Dealing with the tremendous problem of torture in India Consultation on the Convention against Torture, Kerala, India 1. Torture is widespread and has routinely been practised at police stations in India. Unchallenged and unopposed, it has become a ‘normal’ and ‘legitimate’ practice all over. 2. Torture often leads to custodial deaths, disappearances and deaths in ‘encounters’. The numbers of reported custodial deaths are quite high and keep escalating. 3. Besides this, there are fatal injuries, permanent disabilities, mental derailment, loss of faculties and psychological trauma. 4. With the emergence of new sanctions for torture – like the Prevention of Terrorism Act, Terrorism and Destructive Activities Act (Prevention), and Essential Services Maintenance Act – that justify or legalize any amount of torture, the police enjoy enormous freedom to have recourse to any such crimes. 5. The use of extremely crude and filthy language is very common at police stations. It amounts to cruel, inhuman or degrading treatment, grossly derogatory to the dignity of the human person. We are ashamed of being told of the existence of a directory of vulgar words, widely used by police personnel, published by a police officer in one of the southern states. 6. Torture has also been practised on women and girls, in the form of custodial rape, molestation and other forms of sexual harassment. 7. Torture has been inflicted not upon the accused only, but also on bona-fide petitioners, complainants or informants. The police deliberately delay the submitting of First Information Reports and unnecessarily harass and torture such persons for no reason. Fighting torture is very difficult and risky. The reasons are many. 8. There is no impartial mechanism for receiving complaints against torture. The complaints must be made to police authorities themselves. This only allows the police to bring pressure and harassment onto the victims, who are de facto complainants. The Convention against Torture requires impartial investigations. Unfortunately, in India the police force is not independent. The National and State Human Rights Commissions, and other national institutions of India, have neither the power nor the provisions to deal with torture effectively. The National Commission for Police Reforms many years ago recommended that police in India should be made independent. The National Human Rights Commission itself has gone to the Supreme Court with a plea that the recommendations of the National Police Commission be implemented. However, the absence of political will has meant that these attempts have failed. 9. Torture and fabrication of cases are closely linked. In attempting to save offenders for obvious reasons, the police implicate innocent people and impose any amount of cruelty and torture on them until a ‘confession’ is extracted. 10. Torture is not treated in India the way required by the Convention against Torture. Only two sections in the Penal Code (sections 330¡V1) deal with punishment for use of force in obtaining confessions. However, if torture is to be dealt with effectively, it is essential that it be made an offence in terms of the Convention. This also involves provisions for adequate punishment against torture. Thus, the law against torture in India is extremely defective in terms of international understanding and social jurisprudence. To mention two examples, in Hong Kong the offence of torture carries a life sentence, while in Sri Lanka it carries a sentence of 7 years only. 11. The prosecution system as it exists now in India only militates against the rights of victims of human rights violations. The prosecutors act in many ways to protect the perpetrators. Prosecutors should be independent, competent, and appointed through a judicious process to scrupulously uphold the cherished values enshrined in statutes. 12. In the present criminal justice system in India, the victims or complainants have no decisive role in seeking redress. Everything depends on the mercy of the investigating officer and the state prosecutor, who are often subject to manipulations and malpractice. Therefore, the de facto complainants or victims, if they are resourceful and confident, should be allowed to appoint their own lawyers to conduct prosecution on their behalf. 13. India not having ratified the Convention against Torture, its citizens do not have the opportunity to find recourse in remedies that are available under international law. Indian practices with respect to torture do not come under international scrutiny. Access to the UN Committee against Torture, and other mechanisms, is effectively denied people living in the largest democracy in the world. Since the country has also not signed the Optional Protocol to the International Covenant on Civil and Political Rights, its citizens also do not have the right to make individual complaints to the UN Human Rights Committee. The victims are trapped with the local system, which in every aspect militates against their rights. Many victims conclude that a justice system accessible to the poor of the land does not exist at all. 14. Despite its many human rights groups, an effective and powerful campaign for the elimination of torture has yet to be developed in India. If we fail to protect ourselves from torture, which is the basis for all other fundamental rights, we will not be able to vindicate any other rights. 15. “Human Rights Court” is a misnomer. What exists is an additional duty appended to the already overworked judges. Thus, adjudication on human rights matters is trapped within the same cycle of delay and neglect that affects other cases. The general principle that ‘justice delayed is justice mocked’ equally applies to these courts. The concept of Human Rights Courts needs to be revamped and re-envisaged so that an effective mechanism can be introduced. Judges who sit in such courts need to have a thorough knowledge of human rights law and should be endowed with a deep sense of the sublime supremacy of human life over all else. 16. The Malimath Committee recommendations will not only undo the practice of fair trial, but also will enhance the power of police to an absolute level. They have to be checked and carefully resisted if human rights are to have any meaning in India. 17. The early ratification of the Convention against Torture is imperative if we wish to defend the human rights of torture victims. It is mandatory for any attempt at reforms in the police system as an effective mechanism for law enforcement and administration of justice. 18. Most countries in the world have ratified this Convention and India being a signatory has no excuse for not ratifying it. In fact, the unwillingness of the Indian government to ratify the Convention brings only discredit to its people and places the country in a very shameful situation. 19. The citizens have a civic responsibility to campaign for ratification of the Convention. In fact, the National Human Rights Commission has already recommended and urged it to do so. Many high-profile organizations and eminent citizens of international repute also have pressed the government on this issue. 20. Meanwhile, it is highly necessary to document torture cases in a meticulous way. The lack of proper documentation only permits the unfettered continuance of barbaric methods of torture and acquittal of the culprits. Had there been proper documentation, it would not have been possible to hide the colossal and devastating atrocities of the police, whose constitutional mandate is to protect the people. NGOs should undertake scientific and systematic documentation of torture and follow-up on it. 21. Modern communication systems offer tremendous opportunities for victims of torture to expose it to the rest of the world. Urgent Appeals have been quite successful at coordinating and combining domestic and international efforts to resist this atrocious encroachment on human rights. Hence human rights defenders and activists should be equipped and conversant with what information technology offers for the promotion of human rights activity anywhere in the world, less expensively and with greater efficiency. 22. The communal and caste divide in India is closely linked with torture. Police and law enforcement agencies have been instrumental in much of the recent communally charged violence in the country. Torture remains unaccounted for and not prosecuted. It leads to total anarchy and the rule of vandalism and lawlessness. When police become a party to such violence, it becomes a state-sponsored crime against the people. Therefore, the fight against communalism and caste should start with the fight against torture. Signatories: Bharathi G Parekh, Karnataka Dr Francis Xavier, Kerala Subramannian G, Tamil Nadu Tomy Mathew, Kerala Geo Jose, Kerala Dr K Umadevi, Andhra Pradesh Adv. Bijo Francis, Kerala Adv. Johnson Ainikal, Kerala Kirity Roy, West Bengal Vinaya, Kerala Adv. Stephan Mathew, Kerala Mallela Seshagiri Rao, Andhra Pradesh George Pulikuthiyil, Kerala K G Sankara Pillai, Kerala A Amaraiah, Andhra Pradesh Adv. Shaji George, Kerala Adv. E V Joshy, Kerala G Kurinji Shanmugasundaram, Tamil Nadu A B Prasad, Kerala Dr George Mathen, Kerala Adv. Leonard Fernando, Tamil Nadu K Balasundaram, Kerala Adv. P P Vineeth, Kerala Paul Joseph Kattookkaren, Kerala T K Naveena Chandran, Kerala Adv. Faritha Ansari, Kerala Adv. Jasmine Joseph, Kerala. 19 August 2003, Thrissur, Kerala, India footnote: A group of human rights defenders from across India gathered at Thrissur, Kerala, India, from 15¡V18 August 2003 to discuss torture in India. The deliberations centred on the need to launch a campaign in India for ratification of the Convention against Torture. This is the concluding statement of the gathering.