The State of Human Rights in India in 2010 (Part III)

INDIA: Democratic pretentions and administrative follies

-- Asian Human Rights Commission


 Purpose of the Bill and the definition of 'torture':


The Preamble of the Bill states that the purpose of the Bill is "... to provide punishment for torture inflicted by public servants or any persons inflicting torture with the consent or acquiescence of any public servant, and for matters connected therewith or incidental thereto..." and "... whereas it is considered necessary to ratify the said Convention and to provide for more effective implementation..." of the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT).

For this to be realised, the primary requisite is to define what amounts to torture. Section 3 of the Bill defines the 'act' of torture. The Section however qualifies torture to those acts which cause (i) grievous hurt or (ii) danger to life, limb or health (whether mental or physical) of any person. The Bill in Section 2 draws meanings to words and expressions used in the Bill from the Indian Penal Code, 1860. 'Grievous hurt' however, is defined in Section 320 of the Penal Code as "(f)irst ? Emasculation; Secondly ? Permanent privation of the sight of either eye; Thirdly ? Permanent privation of the hearing of either ear; Fourthly ? Privation of any member or joint; Fifthly ? Destruction or permanent impairing of the powers of any member or joint; Sixthly ? Permanent disfiguration of the head or face; Seventhly ? Fracture or dislocation of a bone or tooth; Eighthly ? Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

Reading Section 3 of the Bill with Section 320 of the Penal Code, will exclude several forms of torture that are routinely practiced in India. For instance, some of the most common forms of torture practiced in India at the moment are beating, slapping, punching, sleep deprivation and forcing a person to sit, stand or lie down in uncomfortable positions, often generating pain for prolonged periods. All these methods of torture need not always qualify as 'grievous hurt' as envisaged in Secion 320 of the Penal Code. Yet all of them would be considered as torture according to the CAT.

Additionally, the test of what amounts to torture has to be subjective as well as objective. It is a settled position in international human rights law since 1978.41 Indians deserve equal treatment in law in comparison to anyone else, elsewhere in the world. The Bill fails to address mental torture. A person can be tortured mentally, without the perpetrator having to be in physical contact with the victim. Such practices are widely used particularly against vulnerable communities like religious or racial minorities, children and women. For instance, threatening a woman or girl of rapeor forcing a person of any particular religious belief to eat prohibited food ?? like a Musim to eat pork or a Brahmin to eat beef can amount to severe mental torture, which the Bill at the moment omits.

The definition of torture, in its simplest form is provided in the CAT. We urge the Committee to suggest a revision of Sections 2, 3 and 4 to incorporate the letter and spirt of Article 1 of the CAT in the Bill, without which the purpose of the Bill will be defeated. In this context the UN General Assembly Resolution sponsored by India in 1977 is relevant. The Resolution requested the then UN member states to make unilateral declarations of intent to implement and comply with the Principles of the Declaration on Torture.

On statutory limitation


Section 5 of the Bill places a statutory limitation of six months for taking cognisance of an offense punishable under the Bill. India has acceded to the Convention on the Non?Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity on 12 January 1971. It is well settled that torture is a crime against humanity. Being party to the above convention, India is bound by the principle of pacta sunt servanda not to legislate a law that vitiates its treaty obligations. It is true however that 'torture' is not explicitly mentioned in the Convention on the Non?Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. It must not be for India to pose hindrance to the development of customary international law.

In fact it cannot. Law is not static. By virtue of the developments in international human rights jurisprudence post 1947, culminating in the drafting of the Rome Statute that established the International Criminal Court, torture can now be safely considered as a crime against humanity. Indeed, India has neither ratified nor acceded the Rome Statute. However, India's refusal to accede to the Rome Statute and to submit to te jurisdiction of the International Criminal Court was not because ?? at least on records ?? of the fact that torture was considered a crime against humanity. The principal objections by India against ratifying the Rome Statute is mentioned in an explanatory statement on a vote on the adoption of the Statute of the International Criminal Court issued by India's then Additional Secretary to the UN, Mr. Dilip Lahiri, on 17 July 1998. While enumerating India's position against the Rome Statute, Lahiri did not argue against the inclusion of crimes like torture as a crime against humanity, triable by the ICC.

To substantiate further, the settled position of law in India is that the right against torture has attained the status of a fundamental right by virtue of the interpretation of Article 21 by the Supreme Court of India.44 However, the Constitutional provision to hve a 'procedure prescribed by law', which the current Bill is, should not be a procedure to proscribe the scope of a victim to pursue remedies agaist torture. Often, as it has been proved in instances where brutal atrocities are committed against persons, victims take time to speak about it, for reasons like fear, extreme state of trauma, displacement, lack of adequate knowledge or sheer absence of congenial circumstances to lodge a complaint.

Further, prescribing a statutory period of limitation in the law contradicts certain existing propositions of law. For instnce, at the moment, there is no prescribed period of limitation for initiating prosecution in a case of murder. Torture could often result in murder. The purpose of the legislation must be to criminalise torture, encourage complaints of torture, prescribe a reasonable procedure for investigation and prosecution and proide punishment for the crime. All this must be conceived as aiming towards ending the practice of torture. The quotient of reasonableness of a legislation, which is intended to prevent a heinous crime, is judged in the backdrop of the country where the legislation is implemented and the nature of the crime itself. At the moment, India is not a country where a victim of torture has all the congenial circumstances to lodge a complaint. From experience and by virtue of sheer statistics, victims of torture are from the poorest of the poor and from marginalised communities. This stratum of the Indian population itself make up an estimated 60 percent of the total population amounting to millions. Expecting everyone who are otherwise marginalised or having limited or even no resources at all to lodge complaints and pursue them to do so within a short window of time, is destined to defeat the very purpose of the law. Further, this defeat will imply that a victim's right to prosecute a torture perpetrator will be circumscribed by the operation of limitation, unfortunately built into an enabling law.

Requirement of prior sanction


No Indian statute condones the commission of a crime in the course of employment. Neither is torture an act that could be committed 'in the course of employment', since it is expressly barred by existing departmental orders and by virtue of judicial decrees. Requiring prior sanction from the government to take cognizance of a crime of torture implies that in cases where the government denies the sanction, torture is condoned. It could also mean that if the Bill is enacted, the right against torture and thaof a victim to seek redress will be at the mercy of an executive decision. This is a proposition that will defeat the purpose of the law and further, the CAT.

Moreover, Section 6 will be used as an excuse for preventing the initiation of an investigation on a complaint. This will end in the destruction or in the erosion of evidence, which will adversely affect the rights of the victim. Torture can be part of a state regime's clandestine policy, particularly to silence political opposition. Should Section 6 be enacted, it implies the outright denial of prosecution of pepretrators in states where torture is widely used as state policy. No Indian state is an exception to this practice at the moment.

Additionally, the right against torture being interpreted as a fundamental right, requiring a prior sanction to initiate prosecution of the case will imply that Section 6 of the Bill is worded to restrict the realisation of a right. Further, Section 6 will only contribute to the existing delay in the prosecution of cases and will increase the number of cases before the High Courts and the Supreme Court. At the minimum, taking a cue from the Bikari Paswan case from West Bengal and many thousands more, Section 6 of the Bill is destined to defeat the victim and protect the perpetrator.

The settled position of law in India at the moment is that public servants can face prosecution without prior sanction of the appropriate authorities, as all their acts in the purported discharge of the official duties cannot be brought under the protective umbrella of Section 197 of the Criminal Procedure Code, 1973 (Cr.P.C). The Supreme Court of India in January 2009 has settled the law concerning the requirement of prior sanction while deciding, once again a case involving a police officer from West Bengal, Deputy Superintendent of Police Mr. Sahabul Hussain, who was thus far protected from prosecution by the state government. The Court said: "... all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him". Justice Kabir, a judge in the Sahabul Hussain case, perusing an earlier ruling of the apex court said: "...the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinise the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the concerned official."

"However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned." At the minimum, Section 6 of the Bill under review by the Committee is a reintroduction of the 'ruled out' protection of Section 197 of the Cr.P.C, which must not be permitted.

Aspects missing in the Bill relevant to torture and the CAT The Bill falls short of specifying a mechanism to investigate torture, and any witness protection arrangements. Given the nature of the crime, it is imperative that torture must be investigated by an investigating agency independent of the police and having no officers on deputation from any other law enforcement agencies. One of the reasons for the failure of successful prosecution of complaints against police is that the investigation is conducted either by police officers directly or indirectly involved in the crime or by their superiors. There is no need to enumerate why a victim or witness having a complaint against a government servant like a police officer in India requires protection. In countries where the practice of torture has been reasonably contained, both these requirements are met In jurisdictions where these basic requirements are not followed, like in Sri Lanka, the corresponding law has become useless.

Conclusion on the bill


Torture is practiced by law enforcement agencies in India as a crude short?cut for crime investigation. Investigating agencies justify the use of torture arguing that they often lack advanced training and equipment for crime investigation. The concept of modern policing is still a mirage in India, where the police is expected to function as a tool for social control, rather than to serve the citizens. It can be argued that a large number of law enforcement officers in the country believe that the deterrence quotient against a crime is the possibility of being tortured, rather than the crime being detected, prosecuted and punished in the legal process. Extensive delays in court proceedings and the repeatedly demonstrated professional and intellectual paucity of the country's prosecutors appears to justify the read belief among law enforcement officers that torture at the hands of widesp the investigator is the only punishment a criminal might get in India. In this manner, police officers and other law enforcement officers generally consider torture as an essential investigative tool for investigation. Policy makers and bureaucrats believe that there is nothing wrong in punishing a criminal in custody, not realising the fact that a person under investigation is only an accused, not a convict and further, that even a convict must not be tortured. This is due to the lack of awareness about the crime, its nature and seriousness.

As early as 1981, the Supreme Court of India has said "...(n)othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights" (Kishore Singh V. State of Rajastan).46 Internationally, torture is considered as one among the most heinous crimes like slavery, genocide and maritime piracy against which there is an absolute prohibition and the principle of jus cogens applies. When torture is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, torture can also be treated as a crime against humanity under the Rome Statute. The National Human Rights Commission of India has repeatedly recommended the government to criminalise torture. The Commission said "(d)aily the Commission receives petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens. Such a situation must end, through the united efforts of the Government....". The UN Human Rights Committee as early as 1997 has expressed its concern about the widespread use of torture by the law enforcement agencies in IndiaT

The Committee on Elimination of Racial Discrimination has expressed similar concerns in 2007 and the Committee on Economic Social and Cultural Rights in 2008.50 In a democratic framework, torture undermines democracy and the rule of law. Its open or clandestine use undermines the fundamentals of democratic governance. Law enforcement agencies, particularly the police, practicing torture reduce itself into an instrument of fear. This image and torture often diminish criminal investigation into a mere charge based on confessions. Fair trial, an important part of the rule of law framework, has no place in such an environment. The practice of torture is not limited to policing. Paramilitary and military units also resort to torture, often brutal. Whether torture is practiced by a military detachment or by the police, the possibility for a victim of torture to complain is very limited in local India. The absence of witness protection laws, proper investigation mechanisms including medico?legal facilities, and prosecution mechanisms, render complaint making suicidal for a victim. This allows torture to also be used for blackmailing, as a form of revenge and for monetary gain. A domestic law against torture that is capable to deal with the central deficit in India's policing must address all these issues. A proposed Bill that fails to address any of the above concerns is thus a sham.

The culture of state sponsored violence


On August 25 this year the Union Home Minister, Mr. P. Chidambaram's call to ordinary citizens in the country to come forward to assist law enforcement officers in combating armed militancy and terrorism is unfortunately an illusion. The minister was reiterating his wish and request to his fellow citizens while addressing the top police officers of the country in a meeting organised by the home ministry in New Delhi. The Prime Minister also addressed the two?day meeting, convened to discuss terrorism and armed militancy.

It is true that the Union Home Ministry has been consistent in its position of inviting armed groups operating in the country for discussions with the government to end extremist militancy, particularly of the leftist origin. The approach, in theory, indicates the maturity of a government and underscores the importance of dialogue to resolve issues within a democratic framework. It is unfortunate that the Naxalites operating in the country have refused to accept the call, though they have their own reasons to trash the government's requests for dialogues. The AHRC however is of the opinion that the Naxalites and other armed militia are merely exploiting democratic failures.

Unfortunately in India, the list of issues open for exploitation is quite a few, ranging from poverty and malnutrition to loss of livelihood options and brutal forms of caste based discrimination. While it is the duty of a citizen to assist the government and its various agencies to counter anti?national activities, it is equally a citizen's right to expect that the government execute its democratic mandate as promised by the constitution.

The government of India has largely failed thus far in complying with this mandate, and governments' failures consistently exploited by corrupt politicians and law enforcement agencies throughout the country. For instance, the public perception of a police officer is that of a uniformed criminal, paid by the exchequer. The practice of torture is consistent and widespread in the country. In places like Jammu and Kashmir and Manipur, extrajudicial executions ? encounter killings as it is referred to in India ? are rampant. Witness protection is impossible in India due to the absence of any legal framework to provide protection to persons who are willing to depose in courts against criminals.

Going by the widely accepted definition of terrorism ? premeditated use or threat of use of violence to obtain political, religious, or ideological ends ? the Chief Minister of Manipur, Mr. Okram Ibobi Singh and his government could be prosecuted for engaging in terror acts. So could the Chief Minister of Gujarat, Mr. Narendra Modi, who allegedly masterminded the Gujarat pogrom of 2002. While the state police in Gujarat was plentifully used to facilitate what could be defined as genocide of Muslims, in Manipur, the state police have become a synonym of terror.

Yet, those responsible for injuring and murdering citizens at the behest of their political masters and for sheer corrupt means have been largely left free and allowed to continue in their service. While some police officers in Gujarat faced inve stat police, in what is often claimed as encounter killing, reportedly murder someone or the other. The very fact that despite the murder of an estimated 700 'suspected terrorists' each year in Manipur by the security agencies, armed militancy in that state has not reduced. Going by the state government's own reports, armed militancy in the state has instead increased over the past two years.

In this backdrop there are also serious allegations against Ibobi and his government that the Chief Minister is posing terrorism as a means to extract money from the central government in the pretext of countering it. The extrajudicial executions carried out by the Manipur state police are suspected to be undertaken at the behest of the Chief Minister and his political allies, to prove to the union government that they need money to counter terrorism, together with statutory impunity in the form of the Armed Forces (Special Powers) Act, 1958 to prevent the security agencies from being investigated or prosecuted for their criminal acts. The union government's financial aid to state governments amounts to several millions of rupees each year. It is not required to be audited by the Comptroller and Auditor General of India, leaving it to be spent at the absolute whims of the state government. While the tax money is spent in such a fashion, the law enforcement agencies, particularly the state police, continue to remain one of the worst in the world. True, the Indian police might be better in comparison to some of their counterparts in the region, but Indians deinitely deserve better.

Yet, it is no one's concern in India to address deep?rooted organisational and performance issues concerning police. Political parties of all colours continue to meticulously resist any attempt to free the police from political control. The police on the other hand let the politicians exploit them and have unilaterally declared their perpetual servitude to the politicians since they also benefit from the resultant cycle of corruption and nepotism. The furore in the Indian parliament about the nuclear bill was not visible when the Prevention of Torture Bill, 2010 was discussed. On the contrary legislators of all colours tried to water down the already weak law. This important piece of legislation is useless if it is enacted in the current form. The national media have also ignored the subject. There was literally no discussion at all about the proposed Bill against torture in the national press when the Bill was debated in the lower house of the Indian parliament, the Lok Sabha. Today the Bill is pending consideration of the upper house of the parliament, the Rajya Sabha.

Yet, no one is interested in raising this issue. Those who lament that democracy warrants public discussions on proposed legislations through media articles have remained silent about the complete lack of discussion about the proposed law against torture. The logical question is why is this law against torture so important and what is its connection to the depleting national security? Rampant use of torture is the singular tool with which the police have generated fear among the citizens, so that the average citizen today fears to approach the police even when they are in need. It stigation and prosecution, in Manipur none have been prosecuted yet, though every day the is the absence of a proper investigating and prosecuting mechanism against torture that lets the police resort to torture even in cases where they can investigate crimes with whatever little training and facilities the police have in India today.

While international condemnation of torture today is as serious as that against genocide and other crimes against humanity, a large section of police officers in India still believe that torturing a suspect is their right and that torture is a legitimate form of punishment and tool for crime investigation. These officers receive support from legislators with the 18th century mindset like Mr. K. Radhakrishnan, the current Speaker of the Kerala Legislative Assembly, who has repeatedly addressed police officers assuring them that in a country like India, third degree methods are required to police the people and that human rights is an 'occupational hazard' for the police. While expecting and requesting support from the common citizens, the Union Home Minister should bear in mind that the people from whom the government expects support are greatly alienated from their police due to the fear the police have generated among the people. For the citizenry there is hardly any difference between the colonial police and that of independent India.

Though 1950 gave Indians a democratic socialist republic, the republic still carries the burden of having to be administered with the police and their political masters who operate with a coloniser's mindset. Calling for people's participation without clearly articulated and enforced police reforms will only result in a retarded response from the citizenry. Unless affirmative and visible steps are taken to change the unacceptable status quo, expecting the citizens to perform their duty while the state agencies engage in brutal crimes is sheer illusion.


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COURTESY:Asian Human Rights Commision