Human Rights International Law

CAT out of the bag?

The Rajya Sabha recently referred the Prevention of Torture Bill, 2010 (“the Bill”) to a Select Committee of Parliament. The ostensible purpose of this Bill is to bring the Indian law into compliance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”), which India signed in 1997. The preamble of the Bill unambiguously notes that India is a signatory to the CAT, and that it is ‘necessary to ratify the said convention and to provide for more effective implementation’. What is surprising then, is the gaping discrepancy between the provisions of the Bill and the CAT. The structure of the Bill overall condones torture more than penalising it, and calling it the “Prevention of Torture Bill, 2010” seems rather ironic. This article will concentrate on the most basic difference between the two instruments: how the definition of torture contained in the Bill is narrow and fails to capture a lot of conduct that the CAT considers ‘torture’.

The Bill defines and punishes torture in clauses 3 and 4. A combined reading of these clauses suggests that a person will only be punished for torture under this definition if (i) they are a public servant, or have been abetted by a public servant, or have the acquiescence of a public servant, and (ii) commits an act that either causes grievous hurt, or causes mental or physical danger to the life, limb or health of the victim, and (iii) commits this act with the intention of extorting information or a confession which may lead to the detection of an offence or misconduct, and (iv) does so on some discriminatory ground. All four grounds must be satisfied before someone can be punished for torture under the Bill. This does not comply with the CAT for several reasons.

First, clause 3 read with clause 4 of the Bill indicates that only the person who actually committed the act of torture may be punished. A public servant who abets, consents, acquiesces, or conspires in an act of torture cannot be punished under the Bill. This does not comply with article 4 (1) of the CAT, which requires state parties to criminalise attempt, participation, and complicity in torture.

Second, the Bill only punishes acts that intend to extort information, or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. The definition of torture under the CAT, however, delineates four purposes for torture. These are (i) obtaining information or a confession from the victim or a third person; (ii) punishment for an act the victim has committed or is suspected of having committed; (iii) intimidation or coercion; or (iv) discrimination of any kind. The formulation in the Bill ignores the second and third factors, and only punishes if the first and last factors are found simultaneously. Thus, if, as an example, grievous hurt by a public official for purely discriminatory purposes is not torture under the Bill, but is so under the CAT.

Third, clause 3 of the Bill defines acts that are committed with the intention of extorting information or a confession as torture. However, clause 4 (the punishment section) only punishes acts that intend to extort information or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. Thus, many acts that amount to torture under clause 3 are not punished under clause 4. For example, grievous hurt caused by a public official to extort information that is not caused with a discriminatory purpose will not amount to a punishable act under clause 4. This inconsistency violates article 4(1) of the CAT, according to which each state must ensure that all acts of torture are offences under its criminal law. If an act is defined as torture but not punished, it would clearly violate this provision.

While the Bill does not comply with the CAT for many other reasons as well, the most startling fact that that it employs an understanding of torture that is far more restrictive than that the CAT mandates, while at the same time trying to comply with the CAT. The gap between the CAT and the Bill becomes more glaring when we examine the jurisprudence and development around the CAT internationally and in other national jurisdictions. It is therefore essential that the Bill’s definition of torture to be amended if the Indian state intends to realistically comply with the CAT.

(Sanhita Ambast writes on international law and international relations.)

Human Rights

On the commercialisation of education

Recently the High Court of Andhra Pradesh in Nalanda Education Society and Others v. Government of Andhra Pradesh, while dealing with a challenge to the regulation of fee structure for the pupils studying in the private and corporate schools, took serious cognizance of the general and increasingly strident complaints by parents and students, that there is crass commercialisation of education, which is reaching alarming proportions.

Hon’ble Justice Goda Raghuram speaking for the Bench observed:

“Post Independence, India witnessed a gradual transformation, from an initial stage of the State being the principal provider of educational infrastructure and regulator of formal education to being a supporter (grants-in-aid) and to now being largely a mere regulator, contouring and determining academic and faculty standards and infrastructural norms. The State is steadily and inexorably withdrawing from the funding of educational infrastructure at all levels and is content to merely regulate.  Education is now exponentially and largely a free market commodity. With accelerating privatization and an ever increasing demand for education, alongside well meaning philanthropists committed to altruistic support to education, came the carpetbaggers. The scourge of commercialization of education looms large; education is now big business and is occasionally or often pursued with a cynical and ruthless disregard for the raft of intermeshing values that must substrate a rational, benign and sustainable medium for accretion, dissemination and transmission of the wealth of accumulated human knowledge, within a generation or across generations. The Indian State has now a new and emergent item on its governance agenda – containing the rampaging sociopathy of the commercialization of education.”

Despite these observations, the Court set aside an attempted regulation of fee structure by the Government of Andhra Pradesh as being a misadventure. The Court held that the State must evolve effective and sensitive tools to regulate the educational sphere, to maintain that delicate balance between academic and operational autonomy of private unaided educational institutions and the legitimate Governmental interest in ensuring that these private entities do not indulge in profiteering.

Justice Raghuram observed: “In the matter of fee regulation the State must maintain that delicate balance; between permissible regulation to verify and prevent profiteering and collection of capitation fee by the management of a private unaided educational institution in whatsoever form, garb, guise or camouflage on the one hand and avoidance of undue intrusion into the operational, managerial and academic autonomy of the institution, on the other. This balance is the nucleus and essence of the guaranteed right under Article 19(1)(g). The fee regulating authority must be sensitive to and conscious of the broad spectrum of academic and operational autonomy that inheres in a private unaided educational institution….The instruments of regulation must be nuanced and appropriately calibrated to ensure effective but non-invasive oversight.”

According to the Court, an effective execution of the role of a regulator was possible only through informed discourse and a rational analysis after due consultation with relevant areas of expertise.

A perusal of the judgment drives home hard, the fact that it is high time, that the Governments evolve with utmost expedition, fair and effective instruments to curb profiteering and the collection of capitation fees. However since regulation of the educational sphere ‘is a pious platitude which is not calculated to give any mileage either to the politician or to his political party,’ one wonders if it is time for governments to pass on the baton to independent regulators.

(Pavan Kumar is a Hyderabad-based advocate.)