An article from Scroll.in forwarded by the Asian Human Rights Commission
Indians have internalised the notion that criminals deserve some pain. And the country still does not have a robust law against torture.
The popular Malayalam film Action Hero Biju, as the name suggests, is full of “action” performed by the “hero” Biju, a police officer in Kochi, Kerala. The movie attempts to humanise the police force by portraying the real struggles and challenges they face. It does a good job, too. The policemen come across as only human, limited by the constraints of their profession. They are hard workers, do-gooders, anti-villain, keeping our streets and homes safe from the menace of crime. The overt message of the film is that Biju is no hero, just an ordinary police officer going about his job.
Subtly, though, the movie seeks to make the audience accept that violence is the only way to tackle crime, that criminals only know the language of force, that there is nothing a good thumping cannot solve.
This implicit condoning of torture and violence as an everyday occurrence, a “normal” practice of the criminal justice system, is nothing new. Indians have internalised the notion that criminals “deserve” a good beating and some pain to deter future crime and, indeed, obtain valuable “confessions” required to solve crimes. Reinforced by popular culture, through films and media, we do not question enough these notions and the patent illegality of the use of excessive force by the state’s representatives.
It was, therefore, disingenuous on the part of Attorney General Mukul Rohatgi to claim, at the review of India’s human rights record under the Universal Periodic Review Process at the United Nations Human Rights Council in Geneva on May 4, that “torture is completely alien to Indian culture”.
The Prevention of Torture Bill, 2010 was passed by the Lok Sabha but lapsed with the dissolution of the 15th Lok Sabha in May 2014. Two years later, in May 2016, an amended draft of the Bill was reported to be ready for introduction in Parliament. Another year on, there is still no clarity on what this Bill is, when it could be tabled and whether it is an improvement on the earlier draft that was really a hollow and empty piece of legislation.
Thankfully, the Supreme Court has revived the conversation on the urgent need for a law against torture. Hearing a petition filed by former law minister Ashwani Kumar on April 24, the court stated that a broad anti-torture legislation was in India’s interest, mainly citing extradition concerns.
The court referred to the Purulia arms drop case, where the prime accused, the Danish citizen Kim Davy, has still not been extradited to India because a Danish court was afraid that he would be subject to torture and inhuman treatment by the police and in prisons. Such fear is not unfounded. The United States Department of State’s India 2016 Human Rights Report, for example, lists the most “significant human rights problems” in the country – abuses by the police and the security forces, torture, extrajudicial killings and rape.
Fresh requests for Davy’s extradition and talk of scaling down diplomatic ties with Denmark if it is not granted would be to no end if India does not get serious about bringing a robust anti-torture legislation as per norms laid down under the Convention against Torture.
The prohibition against torture is absolute and non-derogable under international law. Article 4 of the Convention against Torture states that the parties to it must ensure that all acts of torture are criminal offences. Article 1 of the convention defines torture thus:
“For the purposes of this Convention, the term “torture” means 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.”
A comprehensive definition, it is rooted in “severe pain and suffering”. India’s Prevention of Torture Bill, 2010, on the other hand, defines torture as “grievous hurt” or “danger to life, limb or health”. Grievous hurt, in turn, is defined narrowly in Section 320 of the Indian Penal Code to include privation, permanent disfiguration, fracture and the like, all of which are acts with physical signs. Human rights scholars such as Darius Rejali have written about “clean” methods of torture that leave no marks on the body and are, therefore, used by ruling establishments that do not want to be easily exposed for allowing such human rights abuses. “Clean beating”, waterboarding, sleep deprivation, use of cold cell or ice bath to induce hypothermia are all examples of torture that leave no “evidence” but are brutal and horrific.
One aspect of torture that must become a part of public debate in India, where torture and interrogation are often taken to be synonymous, is its effectiveness. The non-efficacy of torture as a tool of interrogation was highlighted in the United States Senate Select Committee on Intelligence report on the Central Intelligence Agency’s Detention and Interrogation Program. The report noted:
• The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.
• The CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness.
Now that the Supreme Court has explicitly called for an anti-torture legislation, the law must be drafted with integrity such that it defines torture realistically. India must show the world that it is serious about criminalising torture and modernising its investigation methods. This is for the country’s own good because torture is not only against international human rights obligations, it is useless as well.
Urmila Pullat is a lawyer and researcher with the Asian Human Rights Commission, Hong Kong.
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The views shared in this article do not necessarily reflect that of the AHRC.
