India: Time to put promises into action. A call for ratification of UN Torture Convention and the adoption of a strong anti-torture law

Geneva, Nov 8: A two-day conference onanti-torture legislation in India has underscored that 11 years after signingthe UN Convention AgainstTorture (CAT), Indiahas still not ratified it nor passed a national law on the issue.

The Commonwealth HumanRights Initiative (CHRI), theWorld Organisationagainst Torture (OMCT), People’s Watch, Quill Foundation, the InternationalCommission of Jurists and Project 39 A from the National LawUniversity, Delhi,conducted the conference “OnStrengthening Legal Protection Against Torture in India” onOctober 26 and 27, 2018 with nearly 80 experts, lawyers, academics, journalistsand activists.

The conference, which saw theparticipation of Claude Heller, Vice-President of the UN Committee AgainstTorture, and OMCT Secretary General, Gerald Staberock, aimed to mobilize civilsociety and to urge the Indian Government to ratify the UNCAT as well as tolegislate an effective domestic anti-torture law, which is to these days stilllacking. The experts also benefitted from their presence to discuss the ratificationof the Convention with the National Human Rights Commission (NHRC) andrepresentatives of the Ministry of Justice.

The United Nations Torture Convention isthe universal blueprint and global consensus on the eradication of torture andcruel and inhuman or degrading treatment. It is paradox that the worlds’largest democracy stays outside this system alongside North Korea and a fewother states. The Indian Government has now repeatedly pledged the ratificationof the UN Convention Against Torture, including twice to the United Nations inthe course of the last year, and has been questioned by the Indian SupremeCourt on this issue. The participants agreed on the urgency of ratification andmaking this process spearheading domestic anti-torture reforms.

The backdrop for this conference was acountry that claims to consider torture “alien” to its culture, while turning ablind eye to the hundreds – perhaps thousands – of instances of torture andill-treatment and custodial deaths that surface in India every year. Indeed, paneliststook a very strong view of excesses by police and paramilitary forces acrossthe country; especially in vulnerable areas such as Kashmir or Chhattisgarh,where torture is rampantly used by the State as a weapon against dissents.

Justice (Retd.) A.P. Shah, the formerChairman of the 20th Law Commission of India, strongly condemned the tacitacceptance of this practice. “Some judges are convinced that withouttorture, evidence-gathering and subsequent conviction is not possible.”, hesaid. “This acceptance of torture in India is an open secret and [torturous]treatment meted out to certain communities is accepted as par for the coursefor “justice and safety” of the country”. A common misconception, according toFrederick Rawski, Asia Pacific Director of the International Commission ofJurists who stressed that the abolition of torture, on the contrary, “unitespeople in their support for the police, the judiciary and other statemechanisms and thus serves to strengthen national security."

The discussions highlighted a shared concern over thedenial of the Indian government to recognize torture as a specific crime. In 2017, the Law Commission of India recommended the government toratify the UNCAT and frame a standalone an anti-torture law, of which it proposeda draft; however, while a step in the right direction, the draft bill proposed by the Law Commission does notbare essential requirements for a solid law.

As a consequence, torture in India oftengo unreported, also due to a failure of doctors to report on torture. “Even in the NCRB (National Crimes Record Bureau),torture never figures as a reason for custodial deaths. There is a generallack of outrage against this institutionalized brutality by law enforcementagencies,” said Jinee Lokaneeta, a rights activist, writer and professorat Drew University in New Jersey.Stressing on the need for doctors toprovide detailed medical reports on torture victims and for a reform of thepost-mortem process in custodial deaths, members of Human Rights Watch showed with examples how glaringly obvious instancesof death by torture are consistently denied by the medical establishments.

Panelists also emphasized that India, asthe world’s largest democracy, must ratify the UNCAT.This is even more neededconsidering that India has recently joined the UN Human Rights Council, andhas, in the process, made an array of promises to defend human rights.

“The UNCAT might not be the solutionalone, but it is definitely part of the solution. And we can use it to come toa solution ” said Gerald Staberock, Secretary General of the OMCT. “We havelearned all over the world, that ratification and commitment to the Conventioncan be a turning point making protections real. Governments, civil society andespecially national human rights institutions around the world have taken alead in this process around the world. It is time for India to do the same andjoin the universal anti-torture movement”.