| ?lt;/td> | UN Convention Against Torture (UNCAT) | Nepal (ratified on 14 May 1991) | Cambodia (ratified on 15 Oct 1992) | India (signed on 14 Oct 97, without ratification) |
Source | Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) | Torture Compensation Act 2053 B.S. (1996) | Mentioned in UNTAC Code (1992) (However, the UNTAC Code does not specifically outlaw torture) | None, Although Article 21 of the Constitution protects the right to life, which has been held by the courts to include a guarantee against torture. |
Definition of Torture | Art 1: Any act by which severe pain or suffering, whether physical or mental, is internationally 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. | Art 2: Physical or mental torture inflicted on a person who is in detention for investigation or awaiting trial or for any other reason; also includes cruel inhuman or degrading treatment that a person is subjected to. UN Committee Against Torture, Conclusions and Recommendations: the definition of torture is not as wide as that required by Article 1 of the CAT | - Art 12(1) of the Code: No detainee shall be subjected to cruel, inhuman or degrading treatment or punishment, nor be beaten or tortured.
- Art 57: Any public agents, who deliberately infringe upon rights of physical integrity and the inviolability of the home, shall be liable to a punishment of one to five years in prison.
These provisions do not amount to a clear definition of torture as required by the CAT. | Not available. |
Who can inflict torture? | Art 1: The pain of suffering should be 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. | Not explicitly mentioned. But torture can only be inflicted when the victim is in detention for investigation or awaiting trial or for any other reason, so the person who inflicts torture should be a government employee who works in the police or prison service. | Art 57 of the Code: Any public agents, including police or military agents. | Not available. |
When does the State Party have jurisdiction? | Art 5: a. (Territorial jurisdiction) When the act of torture is committed in any territory under its jurisdiction or on board of a ship or aircraft registered in that State. b. (Objective jurisdiction) When the alleged offender is a national of that State. c. (Subjective jurisdiction) When the victim is a national of that State. | Not mentioned. | Not mentioned. | Not available. |
Victims?right to complain | Art 13: Persons who allege to have been subjected to torture have the right to complain to the competent authorities, and the right to have their cases promptly and impartially examined. State Parties shall take steps to protect complainants and witnesses against all ill-treatment or intimidation. | - Art 5(1): The victim may file a complaint claiming compensation in the District Court within 35 days of having been subjected to torture or of released from detention.
- Art 5(2): In case the victim has died or any other reason cannot file a complaint himself, any other adult member from his family or his legal practitioner may file a complaint.
- Art 5(3): If it is suspected that a detainee has been subjected to torture, any other adult member from his family or his legal practitioner may file a complaint.
| There is no legal authority to which complaints about torture may be made. | Not available. In 1987, the Supreme Court held a judgement stating that there were increasing allegations of custodial violence and reported deaths in custody, and issued an order requesting all state governments to provide their response to the allegations, and requested the Law Commission of India to make suitable suggestions in relation to the problem of torture. 9 years later, the Supreme Court issued its judgement in the case Basu v. State of West Bengal, in which the Court listed out 11 requirements to be followed in all cases of arrest and detention. However, no provision has been made to outlaw torture. |
Procedure to be followed | - Art 7: The State Party has responsibility to try or to extradite the person who is alleged to have committed torture
- Art 6: The State Party shall take the person, who is alleged to have committed torture and is present in the State Party’s territory, into custody or take other legal measures to ensure his presence.
- Art 6: Such State shall immediately make a preliminary inquiry into the facts.
- Art 6: The consular representatives of the national state of the person shall be notified.
- Art 12: State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation.
| - Art 5(3): Upon receiving petition, the Court may order to have the detainee’s physical or mental examination within three days.
- Art 6: The District Court shall proceed the complaint filed in accordance with the procedures set forth in the Summary Procedure Act, 2028 [1972]
| No authority exists to investigate cases of torture. Article 12 of the CAT has not been complied with. | Not available. Although the Constitution gives individuals the right to bring a proceeding to the Supreme Court if his/ her fundamental rights are violated. |
Investigation, prosecution and trial of alleged criminal offences | Art 7: Authorities of the State Parties shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. Persons who are brought in connection with offence of torture shall be guaranteed fair treatment at all stages of the proceedings. | - Art 6: The proceedings will be in accordance with the Summary Procedure Act, 2028 [1972]
- Art 7: If it is held that torture has been committed, the District Court shall order the concerned authority to take a departmental action according to the existing law against the government employee who committed the act of torture.
| There is no authority to receive, investigate and redress any wrong done by state agents. The government has failed to meet its obligations under article 13 of the CAT. | Not available. See "Victims?right to complain". |
Is it a criminal offence? | Yes. Art 4: Each State Party shall ensure that all acts of torture are offences under its criminal law. | Uncertain. Art 7: The government employee who committed the offence of torture shall be subjected to legal action according to existing law. But it does not mention which kind of law and punishment to be imposed. ?lt;/p> | There is no criminal sanction against torture. | No. |
Punishment | Art 4: Each State Party shall make offences of torture punishable by appropriate penalties which take into account their grave nature. | Not specified. Art 7: the person who committed the act of torture will be subjected to a departmental action according to existing law. | Art 57 of the Code: Any public agents, including police or military agents, who deliberately infringe upon the rights of physical integrity and the inviolability of the home, shall be liable to a punishment of one to five years in prison. The punishment is not sufficient. | Not available. |
Admissibility of confession obtained by torture | Art 15: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. | Not mentioned. ?lt;/p> | Not mentioned. | Not mentioned in any provision. |
Medical care and compensation to the victims | Art 14: State Parties shall ensure in its legal system that that the victims of torture obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. If the victim is dead, his dependants shall be entitled to compensation. | - Art 4: The victim of torture shall be provided compensation.
- Art 6: if the matter of the complaint is found to be true, the District Court may make adjudication to have compensation in maximum of one hundred thousand rupees paid by the Government to the victim.
| No legal redress exists. | Not available. |
