A great betrayal 

A great betrayal 

Context

State impunity continues for acts of torture. Lawmakers and court have not stepped up to their duty

Backdrop

On February 19, 2016 Ashwani Kumar, a senior advocate and former Union minister of law, filed a petition before the Supreme Court of India to ensure a standalone law compliant with the UN Torture Convention. On November 26 (otherwise the day on which the Constitution came into force), the SC dismissed the petition

Basis of dismissal

Relying on judicial observations as widely reported in the media, the court mentioned three related grounds

• First, Chief Justice DipakMisra asked: “How can we compel the government to make a law? Can we ask the government to ratify a treaty by way of a mandamus?”
• Second, Justice D.Y. Chandrachud said “the government has to take a political decision on whether it should ratify the treaty”
• Third, when Ashwani Kumar maintained that it was the duty of the court to fill the gaps in written law, Justice A.M. Khanwilkar observed: “But it is a policy matter”

Disappointing

• The learned chief justice was correct in the abstract but disappointing in the context; the petitioner did not ever ask for a mandamus in the first place because it would violate the supremacy of Parliament in its own legislative domain
• The prayers before the Court did not ask for enforcing a treaty by a court order. The question of compelling the legislature to make a law also never arose

SC has used this power before

The suggestive jurisprudence of the SC is as old as the court itself and the petitioner painstakingly demonstrated this. The SC has used this power on many subjects concerning, for example, participative decision-making, forest rights, right to information, ragging on campus, right to education, judicial services, inter-country adoptions, consumer jurisprudence, sustainable development law, and privacy rights. The SC remains open to nudge a slow moving legislature into quick action

State consent not required

If the anti-torture norms have become part of customary international law binding on all states, does not the constitutional concern require the Indian state to follow it? The 273rd Report of the Law Commission has now clearly stated that anti-torture norms are norms of international law, which do not depend on state consent

Present situation

• Although from 2007 onwards India has committed to taking steps to ratify the torture convention yet no steps have been taken to enact a suitable enabling law required for accessing the UN convention, which is what the RajyaSabha Standing Committee did after hearing all concerned parties
• In preparing a bill, consented to by all political parties, the committee functions as a mini-Parliament and its draft bill should have been enacted.

SC directions

• Very recently, the SC issued directions about extra-judicial killings in Manipur. Many states especially urged India (in the Universal Periodic Review, 2012) to “finalise” accession to the UN Torture Convention, endorsed by the UN Human Rights Council
• Neither “internal political compulsions” and “weaknesses in the implementation” may produce legitimate law. If, as the SC has recognised, “even while dealing with the ‘enemy’ the rule of law would apply” and “police or the armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable”, should the norm for dealing with co-citizens be any different?

Relevant questions

• How does it happen that custodial deaths, custodial and interrogational torture are rarely prosecuted?
• Why do state apparatuses continue to tolerate such abuse against human dignity and rights when a code of law reform and a speedy ratification of the UN Torture Convention remain available?

Conclusion

State impunity for acts of torture must surely find a dignified funeral at least after seven decades of India’s independence

Read More: This issue has also been covered here