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The Draft Optional
Protocol to the Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment aims to create a global system of inspection of places
of detention as a way of preventing torture and ill-treatment. The emphasis of
the Optional Protocol is on prevention. International standards
prohibiting torture and ill-treatment are already in place; the Optional
Protocol aims to implement these standards more effectively. At the 58th
Commission on Human Rights (CHR), Costa Rica sponsored a resolution on the
Draft Optional Protocol, which was eventually adopted. But not before going
through an agonising, obstructive process that nearly wrecked ten years of
effort by the working group set up to draft the Protocol. India was among the
disruptive States that attempted to thwart the resolution.
The blinkers were
firmly in place during the 58th annual session of the United Nations Commission
on Human Rights (CHR) – of which India is a member – in Geneva in March-April
this year. The Indian delegation first registered its opposition to the
consideration of an important adjunct to the Convention Against Torture (CAT).
And when the document fought its way through a highly charged, potentially
damaging process and came up for a vote, the delegation primarily sat on the
fence. (This is not surprising given its record in Kashmir, the North East,
Andhra Pradesh, Bihar and elsewhere.— Ed)
An important element
of the Protocol is the requirement to put in place national preventive
mechanisms. Article 3 of the Protocol requires ratifying States to "set up,
designate or maintain at the domestic level one or several visiting bodies for
the prevention of torture and other cruel, inhuman or degrading treatment or
punishment."
Example of Torture during Punjab Movement
The Draft Protocol to
the Convention against Torture was presented to the Commission after 10 years of
discussion in a working group set up for the purpose. At the 58th CHR, the Costa
Rica-sponsored resolution on the Draft Optional Protocol went through a
no-action motion demanded by Cuba. The no-action motion is used to effectively
prevent discussion of the draft in question. India voted in favour of the
no-action motion on the resolution, which means it favoured putting the issue
aside. The motion was eventually rejected. This led to the resolution being
voted on, during which India abstained.
The debate on the
no-action was on expected lines, with the self-styled Like Minded Group
of countries (LMG), including India, throwing their weight behind Cuba, and the
Western group opposing the motion. Those in favour of no-action argued that
there was no consensus on the issue, and for that reason it should be deferred.
The Protocol, India added, would be "impaired" by the manner in which it was
proposed to be adopted – i.e. a vote – and the Indian delegation would therefore
support the motion of no-action.
States opposed to
this draft – the substantive text that emerged from the working group
discussions – reiterated that consensus had evaded the working group and
suggested that the document be sent back to the working group for further
discussion until consensus was achieved. Consensus, the Indian delegation added,
was "of paramount importance", and more time should therefore be allowed
for an agreement to emerge.
Sponsors of the
resolution, notably Costa Rica and its supporters, reminded the Commission that
the issue had been under consideration for 10 long years. In all likelihood, and
as the sponsors evidently feared, the text would have been watered down further
had it been sent back to the working group. Responding to the opposing
countries’ arguments, Costa Rica emphasised that the Protocol was optional.
States were not obliged to sign it. They should therefore not prevent the
Protocol from coming into effect. Finally, dismissing the need-for-consensus
argument, the Mexican delegation pointed out that the Universal Declaration of
Human Rights "would never have been adopted" if States had waited for a
consensus. The UDHR, one of the most fundamental international human rights
instruments, had to go through a vote before it was adopted.
The Costa
Rica-sponsored resolution was eventually adopted with 29 States in favour, 10
against, and 14, including India, abstaining.
The Indian
delegation’s actions are incompatible with India’s obligations under
international law. Article 5 of the Universal Declaration of Human Rights (UDHR)
declares that "[n]o one shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment." Article 10 (a) of the International
Covenant on Civil and Political Rights (ICCPR) further declares that "[a]ll
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person."
India is signatory to
the Convention Against Torture (CAT), and while it is yet to ratify the
instrument; the signature implies an intention to eventually incorporate the
provisions of the Convention into domestic law. The Convention specifically
prohibits the use of torture, obliging every State Party to "take effective
legal, administrative, judicial or other measures to prevent acts of torture in
any territory under its jurisdiction."
Furthermore, since
India is not party to CAT, it had no legitimate right to obstruct the adoption
of the Draft Optional Protocol, which, if adopted by ECOSOC, would only
be open for signing by States that are party to the Convention.
India also did not
actively participate in the working group on the Draft Optional Protocol.
However, observers at the Commission reported that one week before the Costa
Rican text was to come up before the Commission, the Indian delegation suggested
to the Asian group that a proposal be made to extend the Working Group’s mandate
to provide for further negotiations. No time limit for the extension was
suggested.
As a further step in
the acknowledgement of the right to be protected from torture, India must ratify
the Convention Against Torture at its earliest. The implicit prohibition of
torture is already found in the Indian Constitution and in case law. In its
1998-99 annual report, the National Human Rights Commission expressed regret
that the formalities for ratification were still not complete.
Meanwhile, reports
continue to be received of the widespread use of torture, despite the existing
legal safeguards. This makes an even stronger case for the establishment of
domestic and international preventive mechanisms, which the Optional Protocol
aims to achieve.
India is in the
league of such worthies as Syria, Angola, North Korea, Malaysia and Pakistan,
which have yet to ratify the Convention Against Torture. India has also
consistently refused to extend an invitation to the United Nations Special
Rapporteur on Torture who is mandated to investigate complaints of torture and
ill-treatment.
This lack of
transparency belies India’s claims to democracy and the primacy of the rule of
law.
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