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LAW COMMISSION’s 273rd REPORT- ‘DRAFT ANTI-TORTURE BILL’.

 

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Sajida Syed

The Chairman of the Law Commission of India, Justice BS Chauhan submitted the 273rd Report of the Commission before the Central Law Minister Ravishankar Prasad, which mainly recommends the ratification of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’. The Law Commission after taking into consideration the present scenario of rise in criminal activities, is of the view that it is high time that the Country accepts and implements the UN Convention against Torture.

Along with the report the Commission also presented a Draft of Prevention of Torture Bill, titled as ‘The Prevention of Torture Bill, 2017’ before the Central Government. By proposing the said recommendation, the Commission aims to secure and protect the interest of the sufferers of tortures. The basic motive behind the proposal is to provide sufficient safeguards to the complainants and the witnesses of mal-treatment and agony against any mental or physical danger or abuse.

Torture has always been a disputable issue which tends to affect the mental and physical state of an individual, by affecting one’s peace of mind. Torture aims to go against Article 21 of the Constitution which provides every person ‘Right to life and liberty’. And thus, the Commission feels the need of a proper centralised legislation to restrain or restrict the awful act of torture, with a hope of curbing the exploitation caused by the act of torture. The commission is of the opinion that the any law made in this behalf shall have stringent punishment incorporated in it for contravention of any provision, such stringent punishments shall act as a discouragement for the offenders.

The Commission tried to define the act of torture by a public servant; Any act of inflicting any injury, be it intentionally or in voluntarily, or any attempt with the motive of causing such an injury, whether physical, mental or psychological, shall amount to torture.

Some of the recommendations in the draft bill of the Commission are as follows:

  1. Firstly, it aims to ratify the UN Convention against Torture, this shall not only ease the process of extradition of criminal, but it will also protect a person’s right to life and liberty under Article 21 of the Indian Constitution.
  2. Secondly, the commission proposes to amend the Criminal Procedure Code, 1973 along with the Indian Evidence Act, 1872, by making them fit to accept the provisions pertaining to compensation and burden of proof.
  • Criminal Procedure Code, 1973: The proposal seeks to amend section 375B by introducing provisions of payment of compensation and fine.
  • Indian Evidence Act, 1872: The Commission also favours the proposal presented by Report No.113 and Report No.152, which strongly provides for the insertion of section 114B which shall shift the burden of proof on a police officer in case any person who is in custody sustains any injury. The insertion of this section shall create a presumption that the injuries inflicted on any person in police custody, are because of the police official and it will be the sole responsibility of such officers to prove their innocence.
  1. Next, the Commission aims to restrain the hazards of torture by introducing stringent punishments to the culprits of such acts. The Commissions also suggests to expand the tenure of imprisonment to life along with fines, depending upon the facts and circumstances of the case.

The final amount of compensation shall be decided by the Courts after considering the the facts and circumstances of each case. While determining the quantum of compensation the socio-economic background of the sufferer shall be taken into consideration. Provision shall also be made to rehabilitate and bear medical expenses of the victim. The Commission also takes into account the principle mentioned in law of torts that ‘liability follows negligence’. As per the said proposal the Commission states that it is the responsibility of the State to bear the onus of harm caused to the citizens due to its agents, because the privileges provided under the fundamental rights are applicable to the citizens of the country and police officers being the agents of the State are kept outside the purview of this immunity.

The final decision over the recommendation and the draft bill shall be taken by the Central Government.

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