[WSMDiscuss] A Great Betrayal- An Opinion Piece by Prof. Upendra Baxi

[Umakant]

A great betrayalUpendra Baxi, Opinion, The Indian Express, December 11, 2017http://indianexpress.com/article/opinion/columns/a-great-betrayal-torture-bill-law-supreme-court-4976973/  State impunity continues for acts of torture. Lawmakers andcourt have not stepped up to their duty  February 19, 2016 was an unusual day in the world history oftorture when Ashwani Kumar, a senior advocate and former Union minister of law,filed a petition before the Supreme Court of India to ensure a standalone lawcompliant with the UN Torture Convention. The Rajya Sabha Committee’s unanimousreport (December 10, 2012) virtually rewrote the Torture Bill passed by the LokSabha on December 6, 2010. On July 8, the Union sought the advice of the LawCommission of India with specific reference to the pending constitutionallitigation. It responded (October 30, 2017) with a torture bill of 2017, whichmostly followed the Rajya Sabha Standing Committee and the UN Convention. TheSC was expected to perform its nudge function, exercising its demosprudential adjudicatoryleadership, as it has done frequently. But this year on November 26 (otherwise the day on which theConstitution came into force), the SC dismissed the petition. Relying onjudicial observations as widely reported in the media, the court mentionedthree related grounds. First, Chief Justice Dipak Misra asked: “How can wecompel the government to make a law? Can we ask the government to ratify atreaty by way of a mandamus?” Second, Justice D.Y. Chandrachud said “thegovernment has to take a political decision on whether it should ratify thetreaty”. Third, when Ashwani Kumar maintained that it was the duty of the courtto fill the gaps in written law, Justice A.M. Khanwilkar observed: “But it is apolicy matter”. The learned chief justice was correct in the abstract butdisappointing in the context; the petitioner did not ever ask for a mandamus inthe first place because it would violate the supremacy of Parliament in its ownlegislative domain. The prayers before the Court did not ask for enforcing atreaty by a court order. The question of compelling the legislature to make alaw also never arose. The suggestive jurisprudence of the SC is as old as thecourt itself and the petitioner painstakingly demonstrated this. The SC hasused this power on many subjects concerning, for example, participativedecision-making, forest rights, right to information, ragging on campus, rightto education, judicial services, inter-country adoptions, consumerjurisprudence, sustainable development law, and privacy rights. The SC remainsopen to nudge a slow moving legislature into quick action. This nudging role becomes most crucial for effectivelypreventing and punishing the rampant torture practices in policing and securityoperations. The SC is no stranger to such requests for advancing constitutionalcivilisation. It has already steadily converted adjudication into the site ofdemosprudence and issued several directions desiring an abatement of thispractice. The writ assumed importance because nearly two decades after Indiasigned the Torture Convention, the Indian state practice has been, to say theleast, lackadaisical. Justice Chandrachud was also broadly justified in sayingthat treaty ratification was a matter of political choice. True, all governanceis a matter of political choice, but political choices must remain subject tosome constitutional discipline, lest a set of governance dispositions renderscitizens into mere rightless subjects. And if the anti-torture norms havebecome part of customary international law binding on all states, does not theconstitutional concern require the Indian state to follow it? The 273rd Reportof the Law Commission has now clearly stated that anti-torture norms are juscogens, or peremptory norms of international law, which do not depend on stateconsent. Equally legitimate is Justice Khanwilkar’s concern about“political matter” but the SC in its demosprudential leadership of the nationhas not abstained from making new policies. In fact, it has done so incustodial deaths and encounter killings; so also, it has evolved a compensationpolicy for violation of fundamental rights. Overall, the problem becomes one of understanding andexplaining the reluctance of the SC in expressing its constitutional anxietyconcerning the standalone torture legislation. It is unworthy to suggest thatthe recent Law Day spat between the executive and judiciary animated summarydismissal. Yet such a disposal — after nearly one and half years, and involvingthe Law Commission — that relegates the matter to the legislature forill-stated reasons raises concerns about a just constitutional response. The petition disturbingly demonstrates the penchant of stateinaction although from 2007 onwards India has committed to taking steps toratify the torture convention. Despite this, no steps have been taken to enacta suitable enabling law required for accessing the UN convention, which is whatthe Rajya Sabha Standing Committee did after hearing all concerned parties. Inpreparing a bill, consented to by all political parties, the committeefunctions as a mini-Parliament and its draft bill should have been enacted. Custodial torture, and even custodial death in India is anorm rather than exception. It flies in the face of substantive due process nowenshrined as an aspect of the basic structure of the Constitution. Veryrecently, the SC issued directions about extra-judicial killings in Manipur.Many states especially urged India (in the Universal Periodic Review, 2012) to“finalise” accession to the UN Torture Convention, endorsed by the UN HumanRights Council. Neither “internal political compulsions” and “weaknesses in theimplementation” may produce legitimate law. If, as the SC has recognised, “evenwhile dealing with the ‘enemy’ the rule of law would apply” and “police or thearmed forces who have committed the excesses which do not have a reasonableconnection with the performance of their official duty would be liable”, shouldthe norm for dealing with co-citizens be any different? How does it happen that custodial deaths, custodial andinterrogational torture are rarely prosecuted? Why do state apparatusescontinue to tolerate such abuse against human dignity and rights when a code oflaw reform and a speedy ratification of the UN Torture Convention remainavailable? State impunity for acts of torture must surely find a dignifiedfuneral at least after seven decades of India’s independence. ----------------------------  The writer is professor of law, University of Warwick, andformer vice chancellor of the Universities of South Gujarat and Delhi 









 My final words of advice to you are educate, agitate and organize; have faith in yourself. With justice on our side I do not see how we can lose our battle. The battle to me is a matter of joy. The battle is in the fullest sense spiritual. There is nothing material or social in it. For ours is a battle not for wealth or for power. It is battle for freedom. It is the battle of reclamation of human personality. 
B.R.Ambedkar
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