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Dear Honourable Members of Parliament,

Asian Centre for Human Rights on behalf of the participants of the National Conference on the Prevention of Torture Bill, 2008 (as drafted by the government of India) is writing this letter to seek your intervention with the Honourable Prime Minister of India to place the Prevention of Torture Bill after ensuring compliance with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).

India is the largest democratic country in the world. Yet, torture remains a routine practice. The National Human Rights Commission (NHRC) in its Annual Reports recorded the custodial deaths of 16,836 persons or an average of 1203 persons per year during 1994-2008. These included 2,207 deaths in police custody and 14,629 deaths in judicial custody as given below:

Year: Police Custody, Judicial Custody, Total

1994-1995: 111, 51, 162

1995-1996: 136, 308, 444

1996-1997: 188, 700, 888

1997-1998: 193, 819, 1012

1998-1999: 183, 1114, 1297

1999-2000: 177, 916, 1093

2000-2001: 127, 910, 1037

2001-2002: 165, 1140, 1305

2002-2003: 183, 1157, 1340

2003-2004: 162, 1300, 1462

2004-2005: 136, 1357, 1493

2005-2006: 139, 1591, 1730

2006-2007: 119, 1477, 1596

2007-2008: 188, 1789, 1977

TOTAL

(1994-2008): 2207, 14629, 16836

However, these custodial deaths represent only a fraction of the incidence of torture in India. There is no record of torture that does not result in custodial death. The Supreme Court’s guidelines in the case of D.K.Basu Vs State of West Bengal or NHRC’s Guidelines to report custodial death and rape cases within 24 hours are failing to end the practice of torture. In fact, the number of custodial deaths in India have been rising consistently with 1,037 custodial deaths in 2000-2001; 1,305 in 2001-2002; 1,340 in 2002-2003; 1,462 in 2003-2004; 1,493 in 2004-2005; 1,730 in 2005-2006; 1,596 in 2006-2007 and 1,977 in 2007-2008.

Failure to legislate against torture, other cruel, inhuman or degrading treatment or punishment sends an unfortunate message. It opens the possibility to abuse that will eventually lead to torture and death. The civil society organisations, the NHRC as well as the United Nations have been urging the Government of India to ratify the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). India signed the UNCAT in 1997 but has not ratified the same so far. In order to “ratify the said Convention and to provide for more effective implementation”,1 in 2008 the Ministry of External Affairs, Government of India, has drafted the Prevention of Torture Bill, 2008. The Bill contains three operative paragraphs relating to (1) definition of torture, (2) punishment for torture and (3) limitations for cognizance of offences.

The Asian Centre for Human Rights organized the “National Conference on the Prevention of Torture Bill, 2008” at India International Centre, New Delhi on 24-25 June 2009. The National Conference reviewed the Bill and made specific recommendations as summarised below.

The National Conference on the Prevention of Torture Bill, 2008 recognised that the issue of torture is complex and prevention of torture and protection from torture require numerous legal mechanisms. If the end goal of the Prevention of Torture Bill, 2008 is to comply with the UNCAT then the Bill, as drafted, must be considered to have failed, not only in terms of the substance but equally by significant omission. The Bill not only falls short of the UNCAT but also the existing national standards on the administration of justice in India.

The National Conference on the Prevention of Torture Bill, 2008 unanimously agreed that the government of India should expand the definition of torture to conform to the obligations of the UNCAT. Despite the widespread prevalence of death resulting from torture as cited above, the Prevention of Torture Bill, 2008 makes no reference to death as a result of torture. This means acts of torture resulting in death, if prosecuted at all, will be treated as a murder and may not incorporate the gravity of the crime of torture committed as part of the crime.

The National Conference on the Prevention of Torture Bill, 2008 expressed concerns that there is no reference to “other cruel, inhuman or degrading treatment or punishment” anywhere in the Prevention of Torture Bill, 2008. Nor is intimidation and coercion included in the Bill. This means that acts of serious violence – that do not constitute torture - will not be covered. It equally means that death threats including to a victim’s family may not be covered. The Bill does not conform to Article 16 of the UNCAT which requires India to undertake measures to prevent acts of cruel, inhuman or degrading treatment or punishment.

The National Conference on the Prevention of Torture Bill, 2008 unanimously agreed that the punishment for torture provided in the Prevention of Torture Bill, 2008 is inadequate. The Bill proposes a maximum of 10 years imprisonment. This opens the possibility that the courts can award a trivial sentence for what is a grave crime. The Prevention of Torture Bill, 2008 equates crimes by the law enforcement personnel such as torture with ordinary crimes. Law enforcement personnel exercise the sovereign power of the State.

They are entrusted to carry out duties of state and are empowered with special powers and have higher level of responsibility. Hence the crimes by the law enforcement personnel should be considered more seriously and harsher punishment than what is provided in the Indian Penal Code is called for. For India to comply with the UNCAT the Convention is clear that punishment should reflect the gravity of the crime committed (Article 4.2).

The National Conference on the Prevention of Torture Bill, 2008 expressed grave concerns that excessive statutory limitations in the Prevention of Torture Bill, 2008 contradict existing Indian law. It states that “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”. This limitation is less than what is provided under the Criminal Procedure Code. For example, in its definition, the Prevention of Torture Bill includes ‘grievous hurt’ as part of infliction of torture. But there is no statutory limitation for taking cognizance of offences of ‘grievous hurt’ under the Criminal Procedure Code.

The National Conference on the Prevention of Torture Bill, 2008 expressed concern about the failure of the Prevention of Torture Bill, 2008 to fully comply with the requirement of the UNCAT that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”. At present, Section 197 of the Criminal Procedure Code and other special laws make prior sanction from the government mandatory for prosecution of the accused public servants responsible for torture and other human rights violations. The permission is rarely given. It implies that in practice government of India allows for ‘exceptional circumstances’ through the need for prior permission for prosecution. International law including the UNCAT is very clear about the need to avoid exceptional circumstances, as this is precisely where violations take place. Provisions like Section 197 which provide legal space for exceptional circumstances have been responsible for increasing human rights violations; violations that are compounded by the absence of investigation afforded by the exception.

Finally, the Prevention of Torture Bill, 2008 also fails to address the following obligations for compliance with

the UNCAT. The Bill fails to address compliance with the following obligations under the UNCAT:

n ensuring that an order from a superior officer or a public authority may not be invoked as a justification of torture (Article 2);

n establishing jurisdiction over acts of torture committed by or against a party's citizens (Article 4);

n ensuring that torture is an extraditable offence (Article 8);

n establishing universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited (Article 5);

n providing mechanism to promptly investigate any allegation of torture (Articles 12 & 13);

n providing an enforceable right to compensation to the victims of torture (Article 14);

n Banning the use of evidence produced by torture in the courts (Article 15); and

n Barring deportation, extradition or refoulement of any person where there are substantial grounds for believing she/she will be subjected to torture (Article 3).

Civil society organisations are aware that there is strong opposition to the criminalization of torture in India. Eleven years after signing of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the government of India has not taken concrete steps to ratify the CAT and adopt a domestic law against torture. Terrorism and national security are often cited as the reasons for such opposition.

But the evidence gathered by the Asian Centre for Human Rights suggests that the use of torture is employed as a routine practice. A significant majority of the 16,836 custodial deaths, especially 2,207 persons killed in police custody in the last 14 years were summoned, detained or arrested for petty offences and succumbed to torture. And a disturbingly high proportion of those killed are poor or belong to the Scheduled Castes or the Scheduled Tribes.

The security argument is unsubstantiated. Rather, there is evidence that human rights violations are counter productive. It is an open secret that gains made through democracy and relative good governance in many insurgency affected areas including Jammu and Kashmir have been repeatedly nullified by human rights violations including torture by the security forces. Indeed, in recognition of this fact, in July 2009, Mr Ashiq Hussain Peer, a soldier with the 160th Territorial Army Battalion was dismissed from services within four hours to ensure fair trial and to find out if he was involved in the death of Ms Amina Masoodi on 9 July 2009 in Kupwara, Jammu and Kashmir.

Again, there are few who support the security argument that would deny that the American symbols of Abu Ghraib and Guantanamo Bay have acted as powerful recruitment tools by the terrorists. Respect for human rights must be a central part of the response to fight terrorism and insurgency. The Americans cannot point to evidence that the use of torture has been an effective weapon in defeating terror, and President Barack Obama’s decision to end these practices confirms this.

The largest democratic country, India, must not only commit to but take measures to ensure ‘the rule of law, individual freedom, personal liberty and security enshrined in Indian polity’. This includes ratifying the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and enacting an effective national anti-torture law.

The Asian Centre for Human Rights on behalf of the participants of the National Conference urges the Honourable Members of Parliament of both the Lok Sabha and Rajya Sabha to urge the government of India, in particular the Honourable Prime Minister of India, to:

1. Revise the draft “Prevention of Torture Bill, 2008” to ensure conformity with India’s obligation with the UN Convention Against Torture before the next session of the parliament;

2. Consider the recommendations made in the “National Conference on the Prevention of Torture Bill” contained in this report while revising the Bill;

3. Place the Bill before the relevant Parliamentary Standing Committee which shall hold consultations with all the relevant stakeholders including the NGOs before placing the same for adoption by the both Houses of Parliament; and

4. Enact the “Prevention and Punishment of Torture Act” by 2009.

With kind regards,

Yours sincerely

Suhas Chakma

Convenor, National Conference on Prevention of Torture Bill, 2008

Director, Asian Centre for Human Rights

Place: New Delhi

Date: 21st July, 2009