Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”.[1] The Supreme Court has upheld this provision[2] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity.[3] Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5].

Similarly with respect to national security legislation, the infamous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill.[6] The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India.[7] Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India, the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement.[8] Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act.[9]

In addition to the immunity from criminal prosecution that perpetrators of torture and other abuses currently enjoy, perpetrators and the government itself also face little risk of having to pay significant compensation to victims of torture and other abuses. Articles 32 and 226 of the Constitution empower the Supreme Court and High Courts respectively to direct compensation for fundamental rights violations committed by government officials[10]. However, the Supreme Court has significantly restricted the ability of victims or their families to obtain compensation,[11] and has essentially prevented individuals from suing the state or Central governments in tort for abuses committed by police or security forces.[12]

In practice therefore, in large part due to such provisions requiring government sanction for prosecution and limiting compensation awards, torture and other fundamental rights abuses by police and security forces persist.[13]

Failings of the Prevention of Torture Bill[14]

The Prevention of Torture Bill, 2010, does nothing to address the above problems that create impunity. If, in fact, the Prevention of Torture Bill aims to reduce the amount of torture and bring justice for victims of torture, then the Bill’s deficiencies become glaringly obvious, particularly in light of the provisions of the Convention Against Torture[15], which the Prevention of Torture Bill aims to help India ratify.

Sanction

Most strikingly, the Bill includes a sanction requirement equivalent to the immunity provisions discussed above, despite the requirement in the Convention Against Torture to ensure effective, impartial, and prompt investigation, prosecution, and punishment[16]. Specifically, the Bill prohibits any court from taking “cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction … of the Central Government,… of the State Government,… [or] of the authority competent to remove him from his office.”[17]

Statue of limitations

The Prevention of Torture Bill further breeds immunity by placing a six month statute of limitations on the ability to file a complaint of torture. Specifically, Section 5 of the draft Bill provides that “no court shall take cognizance of an offence under this Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed.”[18] In view of the fact that those who face custodial torture may remain in custody for long periods of time following any torture that takes place and therefore are not likely have an opportunity to file a complaint for more than six months after such torture, this provision again severely limits the possibility of prosecution of torturers. Indeed, such a provision could even create incentives for police and other security officials who commit torture to hold detainees for at least six months after the last incidence of torture perpetrated against those detainees in order to avoid the possibility of prosecution.

Compensation

Further, the Bill provides no mechanisms by which victims of torture can seek or obtain compensation, despite the Convention Against Torture’s requirement to provide not only compensation but full rehabilitation and reparation[19]. As such, the status quo with regard to compensation will remain, namely that victims of torture and their family members have little recourse.

Restrictive definition

The restrictive definition of torture outlined in the draft Bill will further weaken any impact on the reduction of torture or the possibility of seeking prosecution or compensation for torture. Although the Convention Against Torture has a broad definition that encompasses “severe pain or suffering”[20], the draft Bill only includes actions that create post-torture harm or pose a “danger to life, limb or health”[21]. Additionally, whereas the Convention Against Torture includes acts committed for any one of four reasons (seeking information, punishment, intimidation, or a discriminatory purpose)[22], the draft Bill requires that acts can only be prosecuted as torture if they are done both to seek information and because of a discriminatory purpose[23]. Furthermore, the draft Bill does not prohibit or punish other forms of ill-treatment, including cruel, inhuman or degrading treatment, or complicity or other forms of participation in torture[24]. This severely limited understanding of prohibited abuses in the draft Bill again raises the risk of impunity due to the possibility that courts could interpret the Bill to only allow a very narrow set of conditions to constitute ill-treatment eligible for punishment.

Potential loopholes

The draft Bill also furthers the possibility of immunity by providing potential loopholes around the prohibition on torture. Although the Convention Against Torture absolutely prohibits derogation[25], the draft Bill exempts any ill-treatment “inflicted in accordance with any procedure established by law or justified by law.”[26] The “justified by law” part of this ambiguous provision could wrongfully embolden courts to throw out cases of alleged torture on grounds that the torture was done in order to further some other purpose, such as enforcing the Indian Penal Code after a crime is committed. Similarly, the “established by law” portion could allow the government to attempt to bypass the Bill by enacting further legislation establishing procedures for torture.

Statements obtained as a result of torture

The failure of the draft Bill to ban the use of statements made as a result of torture also furthers immunity by again limiting any negative repercussions for those who commit torture. Although under Article 20(3) of the Indian Constitution the use of self-incriminating statements made as a result of torture would not be admissible in a criminal case against the person making the statements[27], such statements could be used for a variety of other purposes, including to obtain other forms of evidence, and by various government agencies in non-criminal matters.[28]

Monitoring mechanisms

Similarly, the failure of the draft Bill to provide any additional mechanisms for monitoring the treatment of detainees in custody furthers immunity. Most significantly, the draft Bill does nothing to address the systematic failure to provide prompt access to legal representation and judicial oversight immediately following arrest[29], measures which could play a significant rule in reducing the risk or extent of custodial torture[30].

Conclusion

The Prevention of Torture Bill, 2010, as it currently stands does not address any of the longstanding problems that have created general impunity for widespread abuses by police and security forces. If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight. The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards.

[1] Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm.

[2] See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44.

[3] See, e.g., State v. B.L. Verma (1997) 10 SCC 772.

[4] CrPC, Section 45(1).

[5] CrPC, Section 132(1)

[6] See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: http://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html.

[7] Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.

[8] Masooda Parveen v. Union of India and Ors, 2007 AIR 1840.

[9] Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a).

[10] See Nilabati Behera v. State of Orissa, 1993 AIR 1960.

[11] See, e.g., M.C. Mehta v. Union of India, 1987 AIR 1086; Rudul Sah v. State of Bihar, 1983 AIR 1086.

[12] N. Nagendra Rao v. State of AP, 1994 AIR 2663.

[13] See, e.g., Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, Human Rights Watch, 111 (August 2009), available at: http://www.hrw.org/en/reports/2009/08/04/broken-system-0. [hereinafter “Broken System, Human Rights Watch”].

[14] A comprehensive critique of the Prevention of Torture Bill can be found in Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt” Economic and Political Weekly, Vol. 45, No. 25, 19-25 June 2010.

[15] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 10 Dec. 1984, available at: http://www2.ohchr.org/english/law/cat.htm [hereinafter ‘Convention Against Torture’].

[16] Convention Against Torture, at art. 12, 13; Concluding Observations of the Committee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009, available at: http://daccess-ods.un.org/TMP/9959587.html; Conclusions and recommendations of the Committee against Torture: Kyrgystan, A/55/44, para. 75c, 18 November 1999, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/434/06/PDF/G0043406.pdf?OpenElement.

[17] The Prevention of Torture Bill, Section 6.

[18] The Prevention of Torture Bill, Section 5.

[19] Convention Against Torture, Article 14. See also, Concluding Observations of the Committee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009, op. cit.

[20] Convention Against Torture, Article 1.

[21] The Prevention of Torture Bill, Section 3.

[22] Convention Against Torture, Article 1.

[23] The Prevention of Torture Bill, Section 4.

[24] See Convention Against Torture, Articles 4 and 16.

[25] Convention Against Torture, Article 2(2, 3); General Comment No. 2, at para. 6.

[26] Prevention of Torture Bill, Section 3.

[27] See, e.g., Smt. Selvi and Ors. v. State by Koremangala Police Station Crl. WP No. 64 of 2004, at 3.

[28] See, e.g., DK Basu v State of West Bengal, (1997) 1 SCC 416.

[29] See, e.g., Country Reports on Human Rights Practices, 2009: India, United States Department of State, 11 March 2010, available at: http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136087.htm.

[30] See The Constitution of India, Article 22(1); DK Basu v State of West Bengal, (1997) 1 SCC 416; Report of the Special Rapporteur on Torture, Theo van Boven, E/CN.4/2003/68, 17 December 2002, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G02/160/49/PDF/G0216049.pdf?OpenElement; Legal Safeguards to Prevent Torture: The Right of Access to Lawyers for Persons Deprived of Liberty, Association for the Prevention of Torture, March 2010, available at: http://www.apt.ch/component/option,com_docman/task,cat_view/gid,132/Itemid,99999999/lang,en/.

Human Rights Features


	HRF/206/10	28 June, 2010
	Impunity for Torture: More of the Same Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”.[1] The Supreme Court has upheld this provision[2] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity.[3] Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5]. Similarly with respect to national security legislation, the infamous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill.[6] The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India.[7] Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India, the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement.[8] Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act.[9] In addition to the immunity from criminal prosecution that perpetrators of torture and other abuses currently enjoy, perpetrators and the government itself also face little risk of having to pay significant compensation to victims of torture and other abuses. Articles 32 and 226 of the Constitution empower the Supreme Court and High Courts respectively to direct compensation for fundamental rights violations committed by government officials[10]. However, the Supreme Court has significantly restricted the ability of victims or their families to obtain compensation,[11] and has essentially prevented individuals from suing the state or Central governments in tort for abuses committed by police or security forces.[12] In practice therefore, in large part due to such provisions requiring government sanction for prosecution and limiting compensation awards, torture and other fundamental rights abuses by police and security forces persist.[13] Failings of the Prevention of Torture Bill[14] The Prevention of Torture Bill, 2010, does nothing to address the above problems that create impunity. If, in fact, the Prevention of Torture Bill aims to reduce the amount of torture and bring justice for victims of torture, then the Bill’s deficiencies become glaringly obvious, particularly in light of the provisions of the Convention Against Torture[15], which the Prevention of Torture Bill aims to help India ratify. Sanction Most strikingly, the Bill includes a sanction requirement equivalent to the immunity provisions discussed above, despite the requirement in the Convention Against Torture to ensure effective, impartial, and prompt investigation, prosecution, and punishment[16]. Specifically, the Bill prohibits any court from taking “cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction … of the Central Government,… of the State Government,… [or] of the authority competent to remove him from his office.”[17] Statue of limitations The Prevention of Torture Bill further breeds immunity by placing a six month statute of limitations on the ability to file a complaint of torture. Specifically, Section 5 of the draft Bill provides that “no court shall take cognizance of an offence under this Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed.”[18] In view of the fact that those who face custodial torture may remain in custody for long periods of time following any torture that takes place and therefore are not likely have an opportunity to file a complaint for more than six months after such torture, this provision again severely limits the possibility of prosecution of torturers. Indeed, such a provision could even create incentives for police and other security officials who commit torture to hold detainees for at least six months after the last incidence of torture perpetrated against those detainees in order to avoid the possibility of prosecution. Compensation Further, the Bill provides no mechanisms by which victims of torture can seek or obtain compensation, despite the Convention Against Torture’s requirement to provide not only compensation but full rehabilitation and reparation[19]. As such, the status quo with regard to compensation will remain, namely that victims of torture and their family members have little recourse. Restrictive definition The restrictive definition of torture outlined in the draft Bill will further weaken any impact on the reduction of torture or the possibility of seeking prosecution or compensation for torture. Although the Convention Against Torture has a broad definition that encompasses “severe pain or suffering”[20], the draft Bill only includes actions that create post-torture harm or pose a “danger to life, limb or health”[21]. Additionally, whereas the Convention Against Torture includes acts committed for any one of four reasons (seeking information, punishment, intimidation, or a discriminatory purpose)[22], the draft Bill requires that acts can only be prosecuted as torture if they are done both to seek information and because of a discriminatory purpose[23]. Furthermore, the draft Bill does not prohibit or punish other forms of ill-treatment, including cruel, inhuman or degrading treatment, or complicity or other forms of participation in torture[24]. This severely limited understanding of prohibited abuses in the draft Bill again raises the risk of impunity due to the possibility that courts could interpret the Bill to only allow a very narrow set of conditions to constitute ill-treatment eligible for punishment. Potential loopholes The draft Bill also furthers the possibility of immunity by providing potential loopholes around the prohibition on torture. Although the Convention Against Torture absolutely prohibits derogation[25], the draft Bill exempts any ill-treatment “inflicted in accordance with any procedure established by law or justified by law.”[26] The “justified by law” part of this ambiguous provision could wrongfully embolden courts to throw out cases of alleged torture on grounds that the torture was done in order to further some other purpose, such as enforcing the Indian Penal Code after a crime is committed. Similarly, the “established by law” portion could allow the government to attempt to bypass the Bill by enacting further legislation establishing procedures for torture. Statements obtained as a result of torture The failure of the draft Bill to ban the use of statements made as a result of torture also furthers immunity by again limiting any negative repercussions for those who commit torture. Although under Article 20(3) of the Indian Constitution the use of self-incriminating statements made as a result of torture would not be admissible in a criminal case against the person making the statements[27], such statements could be used for a variety of other purposes, including to obtain other forms of evidence, and by various government agencies in non-criminal matters.[28] Monitoring mechanisms Similarly, the failure of the draft Bill to provide any additional mechanisms for monitoring the treatment of detainees in custody furthers immunity. Most significantly, the draft Bill does nothing to address the systematic failure to provide prompt access to legal representation and judicial oversight immediately following arrest[29], measures which could play a significant rule in reducing the risk or extent of custodial torture[30]. Conclusion The Prevention of Torture Bill, 2010, as it currently stands does not address any of the longstanding problems that have created general impunity for widespread abuses by police and security forces. If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight. The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards. [1] Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm. [2] See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44. [3] See, e.g., State v. B.L. Verma (1997) 10 SCC 772. [4] CrPC, Section 45(1). [5] CrPC, Section 132(1) [6] See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: http://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html. [7] Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109. [8] Masooda Parveen v. Union of India and Ors, 2007 AIR 1840. [9] Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a). [10] See Nilabati Behera v. State of Orissa, 1993 AIR 1960. [11] See, e.g., M.C. Mehta v. Union of India, 1987 AIR 1086; Rudul Sah v. State of Bihar, 1983 AIR 1086. [12] N. Nagendra Rao v. State of AP, 1994 AIR 2663. [13] See, e.g., Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, Human Rights Watch, 111 (August 2009), available at: http://www.hrw.org/en/reports/2009/08/04/broken-system-0. [hereinafter “Broken System, Human Rights Watch”]. [14] A comprehensive critique of the Prevention of Torture Bill can be found in Ravi Nair, “Prevention of Torture Bill: A Feeble Attempt” Economic and Political Weekly, Vol. 45, No. 25, 19-25 June 2010. [15] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 10 Dec. 1984, available at: http://www2.ohchr.org/english/law/cat.htm [hereinafter ‘Convention Against Torture’]. [16] Convention Against Torture, at art. 12, 13; Concluding Observations of the Committee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009, available at: http://daccess-ods.un.org/TMP/9959587.html; Conclusions and recommendations of the Committee against Torture: Kyrgystan, A/55/44, para. 75c, 18 November 1999, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/434/06/PDF/G0043406.pdf?OpenElement. [17] The Prevention of Torture Bill, Section 6. [18] The Prevention of Torture Bill, Section 5. [19] Convention Against Torture, Article 14. See also, Concluding Observations of the Committee against Torture: Chad, CAT/C/TCD/CO/1, 4 June 2009, op. cit. [20] Convention Against Torture, Article 1. [21] The Prevention of Torture Bill, Section 3. [22] Convention Against Torture, Article 1. [23] The Prevention of Torture Bill, Section 4. [24] See Convention Against Torture, Articles 4 and 16. [25] Convention Against Torture, Article 2(2, 3); General Comment No. 2, at para. 6. [26] Prevention of Torture Bill, Section 3. [27] See, e.g., Smt. Selvi and Ors. v. State by Koremangala Police Station Crl. WP No. 64 of 2004, at 3. [28] See, e.g., DK Basu v State of West Bengal, (1997) 1 SCC 416. [29] See, e.g., Country Reports on Human Rights Practices, 2009: India, United States Department of State, 11 March 2010, available at: http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136087.htm. [30] See The Constitution of India, Article 22(1); DK Basu v State of West Bengal, (1997) 1 SCC 416; Report of the Special Rapporteur on Torture, Theo van Boven, E/CN.4/2003/68, 17 December 2002, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G02/160/49/PDF/G0216049.pdf?OpenElement; Legal Safeguards to Prevent Torture: The Right of Access to Lawyers for Persons Deprived of Liberty, Association for the Prevention of Torture, March 2010, available at: http://www.apt.ch/component/option,com_docman/task,cat_view/gid,132/Itemid,99999999/lang,en/. Human Rights Features
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