By Basit Farooq and Shariqa Naseer
The term, “torture”, literally refers to something that causes agony or pain or the infliction of intense pain (as from burning, crushing or wounding) to punish, coerce or afford sadistic pleasure. However, the legal definition of torture in human rights law differs quite significantly from the way the term is commonly used in the media or in general conversation. Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is the internationally agreed legal definition of torture,
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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Torture has been widely denounced by the International Community and as such is regarded illegal under international law. The Supreme Court of the United States (SCOTUS) in Miranda v Arizona, 384, U.S. 436, 448 (1996) and also in Blackburn v State of Alabama, U.S. 199 (1960) held that “[c]oercion can be mental as well as physical.” Not only has the U.S. come up with change in its approach with torture but also the European nations have framed up convention for protection of Human Rights and Fundamental Freedoms. The African Charter on Human and People’s Rights also include important provisions related to the same.
India has been involved in custodial death and torture since it became an independent sovereign, as indicated in the reports of the National Crime Record Bureau (NCRB). Being the world’s largest democracy, India has been successful in making its name shine as a fast developing country with a stable growing economy, a nuclear power, and membership to a hundred reputed international organizations However, India’s record is abysmal when it comes to degrading, abusing, and humiliating its citizens.
From Qalandar Khatana in Kashmir to Agnelo in Mumbai – India has repeatedly resorted to torture and human rights violations. Qalandar Khatana, hailing from the Kupwara district of J&K, was subjected to inhumane torture by Indian troops back in the 1990s, resulting in an amputation of both of his legs. Leonard Valdaris’s son Agnelo died in police custody in Mumbai in April, 2014 just two days after he was arrested for theft. The cause of his death was confirmed as torture by Human Rights Watch. As every second passes, there is a person who is inflicted with deliberate pain in prisons or jails. India has tried to introduce legal provisions to curb torture but has failed miserably. A bill, titled National Law Prohibiting Torture, introduced in the parliament in 2010 lapsed in 2014 due to inaction. There are many reasons for its lapse and the heavy cost is visible on the ground. There are about 1387 Jails in India and only 5 of them are monitored as required by law. During Universal Periodic Review (UPR) at UNHRC in May 2017, 35 countries raised concerns about issues of torture in India. There were around 684 cases of torture in which compensation was provided by the National Human Rights Commission (NHRC) from 1994 to 2007 and, in these cases, only 7 Police personnel were convicted. According to NCRB, 1584 deaths occurred in prisons in 2015, suggesting that there was one death every 6 hours. Apart from health issues and age factors, torture as reported by Human Rights Watch was a major cause of these deaths. Agnelo, as stated above, was one of the 591 people who died in police custody between 2010 and 2015 as per NCRB.
India has a strict legal procedure for dealing with cases of torture. Legal remedies against such torture are clearly laid down in various national Codes such as the Code of Criminal Procedure, Indian Penal Code, Indian Police Act, Indian Evidence Act, and the fundamental law of the land, i.e. the Constitution of India. Despite these safeguards, India has failed to put into practice these provisions. It has signed and ratified many international conventions – such as ICCPR, UDHR and UNCAT – which provide for prohibition of torture. These conventions also provide for prohibition of torture and use of inhumane means and methods against human beings. Article 2(1) of UNCAT provides that “every state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Similarly, Article 5 of the Universal Declaration on Human Rights states, “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” Article 7 of ICCPR is also a significant provision directing countries to refrain from torture for any purpose. Having been a signatory and having ratified some of these conventions, India is duty-bound to abide by the provisions of these conventions. However, it has failed miserably to implement successfully these conventions in its own country, validating the image of a monster-country violating individual rights.
“Torture is much worse than Terrorism because the authority of state is behind it,” said renowned Justice, Krishna Iyer. If we go with the view of one of India’s most reputed legal minds, India is no doubt behaving like a ‘terrorist state’ by providing legitimacy to custodial torture and subjecting prisoners to inhumane treatment. On the one hand, India has been involved in human rights abuses; on the other, it has tried to maintain its decorum by signing international conventions against human rights abuses. Such blatant violation of international law is disturbing, to say the least.
As has been rightly said by George Orwell, “The object of torture is torture.” Till the time countries such as India resort to the brutal method of torture, they cannot claim a moral high ground.
Basit Farooq and Shariqa Naseer are students of Law at the School of Law, University of Kashmir. They can be reached at firstname.lastname@example.org
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