomes virtually impossible due to the existence of section 197 of Code of Criminal Procedure (CrPC) which provides that they cannot be prosecuted without prior permission from the government, either State or Central, which employs them. In the areas of Jammu & Kashmir and the North-East, where the writ of the Armed Forces Special Powers Act (AFSPA) runs, prosecution of Armed forces personnel responsible for torture is equally impossible, given the provision of section 6 of AFSPA, which reads:
“No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in the exercise of the powers conferred by this Act.”
Without any concrete step to repeal section 197 CrPC or the draconian AFSPA one cannot envisage any purposeful prevention of torture legislation.
Another impediment in the prosecution of public servants responsible for acts of torture is the fact that they enjoy immense power, authority and patronage in the administrative setup. They are therefore in a position to influence the investigation of an act of torture. Also given the fact that most acts of torture are committed within the walls of a lockup or detention centre it is extremely difficult to find reliable and trustworthy witnesses. In such a situation there is a strong possibility that corroboration of the victims’ testimony may be weak. This should not be used to the victims’ disadvantage.
Thus, if the fact of pain or suffering is proved and the victim testifies that the same has been caused by a public servant the court should presume the same. The proposed Bill lacks such an approach.
The proposed Bill in section 5, in fact creates another obstacle for the prosecution of the public servant. It introduces a limitation for cognizance of an offence by the Court which hither to didn’t exist in existing Criminal procedural law for offence punishable over 3 years. This limitation for cognizance by the Court is given as six months in the proposed Bill. Existing procedural law under section 468(2) (a) Cr.PC gives such time limitation for offences punishable solely by fine. Such as Jaywalking, spitting on the payment, etc. Such a time limit, in cases of torture is a judicial impossibility given that it would first of all take the victim quite some time to free himself from the public servant’s custody and administrative grip and thereafter build the confidence to file a complaint. Procedures of filing an FIR, obtaining sanction for prosecuting the public servant, arresting him and filing a charge sheet for the court to take cognizance would follow. Anyone well versed with the realities of the functioning of our judiciary will blatantly claim such a limitation as not only absurd but rather a malafide sleight of hand by the drafters of the bill (who see an act of torture as “serious” as pitting on the pavement) This in effect ensures that practically no case of torture will ever reach the stage of trial.
Silence on the use of “Scientific” tests
The proposed legislation also maintains silence on the governments legally accepted practice of conducting Narco-analysis, Polygraph and Brain mapping tests. Such tests are conducted for the purpose of extorting information, confession, by a public servant, and amounts of intentionally inflicting. Physical / mental suffering and degrading treatment. All these aspects amount to an act of torture as defined by the UNCAT. Such so-called scientific tests have also violated other International Human Rights standards such as Article 7 of the International Covenant pf Civil and Political Rights (ratified by the Govt. of India) which states;
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.
Such tests are already banned in the US and European countries. This matter is currently before the Supreme Court in a petition filed by the All India Lawyers Joint Action Committee praying for a ban on Narco-analysis. The National Law commission has proposed similarly. The FSLs in Bangalore, Gandhinagar, Mumbai and Chennai have stopped conducting these tests since the past two years. Even a committee appointed by the Union Home Ministry (headed by NIMHANS director D. Nagaraja) has questioned the very scientific basis of use of Brain mapping tests. It is therefore only logical that the proposed Prevention of torture legislation ought to unequivolly ban the practice of such tests.
Torture of terror suspects legally sanctioned
The most dangerous provision of this proposed Bill is that it would not apply when the victims of torture are covered by special laws such as the Unlawful Activities (Prevention) Act. Presently, the Unlawful Activities (Prevention) Act or UAPA is the foremost specialized anti-terror laws being used by the government. UAPA has been used indiscriminately on Muslims, Adivasis, Dalits, Journalists and other political, social, cultural and human rights activists. Such accused have been picked up on mere suspicion, tortured into submission, encountered, etc. for their alleged involvement in movements against the State or for their political convictions. This provision, if incorporated in the proposed Bill, while effectively closing the doors for redressal to all the above sections, gives a blatant signal for intensifying torture in such cases.
It is a well known fact, documented by numerous Human Rights organizations, that incidents of torture are systematically practiced by the security forces as part of a counter insurgency policy. In Jammu & Kashmir itself nearly 8000 to 10,000 persons have been tortured and thereafter “disappeared” since 1989. Many cases of custodial rape and murder have take place in Manipur and other North-East states: Instances of torture of Naxal suspects are quite common especially in areas of mass resistance. The Andhra government itself admitted that several innocent Muslim accused of the Hyderabad Bomb blasts of 2007 had been tortured. By such derogation the government attempts to present the “threat of terrorism” as a pretext for denying such suspects the right to remedies under the proposed Bill. This is indirect opposition to the very letter and spirit of the UNCAT, which states in Article 2(2) that:
“No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.
Here the government could very well draw lessons from the efforts of our Prime Minister’s daughter, Amrita Singh’s documentation along with the American Civil Liberties Union (ACLU) on reports of torture inflicted on terror suspects in US run overseas detention centers. The Bush administration faced severe criticism for such treatment of terror suspects and the Obama administration had been forced to take cognizance. No government whatsoever can invoke the bogey of terrorism as reason for the systematic practice of “special interrogation techniques” or other such forms of torture. This part of the proposed Bill is nothing but a blatant violation of the non-derogability of the basic right of freedom from torture.
Other serious shortcomings
The proposed Bill has provided for the setting up of Independent panels to deal with complaints of torture, both at the Central and State level so that such complaints would be forwarded to such panels. One can only envisage the future of such panels in the light of the implementation of the Protection for Human Rights Act, 1993. Similar provisions for setting up of State Human Rights Commissions and special Human Rights courts were provided for. But even after 17 years such bodies are absent in many states. The proposed Bill also does not after any right to compensation and rehabilitation to the torture victim. It also lacks any provision for mandatory unintimidated visits by the local judiciary to all detention centres and lockups within its jurisdiction. Both these are essential remedial measures put forth by the Human Rights movement for the Prevention of torture.
There, no doubt exists a need for a special and effective anti-torture programme. Historically, torture has been institutionalized in India. During the British rule, it had been used as a weapon to keep the “natives in submission” and suppress any National Liberation movement. The present ruling classes continue using this inherited institution for similar purposes i.e to counter people’s movements. Here torture is not an exception perpetuated by some “evil subordinates”, but rather a deliberate practice sanctioned by top ranking officials and policy makers. Special draconian laws such as TADA, POTA, UAPA, AFSPA etc. have further institutionalized torture. The proposed Prevention of Torture Bill, 2010 seems to be an attempt to preserve the foundation of this institution. It is a sham with the only objective of playing to the international audience an effort to establish the façade of being the “world’s Largest Democracy”.
Arun Ferreira is curently an undertrial in the Nagpur Central prison, arrested in May 2007 on charges of being a "naxalite", charges which have been disputed in the court of law; but he still continues to languish in jail on the remaining trumped up charges.
Arun Ferreira
Nagpur Central Prison
April 2010
