Tuesday, July 17, 2012

Torture - A Burning Human Rights Issue in India

Torture - A Burning Human Rights Issue in India

-         Mathews Philip, Executive Director SICHREM

Ineffective policing techniques and an absolute disregard for human rights along with a license to abuse authority as they please, has lead to the rise of a grave social evil - that of custodial torture. The United Nations Convention Against Torture (CAT) defines torture as: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

Torture has been practiced explicitly through the centuries as a means of imposing ideas, breaking resistance or sometimes even merely to obtain information. It has often been the case that when a high handed and abusive authority observed a spirit in a people that was unbreakable by mere threat or other sanctions, the immediate recourse was a violent and retaliatory response to break that spirit. Torture was the "most effective" form of this. Today, torture is carried out for the same reasons as it has always been.

The perpetrators: Since the very aim of torture in itself is to impose authority, it is often the case that the perpetrators of torture are state officials.  In addition, since the criminal investigation process requires gathering of information torture is practiced by officials belonging to the police. In the maintenance of law and order as well, the idea that authority has to be imposed upon the "aggressors" often leads to the police and the military resorting to torture. Other perpetrators of torture would thus include:

1.      The Military

2.      The Para – Military Forces

3.      Prison Officers

4.      Other detainees

The victims: The victims of torture could be anyone. Young or old, man or woman, the susceptibility to torture is alike, but increases drastically when he/she is a member of a particular religious or political ideology or belongs to a weaker section of society. Criminals, particularly those alleged to have committed really serious offences are also extremely susceptible to being tortured in order to obtain a confession or to extort information from them. The problem is more magnified when women or children are the victims. There have been numerous reports that tell horror stories of sexual abuse and the custodial rape of women. The NHRC had recorder 39 cases of custodial rape in the past 4 years along with a few cases of the rape of minor girls as well! There have also been numerous instances when there has been torture directed against juveniles in conflict with the law as well. In India, the classes of Dalits and tribals are also extremely prone to torture. Given their fragile position in the class structure in India and also their generally poor economic conditions, the authority sees these reasons as ample warranty to ill-treat them. Sometimes, individuals are also tortured to extort false confessions and to slap fake offences onto them so that the authority can get away with a lapse in its job.

What constitutes torture? At the first level, detention conditions are so inhumane in certain places that these in themselves constitute an act of torture. Detainees are often kept in dingy, poorly lit rooms with barely any provision for ventilation. Detainees are at the greatest risk in the first phase of the detention process that is before they have been presented before a court. There have been numerous reports of incommunicado detentions, where detainees are not registered and no information of their detention has been logged or conveyed to their friends and families. This has led to the concept of abductions where this is carried out to instill a fear in the general public and often the victims only return back after many days or even months with some of them dying in custody. Other grave forms of torture include beating, sleep and food deprivation, mental and psychological stress, refusal of access to restrooms and grave forms of physical assault – sometimes involving sexual abuse. Even convicted prisoners are sometimes subjected to deprivation of food or long periods of solitary confinement.

Reasons to condemn torture: Torture is one of the gravest forms of injustice that can be perpetrated against an individual. It constitutes a grave violation of an individual's basic rights and his dignity. It creates effects that ripple throughout an individual's life and may affect his livelihood, his health, his confidence and his reputation. The original "end" to torture would, in the most idealistic perspective of the authority that perpetrates it be the carrying out of "justice". However, this is not true as a justice system plagued with torture does not serve the interests of justice but merely corrupts it exposing the weak to the high handedness of the authorities. When the justice system relies on torture, it severely impedes the application of modern investigation techniques and questions the whole credibility of the investigation process. Moreover, the perception that the public bears of the authority would be tarnished and the credibility that they associate to the authority would be lost thereby severely impeding further functioning of the authorities. Further, torture is strictly condemned by the international community.

Prima facie, torture is considered illegal as per international law, Amnesty International reports that over 75% of countries worldwide practice torture as they define it. Peter Benenson, the founder of Amnesty International was quoted as saying:

"Torture is banned but in two-thirds of the world's countries it is still being committed in secret. Too many governments still allow wrongful imprisonment, murder or "disappearance" to be carried out by their officials with impunity."

In India, the problem is indeed a grave one. A study published by the NHRC list over 124 custodial deaths in the year 2009 – 2011 alone and 1389 deaths in judicial custody in the same period.

The law: Torture, which was a violation of an individual's life and liberty and his dignity, was condemned under the United Nations Charter. The Third and the Fourth Geneva convention also condemned torture. The United Nations Convention Against Torture (CAT) with 145 ratifying countries further condemns the use of torture and clarifies the international body's stand on this matter. It also mentions that there exist "no exceptional" circumstances would torture be justified. Other relevant legislation concerning the prevention of torture would be UN Code of Conduct for Law Enforcement Officials, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Standard Minimum Rules for the Treatment of Prisoners, UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

In India, Art 21 of the Constitution guarantees that an individual would get the right to his basic life, liberty and dignity. Torture in any form is a grave violation of this and is a serious matter with recourse to approach the Supreme Court directly. Art 22 further guarantees protection against illegal detention. India however, has not ratified the CAT and has been very hypocritical in its approach towards this critical issue. It seems to protect these rights of individuals with the help of its Constitution but when it comes to ratifying a legal document that would compulsorily require them to apply it, it seems to show neglect. The Indian Government needs to wake up to its commitments. The Prevention of Torture Bill, 2010 was a lukewarm step in this regard.

What has to be done? Probably the most important and effective step to combat this evil would be to increase transparency within the system where records, police stations and detention centres are open to scrutiny by members of the media, non governmental organizations and other watch organizations. There must be a clear chain of command in the ranks of the police and each official must know that they would be held personally responsible for the treatment of the detainees under their supervision. Preventing any forms of incommunicado detention and improving detaining conditions must also be carried out. Female officers must be present when women are detained. Awareness programmes must be carried out to make known to officials that any form of torture or ill-treatment would not be tolerated and that matters relating to these would be strictly investigated. Legislation must be strengthened allowing for effective adjudicating and investigating bodies to look into matters of alleged torture and the punishments reserved for convicted individuals should be made stricter.

Let us be mindful of one another's rights and not let torture defeat our society. Concluding with the words of Mahatma Gandhi:

"You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind"