43 Pages Posted: 18 Oct 2010

Date Written: September 22, 2010

Abstract

The Prevention of Torture Bill, 2010 is a legislation which primarily aims to provide for punishment for acts of torture committed or abetted or consented to, by public servants. As stated both in the Preamble, as well as in the Statement of Objects and Reasons, the ostensible rationale for its formulation is the fulfilment of the requirement of an enabling legislation, necessary if India is to ratify the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1975 [hereinafter “the CAT”]. Accordingly, the Bill defines torture, prescribes necessary punishment and provides certain procedural safeguards relating to the process of investigation. The precise enumerations of these aspects in the Bill however have attracted considerable popular criticism.

In this report, we undertake a detailed legal analysis of the provisions of the Bill, an approach we believe will further inform the already vibrant public debate, and thereby be of significant use to the Hon’ble Committee in suggesting reforms. To this end, we take up each clause in the Bill individually and undertake two specific assessments: First, whether the clause is compliant with CAT, which is the stated purpose of the Bill; secondly, an independent legal analysis of the words and phrases in the Bill, in light of concurrent provisions in criminal law and Supreme Court precedent in this regard. Our analysis indicates that the Bill falls short of meeting India’s international law obligations, while at the same time it contains several clauses which are theoretically unsound and may create several undesirable ramifications in practice. On the basis of this analysis, we suggest appropriate amendments to the clauses, which will secure necessary compliance with international law obligations under CAT as well as ensure that interpretive difficulties under domestic law are smoothened to make the provisions in the Bill defensible in theory and efficacious in practice.