Law panel moots life term for torture:

Law panel moots life term for torture:

Context

• The Law Commission recommended that the government should ratify a United Nations convention to tide over difficulties in getting extradited criminals from foreign countries.
• The steps have been taken due to the absence of a law preventing harsh treatment by authorities. The Law Commission has commended life in jail for public servants convicted of torture.

What are the recommendations?

• The panel also mentioned that in case the government decided to ratify the UN convention on torture and other inhuman and degrading treatment or punishment, a Bill should be introduced in Parliament to amend various laws to prevent torture by government officials.
• The draft Prevention of Torture Bill, 2017 proposes a stringent punishment to perpetrators to curb the menace of torture and to have a limited effect on acts of torture.
• The punishment could extend up to life imprisonment and include a fine.
• The report submitted to the Law Ministry requires amendments to accommodate provisions regarding compensation and burden of proof.
• It recommended an amendment to Section 357B to incorporate payment of compensation, in addition to the payment of fine provided in the Indian Penal Code.

The Prevention of Torture Bill

• The Prevention of Torture Bill introduced by the Minister for Home Affairs makes torture a punishable offence.
• The Statement of Objects and Reasons of the Bill states that the Bill is being introduced to ratify the UN Convention against Torture of 1975.
• India is a signatory of the Convention but has not enacted a law on torture which would enable it to ratify the Convention. The Bill defines torture and prescribes conditions under which torture is punishable.

Highlights of the Bill

• The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
• The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
• Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.

What is extradition?  

• Extradition refers to the surrender of a criminal to one country by another.
• The process of extradition is regulated by treaties between the two countries.
• Extradition is important because it helps to maintain the sanctity of the penal code of one country or territory.
• The penal code says that it shouldn’t apply its criminal law to a person who committed an offence outside its territories except when the crime is related to the country’s national interest.

What are the internationally accepted conditions for extradition?

• The crime committed by the accused should fall in the category of dual criminality. It should be a punishable offence according to the laws of both countries – the one where the accused has taken refuge, and the one that seeks extradition.
• Persons charged for political reasons are generally not extradited.
• There are countries where capital punishment is banned. If a fugitive has taken refuge in such a country, and if the establishment of that country thinks that, if extradited, the accused might get capital punishment, the country most likely refuses to extradite.

Can an extradited criminal be tried for an offence other than the one with respect to which extradition is granted in India?

• Section 21 of the Extradition Act places a prohibition on trial of a fugitive for any offence other than the extradition offence.  Therefore, the answer is no.
• The exceptions are the cases where the fugitive is in fact charged for an offence of similar manner of the offence charged originally or when the foreign court gives its consent to the charge for the newer offence.

Extradition laws in India

• In India, the Extradition Act, 1962, regulates the surrender of a person to another country or the request for arrest of a person in a foreign land.
• According to the act, any conduct by a person in India or elsewhere mentioned in a list of extradition offences punishable with a minimum one year of imprisonment qualifies for an extradition request.
• The process of extradition is to be initiated by the central government. Currently, India has extradition treaties with 38 countries.
• If there is no treaty with the country from which the fugitive is to be extradited, then there aren’t any defined guidelines for the law to be applied and procedure to be followed. In such a scenario, a lot depends on the cooperation and coordination between different authorities of the two countries. Another option is to resort to a Mutual Legal Assistance Treaty wherein both countries agree to exchange information in order to enforce criminal laws.
• If the extradition request comes from two or more countries, then the government has the right to take the call to decide which country is fittest for the request.
• Since 2002, India has extradited 44 fugitive criminals to various countries. On the contrary, India has got 61 criminals extradited to itself from different countries since 2002.

What are the conditions under which the government can deny extradition?

• In case the government believes that the case is trivial, and it thinks that the surrendering of the person is not being made in good faith, or in the interests of justice, or for political reasons, it can deny the request.
• If the surrender is barred by time in the law of the country which seeks extradition, then also the person can’t be extradited from India.
• The government can also stop the process if it feels that the person will be charged with an offence not mentioned in the extradition treaty.
• The government can put extradition on hold if it feels the person accused will be charged for a lesser offence disclosed by the authorities.
• If the person is serving a jail term for an offence on Indian soil, which is different from the offence for which the person is wanted abroad, then also the extradition process can be stopped.
• Similarly, if a fugitive criminal has committed an offence which is punishable with death in India, while the laws of the foreign state do not provide death for the same offence, the criminal will get life imprisonment in India.

India’s biggest success till date

Abu Salem

• Abu Salem was convicted for the 1993 Mumbai serial blasts case, and the murder of music baron Gulshan Kumar in 1996 along with 50 other cases.
• On 20 September 2002, he was arrested along with Bollywood actress Monica Bedi, by Interpol in Lisbon, Portugal. In February 2004, a Portugal court cleared his extradition to India to face trial in the 1993 Mumbai bomb blasts case.
• A lower court in Portugal cancelled his extradition to India for violation of deportation rules by Indian authorities by instituting fresh cases against him which attracted the death penalty.
• In July 2012, the Portuguese Supreme Court of Justice questioned the legal right of Indian authorities to challenge the cancellation of the extradition order.
• Abu Salem is currently in prison in high-security Arthur Jail in India.

Way ahead

• Extradition is a great step towards international cooperation in the suppression of crime.
• States should treat extradition as an obligation resulting from the international solidarity in the fight against crime.
• With the growing internationalization of crime and judicial developments, extradition law is in a state of great unrest.
• The courts are grappling with myriad issues including: interpretation of treaties and arrangements vis-a-vis municipal extradition law, balancing of due process versus principle of adherence to comity of courts, the effect of a red corner notice, the role of international agencies, the interface of powers of deportation with extradition, etc.
• Jurisprudence in the area of extradition law is evolving at a rapid pace and it is hoped that the Indian Judiciary will match up to global standards and resolve the extremely vexing legal challenges posed to it.