ANTI-DEFECTION LAW

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya
Lal changed his party thrice within the same day in 1967.
The anti-defection law sought to prevent such political defections which may be due to reward of
office or other similar considerations.

As a result, the Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by
which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature
based on a petition by any other member of the House.
• A legislator is deemed to have defected if he either voluntarily gives up the membership of
his party or
• disobeys the directives of the party leadership on a vote. This implies that a legislator defying
(abstaining or voting against) the party whip on any issue can lose his membership of the
House. The law applies to both Parliament and state assemblies.
• If an independent candidate joins a political party after the election.
• If a nominated member of a house joins any political party after the expiry of six months from
the date when he becomes a member of the legislature.
• The law allows a party to merge with or into another party provided that at least two-thirds of
its legislators are in favour of the merger. In such a scenario, neither the members who decide
to merge, nor the ones who stay with the original party will face disqualification.
• The original Act of 1985 also provided an exemption from disqualification in the case of splits
in the political parties. Rule 3 provided that there will be no disqualification of members if they
represent a faction of the original political party, which has arisen as a result of a split in the
party. A defection by atleast one third members of such a political party was considered as a
split which was not actionable. This provision relating to split in parties was omitted by the
Constitution (Ninety-First Amendment Act enacted in 2003.)

MERITS OF ANTI-DEFECTION LAW

Two argument are often made in support of the Anti-Defection Law.
• One argument is that this Law would ensure stability of the government in an environment
where money power can be used to persuade individual MPs to bring down elected
governments.
• The other argument is that MPs are elected on the party ticket. Voters have exercised their
preference for a set of policies espoused by the party, and therefore, MPs should be bound by
the decisions taken by the part.

CRITICISM
• The anti-defection law ensures that the party members obey to the party whip and policies,
curbing the legislator’s freedom to oppose the wrong acts of the party, bad policies, leaders
and bills. The political party in this sense acts as dictator for its members who are not allowed
to dissent. This, in a way, violates the principle of representative democracy wherein the
members are forced to obey the high command. In a well-settled representative democratic
environment, the wishes of the people of the electorate are taken care of rather than working on
the instructions and wishes of the party leaders and as per its policies. With the increased power
being given to party whip, the members are not allowed to vote on any issue independently
whether they are a part of party manifesto or not.
• The law tends to blur the fine distinction between defiance on part of members and defection
of the members leading to their disqualification. With this lack of individuality on the part of
party members, the anti-defection laws have failed to achieve the desired results.
In the UK, MPs have a right to defy the party whip and cross the floor if they wish.

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Does anti-defection law curtail the right of free speech of legislators?
This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto
Hollohan vs Zachilhu and others). It held that the law does not violate any rights or freedoms, or the
basic structure of parliamentary democracy.

• Furthermore, the Anti-Defection Law removes the need for the government to build a broad
consensus for its decisions. The ruling party can ensure the support of each of its MP by issuing
a whip. If it needs to build further support to get a majority, it only needs to convince the leaders
of other parties, and not individual MPs. In a sense, the role of an MP is diminished to just a
person who has to follow orders from the party bosses.
• The Chairman or the Speaker of the House has been given wide and absolute power in
deciding the cases pertaining to disqualification of members on the ground of defection. They
act as tribunals in defection cases. However, it must be noted that the Speaker still remains the
member of the party which nominated him/her for the post of Speaker. In such a scenario, it is
difficult to expect that the Speaker will act impartially in cases pertaining to his/ her political
party.
SC in Kihoto Hollohan case of 1992 stated that there may not be any judicial intervention until
the presiding officer gives his order. However, the final decision is subject to appeal in the
High Courts and Supreme Court.
• The law does not specify a time-period for the Presiding Officer to decide on a
disqualification plea. Given that courts can intervene only after the Presiding Officer has
decided on the matter, the petitioner seeking disqualification has no option but to wait for this
decision to be made. When the politics demanded, Speakers were either quick to pass judgment
on defection proceedings or delayed acting on them for years on end.
• Another criticism against the Speaker is that he might lack the legal knowledge and expertise
to adjudicate upon these types of matters.
The Dinesh Goswami Committee on Electoral Reforms, appointed by the V.P. Singh
Government in 1990, and the Election Commission recommended that the power to decide on
the issue of disqualification under the Tenth Schedule should be given to the President or the
Governor of the State, who shall act on the advice of the Election Commission.
• The Tenth Schedule mentions that the member of the House is disqualified from the party if
he voluntarily gives up his membership of the political party but the Schedule does not clarify
what “voluntarily giving up” means. Does it only cover resignation of the member from the
party or does it have a wider meaning than that?
This question arose before the Supreme Court in Ravi Naik v. Union of India and the Court
while interpreting the phrase held that it has a wider connotation and can also be inferred from
the conduct of the members. The words ‘voluntarily gives up his membership' were not held
synonymous with ‘resignation'. It was held that a person may voluntarily give up his
membership of a political party even without tendering his resignation from the membership
of that party.

In G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, a question arose whether

joining another political party after being expelled from the original party would amount to
voluntarily giving up the membership or not. It was held in this case that on being expelled
from the party, the member, though considered ‘unattached’, still remains the member of the
old party for the purpose of the Tenth Schedule. However, if the expelled member joins
another political party after expulsion, he is considered to have voluntarily given up the
membership of his old political party.

• While Rule 4 of the Tenth Schedule seems to provide some exception from disqualification
of members in the cases relating to mergers, there seems to be some loophole in the law. The
provision tends to safeguard the members of a political party where the original political party
merges with another party subject to the condition that atleast two-third of the members of the
legislature party concerned have agreed to such merger.

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 The flaw seems to be that the exception is based on the number of members rather than the
reason behind the defection. The common reasons for defection of individual members seems
to be availability of lucrative office or ministerial posts with the other party. It can very well
be expected that the very same reason might be available with those two-third members who
have agreed to the merger. If defection by an individual member is not acceptable, it is very
much difficult to assert that the same would be valid in case of mergers only because a large
number of people are involved. This tends to undermine the democracy of the nation and thus
the provision seems to be flawed. The provision could have been more useful if it had taken
into consideration the real reason for merger rather than the number of members
involved.

• Recently, 12 out of the 16 members of the Congress Legislature Party in Telangana “merged”
with the TRS, the ruling party in Telangana.
• Four members of the Rajya Sabha, from the Telugu Desam Party “merged” with the BJP and
became members of the legislature party of the BJP in the Rajya Sabha.

RECENT MISUSE

• Also, the removal of the split provision has prompted political parties to engineer wholesale
defections (to merge) instead of smaller ‘retail’ ones.
• Legislators are resigning from the membership of the House in order to escape disqualification
from ministerial berths.
• The ceiling on the size of the Council of Ministers has meant an increase in the number of
positions of parliamentary secretaries in states. The Speakers started taking an active interest
in political matters, helping build and break governments.

WAY FORWARD

ISSUES WITH GOVERNOR

Article 163(1) of the Constitution says that “there shall be a council of Ministers
with the Chief Minister at the head to aid and advise the Governor in the exercise

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of his functions, except in so far as he is by or under this constitution required to
exercise his functions or any of them in his discretion.”

1) Article 155 of the Constitution of India empowers the President of India to appoint
the Governor of a State and Article 156 says he continues to occupy the post till he
enjoys the pleasure of the President, which in reality, means the Prime Minister.
Therefore, change in government at the Centre has been followed by en-masse removal
of individuals appointed to the post by the previous government.
As a result, the governor may not find it easy to function with complete impartiality
and as an independent constitutional authority as there is an apprehension of
dismissal or transfer to another State without the governor’s willing consent.
2) The Union government has followed no particular principles and there is no fixed
criterion for the appointment of Governors. By and large, appointments to the
Governorship have been made on party considerations and majority of the Governors
belongs to the ranks of politicians connected with the ruling party.
This alleged politicisation of this process, owing to their selection at the behest of the
Centre, has been widely criticised. Past trends indicate that these positions are
frequently allocated to ex-politicians with strong ties to the Central Government,
active politicians which consequently makes the governor function as an AGENT of
central government.
Chief ministers of opposition-ruled states have often criticised the alleged “misuse” of
constitutional posts by governors to “serve the political interests” of the ruling
dispensation at the Centre.
3) Of the several legislative, executive, financial and judicial powers of the Governor, it
is the exercise of his discretionary powers that has been the bone of contention
between the Centre and the States since Independence.
The most controversial of these are:
a) The power to appoint the Chief Minister under Article 164;
THE appointment of a Chief Minister is the most important discretionary power
exercised by a Governor under the Indian Constitution. In keeping with convention,
one who commands a clear majority in the Assembly constituted after a general
election is appointed as Chief Minister by a Governor. A Governor is not likely to
exercise his or her discretion in such cases.
Hung assembly because of fractured electoral mandates, however, present a
Governor with an opportunity to exercise his or her discretion in a real sense.
Discretion in such cases involves assessment of whether a claimant may
successfully command a majority in the Assembly in due course.
This exercise of discretion by the governor has often been contested with the most
recent being the case of Goa and Karnataka.

Goa saw a hung assembly. In Goa, the Congress won 17 seats in the 40-member
Assembly as opposed to the BJP’s 13. In such a situation, the normal procedure

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 should have been for the Governor to invite the single largest party to explore
government formation possibilities. But the Goa Governor, Mridula Sinha, instead
invited the BJP which, she later explained, approached her with letters of support
from smaller parties and independent MLAs.
Supreme Court upheld the Governor’s action in inviting the post-election alliance
consisting of 21 members, comprising the BJP (13), the Maharashtrawadi
Gomantak Party (3), the Goa Forward Party (3) and two Independents
The most recent case of Karnataka, however, saw the Congress take the bull by its
horns. When Karnataka threw up a hung Assembly, Governor Vajubhai R. Vala
invited the BJP, which had emerged as the single largest party with 104 seats, to
form the government. Although the Congress, which won 78 seats, lost no time in
stitching up an alliance with the JD(S), which had won 37 seats, their claim was
ignored by the Governor, who not only invited the BJP but gave its leader, B.S.
Yeddyurappa, 15 days’ time to prove his majority.

The Constitution does not describe any time limit for the President to refuse his
assent to a reserved State Bill.

b) The right to summon Assembly as per Article 174;

In Arunachal Pradesh, Rajkhowa used the rebellion in the Congress to help install
a government of 14 rebel Congress MLAs, who had the outside support of the BJP
and a couple of independent MLAs. These Congress MLAs who had rebelled
against the Nobam Tuki government had been disqualified by the Speaker. Led by
the late Khaliko Pul, they approached Rajkhowa, demanding impeachment of the
Speaker.
The Governor, acting without the advice of the Council of Ministers, advanced the
Assembly session from January 14, 2016, to December 16, 2015, to decide on the
Speaker’s impeachment. In a bizarre turn of events, the Assembly session was held
in a hotel in Itanagar and Pul was hoisted as the Chief Minister with help from the
BJP and two independent MLAs. The Congress then approached the Supreme
Court. A Constitution bench, headed by the then Chief Justice J.S. Khehar, heard

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 the matter and came out with a stinging verdict on the role of the Governor,
indicting him and overturning his decisions.
The apex court ruled in 2016 in this case (NABAM REBIA case) that no matter
how murky the political developments were in a State, the Governor had no
business to get involved in them. The Governor must remain aloof from any
disagreement, discord, disharmony, discontent or dissension within individual
political parties.
Constitution did not enjoin upon the Governor the authority to resolve disputes
within a political party or between rival political parties.
Significance of the 21-day period suggested by the Governor
• The Constitution does not provide for this.
• In 1969, the Rules Committee of the Lok Sabha recommended that the
gap between the date of summons and of the commencement of the House
should be 21 days. This was thought of as necessary as the collection,
collation and scrutiny of information relating to Questions, at different
levels of bureaucracy, before it was placed in the House, was a time-
consuming job.
• Although Parliament changed it to 15 days later, many State Legislatures
continue with the 21-day period.
• It is not an inflexible rule and says, “unless the Speaker otherwise
decides”.
This rule is generally followed but it has never constrained governments
from convening the House at shorter notice. In fact, the Rajasthan House
rule itself provides for a session at shorter notice. If the government feels
the urgency, it is well within its power to convene the House at shorter
notice.

c) The recommendation of President’s rule under Article 356 in case of

breakdown of the Constitutional machinery.
The Governor, in pursuance of his powers under Article 356, submits a report to the
President on the ‘breakdown of constitutional machinery in the state’, when
convinced that the administration of a state cannot be carried out in accordance with
the provisions of the Constitution. Upon receipt of this report, the President may
then, on the aid and advice of the Council of Ministers, impose direct rule, i.e.
President’s Rule.
This provision has been misused for dismissing popularly elected governments in
the states for arbitrary, and malafide manner.
1. Where a ministry resigns or is dismissed on losing majority support in the
assembly and the governor recommends imposition of President’s Rule without
probing the possibility of forming an alternative ministry.

2. Where the governor makes his own assessment of the support of a ministry in
the assembly and recommends imposition of President’s Rule without allowing the
ministry to prove its majority on the floor of the Assembly.

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 4. Internal disturbances not amounting to internal subversion or physical
breakdown.

5. Maladministration in the state or allegations of corruption against the ministry

or stringent financial exigencies of the state.

6. Where the state government is not given prior warning to rectify itself except
in case of extreme urgency leading to disastrous consequences.

7. Where the power is used to sort out intra-party problems of the ruling party, or
for a purpose extraneous or irrelevant to the one for which it has been conferred by
the Constitution.

• In November 2018, the governor dissolved the Jammu and Kashmir Assembly without
giving any claimant an opportunity to form the government. The governor stated that
“extensive horse trading” and the possibility that a government formed by parties with
“opposing political ideologies” would not be stable.
SC in Rameshwar Prasad (2006) case has ruled that Governor cannot shut out post-
poll alliances altogether as one of the ways in which a popular government may be
formed. The court had also said unsubstantiated claims of horse-trading or corruption
in efforts at government formation cannot be cited as reasons to dissolve the Assembly.
Further, it said it was the Governor’s duty to explore the possibility of forming a popular
government, and that he could not dissolve the House solely to prevent a combination
from staking its claim.

VARIOUS COMMISSION REPORTS AND SC JUDGEMENTS.

• Time and again, judicial intervention has ensured the protection of the federal structure,
and the judges have reprimanded the Governors for failing to perform their
constitutional duties.
• The rise of regional parties and the emergence of influential State leaders triggered the
necessity for a responsible federalism sensitive to the needs of the constituent States.
This resulted in the formation of several committees and commissions to recommend
measures for harmonious Centre-State relations, such as the Administrative Reforms
Commission I (ARC 1966), Rajamannar Committee (1969), Sarkaria Commission
(1983), Punchhi Commission.

SARKARIA COMMISSION (1988)

The Government of India had set up first Commission on Centre-State Relations

on 09.06.1983 under the Chairmanship of Justice R.S. Sarkaria, a retired judge
of the Supreme Court to review the existing arrangements between the Centre
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and the States. The Commission in its report submitted in 1988 has made 247
recommendations on various aspects of the Centre-State Relations.
1) a person to be appointed as a Governor should be:
(a) an eminent person in some walk of life,
(b) a person not belonging to the same state,
(c) a detached figure and not too intimately concerned with the local
politics of the state, and
(d) a person who has not largely taken part in politics.
The Commission also recommended that while selecting the Governor in
accordance with the above criteria persons belonging to the minority
groups should be given preference.
(e) It also specifically recommended that a politician from the ruling party
at the Union is not appointed as the Governor of a state run by some other
party or a combination of other parties.
2) Article 155 should be suitably amended prescribing the procedure of
consultation with the state Chief Minister in selection of the person to be
appointed as Governor. In this connection the Prime Minister has to consult the
Vice-President of India and the speaker of Lok Sabha informally.
3) The Governor’s tenure of five years in a state should not be disturbed except
for some extremely compelling reasons.
4) After laying down the office as Governor, one should not return to active
partisan politics. However, the Governor at the end of his tenure, should be
provided reasonable post-retirement benefits for himself and for his surviving
spouse.
5) The Commission also stipulated certain principles for the Governor while
choosing the Chief Minister for his guidance such as calling upon that party or
the coalition having widest support in the Legislative Assembly.
If no party has a majority, the Governor has to invite: a) a pre-poll alliance, b)
the largest single party that is able to gain majority support, c) a post-
election coalition that has the required members, d) a post-election coalition
in which partners are willing to extend outside support.
6) The Governor cannot dismiss the Council of Ministers so long as it continues
to command a majority in the Legislative Assembly.
7) It recommended that Article 356 should be used very sparingly, in extreme
cases, as a measure last resort, when all available alternatives fail.
In a situation of political breakdown, the Governor should explore all
possibilities of having a government enjoying the majority support in the
Legislative Assembly.
The Governor’s report on the basis of which a proclamation under Article 356
is issued should be given wide publicity in all the media and in full.

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8) The Legislative Assembly should not be dissolved until the Emergency proclamation
under Article 356 has been laid before and considered by Parliament.

BOMMAI JUDGEMENT
• The Supreme Court verdict in S.R. Bommai vs Union of India in 1994 was a landmark
judgment that limited the constitutional power of the Central government to dismiss
State governments.
• The nine-judge bench asserted that the only way to assess the strength of the State
government was the floor test and it was not a matter of private opinion either of the
Governor or the President. Moreover, the bench declared that the imposition of
Emergency under Article 356 was justified only in the event of breakdown of the
constitutional (and not administrative) machinery.
1)The proclamation of President's Rule is subject to judicial review (as provided by
44th Amendment 1978) on grounds of malafide Intention;

(2) The proclamation shall be based on relevant material and Centre has to justify
the imposition of President's Rule.

(3) The court has power to revive dissolved or suspended State government. If
proclamation of President's Rule is found unconstitutional and invalid, it will be open
to the Court to restore the status quo ante to the issuance of the Proclamation and hence
to restore the Legislative Assembly and the Ministry.

(3) The State Assembly can't be dissolved before approval of parliament for
imposition of President's Rule and President can only suspend the Assembly.

(4) The grounds of serious allegations of corruption against Ministry of State and
financial instability are not enough for imposition of President's Rule;

(5) If Ministry of State resigns or dismissed or loses majority then Governor can't
advise President to impose President's Rule until enough measures are taken by
Governor for formation an alternative Government;

(6) The question of the state government losing the confidence of the legislative
assembly should be decided on the floor of the House and until that is done the ministry
should not be unseated.

(7) Where a new political party assumes power at the Centre, it will not have the
authority to dismiss ministries formed by other parties in the states.

(8) The SC held that power under Article 356 is an exceptional power and to be used
only occassionally to meet the requirements of special situations. occassionally to meet
the requirements of special situations.

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PUNCHHI COMMISSION (2010)
A three-member commission, headed by the former Chief Justice of India MM
Punchhi, was set up by the previous UPA Government to take a fresh look at
relative roles and responsibilities of various levels of government and their inter-
relations. The commission had submitted its report in 2010.
• On a number of key issues, the Punchhi Commission concurred with its predecessor
and reiterated certain recommendations provided by the Sarkaria Commission. For
instance, it suggested that all nominees for the post of the Governor must be removed
from active politics for at least two years prior to being considered for appointment;
that eminent persons should be appointed as Governors for states other than their
home states; and that the appointment of the Governor should be made in
consultation with the Chief Minister of the state.
• Perhaps the foremost contribution of the Punchhi Commission was in crystallising the
idea of a ‘localised emergency’. On the application of Articles 356, the Punchhi
Commission recommended that it would be more appropriate to direct such action only
in the district or area where the unrest originates, instead of placing the entire state
under direct control of the Governor through the imposition of President’s rule.
• The Punchhi Commission also recommended codifying the order of precedence by
which the Governor must bind himself in selecting the Chief Minister, in case the
elections result in a hung assembly. With codified principles in operation, the discretion
of the Governor is reduced substantially.
• The order of precedence suggested by the Punchhi Commission in this respect is as
follows –
1)the party/pre-poll alliance commanding the largest number,
2)the single largest party with support of others,
3) the post-electoral coalition with all parties joining the Government,
4)and finally, the post-electoral alliance with some parties joining the government and
the remaining, including independents, supporting from outside.
• On the issue of arbitrary dismissal of Governors, the Punchhi Commission observed
that the practice of treating Governors as “political footballs” must stop.
• To ensure their security of tenure, it recommended an amendment to the Constitution
that would fix a term of five years for the Governors, which could be prematurely
terminated only through impeachment by the concerned state legislative assembly.
• The Punchhi Commission also suggested amending the wording of Article 163(2) to
limit the vast scope of discretion available to the Governor.

WAY FORWARD:

• A healthy federation is indispensable in the contemporary scenario, which is marked

by political instability, dangers to internal security posed by non-state actors,
secessionist tendencies, economic competitiveness and so on.

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 • In the era of globalisation, several States compete with one another as well as the
Centre in order to attract investors by organising “business summits” to generate their
own revenue.
.
• Any misuse, therefore, of the office of the Governor to undermine popularly elected
governments in the States is detrimental to the smooth functioning of federal-
democratic polity.
• Over-centralisation may be suicidal for the Centre and the States, and as the Sarkaria
Commission had cautioned, may lead to “blood pressure at the Centre and anaemia
at the periphery, resulting in morbidity”.

Anti-torture law (in light of custodial killings)

• There is no definition of torture in the current Indian laws.
• Provisions relating to causing hurt or grievous hurt, especially with a view to
extracting a confession, criminal intimidation and wrongful confinement
already exist in the Indian Penal Code.
However, the idea of a stand-alone law ought to be ultimately seen as a more
tangible way of expressing commitment to eliminating torture.
• A concrete step towards enacting a law was made when the Prevention of
Torture Bill, 2010, was passed by the Lok Sabha in 2010, but it was referred to
a Select Committee in the Rajya Sabha. In its report submitted in the same year,
the committee recommended exhaustive amendments to the Bill to make it
consistent with the language and intent of the Convention. Thereafter the Bill
lapsed.

Why we need a separate law?

• Pervasive nature of custodial violence and its complex policing requirements,

• Present legislative and administrative framework is obviously inadequate to
prevent torture in a country of India’s size.
It is imperative that a strong law that criminalises torture, imposes stringent
punishment for it and contains liberal provisions for those suffering torture to
complain against their perpetrators, prosecute them and be compensated and
rehabilitated, is passed at the earliest.

• Obligations under UNCAT - The UNCAT seeks to ensure that countries put in
place various institutional mechanisms to prevent the use of torture. Each

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 country that is party to the convention is required to carry out certain steps
such as
(i) legislative, administrative, judicial or other measures to prevent torture,
(ii) ensure that torture is a criminal offence, among others.
• EXTRADITION -In recent times there is an urgency attached to the need for
early ratification of UNCAT, as the country has pending requests for the
extradition of its nationals from other countries.
As pointed out by the Supreme Court, the absence of a stand-alone law
prohibiting torture may prevent many countries from agreeing to India’s
extradition requests. The court also noted that India has been subjected to
close questioning during the Universal Periodic Review of its human rights
obligations at the UN Human Rights Council in Geneva.
• SC OBSERVATIONS- Even before India signed the UNCAT, our Supreme Court
has expressed concerns against prevalent culture of torture.
(Raghbir Singh v. State of Haryana (1980))
• Violative of Article 21-This interpretation of Article 21 is consistent with the
principles contained in the UNCAT. The UNCAT aims to prevent torture and
other acts of cruel, inhuman, or degrading treatment or punishment around the
world.

LAW COMMISSION 273RD REPORT

• The Law Commission of India (Chairperson: Dr. Justice B. S. Chauhan) submitted

its report on “Implementation of ‘United Nations Convention against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment’ through
legislation” to the Ministry of Law and Justice on October 30, 2017.
The matter was referred to the Law Commission in July 2017, following a
recommendation by the Supreme Court.
• In addition, the Commission submitted a draft Prevention of Torture Bill, 2017
which defines acts that should constitute torture and prescribed punishments
for such acts.

MAJOR RECOMMENDATIONS: -

• Ratification of UNCAT.
• Compensation for torture: The Commission recommended amendments to
the Code of Criminal Procedure, 1973 to allow for payment of compensation in
case of torture. It made this recommendation citing that courts have previously
awarded compensation for various forms of torture including illegal detention,
and custodial torture.
The Commission recommended that courts should determine compensation on
the basis of nature, purpose, and extent of injury caused to a person, among
other factors. Further, courts should keep in mind the socio-economic

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 background of the victim to ensure that the compensation covers medical
treatment and rehabilitation.
• Custodial injury: The Commission recommended amendments to the Indian
Evidence Act, 1872 to ensure that in case a person sustains injuries in police
custody, it will be presumed that these have been inflicted by the police. The
burden of proof shall lie on the police authorities to explain such injuries.
• ·Sovereign immunity: Sovereign immunity is the principle that the government
is not responsible for the actions of its agents (such as police forces). The
Commission states that courts have rejected this principle in various cases and
therefore agents of the government cannot engage in torture. The Commission
reiterated that citizens are entitled to constitutional rights such as the right to
life and personal liberty.

Prevention of Torture Bill, 2017

• Definition of torture: According to the draft Prevention of Torture Bill, 2017,

any public servant or an individual authorised by him indulges in an act of
torture if they inflict on another person: (i) grievous hurt, (ii) danger to life, limb,
or health, (iii) severe physical or mental pain, or (iv) death for the purpose of
acquiring information or punishment.
• Punishment for acts of torture: According to the draft Prevention of Torture
Bill, 2017, punishment for torture includes imprisonment up to 10 years and
fine. In case torture leads to death, the punishment includes death or life
imprisonment in addition to fine.
• Protection for individuals: The draft Prevention of Torture Bill, 2017 makes
state governments responsible for protecting these individuals. The state
government will provide such protection from the time of submission of
complaint till conclusion of trial for the offence.

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