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Ashwani Kumar: Standing up for human rights
January 09, 2018
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In his New Year message, UN Secretary-General Antonio Guterres referred to the pervasive and large-scale infraction of human rights across the world as a global challenge that defies our vision of a humane and just world order. The message is particularly relevant for us. This is because the torture of individuals in state custody remains a brazen human rights abuse that mocks our governance even as we claim human dignity as the end objective of the Indian state, with the Supreme Court affirming it as “an intrinsic value, constitutionally protected in itself” (Puttaswamy, 2017, M. Nagaraj, 2006).

As we move into the new year with hope in the future, we must pause to reflect on whether in our approach towards eliminating torture as an affront to human dignity, we have been caught between legislative lassitude and judicial abdication. I do confess to a disappointment while propounding the necessity of a purposive and comprehensive anti-torture legislation through a public interest litigation. The necessity to move the highest court arose because even years after India became a signatory to the Convention Against Torture in 1997, we have not been able to ratify it or have in place a domestic legislation to effectuate the right to life with dignity read into Article 21 of the Constitution.

In a departure from judicial precedents established in Vishakha (1997), D.K. Basu (1997), Vineet Narain (1997), Association for Democratic Reforms (2002), Swami Achyutanand Tirth (2016) and the Triple Talaq (2017) case, the Supreme Court refrained from exercising even its limited nudge function to prompt the government into bringing the necessary anti-torture law. Acts of custodial torture continue to defy constitutional diktat and mock the Supreme Court’s declaration of torture as “...synonymous with the darker side of human civilization, is a naked violation of human dignity...” (D.K. Basu, 1997). The recent Constitution Bench judgment in Puttaswamy (Supra), citing its earlier judgments, reaffirmed that torture infringes on human dignity which is “inalienable and inseparable from human existence”.

Those facing criminal trials and extradition proceedings abroad including Abu Salem, Kim Davy, Jagtar Singh Johal and others have questioned the country’s investigative and criminal justice system in the absence of an effective and enforceable law against custodial torture.

The damning slur on the nation’s trial process and commitment to the rule of law itself was also not enough to move the court to exercise its “suggestive” jurisdiction. It seemed legitimate to expect the highest constitutional court to inspire legislation that would vindicate the ethic of human rights as it has done so often in the past.

Its decision, to the contrary, in a petition seeking a comprehensive legal framework against torture betrays, with respect, judicial inconsistency and an irrational flexibility destructive of legal certitude necessary for law to serve a stabilising function in our polity.

The Prime Minister must surely know that when the dignity of a large section of its citizens is denuded, a diminished nation in default of its international commitments cannot expect to have its voice heard with respect in the chanceries of the world. The Vice President and Chairman of the Rajya Sabha, M. Venkaiah Naidu, who believes that human rights are guaranteed “...because of being a part of our DNA… ”, must walk the talk, also because a 2010 unanimous recommendation of the Rajya Sabha’s Select Committee proposing an anti-torture law remains unimplemented.

I wish to be able to remember this year as one in which we invested our democracy with dignity in an inseparable coalescence, when hope triumphed over despair and sensitivity prevailed over apathy.

This year should be the year of a fulsome affirmation of our right to question, lest our silence be seen as acquiescence in constitutional aberration. Let us keep digging in for the values that define our nation.

The Hindu

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