TORTURE: ASIAN AND GLOBAL PERSPECTIVES | APRIL 2012
VOLUME 01 NUMBER 01
Bijo Francis of the Asian Human Rights Commission shares insight about his way of addressing the issue of torture in India. Mr. Francis refers to human rights defenders as ‘pathfinders’ when working against torture. “We have to find our own way of dealing with the issue, and there are no exact models that would work everywhere when working against torture,” says Mr. Francis.
The following is an excerpt of the interview:
How would you define Torture?
Torture, as with other crimes, is legally defined in the International Convention against Torture as acts by which severe pain or suffering, whether physical or mental, is intentionally inflicted on an individual to extract information or a confession, to punish for an act he or some other person committed or is suspected of
having committed, to intimidate or coerce to as a form of discrimination when pain or suffering is inflicted at the instigation, consent or acquiescence of a public official or some other person acting in an official capacity.
Torture also generally has a more fluid working definition which varies with context and according to existing local power structures. These power structures determine the use of intimidation and fear by power centres to control other actors. This working definition of torture accommodates varying intensities of physical and mental suffering in different geographical and cultural contexts, and is related very much to the imagining or conception of justice that prevails in any given society. Although discrimination, recriminations and inadequately developed or corrupted judicial systems are factors that predispose state agents such as the
police to carry out torture, torture can itself be an indicator of the possibility of justice in a particular society. If torture is utilized to extract confessions carrying inordinate weight in a criminal justice system, it would be easy to fabricate charges against that person and simply hurt him or her into an admission of guilt. Torture, in other words, is a manifestation of impunity and injustice in state-sponsored or state-affiliated agencies as well as in the wider society.
So the question of torture is not just a legal issue? How else is torture a problem, and what distinguishes it from ordinary crime?
Yes, torture is not just a legal issue, though without legal remedy, torture cannot be effectively addressed. The nature of the crime itself speaks for the fact that torture is just not a legal issue. Today, torture is held as a crime against humanity. It has a direct bearing upon the legal system as well as the social psyche of a society. Its practice negates all basic notions of justice, most importantly of equality and fairness before the law, presumption of innocence and a human’s inherent dignity. It has also been established that torture is traumatic and has the capacity to permanently damage the psychological well-being of a person, irrespective of whether the person is a victim or a witness. Torture is, as such, not a crime that hurts only the victim, but also the perpetrator and everyone else who witnesses the incident. Studies conducted in psychology and psychiatry proves this.
This means, for instance, in a country like India, where the practice of torture is endemic to police procedure, torturing a suspect or convict to intimidate, extract a confession or information has become a norm rather than the exception. Many police officers at the stations suffer severe psychological problems, making them unfit to protect citizens and property. Countless victims of torture also emerge from these same police stations forever scarred by their experiences.
Torture, being routine, is implicitly accepted as a means for investigation. Many law enforcement officers perceive torture as an essential tool, even if it has been shown to be an unscientific and crude method of investigation that even corrupts that standpoint of the investigating officers. It then becomes difficult to justify or prove the neutrality of the investigation. Victims are usually humiliated and animalised in order to make such violent methods justifiable; policymakers and bureaucrats to this day believe that there is nothing morally reprehensible in “pre-emptively” punishing a suspect, even if he has not yet been convicted. Even if the person was a convicted criminal, torture cannot be employed against that person – as a human being, he has an inherent dignity that other human beings must respect, having a moral duty to protect that dignity. By arbitrarily robbing another person of his dignity, we lose our own as well. Dignity and justice are abstract and indivisible fundamental principles that necessarily supersede the constructed legality of statutes – the human race either has it, or lacks it, altogether.
Are there perhaps institutional fault lines that are revealed through the practice of torture, and what does this mean for the countries and regimes involved?
Sometimes torture occurs due to a lack of
awareness about the serious criminality of the practice. Many law enforcement agencies, paramilitary and military forces may not even shy from admitting such practices exist. Imagine the magnitude of such insensibility extended to the policing of 1.2 billion people all over India in over 11,840 police stations. In 1892, Swami Vivekenanda called Kerala a lunatic’s asylum after witnessing first-hand the extent to which caste-based discrimination had gripped society. With the practice of torture rampant in India, one could sadly attribute to the entire nation the same. And what about the rest of South Asia, where torture remains a non-issue?
Torture neither promotes democracy nor supports the rule of law. On the contrary, torture, whether openly or clandestinely used, undermines democratic governance. A state that condones torture cannot progress in any form because there is no judicial system the people can have faith in to protect their rights to life, liberty and security of person, to freedom of opinion and expression, of movement and residence, of association. Against the almighty state, the growth of civil society and platforms for dissent will be stunted and frameworks of justice weak. So you see, torture goes far beyond being a crime. It destroys teamwork, morale and conscience amongst those who carry it out, and irreversibly damages victims’ bodies and psyche. Torture breeds anger, distrust and hatred for the authorities amongst the people who in the first place award them the legitimacy to rule. Such Machiavellian tactics therefore endanger existing regimes, divide communities and devastate national unity.
Perhaps you could give us an example from India?
In India, we have some of the worst justice institutions in the world. Many might attempt to counter this argument by quoting a few judgments of the Supreme Court and the relative independency of the judiciary. Yet the judiciary in India can only appear better in comparison to perhaps the other countries in the South Asian sub-region. To begin with, torture is still not considered a crime in India, nor has it been outlawed. We boast the longest delays in adjudication, the most ill-trained or passive prosecutors and the shoddiest investigative processes. This will persist as long as the state considers the strengthening of justice mechanisms a threat to its authority. The appalling new law, The Prevention of Torture Act, 2010 proposed by the government of India against torture testifies to this. Torture is clearly not the only reason for this horrendous state of affairs. Yet it plays an important role in the deterioration of judicial processes and institutions in India. There is simply no validity in a trial based almost entirely on statements and confessions extracted under torture, and in criminal law that permits prosecution on the basis on such. India has developed its own style of witch hunting, and where is the justice in that?
By resorting to torture, police officers unknowingly cry out for more advanced training that will give them more effective interrogation techniques or a better understanding of the law. Police officers are themselves demoralised by the corruption of institutions and their work through poorly executed investigations, fabrication of charges manipulation of evidence and confessions under coercion – these make a mockery of their calling. Justice should in itself be as primary motivation and noble end
goal for law enforcement agencies. Having this conviction would inspire self-discipline and internal regulation that will restore the reputation of law enforcement personnel and agencies.
To expect justice where torture is routine is simply illogical. Any sort of legal and paradigmatic reform has to begin with the rooting out of such practices.
Why does the State commit acts of torture?
Torture, in very simple terms, is violence committed by the state against individuals or groups. Use of violence is a crude means to perpetuate fear. States resort to intimidation to maintain societal order; order as interpreted by the state or those who control the affairs of the state. Consider, for instance, the police. It is the state institution that has the most frequent and direct contact with the people. In many countries it is through the police the state runs its business of maintaining order. Yet the police can also be a terrifying force with which the state manipulates and silences its people. The police can be deployed to restrain the media, public opinion and movement that express sentiments opposing the government and its policies.
Torture just as effectively propagates hatred for authority, and this is a cost many authorities choose to bear when actively or passively complicit in such practices. Politicians and dictators worldwide condone torture by their own police and military institutions for two reasons. One, the acts are orders communicated to these powerful arms of the state from the centre eager to subjugate the entire population through threats, intimidation and fear. Second, political actors are unwilling to expose cracks in their own chain of command and desperate to maintain a semblance of control
over its various branches, and therefore does not admit to internal disobedience, rogue acts by officially state-endorsed and – funded agencies. The first scenario is more common. Crimes such as murder (mostly termed “extrajudicial, summary or arbitrary killings” in human rights discourse), torture, extortion, corruption, rape, enforced disappearances, kidnapping, robbery, formally abolished religious or caste-based discrimination are conveniently overlooked. Very rarely are independent and impartial investigating agencies engaged for inquiries into crimes that have been linked to the state and its actors, which means that perpetrators who occupy official positions and left conveniently to investigate themselves, a process that never results in anything more than a symbolic conviction, at best, and, in the worst and most usual case, recriminations against the individuals, families and civil society actors who dared speak out against the state agents who committed the crime.
What responsibility should the public bear in this, and how can citizens participate to prevent torture and restore genuine justice in the system?
It is not the duty of the citizen, nor is the citizen even able, to prevent torture or to create a genuine justice system. It is the singular responsibility of the state, which possesses the means and mandate to enforce the law. The general public could (continue to) speak out against injustice, yet this is neither feasible nor sustainable because of the lack of credible assurance to the average person that the person’s right to speak is protected along with the right to physical security and well-being, liberty and life.
This is where other civil society organisations such as the Asian Human Rights Commission (AHRC) and other grass-roots organizations could play a role. These organizations create
a safer space within which an individual who is concerned about an injustice could speak against it and, where possible, even obtain remedy. A large corpus of such reflections, opinions and personal narratives could in turn generate a local debate about a particular issue, torture, for instance. This is crucial for sustainable change to be worked – not through an external imposition of ideas and ideals, but through internal debate, crystallisation and internalisation of certain values and revolution in worldview.
In a country like India where you engage with local partner organisations, torture is a part of daily life. Over the past decade you have dealt primarily with human rights violations and, more specifically, the practice of torture. Do you have a specific framework or a model to deal with this?
Speaking against state sponsored violence – torture for instance – is not an easy task, particularly for those at the grass-roots level. Seeking remedy is even more dangerous. To work against torture is to directly oppose the established power structures in a given environment, often without any protection. Perhaps this is why there are precious few human rights organisations working against torture in countries like India. No single framework could effectively combat torture sans legal jurisdiction.
Work against torture on the ground will take space and time to develop in its highly specific political, geographical and cultural context, and is generally best conducted by locals for locals because locals understand that context and people best. Working with torture will and should be different from one country to the other, and could differ
even according to the state, province or district at hand. From personal experience, working against state-sponsored violence in Manipur invariably places a person in direct confrontation with paramilitary and military units operating under the protection of draconian legislations like the Armed Forces (Special Powers) Act, 1958. These units are notorious for their use of excessive force. Contrast this with the relative safety and peace of Kerala. We cannot study or work in Manipur with the same framework as we do in Kerala. The people think, speak, act and live differently in the two places. AHRC facilitates developing area-specific work and helps to train local partner organisations. AHRC also serves to amplify local concerns through online publicity and regular communication with stakeholders on the ground, in the government and internationally. AHRC also actively listens to and seeks out personal stories being produced on the ground and carefully documents violations according to themes and countries in order to build up a better understanding of the situation and be able to make concrete and constructive recommendations to victims, partner organisations and civil society, government officials and international agencies. Other areas in which AHRC can help are with the legal or technical analyses of laws and policies to expose the injustice or oppression that may be concealed by such.
Human rights defenders are not omnipotent. They face restrictions, threats, frustration and exhaustion as the rest of humanity does. What they can be, however, are pathfinders, forerunners with enough courage to initiate processes and ignite hearts and wills against the trampling of human lives and dignity.