Category Archives: Law and Order

HUMAN RIGHTS AND PRAGMATISM: TORTURE

By Kartik Sharma

PC: The Centre for Victims of Torture at http://rejecttorture.cvt.org/neverlegal/.

INTRODUCTION

No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.[1]

While, by a long shot, the vast majority of the countries have confirmed all the significant human rights traditions, however encroachment of Human rights remains normal. Torture is one of them. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984,[2] defines torture as “an act involving agony or suffering; physical or mental, perpetrated upon the victim for a specific reason”.[3] This act is in with the association of an open (for example, State) authority.[4] Further, this enduring must be extreme, purposeful, and baseless in the condition.[5] It has evolved and has become more prevalent juxtaposed with civilisation.

Moreover, as the world evolved, torture strategies turned out to be increasingly specialised, progressively clinical. Torture hardware has turned into a product to be purchased and sold. Governments traded tips on effective torture procedures, and all this despite knowing that torture has turned out to be illicit as indicated by the said universal law.[6] “With this, a debate whether torture can ever be morally and practically justified, arises?” Is it practically and morally justifiable for an individual or a state to extort to torture to extract information or confession which could save a case? Could we have exceptions to anti-torture laws like a necessity in ticking time scenarios?

DISCUSSION

Justification

Torture is brimming with complexities and logical inconsistencies. The legislature, the torturer, even the general population, may legitimise its utilisation in specific conditions, while conventional society denounces it as primitive, underhanded, and bygone. The government may goad this support with stock reactions, for example, national security.

The proclaimed reason for utilising torture is to constrain the enemy, the outsider, to talk and uncover secrets. This disclosure should hinder the slaughtering of the insiders. These lines of thinking are so smooth and shortsighted that it is promptly and uncritically acknowledged. Showing the issues this way gives support and legitimacy to torture.[7]

‘Be that as it may, creating conventions criminalising torture is certain something, and its enforceability is another. Here, as so regularly, where we make laws to control what individuals can and cannot do, we are looked with issues which are characteristics of human instinct. It is an unpreventable actuality of the human condition that we feel pain. We dread pain. This sense of pain and suffering is a reality which we can all use for our benefit. Intensely painful things have considerably more harming results. Therefore, the curse of agony on others is a weapon, particularly in the hands of the deceitful. This fear constrains individuals and their individuality, and torture is a method for imparting fear.’[8]

Though every human being has a right to be free from torture, and we have laws for it as well, but if one looks it with a pragmatic approach one cannot separate the world from torture. In all the countries, the intelligence agency extorts to torturous acts to extract information from captured terrorist, and this is omnipresent. Every movie, drama or documentary depicts the same situations. This ubiquitousness clearly shows that there arise situations where pragmatically one cannot avoid to extort to torture.

There are circumstances in which it is not passable, however ethically required, to torture. For instance, in 1998, an Israeli delegation appeared before the UN Committee against Torture.[9] Allegedly, Israel violated the UN Convention against Torture. In their defence, they put forth the famous ‘ticking bomb’ scenario.[10] They state that,

“On the off chance that we did not put weight on Palestinians for the following strike, nobody will ever know where and when the following suicide bomb is going to strike, and now and again we are in uncommon circumstances where we have to get indispensable data from a psychological militant or a potential fear-based oppressor to keep a further demonstration of dread.”[11]

In another example, in 1982, a man named Michael Levin placed a bomb on Manhattan Island.[12] The location of the bomb was unknown. In this situation, the authorities had no other alternative to get the location of the bomb then resorting to torture.

Counter Justification

All these excuses legitimising torture does not mean that one has the right to torture every enemy of the state. “Torture is always wrong.[13] While it is conceivable that torture may yield dependable insight, we cannot resort to it with any certainty of gaining verified information. Additionally, we ought not to accept that torture is compelling to this end because those with a particular enthusiasm for supporting torment guarantee that it works.[14] Neither would we be sure that torture was the only method to acquire essential data. There is absolutely no solid proof that points towards the far-reaching utility of torture for this reason. Moreover, authorities who guarantee torture has worked along these lines never provided cases in which torture has brought about false admissions or manufactured insight. However, there is sufficient proof to demonstrate that casualties of torment will say anything to end torture.[15]

While it is conceivable that torture may result in some valid insights, it is also unmistakably bound to result in false admissions. It is so because an extorted person looked with the awfulness of torture, is probably going to state anything that will make the torture stop. Torture is exceedingly successful for verifying false data. Despite this, the justification for torture has been made based on its assumed utility for procuring precise intelligence data.[16]

CONCLUSION

Torture is primitive, and a state ought not to be savage. To treat somebody savagely dissolves the authenticity of the state. It on an elementary level disregards humanity. Wing-Commander of Indian Air Force Abhinandan Varthaman was also mentally tortured despite being an unarmed soldier of an enemy state. All over the globe, similar cases occur round the clock. It is not right. With all possible outcomes, one cannot disregard the fact that torturing someone is not the best and reliable way to extract information. Just to save oneself from brutality the tortured person can say anything without regarding the viability of the info.

Further, extorting to torture fades away the true meaning of interrogation which is to get reliable and viable info; and, not to make other people talk. Likewise, no state should justify acts of torture, and for ticking clock scenarios, countries around the globe should make efforts to come up with a plausible solution. They can work on making policies for resorting to different consensual biological tests and hypnosis to gain information at the last minute; paying all regards to the legality of such tests.


[1] Universal declaration of Human Rights, 1948, Article- 5.

[2]United Nations Convention Against Torture, 1984, Article- 1.1.

[3] Ibid.

[4]Darren J. O’Byrne, Human Rights: An Introduction 164 (2004).

[5]Ibid.

[6]Ibid.

[7]Ibid.

[8] David Hope, Torture, 53(4) International and Comparative Law quarterly 808 (2004).

[9] Blakeley Ruth, Why Torture, 33(3) Review of International Studies 377 (2007).

[10] Ibid.

[11] Ibid.

[12] Yuval Ginbar, Why not torture terrorist? 359(2008).

[13] Ben Juratowitch, Torture is Always Wrong, 22(2) Public Affairs Quarterly 81 (2008).

[14] Ibid.

[15] Ibid.

[16] Ibid.

The Chinese Invasion

The Covid-19 virus, the Ladakh standoff and the Indian Prime Minister’s stress on self-reliance have led to multiple calls for the boycotting of Chinese products and the Asian country in its entirety. With the government announcing a 20 lakh crore package and Sonam Wangchuk detailing the various reasons to boycott Chinese products, the call for self-reliance has only gotten stronger.

The Make in India campaign has so far been unsuccessful in fulfilling the vision that the BJP led Indian government had set out to accomplish. However, it was a step in the right direction as the much-needed impetus for the Indian economy. Yet a total boycott of a country and it’s products is not feasible for a country like India and will take time. The superior quality Chinese products at affordable pricing are what led to the invasion of Chinese products in almost all countries including India. The “Atmanirbhar Campaign” will act as a catalyst to the dwindling “Make in India Campaign” that has underperformed.

However, a total like to like replacement of the Chinese hardware and software will take a lot of time. The current Indian hardware and software fail to match up to the Chinese standards. Yet the Indian industries will fail to develop and mould itself quickly unless there is a surge in demand and a dire need to do so. Thus the exclusion of Chinese products is a necessity for the Indian industries to develop which in turn will lead to a creation of jobs that will serve the economy and aid in much faster growth.

Indian citizens have been quick to attack Chinese products and softwares from its creation of the, “Remove China Apps” app that removes Chinese applications installed in your phone. TikTok, a Chinese app that has 467 million Indian users has contributed substantially to the revenue generated by the Chinese application. Initially, Indian netizens had first attacked the Chinese application over a feud between a TikToker and a Youtuber which led to the app being downgraded to a 1.3 rating from its initial 4.9 ratings. However, Google was quick to remove all the recent one-star ratings from the application. With Google pulling down the recent 1-star ratings, Indians have started uninstalling TikTok along with other Chinese applications like UC Browser, CamScanner etc over the Ladakh feud and with Sonam Wangchuk leading the campaign to remove Chinese apps within a week and Chinese hardware in a year. India imports goods worth more than 50 billion dollars from China in contrast to a miserly 2.5 billion dollars in exports to China.

If India proceeds with putting a halt to the Chinese invasion in its market, India would suffer from a paucity with regard to capital goods, machinery, electricals, chemicals to go along with intermediate and consumer goods. India’s heavy reliance on China makes it difficult to put an end to imports cold turkey. India should focus on a gradual decline in imports while developing a sustainable infrastructure for the production of goods in their own country. A sound infrastructure and production in India will give a major boost that India is in desperate need of. India can then finally be independent and their over-reliance on FDI can diminish.

LEGALITIES OF LOCKDOWN: an abstract law analysis.

By Kartik Sharma

Picture Credit: Starlineart, India Lockdown due to Coronavirus Pandemic Infection Outburst.https://en.clipdealer.com/vector/media/A:143289831.

Amidst pandemic, India joined the league of nations which declared country-wide lockdown. Following the ‘Janta’ curfew, which was a one-day voluntary curfew, India saw more than 70 days of lockdown. It involved shutting off all the economic activities except essential services. This step by the government pop crucial questions about its legality. From where did the Government derive this power and whether these restrictions are reasonable restriction under Article 19(5)?[1]

The Government derived this power from the Disaster Management Act, 2005 (DMA) and the Epidemic Diseases Act, 1897 (EDA).[2] Although none of them defines ‘curfew’ and ‘lockdown’, EDA grants powers to the Government to restrict movement to prevent the spread of disease.[3] It also grants the Government with the power to take necessary steps for the same.

Also, the National Disaster Management Authority (NDMA) declared COVID-19 a ‘notified disaster’ under DMA.[4] This move gave power to the Union to create a three-tier Disaster Management Authority (National, State, & District) to discuss, plan and issue guidelines on issues arising from the disaster.[5] This declaration also opened the gates for the States to use ‘State Disaster Response Fund’, as described in DMA.[6] Hence, deriving such powers, the Union Government was able to formulate necessary guidelines and restrict movement across the country. At this juncture, another question arises. What if the state(s) did not agree with the Centre to impose lockdown? Or they revolted on the Centre’s decision?

Article 256 stipulates that “the Union can give directions to the State as may appear necessary to enforce a law enacted by the Parliament”.[7] So, having constitutional validity for directing state governments, the Union used EDA and DMA to lead the States on the implementation of guidelines and other policies. Although the Union decided lockdown in consultation with the States, these directions are not merely advisory, and the Centre can enforce them. The Centre could invoke National Emergency[8] or State Emergency[9] enshrined in the Constitution. Invoking emergencies will allow the Centre to take punitive measures against the States which are disobeying Centre’s directions.[10]

Now to discuss Freedom of Movement enshrined in Article 19(d),[11] I will say these are reasonable restrictions. Article 19(5) exonerates imposition of restrictions if it is in the interest of the general public,[12] which is the case. The imposition of lockdown was to prevent the uncontrollable spread of Coronavirus in the country. This imposition helped prevent a sudden spike of cases in India to a great extent. Therefore, the actions of the Government are neither illegal nor do they violate any Fundamental Rights. The restrictions imposed by the Government are reasonable.


[1] The Indian Constitution, 1949, art 19(5).

[2] Prashasti Awasthi, Centre Invokes ‘Epidemic Diseases Act’ and ‘Disaster Management Act’ to Prevent Spread of Coronavirus, The Hindu BusinessLine March 12, 2020, https://www.thehindubusinessline.com/news/national/centre-invokes-epidemic-act-and-disaster-management-act-to-prevent-spread-of-coronavirus/article31049161.ece#.

[3] Epidemic Diseases Act, 1897, §2, 2A.

[4] Disaster Management Act, 2005, §6.

[5] Ibid.

[6] Id, §48.

[7] Supra note 2, art 256.

[8] Supra note 2, art 352.

[9] Supra note 2, art 356.

[10] Supra note 2, art 353, 357.

[11] Supra note 2, art 19(d).

[12] Supra note 2, art 19(5).

Disrespect, not Dress, does it – The increasing rape cases are a serious concern for mankind

By- Ekta Sain

Looking at the current state it looks like after some time we will be living in a country where we won’t be giving birth to a human, we will give birth to a human who is worse than an animal. This nation is becoming unsafe not for only girls but also for boys. Not only streets, roads or workplace but our homes are becoming dangerous for us.

Every year there are many cases of molestation and rape came across. Some are registered, some not. Why are these happening in our country? Why are these molesters or rapists moving freely?

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According to the Indian Constitution, the definition of Rape is “when a man forcibly does any sexual activity with women then it is considered as rape.” They never recognized that a man can also be raped.

According to a study conducted by NDTL on an average of 8 women get molested every day in India. But the research of the Centre for Civil Society says that the victims of assault are 57.3% males and 42.7% females. In such cases, family members of female victims avoid disclosure and maintain the confidentiality of the victim and sometimes they complain about the crime. But when it comes to males being a victim for sexual molestation, they don’t get reported for it. It is a myth in our society that boys cannot cry in front of everyone they have to be mentally strong. This myth stops boys from confessing their molestation.

Men believe this myth and feel lots of guilt and shame because they got physically aroused during the abuse. It is important to understand that males can respond to sexual stimulation with an erection or even an orgasm – even in sexual situations that are traumatic or painful. That’s just how male bodies and brains work. Those who sexually use and abuse boys know this. They often attempt to maintain secrecy and to keep the abuse going, by telling the child that his sexual response shows he was a willing participant and complicit in the abuse. “You wanted it. You liked it,” they say.

But that doesn’t make it true. Boys are not seeking to be sexually abused or exploited. They can, however, be manipulated into experiences they do not like, or even understand, at the time

There are many situations where a boy, after being gradually manipulated with attention, affection and gifts, feels like he wants such attention and sexual experiences. In an otherwise lonely life (for example, one lacking in parental attention or affection – even for a brief period), the attention and pleasure of sexual contact from someone the boy admires can feel good.

But in reality, it’s still about a boy who was vulnerable to manipulation. It’s still about a boy who was betrayed by someone who selfishly exploited the boy’s needs for attention and affection to use him sexually

There was a study conducted by a research scholar of Babu Banarsi Das University Lucknow in which she described myths related to rape cases. According to her,  “rape myths exist for a number of historical and cultural reasons including gender role expectations, acceptance of violence and misinformation about sexual assault and they are the one reason why victims are shamed into remaining silent.”

According to this research, the reason why rapes are happening is women are dressing provocatively and that turns out as a problem for her. This is believed by 45% of individuals. Many of them blame the girls who drink. According to them if a girl drinks then she deserves to be raped. Another reason for rape is a girl in the relationship and some blamed the girls who stay outside late at night.

Till when we only ask our girls to hide their beauty and innocence can’t we ask boys to control and behave themselves? If these cases were not taken seriously in our country then it is natural that after some time we won’t find a road where girls will walk freely, it will be hard to find a home where they could live freely.