THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar I
(11.08.10)
(10:00 A.M. to 12:15 P.M.)
The Prevention of Torture Bill, 2010
Moderator : Slahuddin Ahmed.
Presenter : Saadiya.
Discussants : Anubha Dhulia and Jupi Gogoi.
Rapporteur : Utkarsh Yadav.
I. Background
Pursuant to the adoption of the Declaration on the Protection of All Persons from being subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by the General Assembly in 1975, the United Nations General Assembly adopted the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on December 10, 1984. India signed the convention on October 14, 1997 but has not ratified the same till date. Ratification of the convention requires enabling legislation to reflect the definition and punishment for “torture” as provided for in the convention. Although the Indian Penal Code contains certain provisions relating to the subject matter, the term “torture” is not defined in the manner it is provided in article 1 of the convention. In the given circumstance, the government of India felt it necessary that for the purpose of ratification of the convention, legislation should be enacted and therefore an attempt was first made in 2008 when the Prevention of Torture Bill 2008 was proposed which did not see the light of the day. A modified draft of the Bill, i.e. The Prevention of Torture Bill, 2010 was introduced in the Parliament and was passed by the Lok Sabha on May 6, 2010.
II. Overview of the Bill.
The Bill seeks, as mentioned in ‘statement of objects and reasons’, to define the expression "torture" and provide for punishment to those involved in the incidents of torture and specifies the time limit for taking cognizance of the offence of torture. Clause 3 of the Bill defines “torture” as any intentional act for the purpose of extracting confession or information, which causes “grievous hurt” or “ danger to life, limb or health (whether mental or physical)” to any person by a public servant or a person abetted by a public servant. However proviso to the clause excludes those acts, which are inflicted in accordance with procedure established by law. Clause 4 of the Bill penalizes an act of torture which is inflicted on a person “for the purpose of extorting confession” or “any information which may lead to the detection of an offence or misconduct” and “on the grounds of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.”
Clause 5 of the Bill requires the complaint to be made within 6 months from the date on which the offence is said to have been committed. The Bill requires prior government sanction for trying those accused of torture.
III. Issues
1. Whether the definition of torture given in clause 3 of the Bill is broad enough to include all kinds of acts that can be labelled as torture. Can torture be justified in any circumstances as provided for in the proviso to clause 3?
2. Whether the provision given under clause 4 of the Bill defeats the purpose of making torture a punishable offence when the Bill does not penalize “torture” per se as a criminal offence?
3. Is the Bill a sincere effort on the part of the legislature to ratify the convention? Is there any justification for not bringing it in conformity with the convention in toto?
Suggested Readings:
1. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984.
2. The Prevention of Torture Bill, 2010.
3. D.K. Basu v. State of West Bengal AIR 1997 SC 610
4. Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt”, 55 EPW 25 (2010)
5. Arun Ferreira, “A Critical Appraisal of the Prevent ion of Torture Bill, 2010” 55 EPW 10 (2010).
6. M.P Jain, Indian Constitutional Law, 1118-1120 (Wadhwa Nagpur, New Delhi, 5th edn, 2008)
7. Michael Goodhart, Human Rights: Politics & Practice 298 (Oxford University Press, New York 2009).
