The Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26, 2010, and was passed by the Lok Sabha on May 6 (See Bill Summary here).  The Bill was not referred to a Standing Committee of Parliament.  The Bill has been introduced to allow India to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.  The Convention against Torture requires member countries to bring their domestic legislation in conformity with the provisions of the Convention.  The main features of the Bill, and the issues are highlighted below (For the PRS Legislative Brief on the Bill, click here). Main features of the Torture Bill

Features Explanation
Definition of ‘torture’ A public servant or any person with a public servant’s  consent commits torture if all three conditions are met:
  1. An act results in (i) Grievous hurt to any person  (Grievous hurt as defined in the Indian Penal Code - includes damage to limbs or organs); or (ii) danger to life, limb or health (mental pr physical) of any person, and
  2. The act is done intentionally, and
  3. The act is done with the purpose of getting information or a confession.
When is torture punishable?
  1. When it is committed for gaining a confession or other information for detecting an offence, and
  2. The torture is committed on certain grounds such as religion, race, language, caste, or ‘any other ground’.
Conditions under which courts can admit complaints
  1. The complaint has to be made within six months of the torture having been committed.
  2. The approval of the central or state government appointing the accused public servant has been taken.

The definition of torture The definition of torture raises the following issues:

  • It is inconsistent with the definition of torture in the Convention against Torture which India seeks to ratify;
  • It does not include many acts amounting to torture which are punishable under the Indian Penal Code;
  • It adds a requirement of proving the intention of the accused person to commit torture.  Current provisions in the IPC do not have this requirement.
  • Grievous hurt does not include mental suffering or pain.

Dilution of existing laws on torture The Bill makes it difficult for those accused of torture to be tried.  This is because (a) complaints against acts of torture have to be made within six months, and (b) the previous sanction of the appropriate government has to be sought before a court can entertain a complaint.

Relevant provisions in the Criminal Procedure Code and the Bill.
Subject Criminal Procedure Code Bill
Requirement of government sanction Sanction needed if (a) a public servant is not removable except with the sanction of the appropriate government, and (b) the public servant was acting in the course of his duties. Prior sanction of the appropriate government needed in all cases.
Time limits for filing complaints Time-limits exist for offences punishable with maximum imprisonment of up to three years. No time limits for offences which are punishable with imprisonment of more than three years. There is a time-limit though torture is punishable with maximum imprisonment of up to ten years.  Complaints have to be filed within six months.
Sources: Sections 197 and 468 of the Criminal Procedure Code, 1973; PRS.

Independent authority to investigate complaints There is no independent mechanism/ authority to investigate complaints of torture. The investigating agency in most cases of torture would be the police.  In many cases, personnel of the police would also be  alleged to have committed torture.  In such cases, the effectiveness of investigations in incidents of torture will be affected.

Independent authorities in other countries to investigate incidents of torture.
Country Authority/ Institution
France Comptroller General of the places of deprivation of liberty
Germany The Federal Agency for the Prevention of Torture
New Zealand Human Rights Commission, Police Complaints Authority, Children’s Commissioner
United Kingdom 18 different organisations, including Independent Monitoring Board, Independent Custody Visiting Associations, etc.
Sources: National Preventive Mechanisms, UN Subcommittee on Prevention of Torture; PRS.

Police Personnel sent for trials under existing laws, and convictions

The central government appointed the J&K Interlocutors Group on October 13, 2010.  The Group submitted the Report to the Home Ministry earlier this year.  The Report was made public by the Home Ministry on May 24, 2012. It may be noted that under Article 370 of the Constitution special status has been granted to the State of Jammu and Kashmir.  The power of the Parliament to legislate is restricted to defence, external affairs, communication and central elections.  However, the President may with the concurrence of the state government extend other central laws to the state.  Furthermore, in 1952, an agreement known as the Delhi Agreement was entered into between the state of Jammu and Kashmir and the central government.  The Agreement too provided that the state government shall have sovereignty on all subjects except for matters specified above.  However, since then some central laws relating to other subjects such as environment have been made applicable to the state. This blog post divides the recommendation into two broad headings: political; and socio-economic.  It also looks at the roadmap proposed by the Group to achieve these recommendations. Political recommendations:

  • The Group recommended that a Constitutional Committee (CC) should be set up to review all the central Acts that have been extended to the state of Jammu and Kashmir since 1952.  The CC should come out with its findings within six months.  According to the Group, the CC should review whether, and to what extent, the application of central acts to the state has led to an erosion of the state's special status.
  • The word ‘Temporary’ in Article 370 should be replaced with ‘Special’ which has been used for certain states such as Assam, Nagaland, Andhra Pradesh[1].
  • Central laws shall only be made applicable to the state if they relate to the country's security or a vital economic interest, especially in the areas of energy and water resources.
  • Currently, the Governor is appointed by the President.  The Group recommended that the state government shall give three names for consideration for the position to the President.  However, the Governor shall finally be appointed by the President.
  • Separate Regional Councils for Jammu, Kashmir and Ladakh should be created and certain legislative, executive and financial powers should be devolved to them.  The subjects that could be transferred to the Regional Council include prison reforms, public health, roads and bridges and fisheries.

Cultural, Economic and Social Recommendations:

  • There are 16 centrally sponsored schemes which are mostly funded by the centre.  However, most of the funds for these schemes have not been utilised properly.  The Group recommended that an effective system to monitor these schemes should be put in place.
  • An expert committee to review the state’s financial needs should be constituted.
  • The central government should tap the hydro-electricity potential of the state.  Till date only 15 per cent of the potential has been harnessed.  Additional hydro-electricity projects should be established for which the central government should meet the entire equity capital.
  • Industrial establishments and other buildings occupied by the security officers should be vacated.
  • Financial package of incentives on the pattern given to the North Eastern States should be given to the state.
  • The hilly, remote areas should be declared as special development zones.
  • The restrictions on the internet and mobile phones should be reviewed.

In order to fulfil these recommendations, the Interlocutor’s Group proposed the following roadmap:

  • The ‘stone pelters’ and political prisoners against whom no serious charges have been framed should be released.
  • There should an amendment and review of the Armed Forces Special Powers Act, 1990 and the Jammu and Kashmir Public Safety Act, 1978.
  • The state policy should provide for the return of Kashmiri Pandits.
  • A judicial commission to supervise the identification of bodies buried in the unmarked graves should be established.

The full report may be accessed here. Sources:

[1] Article 371 provides certain ‘special provisions’ with respect to states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh and Sikkim