The Prevention of Torture Bill 2010 is under discussion. It has been passed by the Rajya Sabha and is now before the Select Committee of the Parliament headed by Shri Ashwini Kumar. Indeed it has taken all these years for the government to even acknowledge the need for a law on torture.  But what does this law have to do with children? Do children face torture?  Even as the Bill is under discussion here is an example.

 

The Observation Homes under the Juvenile Justice Act 2000 are run by the government to provide protection to those children who are in conflict with law, to keep them away from wrong influences and to prevent them from being in compromising situations that may endanger their life, so that they can live without fear, be reformed and re-integrated into the society that they have rejected and one that has rejected them.

 

The Prayas Observation home, Delhi, located next to the Juvenile Justice Board is for the past 2 months in the eye of a storm. There have been reports of boys being beaten up and tortured inside the home. The Principal Magistrates have been forced to take cognizance of the situation, and this has only led to more violence. Indeed, the latest situation in which a boy was of beaten up by fellow boarders  in the  knowledge of the superintendent Mr. Bhupender Kumar of the home himself (Kavita Chowdhary, Terror Home for Kids, Mail Today, New Delhi, Thursday, September 2, 2010) , has yet once gain thrown up  some questions about the relationship between the law on torture and the its need to deal with child rights.

 

The Prevention of Torture Bill 2010 is an attempt by the government to adhere to and harmonise with the United Nations Convention against Torture (UNCAT) which was signed by India in 1987 but not yet ratified. In fact there has been resistance to ratification. The UN Convention in its full form is a Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is directly related to what children suffer in care institutions, custodial homes and even sometimes in schools, in the name of discipline. Beating, sexual and mental abuse, denial of food and other basic facilities to make children”fall in line” are almost common occurrences. Reports of corporal punishments in schools wherein children are burnt with coal, made to eat excreta, hit hard so that they go deaf or blind and even die, is in the news for all to read, see or hear. The RTE bans corporal punishment which is a heinous form of torture against children, but cases go on unabated. Parents will continue to lash kids from a position of authority and will escape notice. Last evening’s news reported a 12 year old girl being sold into  marriage to a 65 year old man for one lakh rupees. The wedding took place before the whole village. Is this not torture? Or degrading human treatment? A punishment for being a girl?

 

The UN Convention on The Rights of the Child (UNCRC Article 37) that India has ratified in 1992 clealry lays down that "States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time…."

 

 Will the new bill be in harmony with the commitments made in the UN CRC? Will the new Bill address all these forms of torture or will it once again relegate them to norms of discipline, social sanction, cultural practice etc? Given the nature of the crimes which torture covers, a weakly worded bill might actually dilute pre existing articles within the Indian Penal Code and the criminal procedure Code, and will make the elimination of torture and the punishment of its practitioners more difficult than it is under existing law.

 

The present Bill only includes such acts that cause grievous hurt as defined in the Indian Penal Code in relation to damage to limbs and organs — or which endanger the life, limb, or health of a person as torture. Surprisingly excluded are different torture methods that cause intense pain and suffering and psychological damage, but leaves no visible permanent  physical damage to the victim. Also only torture inflicted in the course of an interrogation will attract the sanctions of the new law — but not torture inflicted to punish, coerce, or intimidate an individual, which the UN convention covers

 

The lacunae in the law shows up even in the recent incident of torture in the Observation Home where the superintendent not just hit the boy , but also instigated the other boys at the home to beat up their fellow inmate. Since instigation is not directly covered , the bill ends up providing an escape route.  In the Bill, if one is not directly responsible but is indirectly responsible as the coercing, intimidating he/she stands bailed out. The role of a public servant and his responsibility has to be seen in the light of his ability to influence without being a direct perpetrator of the violence- all of which children are victims of and subjected to.

 

The torture bill also offers license to the perpetrator, allowing only 6 months for the victim to file his/her case. For children who are in homes and have no access to legal aid this may mean a dead end. The child will constantly live under the fear of further punishment for having spoken the truth. Article 2 (2) of the CAT includes exceptional circumstances, and states “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”.  That really needs to be the spirit of the new law in India too.

 

If the bill goes through in its current form, children will be not be protected or get justice under this law. Commonly practiced forms of torture against children which we only consider social evils and do not come under the ambit of the law will remain unchecked. The torture bill needs to be put through a  ‘torture test’ to be able to make any dent in the deep seated and widely practiced forms of abuse in our country which tantamount to torture.