How many torture define
ashok kashyap
(Querist) 09 April 2020
This query is : Resolved
according to consitutional law or by per law guidlines how many kind of torture define our law commission there is visual torture define where any action can be cause other physical or psycological pain ,please explain
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KISHAN DUTT KALASKAR
(Expert) 09 April 2020
Dear Sir,
You have not referred torture in police custody or domestic so I am giving both as follows:
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There is a general trend among the leaders of the country to deny the existence of torture. Recently, when Vijay Mallya told the courts in the United Kingdom (UK) about the poor conditions and torture meted out to prisoners in Indian jails, External Affairs Minister Sushma Swaraj “slammed” the UK court’s stance to verify the conditions in Indian prisons (Chaudhary 2018). At another press conference, Swaraj also said: “Prime Minister Modi told British Prime Minister Theresa May that the British courts asking about the condition of Indian jails is not right, as these are the same prisons where they (British colonial rulers) had jailed our leaders like (Mahatma) Gandhi and (Jawaharlal) Nehru” (Roche 2018).
However, institutions like the National Human Rights Commission (NHRC) have not shied away from reporting the reality of torture in India. The NHRC and Indian courts have been dealing with many complaints on custodial torture since time immemorial.
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Torture has been carried out or sanctioned by individuals, groups, and states throughout history from ancient times to modern day, and forms of torture can vary greatly in duration from only a few minutes to several days or longer. Reasons for torture can include punishment, revenge, extortion, persuasion, political re-education, deterrence, coercion of the victim or a third party, interrogation to extract information or a confession irrespective of whether it is false, or simply the sadistic gratification of those carrying out or observing the torture.[2][3] Alternatively, some forms of torture are designed to inflict psychological pain or leave as little physical injury or evidence as possible while achieving the same psychological devastation. The torturer may or may not kill or injure the victim, but torture may result in a deliberate death and serves as a form of capital punishment. Depending on the aim, even a form of torture that is intentionally fatal may be prolonged to allow the victim to suffer as long as possible (such as half-hanging). In other cases, the torturer may be indifferent to the condition of the victim.
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P. Venu
(Expert) 09 April 2020
What are the facts? What is the context?
Raj Kumar Makkad
(Expert) 09 April 2020
What is your locus-standi with the query? A law student should himself study and search the reply from the law books.
N.K.Assumi
(Expert) 10 April 2020
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, spell out Torture as:
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions,”
In 2017 a private bill was introduced in the Parliament to fulfill India’s commitment to the Convention, which is yet to become an Act.
N.K.Assumi
(Expert) 10 April 2020
AS INTRODUCED IN THE RAJYA SABHA
ON THE 15TH DECEMBER, 2017
THE PREVENTION OF TORTURE BILL, 2017
A BILL to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant, and for matters connected herewith or incidental thereto.
WHEREAS India is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
AND WHEREAS it is considered necessary to ratify the said Convention and to provide for more effective implementation.
BE it enacted by the Parliament in the Sixty-eighth Year of the Republic of India as follow:—
1. (1) This Act may be called the Prevention of Torture Act, 2017.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Short title, extent and commencement. Bill No. XXIX of 2017 5 AS INTRODUCED IN THE RAJYA SABHA ON THE 15TH DECEMBER, 2017.
In this Act, unless the context otherwise requires,—
(a) words and expressions used in this Act shall have the same meanings respectively assigned to them in the Indian penal Code; and
(b) any reference in this Act to any enactment or any provision thereof shall in any area in which such enactment or provision is not in force be construed as a reference to the corresponding law or the relevant provision of the corresponding law if any, in force in that area.
3. Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purposes to punish or to obtain information from any person, whether in police custody or otherwise, which causes,—
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture: Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law. Explanation.—
For the purposes of this section, ‘public servant’ shall, without prejudice to section 21 of the Indian Penal Code, also include any person acting in his official capacity under the Central Government or the State Government.
4. Where the public servant referred to in section 3 or any person abetted by or with the consent or acquiescence of such public servant, tortures any person—
(a) for the purpose of extorting from him or any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct;
(b) for the purpose of punishing him for any act; or
(c) on the ground of his religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine.
Definitions. Torture. Punishment for torture. 45 of 1860. 45 of 1860. 5 10 15 20 25 30 3 STATEMENT OF OBJECTS AND REASONS India signed the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (as adopted by the United Nations General Assembly on 9th December, 1975) on 14th October, 1997.
1.To ratify the Convention, it is necessary to enact any enabling legislation to reflect the definition and punishment for “torture”, and bring domestic laws in conformity with the Convention.
2. The proposed legislation, inter alia, defines the expression “torture”, and provides punishment for those involved in the incidents of torture.
3. The legislation fulfils India’s commitment, as confirmed to the United Nations, to reaffirm that “torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights.”
4. According to the National Crime Records Bureau, as many as 308 people died in police custody between 2011 and 2013 but less than forty per cent of these deaths led to a case being registered. By providing punishment for the violation of these human rights, the legislation strengthens the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment.
5. Out of 170 signatories to the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, India remains one of the only eight countries yet to ratify the Convention. Ratifying the Convention reaffirms the Government of India’s commitment to the protection of basic universal human rights.
6. The One Hundred and Fifty Second Report of the Law Commission on ‘Custodial Crimes’ (1994) had also recommended changes to the law to prevent custodial crimes, including torture.
7. The Supreme Court, in 2017, observed that India’s efforts to extradite suspects from abroad are impeded due to the fact that India does not have an anti-torture law. The legislation, once enacted, will expedite India’s extradition attempts and the due process of law.
8. The Bill seeks to achieve the above objects.
V. VIJAYASAI REDDY RAJYA SABHA ————— A BILL to provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant, and for matters connected herewith or incidental thereto. ————— (Shri V. Vijayasai Reddy, M.P.) GMGIPMRND—2889RS(S3)—15-12-2017.
Raj Kumar Makkad
(Expert) 10 April 2020
Thanks Mr. Assumi for highlighting the Torture Bill pending before Parliament for its consideration.
Rajendra K Goyal
(Expert) 10 April 2020
Academic query / seems examination question. Please spend some quality time in library, reply of your questions would be there.
T. Kalaiselvan, Advocate
(Expert) 10 April 2020
The prevention of torture bill, 2010 introduced before Loksabha on 26th April 2010 states the definition of torture as follows:
A public servant or any person with a public servant’s consent commits torture if all three conditions are met:
An act results in (i) Grievous hurt to any person (Grievous hurt as defined in the Indian Penal Code - includes damage to limbs or organs); or (ii) danger to life, limb or health (mental pr physical) of any person, and
The act is done intentionally, and
The act is done with the purpose of getting information or a confession.
The Bill makes it difficult for those accused of torture to be tried. This is because (a) complaints against acts of torture have to be made within six months, and (b) the previous sanction of the appropriate government has to be sought before a court can entertain a complaint.
T. Kalaiselvan, Advocate
(Expert) 10 April 2020
On the existing domestic law:
Torture is not criminalised in law as a separate or special offense. Provisions in the Indian Penal Code, 1860 (sections 330 & 348) penalises acts that can also be considered as torture, with seven and three years of imprisonment respectively if proven guilty. But the offense attracts no particular relevance if the crime is committed by a police officer. The temporal treatment of the law is to deal with a regular offense. The two provisions also falls short of covering all aspects of torture, as defined in the Convention against Torture.
In addition, the reduced possibility of a proper forensic medical examination of a victim and the complete absence of a witness protection mechanism facilitates easy acquittal of the criminal. The Indian Evidence Act, 1872 also does not have any provisions in dealing with the aspect of torture.
T. Kalaiselvan, Advocate
(Expert) 10 April 2020
On compensation:
An act of torture, if proved, does not require the perpetrator to pay compensation to the victim. The right against torture is not a fundamental right. The courts in India, thus far have taken a minimalistic view on compensatory claims concerning acts of torture. A claim for compensation is dealt within the realm of personal injury claims. Awards of compensation vary widely from court to court throughout the country.
T. Kalaiselvan, Advocate
(Expert) 10 April 2020
Torture is practiced as a routine and accepted as a means for investigation. Most police officers and other law enforcement officers consider torture as an essential investigative tool, rather than an unscientific and crude method of investigation. Policy makers and bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not realising the fact that a person under investigation is only an accused, not a convict and further, that even a convict cannot be tortured. This is due to the lack of awareness about the crime, its nature and about its seriousness. Torture is practiced by the all sections of the law enforcement agencies, the paramilitary and military units. Torture, as a form of violence is used for social control.
T. Kalaiselvan, Advocate
(Expert) 10 April 2020
The National Human Rights Commission of India has repeatedly recommended to the Government of India to ratify the Convention against Torture and to criminalise the act of torture in the country. The Commission said “[d]aily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens. Such a situation must end, through the united efforts of the Government…”
As early as 1981, the Supreme Court of India has said “…[n]othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights” Kishore Singh V. State of Rajastan (AIR 1981 SC 625).
