Report No. 273

(ii) Government's stand

1.14 The Central Government initially took the stand that under the Indian Penal Code, 1860 torture is a punishable offence. Later on, it was decided to go for standalone legislation and the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha to give effect to the provisions of the Convention. The Bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the Bill to a Select Committee which had proposed amendments to the Bill to make it more compliant with the torture Convention. However, the Bill lapsed with dissolution of the 15th Lok Sabha. India's is not agreeable to repeal the Armed Forces (Special Powers) Act, 1958 (AFSPA).

1.15 In a Civil Writ Petition11 filed by Dr. Ashwani Kumar, the petitioner submitted before the Supreme Court that "India faces problems in extradition of criminals from foreign countries because of this (having no law against torture). It's in our own national interest to have such a law". The petitioner sought directions to the government to have a legal framework and proper guidelines in terms of the CAT to prevent torture, cruelty, inhuman or degrading treatment to jail inmates.

1.16 In 2012 the U.N. Special Rapporteur presented his Report on Death Penalty and Prohibition of Torture in the United Nations General Assembly. The report noted that while death penalty is not violative of the prohibition of torture and cruel, inhuman and degrading treatment, certain aspects related to it such as certain methods of execution and the incident of being on a death row may be covered under this convention. However, it must be noted that such a view on Torture and death penalty is applicable to only those countries which carry out under the guise of lawful sanctions, barbaric execution (e.g. death by stoning) which clearly have traits of torture.

1.17 Human rights concerns for death penalty and torture are often cited as grounds for refusing extradition requests. Countries that have abolished death penalty often need diplomatic assurances that rights of the person to be extradited shall not be breached. If it appears that death penalty may be given, or there are grounds for believing that if the person is extradited he may be tortured or subjected to cruel, inhuman and degrading treatment or denied any of the rights guaranteed to him by various international law instruments such as ICCPR and UNDHR.

It would hardly be conducive to the object of the convention when a State party surrenders a suspect or fugitive knowingly to another State party where he will be in real danger of being subjected to torture, it would run contrary to the spirit and intention of the Convention itself, to expose a person to the real risk of torture or cruel, inhuman and degrading treatment. It has also been held that as such prolonged duration of a death row inmate and the ".., ever present and mounting anguish of awaiting execution of death penalty..,"12 would amount to torture.

1.18 Section 34C of The [Indian] Extradition Act, 1962 reads as under:

"Provision of life imprisonment for death penalty:- Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central Government and the laws of that foreign State do not provide for a death penalty for such an offence, such fugitive criminal shall be liable for punishment of imprisonment for life only for that offence."

1.19 The prohibition of torture is a part of customary international law and is a part of jus cogens. Inclusion of extradition prohibitions in the Torture Convention enjoins more States to ensure accountability worldwide for acts of torture. The Convention has not created an international crime which had not previously existed but provided an international system under which the torturer - international criminal, could find no safe haven.13

1.20 In Shatrughan Chauhan v. Union of India,14 the Supreme Court while discussing the scope of torture in the execution of death sentence observed:

'undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.'

1.21 The Court, in response to the Solicitor General's statement that the Law Commission of India was examining the issue, observed:

"So many matters are pending before the Law Commission. It should be taken up as a matter which requires extreme urgency."

1.22 Accordingly, the Central Government vide its letter dated 8th July, 2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.