In his new year message, UN Secretary-General António 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”.
The court’s disinclination to exercise its expansive review jurisdiction for enforcing the non-negotiable right to dignity in the face of legislative and government inaction is inexplicable given the court’s activism as sentinel on the qui vive qua enforcement of constitutional rights. And this despite the 2010 recommendation of the Select Committee of the Rajya Sabha supported by the National Human Rights Commission, the Law Commission of India and repeated assurances given on behalf of the Indian government at the UN Universal Periodic Review. The court remained impervious to its own jurisprudence expounded in Puttaswamy and NALSA (2014), among others, that unless there is a manifest intent expressed to the contrary, domestic laws should be aligned with the international legal regime on the subject. 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. The Attorney General likewise owes a moral responsibility to the nation in supporting the proposed dignitarian legislation against torture which is unburdened by a partisan political agenda. After all, it was his assurance to the court that the government was seriously considering the October 2017 recommendation of the Law Commission in support of a standalone anti-torture law which persuaded it to dispose of the petition without suggestive observations that would have strengthened a compelling constitutional cause with the court’s moral authority. Parliamentarians who are privileged to represent the concerns of the people must keep faith and ensure the passage of a humanitarian law.
Whether or not the court was right in abdicating jurisdiction to enforce a dignitarian constitutional value in the premises aforesaid is best left to be determined at a later date, considering that the court itself has repeatedly disavowed any claim to infallibility. In the meanwhile, we must strive to set higher standards of accountability for our constitutional functionaries in 2018. 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.