A Critical Analysis of the Acts Amounting to Torture under the Prevention of Torture Bill, 2017.

By Eshani Vaidya

Introduction

“Custodial torture” is a naked violation of human dignity that largely destroys the individual personality.^[1] No violation of any one of the human rights has been the subject of as many Conventions and Declarations as ‘torture.’^[2] The Parliament, keeping in mind its international obligations under the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, introduced the Prevention of Torture Bill, 2017.

The Parliament has been “introducing” Bills dealing with this subject matter since 2010, but alas, none has passed yet. The Supreme Court sought the State Governments’ comments on the 2017 Bill in January, 2019, giving them 3 months for compliance. Nearly 6 months in, there has been no further development.

While the word ‘prevention’ finds its way into the title of the 2017 Bill, its significance seemingly ends there. The Bill seeks to punish torture and other Cruel, Inhuman and Degrading Treatment (CIDT) inflicted by public servants.

Key Issues

The Bill fails to address several key issues:

• The belief that torture and other forms of severe treatment are the only way to conduct fruitful investigations;
• Discriminatory grounds used for infliction of torture—religion, sex, age, sexuality, gender etc.—are justifiable;
• Lack of accountability in areas of arrest, investigation, detention and any other duty of the state with respect to detention centres;
• Lack of an efficient, victim-friendly complaint mechanism, thus allowing torture to remain unchecked;
• Lack of an independent investigation mechanism, leading to figures of authority concealing, disguising, participating, i.e. tolerating the torture committed by their colleagues;

Introduction of command responsibility

Any action that encourages, orders, conceals or tolerates torture or ill treatment must attract criminal liability.^[3] The use of a word like “tolerating” significantly lowers the threshold of intent and allows command responsibility, in its essence, to operate. One of the many reasons custodial torture remains unchecked is because the people working with the perpetrator tend to hinder the victims’ access to justice by concealing or covering up their colleagues’ actions.

A valuable addition to the Bill would be the introduction of the element of command responsibility. Supreme Court has held that it is the duty of the superior officers to examine, know and be responsible for what is happening within their jurisdiction. It doesn’t necessarily have to be proven that they were directly involved or physically present for the events leading to the commission of the torture.^[4] The effect of the aforementioned judgments is limited because this principle is yet to materialise in a legislation. The 2010 and the 2017 Prevention of Torture Bills both fail to include this element.

Restricted ambit due to unreasonably high standard established

The Bill doesn’t adequately define torture. The Convention against Torture includes any act by which severe pain or suffering, whether physical or mental, is inflicted, in its definition.^[5]  The terms used in the Bill are synonymous with their definitions under the Indian Penal Code, 1860, all of which are painfully limited. The Bill includes grievous hurt within the ambit of acts amounting to torture. The standard set by inclusion of this term is unreasonably high. Section 320 of the Indian Penal Code, 1860 includes acts leading to emasculation, permanent privation of sight or hearing, and fracture or dislocation of bones under grievous hurt. Any act that endangers life or causes severe body pain for a minimum period of 20 days is also included under this definition. The arbitrary definition allows acts that deserve to be criminalised go unpunished merely due to there being no physical marks or significant physical damage. It confers a much higher standard of physical injury than that prescribed in the Convention against Torture.

The Bill should punish those “tolerating” torture or ill-treatment, rather than restricting itself to those with a dominant intent. This would ensure that the people that were indirectly involved in the act through instigation, threats etc., would also be punished. This would effectively increase accountability among public servants.

Mental Health

There is a lack of attention given to offences that tamper with one’s mental health, personality or psychology. Torture should also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.[6] The Bhopal Central Prison subjected about 21 under-trial prisoners to physical harm, solitary confinement for prolonged periods and mental abuse. They were forced to throw their Qurans away and chant “Jai Shri Ram” repeatedly.[7] There are several instances of women being stripped naked by policemen, prisoners being kept in solitary confinement for prolonged periods of time etc., that have seen little to no judicial action in the victims’ favour. The aforementioned instances highlight the need for such a provision.

Purposive Element

The purposive element of torture only includes intentional acts committed to obtain information, intimidate or coerce the victim or a third person to confess to a crime. It is also important to recognise and penalise custodial torture and ill-treatment committed on the basis of religion, race, caste, community, language or any other discriminatory grounds.

The jurisprudence on matters of custodial torture and death has been vastly contradictory in nature. The Supreme Court despite ruling that torture is an instrument of human degradation allowed two policemen to beat young girls to “stake them out of the fear of psychosis” while they were testifying against a swami accused of rape[8]; permitted torture as long as its in accordance with the procedure established by law[9]; and also held that any law authorising torture will be ultra vires the constitution[10].

Ambiguity and the Introduction of Cruel, Inhuman and Degrading Treatment

The determination of acts amounting to torture and ill-treatment has been left open to judicial interpretation to a very large extent. The Bill criminalises intentional acts of a public servant amounting to ‘severe or prolonged pain or suffering’ and ‘danger to life, limb or health.’ Simultaneously, it excludes from its purview ‘mere mental agony or tension arising due to coercion’ from the acts amounting to torture. The Bill is meant to expressly prohibit torture and ill-treatment. When the statute itself leaves so much to judicial interpretation, it will remain ineffective in preventing and prosecuting the same.

Centuries of experience with torture, whether in propagating it or preventing it, has taught that in most cases, conditions that give rise to ill-treatment facilitate torture.[11] The criminalisation of CIDT, which lowers its threshold of tolerance, will allow acts that do not meet the high standards of torture to be punished. Interpretation of the word ‘severe’, while keeping in mind the nature of the harm inflicted, duration of the act, physical and mental effects of the act, etc.[12] would penalise CIDT and recognise harm to the mental health of the victim as well.

The key distinction between the two terms lies in their previse elements-severity, the type of suffering, the intent and purpose of the act etc.[13] The threshold for Cruel, Inhuman and Degrading Treatment is a lot lower than that of torture. Acts that do not amount to torture due to the lack of severity or the necessary purposive element; basically acts not being able to meet the high standards required to constitute torture, frequently come under the purview of CIDT. This element of CIDT makes it very important that the two are constituted as distinct from one another.

The only permissible exception to such acts should be if the same act is unlikely to cause great suffering to an ordinary person. However, if the perpetrator is aware of the particular sensitivities of the victim, then the relevant act should constitute torture.[14]

Conclusion

Ultimately the acts amounting to torture under the 2017 Bill fail to meet the objective of effectively punishing torture, as its definition of torture remains skewed. The unreasonably high standards, lack of command responsibility and ignorance of mental health fail to meet the international obligations and will fail to prevent and prosecute custodial ill-treatment, torture and death.

[1]D.K.Basu v. State of West Bengal, A.I.R. 1997 S.C. 610.

[2]Id.

[3]Human Rights Committee, General Comment 20, para 13, (Forty-fourth session, 1992), UN Doc. HRI/GEN/1/Rev.1 (1994).

[4]Anup Singh and Others V. State of Himachal Pradesh, A.I.R. 1995 S.C. 1941, Bimla Devi v. State of Punjab, 1991 (5) SLR 247.

[5]Article 1, Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment,1985.

[6]Erin Huntington, Torture and Cruel, Inhuman or Degrading Treatment: A Definitional Approach, 21 U.C. Davis J. Int’l L. & Pol’y 279 (2014).

[7]Baljeet Kaur, India’s Silent Acceptance of Torture Has Made It a ‘Public Secret’, EPW, https://www.epw.in/engage/article/indias-silent-acceptance-torture-has?0=ip_login_no_cache%3D669d64be24da5eafb686d2415b0055b2, (last accessed on 21st May, 2019).

[8]Kamalanantha v. State of T.N., (2005) 5 S.C.C. 360.

[9]Smt. Nilabati Behera v. State of Orissa and Others, A.I.R 1993 S.C. 1960.

[10]Francis Coralie Mullin v. Administrator, UT of Delhi, (1981) 1 S.C.C. 608.

[11]Nitya Ramakrishnan, IN CUSTODY: LAW, IMPUNITY AND PRISONER ABUSE IN SOUTH ASIA (1^st ed. 2013).

[12]Ireland v. The United Kingdom, 5310/71, Council of Europe: European Court of Human Rights, 13 December 1977.

[13]Id.

[14]Human Rights Committee, General Comment 20, para 13, (Forty-fourth session, 1992), UN Doc. HRI/GEN/1/Rev.1 (1994).

[The author is a fourth year student of School of Law, Christ (Deemed to be) University. Her internship with Alternative Law Forum brought her attention to the severe extent of custodial torture within the justice system.]

 

Advertisement