Later this month, the Advisory Council of Jurists (ACJ), the body of legal experts advising the Asia Pacific Forum of National Institutions (APF) will submit its study on the question of torture and the role of national institutions. A request to this effect – made by the APF to the ACJ in Seoul in 2004 – was a positive attempt aimed at addressing one of the most serious forms of human rights violation in the Asia Pacific region. 

Even before the drafting process, however, the National Human Rights Commission of India (NHRC) attempted to derail the process by requesting at the consultative stage in Seoul for a clarification of the meaning of “customary international law”. Of even greater concern was the request of the Indian NHRC that it be excused from any recommendations of the ACJ deriving from the UN Convention Against Torture (CAT) and the provisions of the Rome Statute, as India is party to neither. Such attempts to sidestep peremptory norms on the prohibition against torture do not sound like the position of an independent national institution. 

First, it should be noted that the recommendations of the ACJ are not binding on institutions or the State. They are derived from conventional and customary international law, from which national institutions can apply standards of best practice.  

Second, ratification of core instruments is not a prerequisite to applying international norms in holding respective states accountable for their actions. In this case it appears necessary to explain to the Indian NHRC that the prohibition against torture is a peremptory norm of international law that meets the level of jus cogens. ‘Jus cogens’ is defined as being “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” according to the Vienna Convention on the Law of Treaties. 

It is therefore binding on all states as customary international law whether or not they have ratified CAT and other treaties that prohibit torture. If NHRC members don’t know this, they are in the wrong job, which, incidentally, is already obvious in certain cases. 

India’s Track Record 

Perhaps India’s desire for deficient recommendations stems from a desire not to shine a light on the NHRC’s own meagre track record on combating torture, at least in the last two years.  

The NHRC has enjoyed successes in the past. As early as December 1993, the Commission issued guidelines that it must be informed of any incident of custodial death or rape within 24 hours of any such occurrence, to be followed by a post-mortem report, an inquest report, a magisterial enquiry report, and so forth. It credits itself for having “contributed in a large measure to India signing the Convention Against Torture on 14 October 1997” through its submission of a comprehensive memorandum to the Prime Minister in 1997. In 1998 it provided extensive guidelines on police reform and effective remedial measures for victims of custodial violence, establishing district authorities to examine complaints from the public and make appropriate recommendations to Government and the State or National Human Rights Commission. In 2000, the NHRC created a separate cell within the Investigation Division to scrutinise incidents of custodial violence and their adequate reporting from State authorities. 

Since then, however, the scale of the problem has far exceeded the barometer of achievement.    

On the ratification of CAT, the NHRC’s approach since 1997 has been weak. Then, the NHRC took its case directly to the Prime Minister and did not back down from the response that there were “reservations among some States in regard to allowing an international agency to interfere in the internal affairs of the country.” Instead, it scheduled a meeting at the highest level to explain why such apprehensions were groundless; leading to the announcement on 26 June 1997 that India would ratify CAT. In point of fact, the Government only signed the Convention, misleading the NHRC, and has since persistently alleged that the eight-year delay in ratifying CAT is purely “procedural”. 

Since then, the NHRC has continued restating the same rhetorical annual plea. This statement follows a general format – that non-ratification gives rise to “serious concerns” and is “long overdue”; and that ratification presents no difficulties as the right against torture has been judicially recognised by the Supreme Court as a fundamental right, as is enshrined in Article 21 of the Indian Constitution.   

This annual cut-and-paste exercise gets the NHRC nowhere. It is high time the current NHRC membership showed the same spirit as its predecessors. The NHRC must reiterate the same indisputable arguments as in 1997, recall the failed pledges of the time, and demand a detailed explanation of the mysterious procedural anomalies that are said to exist. It must expose and shame those who use the misguided argument that ratification would result in “interference from outside”.  

Nor does the NHRC seem to think it has a role to play in the international arena beyond the annual cozy trip to Geneva to give a six-minute synopsis of its general operations, where torture is never mentioned. It appears to have never submitted any shadow reports to any treaty monitoring body. Nor has it ever intervened to criticise the fact that India has not offered any invitation to the UN Special Rapporteur on Torture. 

The NHRC Chairperson, Justice A S Anand, also recently refused to consider the NHRC’s responsibility in monitoring India’s behaviour at the international level. When questioned on his opinion of India’s attempt to block the resolution establishing a Special Rapporteur on Counter Terrorism – which incidentally constituted another contribution by India to the erosion of torture as a peremptory norm – he stated: “[W]hen it is between States, the NHRC does not come into way [sic].” Justice Anand must surely realise that when it is about human rights, whether between States or otherwise, the NHRC cannot shirk from holding the government to account. Whilst the debate may be between States, the end result affects the human rights of individuals. 

Domestically, the NHRC’s limited powers of investigation automatically absolve those at the forefront of torture practices in India. Security legislation such as the Armed Forces Special Powers Act has created a culture of impunity in parts of India, against which the NHRC can do nothing. The NHRC has recently reiterated the need to revisit its proposed amendments for the Protection of Human Rights Act, but its pleas have fallen on deaf ears.

The same applies to the NHRC’s silence in the last years on the fact that Indian law and jurisprudence still avoid any express definition of torture. The NHRC, since its recommendations for reform of the Indian Evidence Act and Penal Code in 1998, has not even advocated for an initiation of these required steps to make the ratification of CAT possible. 

The NHRC should consider releasing a White Paper documenting all instances where the Home Ministry promised to implement its proposals but failed to deliver. This would re-open dead letters and shame the authorities into action.  Likewise, given the endemic practice of torture in India, and the prevailing view that the amount of cases referred to the NHRC represent a fractional amount of actual torture cases in India, the NHRC must commit its resources to actively investigating practices in each state in India, in cooperation, where possible, with State Human Rights Commissions. A comprehensive report unearthing such practice would be invaluable.

Nor is the NHRC adequately forthcoming in offering a concise dissemination of findings regarding torture. Its annual reports present selected case law pertaining to different categorisations of violations. Cases of torture come under the larger heading of “Other Police Excesses”. While the NHRC provides precise figures on cases received concerning illegal detention/arrest, custodial deaths, false implication, sexual harassment, jail conditions and atrocities against members of the Scheduled Castes/Scheduled Tribes, it does not provide such figures for cases of victims of torture. This omission needs to be remedied. 

In the area of public education, the NHRC has yet to organise a seminar or workshop on the specific subject of torture. Outsourced research projects on ‘Curriculum Evaluation of Human Rights Education in Police Training Institutions in India’ and ‘Training and Non-Training Organizational Interventions for Inculcating Human Rights Observance by Police in India’, whose core objective is to “identify human rights education domains (knowledge, skills and attitudes) relevant to the police” indicates an elementary stage in this process. The NHRC should have gone far beyond these simple exercises.   

Finally, as has been well documented, the very credibility of the NHRC has been undermined by the appointment of a former Director General of the Central Bureau of Investigation (CBI) as a Commissioner. It is in the instance of such practices as torture that the credibility of this appointment becomes more apparent. It is fitting to finish by posing this question to the NHRC. How does it plan to encourage victims of torture to file their case with the former director of an institution that is widely recognised as a perpetrator of torture in India?

 Human Rights Features