Ref: HAQ/Advocacy-Legal/373 /10                                                          

Date: 05/10/10

 

Mr. Mahesh Tiwari,

Joint Director,

Rajya Sabha Secretariat,

Room no. 212-A, Parliament House Annexe,

New Delhi 110001

 

Subject: Submission to the Select Committee on Prevention of Torture Bill, 2010

 

Dear Mr. Tiwari,

 

There are over 400 million children in India who are citizens from the minute they are born. Every day there is news of children being tortured, yet we find on review of the proposed Prevention of Torture Bill, 2010, that it does not reflect their concerns at all. 

 

HAQ: Centre for Child Rights, a Delhi based NGO, work towards the recognition, promotion and protection of rights of all children. Over the last decade, HAQ has been working consistently on issues of governance and protection of children. At HAQ we sincerely believe that while it is important to ensure child rights through specific laws meant for children, it is equally important to recognise the need for and ensure the inclusion of their rights in all other laws and polices.

 

It is based on our learnings in the course of providing legal support to children in need of care and protection as well as children in conflict with law, and working with children in institutions that we would like to submit the following:

 

 

 

 

 

Child Rights Specific

1.       Comment: The need for inclusion of protection of children against torture in the Bill:

Explanation

Torture and degrading human treatment, is something children experience in homes, care institutions and schools –almost in every place that is meant to protect them. This is something we find reported in the newspapers almost every day. Beginning with hitting, slapping, beating and sexual abuse, forms of torture sometimes take on some bizarre forms like making the child eat excrement, burning etc. Denial of even the most basic needs is yet another form of torture children in custodial institutions are often subject to. The RTE bans corporal punishment which is a heinous form of torture against children, but cases go on unabated.That torture results in maiming or death of children is also not unknown.  

 

India has ratified United Nations Convention on the Rights of the Child (UNCRC) to which India has been a party since 1992. It states "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….” (Article 37)

 

The UNCRC brings together rights articulated in other international treaties and there are many parallels between the Convention and other treaties which is inclusive of the five core human rights instruments namely the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (Race Discrimination Convention); and the Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention). India acceded to the ICESCR and the ICCPR in 1979 and India became a signatory to the CEDAW in 1980 and ratified it in 1993. India submitted a declaration regarding Articles 5(a) and 16(1) that reiterates India’s commitment to abiding by the provisions "in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.

 

Clearly there is case for specific provisions related to children to be included in the present Bill, which we hope that the Committee will consider. 

 

2.      Changes required in the Bill to include Children

Specific recommendations for changes/ insertions to the Prevention of Torture Bill 2010 are as follows:

 

(i)                Definition

1.       Comment: While the Bill talks about Any person as the Aggrieved Person/Party, often children remain excluded unless specifically mentioned.

 

Recommendation: Any person needs to be defined to include children.

 

“Child is defined as person has not completed eighteenth year of age” (in consonance with the Juvenile Justice (Care and Protection) Act, 2000 and the UN Convention on the Rights of the Child.

 

The bill also needs to build upon Section 23 of the Juvenile Justice Act, 2000 (Punishment for cruelty to juvenile or child), so that children subjected to such acts of cruelty can also take recourse to the law on torture,

 

Explanation: It is important to specifically include child as aggrieved party, as they tend to get overlooked in important laws such as this and relegated only to special laws for children.Moreover, by themselves children cannot approach the courts for justice since they cannot sign their own ‘vakalatnama’, and often adults fail to recognize their woes. Therefore unless, specifically mentioned, they are likely to be left out of the purview of the Bill when implemented.

 

2.      Definition of Torture (Section 3)

Comment: 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.

 

It excludes 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.

Further by restricting definition of torture strictly to “grievous hurt” other forms of hurt recognised under the Indian Penal Code have been excluded in the Prevention of Torture Bill, 2010. In doing so it leaves out the many forms of torture that children are subjected to-

 

Recommendation: Definition of Torture under the law must include- Intimidation,  coercion, instigation, willful neglect and other cruel, inhuman or degrading treatment or punishment’

 

Explanation:

Torture takes myriad forms, and the most common of them are actually Intimidation, coercion, instigation and other cruel, inhuman or degrading treatment or punishment’, which is what children suffer every day (as also do adults).

 

For example, 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.

 

3.      Punishment for Torture (Section 4)

Comment: 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. It could leave to equating of ordinary crimes with that of torture. This has to be rectified by prescribing a minimum sentence period so that the punishment term is not left for the judiciary’s discretion.

 

 

 

Recommendation:

·         Should prescribe a minimum sentence period appropriate to the gravity of the offence

·         Should also be clear on the amount of fine appropriate to the gravity of the offence

 

Explanation:

It has been found that torture of children is not just hurt, impairment and severe psychological damage, but leads to death. Most of these happen in institutions responsible for care and protection of children by persons that the child trusts (teachers, care-takers, superintendents, trainers, police etc.). Families too are known to subject children to torture, especially in the case of girl children or children with disabilities.

 

Putting a limit on the punishment without taking into account the gravity of the crime will deny justice to the victim.

 

The Juvenile Justice Act 2000 under Section 23 provides for only a six month imprisonment or fine or both. This is often too little for the level of harm and suffering that the child suffers. It is therefore imperative that acts of torture of children find a place in the current law.

 

4.      Limitations for Cognizance of the offences (Section 5)

Comment:

 

The bill lays down a limitation of six months to file a complaint, after which the courts will not take cognizance of the crime. This will once again deny justice to child victims.

 

Recommendation:

·         The limitation period for filing the complaint should be removed to be in compliance with other comparable crimes under the Criminal Procedure Code (Cr. P. C.)

·         There should be no exception based on the grounds of previous sanction

·         The section providing sanction should be deleted.

 

Explanation: Children are intimidated into silence and often open up much later. Does that mean that they will not get justice?

 

Children who are in custodial or care institution have no access to legal aid or anyone to complain to. Indeed, it has been found that complaining leads to even more torture and punishment for the child, and hence children tend to keep quiet. A clause with six month limitation means that children cannot ever seek justice under this law.

 

5.      Previous Sanction Necessary for Prosecution of Government employees (Section 6)

Comment: The bill provides for protection against prosecution without previous sanction in an effort to provide protection to government employees.

 

Any law criminalising torture will have no meaning unless this protection against prosecution is removed. The provision does nothing but provide impunity. Public servants are already provided protection against prosecution in the form of prior executive sanction under Section 197 of the Code of Criminal Procedure. The whole objective of the Prevention of Torture Bill will be defeated if this provision is not changed.

 

Moreover, what happens when the accused is not a government employee? If the reason for such immunity is protecting the concerned person from false accusations-would that not apply to all categories of persons?

 

Suggestion: Article 2 (2) of the UNCAT 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.

 

Explanation: Children being tortured find it almost impossible to complain and get justice. Having to deal with yet another layer and await permission for prosecution will only make children more vulnerable to intimidation and further punishment in case they complain, reducing possibilities of their coming out and complaining. Exempting government employees who work in government institutions means leaving thousands of children to their mercy.

 

General Comments and Recommendations

Comment

1.      The Bill under seems to have left out on some of the main provisions in the UNCAT. It is silent on defining a procedure starting from filing of a complaint to investigation of allegation of torture. The Bill does not talk about creation of jurisdiction over acts of torture committed by or against the country’s citizens neither does it mention anything on the right to compensation or rehabilitation of the victims of torture. There are no provisions for barring of deportation, extradition or refoulment for any person when there are substantial grounds for believing he/she will be subjected to torture or even the establishment of universal jurisdiction to try cases of torture where an alleged torture cannot be extradited.

2.      Further, The Prevention of Torture Bill lacks a victim-oriented perspective. It contains no measures to protect victims for reprisals, and no enforceable right to reparations, including rehabilitation, for victims of torture. The Bill in its current form falls short of meeting the national as well as the international human rights standards.

3.      The Bill does not capture the spirit and essence of UNCAT. More than half of the provisions of the UNCAT have not been referred to either. The UNCAT being one of the five core human rights instruments in its preamble recognizes the convention to uphold all rights that are derived from the inherent dignity of the human person. The Bill in toto lacks the human rights perspective which should ideally be the foundation on which such a law is drafted.

 

In conclusion, we would like to submit that while the Government of India has taken a significant step when it signed the UNCAT in October 1997 and stated the convention corresponds to the ethos of Indian democracy, rule of law and individual freedom, it needs to ratify it and also ensure that the Prevention of Torture Bill reflects its provisions.

 

More importantly given that more than one third of our citizens are children, many of whom are victims to torture, a significant law such as this is not complete without specific provisions to protect them for torture.

 

We hope that the Committee shall give us an opportunity to some and state our case before them.

Thanking you

 

Enakshi Ganguly Thukral

Co-Director