India is part of a unique list of nine countries along with Sudan, Brunei, Bahamas, Sao Tome and Principe, Angola, Comoros, Gambia and Palau. These countries have the inglorious distinction of not having ratified the UN Convention Against Torture (CAT).
To add to it, the government may have recently made an erroneous statement to the Supreme Court in this regard.
This becomes particularly important against the backdrop of India’s defence of its human rights records today in Geneva during the Universal Periodic Review (UPR) by the United Nations Human Rights Council. The attorney general of India, Mukul Rohatgi, will be representing the country to present India’s country stand and answer the questions sent in by other countries.
The questions cover human rights violations in the context of minority rights, use of AFSPA in Jammu-Kashmir and Northeast, anti-torture laws, human rights in business caused by displacement and several others. The Indian NHRC has also made critical comments of India’s human rights records.
On April 24, the Supreme Court was hearing a PIL (see below) by former union law minister Ashwani Kumar praying for introducing legislation against torture. On April 24, the Solicitor General of India, Ranjit Kumar, reportedly told a bench of the apex court that the central government had referred the matter to the Law Commission which was going to come up with recommendations.
The apex court bench expressed reservations on the large number of issues pending with the Law Commission.
Outlook found out that the Law Commission of India had no knowledge of this reference whatsoever and it was not pending with them. Various offices within the Law Commission expressed surprise and wondered what exactly the government had meant.
“We have looked through the old files and documents. There is no reference pending with us on a specific law against torture,” said Sanjay Singh, member-secretary, Law Commission of India.
In 2010, the Lok Sabha (lower house) had passed the Prevention of Torture Bill, 2010 and sent it to the Rajya Sabha (upper house). The Rajya Sabha’s select committee came up with fresh legislation (described below) which was welcomed by many.
In 2014, the anti-torture bill of 2010 lapsed upon change of government since the Rajya Sabha had not passed it. In 2016, the union home ministry said in parliament that the law ministry had prepared a draft bill but did not commit on when they would circulate it or table
Some state governments responded saying that India could amend its penal laws — the Indian Penal Code and the Criminal Procedure Code — to deal with torture complaints.
When this was pointed out, Singh said the Law Commission was working on recommendations on amending the criminal justice system and those recommendations would be out some time this month (May 2017). “Perhaps these amendments to the criminal law is what the government is referring to,” he concluded.
Most such recommendations in the upcoming report are believed to suggest reforms on bail and arrest.
In any case, they are definitely not going to be released by this evening, when Rohatgi presents his case before the Human Rights Council in Geneva. It will be interesting to see what Rohatgi submits in this regard.
The Supreme Court’s concern stems from not just reports of custodial violence. India has also faced questions from foreign courts on its unwillingness to ratify the convention and the likelihood of custodial violence.
Article 3 of the CAT, says:
“1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
India signed the treaty in the year 1997 but since then hasn’t ratified it. Even Pakistan ratified the treaty in 2010 after signing it in 2008.
This doesn’t mean that the countries which have ratified have discarded torture in their countries. Far from it in some cases.
Ratification of this treaty means that India will have to proactively take measures such as framing and enforcing a law against torture, which includes specifically custodial torture. (some cases of such brutal torture are described below).
In many jurisdictions, signing torture legislation may make no difference. But, in India, signing an anti-torture legislation will have a great impact because of a vibrant democratic system, including a free and vocal press, notwithstanding the recent downgrading of India’s press freedom index by Reporters Sans Frontières (RSF).
As per Article 5 of the CAT, a law against torture or an amendment to a law, incorporating anti-torture legislation, will also extend to any territory in which the Armed Forces Special Special Powers Act (AFSPA) is in force. This will include Jammu & Kashmir and the Northeast.
That there is a need for a specific law against torture cannot be denied. If policemen can bring out batons during routine maintenance of law and order on the roads, imagine what happens behind closed doors.
There are innumerable examples that have become a matter of routine.
After she was granted bail, political activist of tribal origin, Soni Sori, had spoken first of how the police had allegedly stuffed pebbles into her genitals. Sori also alleged torture of other tribal women in custody, such as a young woman whose nipples were severed from her breasts.
Some of the archaic, draconian legislation which enabled torture have been dropped such as the Prevention of Terrorism Act and the Terrorist and Disruptive Activities Act. These laws have been widely misused to ‘investigate’ accused persons. Some laws even allowed the questionable confessions made to policemen to be used against the accused and many people were convicted on the basis of such statement. In the Rajiv Gandhi assassination case, several accused persons were tortured into making statements against themselves and these were later upheld in court as valid because the law then allowed it.
Years after he was arrested in a false terror case, Mohmammad Aamir revealed how he had been stripped, given electric shocks and had his nails peeled off.
Indian law requires that a person sent to or held in police custody be examined by doctors. In almost all cases, the medical professionals make their own rudimentary examinations and give a clean chit to the cops. It is only a rare lower court magistrates who pays attention to an undertrial prisoner who shows signs of torture.
Surinder Koli has been convicted in cases in the infamous Nihari killings and branded a man-eating serial murderer. Koli was also beaten up ad made to sing confessional statements which were used to bolster up a weak case of circumstantial evidence against him.
Koli had been awaiting trials in other cases, when he was almost sent to be executed but was luckily pulled back at the last minute through a midnight intervention of the Supreme Court in 2014.
Perarivalan, an accused in the Rajiv Gandhi assassination case claimed that he was tortured for two days before the investigators ‘discovered’ a receipt in his shirt pocket. The receipt was for a battery that was supposedly used to detonate the bomb which killed the former prime minister.
That receipt, and Perarivalan’s confession (extracted allegedly through a brutal beating) convicted him. The ridiculousness of a man first obtaining and then carrying a receipt for a battery in the early 1990s never struck anybody. Nor was the torture angle probed, because Indian penal law shows leniency to policemen as “action taken in good faith.”
The amended Prevention of Torture Bill drafted by the Rajya Sabha in 2010 took care of many such lacunae.
The higher judiciary itself has been highly critical of torture.
Justice AN Mulla of the Allahabad High Court had famously said: ”There is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that single organised unit which is known as the Indian Police Force.”
In 2014, it was reported that torture was not confined to terror cases alone. Mumbai Polcie arrested four youth for stealing a gold chain and allegedly tortured in custody. One of the accused later wrote in his affidavit:
“…Then One Ganya officer holding the stick tried to insert the said stick into my anus but as the stick was thick it didn’t penetrate into my anus and so Mane and Kamble said that we have to spray petrol into his anus using a spray pump.
Due to the pain and fear I felt like urinating very badly and I told them that I want to go to the toilet. But Mane told me to pass urine in my own mouth (since I was hanging upside down). Unable to further control myself, I urinated, and the urine fell on my face and mouth. After that Kamble, Mane and Ganya asked Richie whether they will have sex with my mother. They also asked Arbaaz and Sufiyan will they have sex with my mother to which the boys replied yes under duress.”
The lawyer of the accused, Yug Mohit Chaudhry, had pointed out that there was no law to deal with the custodial sexual abuse of adult males.
Armed with such horror stories, the Bombay High Court issued guidelines to clamp down on torture including installation of CCTV cameras in all police stations. It also noted empirical evidence that showed how the number of torture complaints had gone down since the installation of the surveillance system.
There is a view that the Constitution of India has sufficient safeguards against torture beginning with Article 21 which guarantees citizens the Right to Life and Personal Liberty. Coupled with legislative amendments, it could’ve gone far. Had there been a new law, it might go further.
The Supreme Court guidelines in the DK Basu case are also prominently displayed in every police station. But the biggest challenge in India is of enforcement. The courts themselves complain of poor enforcement including the Supreme Court which has also rued this fact.