LAW RESOURCE INDIA

The tortured bill

Posted in HUMAN RIGHTS by NNLRJ INDIA on September 2, 2010

PRATAP BHANU MEHTA IN THE INDIAN EXPRESS

Some legislative acts do not simply signal the credibility of the state; they define the measure of civilisation itself. On any measure, the Indian state’s record on custodial torture is an indictment of its democratic credentials.

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s; in Lok Sabha, the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.

Despite Supreme Court guidelines in D.K. Basu vs State of West Bengal on monitoring custodial deaths, the number of cases is increasing. The NHRC has proved to be a very ineffective tool to combat custodial deaths. The phenomenon of custodial deaths cuts across party lines. In absolute numbers, UP and Bihar are the worst offenders, but the record of Congress-led states, like Maharashtra and Andhra Pradesh, is also abysmal. India signed the United Nations Convention Against Torture in 1997. But it is one of the few democracies that has not ratified the convention, despite more than 140 countries having done so. What a measure of our normative backwardness.

But the use of torture is not just a normative blight; it is practically self-defeating as well. We have no idea how much disenchantment and distance the practice of torture puts between the police force and the citizens, particularly vulnerable groups in society. So potential

allies of the state become, at best, sullenly indifferent to it; at worst, they become actively hostile. And the use of torture does not indicate the strength of an institution; it indicates its weakness. Impunity degrades the credibility of the institution in whose name it is carried out.

It is in this context that the Prevention of Torture Bill needs serious scrutiny. The form in which the bill passed Lok Sabha is, to put it mildly, something of a joke. The bill, in its present form, is being dubbed by commentators as the “sanction of torture bill”. As the excellent brief on this bill by my colleagues at PRS Legislative Research has pointed out, it is, in terms of its own objectives, deeply deficient in several respects. (On Tuesday, Rajya Sabha referred the bill to a select committee.)

First of all, there is controversy over the definition of torture in this bill. It is too narrow and does not include several acts already included in the IPC. For instance, the current bill gives no protection against torture or threat of torture being inflicted on some other person like a relative, with a view to obtaining information from the interested party. It does not comply with the definition of torture in the UN convention on torture that India seeks to ratify. It limits torture only to “grievous hurt”, and danger to “life, limb or mental or physical health”. The UN definition by contrast, adopted worldwide, includes any “severe pain or suffering, whether physical or mental”. But the degree to which the Indian law deviates from the UN convention is a matter of some debate. After all, even the UN convention, according to some interpretations, is limited to the idea that extreme practices count as torture. An article of the convention obligates parties to prevent in territory under their jurisdiction “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to acts of torture”.

While the UN convention explicitly criminalises torture, it does not explicitly criminalise other forms of degrading treatment. In the UN convention not all forms of cruel or inhuman treatment amount to torture. This is important to understand. Underlying the watered down provisions in our bill seems to be the fear that an anti-torture bill should not lead to misuse against public officials. This fear is hugely exaggerated.

Even under existing law the prosecution rate is less than two per cent of all those who go to trial. It is therefore important to clean up the definition of torture. There is perhaps one thing we can learn from our colonial masters. The IPC is an old code with problems arising from its 19th century provenance. But one of its advantages as a piece of drafting is that it is

replete with examples that leave no doubt about what the legislation intends; and it also provides a useful aid to thinking analogically about hard cases. Our legislation by contrast is perfunctory and vague, and will therefore not provide an effective moral compass that signals what we wish to prohibit.

Second, the redress mechanisms are even weaker in the new bill. Requirements such as government sanction before prosecuting any public servant (again a dilution of existing law), a six month statute of limitation, and the absence of any independent investigative agency to probe into torture allegations, and the lack of any compensation mechanisms make the bill relatively toothless. They are almost an incitement to impunity.

There is perhaps one practice that might enhance the quality of all legislation in India. Just like many bills include “finance” supplement assessing the possible cost to government, all legislation must come with an assessment of the administrative requirements of each bill. This assessment would analyse the measures that have to be put into place for a bill to realise its objectives. This will do two things. First, it will partially address a crippling infirmity of all our legislation. There is simply no analysis of whether the state has the capacity to carry out the mandate of the legislation: the number of personnel required, the administrative structures that need to be in place and so forth. Parliament simply passes the bills and dumps them on to hapless state personnel who increasingly resent more responsibility being placed on them.

Second, it will give our legislation greater credibility. It will send a powerful signal that the state is not interested in simply being seen to pass legislation. It is also determined that that objectives of the bill be realised.

The Prevention of Torture Bill should have sent a credible signal that India is serious about tackling its record on custodial deaths and torture. And this signal needs to be sent, not just to the international community, for whose benefit this bill has been drafted, but to elicit the allegiance of our own citizens who fear the state more than they love it. But instead the bill is an exercise in bad faith, treating the issue of torture with a shocking degree of callousness.

The writer is president, Centre for Policy Research, Delhi

express@expressindia.com

http://www.indianexpress.com/news/the-tortured-bill/675580/0

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