HUMAN RIGHTS FEATURES

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Impunity and World Torture Day

In October 1997, the Government of India signed the Convention Against Torture (CAT) making the following statement: "The Convention corresponds to the ethos of Indian democracy, rule of law, individual freedom, personal liberty and security enshrined in Indian polity. Signature of the Convention Against Torture by India is an important milestone in the process of India's continued commitment to fundamental and human rights of all persons and directive principles of national policy. Ratification of the Convention is to follow."

World Torture Day--26 June 1999--is meant to commemorate the adoption of the Convention Against Torture by the United Nations General Assembly. Yet, torture continues to be a part of the administrative system in many other parts of the world. It is a crisis that spans ideological, political and geographical boundaries. Torture is rampant in South Asia and India is no exception. On the contrary, with insurgency and violent conflicts increasingly afflicting many parts of India, torture has become a widespread practice. Incidents of mutilated victims, encounter killings, alleged "suicides" in police stations and disappearances are routine. Over the last decade, there has been mounting evidence that torture has become an institutionalised practice within India.

However, torture is not confined to areas affected by insurgency. Amnesty International in its 1992 report, Torture, Rape and Deaths in Custody remarked that in India, "torture is pervasive and a daily routine in every one of India's 25 states, irrespective of whether arrests are made by the police, the paramilitary forces or the army. It happens regardless of the political persuasion of the party in power. Many hundreds if not thousands have died because of torture in the past decade." In 1994, the United Nations Special Rapporteur on Torture, Mr Nigel Rodley, also reported that "criminal suspects, as well as persons detained for political reasons, are routinely tortured in police stations in order to extract confessions or information and that many detainees have died as a result." The situation has improved little. According to the National Human Rights Commission's (NHRC) Annual Reports, the total number of reported custodial deaths in India doubled from 444 in 1995-96 to 888 in 1996-97. However, the number of custodial deaths reported to the NHRC is just the tip of the iceberg.

The methods of torture adopted by government officers involve gross forms of inhumanity. The United Nations Special Rapporteur of Torture, after reporting that people are "routinely tortured" in India, explained that "[m]ethods of torture include: pulling the victims legs far apart so as to cause great pain and internal pelvic injury; rotating a heavy wooden or metal roller over the victim's thighs; electric shock, applied to victims genitals, head, ears and legs; prolonged beatings with canes and leather straps; tying the victim's hands behind the back and suspending him or her from the ceiling by the legs; rape, threats of rape or molestation; deprivation of food and drink; keeping the person naked in the cold and in the burning hot sun in the summer."

Both domestic and international law criminalise torture. Specifically, the Indian Penal Code and the Code of Criminal Procedure outlaw the use of torture. Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights also prohibits torture and cruel, inhuman or degrading treatment. Both of these international instruments should carry substantial force in domestic law. The Universal Declaration's prohibition on torture is considered to reflect binding international law and the International Covenant on Civil and Political Rights has been ratified by India.

Nevertheless, on the ground, impunity remains the single most important factor contributing to torture. Members of the armed forces, for one, are practically immunized by domestic legislation. Section 197(2) of the CrPC states: "No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government." Similarly, Section 6 of the Armed Forces Special Powers Act, 1958, provides: "no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act."

These statutory provisions virtually eliminate any possibility of prosecution of armed forces personnel. It is difficult to imagine a victim living under constant fear of intimidation and retaliation having the necessary material resources and courage to seek such permission from the Central Government. Consequently, the greatest obstacle to the prosecution of these torturers is the law itself. Even the NHRC has failed to combat the impunity of torturers. In many cases, inquiries are merely perfunctory, normally resulting in exculpation of the officer concerned, or at best a transfer to another posting. The NHRC normally recommends compensation to be paid to the victims or their relatives. While the award of compensation to the victim is a recognition of the wrong; the next step of prosecution of the torturer is hardly ever followed.

By providing such impunity to the perpetrators of torture, the government, in effect, condones the practice, thus institutionalizing it further. This fact is evidenced by the high level of acceptance of torture practices by Indian Police Service officers. A survey conducted at the National Police Academy, Hyderabad in March 1997 concluded that 17% of Indian Police Service Officers agreed that detainees should be "subjected to torture and third degree methods to get to the truth."

In 1984, the UN General Assembly adopted the Convention against Torture in an attempt to make more effective the campaign against torture. The CAT stipulates legislative, judicial, administrative and other measures that each country needs to adopt to eradicate torture. The Convention specifies the need for criminal laws against torture, speedy and impartial investigation of each allegation of torture, prosecution of those found responsible and full redress for the victims.

As mentioned above, in October 1997, India finally signed the CAT thus formally committing itself to the eradication of torture. This was seen as a very positive step towards the improvement of the human rights situation in India. The national and international community hailed the commitment to fight torture made by the world's largest democracy.

However, India is yet to ratify the CAT. Therefore, the Convention remains a dead letter. The pundits in the Ministry of External Affairs argue that ratification would impose an undue burden of reporting. However, unless India ratifies the CAT--which would allow the rights under the Convention to become enforceable as domestic law--signing the Convention should be understood as a cosmetic exercise. Repeated appeals made by the Indian National Human Rights Commission and by individual human rights activists urging the Government to ratify the CAT have fallen on deaf ears.

Aside from the ratification problem, India has also filed reservations which nullify important provisions of the Convention. These reservations effectively reject even a basic level of international scrutiny as envisioned by the Convention. Despite India's so-called commitment to the world community through signing the document, the Convention will have little meaning if the Government does not withdraw the reservations it expressed to Article 20 (relating to inquiry by the CAT Committee), Article 21 (relating to State complaints) and Article 22 (relating to individual complaints).

Finally, the Government of India will not invite the United Nations Special Rapportuer on Torture to visit the country, despite repeated requests by his office. India is increasingly being isolated in the world community for taking this position. Even the Governments of China and Pakistan have both recently extended an invitation to the Special Rapporteur to visit their countries. India's stance is thus particularly troubling for the world's largest democracy.

Under the circumstances, eradication of torture seems a distant dream to Indian society. The colonial methods of governance are still a part of the country's present and future destiny.

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