Méndez’s anti-torture vision is still distant for India

The belief in the utility of torture is embedded in institutional culture and accommodated by law

In a past interview, Juan E. Méndez, former UN Special Rapporteur on Torture, recounts his fears while being tortured for “intelligence” by security forces of the military junta in 1970s Argentina: “I was very scared during the interrogations. Twice they had to call a doctor to check if they could continue torturing me without killing me. Only then did I realize that I could die. But when you are in that situation you live minute by minute, thinking of the moment when the torturers will get tired and stop so you can have a break”.

Mr. Méndez reminds us of the palpable fear created in the exercise of torture. Decades on, instilling fear through torture — physical or psychological — to reach the “truth”, is still seen as an effective interrogation “technique” by security forces. The reality that torture persists suggests that belief in its utility overrides the moral arguments and legal prohibitions against it.

Torture does not work

A latest effort to combat torture during investigation, spearheaded by Mr. Méndez, reinforces empirical evidence that torture does not work. Launched in June 2020, the ‘Principles on Effective Interviewing for Investigations and Information Gathering’, dubbed the ‘Méndez Principles’, were developed through a comprehensive, expert-driven consultative process.

The Méndez Principles aim to provide a cohesive blueprint of practical measures to replace torture and coercive interrogation with “rapport-based” interviews, reinforced through legal and procedural safeguards at every step. They offer practical guidance for non-coercive interrogations; address heightened vulnerabilities in custody; and provide specific guidance on training, accountability and implementation. They are to apply to all authorities who have the power to detain and question people, including the police, military, and intelligence. At their core, the Principles seek to prevent coercive techniques and torture by introducing a paradigm shift away from “confession” based information gathering.

Crucially, they are grounded in scientific empirical studies across disciplines — psychology, criminology, sociology, neuroscience — which establish that coercive interrogation is counterproductive. Extreme torture tactics, such as forced stress positions or waterboarding, have been shown to significantly damage the affected person’s memory and recollection of information. Aggressive questioning is more likely to make the interviewee resistant, or ‘say anything’ just for the threat of violence to stop. Coercive interviewing leads to unreliable information and false confessions. These studies provide scientific evidence to reject the widely-held misconception that a certain degree of ‘pressure’, or physical pain, will yield accurate information.

Its persistence in India

With their emergence as a new set of aspirational standards, it is tempting to assess whether the Méndez Principles can readily apply to the Indian context. Unfortunately, enough evidence indicates that the Indian context typifies the belief in the utility of torture, and is embedded in institutional culture and accommodated by law.

In spite of the prohibition of and safeguards against “third degree methods”, they are normalised in police practice. Even the National Human Rights Commission has said that “custodial violence and torture is so rampant in this country that it has become almost routine”.

The belief that a certain degree of fear and pressure is necessary to compel a suspect to cough up the “truth” is widely held by police officers. This emerged strongly in a 2019 survey of about 12,000 police personnel across India, published by Common Cause and Lokniti. Three out of four personnel felt that it is justified for the police to be violent towards “criminals”, and four out of five personnel responded that there is nothing wrong in the police beating criminals to extract confessions. Scholars, Khanikar and Jauregui, studying the police in Delhi and Uttar Pradesh, reveal practices of using tools such as wooden sticks in interrogation, signalling the presence of tools to beat or intimidate, while perversely labelling them with suggestive phrases like “aan milo saajna” (“come to me, my beloved”). Coercion and the resort to violence are common in both the choice of tools and approach to interrogation. There would need to be a fundamental shift in police thinking before the goal set by the Méndez Principles of moving from coercive practices to “rapport-based interrogation” can be realised.

Structural constraints fuel the persistence of torture, since it is seen to be effective. Investigating officers are in short supply, and have little scope to develop specialisation in investigative work. Working under perceived or actual constraints, of inadequate resources, political pressure, and an overburdened legal system, officers conjure the image of a vigilante cop compelled to take matters into their own hands. Popular films, and political and public support to illegal police killings as in the Hyderabad ‘Disha’ case (November-December 2019), further legitimise the vigilante cop as the only ‘hope’ for serving justice.

Tacit acceptance by law

Additionally, Indian law creates conditions which further permit torture through the “back door”. While confessions before a police officer are not admissible evidence, to prevent the police from resorting to torture, other legal provisions have the effect of indirectly accommodating the use of torture in investigative practice. Section 27 of the Indian Evidence Act permits the admissibility of statements before the police to the extent that they relate to the recovery of material objects, often called ‘recovery evidence’. Thus, investigators still have incentive to seek “disclosures”, and information implicit in a confession, as central to their investigation. Torture and falsification, by forcing an accused to sign on blank papers, are known abuses in the use of this provision. In an opinion study of former Supreme Court judges published in 2018, 12 out of 58 judges acknowledged the heightened risk of torture as the shortcut method to obtain recovery evidence. Yet, Indian law still does not bar tainted evidence obtained through torture or coercive methods as inadmissible. It is up to individual judges to decide whether to rely on it or not.

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The introduction of so-called scientific techniques of interrogation, such as lie detectors and narco-analysis, are often presented as the solutions to end physical torture. Jinee Lokaneeta’s analysis in The Truth Machines (2020) reveals that introduction of these techniques, without addressing the existing conditions which perpetuate torture, has resulted in psychological forms of torture, supplementing coercive interrogation strategies. While the scientific validity of these techniques in determining the “truth” is held suspect, Indian law allows evidence voluntarily given by an accused through these techniques to be used as corroborative evidence. What can be voluntary in police custody without the protective cover of enforced safeguards?

In all of these ways, Indian law remains ambivalent and fails to fully prevent torture and coercion from creeping in. Structural constraints, popular culture, and political approval have shaped policing institutional cultures to valorise violence and coercion. Without urgent introspection, Méndez’s anti-torture vision will remain distant for India.

Devika Prasad and Zeba Sikora, are with Project 39A at the National Law University, Delhi. The views expressed are personal. This article first appeared in TheHindu and can be accessed here.