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India may pass an anti-torture law, finally

Eleven years after signing an UN international treaty against torture, India may finally introduce domestic legislation to conform to some of the provisions - a critical step to ratifying the treaty.
By Devirupa Mitra | IANS, New Delhi
UPDATED ON FEB 11, 2008 12:46 PM IST

Eleven years after signing an UN international treaty against torture, India may finally introduce domestic legislation to conform to some of the provisions - a critical step to ratifying the treaty.

An inter-ministerial meeting held by the law ministry in the last week of January took the decision to start drafting an "umbrella law" against torture, which will be made ready "soon".

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly in 1984 and came into force in 1987 after 20 countries ratified it.

India put its initials to this international human rights instrument on October 14, 1997, but has still not ratified the treaty.

But India's interest in ratifying was rekindled after it won a seat for a period of three years at the newly constituted UN Human Rights Council in May 2007. India got more votes than any other country in the race.

"At the time of (the UN council) elections, we were reviewing what international treaties India has not yet signed. We found that while the torture convention had been signed, we had yet to ratify it," said a government official.

The lack of ratification is a bit of an embarrassment as already 145 countries are party to the treaty, while India keeps company with eight other nations in the non-ratified column - Sudan, Comoros, Congo, Dominican Republic, Sao Tome and Principe, Gambia, Nauru and Guinea-Bissau.

However, some of the 145 countries have also declared that they will not adhere to certain sections of the convention if it conflicts with their domestic legislation or constitution.

According to government officials, the key reason for India's reticence has been objections raised by the Ministry of Home Affairs on certain provisions in the convention.

The major contention was over the definition of torture in the convention, which included both physical and mental acts. Indian codes of criminal law and procedure do not extend the classification of torture to mental acts, though there have been court judgements that have provided a more broad-based description.

"There was serious opposition to broadening the concept of torture, especially from law and order authorities. The question raised was, will we shackle them down," the official said.

The UN treaty asserts that there cannot be any "exceptional circumstances" to justify torture, whether "a state of war or a threat of war, internal political instability or any other public emergency".

Then, there was also the question of how to implement the required changes - by amending existing legislation or introducing a new one.

With the anti-torture convention not a high priority, it also became a casualty of bureaucratic transfers.

"The issue always went into the bottom pile and at the end of every bureaucrat's tenure, his successor dusted the file, restarted the cycle and raised the same objections," said an official.

Ministry of External Affairs officials realised that if India wanted to ratify the instrument, it needed a new strategy, which could circumvent the Ministry of Home affairs. They zeroed in on the Ministry of Law and Justice.

"Foreign Secretary Shivshankar Menon wrote to Law Secretary TK Viswanathan to take up the matter and provide leadership," the official said.

On January 28, the law secretary held an inter-ministerial meeting attended by representatives of the external affairs and home ministries as well as the defence services.

"It was decided that the law ministry will prepare a draft stand-alone legislation that will be applicable to all organisations, including the military, and present it within one or two months," the official told IANS.

The legislation will go into issues of compensation - whether the state should pay or not if a state actor is the offender.

Separate domestic administrative machinery as per the convention was considered redundant, with officials pointing out that the National Human Rights Commission and its state-level offices have a similar mandate to stop violation of civil rights.

Once both house of parliament pass the legislation, the union cabinet will approve the ratification of the 1984 international convention.

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