The Prevention of Torture Bill, passed without any discussion in the Lok Sabha during the Budget session and likely to be considered by the Rajya Sabha during the ongoing session, may deter the victims from lodging complaints rather than helping them, according to a new study.
Delhi-based PRS Legislative Research, in its analysis of the proposed law has pointed out that the definition of torture in the bill has been diluted in comparison what the United Nations had originally defined as an offence of torture.
“The definition of torture in the bill is inconsistent with its definition in the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment (UNCAT), which India seeks to ratify,” states the analysis provided by the PRS.
The UNCAT has defined torture as an act committed when public servants or persons acting on their behalf intentionally “impose severe pain or suffering, whether physical or mental” on someone for the purpose of obtaining information or a confession.
The section 3 of the bill, however, has defined torture as an act intentionally committed by a public servant that causes “grevious hurt” or “danger to life, limb or health of any person” while trying to obtain information or confession.
“The torture definition in the bill raises many issues. Grevious hurt does not include mental suffering or pain. It does not include many acts amounting to torture, punishable under the Indian Penal Code (IPC) and adds a requirement to prove the intention of the accused,” states the study.
The government had mentioned the 1984 UNCAT convention as the basis for this bill, which India had signed in 1997 and was under obligation to make a law in accordance with the convention to formally ratify it. The study, in its critique of the bill has pointed out that the bill will make it difficult for the accused to be tried for having committed the offence of torture.
“It states that complaints against torture can be made only within six months and sanction of the appropriate government has to be sought before a court can entertain a complaint,” it noted.
Following the 26/11 Mumbai attack in 2008, the government had amended the Unlawful Activities Prevention Act and increased the pre-charge detention period of an accused to 180 days (six months).
In case any person arrested under this law, wants to lodge a complaint of torture in custody, he won't be able to do so, since the time limit to complain would be over before he could be freed to complain.
There is no provision in the bill for an independent mechanism or authority to investigate the complaints of torture. “The investigating agency in cases of torture may also be the same department whose official has committed the offence,” the study said.