There is an enormous amount of violence occurring throughout the world, including India, however, domestic violence, religious and communal violence and child abuse do not fall under the definition of torture, because these acts are not ordinarily carried out by state agents in the course of their official duties. This distinction does not seek to rank forms of violence in terms of severity, but rather, establish who perpetrated the violence and for what purpose.
Ultimately, however, torture cuts across all other rights, because it is the very agents of torture who themselves are responsible for upholding the rights of others. Is it possible to stop violence committed by others until there is a decisive change regarding torture by the police? This is an important question, because in many discussions about torture, domestic violence, or some other form of violence in the society, will enter the exchange. Of course, it is not a question of choosing between police brutality and domestic violence, but if you think in terms of a solution, where do you go to complain about domestic violence? You need to go to a police station to make a complaint, and the person there to receive you, or his colleagues, may very well be a torturer. Under such circumstances, there is little hope of you getting a fair hearing for your complaint.
It is not just a matter of getting laws and declarations passed—it is about getting them implemented. This means more than just education about torture and rights. How can we educate without a decisive, practical strategy? If torture is permitted at a police station and every child and adult knows about it, what difference will education make without having measures in place to punish the culprits? A common problem we have now is that despite public complaints and interventions, the perpetrators of torture continue in their jobs without any punishment.
Torture is a policy. Openly, governments declare that they are against torture, but in practice they allow police to commit torture. Tacitly permitted policies cannot be broken without public debate. In Sri Lanka such debate is now going on. One week after police tortured a man to death there for refusing them a share in the winnings from a lottery ticket the incident was on national television. When the mainstream media begin to talk about torture openly, the fear that the people have is dispelled, and they also begin to talk. People usually find it difficult at first, because their fear is so deep, but it can be overcome. A year ago, very few people in Sri Lanka would have come forward to publicly accuse the police of torture; now the number is very large and growing still.
The fear takes time to dispel, because in order to survive, the perpetrators must perpetuate it. In fact, as people find, this fear is deliberately exaggerated. With community support, they begin to speak out, seek protection, and change their society.
The Convention against Torture
The Indian government often excuses itself from ratifying the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) on the ground that all the provisions of the CAT are already in the constitution. The argument is spurious. For a constitutional remedy, a victim must go to a High Court or Supreme Court. Such action is beyond the means of most persons in the country, and certainly these courts could not manage even a fraction of the existing torture cases in India today.
There is no specific legislation on torture whereby a case can be filed at a local court. Under the Indian Penal Code, torture is not mentioned as a crime. There is only a section providing that ‘excesses committed by a police officer’ or forced confessions are illegal. However, under this section it has to be proved that the offence was committed in conjunction with the person’s authority in order to demonstrate the gravity of the act. Under the Criminal Procedure Code, a magistrate can order an inquiry into a complaint of torture. However, this inquiry will likely be undertaken by the same police station where the accused is on duty. The result of such an inquiry is easy to imagine. For these reasons, few complaints are ever filed, and even fewer are actually taken to court.
Despite some judicial interventions against torture committed by the police, such as the Supreme Court’s recommendations in the D K Basu case, the situation has not improved. Even though India is a common law country, in practice, the D K Basu recommendations are not followed. There is also some question as to how many police officers are actually aware of these recommendations. In any case, the Indian government must come up with actual remedies to address torture, which can only be done by effective domestic legislation, in other words, ratifying and implementing the CAT.
In the rare instances that cases of torture are actually heard in court, minimal compensation is awarded, and after a very lengthy procedure: in one case, it took the victim 25 years. Under any circumstances, compensation alone is not redress for torture. If a police officer is ordered merely to pay compensation, the gravity of torture has not been addressed. Therefore, there should be a procedure whereby the perpetrator is tried for having committed a heinous offence, and punished accordingly. The Indian government should establish a special unit to take and investigate complaints of torture, and prosecute the perpetrators accordingly.
India has also had countless commissions and inquiries dealing with the behaviour of its police and their human rights violations. Unfortunately, since these commissions have no legal authority, their recommendations are ignored. Yet without police reform, torture and corruption will remain rife. India should learn from the experience of Hong Kong, where reform of the police was seen as the key to economic and social development, and to firm establishment of the rule of law. For this reason, the Independent Commission Against Corruption made police reform its priority, and focused exclusively on this issue for the first three years of its existence.
India’s civil rights movement has an obligation to see that the CAT is ratified, because once this is achieved, every year the government will be required to report on this issue, and, under the additional protocol, citizens have the right to file individual complaints to the Committee against Torture. Ratification of the International Covenant on Civil and Political Rights is meaningless without ratification of the CAT; it is a test for all other civil rights.
The struggle for justice
When the justice system breaks down, ordinary people in the society must fight for it. One good example is Sr. Mariani, who is practically a legend in the Philippines. She was a young nun during the Marcos regime who pioneered the human rights movement there. After she was jailed, she realised the need for a solidarity movement linking victims in prison and victims of disappearances and torture with their families and human rights organizations. As a result, she set about establishing Task Force Detainees of the Philippines. It is this kind of person who builds popular movements, not judges, lawyers and intellectuals. It is necessary to remember that for the human rights movement to become popular, it must build upon the sympathy and emotions of ordinary people so that they too participate in it. It should not be a movement of judges, lawyers and intellectuals, but a movement of people to which judges, lawyers and intellectuals can also contribute.
Another example of such a movement is the campaign against the disappearances in Sri Lanka, begun by a young woman, Jayanthi, who lost her brother and fiancée during the emergency period there. After visiting the monument to the victims of the May 18 uprising in Kwangju, South Korea, she explored the possibility of erecting a monument for the disappeared in Sri Lanka. Jayanthi thought the monument could be constructed at the place where the bodies of her brother and fiancée were found murdered; a small plot of land not claimed by anyone. The authorities did not object to the construction, and the monument was erected with the support of the Asian Human Rights Commission and May 18 Memorial Foundation, in Kwangju.
This Monument for the Disappeared calls on the sympathy of the people, and enables members of victims’ families to gain confidence and come out of their fear and seclusion. People now gather at the Monument to commemorate the loss of their loved ones; every year, religious events are held there, with close cooperation and understanding among different groups. As there is a church behind the Monument but no other public building nearby, the priest proposed his church for the Buddhists to give offerings to the monks. The monks accepted, and went to receive their offerings in the church, thereby initiating a ‘living dialogue’ between the Christians and Buddhists in that community, which a visiting sociologist came to witness and could not believe. Buddhist monks having their meal in a Christian church is unthinkable for those who want to arouse communal animosities, but such feelings do not exist among those people.
The Monument for the Disappeared speaks to how it is important to break silence and get public recognition of an issue. A monument is a very good way to do this, because it captures public imagination, and is much better than someone writing a book, for example. A monument symbolises not only remembrance of an event, but frustration at the failure of justice.
What kind of human rights organisations are needed for this work? First, human rights organisations that are more people-based, and ensure that they are indeed speaking for people, if not having them speak for themselves. Secondly, human rights organisations with advanced strategies, incorporating the use of modern communication facilities and international pressure in the fight against violations, taking advantage of public events to carry strong messages, and using various media to spread the message in a popular way.
Above all, however, there remains the need to remove fear. For most victims, silence is the best protection they have against further pain. Therefore, the only way to create participation and remove fear is by offering alternative forms of protection.
A group of human rights defenders from across India gathered at Thrissur, Kerala, India, from 15–18 August 2003 to discuss torture in India. The deliberations centred on the need to launch a campaign in India for ratification of the Convention against Torture. The concluding statement of the gathering was published earlier, in article 2 of August 2003 (vol. 2, no. 4). This article recalls some of the discussion between participants.
