Human Rights and Torture
“When the fundamental principles of human rights are not protected, the center of our institution no longer holds. It is they that promote development that is sustainable; peace that is secure; and lives of dignity.” – Former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein.
The paramount concern of every democratic nation is to ensure liberty and uphold the dignity of its citizens. In this era of globalization, any incident of violation human right is of pivotal importance to the world at large. Expanding the horizons of human rights on one hand and increasing crime rate at other, is a challenge to the law enforcing agencies. Human rights and torture are antithetical terms. Torture is considered to be the gravest human rights violation and the human rights can also pr protected be curbing this evil.
At the outset it would desirable rather pragmatic to take into account Article 3, of the Human Rights Convention (ECHR) which declares that, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This article in other words conveys that torture is contrary to human rights and human dignity. The United Nations bans torture completely: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. George Ryle Scott in his book “The history of torture throughout the ages” has revealed that torture was employed by various communities either in their religious rites or its code of punishment. But, in either way it results in grave human rights violations. Again Article 5, of the universal declaration of human rights guarantees freedom from torture and degrading treatment. The right to freedom from torture is enshrined in the various conventions for protection of human rights & lay stress on protection of a person from any form of torture or degrading treatment. The prohibition from torture is a part of international customary law and also a part of jus cogens. Therefore, prohibition of torture is one of the most recognised human rights, has attained the status of jus cogens or peremptory norm of general international law, also gives rise to the obligation erga omnes(owed to and by all the states) to take action against those who torture.
Torture, the infliction of severe physical or mental pain or suffering for a purpose, such as extracting information, coercing confession, or inflicting punishment. It is normally committed by a public official or other person exercising comparable power and authority. It is a form of crudity and barbarity which is horrifying for the modern civilization. Torture can also be defined as intentional subjection to severe physical, psychological distress by, or with the approval or acquiescence of government agents acting for a purpose, such as to obtain information. Torture is the severe form of barbarity which can be inflicted on a person and thus depriving him of his basic, fundamental, inalienable human rights. Though the effectiveness of the torture has been defended in past by some notable people such as Aristotle and Sir Francis Bacon, but their approval of this inhumane treatment can never justify the barbaric act. The rationale behind torture was thought to be that it was necessary to get the truth out and to prevent the grave injustice; however there are numerous other forms of revocable punishments which can be employed to meet the end. A criminal should be dealt in such a way that his criminal intent is eliminated and at the same time justice is served. Such methods should be employed which would serve the purpose of killing two birds with a same stone. The criminal should be dealt in a manner which would make him a better citizen, make him realize his mistake, punish him but at the same time make him a better human being who would easily be accepted by the society. Torturing a person serves none of the purposes. It might punish the person, however it does more harm than good. There are many harmful effects of torture on a person, to count a few, long-term psychological problems reported by survivors of torture are usually classified as trauma, anxiety, depression, and, more rarely, problems of a psychotic nature, but health problems including pain are very frequent, and may include serious disease.
Torture can be inflicted in a number of ways. It can be either physical or psychological and in either way it does a lot of harm to the victims. Depriving a person from sleep impairs the normal functioning and performance of individual which amounts to mental and physical torture as it has very wide range of negative effects. Torture has always been frowned upon by the Honourable SC. In D.K Basu v. State of West Bengal the Supreme Court observed that: “torture has not been defined in the constitution or in other penal laws. ‘Torture’ of a human being by another human being is essentially an instrument to impose the will of strong over weak by suffering. The word torture today has become synonymous with the darker side of human civilization”. Torture and inhumane, degrading and cruel treatment and punishment grossly violate human dignity. The Supreme Court has implied a right against torture, etc by way of interpretation of Article 21 which deals with Right to life and Liberty. Article 21 provides that nobody can be deprived of his life and liberty without following the procedure established by law. The Supreme Court has consistently held that custodial torture violates right to life enshrined in Article 21 of the constitution. In Sunil Batra v. Delhi Administration, the Supreme Court in crystal clear words held that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration”. In Khatri (II) v. State of Biharalso known as Bhagalpur Blinding case, the Supreme Court answered in the affirmative the question of granting compensation to the victims who suffered police atrocities by saying that if compensation was not granted to the victims, then Article 21of the Constitution would be a mere rope of a sand. Finally, three police officials were found guilty due to their involvement in the gruesome and of blinding of the under trials. From the above mentioned judgements it is clear that right against torture, which is a human right, has been incorporated in Article 21 by way of interpretation and the fundamental rights cannot be taken away from a person even when he is incarcerated. Laws against torture are stringent, but these laws need to be brought to life in order to prevent the grave injustice inflicted upon people by way of torture.
Torture is an abominable act, a disregard and disrespect to the dignity of a person and violation of one’s human rights. Torture has a profound influence on a person. It leaves a person physically damaged and mentally harmed. The aftermaths of torture include depression, anxiety, hallucinations and in certain cases it can lead to self harm. A victim of torture usually loses self esteem and self worth. They don’t think themselves to be fit to be reintegrated into the community. The family of the victim also faces the brunt of the burden. Thought India has strict laws and procedures in place, including guidelines from the National Human Rights Commission to protect against torture as well as accountability in case of violations but police still very often inflicts torture on the suspects to punish them, to gather evidence or to coerce confession. The former Supreme Court judge V.R. Krishna Iyer, J., has said that custodial torture is worse than terrorism because the authority of the State is behind it.
It’s a nastiest crime prevailing in any civilized society. Torture in police custody is the harsh reality that world is facing today. Incidents of such heinous crime can be traced in our society, despite the fact that such inhuman act, time and again has been criticized by Universal declaration on Human Rights, other International Conventions, Indian Constitution and Judiciary. Though the law empowers the police to arrest a suspect and put them behind the bars in no way authorizes the officials to abuse their power & take law in their own hands. Being incarcerated in no way deprives a person of his basic, inalienable human rights. A procedure is laid out by the law and the adherence to the set procedure is the duty of all. Fear of being punished should prevail among all, including the authorities, especially in a country that preaches the principle of rule of law.
Bottom line: “In a race between protection of human rights and its violations, human rights must win and prevail.”