Even as the world commemorated the International Day in support of Victims of Torture as per the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), there seems to be no end of torture for the foreseeable future in India. In fact, forget urgency, authorities in India seem to be completely uninterested in ending the criminal practice. The very fact that India is yet to bring in a domestic law against torture even 34 years after ratifying the United Nations’ Convention against torture in 1997 shows the apathy of its leadership. India, often called the world’s largest democracy, is only one of five countries with this dubious distinction. The other four are Sudan, Brunei, Palau and Haiti.
Why this apathy for such a heinous crime against citizens, usually indulged in by those bound by the constitution to protect the very same people? Well, the Government of India often adds insult to this injury by whitewashing the public secret of torture being endemic to policing in India and taking recourse in denial. Take, for instance, the position on state sponsored torture the then Attorney-General of India Mukul Rohtagi took in Geneva at the country’s third universal periodic review at the United Nations Human Rights Council in 2017. Invoking Gandhi and Buddha, Rohatagi said that
“Ours (India) is a land of Gandhi and Buddha.”… “We believe in peace, non-violence and upholding human dignity. As such, the concept of torture is completely alien to our culture and it has no place in the governance of the nation.”
Mr. Rohatgi was lying through his teeth as evidenced by the reports of National Human Rights Commission (NHRC), a statutory public body to monitor and protect rights. The NHRC, in its annual reports, has repeatedly highlighted the prevalence of torture in the country.
For example, The NHRC in its 2017-18 annual report points out that
“Custodial violence and torture is so rampant in India that it has become almost routine. It represents the worst form of excesses by public servants entrusted with the duty of law enforcement. The Commission regards crimes like rape, molestation, torture, fake encounter in police custody as manifestations of a systemic failure to protect human rights of one of the most vulnerable and voiceless categories of victims. Therefore, it is deeply committed to ensure that such illegal practices are stopped and human dignity is respected in all cases. Besides awarding compensation to the victims or their next-of-kin, the Commission’s efforts are also geared towards bringing an end to an environment in which human rights violations are committed with impunity under the shields of “uniform” and “authority within the four walls of a police station, lock-up and prison, where the victims are totally helpless”.
Similarly, as per the NHRC’s own findings as well as the Ministry of Home Affairs replies in the parliament of India, the number of people getting killed in custody- both in police custody and judicial custody, is rising. For instance, the total number of people killed in custody between April 1, 2019 and March 31 was 1,697. Of these, 1,584 died in judicial custody while 113 in police custody.
Further, most of the victims of torture come from marginalised communities like Dalits, tribal people and minority communiies.
So much so for India’s official position of torture being alien to its culture! Unfortunately, despite the open admission of torture being rampant in the country by the NHRC, the institution often comes across as toothless in making the relevant authorities to implement its orders on things like compensation, let alone follow its recommendations on policy changes necessary to eliminate torture from the country.
To begin with, The NHRC’s recommendations are not binding on the governments, both at state level and on the union government. So they keep flouting its recommendations with impunity. For instance, the NHRC admits in its same annual report (2017-18) that state governments paid compensations in only 151 cases out of the total 757 cases it has recommended for compensation.
There are a hundred reasons behind continuity of the practice and the impunity the offenders enjoy. One of the most important of them is that most of the Indian Penal Code is borrowed from the British Raj’s penal code- made for subjugating a colony and not for establishing a rule of law country. The reforms the IPC needed after independence were never a priority by the acts of omission in the beginning and then acts of commission afterwards. In newly independent India, the most immediate and pressing concern of the leadership was bringing the impoverished country, drained by almost two centuries of colonial occupation and reeling under one of the worst man made famines in Bengal, to stand on its own feet.
Then, the later leadership realised that having a policing system aligned with the rulers, not the rule of law, actually helps them consolidate the power, intimidate and silence the dissenters and continue ruling. Naturally, they threw all the demands regarding police reforms, a must for ending torture, in the dustbin.
Further complicating the fact was a sort of indifference by the larger section of civil society on the issue of torture, brought primarily for the same reason as early Indian leadership. They too saw police reforms as a secondary concern while the country reeled under ‘more pressing’ problems like hunger deaths and caste discriminations. What they ignored, though, was the centrality of the violence in perpetuating poverty and many other ills as Gary Haugen and Victor Boutros brilliantly demonstrated in their book The Locust Effect. It is high time for the civil society to rediscover the linkages and press for police reforms including elimination of torture.
It is high time for the authorities in India to get their act together and make a concerted effort for ending the criminal practice forever. This can only be done by showing political will and pushing for a stringent domestic law against torture with mechanism for independent investigations into allegations of a torture. For example, if such a law against torture mandates the same policing agencies to investigate such allegations whose members are accused of committing acts of torture, the whole practice would become a joke. Further, this requires a lot of investment in fields like forensic sciences for shifting the focus of police investigations from torture based confessions to solid evidence. This goes without saying that this too requires a lot of political will!
International community too must urge India for enacting a domestic law against torture at the earliest and implement it.
For information and comments contact:
In Hong Kong: Samar, Telephone: +852 – 26956512, Email: india@ahrc.asia
