Riding the Roughshod – Is it time to ratify UNCAT?
The General Assembly of the United Nations adopted the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) on December 10, 1984. India signed the UNCAT on October 14, 1997; however, it has never been approved. India had reservations about provisions 20, 21, and 22 of the agreement, which deal with the Convention against Torture’s investigation, state complaints against torture, and individual complaints, respectively. Torture, as defined by the United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (UNCAT), is defined as any form of cruel, inhumane, or degrading treatment or punishment.
Despite the fact that customary international law and key agreements call for a comprehensive ban on torture, many States Parties have failed to uphold their obligations to prevent torture and protect their citizens from cruel, inhumane, and degrading treatment. India is required to prohibit and prevent torture in all of its manifestations as a State Party and State Signatory to the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention Against Torture (UNCAT), respectively.
For a long time, India has been one of the countries where torture has been performed in prisons, and the number of cases has only increased in the last year. Torture is a practice that is now part of the Indian system, whether in chowki cells or jails. Torture is depicted as one of the necessary components of reducing crime in movies and books. As a result, it is difficult for a country like India to outlaw torture when the government has been doing so for years. No one likes change, and bringing the legislation up to UNCAT will bring about a change that will be unwelcome by the state’s enforcement and policing agencies since it would take away their most lethal and successful weapon; the real question is how much this success will cost.
According to the National Crime Report Bureau, one person dies in India’s prisons every six minutes. The need for a law forbidding torture has been repeatedly stated by the courts, numerous legal experts, the Law Commission of India, and even the Indian government; yet, the legislation does not appear to be in the works due to the gap between words and actions.
The United Nations Convention Against Torture, or UNCAT, is an international human rights instrument that was approved in 1984 and is now being revised by the United Nations. All UN member nations have pledged to uphold the provision in the Universal Declaration of Human Rights that “no one will be subjected to torture or cruel, inhuman, or degrading treatment or punishment” (Article 5). The United Nations Convention Against Torture (UNCAT) of 1984 provides States with clear standards that outline the fundamental characteristics of effective torture prohibition and prevention in order to fulfill this shared promise.
In December 1984, the United Nations General Assembly ratified the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It characterized incarceration violence as any form of violence, including all forms of violence perpetrated by the state apparatus. One of the purposes of the convention’s adoption was to combat the rise in the use of torture by public authorities, both during the war and in peacetime, and convince member nations to take adequate preventative measures.
The convention’s goals are to prohibit torture and other forms of cruel, inhumane, or degrading treatment and punishment all over the world. The Convention compels governments to take adequate measures to avoid torture in any region under their jurisdiction. It also forbids states from sending persons to countries where there is a reasonable expectation that they would be tortured. Since the convention’s entry into force, the absolute prohibition of torture and other cruel, inhuman, or degrading acts has been a tenet of customary international law.
Existing Anti-Torture Laws in India
The Nemo Tenetur Principle (self-incrimination) is enshrined in Article 20(3) of the Indian Constitution, which states that a person accused of a crime cannot be forced to testify against himself. In any criminal case, the accused has the right to remain silent and not reveal his or her defense before the trial. Article 21 of the Indian Constitution guarantees everyone’s right to life and liberty, regardless of whether they are citizens or not. Custodial torture is a breach of Article 21 of the Indian Constitution, according to the Supreme Court. Article 22 (1) and (2) go into greater detail about the protection against arrest and, in some cases, detention. It stipulates that the detainee be informed of the reasons for his incarceration while in custody and that he has the absolute right to be represented by a lawyer of his choice.
The article also establishes a time limit for detention, with the exception of circumstances when an extension is granted by a competent judge or magistrate. Furthermore, the SC and several HCs have repeatedly ruled that sanctions that are either unduly harsh or excruciating are unconstitutional. In essence, the constitution provides three safeguards against state torture, including the right to be defended and advised by a legal practitioner of one’s choice, as well as the right to be brought before the nearest magistrate or judge.
Not only the constitution but also regulations dealing with criminal trials, such as the Code of Criminal Procedure (CRPC), 1973, provide for checks on torturous actions. These checks are made possible by sections of the CRPC such as 50, 56, 46(3), and 49. Unless there is a charge of an offense punishable by death or life imprisonment, these checks include the protection of a person from police custody, which is where the majority of torture cases occur. Another safeguard provided by these statutes is that a person in police custody cannot be subjected to more constraint than is required to prevent him or her from fleeing.
Furthermore, in accordance with Article 22 of the Constitution, the person arrested must be informed of his or her grounds for arrest as well as his or her right to bail. Under Sections 51(2) and 100(3) of the CRPC, which allows for the search of women accused, additional measures have been provided for them. The parts declare that only the women’s office has the authority to search women accused and that only in a dignified and strict manner, and at her home. Section 54 of the CRPC establishes protections against injuries resulting from any form of assault or detention torture.
Supreme Court and the Human Rights situation in India
The Indian courts continued to give prominence to the “sovereign functions” doctrine until after thirty years of independence, and never held themselves vicariously accountable for excess. After the case of Maneka Gandhi v UOI, everything changed. In this case, the court decided for the first time that the state’s conduct must be reasonable, fair, and right, or it will be a violation of the fundamental act of life and liberty. For years, the court has emphasized the problem of incarceration torture and has made every effort to protect individuals’ fundamental rights.
In Sunil Batra v. Delhi Administration, the court gave appropriate recommendations to the jail officials regarding solitary confinement, referring to it as “human perversity.” Another case in advance of it, Khatri v. State of Bihar, established the notion of compensation for victims of incarceration torture for the first time. Another principle was identified in the case of People’s Union for Democratic Rights v. State of Bihar for estimating the amount of compensation in cases of custodial torture. “Custodial violence, including torture and death in jails, strikes a blow at the rule of law, which demands that executive powers not only be derived from law but also be limited by law,” the Supreme Court ruled in D.K Basu v. State of West Bengal after reviewing several reports on custodial violence.
In addition, the court established a number of rules to be followed in the event of arrests and detentions. Carrying a valid ID card while under investigation was one of the guidelines, as was preparing an arrest memo at the moment of arrest, which had to be attested by at least two witnesses, ideally family members of the arrestee, and countersigned by the arrestee. This arrest memo must include the time and date of the arrest, as well as the name and designation of the arresting officer. The arrestee is also allowed to be accompanied by at least one family member or friend throughout the interrogation, according to the honorable Supreme Court of India.
The legal assistance organization must be notified of the arrest as soon as possible, as well as the location, time, and venue of the arrest. Medical help is to be provided to the arrestee as needed and at the request of the arrestee in the event of minor or significant injuries at the moment of arrest. The arrest memo and accompanying documentation must be sent to the local magistrate in duplicate. Last but not least, the arrestee must be allowed to meet with his counsel during interrogation if the arrestee needs legal aid.
What did the Law Commission recommend?
The Law Commission’s first recommendation concerns the definition of the term “torture.” The committee believes that torture should be defined broadly enough to include inflicting pain or simply attempting to inflict injury, whether intentionally or unintentionally. Physical harm, emotional injury, and even psychic injury are all possibilities. The Law Commission of India proposed a few changes to several pieces of legislation in its 273rd report. It proposed changes to the Criminal Procedure Code and the Indian Evidence Act, stating that the onus of proving that torture did not occur should fall on the accused officer, not the other way around.
The commission also advocated for harsh punishments and actions against the officer who committed the crime. Among the commission’s other recommendations is the creation of an effective framework to safeguard torture victims. The law commission also recommended that sovereign immunity be removed. This indicates that the state must accept responsibility for activities committed by its agents, in this case, accused officers, and the act would be torture. In effect, this would mean that the state would be equally liable for acts of torture committed by police officers or other officers working for the state’s investigative and enforcement organizations.
Why should India ratify the United Nations Convention against Torture (UNCAT)?
India is one of the few countries that has yet to join the pact, having done so in 1997. According to the National Human Rights Commission, violence and torture are already “rampant” in prisons and jails. In India, ‘Dalit Lives Matter‘ and other movements similar to the US’s ‘Black Lives Matter’ have failed to address the core cause of police torture. It’s crucial to understand the difference. In America, the dominant issue has swiftly turned to ‘racism’ (whose corrections are, quite rightly, inclusive measures such as seeking greater Black presence in more diverse areas of employment and education). Unfortunately, just labeling a social issue like “racism” or “casteism” does not address the criminal in the room: the police officer, whose violence is sanctioned by the state. In India, the United States, and everywhere else, social and criminal issues must be addressed in a variety of ways.
A father-son duo in Tamil Nadu who kept a shop open after the COVID-19 curfew hours was killed in detention, allegedly after being tortured by the Thoothukudi district police, during the same week that the globe commemorated International Day in Support of Victims of Torture (June 26) in 2020. The persistence of harsh treatment reveals India’s willingness to protect against police brutality.
The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was adopted in 1987, is one of the few treaties that India has yet to ratify (UNCAT). No matter what the circumstances, torture is never justified. The practice cannot be justified by war, insurgency, public emergency, or orders by superiors. It is expressly outlawed by our Constitution, laws, and categorical pronouncements of our Supreme Court. Both under international humanitarian law and UN human rights standards, it is completely illegal.
Despite this, the National Human Rights Commission gets petitions on a daily basis alleging the use of torture and deaths in prison as a result of the conduct of those sworn to uphold our Republic’s laws and Constitution while also ensuring the safety of its citizens. Every death in captivity serves as a stark reminder of the need for India to ratify the Convention Against Torture.
In its report on Jammu and Kashmir, Amnesty International outlined a number of principles that the Indian government and other concerned agencies may adopt. Some of them included eliminating the requirement of executive sanction or prior approval to prosecute military personnel accused of human rights violations, limiting the scope of jurisdiction of military courts to ensure transparency, restitution, compensation, and rehabilitation for all victims of atrocities committed by armed forces personnel, and ensuring that victims and their families are fully informed about the progress of the case.
Perhaps if these principles and recommendations were taken more seriously, the rate of human rights abuses might decrease. The rate would drop precipitously. How can millions of Indian residents expect humanitarian protection against forced migration, exploitation, and slavery if the Indian government is hesitant to pass basic legislation to protect them from the atrocities perpetrated by its agents on a daily basis? Although the UNCAT is not the only solution, it is clearly a part of it, and we may use it to find one.
Concluding the Discussion
Extraordinary crimes necessitate extraordinary retaliation. This will not be possible without specific laws that not only recognize torture and torture abetment, but also include provisions for recognizing, documenting, and punishing such crimes. As a result, the draught bill on torture in India must address all of these issues – and more. As a result, a truly comprehensive bill must account for ‘invisible’ injuries, such as those that leave no visible scars on the body, mental torment, and the anguish that a victim may experience throughout their life. As a result, not only would such legislation need to broaden its definitions of torture, but it would also necessitate the deployment of sensitive and well-trained personnel on the ground.
The Indian government should also raise awareness, advocate for, and enforce laws prohibiting torture and other cruel and humiliating treatment. Furthermore, state officials should be educated on the legal and moral ramifications of torturing and degrading civilians. Furthermore, the Indian government should work to enact laws that criminalize torture in order to align Indian domestic laws with international treaties and conventions prohibiting torture.
A strong legal framework would serve as a deterrent, making jails safer for the accused. Torture in detention is a breach of human dignity that violates a number of fundamental rights. A person who has been arrested has the right to life and liberty, which can only be taken away through legal means. As a result, torturing someone is a violation of Article 21 of the Constitution. Even after 71 years of independence and 21 years after signing UNCAT, no significant steps have been taken to put it into effect. It is past time for the government to ratify UNCAT and introduce laws with robust punitive provisions to ensure that anyone who engages in torture does not escape prosecution. If India is to be a respected part of the international community, it must follow customary international laws.
More importantly, the idea of torture is abhorrent, and India should seek to ensure that perpetrators of such torture methods are punished and prevented, regardless of whether or not it has an international commitment to do so. India, as the world’s largest democracy and a candidate for membership in the United Nations Security Council, can no longer ignore its human rights obligations. To preserve the safety, security, and lives of all of its residents, it must respect the ideals established in its Constitution.