Torture can make a man say anything – even if he has nothing to say. It’s this principle that has led to the majority of the world’s nations ratifying the United Nations Convention Against Torture. But, 20 years since India signed the treaty, it has yet to ratify it.
The value of torture demands interrogation. For much of India’s independent history, the state has tortured both its citizens as well as its military. The Samba Spy Scandal is a testimony to the horror of wrongful conviction on the basis of torture-led investigations.
In 2000, a former gunner of the Indian army was exonerated of the charge of being a spy, levelled in 1975 with his arrest. What follows was a spy scandal where over 60 soldiers were arrested on charges of espionage in 1978-79. Among those apprehended were majors, captains, colonels and ordinary soldiers. As the narrative went, spy betrayed spy betrayed spies.
At the time, it seemed like a major bust. But doubts emerged after the body of the one of the accused, Havildar Ram Swarup, was thrown onto the road near the New Delhi cantonment. The army’s stance then was that the officer had died of a drug overdose. 33 years later, the delayed post-mortem revealed otherwise. It bore 44 injury marks and signs of electric burns.
Ram’s widow, Anguri Devi, filed a petition to summon his medical record and order an investigation. The High Court quashed it as the matter had been investigated under the Army Act (which modifies and restricts the Fundamental Rights of soldiers under it), declaring that it was reported that “nobody is responsible for the death of Ram Swaroop.”
The truth is far from being on the record. But the scandal remains the Army’s murkiest.
The role of torture
Torture has two components. One is the victim itself. We cannot witness the countless hours they spent being interrogated, tortured and abused. We can only see the bodies and fill in the blanks. By the narrative, Ram was a traitor and the punishment was just, though still illegal. Few questions are ever asked about the treatment of prisoners in police/martial custody.
By 1994, the spy purge, which encompassed nearly an entire brigade based out of Samba, was revealed to be on flawed grounds. The evidence of two soldiers arrested in 1975, Sarwan Das and Aya Singh, was the basis for the dozens of other convictions. But in 1994, Das came out with a statement saying he had implicated the officers under duress. Soon after, former investigators raised their own doubts about the prosecution.
As investigative journalist Syed Nazakat extracted from an interview with Das:
I remained in the custody of the Army from July 1975 to August 1978. After every interrogation, they used to say, ‘Unless you don’t give us names, you will not be going anywhere.’ I thought if I stayed silent, I would spend the rest of my life in the torture cell or they would kill me. I had heard how Swaroop was killed in Army custody. So after two years, I started giving them names of officers and jawans.
Das had told both courtrooms and journalists that his testimony came under duress. Indeed, when he was first picked up by military intelligence, he hadn’t named anybody. The witch-hunt began during his three year period of incarceration. As he told Indian Express in 2016, the officers beat him if he spoke the truth, and gave him alcohol and money if he lied. So he implicated whoever they asked him to.
Das lives with his wife now, ostracized for what he did. The accusations he levelled under duress led to many being arrested, branded as traitors and tortured. One of the prime accused, captain R.S. Rathaur, spoke to the Sunday Times in 2000 about his experience.
They boasted of 36 methods of torture. My body was lacerated all over. My ears were disfigured. My left hand was paralysed following the insertion of needles under my fingernails; they tore my whiskers, hair by hair, and drove an iron rod up my arse. They would tie weights to my testicles and drag me on the floor by one leg, with one man sitting astride my back.
Formerly of the 11 Garhwal Rifles, Rathaur spent 11 years in jail. It was only by the year 2000 that the Delhi High Court gave a clean chit to all accused, on the basis of an appeal by captain Rathaur and co-accused K.S. Raina. But in 2006, the Supreme Court demanded an investigation into both their roles – ruling that the finality of law could not be overturned.
Violation of Fundamental Rights guaranteed under the Constitution have to be protected, but at the same time, it is the duty of the court to ensure that the decisions rendered by the court are not overturned frequently, that too, when challenged collaterally as that was directly affecting the basic structure of the Constitution incorporating the power of judicial review of this Court.
Das’s example is one where torture can be used to make a person say anything. Swaroop’s killing shows that torture claims lives as well.
A 2008 study published in the Indiana Journal of Law was titled “The (In)effectiveness of Torture.” It highlights the tendency of torture to yield ‘false positives’ from its victims – particularly during the war on terror. Even supposedly toned-down forms of torture (which the author calls ‘torture lite’) yielded false positives.
There have been numerous studies on the failure of torture as an interrogation method. In India, torture persists – despite first-hand testimonies by authorities involved (one of whom was sacked for highlighting it). Ratifying the UN Convention on Torture would mean that all incidences of it would be considered criminal offences. To a realist, nations that ratify this treaty have not ceased their torture programmes (the United States being foremost in mind here).
By keeping its ascension pending, is India’s sending a tacit approval of torture?
Until an evidence-based approach to torture is taken, neither civilian, soldier nor enemy combatant can breathe easy in the Indian subcontinent.
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