NHRC’s radio silence on the absence of express definition of torture in Indian law and jurisprudence is deafening.
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THE Working Group on the United Nations (‘UN’) Human Rights Council’s Universal Periodic Review (‘UPR’) held its review of India on November 10. The delegation of India was headed by the Solicitor General of India, Tushar Mehta. At its 16th meeting, held on November 16, the Working Group adopted the draft report on India.
Numerous recommendations made by India will be examined. India will provide responses in due time, but no later than the 52nd session of the Human Rights Council.
One recurring and important recommendation was to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), as recommended by Montenegro, South Africa, Congo, Denmark, Eswatini, Fiji, France, Japan, Latvia, Mexico, Slovakia, Sweden, Pakistan, Benin, Estonia ,Republic of Moldova, Togo, Morocco, Niger, Senegal, Angola, Sudan, Ghana, Kazakhstan, Republic of Korea, Ukraine, Bahamas, Chile and the United Kingdom of Great Britain and Northern Ireland.
The United States of America not only recommended that India ratify the CAT but also prosecute those responsible for human rights abuses.
In 2017, many countries welcomed India’s decision to ratify the CAT during the third periodic review, which India had signed in 1997. India had made a similar commitment during the earlier second periodic review process in 2012, only to forget it before the ink was dry.
Earlier in 2005, the Advisory Council of Jurists (‘ACJ’), the body of legal experts advising the Asia Pacific Forum of National Institutions submitted its study on the question of torture and the role of national human rights institutions.
Attempts to sidestep peremptory norms on the prohibition against torture do not sound like the position of an independent national human rights institution.
Even before the drafting process, however, the National Human Rights Commission of India (‘NHRC’) attempted to derail the process by requesting at the consultative stage in Seoul for a clarification of the meaning of “customary international law”. Of even greater concern was the request of the NHRC that it be excused from any recommendations of the ACJ deriving from the CAT and the provisions of the Rome Statute of the International Criminal Court, as India is party to neither. Such attempts to sidestep peremptory norms on the prohibition against torture do not sound like the position of an independent national human rights institution.
Second, ratification of core instruments is not a prerequisite to applying international norms in holding respective States accountable for their actions. In this case, it appears necessary to explain to the NHRC that the prohibition against torture is a peremptory norm of international law that meets the level of jus cogens. ‘Jus cogens’ is defined as being “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”, according to the Vienna Convention on the Law of Treaties.
It is therefore binding on all States as customary international law, whether or not they have ratified CAT and other treaties that prohibit torture. If some States’ national human rights commissions don’t know this, they are in the wrong job, which, incidentally, is already obvious in certain cases.
The NHRC initially did some work in this area. As early as December 1993, the Commission issued guidelines that it must be informed of any incident of custodial death or rape within 24 hours of any such occurrence, to be followed by a post-mortem report, an inquest report, a magisterial enquiry report, and so forth. It credits itself for having “contributed in a large measure to India signing the Convention Against Torture on 14 October 1997” through its submission of a comprehensive memorandum to the Prime Minister in 1997. In 1998, it provided extensive guidelines on police reform and effective remedial measures for victims of custodial violence, establishing district authorities to examine complaints from the public, and make appropriate recommendations to the government and the State or National Human Rights Commission. In 2000, the NHRC created a separate cell within the Investigation Division to scrutinise incidents of custodial violence and their adequate reporting from State authorities.
The NHRC must reiterate the same indisputable arguments as in 1997, recall the failed pledges of the time, and demand a detailed explanation of the mysterious procedural anomalies that are said to exist. It must expose and shame those who use the misguided argument that ratification would result in “interference from outside”.
Since then, however, the scale of the problem has far exceeded the barometer of achievement.
On the ratification of CAT, the NHRC’s approach since 1997 has been weak. In 1997, the NHRC took its case directly to the Prime Minister and did not back down from the response that there were “reservations among some States in regard to allowing an international agency to interfere in the internal affairs of the country.” Instead, it scheduled a meeting at the highest level to explain why such apprehensions were groundless; leading to the announcement on 26 June 1997 that India would ratify CAT. In point of fact, the Government only signed the Convention, misleading the NHRC, and has since persistently alleged that the delay in ratifying CAT is purely “procedural”.
Since then, the NHRC has continued restating the same rhetorical annual plea. This statement follows a general format – that non-ratification gives rise to “serious concerns” and is “long overdue”; and that ratification presents no difficulties as the right against torture has been judicially recognised by the Supreme Court as a fundamental right, as is enshrined in Article 21 of the Constitution.
This annual cut-and-paste exercise gets the NHRC nowhere. It is high time the current NHRC showed the same spirit as its predecessors. The NHRC must reiterate the same indisputable arguments as in 1997, recall the failed pledges of the time, and demand a detailed explanation of the mysterious procedural anomalies that are said to exist. It must expose and shame those who use the misguided argument that ratification would result in “interference from outside”.
Domestically, the NHRC’s limited powers of investigation automatically absolve those at the forefront of torture practices in India. Security legislation such as the Armed Forces (Special Powers) Act (‘AFSPA’) has created a culture of impunity in parts of India, against which the NHRC can do nothing. The NHRC has recently reiterated the need to revisit its proposed amendments for the Protection of Human Rights Act, but its pleas have fallen on deaf ears.
Those tortured during arrest or detention often remain in custody for long periods, are often threatened with further torture and/or ill-treatment if a complaint is made, and are therefore unlikely to be able to complain within the specified period.
The same applies to the NHRC’s silence on the fact that Indian law and jurisprudence still avoid any express definition of torture. The NHRC, since its recommendations for reform of the Indian Evidence Act and the Indian Penal Code in 1998, has not even advocated for an initiation of these required steps to make the ratification of CAT possible.
The 2010 bill’s requirement of prior government sanction in order to prosecute a public servant accused of torture runs afoul of the CAT’s requirement of effective, impartial and prompt investigation, prosecution and punishment. The CAT has clear directives intended to “eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment”.
Moreover, the requirement in Clause 5 of the draft bill that a torture victim file a complaint within six months of any alleged torture also wrongfully inhibited effective investigation and prosecution.
Those tortured during arrest or detention often remain in custody for long periods, are often threatened with further torture and/or ill-treatment if a complaint is made, and are therefore unlikely to be able to complain within the specified period. The inevitable physical and mental trauma faced by victims and the fear of reprisals would also prevent them from filing prompt complaints. The bill took none of these factors into account.
These legal barriers to investigation and prosecution will only lead to continued immunity for perpetrators, as evidenced by the long history of the failure of the Union and state governments to authorise prosecutions under the parallel provisions of the Criminal Procedure Code and the AFSPA.
Moreover, many government agencies that are not necessarily involved in interrogations that would lead to evidence in criminal cases, such as the Directorate of Enforcement, intelligence agencies, and Directorate of Revenue Intelligence, among others, have been noted by the Supreme Court to commit torture and other ill-treatment. Furthermore, in practice it is difficult for a detainee to prove that an incriminating statement was made under compulsion.
Indeed, rules such as those under the Maharashtra Control of Organised Crime Act, 1999, for example, whereby confessions made to police are admissible as evidence, only create greater incentives for officials to engage in torture. Furthermore, a statement given before the Enforcement Directorate is a piece of admissible evidence during the investigation.
Lest we forget, in 1979, India made a Unilateral Declaration against Torture that it would comply with the UN Declaration against Torture, the precursor of the UN Convention against Torture. At the end of the year, 2022, we wait.