PROHIBITION AGAINST TORTURE AN INTERNATIONAL AND INDIAN PERSPECTIVE

INTRODUCTION-
Human dignity as a notion has been reiterated in innumerable conventions and cases of
international law. Infact, the foundations of international law are deeply engrained in respect for
human dignity. The concept of human dignity first and foremost being found in the Universal
Declaration of Human Rights (UDHR) states “all human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood”.1 The UDHR, that is interpreted as a as a constitutional
document of International legal order,2 commits states to the notion that human dignity is a norm
that cannot be deviated from when pursuing any state policy. Another equally important
document upholding the value of the human dignity, the International Covenant on Civil and
Political Rights, states in its preamble that the states that have ratified the Covenant shall
recognise “the inherent dignity and inalienable human rights of all members of the human
family”.3 The preamble of the ICCPR also states “human rights derive from the inherent dignity
of the human person”.4Furthermore, the United Nations Charter also states that every state must
“reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nationals large and small”.5Thus, the connection between
human rights and human dignity is sacrosanct and this duality is something that international law
seeks to empower everyone with.

This paper focuses on the antithesis of human dignity and human rights – acts of torture, cruel,
inhuman or degrading treatment or punishment and how the

international legal order seeks to prevent the occurrence of such acts. This paper shall be divided
into three parts –Part I of my paper shall seek to analyze the various International laws (against
torture) that existed before the UN convention on Torture and will seek to analyze as to what led
to the creation of this Convention. Part II of my paper shall sensitize the reader to the main
provisions of the UN Convention on Torture and its working. Part III of my paper will be
focusing on anti–torture laws present in India. . The main aim of the first three parts of this paper
are to introduce the reader to the international corpus of law surrounding torture and the current
laws in place in India that combat torture. This brings me the most integral part of my paper i.e.
India’s stance on the UN Convention against Torture, it’s reasons for not ratifying this
quintessential Convention, the State laws prohibiting torture and lastly whether these laws are
mere white papers that exist without any effective implementation. Based on my subsequent
research I will try to take a stance on whether India will be more effective in combating Torture
by signing and ratifying the Convention against Torture along with its Optional Protocol or
whether the existing State laws are comprehensive enough to prevent instances of torture in the
country. All of this will be dealt with in the conclusion to this paper. Thus, through this paper I
shall seek to answer the question - ‘Is there a need for India to ratify the UN Convention on
Torture and it’s Optional Protocol or are India’s State Laws comprehensive enough to combat
torture?’

THE COMING INTO BEING OF THE UN CONVENTION OF TORTURE

Acts of torture and cruel, inhuman, or degrading treatment or punishment are irreconcilable with
the conceptions of human dignity enumerated above. Around 1948 after the horrendous abuses
committed during the World War II (specifically acts of torture committed during Nazi
Germany’s reign), the General Assembly inserted the prohibition against torture in the UDHR.
Article 5 states: "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment."6Thus, it was the Nazi atrocities that pushed the international
community to take immediate steps to prevent such acts from occurring in the future.

The ban on torture in almost identical words thereafter found its place in the ICCPR. Article 7
states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation”7 The Standard Minimum Rules for the Treatment of Prisoners that
was adopted by the United Nations Economic and Social Council in 1957, also prohibits all
cruel, inhuman or degrading punishment.8Such explicit bans on torture and other forms of
inhuman treatment subsequently found their place in a wide variety of regional treaties, such the
African Charter on Human and People’s Rights9, the European Convention for the Protection of
Human Rights and Fundamental Freedoms10 and the American Convention on Human Rights.11
Thus, these international conventions brought about a new era in the international legal order –
the freedom from torture now was a core right that could never be compromised with, not even
during the times of public emergency.12Amnesty International, an international NGO
(independent of any government, political party or religion) that campaigns against grave abuses
of human rights, made another powerful assertion against torture and inhuman treatment by
publishing a report13 documenting the existence and practice of torture in many countries across
the world. This world renowned NGO had earlier started a campaign for the abolition of torture
and it was during this particular campaign that Amnesty published this report and also
announced that their campaign against torture will go on indefinitely until torture is abandoned
and not ‘condemned’. The report discussed the evolution of torture, how it was merely a relic of
the past and how it recently surfaced amongst various regimes across the world. The report
included specific instances14 and examples of torture from various parts of the world (especially
concentrating on Latin American countries) and how various countries were relying on torture as
a ‘form of governance’.15 Thereafter, in December 1973 this organisation convened the first
international conference for the abolition of torture. During this conference around three hundred
delegates declared that the ‘use of torture is a violation of freedom, life, and dignity’.16 Amnesty
along with other members, plenipotentiaries and delegates to this conference sought to convince
governments to respect and implement the corpus of international (as well as domestic) laws
prohibiting torture. Such extenuating circumstances demanded an institutional response from the
UN that resulted in the establishment of a specific convention on torture. Thus, on December 10,
1984, the thirty-sixth anniversary of the adoption of the Universal Declaration of Human Rights,
the United Nations General Assembly adopted the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.17The ‘UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment’18 can be viewed as the Magna
Carta convention against torture and cruel, inhuman or degrading treatment or punishment in the
world.

Torture may also constitute a “crime against humanity” or “war crime” under international criminal
law, such as is specified in the Rome Statute of the International Criminal Court (Arts. 7 and 8).
Thus, infliction of torture can be investigated and prosecuted by the International Criminal Court,
subject to its jurisdictional limits.

The prohibition on torture also requires governments to take measures to prevent and punish
torture and many States have criminalised torture in their national law. The Geneva
Conventions and Convention against Torture obligate States to extradite or prosecute,
those who are responsible for torture. Governments may exercise universal jurisdiction to
prosecute those responsible for torture, and Member States of the International Criminal Court
have an obligation to co-operate with the court in the investigation and prosecution of crimes,
including torture, falling under their respective jurisdiction. In times of armed conflict, the
International Committee of the Red Cross, monitors the compliance of international
humanitarian law.

The principle of non-refoulement prohibits rendering victims of persecution to their

persecutor, and applies to States in the context of their extradition and immigration policies.
This obligation was first enshrined in Article 33 of the United Nations Convention Relating to
the Status of Refugees 1951 which provides that “No Contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group
or political opinion”. This duty is reiterated in Article 3 of CAT. For example, in the United
States, asylum eligibility is established by showing that the applicant has suffered or has a “well-
founded fear” that he or she will suffer “persecution.” Persecution includes activities those do not
fall within the relatively narrow definition of torture.

Even if an individual is not eligible for asylum, the State may not remove him or her to a country
where he or she would face a real risk of torture.

Torture may also constitute a “crime against humanity” or “war crime” under international
criminal law, such as is specified in the Rome Statute of the International Criminal Court (Arts. 7
and 8). Thus, infliction of torture can be investigated and prosecuted by the International
Criminal Court, subject to its jurisdictional limits.

The prohibition on torture also requires governments to take measures to prevent and punish
torture and many States have criminalised torture in their national law. The Geneva
Conventions and Convention against Torture obligate States to extradite or prosecute,
those who are responsible for torture. Governments may exercise universal jurisdiction to
prosecute those responsible for torture, and Member States of the International Criminal Court
have an obligation to co-operate with the court in the investigation and prosecution of crimes,
including torture, falling under their respective jurisdiction. In times of armed conflict, the
International Committee of the Red Cross, monitors the compliance of international
humanitarian law.

The principle of non-refoulement prohibits rendering victims of persecution to their

persecutor, and applies to States in the context oftheir extradition and immigration policies.
This obligation was first enshrined in Article 33 of the United Nations Convention Relating to
the Status of Refugees 1951 which provides that “No Contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group
or political opinion”. This duty is reiterated in Article 3 of CAT. For example, in the United
States, asylum eligibility is established by showing that the applicant has suffered or has a “well-
founded fear” that he or she will suffer “persecution.” Persecution includes activities those do not
fall within the relatively narrow definition of torture.

Even if an individual is not eligible for asylum, the State may not remove him or her to a country
where he or she would face a real risk of torture.
A BRIEF NOTE ON THE UNCAT

The UN Convention on Torture was a direct result of the ‘Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment’19 (the “Torture Declaration”) by the General Assembly on 9 December 1975. The
Covenant follows the structure of the Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights with a preamble and 33 articles, divided into three parts. As of 2014, this
Convention has one hundred and sixty two state parties; however seven countries (including
the U.S.A and India) have signed and not ratified this convention.

Under this Convention the definition of torture found under Article 1 has been largely based on
the UN Declaration against Torture however it drifts away from the declaration definition as it
deliberately lowers the threshold. Unlike the declaration, it does not describe torture as an
aggravated and deliberate form of inhuman treatment.20 The convention places an obligation on
each and every signatory to implement effective measures to combat torture. 21The highlight of
this convention is the setting up of the Committee against torture 22 that is set up “to receive,
study and comment on periodic reports from the States parties on the measures they have taken to
give effect to their undertakings under the Convention23; to initiate an investigation when there is
reliable information which appears to contain well-founded indications that torture is being
systematically practised in the territory of a State party24 and to To receive and examine
complaints by one State party of violations of the Convention by another State party25. The
committee also is empowered to ‘receive and examine applications by individuals claiming to be
victims of a violation of the Convention by a State party.’26

Thereafter anOptional Protocol to the Torture Convention was adopted by the General Assembly
of the United Nations on 18 December 2002 (resolution 57/199). This protocol was added to
give the convention more teeth by the creation of the sub- committee on torture and thus enabling
a ‘system of regular visits by international and national bodies to places of detention in order to
prevent torture and other cruel, inhuman or degrading treatment or punishment.’ 27Perhaps it is
due to the enlarged scope given to this protocol that various countries such as Australia,
Belgium, Cameroon, Cape Verde, Chad, Republic of the Congo, Gabon, and Ghana etc. (that
have signed and ratified the UN Convention against Torture) have not signed the Optional
Protocol.

INDIA AND TORTURE PREVENTION

Since 1984, 155 states have ratified the UN Convention against Torture; these States include all
the leading democracies across the world. However, the world’s largest democracy – India, is
yet to ratify this convention. India signed the UN Convention against Torture in 1997, but has not
yet passed domestic legislation that will enable it to ratify the Convention. India’s primary reason
for not ratifying the UN Convention against Torture is that its State laws are adept enough to deal
with the crime of torture. In this part of the paper I will make the reader aware of these state laws
that combat the crime of torture and shall try to bring about a conclusion on whether there is a
need for India to ratify the UN Convention against Torture.

There exist two sections in India’s Penal code under which crimes of torture can be prosecuted.
S.330 of the Code reads “Voluntarily causing hurt to extort confession, or to compel restoration of
property”28 whereas S.331 reads, “voluntarily causing grievous hurt to extort confession, or to
compel restoration of property.”29 These sections though do not contain the word ‘torture’ they
end up punishing any hurt or grievous hurt caused to a victim to confess his/her guilt or to give
information with respect to a certain crime. These two provisions are in place to protect victims
against police personnel who may go to any lengths to obtain a confession. The scope of both of
these two sections also encompasses all those policemen who were present at the time of
torturing the victim but did not actively take part in the acts of inflicting grievous hurt.30 Thus,
passive participation by merely witnessing such acts of voluntary causing hurt to extract
confessions can lead to prosecution under the above mentioned sections. Furthermore, India’s
Evidence Act also protects potential victims of police torture as it rules that that the ‘law would
not admit into evidence anything said to the police, unless, it substantially corroborated by the
discovery of the fact in consequence of the confession.’31

Perhaps, one of the most landmark step taken yet to combat torture in India, was the passing of the
‘Protection of Human Rights Act’32 that came into force on the 28th of September 1993. This Act
provided for the establishment of the Human Rights

Commission at the Centre (National Human Rights Commission) and at each and every state in
India. Though the NHRC has in the past acted as a vigilante holding the police accountable for its
actions, it’s working had been severely hampered as the law governing the act does not have
sufficient teeth i.e. is not effective enough. To begin with the Commission was set up with the
view of being completely independent owing no allegiance to any government body, however
the law governing the commission makes it depend on the Central Government for certain
requirements such as manpower and finances.33 Furthermore, the Human Rights Act does not
allow the commission to inquire into complaints of human right violations carried out by
members of the Armed forces.34 Now, ‘Armed forces’ has been defined in the Act to mean the
army, navy and air force, but this definition also encompasses various central armed police
organizations such as the Border Security Force (BSF).35 Thus, NHRC’s potency in providing a
remedy to individuals who have been victims of torture by these forces (especially in disturbed
areas) is greatly reduced.

The reluctance showed by the Parliament in equipping these commissions with a wide range of
powers has to a certain extent been balance via judicial activism in India. For example the
Hon’ble Supreme Court laid in DK Basu v. State of West Bengal36 laid down a set of eleven
guidelines to be followed in each and every case of arrest or detention in order to maintain
transparency as so as to not violate any of the fundamental rights of the detained individuals.
Furthermore, as explained above through judicial activism passive participation to torture is an
offence and the judiciary has been more than just in distributing compensation to victims of
torture carried out by State officials.

The most specific (yet to be) law on torture would be the Prevention of Torture Bill37 passed by
the Lower House (Lok Sabha) of India’s Parliament on 6 May 2010, and currently before the
Upper House (Rajya Sabha). This bill was tabled keeping in mind India’s state party obligations
under the UN Convention of Torture since the bill explicitly states in its preamble that it was
drafted in order to comply with the Convention on Torture. The Bill is definitely a step in the
right direction; however, it has faced severe criticism from various NGO’s, authors and the
public. This criticism is largely directed at the bill due to the fact that the scope of the bill is far
from satisfactory.38 Various jurists have commented that if the bill is being implemented to
comply with the UNCAT then it has failed miserably.39 The bill falters from the very start in its
definition of torture as the ‘definition completely fails to take into account the width and ambit of
the definition as provided in UNCAT’.40 The reason being that the bill covers only acts causing
grievous hurt or acts that endangers life, limb or health. Whereas the definition of torture in the
UNCA is also extended to acts that cause “severe pain and suffering”.41 Furthermore, the bill has
also attracted criticism for its limitation to prosecute42 and lack of quantum of punishment.

“In India, torture and other cruel, inhuman and degrading treatment in state detention is common,
and involves a range of practices including shackling, beatings and the administration of electric
shocks. Disadvantaged and marginalized groups including women, dalits, adivasis and suspected
members of armed opposition groups are those most commonly abused.”44 Furthermore, the
media and various protests have brought this countries attention to the grave and brutal acts
committed by the Armed forces in the ‘disturbed areas’ under Armed Forces Special Protection
Act. There is a dire need to implement strong anti-torture laws in the country to eradicate this
heinous act. The Prevention of Torture Bill in its present form suffers from a myriad of
loopholes and definitional handicaps. The bill is definitely a step in the right direction however it
needs a complete revamp in order to synchronise it with the UN convention on torture. The bill
in its current form will remain a mere white paper law and with the high threshold of torture
fewer acts will fall under this bills ambit

Pronouncements by various international adjudicatory forums.

The activities prohibited by various regional and international treaties under relevant provisions
came up for consideration of international adjudicatory forums while dealing with the torture
and inhuman treatment.

Defining Cruel Treatment and Torture

The European Court has emphasised that an applicant must meet certain standard to establish a claim
under Article 3 of the Convention: “Ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is
relative; it depends on overall circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and health of the victim. In considering
whether a treatment is ‘degrading’ within the meaning of Art. 3, the Court will have regard to its object
whether it is to humiliate and debase the person concerned and as far as the consequences are
concerned, whether it adversely affected his or her personality in a manner incompatible with Article 3.
It may be noted that the absence of such a purpose does not conclusively rule out a finding of a
violation.
Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of
suffering or humiliation connected with a given form of legitimate treatment or punishment.41

In Ireland v. United Kingdom 42 , the European Court of Human Rights laid down factors to be
taken into account in determining the severity of treatment like the age, sex, and state of health
of the victim. The Court also examined certain methods of interrogation, none of which were
found to cause acute physical injury, finding that forcing detainees to remain in stress positions
for a long period of time, subjecting them to noise and depriving them of food, water and sleep
amounted to ill- treatment, but refused to hold that the treatment amounted to torture. The
case stresses the applicability of the prohibition, even in cases involving terrorism and public
danger. The reluctance demonstrated in this case, to find that ill-treatment amounts to
torture based on the level of severity, has been eroded by subsequent case law that can be read

to lower the threshold under the European Convention for finding that torture has occurred43.

In judging whether an applicant has suffered torture, rather than less severe forms of ill-
treatment, the degree of ill-treatment used will help the court determine the intent with which
such a treatment was meted out. Subjecting detainees to unnecessary physical force
diminishes human dignity and is a violation of the European Convention of Human Rights

Psychological Suffering

Various human rights bodies have acknowledged that no physical element is necessary to
establish torture or inhuman treatment. The European Court of Huma Rights found that a
suspected criminal could not be extradited to the United States because of the psychological

harm he would suffer if he were to be sentenced to death and held on death row.45

Actions aimed at humiliating individuals or causing psychological suffering may constitute

torture or inhuman treatment, and also violate the right to human dignity.46

In Cantoral-Benavides v. Peru47 , the Inter-American Commission found that ‘according to

international standards for protection, torture can be inflicted not only via physical violence,
but also through acts that produce severe physical, psychological or moral suffering to the
victim.’ In that case, the Court found that the aggressive acts suffered by the victim could be
classified as physical and psychological torture, and that the acts were planned specifically for
the purpose of wearing the victim down and to obtain incriminating evidence from him.

In several cases, it had been found that there had been violation of rights of the relatives of
victims of disappearance in the form of the anguish caused to their family members. The
State’s failure to properly investigat and punish the wrongdoers for the

disappearances or murders had further added to their suffering.48

Corporal Punishment

Corporal punishment is a cruel, inhuman and degrading treatment or punishment that violates
the prohibition of torture. The Human Rights Committee has held that corporal punishment is

prohibited by Article 7 of the Covenant 49 . The African Commission has ruled that corporal

punishment violates human right to dignity.50

Treatment of Prisoners and Detainees

In Antti Vuolanne v. Finland 51 , the Human Rights Committee examined a case involving the solitary
confinement of a Finnish infantryman. The Committee held that for punishment to be degrading, the
humiliation or debasement involved must exceed a particular level and must, in any event, entail other
elements beyond the act of deprivation of liberty. In determining the severity of the alleged
maltreatment, the court should consider all the circumstances of the case at hand, including the duration
and manner of treatment, its physical and mental effects and the sex, age and state of health of the
victim.

In contrast, the Human Rights Committee found, in Polay Campos v. Peru52, that displaying the victim
publicly in a case and isolating him for 23 hours a day in a small cell with only 10 minutes of sunlight a
day violated Arts. 7 and 10 of the ICCPR.

In International Pen & Others v. Nigeria53, the African Commission on Human and Peoples’ Rights held
that where the State had detained individuals sentenced to death in leg irons and handcuffs and had
denied access to attorneys and necessary medicines, is violative of Article 5 of the African Charter.

The European Court of Human Rights has also developed case-law on presumptions regarding ill-
treatment inflicted by State actors. For example, it has stated that “[W]here an individual is taken into
custody in good health but is found to be injured by the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused and to produce evidence casting
doubt on the victim’s allegations, particularly if those allegations were corroborated by medical reports,
failing which a clear issue arises under Art.3 of the Convention.”

Interrogation of suspects of terrorist activities between 1971 and 1975 in Northern Ireland involving a
combination of five particular techniques – wall-standing, hooding, subjection to white noise, deprivation
of sleep and deprivation of food and drink has been held by the European Court of Human Rights an
inhuman and degrading treatment and practice of torture which violated Article 3. The court described
‘degrading’ as ‘involving treatment such as to arouse feelings of fear, anguish and inferiority capable of
humiliating or debasing the victim and possibly breaking their physical or moral resistance’ 55. The Court
said that inhuman or degrading treatment must ‘go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or punishment’ to be deemed a violation
of Article 3.

The ‘ill-treatment must attain a minimum level of severity’ to fall within the scope of Article 3
and that such assessment of this minimum is relative and depends on ‘all circumstances of the
case’ . In considering the issue of whether a punishment or treatment is ‘degrading’ within the
meaning of Article 3, the Court noted that it would also have to take into account whether its
object ‘is to humiliate and debase the person concerned and whether, as far as the consequences
are concerned, it adversely affected his or her personality in a manner incompatible with Article
3.’

In order to avoid violation of Article 3, the authorities are under an obligation to protect the

health of persons deprived of liberty by providing requisite medical care during detention 59 . In
the case of mentally ill persons, the assessment of whether the treatment concerned is
incompatible with Article 3 has to take into consideration ‘their vulnerability and their inability,
in some cases, to complain coherently or at all about how they are being affected by any
particular treatment.

Denying adequate medical treatment and force feeding while on hunger strike and not
producing the relevant documents in respect of his medical treatment has been held to be

violative of Article 361.

The Commission has gone through in detail the scenario prevailing across the world with regard
to various international conventions on torture. The Commission has noted that though India
has signed the Convention against Torture, it is yet to be ratified. Not ratifying the Convention
may lead to difficulties in cases involving extradition, as the foreign courts may refuse
extradition or may impose limitations, in the absence of anti-torture law in line with the
Convention, while granting extradition

Recommendations

While deciding on as to what amounts to torture by a public servant, the Commission has
suggested definition of ‘torture’ wide enough to include inflicting injury, either intentionally or
involuntarily, or even an attempt to cause such an injury, which will include physical, mental or
psychological injury. Based on the analysis of various aspects of torture, the Commission has
prepared a draft Bill titled “The Prevention of Torture Bill, 2017”, which is annexed to this
Report. On the basis of the conclusions drawn from the foregoing chapters, the Commission
makes the following recommendations:

Ratification of Convention against Torture

In order to tide over the difficulties faced by the Country in getting criminals extradited, in the
absence of an anti-torture law; and to secure an individual’s right to life and liberty, the
Commission recommends consideration of the Convention Against Torture for ratification and
in the event, the Central Government decides to ratify the Convention, then the Bill placed at
Annexure may be considered

Amendment to Existing Statutes

The Commission has analysed the existing legal provisions in Chapter IV. The Commission has
come to the conclusion that the Criminal Procedure Code, 1973 and the Indian Evidence Act,
1872 require amendments to accommodate provisions regarding compensation and burden of
proof, respectively

Criminal Procedure Code, 1973

The Commission recommends amendment to section 357B to incorporate payment of

compensation, in addition to payment of fine, asprovided under section 326A or section 376D
of the Indian Penal Code, 1860Indian Evidence Act, 1872

The Commission endorses the recommendation made by the Law Commission of India vide its
Report No.113, and, as reiterated in Report No.152, that the Indian Evidence Act, 1872 requires
insertion of section 114B. This will ensure that in case a person in police custody sustains
injuries, it is presumed that those injuries have been inflicted by the police, and the burden of
proof shall lie on the authority concerned to explain such injury.

Punishment for acts of torture

In order to curb the menace of torture and to have a deterrent effect on acts of torture, the Commission
recommends stringent punishment to the perpetrators of such acts. The draft Bill annexed to this Report
provides for punishment extending up to life imprisonment and fine.

Compensation to Victims

The Courts will decide upon a justiciable compensation after taking into account various facets of an
individual case, such as nature, purpose, extent and manner of injury, including mental agony caused to
the victim. The Courts will bear in mind the socio-economic background of the victim and will ensure that
the compensation so decided will suffice the victim to bear the expenses on medical treatment and
rehabilitation

Protection of Victims, Complainants and Witnesses

The Commission recommends that an effective mechanism must be put in place in order to protect the
victims of torture, the complainants and the witnesses against possible threats, violence or ill treatment.

Sovereign Immunity

Going by the law of torts, which states ‘liability follows negligence’ the Commission is of the opinion that
the State should own the responsibility for the injuries caused by its agents on citizens, and principle of
sovereign immunity cannot override the rights assured by the Constitution. While dealing with the plea of
sovereign immunity, the Courts will have to bear in mind that it is the citizens who are entitled for
fundamental rights, and not the agents of the State.
CONCLUSION

India seems to be two-faced on torture laws in place in India. It seems quite apparent
that India prohibits torture in law but is promoting it in practice by choosing to turn a
deaf ear to the numerous torture cases occurring in India. What is perhaps India’s
biggest worry point that India seems to have become comfortably tolerant to acts of
torture committed by police personnel and other stated authorities. An example to
explain the same - in 2008 India basked in the success of Danny Boyle’s ‘Slumdog
Millionaire’ yet no one seemed to notice (let alone any form of a public uproar) the
scenes of police brutality and torture (such as electric shocks) imposed upon the
protagonist of the movie. Thus, it is the need of the hour to review India’s lackadaisical
attitude towards torture prevention in the country. India’s prevention of torture bill is a
step in the right direction, however, as shown above there is a dire need for it to be
revamped and synchronised in accordance with the UN Convention of Torture.

Since India has made efforts to bring about domestic legislations in order for it to ratify
the convention it seems that it does not fear any challenges to its sovereignty by ‘extra
powers’ given to the committee against torture. The only measure impeding India from
ratifying the convention seems to be a well-drafted domestic law upholding the UN
Convention against Torture. Furthermore, signing and ratifying the Optional Protocol
will enable a system of checks and will insure that no act of torture goes unnoticed in the
country. The importance of eradicating torture cannot be over- emphasized. Freedom
from torture is a core human right, and the struggle against torture provides an
opportunity to reinforce respect for the human personality and civil liberties.45 The
instances of torture, however few they may be in our country cannot be eradicated till
the prevention of torture bill is revised and sweeping reforms are undertaken in our
criminal justice system.