India: Rarely on the rights side

Volume 4

July - September 2002

India: Rarely on the rights side

We can't see the consensus’ No consensus on CAT Optional Protocol, says India

THE draft Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment aims to create a global system of inspection of places of detention as a way of preventing torture and ill-treatment. Article 1 of the Protocol states that the objective of the Protocol is to "establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment".

A Sub-Committee of the Committee Against Torture, composed of 10 of the independent experts, will be empowered to carry out missions to any State that ratifies the Optional Protocol. On the basis of its visits, the Sub-Committee will submit a confidential report to the State Party, including practical recommendations. It will initiate a dialogue with the State Party on practical, remedial measures to improve the conditions of persons in custody with the aim of preventing torture.

The second important element of the Protocol is the requirement to put in place national preventive mechanisms. Article 3 of the Protocol requires ratifying States to "set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment".

AS the French daily Le Monde put it in its 28 April 2002 edition, each year the Commission on Human Rights (CHR) "sets new records" in hypocrisy. At its 58th annual session in March-April this year, CHR member States refused to condemn flagrant violations of human rights in States such as China and Zimbabwe, voted more rigidly than usual as regional blocs, and resorted to procedural acrobatics to evade criticism of their human rights records. All of which ensured that little substantive progress was made on developing human rights standards and strengthening monitoring and enforcement mechanisms. Contributing to the rhetoric, the hypocrisy and obstructionism, were the self-styled custodians of democratic values and upholders of human rights, among them India. The Indian delegation's actions at the 58th session of the Commission on Human Rights were arbitrary, regressive, and often contrary to the Indian government's domestic policies and international obligations.

Three key issues that came up before the Commission are discussed here, along with the positions that the Indian delegation took on each of them. The delegation often found itself on the same side of the fence as authoritarian countries like Algeria, Cuba, Saudi Arabia and Syria. At other times, it chose to sit on the fence, despite the fact that domestic laws and international commitments already spelt out which way the delegation should go.

The emphasis of the Optional Protocol is on prevention. International standards prohibiting torture and ill-treatment are already in place; the Optional Protocol aims to implement these standards more effectively.

At the 58th CHR, the Costa Rica-sponsored resolution on the Draft Optional Protocol overcame a no-action motion demanded by Cuba. India voted in favour of the no-action motion on the resolution, and abstained on the final vote on the resolution.

The Draft Protocol was presented to the Commission after 10 years of discussion in a working group. The introduction of the resolution was followed by the presentation of a text by the Cuban delegation which excluded all but one of the operative paragraphs of the Costa Rican resolution and which called for the mandate of the Working Group to be renewed for another year. The text, the Cuban delegation stated, was an "amendment". This was immediately challenged by Costa Rica on the ground that the so-called amendment was actually a completely new proposal that should have been tabled prior to the deadline for the submission of resolutions. Costa Rica also noted that, because the Cuban text was a new proposal, the Costa Rican resolution should take priority in voting, according to the rules of procedure.

A brief debate followed concerning whether the Cuban text was a new proposal or an amendment. The Chair of the CHR proposed a vote on this issue, which led the Cuban delegation to withdraw the text and call for a no-action motion on the Costa Rican resolution - an unprecedented move. This was the first time in the history of the CHR that a no-action motion had been called in relation to a thematic issue.

The debate on the no-action proceeded as expected, with the LMG countries lining up behind Cuba, and most of the Western group opposing the motion. The no-action motion would effectively kill the Protocol, Costa Rica explained.

Those in favour of no action argued that no consensus existed on the issue and for that reason, the decision should be deferred. The Protocol, India added, would be "impaired" by the manner in which it was proposed to be adopted - i.e., by a vote.

The no-action motion was nevertheless defeated with 28 votes against, 21 in favour, and four States abstaining, which finally led to the debate on the Costa Rican draft.

States opposing the consideration of the final substantive text - including India - reiterated that consensus had not been achieved and suggested that the document be sent back to the working group for further discussion. The Algerian delegation added that the Convention Against Torture itself had not been adopted by many countries, and therefore further consultations were required. India added its voice to this group, supporting the no-action motion citing a lack of consensus within the working group. Consensus, the delegation said, was "of paramount importance", and more time should therefore be allowed for an agreement to emerge.

Sponsors of the resolution reminded the Commission that the issue had been under consideration for 10 years. In all likelihood, and as the sponsors evidently feared, the text would have been watered down further had it been sent back to the working group.

Costa Rica emphasised what should be obvious: the Protocol was optional. States were not obliged to sign it. Finally, dismissing the purported need for consensus, the Mexican delegation pointed out that the Universal Declaration of Human Rights "would never have been adopted" if States had waited for a consensus. The UDHR had to go through a vote before it was adopted, the delegation added.

The Costa Rica-sponsored resolution was eventually adopted with 29 States in favour, 10 against, and 14, including India, abstaining.

Finally, during the vote in the ECOSOC on the Optional Protocol, India supported the United States’ attempt to block the adoption of the draft by requesting that the text be re-opened and subject to further consultations.

Other countries, such as China, Cuba, Egypt, Libya and Sudan, also supported the US proposal.

The Indian delegation's attempts to prevent the passage of the Optional Protocol contravene the consensus in both the Indian Parliament and in the superior courts on the need to end torture and impunity in India.

Article 21 of the Constitution of India provides that "[n]o person shall be deprived of his life and liberty except according to procedure established by law". According to the Supreme Court of India, any form of torture or cruel, inhuman or degrading treatment fall within the inhibition of Article 21 of the Constitution - whether be it during interrogation, investigation or otherwise. A person does not shed his fundamental right to life when he is arrested. Article 21 cannot be denied to arrested persons or prisoners in custody (D K Basu v State of West Bengal).

Since India is not party to CAT, it was odd, if not illegitimate, for the delegation to obstruct the Draft Optional Protocol, which, if adopted by ECOSOC, would only be open for signature by States that are party to the Convention

Further safeguards are provided under other articles of the Constitution. Under Article 20(3), no person accused of any offence can be compelled to be a witness against himself. Article 22 (1) and (2) provide that a person who is arrested must be informed as soon as may be of the grounds of his arrest. The person also has the right to consult a lawyer of his choice. An arrested person must also be produced before the nearest magistrate within 24 hours of his arrest.

The Code of Criminal Procedure (CrPC) also requires the production of the accused before a court within 24 hours. Section 54 of the CrPC gives the arrestee the right to be medically examined. No statement of a witness recorded by a police officer, according to Section 162 of the CrPC, can be used for any purpose other than contradicting such a statement. Thus admission of guilt before a police officer is not admissible in a court of law.

Section 164 of the CrPC requires that the magistrate ensure that a confession by the accused is voluntary. Sections 330 and 331 of the Indian Penal Code make it a penal offence to hurt a person in order to extract a confession through torture. A victim of torture by the police is entitled to move the Supreme Court under Article 32 of the Constitution or the concerned High Court under Article 226. The Supreme Court as well as various High Courts have entertained writ petitions alleging police torture of prisoners.

The Indian delegation's actions are also incompatible with India's obligations under international law. Article 5 of the Universal Declaration of Human Rights declares that "[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment". Article 10 (a) of the International Covenant on Civil and Political Rights (ICCPR) provides that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person".

India is signatory to the Convention Against Torture (CAT), and while it is yet to ratify the treaty, Article 18 of the Vienna Convention on the Law of Treaties provides that "a State is obliged to refrain from acts which would defeat the object and purpose of a treaty when … it has signed the treaty".

CAT specifically obliges every State Party to "take effective legal, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction".

Furthermore, since India is not party to CAT, it was odd, if not illegitimate, for the government to obstruct the adoption of the Draft Optional Protocol which, if adopted by ECOSOC, would only be open for signature by States that are party to the Convention.

The Indian delegation’s stand on the Optional Protocol and the attempts to prevent its passage contravene the consensus in the Indian Parliament as well as in the superior courts on the need to end impunity on torture in India

Not only would India not have to ratify the Protocol, but India's obstructionist stance risked preventing other states from exercising their prerogative to bind themselves to the Protocol.

India also did not actively participate in the Working Group on the Draft Optional Protocol. However, observers at the Commission reported that one week before the Costa Rican text was to come up before the Commission, the Indian delegation suggested to the Asian group that a proposal be made to extend the Working Group's mandate to provide for further negotiations. No time limit for the extension was suggested.

The Indian Permanent Mission in Geneva must be taken to task for going against the established domestic consensus and India's international obligations in this regard.

As a further step in the acknowledgement of the right to be protected from torture, India must ratify CAT at the earliest. The implicit prohibition of torture is already found in the Indian Constitution and in case law, as identified above.

In its 1998-99 annual report, the National Human Rights Commission expressed regret that the formalities for ratification were still not complete. It urged the "earliest ratification" of the Convention and "the fulfillment of the promise made at the time of signature, namely that India would 'uphold the greatest values of Indian civilization and our policy to work with other members of the international community to promote and protect human rights'".

Meanwhile, reports continue of widespread use of torture, despite existing legal safeguards. This makes an even stronger case for the establishment of domestic and international mechanisms, which the Optional Protocol aims to achieve.

The use of torture and other inhuman or degrading practices is incompatible with India's cultural and democratic traditions. And yet, India is in the league of States such as Angola, Malaysia, North Korea, Pakistan and Syria, which have yet to ratify CAT. India has also consistently refused to provide for a visit from the United Nations Special Rapporteur on Torture who is mandated to investigate complaints of torture and ill-treatment.

The lack of transparency belies India's claims to democracy and the primacy of the rule of law. International instruments and monitoring mechanisms are in India's interests and are the hallmark of a mature democratic state.

But the lack of a coherent policy in New Delhi on human rights allows unenlightened officials and diplomats at international forums to function according to their own whims and often take regressive steps on key issues.

In the above case, the delegation took a stance that clearly contradicts the progressive approach of the judicial and quasi-judicial bodies in India. A rap on the relevant knuckles is clearly in order.