Torture by Private Actors: Introducing a Legal Discourse in India

Torture is widely prevalent in India and routinely practiced by the state enforcement institutions. Despite its extensive practice, torture does not expressly find a mention in the Indian Constitution or in the Indian Penal Code (IPC). Civil liberties and human rights groups have documented details of the practice of torture in India, the success in securing accountability for torture or lack thereof and the need for a law on torture. In May 2010, the lower house of the Parliament passed The Prevention of Torture Bill, 2010 (PTB) and is pending passing in the upper house of the Parliament before becoming a law. While supporting the overall demand for a law on torture, the present article compares the PTB’s definition of torture to the ones in United Nations Convention Against Torture, the International Criminal Court (ICC) Statute and those in the jurisprudence of the international ad-hoc tribunals and highlights the shortcomings. The paper argues for a conceptual extension of the definition of torture to include torture by private actors. The arguments emphasize the need and the value of appropriately characterizing tortuous criminal acts by private actors as torture and provide a legal basis for such an extension.