India’s Tryst with Torture in the Land of Gandhi and Buddha

Introduction

India’s stance on torture has two profiles. The first is marked by an unwavering projection of tolerance, pacifism and kindness. This is the public profile that graces the international arena and claims that the ‘culture of torture is completely alien to the Indian culture’.

The second profile is one that is kept out of the limelight in the shadows. It is the profile that bears the frown of a deposed state asserting eternal servitude against any voices of freedom or dissent under the garb protecting the ‘sovereignty’ and ‘integrity’ of the nation through the means of immensely detestable measures and inflictions.

This account seeks to propose a note on India’s standpoint on torture and make a case for the ratification of the United Nations Convention Against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment with a subsequent law on Torture.

Unimpressive Trajectory

India is a signatory to the UN Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment (“UNCAT”). It signed the treaty in 1997. This act of signing exhibits the state’s preliminary endorsement of the instrument and demonstrates its intent to examine the treaty domestically and consider ratifying it. In 2008, at the Universal Periodic Review where the Human Rights record of UN member states is reviewed, India was encouraged to ratify the Optional Protocol to the UNCAT. India claimed that it was ‘completely committed’ to the objectives of the UNCAT. Again in 2011 India committed to expedite ratification of the Convention against Torture. This commitment was made with respect to India’s interests in obtaining membership of the Human Rights Council of the United Nations which was ultimately not fulfilled. In its candidature for the membership of the Human Rights Council for the term 2019-2021 again the same commitment is being made. However, the fact of the matter remains that even after the passing of a little more than two decades since the signing; India is yet to ratify the treaty. The half hearted interest in ratifying the treaty is clearly indicative of the hypocritical stance that India has exhibited over the last two decades. What should come as an even more uncomfortable fact is that India is amongst the only nine countries worldwide which are yet to ratify the convention.

Why Not Ratify?

India has not ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment so far, since it is asserted that the ratification requires enabling legislation to reflect the definition and punishment for “torture”.  The Supreme Court of India has taken cognizance of the matter as to why the government was not making at least a “good faith commitment” about its intention to legislate in the matter in response to a PIL  seeking the court’s intervention to ensure an effective and purposeful legislative framework/ laws and its enforcement to fulfill the constitutional promise of human dignity and prevention of custodial torture at all levels.

It is claimed that in the absence of a national legislation, ratification cannot take place. This contention, however, cannot be used to not ratify the convention. This is because it can ratify the treaty first and then make the law. In Papa New Guinea, the Constitution mandates looking to international human rights law for assistance in interpretation.  The essential argument here is that if courts can look up to international conventions, declarations and recommendations to see if a law is good or not, the executive can in a similar manner look up to these international instruments to form a national legislation. In fact, India does not even need to look beyond its neighbor. Pakistan has ratified the UNCAT even though there is no legislation existing on torture till date.  Even though the human rights record in Pakistan is equally dubious, India should take inspiration from its neighbor in at least ratifying the treaty and then subsequently make the law in consonance with Article 2 of the UNCAT which mandates effective legislative, administrative, judicial or other measures by a state party to prevent acts of torture in any territory under its jurisdiction. Even the UN High Commissioner for Human Rights has discarded the excuse that the state must enact legislation first and ratify later calling it “an erroneous idea” and “a misconception The Law Commission of India too, in its report  has recommended for the consideration of the Convention Against Torture for ratification first and subsequently for consideration of the bill on torture in the event of ratification taking place.

The Case Against Torture Legislation

A case against the need for legislation which is made is that provisions in the Indian Penal Code are sufficient to deal with torture. This claim is grossly problematic. The Indian Penal Code addresses torture in sections 330 and 331 which apply on those who voluntarily cause hurt or grievous hurt with an object to coerce the sufferer to confess to his guilt or give information respecting the commission of a crime or misconduct, or to restore property or satisfy any claim or demand respecting thereto.

 The provisions of the Indian Penal Code take into account only the ‘physicality’ of torture where ‘hurt’ is essentially equivalent to ‘bodily pain’ that must be physical as opposed to any mental pain. However, bodily pain is not necessarily resorted to for inflicting hurt. In an investigation by the NHRC, it was found that in the Bhopal Central Prison, around 21 muslim undertrial (except for 1) prisoners had their Quran thrown and  were being forced to chant “Jai Shri Ram” in order to receive food. Additionally, they were not allowed to sleep for more than a few hours in the name of attendance (“khairiyat”). The aforementioned instances are clear cut cases of severe mental suffering, agony and tension but still wouldn’t be accounted for within the broadly worded and vaguely guided provisions of torture under the Indian Penal Code. In the absence of a proper definition it becomes extremely important to make a comprehensive national legislation on torture that safeguards the rights and dignity of individuals.

The Relevance of Ratification

Ratification of a treaty reinforces inalienability of the rights that the treaty seeks to protect. A state declares to have been in agreement with the content of the treaty by being a signatory to it, and intends to work towards its implementation. But only the ensuing ratification leads to a legally binding obligation under international law. By the virtue of Article 18 of the Vienna Convention on Law of Treaties (“VCLT”), a State is ‘obliged to refrain from acts which would defeat the object and purpose of a treaty’ after having ratified it and expressing consent to be bound by the treaty. Furthermore, the principle of Pacta Sunt Servanda binds the treaty in force upon the parties under international law via Article 26 of the VCLT. The implication of this is that the state now has to conform to all the obligations set down in the treaty without aversion unless there is a reasonable excuse. This opens up a way for international transparency.

In the Indian context, this means that the state can no longer have open detention centers in Kashmir and adopt a catch and kill policy or resort to arbitrary detentions without drawing international accountability and criticism. Ratifying would certainly bring accountability to practices or eternal detention and custodial torture. India would have to raise its standards on torture to withstand international scrutiny.

Conclusion

In the Gramophone Company of India Ltd. V. Birender Bahadur Pandey & Orsm (1984 SCC (2) 534)  the Supreme Court of India has held that ‘nations  must  march with the international community and the municipal law must respect rules of international law’ and that ‘rules of international  law may  be accommodated in the municipal law even without express legislative sanction’. After having pronounced its commitment to the international community of its stance on torture, the time has finally come for India to actually stand on its promise. If it is claimed that India is the land of ahimsa and has been home to Mahatma Gandhi and Gautam Buddha, the time has come that we have a standalone legislation against torture consistent with the requirements of UN Convention on Torture.

Arkaprava Das, (3rd Year Student at Faculty of Law, JMI)

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