23, Jul 2021 | Sanchita Kadam
What continues to remain amiss in the Indian legislations is the definition, and subsequent condemnation of torture by public officials. A right against torture is nothing but an affirmation of Right to Life under Article 21. However, enforcing fundamental rights is a much more tedious task than invoking the provisions of the specific law, which is always more accessible. Thus arises the question why India has not yet ratified the UN Convention against Torture and why there is no law adhering to the same.
On July 20, Lok Sabha member Ritesh Pandey of the Bahujan Samaj Party (BSP) questioned the Ministry of Home Affairs on whether it plans to rehabilitate Rohingya Muslims seeking refuge in India and whether denying them legal status is in contravention to any UN treaties or convention that it has ratified.
The Ministry responded that Rohingyas were illegal migrants and hence they pose a threat to the nation, while there also being reports of them indulging in illegal activities. The question also pertained to whether denying rehabilitation to these refugees violated the UN Convention Against Torture (UNCAT) or the International Convention on Civil and Political Rights (ICCPR). The Ministry conceded that while India had signed UNCAT, it had not ratified it, and it did accede to ICCPR in 1979.
The answer given in Lok Sabha may be read here:
The UNCAT or the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was the result of many years’ work, initiated soon after the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Declaration”). India signed it but did not ratify it. This means that a representative of India at that time signed the document but the same has not been affirmed by the State (nation) in order for it to be binding as per international law. Thus, UNCAT cannot be invoked at any international fora against any activities that come under the definition of torture or cruelty in the country.
How does the issue of refuge seeking Rohingyas from Myanmar being declared as illegal migrants connect with the convention against torture? In simple terms, when a person is found to be an illegal migrant, law states that they can be confined to a place by the government which usually translates to detention camps. The conditions of detention camps and the way these non-citizens are to be treated is not governed by any law and thus human rights come into play. Any country that is run by a democratically elected government cannot be averse to safeguarding human rights. Thus, India’s non-ratification of UNCAT in 1997 is quite appalling.
Why is UNCAT such a big deal?
To begin with, for any international convention that a country signs, it has to indicate to the related Committee what measures it has taken to bring to effect the undertakings of the convention. Thus, ratifying the UNCAT would mean that India would have had to take effective legislative, administrative, judicial or other measures to prevent acts of torture.
The undertakings prescribed under UNCAT require the State to ensure that its authorities make investigations when there is reasonable ground to believe that an act of torture has been committed and to ensure that acts of torture are serious criminal offences within its legal system. Most importantly, and the one undertaking that remains pertinent is that the State cannot expel or extradite a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture. It is extremely important to delineate here the 2019 amendment to the Citizenship Act which eases up grant of citizenship to non-Muslim communities from Afghanistan, Pakistan and Bangladesh and the motive behind it was that they seek refuge here due to religious persecution. The same rationale when not implied to Rohingya Muslims from Myanmar where they are being persecuted due to their religion and are being subjected to torture, shows a clear bias of the government and its selective adherence to human rights.
What if India ratified UNCAT?
Ratifying UNCAT would mean that India would have had to pass the Prevention of Torture Bill that was first introduced by the UPA II government in 2010. The bill defined torture as: an act by a public servant or by a persons with acquiescence of a public servant, causes grievous hurt or danger to life, limb or health (whether mental or physical). It proposed punishment of minimum 3 years which may be extended to 10 years and fine, for torture inflicted for purpose of extorting confession, or for punishing or on the ground of religion, race, place of birth, residence, language, caste or community or any other ground.
The 273rd Law Commission report released in 2017 suggested, among other things, payment of compensation to victims of torture keeping in mind socio-economic background of the victim, nature, purpose, extent and manner of injury, including mental agony caused to the victim such as the amount suffices the victim to bear the expenses on medical treatment and rehabilitation. The Commission had also observed that tolerance of police atrocities, amounts to acceptance of systematic subversion and erosion of the rule of law and that it is not permissible whether it occurs during investigation, interrogation or otherwise.
India’s refusal to ratify UNCAT and its unwillingness to have any law that condemns torture only makes its fealty to the doctrine of sovereign immunity apparent. The doctrine of sovereign immunity is a concept of common law principle consistently followed in British jurisprudence in last several centuries that ‘King commits no wrong’ and has evolved on the principle of sovereignty that a State cannot be sued in its own court.
The courts’ take on torture
In D.K. Basu v. State of West Bengal AIR 1997 SC 610, the Supreme Court had observed, “Torture has not been defined in the Constitution or in other penal laws. ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word torture today has become synonymous with the darker side of the human civilisation”.
The judgement may be read here:
In Raghubir Singh v. State of Haryana 1980 AIR 1087 , a case where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court had passed severe remarks “We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of law gore human rights to death.”
The judgement may be read here:
In another case, State of U.P. v. Ram Sagar Yadav 1985 AIR 416, the Supreme Court dealt with a case where the policemen murdered one Brijlal who not only refused to pay a bribe of Rs.100 in a trivial matter of cattle trespass but also complained about demand of bribe to senior police officers. The Court observed that “Police officers alone and none else can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody… The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are.” The Court recommended that the “law as to the burden of proof in such cases may be re-examined by the legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection.”
The judgement may be read here:
Torture and Indian laws
The only record that is indicative of torture is the number of custodial deaths released every year in Crimes in India report released by the National Crime Records Bureau (NCRB) annually. However, death in judicial or state’s custody is an extremely poor measure of torture even if custodial deaths are always met with impunity of the officials, without much ado. Naturally, this is because there is no law in place to enforce criminal cases against agents of the government.
The UNCAT 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.”
While there are some safeguards against torture in Indian law, they are seldom taken seriously and enforced. For instance, section 54 of Code of Criminal Procedure (CrPC) extends safeguard against any infliction of custodial torture and violence by providing for examination of arrested person by medical officer and section 176 of the Code provides for compulsory magisterial inquiry on the death of the accused in police custody.
It can be unequivocally said that a democratic country ought to safeguard human rights and thus cannot be tolerant of any form of torture to human life. It takes an accountable and responsible government to recognize the iniquities within its system with the clear intent of upholding basic human rights as well as the right to life enshrined under Article 21 of the Indian Constitution.
Law Commissions have over the years pushed for a legislation penalizing torture by public officials but the discourse around it has died down and needs to be reinvigorated as a fight for human rights.
The UN Convention against Torture may be read here: