The Supreme Court on said it respects the government’s “political compulsions” and will not compel the Centre to ratify the U.N. Convention against Torture or command it to frame a standalone anti-torture legislation.
The decision to refrain from passing any positive orders from a Bench led by Chief Justice of India Dipak Misra came in a PIL filed by former Union Law Minister Ashwini Kumar for a standalone anti-torture law. The decision to dispose of the PIL came almost a year after the court had been entertaining it.
During the weekend, the judiciary had faced a repeated barrage of criticism for its “judicial activism.” Government ministers, speaking at Law Day and Constitution Day functions, had said that PILs cannot replace governance and policy decisions of the Executive.
Chief Justice Misra had strongly responded that the Supreme Court has never crossed its limits and upholds the code of mutual respect between the judiciary and the government.
Attorney General K.K. Venugopal intervened to submit that the government is considering an anti-torture law.
The Law Commission of India has already recommended the Centre to ratify the United Nations Convention Against Torture and frame a standalone anti-torture law directly making the State responsible for any injury inflicted by its agents on citizens.
The Law Commission has suggested that the State should not claim immunity from the actions of its officers or agents.
Though India had signed the U.N. Convention against Torture in 1997, it is yet to ratify it. Efforts to bring a standalone law against torture have lapsed. The National Human Rights Commission has been strongly urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law.
It was after the scathing remarks of the apex court, the government had earlier referred the question of a law on torture to the Law Commission, its highest recommendatory body on laws.
In its 273rd report handed over to the Law Ministry on October 30, the Commission has proposed a new anti-torture law titled ‘The Prevention of Torture Bill, 2017’ which provides a wide definition to torture not confined to physical pain but also includes “inflicting injury, either intentionally or involuntarily, or even an attempt to cause such an injury, which will include physical, mental or psychological in nature.”
The draft Bill has recommended punishments for torture ranging from fine to life imprisonment on the perpetrator. In case a person in police custody is found with injuries, it would be “presumed that those injuries have been inflicted by the police.” The burden of proof is on the police to explain the injury on the undertrial.
The Bill proposes to give the courts to decide a justiciable compensation for the victims taking into consideration his or her social background, the extent of the injury or mental agony. The compensation should suffice to pay for the medical treatment and rehabilitation of the victim.