RCT Comments on the Indian Prevention of Torture Bill, 2010

The Rehabilitation and Research Centre for Torture Victims (RCT), an international NGO based in Denmark, runs a rehabilitation centre for survivors of torture in Copenhagen, conducts education and advocacy programmes, and works with partner organisations outside Denmark to improve treatment and rehabilitation, as well as the prevention of torture. In India, RCT works in partnership with the People’s Vigilance Committee on Human Rights (PVCHR). Introduction The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) requires States Parties to criminalise, prosecute and punish acts of torture under national criminal law. RCT welcomes the commitment of the Indian government to ratify the UNCAT, and in particular to criminalise torture in domestic Indian law, but has significant concerns regarding the proposed legislation. While many of the State obligations are identical to those under the International Covenant on Civil and Political Rights, by which India is bound, this paper will analyse the compatibility of the Prevention of Torture Bill 2010 with the requirements of UNCAT, as interpreted by the UN Committee against Torture (“the Committee”). It will consider in particular: 1. 2. 3. 4. 5. 6. Acts constituting torture; Purposes of torture; Persons who may commit the offence; Prosecution; Sentencing; Limitation period.

The paper will also consider some issues which are not included in the Bill, but are requirements of the UNCAT, as interpreted by the Committee, notably: 7. Exclusion of defences; 8. Universal jurisdiction; 9. Non-refoulement; 10. Obligation to investigate; 11. Duty to exclude evidence obtained by torture; 12. Protection of victims and witnesses; 13. The right of victims to redress.

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1. Acts constituting torture
Indian law Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes,— (i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture: Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law or justified by law. (Article 3, Prevention of Torture Bill) The following kinds of hurt only are designated as "grievous": First.-Emasculation. Secondly.-Permanent privation of the sight of either eye. Thirdly.-Permanent privation of the hearing of either ear. Fourthly.-Privation of any member or joint. Fifthly.-Destruction or permanent impairing of the powers of any member or joint. Sixthly.-Permanent disfiguration of the head or face. Seventhly.-Fracture or dislocation of a bone or tooth. Eighthly.-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. (Article 320, Indian Penal Code) UNCAT For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Article 1.1)

The Committee against Torture has consistently stated that the definition of the crime of torture in domestic law must cover at minimum the same conduct as the UNCAT definition.1 The Prevention of Torture Bill 2010 (henceforth “PTB”) falls short in this regard. Article 2(a) PTB provides that words and expressions used in the Act shall have the same meanings as in the Indian Penal Code henceforth “IPC”). According to Article 320 IPC, grievous hurt is limited to permanent disability or disfigurement, fracture or
See Rodley and Pollard, Criminalisation of Torture: State Obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2006, EHRLR 2: 115, pp.119-120; Reilly, Torture in International Law: A Guide to Jurisprudence, APT and CEJIL, 2009, pp. 18-19 (available at www.apt.ch).
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dislocation of bones, and severe physical pain. This test is much stricter than that of the UNCAT. Furthermore, this definition excludes purely mental torture, which is included within the UNCAT definition.2 A “danger to life, limb or health (whether mental or physical)” is not defined as such within the IPC. However, if these terms are given their normal meaning, they once again set a higher bar than the concept of “severe pain or suffering” in Article 1 UNCAT. Some practices, for example waterboarding, beating, falanga, or making a threat to torture, which amount to torture under international law, may not in all cases endanger life, limb or health. In order to avoid excluding conduct which amounts to torture under international law, the definition of the offence should be amended to include all elements of Article 1 UNCAT. Another issue to consider is the circumstance where the public servant or person acting with his or her consent or acquiescence is aware that the victim is particularly sensitive. Is it possible under this Bill as currently phrased, or based on current Indian jurisprudence, that acts which would not otherwise reach the threshold of severity to constitute torture may do so? The Committee against Torture has suggested that “severe pain or suffering” may in such cases be interpreted subjectively.3 Omissions can constitute torture, so if this is not implicitly included within the meaning of an “act” (as it is in Article 32 IPC), the word “omission” should be included for the avoidance of doubt.4 The exclusion in the PTB definition of pain, hurt or danger caused by any act which is inflicted in accordance with any procedure established by law or justified by law is highly problematic. The limited exclusion of lawful sanctions in UNCAT refers only to sanctions that are permitted under international law, and is not intended as a general catch-all to reduce the scope of the UNCAT to reflect existing domestic law; this would violate the general principle of international law, expressed in the Vienna Convention on the Law of Treaties, that a State “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”5 The wider restriction of the Bill is not in compliance with the UNCAT definition and should be amended. 2. Purposes of torture
Prevention of Torture Bill Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person— (a) for the purpose of extorting from him or from any other person interested in
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UNCAT For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing

This is well established. For example, the threat of torture may itself amount to psychological torture. See, for example, CAT, 1990, Concluding Observations on Argentina, UN Doc. A/45/44, para. 154. 3 See Dzemajl and others v Yugoslavia, 2002, CAT Communication No. 161/2000, para 9.2. 4 See Rodley and Pollard, op. cit., at p. 120.See also, for example, CAT, Concluding Observations on Chile, 2004, UN Doc. CAT/C/CR/32/5, paras. 6(j) and 7(m), where the Committee recommended that Chile eliminate the practice of refusing to provide emergency medical care to women suffering complications from illegal abortions, unless the women confessed to information about those who performed the abortions. 5 Article 27, Vienna Convention on the Law of Treaties. For a more detailed discussion of this issue, see Reilly, op. cit., pp. 31-38.

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him, any confession or any information which may lead to the detection of an offence or misconduct; and (b) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever… (Article 4)

him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, .... (Article 1.1)

The purposes listed in the Bill are less extensive than those of the UNCAT, and should be extended for full compliance with the treaty provisions. For example, the “information” foreseen in UNCAT is not limited to “information which may lead to the detection of an offence or misconduct” as in the PTB. Furthermore, the definition in the PTB excludes the purposes of punishment, intimidation and coercion, which are explicitly included in UNCAT. The Bill should be amended to include at least these purposes. The PTB limits the definition of torture to the purposes enumerated in its Article 4. In UNCAT, the phrase “such purposes as” indicates that the list of purposes is intended to be indicative rather than exhaustive. Other similar purposes may be included. Some authors have suggested that the element linking these purposes is “connection with the interests or policies of the State and its organs,”6 and others that the powerlessness of the victim is the primary element.7 The International Criminal Tribunal for Rwanda, for example, found that the degradation, humiliation and control or destruction of a person would also constitute prohibited purposes under this definition.8 3. Persons who may commit the offence
Prevention of Torture Bill Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to obtain from him or a third person such information or a confession which causes,— (i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture: .... Explanation.—For the purposes of this section, 'public servant' shall, without prejudice to section 21 of the Indian Penal Code, also include any person acting in his official capacity under the Central Government or the State Government. (Article 3) UNCAT … such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity… (Article 1.1) Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. (Article 4.1)

Burgers and Danelius, The United Nations Convention against Torture, Martinus Nijhoff, 1998, p.119. Nowak and McArthur, The United Nations Convention against Torture: A Commentary, OUP, 2008, pp.7677. 8 Prosecutor v Akayesu, 1998,Case No. ICTR-96-4, para 597. For a more detailed discussion, see Reilly, op. cit., pp. 149-150. The International Criminal Tribunal for the former Yugoslavia came to a similar conclusion. See Reilly, op. cit., pp. 151-152.
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The extensive definition of a public servant in Article 21 IPC, read in conjunction with the explicit extension in Article 3 PTB, is largely in conformity with the provisions of UNCAT. However, the Bill as currently phrased does not appear adequately to provide for the liability of public officials who knew or should have known that torture was likely to be committed by their subordinates, as required under the Convention.9 Article 4 UNCAT provides that States Parties must criminalise an attempt to commit torture, and complicity or participation in torture, in addition to direct acts of torture. The PTB currently makes no mention of an attempt to commit torture. It is also necessary to consider whether the concept of “being abetted by a public servant,” as interpreted by Indian courts, adequately covers the concepts of complicity and participation in Article 4 UNCAT, as interpreted by the Committee against Torture. For example, it seems doubtful that this concept adequately includes the notions of concealment or becoming an accessory after the fact. 4. Prosecution
Prevention of Torture Bill No court shall take cognizance of an offence punishable under this Act, alleged to have been committed by a public servant during the course of his employment, except with the previous sanction,— (a) in the case of a person, who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person, who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (Article 6) UNCAT 1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings. (Article 7)

Article 7.1 UNCAT provides that, where a person accused of torture is present on the territory of a State Party, that State must either extradite the person or “submit the case to its competent authorities for the purpose of prosecution.” Article 7.2 UNCAT provides that, when deciding whether to prosecute, the “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” Thus, in principle, the prosecution “must proceed unless it is relatively obvious that the evidence cannot support it.”10 Article 6 PTB, on the other hand,
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See Committee against Torture, General Comment No. 2, para. 26. Rodley and Pollard, op. cit., p. 133.

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effectively prohibits the prosecution of a public servant without the explicit permission of the government or authority which employs him or her. While this provision largely reflects Article 197 of the Indian Code of Criminal Procedure, it is particularly problematic in the context of the crime of torture, which may entail responsibility of superiors where they know, or should have known, that torture was likely. This provision constitutes a significant barrier to prosecution, and is therefore incompatible with Article 7 UNCAT. 5. Sentencing
Prevention of Torture Bill Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person… shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. (Article 4) UNCAT Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. (Article 4.2)

Article 4 PTB does not establish any minimum sentence for a person who has been found guilty of torture. The imposition of short sentences may violate Article 4.2 UNCAT.11 The Committee has not indicated any absolute minimum sentence which is appropriate for the crime of torture, although one author, through an analysis of the views expressed by individual Committee members, found that a sentence of between six and twenty years would generally be considered appropriate.12 In view of the special seriousness of the crime of torture, any minimum sentence should be equal to or greater than that which applies to the most serious crimes in India. 6. Limitation period
Prevention of Torture Bill Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no court shall take cognizance of an offence under this Act unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (Article 5) UNCAT 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. (Article 2)

The obligation of States Parties to the UNCAT to apply criminal law to all acts of torture is unlimited in time, so the Committee has made clear that no limitation period should

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See, for example, Urra Guridi v Spain, 2005, CAT Communication No. 212/2002, para. 6.7. Ingelse, The UN Committee against Torture: An Assessment, 2001, Kluwer Law International, p. 342.

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apply to this most serious of crimes.13 The exceptionally short limitation period, equivalent to that for the least serious offences under Article 468 of the Indian Code of Criminal Procedure, is clearly not compliant with the requirements of UNCAT, as interpreted by the Committee. 7. Exclusion of Defences Article 2.2 UNCAT makes clear the principle that no exceptional circumstances whatsoever may be invoked as a justification of torture, and gives examples of exceptional circumstances for clarity. The general principle that no circumstances can justify torture also means that statutory or common law defences such as self-defence, exceptional circumstances or necessity may not be invoked in reply to a charge of torture. The PTB currently contains no provision to this effect, but the Committee has indicated that domestic legislation should make this explicit.14 No limitation or prescription period, no immunity, no pardon, and no general amnesty can apply to the crime of torture.15 Explicit exceptions should therefore be made to relevant provisions of the Indian Penal Code and/or Code of Criminal Procedure. 8. Universal Jurisdiction While Article 1(2) PTB provides that the Bill will extend to the whole of India, the UNCAT in Articles 5-9 provides for universal jurisdiction for the crime of torture.16 As one of the objects of the UNCAT is to avoid impunity for torture, the Committee has clarified that “the Convention imposes an obligation [on a State Party] to bring to trial a person, alleged to have committed torture, who is found in its territory.”17 This obligation applies both where there is no extradition request, and where the State refuses to extradite the person; it therefore does not depend on the prior existence of such a request.18 Furthermore, where the State on whose territory the suspect is present does not prosecute, refusal to comply with an extradition request will itself amount to a breach of its obligations under UNCAT.19 Thus, States Parties must either exercise their jurisdiction to prosecute an individual suspected of torture, or to extradite that individual to a State where he or she will be prosecuted. 9. Non-refoulement Article 3 UNCAT provides that no State Party “shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” While this is a general provision
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See, for example, CAT, Concluding Observations on Turkey, UN Doc. CAT/C/CR/30/5, 2003, para. 7(c); CAT, Concluding Observations on Chile, UN Doc. CAT/C/CR/32/5, 2004, para. 7(f). 14 See Concluding Observations on Belgium, CAT/C/CR/30/6, 2003, para. 5(b) and 7(b); Rodley and Pollard, op. cit., p. 126. 15 See Rodley and Pollard, op.cit., pp. 125-128; Reilly, op. cit., p. 19. 16 For a more detailed discussion of universal jurisdiction as it applies to the crime of torture, see Reilly, op. cit., pp. 21-22, Rodley and Pollard, op. cit., 131-133. 17 Roitman Rosenmann v Spain, CAT Communication No. 176/2000, 2002, para. 6.7. 18 Guengueng and Others v Senegal, CAT Communication No. 181/2001, 17 May 2006, para. 9.7. 19 Ibid., para. 9.11.

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applying far beyond the criminal law, which may more effectively be included in other legislation, it should be taken into account when amending the PTB to allow for universal jurisdiction for the crime of torture. 10. Obligation to investigate Articles 12 and 13 UNCAT impose an obligation on States Parties to investigate whenever there are reasonable grounds to believe that torture has occurred, or where an allegation of torture has been made. Effectively transposing this obligation into national law is vital to the effective criminalisation and prevention of torture. Investigations must happen in practice, and suspects must be suspended from a position of authority for the duration of any such investigation.20 11. Exclusion of evidence obtained by torture Article 15 UNCAT provides that States Parties have a duty to exclude statements or evidence obtained by torture in any legal proceedings except as evidence against a person accused of torture. The PTB is silent on this issue, although once again it may be more appropriate to transpose this requirement through amendment of the Evidence Act or Criminal Procedure Code. To achieve full compliance with UNCAT, any potential incentive to torture, such as the use of statements and derivative evidence obtained by torture, must be removed. 12. Protection of victims and witnesses Article 13 UNCAT provides that victims and witnesses in cases of torture must be protected from reprisals. Once again, the PTB is silent on this issue. In light of the power relation at the heart of the crime of torture, effective criminalisation must ensure that the accused cannot abuse his or her position of power to intimidate the plaintiff or witnesses. This may either be included through an explicit provision in the PTB, or through the adoption or amendment of a more general Act on witness protection. 13. The right of victims to redress Article 14 UNCAT provides that “[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.” The PTB should therefore be amended to provide for an enforceable right to reparations for victims, to include the right to rehabilitation, which should apply whether or not any individual is identified as responsible, charged or convicted of torture. Article 357 of the Criminal Procedure Code is insufficient in this regard, as it depends on the conviction of an individual, and does not make any specific provision regarding rehabilitation.

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See Reilly, op. cit., pp. 15-17 for a more detailed discussion of this obligation.

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Conclusion Many of the issues raised in this paper were also raised during the debate in Lok Sabha, and indeed several members of that body suggested that either the Bill should be sent to the Standing Committee on Home Affairs for amendment, or more legislative time should be devoted to it. It should be noted that the steps to be taken to prevent torture foreseen in the UNCAT and anticipated by the Committee go far beyond criminalisation of torture foreseen in the draft Bill. For example, medical personnel must be trained on the Istanbul Protocol,21 and procedural safeguards should be in line with international standards including the Standard Minimum Rules for the Treatment of Prisoners22 and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.23 The rules, instructions, methods and practices in place must be subject to regular review and modified if they are found to be ineffective. While such training and procedural issues do not necessarily require inclusion in domestic legislation provided that the principles of the UNCAT are applied in practice, it is important to bear them in mind at the point of ratifying the treaty. The Prevention of Torture Bill 2010 requires clarification and amendment if it is to comply with the UNCAT. In particular, the Bill lacks a victim-oriented perspective; it contains no measures to protect victims from reprisals, and no enforceable right to reparations, including rehabilitation, for victims of torture. Such a perspective is vital if the Bill is to be effective in practice. RCT welcomes the commitment of the Indian government to criminalise torture, and would be happy to provide further comments on this or any future draft. Emma Reilly Programme Manager and Legal Adviser Rehabilitation and Research Centre for Torture Victims (RCT) ere@rct.dk www.rct.dk

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CAT, Concluding Observations on Turkey, 2003, UN Doc. CAT/C/CR/30/5, para. 7(k). See, for example, CAT, Concluding Observations on Kyrgyzstan, 1999, UN Doc. A/55/44, para. 75(e). 23 See, for example, CAT, Concluding Observations on Monaco, 2004, UN Doc. CAT/C/CR/32/1, para. 5(e).

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