Torture and impunity

Print edition : December 13, 2013
Two books portraying in disturbing detail the harm impunity can cause to persons in custody and to those belonging to vulnerable sections.

IS the torture of a prisoner by an investigator justified? Our initial answer to this question, if we believe in liberal values, will most certainly be no.

What if the prisoner in question claims to possess information about an imminent terrorist plan that might result in the loss of innocent lives? The answer to this question, especially in the United States after 9/11, and in Israel even earlier, takes on a utilitarian cover. It is argued by apologists for state-backed torture of prisoners that extreme measures to extract information that stave off future terrorist attacks are justified. Called “ticking-bomb theory”, advocates of this school of thought suggest that defusing the bomb by extracting the necessary information from a person by torture will save millions, so the needs of the many outweigh the rights of one. They further contend that such extreme measures are legally justified by the defence of necessity.

But critics of this approach warn that there are dangers of expansion, escalation, and institutionalisation of torture once it is allowed in a ticking-bomb situation.

Besides, researchers have revealed that torture does not always work, and that even torturers have admitted as much. They have found that the torture of prisoners has the potential to intensify conflicts, prolong them, deepen dehumanisation and the hatred of the enemy, while impeding efforts at reconciliation.

Therefore, seasoned academics recommend that while we must do everything humanly possible to save lives that are at risk (in a ticking-bomb scenario), we should not take any step that involves losing our own humanity. An absolute ban on torture or ill treatment of another human being, whatever the circumstances, is thus considered justifiable on two grounds: one, true ticking-bomb scenarios are rare and even more rarely appropriately recognised at the time of their occurrence; second, it is substantially more fair to punish the rare torturer who gets it right (who uses it as an effective tool of investigation of an imminent crime) than to inflict legalised torture on innocents.

In South Asia, the defence of necessity and ticking-bomb scenarios are rarely invoked publicly to justify the torture of prisoners. Most often, torture in custody takes place in order to extract confessions for crimes which have already been committed. Concerns over security are sometimes invoked to defend torture or to allow a torturer to go scot-free. But the grounds for the criticism of torture justifications in the West are also applicable to the defence of torture elsewhere.

Custodial torture

In Custody by Nitya Ramakrishnan, a well-known lawyer in the Supreme Court who has defended several accused persons in terrorism-related cases, is a welcome contribution to the subject which is marked by lack of good literature and serious documentation. Reviewing how six countries in South Asia—India, Pakistan, Bangladesh, Sri Lanka, Afghanistan and Nepal—have equipped their systems to tackle custodial torture in one book is an ambitious exercise which she has performed extraordinarily well with the help of researchers. She begins with the stark irony that custodial torture does not stir the collective conscience though it may outrage many of us as individuals.

It is a fact that custodial torture is rampant in all these six countries. But the response of the states to the demand to curb custodial torture varies. While India has failed to ratify the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Nepal, Sri Lanka, Bangladesh and Afghanistan have ratified CAT. CAT is an important norm, ratification of which obliges a nation to enact laws to penalise custodial torture and to provide reparation. It also obliges a nation to allow inspection by international monitoring agencies.

All the narratives in the book describe the imperviousness of the legal systems to norms of justice, with remedies far from being certain or easy to access. As she explains, this impunity is fed by the notion that there is a public purpose to custodial torture and that conditions of prior sanction and other statutes of limitation protect perpetrators. In a sense, this is more indefensible than the ticking-bomb scenarios relied on by the apologists for torture in the West.

Rightly, as recommended by India’s Law Commission and also Bangladesh’s, there must be a presumption of guilt on the part of the custodial officer once injury or death in custody is established. She also suggests forming an independent investigating agency to prosecute custodial crimes.

Of relevance is the very definition of torture. The author rightly subscribes to the notion that pulling out nails is not the only form of torture and that to be subjected to a “truth test” while in custody is by itself custodial excess.

CAT defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person... by or at the instigation of or with the consent or acquiescence of state actors, as part of interrogation, punishment, intimidation, or discrimination. CAT also stipulates that no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture. CAT enjoins states to take effective legislative, judicial and administrative steps to prevent torture, to ensure that acts of torture are made criminal offences; to prevent the use of torture in detention and arrests; and to prevent torture-induced statements from being used as evidence.

Serious flaws

The book has a critique of the Prevention of Torture Bill, 2010, passed by the Lok Sabha without much discussion. The definition of torture in the Bill is inconsistent with that of CAT and is limited to custodial violence resorted to in order to extract a confession. Besides, the Bill suffers from other serious flaws. The Select Committee of the Rajya Sabha submitted a report in December 2010, making several key suggestions for addressing these flaws yet the ratification of the Bill is not in sight. The author agrees with most of the committee’s recommendations and, in addition, has suggested some more changes to make the Bill effective.

The highlights of the section on India are chapters 8 and 9. “Perspectives on Torture” includes interviews with the former Central Bureau of Investigation Director D.R. Karthikeyan, who had also headed the Special Investigation Team of the CBI that probed the Rajiv Gandhi assassination case. The reader is informed that the investigation in this case was marked by a remarkable absence of unethical or third-degree methods.

Karthikeyan quotes Murugan, one of the accused in this case, telling him that once he noticed a National Security Guard officer carrying a loaded pistol in his hip pocket and that he could have easily removed it and aimed it at the officer in order to escape. “I did not do that because you had treated us with humanity,” Murugan is said to have told Karthikeyan.

Karthikeyan tells the interviewer that questionable methods and third-degree measures do not necessarily lead to the truth. “Very often the victim (the accused) admits to something which he has not done or gives some story that satisfies the officer, just to avoid torture for the time being at least.... Going by various allegations and theories will only take the investigation in the wrong direction, resulting in harassment of innocents and helping the guilty in destroying evidence and in escaping the consequences of the crime.”

Torture as a shortcut

Torture, according to him, is used by the police as a shortcut to get out of the hard, laborious and time-consuming task of investigation. Torture will leave physical marks, so unless there is a connivance on the part of the magistrate, it cannot go undetected, he says.

Despite serving with the National Human Rights Commission, Karthikeyan is of the view that confessions to police officers should be allowed with adequate safeguards. His view is the opposite of the former President, R. Venkataraman, who is approvingly quoted by Fali S. Nariman in his foreword to the book: “The recording of confessions even by a magistrate is a meaningless farce. In my view, confessions should be rendered inadmissible as evidence. The accused, if he wants, could plead guilty to the charge in court. A great number of custodial deaths and brutality would disappear if confessions are rendered worthless.”

Case studies

Chapter 9 includes six case studies based on personal interviews. The interview with Prof S.A.R. Geelani, an accused in the Parliament attack case who was later acquitted by the Supreme Court, reveals the extent of torture used by the police while investigating the case, and is likely to shock any reader. If the state had an excuse to torture Geelani on the grounds of national security (which the state did not have because he later turned out to be innocent), the remaining case studies involve ordinary victims, including a rape survivor who allegedly committed suicide and a transgender. The reader can find similar case studies in the sections on Bangladesh and Nepal. The last chapter, Epilogue, has a useful agenda of action for activists.

If the recurrent theme in Nitya Ramakrishnan’s book is impunity, which she diagnoses as the main factor behind rampant custodial violence, the same factor is also cited as the reason for the frequency of mass crimes in India in the second book under review, Pursuing Elusive Justice.

The editors of the book, Vahida Nainar and Saumya Uma, are both associated with the Women’s Research and Action Group, Mumbai, and have for long been campaigning in favour of India joining the International Criminal Court (ICC). The book has 13 essays, contributed by the editors and other authors, on different aspects of mass crimes in India and the adequacy of laws to deal with them. A stimulating foreword by the legal scholar Upendra Baxi is an additional bonus to readers.

Baxi observes in his inimitable style that the doctrine of state “immunity” is a close cousin of impunity, and this book illustrates how languages of immunity become a grammar for impunity, cancelling the achievements of Independence and the making of the Indian Constitution.

Baxi makes a persuasive case for India’s ratification of the ICC treaty. Called the Rome Statute, it was adopted at a diplomatic conference in Rome on July 17, 1998, by a majority vote of 120 countries voting in favour. India was among the 21 countries which abstained from voting, thus dissociating itself from the emerging consensus on the need for an international justice mechanism.

Objection to ICC

India’s conscientious objection to the ICC treaty is based on the ground of sovereign equality of all states within international law. However, India’s justification did not carry much weight with many states of the global South, which ratified the Rome treaty. Baxi argues that now that India is seeking an expansion of the permanent membership of the U.N. Security Council, its initial principled objection loses ethical cogency. The book, according to him, is a timely and poignant reminder why the Indian state ought to revisit its earlier shameful stance of not wanting to join the ICC.

In her essay, Vahida Nainar explains how impunity is written into the laws in India that require prior state sanction for prosecuting state officials. Thus, when the CBI investigates situations of mass crimes, they proceed against persons who were directly involved in the crime and not against the leaders and those in high positions of power who may have conspired, directed or presided over the crimes.

Core crimes

War crimes, genocide and crimes against humanity are three core crimes/ jus cogens (a fundamental principle of international law accepted as a norm from which no derogation is permitted) and prohibitions under the jurisdiction of the ICC Statute. The requirement of establishing special genocidal intention and targeting of irreplaceable groups makes genocide different from crimes against humanity.

Crimes against humanity require that the criminal acts are part of a widespread or systematic attack to further a plan or a policy. Elements of crimes against humanity could be applied to almost all situations of mass crimes, including acts of terrorism, argues one of the contributors to the volume.

Siddharth Narrain, working with the Alternative Law Forum, exposes the homophobia of a number of countries that want to keep explicit referral of sexual identity and orientation out of international instruments, in defiance of the spirit of international human rights standards that prohibit discrimination on any basis. He feels that the ICC Statute has the potential to deal with persecution specific to sexual minorities, who are more vulnerable to physical violence because they are very visible.

Saumya Uma, in her essay, describes the insensitivity of the Indian legal system to women in its refusal to take into account the reality that women often do not volunteer information of sexual abuse for various sociocultural reasons. Her study of the crimes committed during the Anti-Veerappan (sandalwood smuggler, who was killed in an encounter) operations amply bears this out. A review of the legislation prohibiting atrocities against Dalits is the subject of another essay.

Other essays in this volume deal with enforced disappearances, life sentence as alternative to death penalty, and victims’ rights. In his essay, Bikram Jeet Batra laments that the discussion on punishment and sentencing in India remains hostage to emotional public opinion and the concerns of domestic politics. To Batra, whole-life sentence without the possibility of release is as regressive as the death penalty, and the judiciary’s support to whole-life sentence as an alternative to the death sentence is inconsistent with the ICC’s exclusion of both.

Both the books are timely reminders to strengthen our legal system so as to eschew impunity provisions that come in the way of ensuring justice to victims of custodial torture and mass crimes.