Human Rights Law

PROHIBITION AGAINST TORTURE AN INTERNATIONAL

AND INDIAN PERSPECTIVE

-Aiman Singh Kler!

Electronic copy available at: http://ssrn.com/abstract=2627746

Human Rights Law

PROHIBITION AGAINST TORTURE AN INTERNATIONAL

AND INDIAN PERSPECTIVE

-Aiman Singh Kler

INTRODUCTION-

Human dignity as a notion has been reiterated in innumerable conventions and cases
of international law. Infact, the foundations of international law are deeply engrained
in respect for human dignity. The concept of human dignity first and foremost being
found in the Universal Declaration of Human Rights (UDHR) states “all human
beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood”.1 The
UDHR, that is interpreted as a as a constitutional document of International legal
order,2 commits states to the notion that human dignity is a norm that cannot be
deviated from when pursuing any state policy. Another equally important document
upholding the value of the human dignity, the International Covenant on Civil and
Political Rights, states in its preamble that the states that have ratified the Covenant
shall recognise “the inherent dignity and inalienable human rights of all members of
the human family”.3 The preamble of the ICCPR also states “human rights derive
from the inherent dignity of the human person”.4Furthermore, the United Nations
Charter also states that every state must “reaffirm faith in fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and women
and of nationals large and small”.5Thus, the connection between human rights and
human dignity is sacrosanct and this duality is something that international law seeks
to empower everyone with.

This paper focuses on the antithesis of human dignity and human rights – acts of
torture, cruel, inhuman or degrading treatment or punishment and how the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
1
UDHR ARTICLE 1, Available at http://www.un.org/en/documents/udhr/
2
CAPPS PATRICK, HUMAN DIGNITY AND THE FOUNDATIONS OF INTERNATIONAL LAW at p.16
3
Preamble ICCPR Available at http://www.ohchr.org/documents/professionalinterest/ccpr.pdf
4
id.
5
Supra note 1.

Electronic copy available at: http://ssrn.com/abstract=2627746

Human Rights Law

international legal order seeks to prevent the occurrence of such acts. This paper shall
be divided into three parts –Part I of my paper shall seek to analyze the various
International laws (against torture) that existed before the UN convention on Torture
and will seek to analyze as to what led to the creation of this Convention. Part II of
my paper shall sensitize the reader to the main provisions of the UN Convention on
Torture and its working. Part III of my paper will be focusing on anti–torture laws
present in India. . The main aim of the first three parts of this paper are to introduce
the reader to the international corpus of law surrounding torture and the current laws
in place in India that combat torture. This brings me the most integral part of my
paper i.e. India’s stance on the UN Convention against Torture, it’s reasons for not
ratifying this quintessential Convention, the State laws prohibiting torture and lastly
whether these laws are mere white papers that exist without any effective
implementation. Based on my subsequent research I will try to take a stance on
whether India will be more effective in combating Torture by signing and ratifying
the Convention against Torture along with its Optional Protocol or whether the
existing State laws are comprehensive enough to prevent instances of torture in the
country. All of this will be dealt with in the conclusion to this paper. Thus, through
this paper I shall seek to answer the question - ‘Is there a need for India to ratify the
UN Convention on Torture and it’s Optional Protocol or are India’s State Laws
comprehensive enough to combat torture?’

THE COMING INTO BEING OF THE UN CONVENTION OF TORTURE-

Acts of torture and cruel, inhuman, or degrading treatment or punishment are

irreconcilable with the conceptions of human dignity enumerated above. Around 1948
after the horrendous abuses committed during the World War II (specifically acts of
torture committed during Nazi Germany’s reign), the General Assembly inserted the
prohibition against torture in the UDHR. Article 5 states: "No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment."6Thus, it was
the Nazi atrocities that pushed the international community to take immediate steps to
prevent such acts from occurring in the future.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
6
Supra note 1 Art 5.
Human Rights Law

The ban on torture in almost identical words thereafter found its place in the ICCPR.
Article 7 states: “No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation”7 The Standard Minimum
Rules for the Treatment of Prisoners that was adopted by the United Nations
Economic and Social Council in 1957, also prohibits all cruel, inhuman or degrading
punishment.8Such explicit bans on torture and other forms of inhuman treatment
subsequently found their place in a wide variety of regional treaties, such the African
Charter on Human and People’s Rights9, the European Convention for the Protection
of Human Rights and Fundamental Freedoms10 and the American Convention on
Human Rights.11 Thus, these international conventions brought about a new era in the
international legal order – the freedom from torture now was a core right that could
never be compromised with, not even during the times of public emergency.12

Amnesty International, an international NGO (independent of any government,

political party or religion) that campaigns against grave abuses of human rights, made
another powerful assertion against torture and inhuman treatment by publishing a
report13 documenting the existence and practice of torture in many countries across
the world. This world renowned NGO had earlier started a campaign for the abolition
of torture and it was during this particular campaign that Amnesty published this
report and also announced that their campaign against torture will go on indefinitely
until torture is abandoned and not ‘condemned’. The report discussed the evolution of
torture, how it was merely a relic of the past and how it recently surfaced amongst
various regimes across the world. The report included specific instances14 and
examples of torture from various parts of the world (especially concentrating on Latin
American countries) and how various countries were relying on torture as a ‘form of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
7
Supra note 3. Article 7
8
Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955, Art. 31, U.N. Doc.
A/CONF/6/1, Annex I, A (1956)
9
Article 5 that guarantees ‘respect of the dignity inherent in a human being’.
10
Article 5
11
Article 5 states that all person deprived of liberty are ‘to be treated with respect for the inherent
dignity of the human person’.
12
International Covenant on Civil and Political Rights, art. 4, G.A. Res. 2200 (XXI), U.N.GAOR, 29th
Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967).
13
Available at - http://www.amnesty.org/en/library/asset/POL10/001/1974/en/082dd4a9-28fe-4e8a-
ac39-b076ba1dbd9e/pol100011974eng.pdf
14
id. Amnesty cited sixty countries in which there was reliable evidence
that torture was being practiced, at 114-239.
Human Rights Law

governance’.15 Thereafter, in December 1973 this organisation convened the first

international conference for the abolition of torture. During this conference around
three hundred delegates declared that the ‘use of torture is a violation of freedom, life,
and dignity’.16 Amnesty along with other members, plenipotentiaries and delegates to
this conference sought to convince governments to respect and implement the corpus
of international (as well as domestic) laws prohibiting torture. Such extenuating
circumstances demanded an institutional response from the UN that resulted in the
establishment of a specific convention on torture. Thus, on December 10, 1984, the
thirty-sixth anniversary of the adoption of the Universal Declaration of Human
Rights, the United Nations General Assembly adopted the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.17The ‘UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment’18 can be viewed as the Magna Carta convention against torture and cruel,
inhuman or degrading treatment or punishment in the world.

A BRIEF NOTE ON THE UNCAT

The UN Convention on Torture was a direct result of the ‘Declaration on the

Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment’19 (the “Torture Declaration”) by the General
Assembly on 9 December 1975. The Covenant follows the structure of the Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights with a
preamble and 33 articles, divided into three parts. As of 2014, this Convention has
one hundred and sixty two state parties; however seven countries (including the
U.S.A and India) have signed and not ratified this convention.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
15
Matthew Lippman, The Development and Drafting of the United Nations Convention Against
Torture and Other Cruel Inhuman or Degrading Treatment or Punishment Available at -
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1304&context=iclr
16
AMNESTY INTERNATIONAL CONFERENCE FOR THE ABOLITION OF TORTUTRE: FINAL REPORT
(1973) at 11. Available at : www.amnesty.org/.../pol100011974eng.pdf
17
Available at :http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1304&context=iclr
18
Available at https://treaties.un.org/doc/Publication/UNTS/Volume%201465/volume-1465-I-24841-
English.pdf
19
Available at www.un-documents.net/a30r3452.htm
Human Rights Law

Under this Convention the definition of torture found under Article 1 has been largely
based on the UN Declaration against Torture however it drifts away from the
declaration definition as it deliberately lowers the threshold. Unlike the declaration, it
does not describe torture as an aggravated and deliberate form of inhuman
treatment.20 The convention places an obligation on each and every signatory to
implement effective measures to combat torture.21The highlight of this convention is
the setting up of the Committee against torture22 that is set up “to receive, study and
comment on periodic reports from the States parties on the measures they have taken
to give effect to their undertakings under the Convention23; to initiate an investigation
when there is reliable information which appears to contain well-founded indications
that torture is being systematically practised in the territory of a State party24 and to
To receive and examine complaints by one State party of violations of the Convention
by another State party25. The committee also is empowered to ‘receive and examine
applications by individuals claiming to be victims of a violation of the Convention by
a State party.’26

Thereafter anOptional Protocol to the Torture Convention was adopted by the General
Assembly of the United Nations on 18 December 2002 (resolution 57/199). This
protocol was added to give the convention more teeth by the creation of the sub-
committee on torture and thus enabling a ‘system of regular visits by international and
national bodies to places of detention in order to prevent torture and other cruel,
inhuman or degrading treatment or punishment.’27Perhaps it is due to the enlarged
scope given to this protocol that various countries such as Australia, Belgium,
Cameroon, Cape Verde, Chad, Republic of the Congo, Gabon, and Ghana etc. (that
have signed and ratified the UN Convention against Torture) have not signed the
Optional Protocol.

INDIA AND TORTURE PREVENTION-

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
20
MOCKELI DANIEL, SHAH SANGEETA AND SIVAKUMARAN SANDESH,
INTERNATIONAL HUMAN RIGHTS LAW, OXFORD UNIVERSITY PRESS at p.214
21
Article 16 of the UNCAT Available at http://www.hrweb.org/legal/cat.html
22
id. Article 17 of the UNCAT
23
supra note 21. Article 19
24
supra note 21. Article 20
25
supra note 21. Article21
26
supra note 21. Article 22
27
Available at http://legal.un.org/avl/ha/catcidtp/catcidtp.html
Human Rights Law

Since 1984, 155 states have ratified the UN Convention against Torture; these States
include all the leading democracies across the world. However, the world’s largest
democracy – India, is yet to ratify this convention. India signed the UN Convention
against Torture in 1997, but has not yet passed domestic legislation that will enable it
to ratify the Convention. India’s primary reason for not ratifying the UN Convention
against Torture is that its State laws are adept enough to deal with the crime of torture.
In this part of the paper I will make the reader aware of these state laws that combat
the crime of torture and shall try to bring about a conclusion on whether there is a
need for India to ratify the UN Convention against Torture.

There exist two sections in India’s Penal code under which crimes of torture can be
prosecuted. S.330 of the Code reads “Voluntarily causing hurt to extort confession, or
to compel restoration of property”28 whereas S.331 reads, “voluntarily causing
grievous hurt to extort confession, or to compel restoration of property.”29 These
sections though do not contain the word ‘torture’ they end up punishing any hurt or
grievous hurt caused to a victim to confess his/her guilt or to give information with
respect to a certain crime. These two provisions are in place to protect victims against
police personnel who may go to any lengths to obtain a confession. The scope of both
of these two sections also encompasses all those policemen who were present at the
time of torturing the victim but did not actively take part in the acts of inflicting
grievous hurt.30 Thus, passive participation by merely witnessing such acts of
voluntary causing hurt to extract confessions can lead to prosecution under the above
mentioned sections. Furthermore, India’s Evidence Act also protects potential victims
of police torture as it rules that that the ‘law would not admit into evidence anything
said to the police, unless, it substantially corroborated by the discovery of the fact in
consequence of the confession.’31

Perhaps, one of the most landmark step taken yet to combat torture in India, was the
passing of the ‘Protection of Human Rights Act’32 that came into force on the 28th of
September 1993. This Act provided for the establishment of the Human Rights

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
28
Available at http://lawcommissionofindia.nic.in/101-169/Report156Vol2.pdf
29
id.
30
Sham Kant Vs. State of Maharashtra, 1993:CrLC463pp472
31
Available at http://moj.gov.jm/sites/default/files/laws/Evidence%20Act.pdf S.27 of the Indian
Evidence Act
32
The Protection of Human Rights Act, 1993. Act 10 of 1994, with Amendment Act, 2006, Available
at http://nhrc.nic.in/documents/Publications/HRActEng.pdf
Human Rights Law

Commission at the Centre (National Human Rights Commission) and at each and
every state in India. Though the NHRC has in the past acted as a vigilante holding the
police accountable for its actions, it’s working had been severely hampered as the law
governing the act does not have sufficient teeth i.e. is not effective enough. To begin
with the Commission was set up with the view of being completely independent
owing no allegiance to any government body, however the law governing the
commission makes it depend on the Central Government for certain requirements
such as manpower and finances.33 Furthermore, the Human Rights Act does not allow
the commission to inquire into complaints of human right violations carried out by
members of the Armed forces.34 Now, ‘Armed forces’ has been defined in the Act to
mean the army, navy and air force, but this definition also encompasses various
central armed police organizations such as the Border Security Force (BSF).35 Thus,
NHRC’s potency in providing a remedy to individuals who have been victims of
torture by these forces (especially in disturbed areas) is greatly reduced.

The reluctance showed by the Parliament in equipping these commissions with a wide
range of powers has to a certain extent been balance via judicial activism in India. For
example the Hon’ble Supreme Court laid in DK Basu v. State of West Bengal36 laid
down a set of eleven guidelines to be followed in each and every case of arrest or
detention in order to maintain transparency as so as to not violate any of the
fundamental rights of the detained individuals. Furthermore, as explained above
through judicial activism passive participation to torture is an offence and the
judiciary has been more than just in distributing compensation to victims of torture
carried out by State officials.

The most specific (yet to be) law on torture would be the Prevention of Torture Bill37
passed by the Lower House (Lok Sabha) of India’s Parliament on 6 May 2010, and
currently before the Upper House (Rajya Sabha). This bill was tabled keeping in mind
India’s state party obligations under the UN Convention of Torture since the bill
explicitly states in its preamble that it was drafted in order to comply with the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
33
Dr. Krishan Vij, Dr. Dasari Harish, Dr. Amandeep Singh, Torture and the Law: An Indian
Perspective Available at : http://medind.nic.in/jal/t07/i4/jalt07i4p125.pdf
34
id.
35
Human Rights Act S.2 (a) Available at http://nhrc.nic.in/documents/Publications/HRActEng.pdf
36
1997(1) SCC 416.
37
Available at
http://www.prsindia.org/uploads/media/Torture/prevention%20of%20torture%20bill%202010.pdf
Human Rights Law

Convention on Torture. The Bill is definitely a step in the right direction; however, it
has faced severe criticism from various NGO’s, authors and the public. This criticism
is largely directed at the bill due to the fact that the scope of the bill is far from
satisfactory.38 Various jurists have commented that if the bill is being implemented to
comply with the UNCAT then it has failed miserably.39 The bill falters from the very
start in its definition of torture as the ‘definition completely fails to take into account
the width and ambit of the definition as provided in UNCAT’.40 The reason being that
the bill covers only acts causing grievous hurt or acts that endangers life, limb or
health. Whereas the definition of torture in the UNCA is also extended to acts that
cause “severe pain and suffering”.41 Furthermore, the bill has also attracted criticism
for its limitation to prosecute42 and lack of quantum of punishment.43

“In India, torture and other cruel, inhuman and degrading treatment in state detention
is common, and involves a range of practices including shackling, beatings and the
administration of electric shocks. Disadvantaged and marginalized groups including
women, dalits, adivasis and suspected members of armed opposition groups are those
most commonly abused.”44 Furthermore, the media and various protests have brought
this countries attention to the grave and brutal acts committed by the Armed forces in
the ‘disturbed areas’ under Armed Forces Special Protection Act. There is a dire need
to implement strong anti-torture laws in the country to eradicate this heinous act. The
Prevention of Torture Bill in its present form suffers from a myriad of loopholes and
definitional handicaps. The bill is definitely a step in the right direction however it
needs a complete revamp in order to synchronise it with the UN convention on
torture. The bill in its current form will remain a mere white paper law and with the
high threshold of torture fewer acts will fall under this bills ambit.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
38
Soni, Jitendra and Bagchi, Kanad, The Tortured Bill – An Analysis of the Prevention of Torture
Bill, 2010 (2011). Journal of Indian Law and Society, Vol. 2, Winter 2011. Available at
SSRN: http://ssrn.com/abstract=2481893
39
id also see http://www.wsws.org/en/articles/2010/05/indi-m20.html
40
id.
41
Supra note 37.
42
A limitation providing for a maximum period of six months from the date on which the offence is
alleged to have been committee
43
Clause 4 of the Bill provides for imprisonment for a term which may extend to a maximum of 10 yea
44
Amnesty report on India available at : http://14for2014.com/two.html
See also http://www.asianews.it/news-en/UN-Convention-Against-Torture-Ratified.-Hope-for-
Christians-in-Orissa-18102.html
Also see: http://www.thehindu.com/news/cities/Madurai/india-should-ratify-un-convention-against-
torture/article4424781.ece
Human Rights Law

CONCLUSION

India seems to be two-faced on torture laws in place in India. It seems quite apparent
that India prohibits torture in law but is promoting it in practice by choosing to turn a
deaf ear to the numerous torture cases occurring in India. What is perhaps India’s
biggest worry point that India seems to have become comfortably tolerant to acts of
torture committed by police personnel and other stated authorities. An example to
explain the same - in 2008 India basked in the success of Danny Boyle’s ‘Slumdog
Millionaire’ yet no one seemed to notice (let alone any form of a public uproar) the
scenes of police brutality and torture (such as electric shocks) imposed upon the
protagonist of the movie. Thus, it is the need of the hour to review India’s
lackadaisical attitude towards torture prevention in the country. India’s prevention of
torture bill is a step in the right direction, however, as shown above there is a dire
need for it to be revamped and synchronised in accordance with the UN Convention
of Torture.

Since India has made efforts to bring about domestic legislations in order for it to
ratify the convention it seems that it does not fear any challenges to its sovereignty by
‘extra powers’ given to the committee against torture. The only measure impeding
India from ratifying the convention seems to be a well-drafted domestic law
upholding the UN Convention against Torture. Furthermore, signing and ratifying the
Optional Protocol will enable a system of checks and will insure that no act of torture
goes unnoticed in the country. The importance of eradicating torture cannot be over-
emphasized. Freedom from torture is a core human right, and the struggle against
torture provides an opportunity to reinforce respect for the human personality and
civil liberties.45 The instances of torture, however few they may be in our country
cannot be eradicated till the prevention of torture bill is revised and sweeping reforms
are undertaken in our criminal justice system.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
!!!!!!!!!!!!!!!
!
45
Available at: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1304&context=iclr
Human Rights Law

…………………………………………………………………………………………
…………………………………………………………………………………………

…………………………………………………………………………………………
…………………………………………………………………………………………

…………………………………………………………………………………………

…………………………………………………………………………………………
…………………………………………………………………………………………

…………………………………………………………………………………………
…………………………………………………………………………………………

…………………………………………………………………………………………
…………………………………………………………………………………………

…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………