Rekha Oleschak-Pillai, posted on 10 October 2019.
We believe in peace, non-violence and upholding human dignity. As such, the concept of torture is completely alien to our culture and it has no place in the governance of the nation.[1]
At the time I started thinking of the contents of this post I was travelling through Turkey in a high-speed train connecting Istanbul and Ankara reading Ottoman Odyssey: Travels Through a Lost Empire by Alev Scott. The book examines the issue of minorities at the time of the creation of the modern Turkish state and what has become of these minorities today. Dealing with minorities has been a thorn in the creation of many a modern state, including India. Kashmir has proved to be an exceptional challenge, which India has been unable to deal with or rather tried to deal with through punishment, force and manipulation. One of the instruments of power in use is torture. This post will look at what torture is, the carrying out of torture in Kashmir and the issue of impunity, that is non-accountability for armed forces, paramilitary and police forces for carrying out torture.
For many Indian children growing up watching Indian movies, Bollywood, Kollywood or any other vernacular films, police beating up those arrested, suspected of crimes or even suspected of having information pertaining to a crime is a common scene, one that is so ubiquitous that torture in police custody is taken as something normal, or even to be expected. Not surprisingly, what is less highlighted is how police officers are brought to face charges for having carried out torture.[2] This is because not only in popular culture, but also in legal culture and fraternity in India, torture is accepted and sometimes even condoned and bringing to account those indulging in torture is something that never takes place.
When torture is “normal”
Torture in the Kashmir valley is also “normal”. The UN Report[3] mentioned in the first part of this blog post lists many incidents of torture. Rizwan Pandit, aged 29 years was tortured to death while in custody between 18thand 19th March 2019. Having been picked up by the National Investigation Agency, the school principal was pronounced dead by the Kashmir Police. It is unclear whether he was killed in custody of the National Investigation Agency or the police.
The UN Istanbul Protocol on Investigation of Torture[4] outlines the various forms of torture. In Kashmir, all of these are utilised. Some of the examples of torture are, head dunked in (chilli) water, stress position/hands tied/feet tied/restrained, hung upside down/aeroplane position, electrocuted in genitals, roller, stripped naked and electrocuted.
Most torture victims suffer life – long from acute physical and mental health ailments, cardiac problems, nephrological issues, complete or partial loss of eyesight or hearing ability, amputations, sexual impotency, etc. Torture has resulted in people developing Rhabdomyolysis and consequent acute renal failure. According to Medecin San Frontiers, 19% of the Kashmiri population suffers from Post-Traumatic Stress Disorders.
The International Law Prohibition on Torture
In international law, the prohibition of torture is absolute. On the 10th of December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN Convention against Torture seeks to prevent torture around the world. It requires states to take effective measures to prevent torture and forbids states from transporting people to any country where there is reason to believe they will be tortured (refoulement)”.
Article 1 of the UN Convention defines torture[5]. This definition contains three cumulative elements, 1. the intentional infliction of severe mental or physical suffering, 2. by a public official, who is directly or indirectly involved, 3. for a specific purpose. The legal definition of torture does not extend to such acts carried out by those who are not termed public officials. Delegation of public duties to a private person would however be included.
Most importantly, the Convention requires state parties to undertake that “no exceptional circumstances whatsoever” will be “invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict”. Put differently, the Convention allows no justification for torture, whether war, terrorist act or anything else. Torture is prohibited at all times under all circumstances.
Notably, India took 13 years to sign the Convention, on 14th October 1997, however, has failed to ratify the Convention. Therefore, it is also not surprising that India has not accepted the complaints mechanism (Committee against Torture) which would allow an international body to hear complaints by affected people. Also, India has yet to enact a legal prohibition of torture, several attempts at passing a Prevention of Torture Act have not been successful, which begs the question of whether the political will exists at all.
Fallacies regarding use of Torture
The use of torture is based on a number of assumptions, that the person being tortured has information, that this information can be extracted under torture, that a certain crime will be carried out etc. Another assumption is that torture is carried out as a one-off incident. As any seasoned law enforcement official would be able to tell, none of this actually ever works.[6] From a Kantian perspective, torture not only destroys the dignity of the person being subject to torture but also that of the person carrying out torture. The use of torture in Kashmir is based on the assumption that widespread use of torture will break the will of the people and subject them to the Indian state. As any study of history would show, no democracy has succeeded in using torture to make a population accept state power.
The Report on Torture[7] points out that “the widespread human rights violations, including use of indiscriminate torture, is a tactic employed to break people’s will. This is reflected in the Indian Army’s Doctrine on Sub-Conventional Operations, which says, “The endeavour should be to bring about a realization that fighting a government is a ‘no win’ situation and that their anti-government stance will only delay the process of restoration of peace and normalcy.”
State sanctioned, supported and funded use of torture in Kashmir is based on the fallacious assumption that torture will ensure peace.
The Armed Forces Special Powers Act, unaccounted power begets unaccounted horrors
The Kashmiri population is subject to living in what has been termed an “open prison”. The massive militarization of the region means that the prison is run by a military operation which is totally unaccountable. Unlike Pakistan, India’s armed forces have the reputation of always being subject to civilian governments, the Indian armed forces have never usurped power for themselves. All the more, the free rein allotted to the armed forces by subsequent civilian governments, whether it is in Nagaland or in Kashmir have been based on the infamous Armed Forces Special Powers Act. This legislation allows total impunity for any use of force. No army official has ever been brought to justice under this act. The civilian governments and the parliament thus uphold the most atrocious legislation and consequently also share the liability of the atrocities carried out by the armed forces.
If the words of the Indian representative at the Universal Periodic Review, mentioned at the beginning, are to be taken seriously, India has a long way to go in dealing with torture. Unfortunately, there seems to be no indication whatsoever that torture will abate in India generally and in Kashmir particularly.
[1] Opening Statement by Attorney General for India at the Third Universal Periodic Review of India (Geneva, May 04, 2017). https://www.mea.gov.in/Speeches-Statements.htm?dtl/28437/Opening+Statement+by+Attorney+General+for+India+at+the+Third+Universal+Periodic+Review+of+India+Geneva+May+04+2017.
[2] See Baljeet Kaur, India’s Silent Acceptance of Torture Has Made It a ‘Public Secret’, Economic and Political Weekly, Vol 53, Issue 36, 8 September 2018.
[3] Office of the United Nations High Commissioner for Human Rights, Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019, 8 July 2019, https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf.
[4] Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, https://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
[5] “Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
[6] See Association for the Prevention of Torture, https://www.apt.ch/content/files_res/tickingbombscenario.pdf.
[7] Association of Parents of Disappeared Persons (APDP) and Jammu Kashmir Coalition of Civil Society (JKCCS), Torture Indian State’s Instrument of Control in Indian administered Jammu and Kashmir, February 2019.
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