NEW DELHI: The Law Commission is all set to recommend to the government that India ratify the UN Convention Against Torture and bring in a new law that is in accordance with provisions of the UN convention.
The commission, headed by Justice (retd) B S Chauhan, has prepared a report and a draft Bill that seeks to introduce stringent punishments against custodial excesses and other human rights violations.
The draft legislation, titled ‘The Prevention of Torture Bill, 2017’, recommends punishment up to death sentence for custodial violence and proposes that the perpetrators be made to bear the medical expenses of the victims. It recommends that they should also give compensation to the victims for rehabilitation.
For the purpose, the law panel has suggested amendments in certain provisions of the Criminal Procedure Code (CrPC) and the Indian Evidence Act.
The report says that in the CrPC, Section 357B shall be substituted with a new Section 357B, under which the compensation payable by the state government shall be in addition to the payment of fine to the victim.
The draft Bill was prepared after the Supreme Court in April this year asked the Centre to refer the matter to the commission. The apex court advocated the ratification of the convention. The government subsequently sought the advice of the law panel.
The commission is likely to submit its report, exclusively accessed by The New Indian Express, by the end of October, highly placed sources said. In the draft Bill, the definition of torture will include not just physical injuries but also mental suffering caused due to cruel, inhuman or degrading treatment. The law panel wants public servants to be held liable if they torture individuals in custody for extracting confessions or obtaining information about other accused. The punishment prescribed for obtaining forceful confessions is an imprisonment up to 10 years. Police officers found guilty of causing custodial deaths could be sentenced for life or even awarded death penalty.
Another important recommendation is regarding the burden of proof on authorities. The report states that if a person sustains an injury while in police custody, the onus shall lie on the officer concerned to explain such injury. For this purpose, the commission recommends inserting a new Section, 114B, after Section 114A in the Indian Evidence Act, 1872. “…If there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period,” the draft Bill states.
It also states that the government should own the responsibility for the injuries caused by its agents (police officials, other public servants) and should compensate the victims.
It further states that acts of torture will not be justified even if someone takes the defence of being instructed by his/her superior, or if the act was committed “during a state of war or any other emergency”. The panel has also recommended that trial in such cases should take place on a day-day basis and the probe be completed within three months.
Sources said if the government accepts the recommendations of the Law Commission, it could have far-reaching implications. Enacting a law that adheres to the UN convention would mean that India will have to abolish capital punishment by hanging and repeal the Armed Forces Special Powers Act.
Also, it will make tougher for the government to force Rohingyas out of the country.
On the other hand, ratification of the UN convention and framing of an enabling legislation could simplify the extradition process for the government. The absence of a standalone law prohibiting torture in India makes it difficult for the government to extradite criminals. A case in point is the recent refusal of a Danish court to facilitate the extradition of Purulia arms drop case accused Kim Davy on the grounds that he might face torture at the hands of the Indian police. In fact, the apex court had precisely made the same point while asking the government to consider framing a law against torture and custodial violence. “India faces problems in extradition of criminals from foreign countries because of this (having no law against torture),” the SC said in April.
The court’s observations came while hearing a PIL filed by former Law Minister Ashwini Kumar who argued that despite being a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, India had not ratified it because that would mean framing an enabling legislation on preventing custodial torture.
The international human rights treaty was adopted by the UN General Assembly on December 10, 1984, and came into force on June 16, 1987. The convention binds nations to take effective steps to prevent torture and forbids them to send citizens to any country where they believe the persons may be tortured.
Until now, 161 countries, including Afghanistan and Pakistan, have ratified the treaty. India is among the nine countries that are yet to ratify the treaty despite becoming a signatory in 1997. However, two members of the Law Commission, Bimal Patel and Abhay Bhardwaj, have written to the chairman, asking him to review the report.