Mitakshara Goyal
“If anything is a human right, it is right to not be tortured”[1]
Torture is an impermissible act in any circumstance including war, public emergency and terrorist threats as stated under Article 5 of UDHR. However, the individuals of the non-parties to the treaty cannot make complaints in any international forum for redressal based solely on a violation of customary international law. So, such violations often carry consequences only where there is political will among other States to hold one another responsible.
This article analyses the development of jurisprudence in the international human rights law condemning infliction of torture by the states and its effectivity in the Indian context of Jammu and Kashmir. It further analysis the extent to which the individuals can exercise the rights vested in them against torture.
EXPLORING THE SCOPE OF TORTURE IN THE INTERNATIONAL HUMAN RIGHTS REGIME
Torture has attained great prominence in the human rights texts in furtherance of the Article 5 of UDHR. In 1966, ICCPR was the first international human rights treaty that expressly prohibited torture and other cruel, inhuman or degrading treatment for protection of both the dignity and the physical and mental integrity of the individuals as stated under Article 7.[2] The jurisprudence on prohibition of torture in the international framework was enhanced by the formulation of an entire treaty named United Nations Convention against torture (UNCAT),1984.
UNCAT defines torture as any intentional act causing ‘severe’ mental or physical pain caused a public authority and enlists several state obligations against torture. What is striking is the threshold of an act being ‘severe’ is undefined and open-ended. Though India has not ratified UNCAT, it does have an obligation to comply with the provisions against torture as stated in ICCPR as well as the general customary law prohibiting torture. India identifies the certain safeguards against torture to be embedded in the fundamental rights of individuals i.e. right to equality, rights to life and right to non-discrimination, to justify it act to not ratifying to the Convention against torture. The following segment analyses the extent of compliance and fulfilment of the state obligations by the Indian state in the context of the human rights violations in Jammu and Kashmir.
THE DISTURBING ‘DISTURBED’ AREAS: THE ARMY CENTRIC REGIME
The recognition of Jammu and Kashmir as the “disturbed areas”, allows the State to derogate from the ratified treaty of ICCPR, by legitimising the implementation of the Armed Forces Special Powers Act (herein AFSPA) by the military and paramilitary officers. Under this Act, armed personnel enjoy immunity under Section 6 AFSPA which prohibits prosecutions of members of the security forces unless approved by the Union Government. The case of Naga People’s Movement of Human Rights vs. Union of India, upheld the constitutional validity of AFSPA denying the powers to be arbitrary or unreasonable. However, the judicial bench undermined the obligation of India under the international convention of ICCPR and customary international law. Implementation of AFSPA amounts to accumulation of unfettered powers in the hands of the security personnel in violation to the Article 4 of ICCPR which lays down the guidelines of derogation.[3]
AFSPA has been enacted without such an official proclamation of emergency without informing the other State parties to the ICCPR. [4]Furthermore, its specific applicability on the Kashmiris in India, makes it discriminatory and has disproportionate outcomes on the grounds of ethnicity as well as social origin. However, India being a state party has neither complied with the conditions of derogations nor has it met the state obligations of non-discrimination, protection of life and prohibition of torture. These arbitrary impermissible derogations to implement AFSPA make us question the effectiveness of the human rights treaties to protect the individuals from the state party.
The following segment would analyze the effect of the operation of the military courts for redressal mechanism on the rights vested with the citizens of Jammu and Kashmir.
MARTIALLING THE COURT MARTIAL
Under AFSPA, the severity in the human rights violations are enhanced with the lack of transparency and accountability which initiates space for impunity enjoyed by the military officials in Jammu and Kashmir. The system of prosecution of military officials in the military courts itself seems to attack the effective realization of the rights that the citizens hold with respect to fair trial and equality as upheld by the Indian Constitution. This basically allows the military officials to escape the civil judicial processes in state courts and to be prosecuted in military court. It is an evident case of politics playing a role in the ground level implementation of safeguards by the ratified human rights treaties that aren’t enforceable against the state in such circumstances. Though there seems to be formal equality with conferring right to life and equality with all the citizens, the minority in the Jammu & Kashmir and north-eastern region cannot effectively realise it. This is problematic as the safeguards don’t provide any mechanism to effectively attain substantive equality i.e. equality in outcome.
In the present context, though it is argued that the millions of cases against the human rights violations and extrajudicial killings have been filed and prosecuted in the military courts, the effective realisation of the rights of the civilians to fair trial and equality before law as upheld in the case of DK Basu v. West Bengal[5] is in question. However, these rights were upheld in normal circumstances where no special powers are vested in the hands of the officials as in the case of Jammu Kashmir. The safeguards enlisted in the case along with the procedural codes have been flouted using excessive interrogation and custodial torture methods such as waterboarding, handcuffing, sleep deprivation, physical torture, arbitrary arrests and electrocution. This highlights the denial of rights of equality to the citizens of Kashmir in terms of accessing their fundamental rights such as Article 21 as compared to the rest of the ‘non-disturbed regions’ of India. It further denies the rights of an individual to non-discrimination, as they are denied proper access to impartial and transparent judicial framework on the grounds of their ethnicity and social origin.
The constituents of fair trial entail accountability and impartiality and transparency which are not fulfilled in the cases of Court martial procedure against the allegations on the military personnel. Since the military is a judge in its own case, makes it extremely difficult to obtain a decision in favour of the tortured. Also, the trial is held in the army cantonment itself that makes it highly intimidating for the complainants to express the gross violations and face the military bench. This denies the citizens their fundamental right to equality as they are unable to approach the civil judicial procedures as the rest of the ‘undeclared Indian states’ by virtue of being residents of Jammu and Kashmir. They are denied their fundamental right to life due to the extrajudicial killings and arbitrary killings by the military under the so called’ active duty’. This is further a gross violation of the international provisions imposing obligations on the state to ensure equality before law and non-discrimination as stated in the ICCPR. This is in stark contrast to the transparent system along with safeguards observed in the case of Lawless v. Ireland [6]and Ireland v. UK[7]. In the Lawless case, the detention imposed by the Irish government on Lawless was upheld by the Court considering the multi-layered safeguards such as the detention commission which further had redressal mechanisms to the district courts.
EXAMINING THE SCOPE OF SPECIAL POWERS WITHIN THE STATE OBLIGATIONS FOR PROHIBITION OF TORTURE.
Taking an absolutist approach on the prohibition of torture seems to be unfeasible in circumstances of insurgency and catastrophe where absolute ban on torture is not morally defensible. It is a dilemma between the human physical dignity of a suspected terrorist versus the lives of several innocent people. The Indian state justifies their disruptive forces stating that Jammu and Kashmir is highly vulnerable to strife among resident communities and has secessionist tendencies for which AFSPA in the so called disturbed areas. However, the measures for its reappraisal need to be formulated to fulfil the state obligation. This indicates that under exceptional circumstances the public officials can act extralegally, however they should be made accountable and subject to the legal ramifications unless justified.
What lacks in the exercise of special powers in India is the accountability and a transparent legal appraisal for the acts done under the special powers which creates scope for misuse and arbitrary use of powers. The state needs to protect and fulfil the rights of individuals against torture by constructing a comprehensive mechanism of impartial and transparent redressal which holds the accountability of the individuals. [8]Moreover, monetary compensation schemes should be reinstated for not only the victims but the family which is severely impacted by the torture especially in cases of enforced disappearances. Further, to fulfil the state obligation, the state should train the officials how to act without inflicting torture and reducing the impacts of indirect torture caused during interrogation procedures. Further, India should ratify the UNCAT and its optional protocol to enhance the redressal mechanism against torture.
[1] Steiner and Alston, ‘Torture Revisited’, Page 224.
[2] Steiner and Alston, ‘Torture Revisited’, Page 224.
[3] General Comment 29, State of emergency, ICCPR
[4] Legal Analysis of AFSPA, https://exposingafspa.wordpress.com/tag/afspa-legal-analysis/
[5] (CRL) NO. 592 OF 1987
[6] ECHR 1 Jul 1961.
[7] (1979-80) 2 EHRR 25
[8] Denied’ Failures in accountability in Jammu and Kashmir, Amnesty International report
Society of International Law and Policy 