"For it is an unbroken torture to me that I am still so far from him, who as I fully know, governs each and every breath of my life, and whose offspring I am. I know that it is the evil passions within that keep me so far from him, and yet I cannot get away from them." [1]

India is a party to several international human rights treaties and conventions12, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC). [2]The fight against global terrorism has led to the development of practices to circumvent the absolute prohibition against such acts through the methodology of "torture" by the government agencies and giving them a free levy under such scenario.[3]

The first question that arises from such a topic of discussion would be that, why was torture even introduced as a concept which is followed throughout the world even after its immense critic by the UNCAT. Beginning with the definition of "torture" under Article 1 of the UNCAT "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".[4] India is a part of the UNCAT and pledges to the Human Rights Council periodically.[5]

Article 1 can be divided into 3 different categories for understanding the genesis of torture and its effects on an individual. The 3 categories would be:

1. Physical and mental agony
2. Intention to commit torture
3. And there must be a specific purpose to extract some information or confession.[6]

The justification for committing torture can be derived from the above-mentioned criteria by any government agency in the name of "Sovereignty". Similarly, legislations such as AFSPA, UAPA and MCOCA in the name of "sovereignty" inflict immense torture on individuals and their families which seems to be justified by the government. These laws specifically govern themselves on the "ticking bomb" theory of justifying torture.[7] In terms of individual rights, it has distorted the legal route through which it could have been resolved because the act itself gives the authorities immense power to confiscate any material or arrest anyone without any detailed reasoning.[8]

Implementation and non-compliance of these "special laws" with the UNCAT and Human Rights Council.

1. UAPA: It was introduced as a provision to combat terrorism and activities related to terrorism. The Congress government enacted the law, and later multiple amendments have been made to it with due course of time. Earlier, only a "group" would be called as terrorist under UAPA but later in 2019 amendment, an "individual" can also be called as a terrorist under section 36(2) of the UAPA Act.[9] The procedure itself is so tiring and hideous that it certainly fulfils the very first criteria of torture through mental agony.
   
   It is such a stringent law with very small room for any change or modification that it leaves no other option but rather to rot in the jails for years. In the case of Umar Khalid, a student from Jawaharlal Nehru University was arrested for a protest in 2020 in relation to North-east Delhi riots.[10] Similarly, in case of Jovica Dimitrov v. Serbia and Mantenegro, the complainant was taken into custody without any warrant and reasoning for taking the complainant into the custody. There was use of physical violence against the complainant in this case with a baseball bat as well as comments were passed on his ethnicity by the police officer investigating.
   
   In case of Umar Khalid, there was no arrest warrant given to him and no solid reasoning was provided to take him into the custody. Multiple comments were passed on his ethnicity and religion for causing riots through his speeches.[11] The trial is still going, and Umar Khalid is still in jail without any solid evidence for the crime committed. There has been no bail and no trial which has commenced. This is a clear violation of Article 1 as well Article 2(2) of the UNCAT. The provisions of UAPA have completely disregarded the application of DK Basu guidelines during the arrest of an individual and the rights the person being arrested has under Article 22.[12]
   
   Similar steps were taken in the case of Stan Swamy too, where the Catholic priest was denied basic amenities in jail at the age 84 suffering from Parkinsons and no bail was granted to the activist. Stan Swamy was for basic amenities like a straw sipper and warm winter clothing after a period of 50 days since he had asked for them. This eventually led to the death of the activist in the jail. This can be denoted as a violation of Article 1 of the UNCAT as well as the Article 5 of the Universal Declaration of Human Rights (UDHR).
    
2. AFSPA: This particular mandate has been implemented in designated areas called as "disturbed areas". Under section 3 of the AFSPA, it mentions about power to declare any specific place as disturbed areas. It includes Jammu and Kashmir, Nagaland, Manipur and other North-Eastern states.[13] Torture, arbitrary detention, and disappearances are commonplace in conflict-prone regions like Kashmir and the Northeast because of the near-total impunity enjoyed by those who commit these crimes. Torture is undoubtedly more common in combat zones, but it is also prevalent in the other two settings. Numerous accounts exist of the army abusing its authority to carry out extra-legal killings and torturing.[14]
   
   In State of Jammu and Kashmir vs Lakhwinder, an innocent 16-year boy was killed by the Border Security Force officer during a verbal altercation, where the army personal shot the boy with his service rifle. No such act can be protected under security acts as well as under the AFSPA, which gives these security officers immense uneven power to harass or torture anyone.[15] Under no circumstances can murder, rape, or other crimes amounting to abuses of human rights be regarded as having occurred while an official was doing their duties. Families and solicitors have attempted to make these arguments in front of authorities and courts on several occasions.
   
   In a similar vein, even investigative organizations like the Central Bureau of Investigation have maintained that immunity provisions in current law do not apply to the deliberate death of people because such an activity could not be regarded as an official act. [16] These arbitrary decisions made by the army has led to the authoritative culture of passing judgements in the Favour of the army and enabling provisions such as AFSPA supports these decisions in some way or the other. Does the army have the right to violate the human rights of any individual? The answer to such a question would be partially correct that they have the right to violate the human rights because of the lethargic legal system which is completely different from the normal legal system of India.
    
3. MCOCA: This particular law was specifically introduced to control the mafia in the Maharashtra and its association with the terrorism in the state especially after 1993 blasts. The constitutionality of the act has been challenged multiple times but in Bharat Shantilal Shah v. State of Maharashtra,[17] where two specific grounds were mentioned claiming the violation of human rights on the basis of "double jeopardy" by convicting the claimant for the same offence twice, once under the criminal laws of India as well as the specific provisions of MCOCA.
   
   On the other hand, it also reversed the presumption of innocence doctrine onto the defendant where the defendant has to prove he/she is innocent. This makes it extremely difficult for anyone convicted under the act to prove innocence while being in the custody. Section 18(1) of the Act allows the confessions recorded by the police officers to be admitted in the court of law and special tribunals set up for MCOCA, which is arbitrary to the normal criminal laws.[18] This will lead to the increase in threshold for torture in custody to be valid and make someone admit to their own wrong.

Conclusion
Therefore, India needs to ratify itself with the UNCAT for specific provisions like UAPA, MCOCA and AFSPA due to its continuous violation of human rights and stringent provisions in such acts which supersedes the Constitution. Constitution being the law of the land and its violation for accepting the "ticking bomb" theory is farce and unacceptable.

India's ratification to UNCAT will ensure that the amount of torture people have gone through because of these special laws has led to the violation of multiple international treaties and its own Constitution. In the name of "Sovereignty", these legislative mandates have gone ahead of its jurisdiction and destroyed the physical as well mental peace of so many innocent people who had to go through the process of these acts. People charged under UAPA are still in jail without any bail and hearing in the court waiting for justice in the "name of God".

End Notes:

1. M.K. Gandhi, My Experiments with Truths
2. UDHR stands for the Universal Declaration of Human Rights. It is a historic document adopted by the United Nations General Assembly on December 10, 1948. The UDHR is a milestone in the field of human rights and serves as a fundamental reference for the protection and promotion of human rights globally. It sets out a comprehensive range of rights and freedoms that are inherent to all individuals, regardless of their nationality, race, religion, or other characteristics. The declaration consists of 30 articles that outline the basic rights and principles, including civil, political, economic, social, and cultural rights, as well as the right to equality, justice, and dignity.
3. Manfred Nowak, "What Practices Constitute Torture: US and UN Standards," 28 HUM. Rts. Q. 809 (2006).
4. UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85, 10 December 1984, https://www.refworld.org/legal/agreements/unga/1984/en/13941 [accessed 04 October 2024].
5. Strong support for India to ratify the UN Convention Against Torture - CTI - Convention Against Torture Initiative CTI, https://cti2024.org/news/strong-support-for-india-to-ratify-the-un-convention-against-torture/ (last visited Oct 5, 2024).
6. Manfred Nowak, "What Practices Constitute Torture: US and UN Standards," 28 HUM. Rts. Q. 809 (2006).
7. Manfred Nowak, "What Practices Constitute Torture: US and UN Standards," 28 HUM. Rts. Q. 809 (2006).
8. "Misused, abused": India's harsh terror law under rare scrutiny Al Jazeera, https://www.aljazeera.com/news/2021/8/16/india-uapa-terror-law-scrutiny (last visited Oct 4, 2024).
9. The Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1967.
10. Umar Khalid arrested under UAPA in Delhi riots case: What is this tough anti-terror law? The Indian Express, https://indianexpress.com/article/explained/umar-khalid-uapa-in-delhi-riots-arrest-jnu-pota-tada-6597705/ (last visited Oct 4, 2024).
11. Umar Khalid: Indian activist languishes in jail without bail or trial BBC News, https://www.bbc.com/news/world-asia-india-67980484 (last visited Oct 4, 2024).
12. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
13. The Armed Forces (Special Powers) Act, 1958, No. 28, Acts of Parliament, 1958 (India).
14. Aditi Patil and Sarthak Roy, "Need for a Separate Anti-Torture Law: Probing India's Ethical Egoism on Torture," 96 Special Issue IJLIA (2019).
15. State of Jammu & Kashmir v. Lakhwinder Kumar, (2013) 6 SCC 333.
16. India: "denied": Failures in Accountability for Human Rights Violations by Security Force personnel in Jammu and Kashmir Amnesty International, https://www.amnesty.org/en/documents/asa20/1874/2015/en/s (last visited Oct 5, 2024).
17. Bharat Shantilal Shah v. State of Maharashtra, 2003 SCC OnLine Bom 1361.
18. Section 18 of MCOCA, 1999.

Written By: Aryan Malik, BA LLB 2021, 4th year Law student - Jindal Global Law School