Custodial torture is global, old and stubborn. Dismemberment was a method of torture practised with vigour in ancient India, crushing-by-elephant-foot another. The Arthashastra prescribes mental torture through swear-words with or without physical assaults. Death by a thousand cuts was ancient China’s speciality. The Tang Code (652 CE) describes judicial torture in detail. Ancient Japanese methods of torture numb the human imagination. Their modern avatar in Japan’s World War II of biological and chemical experimentation on humans — prisoners, mainly Chinese — in Unit 731 stop the blood-flow to one’s heart.
Cautioned by history
So, does that mean sadism is an inherent part of human nature? It certainly shows that the inflicting of pain is an inseparable part of human history. More specifically, the history of power, of authority and control.
The practice of custodial power is about men — and sometimes, women — who are in positions of power, even if for a brief while and over a limited terrain, having custody over a powerless person. It is about the use of custodial opportunity to torture the captive’s body and mind. And there, in that arena of wantonness, it becomes something of a sport for the human “Gods” that rule mere humans. “They kill us for their sport,” Shakespeare said of “the Gods”.
Custodial death, when not ‘natural’, is the extreme end-point of custodial torture. The death penalty, notwithstanding ‘due process’, is a close kin to this lawless and heartless game.
In Greece, the pinnacle of culture, Socrates was in 399 BCE sentenced to death by hemlock, which was known to act slowly, incapacitating the person in stages, climbing from the lower extremities limb by limb to the heart. A little further to the east, around 30 CE took place what is ironically the only hallowed case of plain torture. After being stripped and scourged, the victim’s palms, known in anatomy to be among the most sensitive of human limbs, were nailed to the cross’s horizontal beam, his feet to the vertical. “I thirst,” Mary’s son said.
Torturers are invariably sadists. Mary Surratt is not a well-known name. She was the first woman to be hanged in the U.S., in 1865, under due process. Her crime: being part of the conspiracy that led to the assassination of Abraham Lincoln. Minutes before her end, she complained to the hangman that her handcuffs hurt. They won’t hurt long, he said. Peering down the ‘drop’, she then said she hoped they would send her down neatly. Sure thing, they said. Sure enough they botched it. Her frame doubled up. “She makes a good bow,” the hangmen jested. Lincoln must have screamed in his grave.
Hitler’s torturing of his prisoners would shame Satan, if such a creature exists. He was as real as his poison gases, tooth-extractors. Stalin’s, Pol Pot’s, ‘Papa Doc’ Duvalier’s examples would have embarrassed Hell, if such a place exists. The power-centres of these tyrants were hellishly real.
Apartheid South Africa had its torturers trained in Algeria to inflict pain without leaving any signs on the body. Imam Haron, Steve Biko and the Naidoo family are among the better known of the many less known and unknown brutalised by the apartheid regime.
The butchering last October of Saudi journalist Jamal Khashoggi tells us custodial torture and killing are no country’s, creed’s or culture’s monopoly. Nor that of any clime-time. Torture seems to be, like the roach, co-terminus with Time. And co-extensive with homo sapiens.
Custodial torture is about the here and now. As I write and the reader reads this, we can be sure that not far from wherever we are, someone is being tortured by somebody. I am not referring to criminals torturing their captives, but of that somebody who has ephemeral custody, semi-legal, pre-legal, legal, over that someone’s body and mind.
India has practised and continues to practise the ‘third degree’ with impunity. Let only him deny it who has cause to hide it.
But if torture is real, human revulsion with torture is also real. And it has shape, definition. It has scope.
Meeting on December 10, 1984, the UN General Assembly stirred the world’s conscience. It adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Better known as the UN Convention against Torture, it sought to prevent torture around the world. More specifically, it “required states to take effective measures to prevent torture and forbade them from transporting people to any country where there is reason to believe they will be tortured (refoulement)”. Most significantly, the Convention made 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”.
In other words, it foresaw every possible subterfuge and subversion by states.
The Indian case
India took 13 years to sign the Convention, but sign it did, on October 14, 1997, during the 11-month-old Prime Ministership of I.K. Gujral. Hat’s off to him. He did what Rajiv Gandhi, V.P. Singh, Chandra Shekhar, P.V. Narasimha Rao, H.D. Deve Gowda could not, did not, do. But signing is only the first step. Unless a convention is ratified and followed or preceded by domestic legislation that commits the ratifying party to compliance, the original signing carries no meaning. India has not ratified.
India’s non-ratification of the Convention is both surprising and dismaying. What is the constraint? A state which signs the Convention has to have a domestic law on the subject to outlaw and prevent custodial torture. Without such a law, there is no meaning to signing the Convention. And so, late as it was, the UPA II government introduced a Prevention of Torture Bill in the Lok Sabha in 2010 and had it passed in 10 days. The bill as passed by the Lok Sabha was referred to a select committee of the Rajya Sabha. The committee gave its report recommending the Bill’s adoption later the same year. Citing National Human Rights Commission figures of reported torture cases, the report said the figures showed custodial torture was rising. It also pointed out that the number of reported cases being only a fraction of actuals, the situation was serious.
But that Bill was unlucky. It lapsed with the dissolution of the 15th Lok Sabha. And was not revived by the 16th, the present Lok Sabha. Ratification of the Convention remains in limbo. Custodial torture remains in position.
In reply to a question (May 11, 2016) whether the government was planning to ratify the Convention, the Minister of State for Home did not answer either in the positive or negative but spoke of amending Sections 330 (voluntarily causing hurt to extort confession) and 331 of the Indian Penal Code. The nature of these amendments has not been delineated and so, almost nine years after the report of the Select Committee and 21 years after signing the Convention, India is yet to legislate a law that will outlaw torture an enable it to ratify the Convention.
What is the constraint? Why is the Indian state unwilling to say, ‘no custodial torture in India’? The answer can only be that the power over a captive’s body and mind is not easily given up.
Waiting for a nudge?
Senior advocate Ashwani Kumar, former MP and Minister, moved a PIL in the Supreme Court in 2016 asking it to get Parliament to move forward in the matter. After a full day’s exclusive hearing in the case, the court has reserved its orders. Can the Supreme Court indeed “nudge” Parliament? It knows best, in its wisdom and experience. This much, however, one can hope: In a matter that concerns ‘life and liberty’, the Supreme Court is the guardian of the Constitution’s guarantees. And when the one being guarded says, ‘I thirst,’ the guardian can only bring to its parched lips the waters of life. Whatever be the outcome of Mr. Kumar’s PIL, it is imperative that the democratic opposition makes the ratification of the Convention and a new anti-torture legislation part of its common programme. The 17th Lok Sabha must take a stand on this matter. It has a choice: to join the civilised world in moving away from ancient barbarism or stay in the dungeons of blinding, benumbing brutality.
Gopalkrishna Gandhi is a former administrator, diplomat and governor
