The Law Commission of India has recommended the Centre to ratify the United Nations Convention Against Torture and frame a standalone anti-torture law directly making the State responsible for any injury inflicted by its agents on citizens.
The State shall not claim immunity from the actions of its officers or agents.
“The State should own the responsibility for injuries caused by its agents on citizens... while dealing with the plea of sovereign immunity, the courts will bear in mind that it is the citizens who are entitled for fundamental rights, and not the agents of the State,” the Law Commission of India told the Centre.
The recommendation of the Commission, headed by former Supreme Court judge Justice B.S. Chauhan, will now work to add pressure on the government to recognise torture as a separate crime. So far, neither the Indian Penal Code nor the Code of Criminal Procedure Code specifically or comprehensively addresses custodial torture.
Though India had signed the U.N. Convention Against Torture in 1997, it is yet to ratify it. Efforts to bring a standalone law against torture had lapsed. The National Human Rights Commission (NHRC) has been strongly urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law.
The Supreme Court, recently while hearing a PIL filed by former Union Law Minister Ashwani Kumar, had described torture as an instrument of “human degradation” used by the State.
It was after the scathing remarks of the apex court, the government had referred the question of a law on torture to the Law Commission, its highest recommendatory body on laws.
In its 273rd report handed over to the Law Ministry on October 30, the Commission has proposed a new anti-torture law titled “The Prevention of Torture Bill, 2017” which provides a wide definition to torture not confined to physical pain but also includes “inflicting injury, either intentionally or involuntarily, or even an attempt to cause such an injury, which will include physical, mental or psychological.”
Firstly, the Commission has asked the government to ratify the U.N. Convention Against Torture to tide over the difficulties faced by the country in extraditing criminals.
The draft Bill has recommended punishments for torture ranging from fine to life imprisonment on the perpetrator. In case a person in police custody is found with injuries, it would be “presumed that those injuries have been inflicted by the police.” The burden of proof is on the police to explain the injury on the under-trial.
The bill proposes to give the courts to decide a justiciable compensation for the victims taking into consideration his or her social background, extent of injury or mental agony. The compensation should suffice to pay for the medical treatment and rehabilitation of the victim.