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December 19, 2004

An Indian Perspective

Criminal responsibility for torture

Saumya Uma

In India, the prohibition against torture is absolute in theory. However, the use of torture by police, armed forces and other state agencies is a stark reality. Today, it remains less an individual aberration and more a systemic failure to build a culture of human rights among such agencies. However, torture practised by non-state actors, including armed insurgent groups, terrorist outfits, fundamental political outfits, members of "upper" castes and other de facto power-holders requires to be equally condemned. Even as the Supreme Court lays down more and more guidelines to prevent custodial torture, the routine use of torture upon civilians continues unabated.

In India, torture takes place for a variety of reasons as a substitute for police investigations, for fabricating cases and saving influential persons by implicating innocent persons, for "teaching a lesson", for extortion and for maintaining status quo and preventing empowerment of oppressed groups of people. It is often seen as the only way to maintain law and order, control terrorism and crimes committed by the underworld, extract confessions and investigate crimes. The victims are the most vulnerable sections of society, including poor, uneducated, illiterate persons, dalits, religious minorities, women, children, adivasis (indigenous persons), civilians in "disturbed areas" and human rights defenders. Many such victims have little knowledge of law and poor access to the justice delivery system, and those who do access the courts are often intimidated and coerced against asserting their rights and demanding justice.

The Legal Framework
Neither the Indian Constitution nor any other law contain an express prohibition of torture. However, judicial pronouncements have interpreted the right to life in Article 21 of the Constitution of India as a right not merely to survival or existence, but the right to live with dignity. Torture involves the violation of dignity and therefore falls within the ambit of Article 21. Several provisions of the Code of Criminal Procedure provide for judicial scrutiny of detentions, and vest powers and responsibility with the magistrates to act proactively in situations of custodial torture of arrested / detained persons. Causing hurt to a person in order to extract a confession, wrongful confinement, voluntarily causing hurt / grievous hurt, kidnapping, abduction and murder are all penal offences under the Indian Penal Code (IPC). As a general rule, the Indian Evidence Act prohibits the use of confessions obtained in police custody as evidence in court (S. 25).

In addition to domestic law, provisions that ban torture in international conventions that India has ratified are also binding on it. India has ratified the International Covenant on Civil and Political Rights (ICCPR), which bans torture and other forms of cruel, inhuman and degrading treatment even in times of national emergency or when the security of the state is threatened (Articles 4 and 7). The Indian government signed the Convention Against Torture (CAT) in 1997 but has not ratified the same, on the ground that existing laws have adequate provisions to prevent torture, in addition to constitutional safeguards. Further, India has ratified the Convention for Elimination of Racial Discrimination (CERD) in 1968, the Convention on the Rights of the Child (CRC) in 1992, the Convention on Elimination of Discrimination Against Women (CEDAW) in 1993, and is bound by the provisions of these conventions, all of which guarantee a right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. In addition, India is also bound by provisions of the four Geneva Conventions of 1949, and in particular, provisions of Common Article 3 that prohibits torture in situations of internal armed conflict. India is not a party to the Rome Statute on International Criminal Court, which spells out torture as a war crime and a crime against humanity.

Laws of Grave Concern
Draconian laws have been enacted with arbitrary, unbridled powers that license police and armed forces to inflict torture on individuals in the name of national security and countering terrorism. The Prevention of Terrorism Act (POTA), Armed Forces (Special Powers) Act (AFSPA), The Public Safety Act, National Security Act and preventive detention laws are some such examples. POTA contained many provisions that give arbitrary and unfettered powers to the security agencies. Instead of deterring terrorist activity, this law has been used against juveniles, old people, members of minority communities, dalits, adivasis, industrial workers, political opponents and human rights defenders, for acts including illegal custody, solitary confinement, torture, forced confessions, sexual and religious humiliation, encounter killings and disappearances. It is therefore small mercy, that the new Indian government repealed this law.

The AFSPA has come under fire in recent times, with the alleged rape, torture and killing of Manorama in Manipur in July 2004 by members of the armed forces. This law gives unbridled powers to armed forces to enter, arrest and search without a warrant, and the right to shoot to kill if the member of armed forces is "of the opinion that it is necessary to do so for the maintenance of public order." The Act has been justified, time and again, as the only means to control the situation of insurgency in the North-eastern states, and to prevent the secession of the north-eastern states. However, experts say that the AFSPA had failed to suppress insurgency in the state and has proved counterproductive, as it has festered civilians' hostility to Indian authorities, and has caused insurgency-related activities to increase. In addition, various state-specific laws exist in the north eastern states and Jammu & Kashmir, that strengthen the powers of apprehension, arrests, searches and shooting given to the security forces, as the only way to handle the situation in 'disturbed' states. In addition, clones of POTA continue to exist in many states, including Gujarat & Maharashtra.

The police and armed forces enjoy virtual impunity under Section 197(1) and (2) of the Criminal Procedure Code, which provide for a prior sanction of the central government for prosecution of public servants. Similar requirements of government sanction are also hemmed into AFSPA and other laws, including the Prevention of Corruption Act, for prosecution of a public servant for corruption. However, the Supreme Court has confirmed that government sanction is not required for prosecution of malicious actions that do not fall within the ambit of official duties (Shembhoo Nath Misra vs. State of Uttar Pradesh, AIR 1997 SC 2102). In addition, under Section 19 of the Human Rights Protection Act of 1993, National Human Rights Commission (NHRC) cannot directly investigate complaints of human rights violations by the armed forces, but can only request a report from the central government, based on which it can send its recommendations to the government. This provision has been severely criticised by national and international human rights organisations, including the NHRC itself.

These, and such other legislation, have infused and contributed to an overall climate of impunity within the country. Arbitrary, unbridled and sweeping powers given to the police and the armed forces under these laws have reduced their sense of accountability for their acts. Even though some safeguards against torture and other human rights violations have been incorporated in these laws, such safeguards are rarely implemented. Justice and accountability for acts of torture continues to remain an elusive issue in India.

The author is a co-ordinator of 'Justice and Accountability Matters' programme of Women's Research & Action Group, Mumbai.
Photo: AFP