Thursday, October 21, 2010

Guest Post: The Curious Case of the Anti-torture Bill

I am pleased to publish another guest post from Arghya Sengupta, on the Prevention of Torture Bill 2010 - a topic that has been previously discussed on this blog.
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I.K. Gujral, the former Prime Minister, being the internationalist that he was, thought that signing the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was a good idea. Subsequent Prime Ministers evidently did not share his view, as despite its accession to the Convention in 1997, India remains one of the few countries, and certainly one of the few significant ones, to have not ratified the Convention. Thus when it was mentioned during the course of the Monsoon Session of Parliament that the government was readying an anti-torture legislation as ratification to the Convention requires, most, including myself, assumed that the government had had a change of heart. That is, till the legislation became public. Not only had Messrs Chidambaram and G. K. Pillai not had a change of heart, on the contrary, in the guise of an anti-torture legislation, the Bill sought to be passed legitimised torture to the greatest extent possible politically. The hardline credentials of the Home Ministry thus remained intact and the bill itself was referred to a Rajya Sabha Select Committee for recommendations.

This turn of events raises the following questions: Why was the Anti-Torture Bill sought to be passed at a time when clearly the Home Minister responsible for passing it and implementing its provisions has shown little intention of doing so? What could the Ministry have been thinking when it stated in the Preamble that the Bill was in pursuance of the necessity ‘to ratify the (said) Convention (UN Convention against Torture) and to provide for more effective implementation’ when the Bill itself failed to comply with both the letter and spirit of the Convention? Was it an attempt to hoodwink the Parliament and consequently the population into believing that this was an anti-torture legislation which would weed out the most commonly used instrument of state atrocity?

These are questions, answers to which we may never get. To understand however the curious nature of the legislation and why it is so egregiously violative of international law, a closer scrutiny of its provisions is warranted. The Pre-Legislative Briefing Service Report titled “The Prevention of Torture Bill, 2010: A Briefing Document” which we presented before the Parliamentary Select Committee yesterday, does precisely this. In this Report, we examine clauses 3, 4, 5, and 6 of the Bill on two metrics – their compliance with the Convention and their coherence with existing domestic law and Supreme Court jurisprudence. On both counts we find the Bill has fallen short. We thus suggest appropriate amendments to ensure that the anti-torture legislation is what it purports to be- a legislation prohibiting torture, adopts CAT standards in this regard and irons out inconsistencies with contrary statutory provisions, while at the same time ensuring that the provisions proscribing torture are not liable to rampant misuse. In sum, our effort in this report has been to reshape the legislation in a manner which is theoretically justified, practically efficacious and avoids taking a myopic view of India’s international law commitments, privileging short term symbolic conformity over actual substantive compliance as the present legislation does. Any comments or suggestions on our Report would be greatly appreciated and may be mailed to prelegislativebriefingservice@gmail.com.

1 comment:

Tarunabh Khaitan said...

arghya, thanks for this well-researched report. while i agree that some safeguard is needed to allow public servants to function properly, i fail to see why prior sanction has to be executive? as i argue in this article, section 170 of the CrPC already requires a police officer to send a case for judicial cognizance only when there is sufficient evidence. Further, section 190 of the Code gives discretion to the judicial Magistrate to refuse to take cognizance where it is not merited. Surely the state should trust its own prosecution and judicial agencies enough to assume that they will not pursue vexatious cases. why is an extra layer of protection merited? wouldn't it be better to insist on actual application of judicial mind under s. 190?