NCHRO Kolkata Seminar: Torture in Any Form is a Crime
Torture – A Fact Sheet
—————————————————————————————————————————————–Prepared by Prof. A. Marx, Chairperson NCHRO
Presented by Adv. Saifan Shaikh, National Exco member, NCHRO in the Kolkata seminar on 17 September 2017
For the purpose 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 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.
The words “inherent in or incidental to lawful sanctions” remain vague and very broad. It is extremely difficult to determine what sanctions are ‘inherent in or incidental to lawful sanctions’ in a particular legal system and what are not. This allows state parties to pass domestic laws that permit acts of torture that they believe are within the lawful sanctions clause. However, the most widely adopted interpretation of the lawful sanctions clause is that it refers to sanctions authorized by international law. Pursuant to this interpretation, only sanctions that are authorized by international law will fall within this exclusion. The interpretation of the lawful sanctions clause leaves no scope of application and is widely debated by authors, historians, and scholars alike.
1.Ban on torture
- i) Absolute and Non-Derogable / cannot be justified in the name of Public safety
- ii) Includes discrimination of any kind
iii) No relief from legal responsibility / No escape from the legal responsibility on the excuse of obeying orders
- iv) Violators include public officials ( especially law enforcing authorities ) / as well other persons
Article 2 prohibits torture, and requires parties to take effective measures to prevent it in any territory under their jurisdiction.
This prohibition is absolute and non-derogable.
“No exceptional circumstances whatsoever” may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict.
In other words, torture cannot be justified as a means to protect public safety or prevent emergencies. Subordinates who commits acts of torture cannot abstain themselves from legal responsibility on the grounds that they were just following orders from their superiors.
The prohibition on torture applies to anywhere under a party’s effective jurisdiction inside or outside of its borders, whether on board its ships or aircraft or in its military occupations, military bases, peacekeeping operations, health care industries, schools, day care centers, detention centers, embassies, or any other of its areas, and protects all people under its effective control, regardless of nationality or how that control is exercised.
2. Ban on Refoulement
Article 3 prohibits parties from returning, extraditing, or refouling any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.
3. Ban on cruel, inhuman, or degrading treatment or punishment
Article 16 requires parties to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1” in any territory under their jurisdiction.
Because it is often difficult to distinguish between cruel, inhuman, or degrading treatment or punishment and torture, the Committee regards Article 16’s prohibition of such act as similarly absolute and non-derogable.
Any degrading act such as pushing fecal matters into one’s mouth, indecent behaviors and acts including sexual abuses are considered as torture.
Anti-Torture Law (India)
The Prevention of Torture Bill, 2010
The Prevention of Torture Bill introduced by the Minister for Home Affairs makes torture a punishable offence. The Statement of Objects and Reasons of the Bill states that the Bill is being introduced to ratify the UN Convention against Torture of 1975. India is a signatory of the Convention but has not enacted a law on torture which would enable it to ratify the Convention. The Bill defines torture and prescribes conditions under which torture is punishable.
- The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
- The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
- Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.
Key Issues and Analysis
- The definition of torture (a) is inconsistent with the definition of torture in the UN Convention against Torture, (b) requires the intention of the accused to be proved, (c) does not include mental pain or suffering, and (d) does not include some acts which may constitute torture such as sexual assault, violation of human dignities etc. (e) since causding “grievous hurts” alone are defined as torture, other forms of torture including psychological harassments and preventing a person from relaxing, sleeping etc are not considered as punishable crimes. It should be remembered that the UN convention includes any form of causing severe pain as torture. It does not limit itself with grievous injuries.
- The Bill dilutes existing laws by imposing a time limit of six months and requiring prior government sanction for trying those accused of torture. Existing laws do not have such requirements.
- There is no independent authority to investigate complaints of torture, and no provision for granting compensation to torture victims has been made.
UN Convention against torture was created in 1984. India didn’t sign in it for the next 14 years,
- Still India does not have an Anti-Torture Law
- Though India had signed the UN Convention against torture way back in 1997, had still not ratified it. The Convention defines torture as a criminal offence
- Due to this, extraditions are difficult
- 90% of the States had no objection for a special law on torture and the NHRC itself had strongly supported the need for such a law
What does SC say?
- India may be finding it tough to secure extraditions because there is a fear within the international community that the accused persons would be subject to torture here.
- The court referred to the setback suffered by the CBI in its efforts to get Kim Davy — a Danish citizen and prime accused in the Purulia arms drop case of 1995 — extradited from Denmark. A Danish court had rejected the plea on the ground that he would risk “torture or other inhuman treatment” in India.
Steps taken so far?
- Prevention of Torture Bill, 2010 was passed by Lok Sabha in 2010 itself. But even six years after that, it has not been passed by RS.
- India had signed the UN Convention against torture way back in 1997, had still not ratified it.
Torture in India
As per the statistics published by the Asian Centre for Human Rights in the year 2011, 14,231 CUSTODIAL DEATHS HAVE OCCURED FROM 2001 TO 2010: (1,504 deaths in police authority and around 12,727 deaths in judicial custody).
As per the statistics revealed by the Asian Centre for Human Rights about 555 people were killed in FAKE ENCOUNTERS from 2009 to 2013. Between 1993 and 2009, 716 people were killed in encounters.
Custodial and Fake encounter killings are going on increasing in India especially in places where Adivasi and Maoist movements are considered as a nuisance by the government. The majority of the victims are from Minority communities, Adivasis and Dalits .
Different Types of Tortures
- Custodial Torture with Impunity on dalits, adivasis, minorities, women and children
- Torture by Armed Forces / custodial as well against opposition groups
- Torture in Judicial Custody ( prison deaths)
4.Torture by Non-State Actors/ Upper caste atrocities/ Cow vigilantes and Gar vapasi activists/ caste and gram panchayats.
Article 21 of the Indian Constitution primarily deals with the right to life and personal liberty of an individual and Article 22(1) is concerned with the basic rights of the arrested person.
The Court in D.K Basu vs. State of West Bengal had stated that “any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during an investigation, interrogation or otherwise
Article 22(1) in The Constitution Of India 1949
No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
Right to Live Includes Right to live with Human Dignity
This has been clarified by the SC (Maneka Gandhi v. Union of India). This means any violation of human dignity also is a form of torture.
A Note on Refoulement of Rohingya Muslims
India has not signed in UN convention on Refugees. It has no National policy on refugees. Hence it treats refugees from different countries differently. Refugees from Tibet are treated well when compared to Tamil refugees from Srilanka. Since it has not signed in the UN convention on refugees, it deported about one lakh Srilankan Tamil refugees immediately after the assassination of Rajiv Gandhi.
Now the Modi government says that it will deport all the 40,000 Rohingya Muslims in India. UNHRC has described Rohingya Muslims as “the world’s most persecuted minority”. There are about 1.1 million Rohingya Muslims in Myanmar. Though they are living in the western coastal state of Rakhine for a very long time they are not considered one of the country’s 135 official ethnic groups and have been denied citizenship in Myanmar since 1982, which has effectively rendered them stateless. They are not allowed to leave without government permission. It is one the poorest states in the country with ghetto-like camps and a lack of basic services and opportunities. There are reports that those who escape and run away from such torturous life are also targeted and killed by landmines.
In such a situation the Indian Govt says it will deport all the 40,000 Rohingya Muslims in India including the 16,5o0 refugees for whom the United Nations High Commissioner for Refugees has issued identity cards. When asked the Junior interior minister Kiren Rijiju replied that since India has not signed in the accord on refugees nobody can prevent it from doing it. He also says that as for as India is considered they are all illegal immigrants and it would not allow illegal immigrants in its territory.
UNHCR’s India office says that the principle of non-refoulement – or not sending back refugees to a place where they face danger – was considered part of customary international law and binding on all states whether they have signed the Refugee Convention or not. But the present India which once hailed the Panchasheel doctrine of Buddha says coolly that it need not respect such customary practice or laws. After all it has also not signed in the UN torture convention which includes the principle of non-refoulement.